A recent advertisement for Apple made the point that the company’s first priority is how they want the customer to feel—the emotional experience linked to their products, focusing on joy, delight, love, surprise, and connection. (You can see this at http://www.apple.com/designed-by-apple/.) Customers’ passion for Apple is evident in the long lines that form whenever the next generation of iPhone, iPad, or iPod is launched—no matter how trivial the upgrade, people still camp on the street overnight to be the first to possess the latest product. Unlike most firms, which emphasize what they will produce and how they will produce it, Apple begins by asking why. Why will people want to buy this product? Why will it improve their lives?
This started me thinking about the ways that questions of what, how, and why might relate to the arts. People frequently disagree about what the definition of art could be—what is the elusive factor that causes one object or performance to be recognized as a work of art and another to be excluded from this classification? Questions of what generally relate to products, sometimes beginning the perennial questions that arise when people are confronted by an unfamiliar work of art: What is that? What does it mean? What’s that supposed to be? When artists do their creative work, the word how frequently comes to mind: How could I embody my idea in a work of art? How I can make this work better? How should I present this work? Questions beginning with the word “how” tend to refer to processes involved in creating an artwork as well as to its presentation, performance, or to the ways a work of art communicates the artist’s message.
Where does the power of the arts lie: in the product, the process, or…something else?
The processes and products of the arts are equally important because there simply can be no product without process. Consider Beethoven: he was just as instrumental in creating the artistic process of composing program music as he was in the works of program music he composed. Process factors heavily into program music because this type of composition conveys an “extra-musical” story or “feeling” driven entirely by the composer’s intentions toward the piece: musical elements are deliberately chosen not only for their sound value but for the narrative they form in the listener’s mind. This is a complex interaction between numerous processes and a product: the process of composition, the product of the score, the process of performing the musical product (which is subject to interpretation), and the processes of apprehension and comprehension by the audience. Beethoven added another dimension to artistic process through his implementation of the then-new invention of the metronome and metronome markings on the musical score, placing increased emphasis on the way in which the music was played (tempo indications)—the processes of composition and performance—as opposed to attention on just the reproduction of the musical notes themselves.
Similarly, Van Gogh’s unique process of painting resulted in his distinctive artistic products. Process was even more important in the works of abstract expressionist painter Jackson Pollock, whose process of creating the work—known as action painting—took precedence over the resulting work itself, an idea championed by noted critic Clement Greenberg who extolled the virtues of Pollock’s focus on artistic process. Leonard Bernstein was as well known for his process of conducting as he was the products of his work as a composer. Author J.R.R. Tolkien was known for his extensive, meticulous process of writing, creating entire cultural histories and unique languages to provide a conceptual foundation for The Hobbit and The Lord of the Rings trilogy.
Given these examples, therefore, it is illogical to attempt to differentiate between the importance of the process and products of the arts because one cannot exist without the other. Works of art simply don’t appear haphazardly. Philosopher William Paley theorized that someone walking through a field and happening upon a rock could reasonably presume the rock to be a natural part of the environment. However, if a person found a watch in the field it would be nonsensical to presume that it had occurred through natural processes. Just as the designed object in Paley’s example implies the existence of a designer, a product of the arts also implies an artistic process.
If we really want to understand the power of the arts, however, we must look deeper than product or process, beyond questions of what and how. Let’s consider these questions as they relate to Van Gogh’s “Starry Night.”
What: this work is an oil painting depicting the night sky.
How: Van Gogh painted the sky he’d observed through the window of his bedroom in a sanatorium, working from both his memories and his own artistic interpretation.
