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burning issue


the ‘legitimate’ limits of artistic practice

kate macneill and barbara bolt

Kate MacNeill and Barbara Bolt lecture and research at the University of Melbourne.

Bennett Miller, Dachshund UN Bennett Miller, Dachshund UN
image courtesy the artist
ON JULY 6, IN RADIO NATIONAL’S AUSTRALIA TALKS, THE QUESTION UNDER DISCUSSION WAS WHETHER THE VISUAL ARTS SHOULD BE CLASSIFIED THE SAME WAY AS FILMS AND VIDEO GAMES. THE TOPICALITY OF THIS THEME COMES IN THE WAKE OF A SENATE COMMITTEE INQUIRY, WHICH HAS RECOMMENDED THAT THE VISUAL ARTS SHOULD BE SUBJECT TO THE PRINCIPLES OF THE NATIONAL CLASSIFICATION SCHEME, WITH A DISSENTING REPORT FROM GOVERNMENT MEMBERS OF THE COMMITTEE PREFERRING TO AWAIT THE OUTCOME OF A CONCURRENT AUSTRALIAN LAW REFORM COMMISSION REVIEW OF THE SCHEME.

As one of its recommendations, the Senate Committee proposed a self-assessment scheme under which breaches of the classification code would be met with sanctions. More importantly it recommended the appointment of community advisory panels with the authority to advise and guide the National Classification Board in its deliberations. In recommending this, the chairperson of the Senate Committee, the Tasmanian Liberal Party senator Guy Barnett, indicated that decisions of the Board should reflect community standards and attitudes of the day.

In his introduction to Australia Talks, Paul Barclay asked the following questions: How would this affect Australian artists and galleries? Could it restrict artistic freedom? Is it appropriate for art to reflect community standards and attitudes? Not surprisingly, given the focus of the Senate Inquiry, the conversation focused on sexualised imagery of children and the photographic work of Bill Henson. In 2008, the Henson debate reawakened and questioned the long-standing claim that artistic freedom excuses behaviours that may be unacceptable in other realms. This claim, often referred to as the aesthetic alibi, asserts a special case for art that might otherwise be unlawful if part of everyday life.

the aesthetic alibi under fire

Martin Jay described the aesthetic alibi as a “special case of freedom of speech,” one that provides dispensation to otherwise offensive material if it takes place “within the protective shield of an aesthetic frame” (Jay, 1998). The aesthetic alibi has given rise to legislative defences that protect works of artistic merit which would otherwise be deemed illegal (for reasons of obscenity, pornographic content or racial and religious vilification) and is implicitly invoked when contributors to public debate argue for the sanctity of a work on the basis that it is ‘art.’ Bill Henson actually sought classification of his work—it was after all available for viewing on the internet and a postcard which would have brought it into the realm of the classification system—receiving a “Parental Guidance” rating. Nonetheless, the ensuing controversy around the Henson photographs of children reflected prevailing community attitudes and responses to risk and all too often unsubstantiated claims took precedence over critical debate around aesthetics and ethics. The current proposal for community advisory panels raises the question that, where the ethics of practice are negotiated to reflect community standards and attitudes, artistic freedom and the aesthetic alibi come under fire.

The Senate Committee Inquiry and the Australian Law Reform Commission review of the National Classification Scheme question the aesthetic alibi and the assumption that art should have “special” dispensation. The Senate Committee Inquiry argues that artistic merit is not a defence, particularly when it comes to child pornography. While the exploitation of children holds centrestage, the recommendations go beyond this specific question to focus on the distribution and public viewing of art that is deemed to be outside or at the edge of accepted community standards. In essence the Inquiry is concerned with broader issues of censorship. However, the discussion around classification needs to be put in a broader context of the ethical regulation of art both in the public realm and now, more specifically, in the academy. Increasing regulation of the creative arts impacts on not only what we are able to view and experience, but more specifically on what artists can actually do. Thus a pressing question for artists working across the disciplines is: how does ethical regulation affect the creative process?

artists & protocols & ethics

The Australia Council responded to the debate around Bill Henson’s work by introducing its Protocols for Working with Children in Art (2009), linking them directly to the funding of artistic activity. In short, non-compliance or failure to sign up to or act in the spirit of the protocols may result in the denial or withdrawal of funding. Less well known is the impact of ethical regulation of art in the academy. As a result of the 1990s Dawkins’ educational reforms, creative arts education was integrated into the university sector. In the university context, art was reframed as research and artists became researchers. Under this rubric artists, like all researchers in the academy, are answerable to the National Statement on Ethical Conduct in Human Research (NHMRC et al, 2007) and its equivalent for research involving animals, the Australian Code of Practice for the Care and Use of Animals for Scientific Purposes (NHMRC, 2004). With a focus on researcher integrity, justice and beneficence, the decision-making processes of university ethics committees tend towards risk aversion rather than management of risk.

