Dr. José María Durán will partake in the panel debate on Post Capitalistic Values at our seminar Thursday 15 March. He is a lecturer of European cultural studies at the HfM Hanns Eisler in Berlin, and author of a number of articles on the subject of the political economy of art and has edited in Spanish William Morris’ late political writings, William Morris: trabajo y comunismo (2014). His books include: Hacia una crítica de la economía política del arte (2008), Iconoclasia, historia del arte y lucha de clases (2009) and La crítica de la economía política del arte (2015).
We are glad to share one of his latest publications here: Artistic labor and the production of value. An attempt for a Marxist interpretation.
The production of value is addressed under consideration of the artistic labor process with focus on the visual arts. First, the commodity form of artistic works is examined and the theoretical challenges that we face are pointed out. Second, a specific ideology of the artistic labor process is considered. This ideology serves to conceal the economic relations of production that shape artistic labor as producer of value. Finally, an analysis of the substance of value is proposed. Intellectual property rights are examined from the perspective of value production.
By Dr. José María Durán. Url: www.critical-aesthetics.com, email: email@example.com.
The paper is motivated by an apparently simple question: what is a commodity?, or, put differently, why are the products of labor commodities? As an art historian I have to deal, mainly theoretically, with works of art that are easily characterized as commodities, being the obvious proof of it the simple exchange process in the market or willingness to pay: two contract parties agree on a price and it is over (Klamer 1996, 23). At the same time, works of art are often seen as some sort of exception to the rule of commodity production in capitalism. On the one hand, because of the particularities of their own labor process (Roberts 2007, 25-26) and, on the other hand, because clearly their price diverge immensely from production costs (Bourdieu 1993, 76). I have to say that my analysis concentrates primarily on the visual arts, although I believe that it can also be applied to literature and perhaps music (at least from the perspective of the composer), but not to cultural industries (like book editing or film), nor to the performative arts (in a broad sense) with a clear division of labor.
I have always wondered, whether the commodification of works of art can be explained without resorting to the ubiquitousness of market exchange relations. In some sort of remake of Marx’s labor theory of value (not his own term) for the arts, I would like here to put forward an examination of the production process of art as a process of value production. Although I am not interested in the technical aspects of the production process, rather in its social form or appropriateness. It only takes a quick look into the first pages of the first volume of Marx’s Capital to realize that being a commodity is far from an obvious matter. As Marx put it, there are things that have use value, without having value; and things that are the product of human labor, “without being a commodity”. Finally, there are “social use values… transferred to another… by means of an exchange”, i.e. commodities (Marx 1996, 50-51). The piano-player from the Grundrisse, who produces music, i.e. a social use value, although she is unproductive because she doesn’t produce capital since she “only exchanges h[er] labor for revenue” (Marx 1986, 231), she is also the singer from the famous Chapter 6 of Capital (unpublished) who, “when engaged by an entrepreneur who has her sing in order to make money, is a productive worker, for she directly produces capital” (Marx 1994, 448; emphasis in the original). In this example the position of artistic labor in relation to capital has changed without any intrinsic quality either in the labor itself or in the product of labor impeding its appropriation by capital; so the pianist could work in exchange for some revenue (in money or in kind) in jam sessions during the week, and for an impresario at the weekends. But both, the pianist and the singer, enter market relations as producers of use values, or, in other words, because they are able to produce a concrete outcome that can be appropriated for a profit. This situation is qualitatively different from that of the wage earner who sells her (abstract) labor power. I use here this distinction as my working premise. Nevertheless, we have to acknowledge that the selling of the own labor power as well as the selling of the outcome of the own labor power refer to the same law of capitalist relations of production that underlies exchange relations: individuals enter market relations as commodity owners.
Here lies the crucial point of the whole paper; that is, thinking about the commodity form of the work of art implies to think critically about ownership regarding the production process and its outcome. My position is the following: regardless of the productive or unproductive character of the labor, the artist in general has to claim ownership over the products of her labor in order to sell them to a capitalist or an art’s lover in exchange for revenue. This social position of the artist is sanctioned by intellectual property rights. Only then the products of artistic labor become commodities. This paper delves into this.