Neither of these, however, accounts for the power of this iconic artwork. What’s missing is the question, “Why”. The “why” of a work of art can be posed in many ways, often in questions asked by the audience: “Why did the artist create this work of art?” and “Why should I care about this work?” Van Gogh’s painting resonates with the viewer, communicating a powerful message about the wonder, glory, and splendor of the night sky. The work is infused with passion and elegance, revealing the painter’s amazing perception of celestial phenomena. More than this, though, is the fact that a viewer of this work can be, quite literally, transfixed by its presence—it appeals to the part of the brain processing stimuli beyond language, eliciting a visceral reaction beyond words. The power of the arts rests in their ability to do this—to move beyond the what and the how, the product and the process, and reach out to touch people’s hearts, their beliefs, their very reason for living. The “why” of an artwork makes the work personally communicative, and in the case of Van Gogh, allows a viewer to make an emotional connection to the painter himself. It doesn’t matter at all that Van Gogh has been dead for more than 100 years—to view “Starry Night” is to share in the artist’s experience. If what relates to product, and how relates to process, then why is inextricably linked to emotion.
Aesthetic philosophers have examined this idea for centuries. What is it about a work of art that causes someone to completely lose themselves in the aesthetic experience? To somehow stand alongside Van Gogh and be suffused with wonder at the night sky? To accompany Beethoven on a walk through the countryside, experiencing the fury of a thunderstorm? To anguish with Tolkien as Gandalf plunges into the abyss of Moria? No external examination of process or product, of what or how, fully addresses the power of the arts—the ability of a work to capture the audience’s empathy, attention, and imagination so thoroughly as to temporarily cast all other thoughts and worries aside. The power of the arts rests in the why—the emotional bond that is formed between the artist and the audience beyond technique or materials.
Works of art exist because of a complicated interrelationship of process, product, and emotion, none of which can be excluded from consideration. And yet, without emotion, a work of art is nothing more than paint on canvas, a lump of stone, black markings on a page, or a pattern of sound and silence. I’m reminded of an episode of M*A*S*H in which a concert pianist is severely injured. Dr. Winchester (played by David Ogden Stiers) presents the musician with sheet music for Ravel’s Piano Concerto for the Left Hand, only to be vehemently rejected. The doctor, a passionate music lover, then says to the musician:
Don't you see? Your hand may be stilled, but your gift cannot be silenced if you refuse to let it be. The gift does not lie in your hands. I have hands, David. Hands that can make a scalpel sing. More than anything in my life I wanted to play, but I do not have the gift. I can play the notes, but I cannot make the music. You have performed Liszt, Rachmaninoff, Chopin. Even if you never do so again, you've already known a joy that I will never know as long as I live. Because the true gift is in your head and in your heart and in your soul. Now you can shut it off forever, or you can find new ways to share your gift with the world - through the baton, the classroom, or the pen. As to these works, they're for you, because you and the piano will always be as one.
(Season 8, Episode 19 “Morale Victory”, originally aired January 28, 1980. http://www.imdb.com/character/ch0009453/quotes)
Art does not lie only in the notes, the paint, the clay, the words, or the movement. A work of art is more than these things. We can try to define art by its products or processes. We can make these the focus of our studies and analyses. But to truly understand the power of the arts, we must also consider them in less concrete, less tangible, more ephemeral and—yes—emotional ways. This is not as neat, tidy, or objective as scholars might prefer. It may even involve delving more deeply into the motivations or intentions of the artists, as inconvenient or inaccessible as these can be. However, to fully understand the power of the arts, there is little doubt that what, how, and why are inseparable.
Recently, I was put in touch with a colleague at another university who had questions about how arts departments or arts-based researchers should handle issues regarding intellectual property (IP) and Internal Review Boards (IRB).
"What is your university’s stance on intellectual property policies related to arts faculty and the work that they create - especially concerning revenue generated by things like CD sales or art sales? While our arts faculty do not make profits, based on the time invested, they are being pressured to share a percentage of revenues with the university. Additionally, the university claims that they "own," for example, a jazz musician's CD.
There has been a similar confusion related to IRB and community arts projects. Comparable universities have spelled out the distinction between human subjects for medical research and human subjects for arts activities. Sadly, other research offices have absolutely no familiarity with the arts so they naturally just apply medical principles related to IP and research to the artists.
Although I am not an attorney, my answer to these questions is based on my own experience and on what I have observed about the experience of others. I would like to say before beginning, however, that for a definitive determination about these matters as they relate to a specific university, faculty and staff members should work in conjunction with their departmental leadership to seek the advice of the Office of the General Counsel, who will give them the most complete answer. The folks in that department are responsible for writing or approving these policies, so they would offer the best, most authoritative interpretation.