risk aversion & self-censorship

The risk-averse environment inside and outside of the academy has had two major consequences:either risky art projects may not be funded or else (in the case of art in the university) denied approval. More worryingly, as Robert Nelson observed on air, artists self-censor and steer away from projects that are likely to create bother. Thus the impact of ethical regulation, including codes of practice and ethical protocols, have shifted attention away from the circulation of the work among audiences and have refocused it on the production of the artwork itself. When art or art as research is in conflict with established protocols, artistic freedom and the aesthetic alibi are no longer a valid defence.

at the boundaries of art & life

The view that there is something unique about artistic activity that sets it apart from ‘everyday life’ can no longer be taken for granted. Many contemporary art practices sit precariously on the boundary of art and life, and it is these areas of artistic practice that are particularly vulnerable to assertions of unethical conduct within the educational and professional sector. Common themes include the use of animals in art; concerns relating to artworks that utilise surveillance techniques and appear to impinge on personal freedom and/or privacy; instances of self-harm on the part of artists; and, as already mentioned, creative practices that involve children. In 1975 for example, the Australian artist Ivan Durrant draped a cow carcass across the entry of the National Gallery of Victoria and was filmed shooting a cow in front of the Monash Gallery of Art. In 2000 at the Trapholt Art Museum in Denmark, Marco Evaristti challenged viewers to activate food blenders containing goldfish, resulting in animal cruelty charges against the Museum Director. Melbourne’s 2010 Next Wave Festival contained a work by the Australian artist Bennett Miller, Dachshund UN, consisting of 47 dachshunds representing member states of the United Nations, a work that also provoked debate around perceived animal cruelty. SymbioticA has collaborated with the Australian artist Stelarc to grow an ear from cells (Zurr and Catts, 2004). When exhibited, the National Gallery of Victoria, in response to ethical concerns, displayed a notice assuring visitors that no human tissue was used.

The work of renowned French artist Sophie Calle directly engages with the blurred boundaries of the public and private self. In Suite Vénitienne (1980), Calle observed a stranger, following him across Europe and filming his movements. In another work, shown at the Venice Biennale 2007, she displayed an email from an ex-boyfriend, making it the central motif of the work accompanied by over 50 interpretations of the email text, some of which purported to analyse its author. When Marina Abramovic visited Melbourne as part of the 1998 Melbourne International Arts Festival she presented a work which required the audience to be physically restrained within a holding cell of the Old Melbourne Goal. In a separate work Abramovic invited an audience to take up knives and other weapons against her—incurring actual physical harm. Vito Acconci’s Claim (1971) challenged audiences to approach the artist, who was fiercely guarding a stairwell entry, and physically threatening anyone who approached. The Australian artist Mike Parr has long maintained a practice of self-mutilation, burning his skin and sewing his lips together. Bill Henson’s focus on children in the process of artistic creation, and the controversy it produced, can be seen as part of a continuum of artistic activities which challenge conventional and popular concerns about potential harm to self and others.

ethical constraint vs artistic freedom

Contemporary artists and those in the academy who are both influenced by and aspire to emulate many of these avant-garde practices are faced with a contradiction. While individual freedom and unrestrained creativity are at the heart of art training, the legal and institutional frameworks within the profession and educational institutions are likely to be just as concerned with risk management and compliance. The Statement on Ethical Conduct specifies that all research involving humans must be conducted in accord with the following principles: the research must have merit and integrity, be designed and conducted according the principle of beneficence (maximise benefits, minimise risks to participants) and be in accord with principles of justice and demonstrate respect for human beings and animals. Research involving human subjects and animals is submitted to a university ethics committee before a researcher is given the authority to proceed with a project. These committees may require changes to a project’s methodology or reject it altogether if they feel it conflicts with ethical protocols. The notion of the aesthetic alibi is not considered a valid rationale for an art practice that tests these protocols.

A recent survey undertaken at the University of Melbourne suggests a level of anxiety on the part of artists-as-researchers. From the responses, particularly from amongst practice-led researchers, it emerged that researchers believe that the ethics protocols, processes and procedures in universities operate as a silent regulator of conduct and a subtle determinant of content in creative arts research. One respondent expressed concern that the actual training of artists might lose its open inquiry should ethics processes determine modes of inquiry: “The training of a professional artist within academe, even as it includes research training must also acknowledge the serendipitous, convulsive, errant and imperious actions of the imagination in its moments of discovery.” Further, it was revealed that some students self-censored merely because they thought their project would not get through the ethics process: “The mere mention of these considerations [the ethics guidelines] is often enough for the student to self censor.” From these observations it could be argued that through its very stringent processes of ethical regulation, the university ethics procedure introduces limitations that work against ‘cutting edge’ research and mitigates experimentation at the heart of practice.