2.Boris Groys and the market
German philosopher Boris Groys articulates the question of the commodity form of works of art in a way that looks like common sense. Groys writes: “Works of art are commodities like any other” (Groys 2003a, 9). Groys wants us to believe that today art doesn’t involve a production process (Vorgang der Produktion) but an “act of selection” (Akt der Selektion) of those commodities that make up the work of art. If being a work of art means the use of distinct commodities, according to Groys (12), then production simply consists in the artist going shopping. Beyond the fact that any production process relies on accumulated labor expressed in the form of commodities, one can see how the characterization of the process of production of art as consumption process implies a theoretical displacement: the work of art is placed outside commodity production, and only market relations account for that thing we know as price or value in exchange. Value is established in the market and it has no existence prior to it.
Groys’ thesis functions as self-evident truth. It is easy to see works of art circulating like any other commodity in the context of the market economy, thus following the usual laws of this economy, Groys writes (9). These are undeniable facts, he asserts, concluding that from this point of view it is easy to say that the work of art is a commodity. However, these usual laws of the market economy are not made explicit; as a matter of fact, they are simply taken for granted. In short, according to these laws the relation of exchange is based on a contract on use values between independent parties. But this understanding relies on a specific theoretical framework, that of neoclassical economics, which too often is presented as the natural order of things. So the visible truth of the work of art acting like any ordinary commodity subject to relations of exchange serves as legitimating the theoretical framework presented then as self-evident truth. From this point of view, the economic analysis of the work of art has nothing to contribute by itself, since its principles are those of the general economy, and the Marxian discussion on value seems pointless if applied to the arts (Towse 1996, 102).
But, isn’t Marx’s work a way of defying generally assumed truths? If we want to defy the common sense, as Groys expressed it above, we should begin calling the obvious facts of everyday experience and practice into question, as the French philosopher Louis Althusser put it, appearing the results of this questioning “as the contrary to the obvious facts of practical everyday experience, rather than as their reflection” (Althusser 1990, 15; emphasis in the original). This means for my discussion here to raise questions about key issues that in the Marxist economic literature have been posed about the labor theory of value.
If we agree that works of art are commodities, that is, works of art enter relations of exchange in our market economy, it means calling this obvious fact into question that we ask, what is it that makes the work of art a commodity—being the difficulty of this analysis already pointed out by Rubin (1973, 166). Let me briefly comment on that.
Rubin’s discussion, as one reviewer of this paper rightly pointed out, has to do with the fact that subsuming unreproducible objects, like original “works of art by certain masters”, under Marx’s law of value is unfeasible (Roberts 2007, 28-29; Gouverneur 2011, 51; Rodríguez Herrera 2015, 208). The mode of production of traditional visual arts like painting, characterized by production of unique works, to which, as Hobsbawm noted, “the visual artist was committed, and from which he or she found it difficult or even impossible to escape” (Hobsbawm 1998, 16), has been seen as the foundation of the lucrative art trade (17). Nevertheless, I think that we need to reconsider the notion of reproducibility for original works of art without having to put into question the basic premise that the socially necessary labor required for the production and reproduction of a commodity doesn’t apply to unreproducible works of art whose supply is given; they bear a fancy price, as it is commonly understood (White 1999). We still are caught in the traditional belief that sees the artistic field as an uniform amalgam of individual artists, each of them with their own independent concerns and interests, busy with finding buyers with a sympathetic understanding of their individual work. But we shouldn’t rule out the possibility that the artistic field has its own interests in reproducing specific kinds of art and artists whose works of art are, as a matter of fact, exchangeable, that is, on the whole, they are not scarce. Although, it isn’t the socially necessary labor time that which makes these commodities commensurable and exchangeable, which, I do believe, is irrelevant for the valuation of visual arts. On the other hand, many successful contemporary artists are engaged in producing reproducible unique (original) pieces (which seems to be a contradiction but it isn’t), like Damien Hirst, Takashi Murakami or Anselm Reyle. Their production bears no contradiction whatsoever with Marx’s law of value, being in these cases uniqueness or originality little more than an ideological framework that serves, on the one hand, to conceal the fact of value production, on the other hand, to drive prices up. Again, this is merely a generalization and the great majority of artists do not behave like Damien Hirst (Sholette 2011).