I’ll admit that my many years of analyzing insurance policies might come in handy here. Some years back my job involved reading, analyzing, interpreting, and applying complex insurance coverage (policies) in order to ensure that property owners received just compensation when they experienced an insured loss. I helped a lot of people, and I was highly skilled in this work.
The questions that were posed to me, as I understand them, can be broken down into two separate components, one related to the intellectual property of arts practitioners and one regarding IRB policies as they relate to research—arts-based or otherwise.
I’d like to begin with a brief summary of my employer’s policies regarding intellectual property related to its faculty and staff members and the work they create. The university considers that all scholarly works authored or created by its employees (both faculty and staff) are the default property of the university, but it automatically transfers the copyright of those works to the person or persons who authored or created them. There are certain exceptions to this policy, but in general, faculty and staff can consider that their works remain their own property. As an example, there is a renowned flutist who is a professor at our School of Music. She has recorded several CDs and DVDs of her flute performances and has produced a set of instructional DVDs for aspiring musicians. All revenue from the sales of these items, her concert performances, and the master classes she conducts belongs to her alone, as do all rights to these recordings. In fact, her page on the university’s website has a link to her personal website, where it’s possible to purchase these items.
This university’s IP policy is particularly useful in terms of the arts because it specifically includes these items under the definition of “Scholarly Works” alongside more traditional products like textbooks, course materials, software, and lecture notes. By spelling out clearly that all materials produced by faculty and staff members qualify as scholarly works, the policy eliminates any discrepancies between the ways these materials are handled.
At other universities, the policy seems to depend on whether faculty or staff members produced the work on their own initiative or have created the works as an assigned duty and/or have made significant use of university resources in the works’ creation. Again, I am not an attorney, but for the sake of argument, let’s say that the flute professor in the earlier example went to work at a different university. If one of her performances were professionally recorded at a public, non-university concert venue, it would seem that she would retain the rights to produce and sell a CD or DVD of this performance because it was completed on her own initiative and did not use any university resources. If, however, she were recorded conducting a seminar at the university as part of her regular teaching duties, the university could then claim a financial interest in sales of that recording. Such policies sometimes state that works like this would have to be evaluated for their potential commercial value and an agreement reached between the property’s creator and the university as to the distribution of revenues, often distributing this between the creator and the creator’s department, school, and the larger university.
If creative practitioners in the university feel that they are being unfairly pressured to hand over the profits from the sale of their creative works, it might be worthwhile to examine whether scholars who publish journal articles, textbooks, or other written works are able to retain the copyright or IP for these materials and whether they are required to share in the revenues from, say, book sales. If not, it would be possible to draw a parallel between these items and the products of creative practitioners who produce artistic works or performances on their own initiative, who should then theoretically be able to sell a CD or a painting and retain the profits. Nevertheless, this bears further examination and consultation with others of authority at the artist’s employing university.
The second part of the question pertains to IRB and the arts, which is a bit more complicated. Generally speaking, if any research produces data by specifically studying human subjects in order to produce that data, the IRB will have a process for application, review, and approval. My own dissertation, as an example, required IRB approval insofar as mine was a study about a specific practice involving the gathering of data from human subjects, specific to their individual practice and experience in that practice. As such, the IRB choose to treat the interview participants as human subjects, requiring greater oversight. My current research, on the other hand, is non-regulated by the IRB because the interview subjects are speaking about process, not about themselves. Their personal wellbeing is not at risk when they speak to me, so they are therefore not covered under IRB policies.
Because I have had some success in negotiating IRB policy and procedure, I would recommend that an arts-based researcher begin by learning how to communicate with the IRB before actually having to interact with them. This can be accomplished by thoroughly investigating their employer’s IRB website in order to see what the stated institutional policies might be. These are generally very clear and provide good direction for researchers.