A 2003 study by Throsby and Hollister found that 91% of visual artists had undertaken some formal training and that 67% identified this as being their most important training and formative influence on their artistic practice. It is not surprising then that there is concern that what happens in the academy may flow through into and impact on the nature of practice once these are professional practicing artists. This in combination with the development of artistic protocols and classification offers a fundamental challenge to artistic freedom and the artistic alibi.

colliding benefits

Many artist academics hold the conviction that art should maintain its social critical role at the ‘edge’ and continue to test and trouble society’s ethical and moral boundaries, a role that stands in conflict with the fundamental precept of beneficence that underpins the Statement on Ethical Conduct. Research protocols could then be seen to be in tension with the fundamental tenet of avant-garde art, a tenet still held dear by many contemporary artists: art acts as a provocation; it operates as the conscience of a society, it produces discomfort and brings its audience into crisis (Bolt et al, 2010). For artists this discomfort and crisis represents precisely art’s benefit, both to the participants and to the wider community, while for an ethics committee such discomfort may be deemed an unacceptable risk. Here, two notions of beneficence collide. A comparable conflict can be observed more broadly as the government moves to limit the protections available to artists in a range of legislation, such as the anti-terrorism laws, representing a further fundamental challenge to the aesthetic alibi.

transgression for the good

The realm of the aesthetic is now meeting that of the ethical, not only in the academy but increasingly in the art world with no considered examination of the implications of this accord. Jacques Rancière (2009; 2010) asserts a distinction between aesthetic practice and ethical practice, and proposes that an ethical practice demands that individuals be treated according to the dominant ethos of the community in which they live. Consequently, the avant-gardism of artistic activity and its challenge to dominant social mores could be considered to be in opposition to ethical regulation. Susan Best encapsulated this tension when she referred to art “being seen as transgressive and lawless rather than being governed by the pursuit of the good” (Best, 2004). In his discussion of the animosity that art can create in a community, Leo Steinberg observes that the “animistic charge of artworks—the vitality imputed to them by the receiver” is what sets art apart (Steinberg, 1986). This vitality, this discomfort and crisis is precisely art’s benefit, both to the participants and to the wider community. The danger however, as Steinberg cautions, is that this discomfort might also allow iconoclasm to find fertile soil.

art circumscribed

A legacy of avant-garde conceptions of art as a necessary challenge to the status quo runs through contemporary practice and theory, perhaps nowhere moreso than in the early experimental stages of artists’ practices. Hence, many contemporary artists and art students pursue practices intended to be in direct tension with society’s norms. These art practices involve activities that may not be condoned in everyday contexts. In the past the concept of the aesthetic alibi, the suggestion that the imaginaries of art are inappropriate targets of generic legislative sanction, has been seen to be inviolate. Increasingly, as we outline here, it is not just the law that seeks to circumscribe artistic activity, but the ethical codes of practice within which art education institutions operate and the professional protocols for artists’ conduct. The combination of these various interventions could in some environments and risk-averse institutions lead to the stifling of creative development. What is called for is an environment that encourages a situated ethics of practice, one that responds to the particularities of each individual artistic activity and interpersonal negotiation, rather than regulating artistic activity through the external imposition of codes and protocols.

additional resources

Best, Sue (2004), Editorial, ANZJA, Vol 4 No 2, Vol 5 No 1; Bolt, B, Vincs, R, Alsop, R, Sierra, M, and Kett, G, (2010) Research Ethics and the Creative Arts, Melbourne, Australia: Melbourne Research Office; Jay, M, (1998), “The Aesthetic Alibi” in Cultural Semantics: Keywords of Our Time. Amherst: University of Massachusetts Press; Rancière, J (2009), “The aesthetic dimension: aesthetics, politics, knowledge,” Critical Inquiry, Vol 36 No 1; Rancière, J (2010), “The aesthetic heterotopia,” Philosophy Today, 54; Throsby, D and Hollister, V (2003), Don’t Give Up Your Day Job, An Economic Study of Professional Artists in Australia. Sydney: Australia Council; Steinberg, L (1986), “Art and Science: Do they need to be yoked?”, Daedalus, Vol 115 No 3, Art and Science (Summer 1986); Zurr, I and Catts, O (2004), “The ethical claims of bio-art.” ANZJA, Vol 4 No 2, Vol 5 No 1

Kate MacNeill and Barbara Bolt lecture and research at the University of Melbourne.

RealTime issue #104 Aug-Sept 2011 pg. 26-27

© Kate MacNeill & Barbara Bolt; for permission to reproduce apply to realtime@realtimearts.net

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