2.The question of the work of art as a commodity
The social use values that Marx refers to as commodities in the first chapter of the first volume of Capital are exchanges values (Marx 1996, 51). To be seen as such, that is, in the plain sense of values for exchange we need to make abstraction from their “material elements and shapes”, as well as from the concrete labor embodied in them (48), although “being an object of utility” (51), Marx acknowledges, is their necessary condition. But utility is not at stake here. As Marx put it in his “Notes on Adolph Wagner”:
in every price-list every individual sort of commodity [distinguishes] itself from the others as goods, use-value, as cotton, yarn, iron, grain, etc., and [represents] “goods” qualitatively different from the others toto coelo, but simultaneously [represents] its price as qualitatively the same but quantitatively different of the same essence. It presents itself in its natural form for him who uses it, and in value-form, which is quite different from it and “common” to all other commodities, i.e. as exchange-value. (Marx 1989, 550; emphasis in the original.)
It is important to recognize that to access the use values of these social products one has to enter first market relations. I mean with it, that these social use values or commodities must first realize themselves as exchange values before they can be of whatever use. But the social relation of exchange here is a peculiar one, because it is one in which equivalents are exchanged in so far as they represent something common which is independent of their natural form, as Marx put it above. This common substance, which manifests in the exchange relation, Marx calls it value. And value is the product of human labor “in the abstract” (Marx 1996, 48), “homogeneous human labour” or “one homogeneous mass of human labour power, composed though it be of innumerable individual units”, each of which “is the same as any other, so far as it has the character of the average labour power of society, and takes effect as such” (49). It seems then apparent that the category hidden behind the visible truth of market exchange relations is that of abstract labor. If commodities have value because their identical social substance is abstract labor, can we speak of an identical social substance or abstract labor regarding the production of works of art as commodities?
The question is of great importance. If we contend that in the art market that which enters in the exchange relation is the concrete labor of the artist as it manifests itself in a discrete piece of art, being this concrete labor considered as contributing (i.e., as one factor among others) to the value of the work of art in exchange, we have then transformed the exchange relation into a relation between an individual, i.e. the artist or the art dealer acting in his or her name, seeking monetary incentives, and a consumer trying to satisfy her wants. But in this manner we have opened the door for mainstream economics, according to which exchange relations are the cornerstone of sociability (Cowen 1998). Marx was well aware that such analysis was not only far from true. It has also an ideological scope: to present capitalist social relations as relations between independent individuals moved by their free will.
Marx writes in the Grundrisse:
In money relations… individuals appear to be independent…, appear to collide with each other freely, and to exchange with each other in this freedom; but they appear independent only to those who abstract from the conditions, the conditions of existence, in which those individuals come into contact with each other (and these in turn are independent of the individuals and appear, though produced by society, as it were, as natural conditions, i.e. beyond the control of the individuals). (Marx 1986, 100.)
In the case of artists the independence that money relations come to support can be addressed as follows: What does the artist have to sell as her sole property? This is important in so far as we acknowledge that the answer to this question shows that fundamental distinction between the artist and the wageworker already pointed out in the introduction. While the wageworker sells her labor power, the artist sells the products of her labor. To clarify my position once again, I am thinking about the visual artist, or even the writer, who in selling her piece of work (and this can be simply a sheet with instructions) presents herself as the owner of the production process, that is, she doesn’t work for someone else.
Paradigmatically, Marx illustrates this point referring to the work of John Milton: “Milton, for instance, ‘who did the Paradise Lost for £5’, was an ‘unproductive’ worker… Milton produced Paradise Lost for the same reason as that which makes the silk-worm produce silk. It was an activity wholly natural to him. He later sold the product for £5” (as quoted by Prawer 2011, 310). Prawer’s classic reading of this passage is a good example of an interpretation that sees market relations imposing economic value on works that have no value at all. “The general point Marx is making”, writes Prawer (312), “remains clear enough. The true poet’s labour could remain—in Milton’s time at least—unalienated to the extent that he took no account of market value. Such a poet writes what he has to, from the centre of his being, and leaves it to others to convert his poem into a profit-bearing commodity.” In the 1970’s artist Robert Smithson expressed this point in a similar manner, showing thereby his own uneasiness about it:
Paintings are bought and sold. The artist sits in his solitude, knocks out his paintings, assembles them, then waits for someone to confer value, some external source. The artist isn’t in control of his value. And that’s the way it operates… Whatever a painting goes for… is really somebody else’s decision, not the artist’s decision, so there’s a division, on the broad social realm, the value is separated from the artist, the artist is estranged from his own production. (As quoted by Owens 1992, 122.)