Arts-based researchers must also create a formal, written, organized outline of the project, and then they should compare this to the IRB’s website regarding rules, policies, regulations, and procedures, investigating how these would impact the proposed project. If any doubt remains after making this comparison, a visit to consult with the IRB is in order, but it is essential to have the organized project outline in hand and to be prepared to explain it very thoroughly in a way that makes sense to the people at the IRB.
The IRB is designed to protect the wellbeing and privacy of the human subjects of research. The definition of just what a “human subject” might be is likely to vary from one university to the next, but basically this is a person about whom an investigator gathers data through intervention or interaction with an individual or collects identifiable private information. If the arts project does not gather data from individuals or use identifiable private information, then it’s difficult to see how someone could be classified as human subject under this definition.
The artist or arts-based researcher should make it very clear to the IRB that no human being will be used in order to gather data. Portraying someone in a work of art is substantially different than interviewing that person, using them in a case study, or asking them to participate in a clinical trial. It’s really up to the artist, however, to make this point clear to the people at the IRB in a way they will understand.
Part of making this case involves understanding general legal issues relating to artists. I can recommend several good sources for this:
· The Law (in Plain English) for Photographers (Duboff, 2002)
· The Law (in Plain English) for Galleries (Duboff, 1999)
· The Law (in Plain English) for Crafts (Duboff, 2005)
· A Plain English Guide to Copyright Law (http://www.abcfornetworking.com/a-plain-english-guide-to-copyright-law/)
Laws regarding artworks depicting human subjects are rather complex, but here are some general guidelines.
· If an artist draws, paints, sculpts, or photographs human beings as they, themselves, appear in public, unless the artist’s interpretation of the person is intentionally harmful to the subject’s character, then the artist is exempt from obtaining the person’s permission to portray his or her likeness.
· If an artist is in a private space (a home, business, or any institution) and the human subject he or she wishes to portray is also not in public view, then the artist is responsible for gaining the property owner’s permission, and may need to seek the subject’s permission in order to portray his or her likenesses.
· However, permission to be portrayed may be implied if the property has a clearly posted notice stating that all persons entering the premises or on the property give their implied consent to be portrayed and for these images to be used by the property owner or another entity. An amusement park will post signs such as these so that staff photographers can take pictures of park visitors and use them in promotional materials without seeking out the individuals portrayed in the images in order to gain their specific consent.
The IRB concern about an individual being identifiable in an artwork is also a consideration. Again, I’d say this hinges on whether the artwork had been created in public view or on private property. Most people go out into the world each day and do not cover their faces. Our faces alone, therefore, are not considered to be private information, even though they are also used to identify us. Generally speaking, under the law, showing someone’s face in an artwork—as that person actually appeared in public view—is not a violation of someone’s privacy, even if the person could potentially be identified in the work. A face is not identifiable private information.
Let’s say I plan to create a photographic documentary, all of which is to be conducted in public spaces or in private spaces with implied consent, representing any people as they actually appeared in public with no alteration of the images that could create intentionally false or misleading messages about the subjects’ character. The project should not require IRB permission because it complies with the legal and ethical standards for this kind photographic project. If, however, I wanted to take pictures of students in university classrooms, I would need to secure three different kinds of permission: first, from the university in order to take pictures on its property; second from the professor presiding over the classroom; third from the students themselves, either implied via a posted notice or by signing a release. If the students are minors, I might also have to get their parents’ signed consent. Certainly, this is a much more complicated process.
The person proposing the project must, therefore, approach the IRB with two kinds of knowledge. First, a firm understanding of rules and regulations applying to artists and their projects, and second, an understanding of the IRB’s policies and procedures. By learning the basics about both of these issues, the artist can successfully navigate this territory and hopefully complete a project without undue interference.
Many more examples could certainly be considered, and this post does little to address issues of representation in music, theatre, creative writing, film studies and so on; but this general answer should begin to clarify these issues for arts practitioners and aspiring arts-based researchers. For specific information, though, I recommend that individuals consult with their employing universities. Ideally, every university will work together with arts practitioners and arts-based researchers to develop a policy statement in line with existing guidelines about portrayal of human subjects in works of art and an equitable system of handling income from creative works as well as publications.
Bruce M. Mackh, PhD