Owens is right in pointing out that Marxism has been particularly keen on this version of art as unalienated labor, as for example in the work of Sánchez Vázquez, one of the leading Marxist writers in Spanish language, whose interpretation of Marx’s concept of labor in general (from chapter VII of the first volume of Capital, chapter V in the German edition) as creative labor has been very influential (Sánchez Vázquez 1973; similarly Wolff 1984, 14-15; see Durán 2015; Bryan-Wilson 2009, 26-32).
Nevertheless, we should recognize that in the aforementioned example Milton’s selling of his manuscript to the publisher, that is, Milton’s acting as commodity-dealer, can only be the product of historically determined social relations (Lindenbaum 1994; Dobranski 1999). In this respect, I would like to emphasize something that I think is crucial. That Milton is able to act socially as commodity-dealer cannot be taken for granted. It doesn’t emerge naturally, despite Marx’s ambiguous tone and his comparison with the silkworm. It can only rest on a specific form of economic proprietorship over the products of labor. In general terms this economic proprietorship means: possession of the means of production, control of the productive process and appropriation of its results (see Economakis 2002, 161). For example, visual artists during the Italian Renaissance weren’t, strictly speaking, the proprietors of the result of the production process, although they could own the means of production, at least partially. That’s why some artists could speak about their patrons as artistically skilled as themselves. It is well known that in ancient Greece production was determined by users, not by craftsmen (Vernant 2006, 290). There are important differences in the mode and relations of production among these examples. They show how far still we are from a real historical understanding of the relations of production of artistic production as economic relations.
In the manuscript known as Urtext Marx points out that commodity owners produce “under such conditions of production and relations of commerce which resulted only from an historical process but which appear… to be a natural necessity” (Marx 1987, 465). In Milton’s case, the social relations that appear to him as natural necessity are those which lead to the selling of the manuscript, which comes about only on the presupposition of ownership over the products of one’s own labor, namely, the labor of writing. Therefore, Milton’s independence, as Prawer wants to assert it, is illusory in so far as it can only exist within a social dependence: the law of appropriation through one’s own labor (463). I would like to develop this point further (see moreover point 4 below).
Marx writes that property in the result of one’s own labor makes the “basic premiss of the bourgeois society… the society of the developed exchange value” (ibid, emphasis in the original). This premise, Marx continues, “rests on the premiss of exchange value as an economic relationship dominating the whole aggregation of relationships of production and commerce, and so is itself a historical product of the bourgeois society” (ibid, emphasis in the original). The exchangers must appear, according to Marx, “as the proprietors of the exchange values” (462). Within an understanding of this relation of exchange as economic relation between individuals, that is, taken it in its simplest form, becomes clear that such description of exchange relations between individual proprietors of exchange values could lead to think of exchange relations as relations of exchange in kind: “In accordance with this conception”, write Milios, Dimoulis and Economakis (2002, 16-17), “for a person to be able to purchase something he/she must first sell, or more precisely purchase by selling (the aim being the attainment of the maximum subjective utility).” For Marx it is clear that this assumption has as it basis “the society of the developed exchange value”. In addition, it has an ideological scope: within it circulation appears as the “realm of bourgeois liberty and bourgeois equality”, concludes Marx (1987, 464).
Milton’s economic relation with his editor seems perfectly congruent with this outline. To be able to enter in an economic relation with the editor, that is, to be able to sell him the product of his labor, Milton has to appear first as commodity owner, i.e. as proprietor of the products of his own labor. Lindenbaum is of the opinion that Milton’s contract with the printer Simmons, the earliest known of its kind that has survived, which makes Marx’s remark on Milton even more relevant, shouldn’t be considered within the framework of the patronage system, but belonging already “to a system in which the writer emerges as an independent professional” (Lindenbaum 1994, 180). “[W]e see an author”, writes Lindenbaum, “who is fully acknowledging the condition of authorship [although he didn’t explicitly claim authorship in today’s terms, that is, as intellectual property rights – JMD], viewing himself as the possessor of property that gives him definite rights” (ibid). And within these rights there is the right to alienating the product of his labor, or to its transformation into a social form, as Marx put it: “Circulation is a movement in which one’s own product is posited as exchange value (money), i.e. as a social product” (Marx 1987, 464).
It doesn’t come as a surprise that Milton’s economic relation with the printer Simmons resembles Smith’s model of commercial society based on the market exchange between independent commodity producers. These independent commodity producers are independent in the sense that they work for themselves. McNally writes:
They operate, therefore, in a network of market relations with others; but they do so from a position of independence. It is easy to comprehend the attractions of such an outlook given Smith’s moral philosophy. An economy of independent commodity producers comprises relations between individuals who are (at least formally) equal. The butcher, the brewer and the baker must conduct themselves prudently in order to elicit the sympathetic understanding of those with whom they exchange, just as they must be capable of entering into a sympathetic appreciation of each other’s position in turn. A commercial society in which ‘every man is in some measure a merchant’ thus constitutes in principle for Smith a network of equitable relationships between free and independent individuals. (McNally 1993, 54.)
McNally points out rightly that the notion of a society based on economic relations between free and independent individuals is “one of the classic apologetic claims of vulgar bourgeois economics… which was to be crucial to the development of political economy as a pure and simple bourgeois ideology” (55). This enters the aesthetic ideology with Kant, as Kant, who was well aware of Smith’s argument (Fleischacker 1996), writes in §43 of the Critique of Judgment about art differing from the handicrafts by virtue of being an occupation that is free, i.e., it doesn’t depend on wages. Kant had in mind independent commodity producers, who are their own masters and have some property (Williams 1983, 145), and thus in full agreement with Smith’s discussion about brewers, butchers and bakers in the first chapters of the Wealth of Nations. Paradigmatically, Claes Oldenburg’s The Store (1961) illustrates Smith and Kant’s point perfectly well, presenting the artist as petty commodity producer as well as merchant in a clearly romanticized way at odds with the US-American society founded on wage labor (Lüthy 2002). According to my reading here, Oldenburg’s presentation, which could be seen in the context of an understanding of artistic production as remnant or survival of some artisanal mode of production (Schapiro 1994, 235; Prawer 2011, 313; Bryan-Wilson 2009, 69 on Carl Andre), is perfectly consistent with bourgeois ideology’s way to present economic relations.
Regarding my working premise above: that the difference between the artist and the wageworker lies on what they sell in the market, so the artist differently to the wageworker sells the products of her labor, appearing then as petty commodity producer, we see now that this social position cannot be considered the result of a natural relation, but it is an historical one presenting a clear ideological undertone. Still, we must distinguish the ideological expression of it from the real social relations that have shaped it. Marx writes in the Urtext:
The basic premiss about the subjects of circulation having produced exchange values, products directly posited in the social determinateness of exchange value, and so also subsumed under a definite historically shaped division of labour, incorporates a mass of other premisses which do not stem from the will of the individual or from his immediate natural character, but from the historical conditions and relations in virtue of which the individual already finds himself to be a social individual determined by the society… [it] rests on a whole range of economic conditions through which the individual is conditioned on every side in his connections with other individuals and in his own mode of existence. (Marx 1987, 464-465, emphasis in the original.)
In principle, I think that there is no mistake in characterizing artists as petty commodity producers or self-employed laborers. But in doing so we must consider artists’ economic positions in relation to the general structure of the capitalist economic and social relations without fully subsuming artistic labor in them, as if artistic labor were a simple reflection of them. In this respect I am interested in now, how these economic relations are concealed, i.e., how artists as commodity producers are presented socially.
3.The ideology of work
While we may be ready to admit that an ancient artifact with a form given by an artisan or a group of them is the result of complex social relations that consist of material and ideological aspects transcending purely individual achievements (see McNally 2001, 101 on heterotechnic cooperation), it appears not to be the case if speaking about modern art. So, for example, the given form of an ancient Athenian jar, used to store grain, that models on the woman’s uterus, can be related to a religious understanding of the earth as giver of all riches and, in a specific social context, this form given becomes the so-called Pandora’s box from the myth of Prometheus as told by the ancient poet Hesiod; i.e., it encompasses class and gender relations as well as specifically economic ones. The form given is the product of complex social interactions, or social praxis, and as such its conception cannot be possibly attributed to a singular individual, the isolated craftsman. We might say that the social fabric is condensed in the form of the jar, or that the social fabric unfolds in the form given of the jar in the sense that the social fabric is this very form, among others. Nevertheless, there is an understanding of modern art, one which we can put in relation to the hackneyed notion of autonomy and that today is presented as self-evident, that emphasizes the individual achievements of an outstanding personality. I have here in mind a critical reflection (still to be further developed) on the idea of creativity or imagination conceived as prior to realization. It follows from it a conception of the artist as principle of causation. I draw now from Montag’s reading of Spinoza, according to which the artistic will or intention does not exist outside its realization but it is coextensive with it (Montag 1999, 47). That’s why I used the example of an ancient artifact to illustrate this point. Because an artifact, which we cannot possibly attribute to a singular subjectivity, appears to be more obviously, as Montag put it following Spinoza, the result of a chain of “disparate elements that combine in such a way as to produce an effect” (Montag 2005, 189). In this respect, the chain of determinations that end in a discrete work of art should be the true object of analysis. The view of the artistic process as the result of an outstanding personality, which is tied to the category of authorship (see below), has important consequences from the perspective of a critique of the political economy of art. In regard to it I would like to give now an example of the ideological representation of modern artists’ labor.
Following the picture of contemporary society as post-industrial and, then, knowledge and information based, contemporary artist’s studio is presented as place for experimentation and research, a place where creative work takes shape. Artist Antony Gormley describes it “as an industrial space for creative work. It’s a very movable feast. When I think of what I do, it’s impossible not to say ‘we,’ the studio (with his eight assistants) is a much larger organism.” The division of labor that takes place in the studio is rewritten as creative collaboration, concealing the fact that between the head of the studio and the assistants real economic relations take place. Ursprung describes Olafur Eliasson’s studio in Berlin as follows: “Eliasson does not act as his collaborators’ superior, but rather as a kind of ‘client’ who approaches them with ideas for projects and asks how they might be realized” (Urspung 2009, 165). But despite the emphasis on the process of research, more than on tangible products, Eliasson’s art relies on the production of saleable commodities (169-170). And Eliasson’s iconic commodities do not make transparent the economic relations of labor in his studio. “Notwithstanding the rhetoric of teamwork and its participatory and collaborative structures”, writes Ursprung (180-181), “it remains clear that Eliasson is the sole author. The collaborators are paid employees whose job it is to produce surplus value.” This is an important point. According to the classical Marxist analysis, the ownership of the means of production is key for an understanding of the economic and social (i.e. class) relations between laborers and capitalists. Everything that Eliasson’s assistants create in his studio, with whatever means at hand, belongs to him. But the private property in the products of labor, which Eliasson is able to claim, doesn’t exactly rest on the possession of specific means of production that allows him to control the productive process. Distinct about artistic property in the products of labor is that the results of labor are understood, and then legally protected, as manifestations of an unalienable subjectivity. It doesn’t matter who actually works, as long as the products of labor can be attributed to a subject, i.e., as long as they are regarded as the embodiments of the subject’s idea. “I think that one becomes an author through the artistic idea”, affirms an assistant of Eliasson—a phrase that recalls that famous statement of artist Sol LeWitt in 1967: “the idea becomes a machine that makes the art” (quoted in Jones 1996, 372)—and when the idea makes the art, who needs working? Eliasson is an author who “pays for making things for him… It’s ok”, says Eliasson’s assistant (as interviewed by Dell 2010; my own translation).
In this respect, we see now that Eliasson’s social position, that which enables him to claim ownership over the products of labor, is understood as based on the possession of ideas, something that today is more fashionably conceptualized in terms of human capital theory (Towse 2006). But having ideas isn’t determining in itself. In order to claim ownership over the products of labor the artist has to appear not only as having good ideas but also as rightfully proprietor of these ideas, being this property considered to stem from the labor of his mind. This means that in order to be able to produce a commodity the artist needs first to invest the real, on which he works, with property (Edelman 1979, 38-39).
Therefore, Eliasson’s conceptualization of work in his studio implies not only concealing the labor of others but also a perception of the labor process and its results as an extension of his subjectivity, of the creative self, and, as such, as naturally his property. Artistic proprietorship is based on the assumption that what is fabricated or simply chosen, i.e. the artistic object, is the material realization of the subjective and, thus, unique and singular intellect. Before the artist appears socially as owner of the products of thought, he is constituted as private owner of thoughts. It is this private ownership which is sanctioned by intellectual property rights.
4.The exclusive property rights
My thesis says that the commodity form of the work of art is the product of a specific relationship, historically determined, between the activity of the artist and the result of this activity as her property. Paraphrasing Marx (1987, 463) I would like to suggest that the commodity form of the work of art is the result of an appropriation through labor. I am referring here to a process that takes place before the artist ‘alienates’ her work; that is, a process that takes place while laboring but which isn’t intrinsic to labor itself, but the effect of a social relation.
We are so accustomed to see works of art naturally bound to an individual subjectivity that we easily forget that this bond is the product of concrete social relations, those which provided the fertile ground for what Macpherson first called “possessive individualism” (1962). Thus the assumption that from this bond derives a relation of property between the creative artist and the result of her labor has also a historical basis. Milton’s possession of his manuscript and his subsequent selling of it implies historically determined social relations that couldn’t be, for example, possible in an oral society (Ong 1988). The property relation takes a specific superstructural form in the intellectual property law. Thus I propose an understanding of intellectual property as historical category, itself the product of those social relations that have put the artist after the break-up of the feudal mode of production in the position of having to claim ownership over the products of her labor in order to enter market relations and then to get access to income, once, for example, patron relations receded; and that is, what Milton’s example illustrates. I shall direct my analysis now to the emergence of literary property, as it has been the subject studied at best in this respect.
The possession of what has been written is based on the assumption that writing is the manifestation of subjectivity. In its way to give thoughts a form, the individual is presented as a unique and singular, and therefore subjective. Each writer, wrote the German philosopher Fichte in 1793, “must give his thoughts a certain form, and he can give them no other form than his own because he has no other” (as quoted by Woodmansee 1994, 52; emphasis added). From the foundation of the Self as self-positing, that is, absolutely independent and autonomous, Fichte deduces something that is going to be truly decisive: The writer cannot “be willing to hand over this form in making his thoughts public, for no one can appropriate his thoughts without thereby altering their form. This latter thus remain his exclusive property” (ibid; final emphasis added). According to Fichte, this form is an intrinsic part of the ‘I in itself’ (Ich an sich) and cannot be subject to external appropriation, i.e. it is unalienable. Having assumed Fichte’s premise (see Woodmansee 1994, 35-55), the task will be to protect this form legally as it materializes in an alienable object, by considering the artist as an originator (Urheber) of a material object that has a form that is originally, idiosyncratically (eigentümlich) part of her subjectivity. The task performed by intellectual property law consists then in sanctioning the Self’s claim that the products of her intellect are hers, that is, her private property, because they originate in her unalienable subjectivity; or, which amounts to the same thing, it consists in legally constituting the artist as private owner of commodities. The works “which are to be protected are the fruits of intellectual labor”, wrote the Justice Samuel F. Miller in 1879, i.e., the works subject to protection “are founded in the creative powers of the mind” (as quoted by Jaszi 1994, 37; emphasis added); and so are these works considered original from the perspective of the law, it means, they have their origin in the creative mind. It has been now recognized that the law protects the material embodiments (books, paintings, and so on) of the creative mind, i.e. of intellectual labor expended on the production of a commodity, although regardless of the amount of labor time invested. That is, the law protects the sensible object or vehicle that renders the creative mind available to everyone, that is, economic calculable. Sherman and Bently write:
The particular difficulty which the law faced… was that as the work of a lifetime could be concentrated into a page of mathematical symbols, there was no measure of the amount of labour. With the move away from the labour embodied in the creation towards the object itself, however, these difficulties were resolved: while it was difficult to place labour in a form for it to be calculated, the closed work and the contribution that it made to the economy could be calculated. (Sherman and Bently 1999, 180)
That which is truly important about the axis author/work is the recognition of labor as source of property and, hence, of value, since ownership of thoughts and ideas becomes socially relevant only a posteriori, once these are made available for economic exploitation, i.e. once they are materialized through labor in saleable products or services. The focus on labor, which is considered to be creative labor, that is, labor that originates in the creative subjective mind, shows little concern about the real concreteness of labor (Sherman 2002, 408; Towse 1996, 100). In this respect, intellectual property law treats all artistic products on the same footing: as the original labor of an author (as subject in law, see Edelman 1979; Pashukanis 1983). It considers that the creative mind invests labor in that which has been generally acknowledged as commons, namely, in the ‘field of knowledge’ (Hess and Ostrom 2011) or, put differently, in whatever an artist considers worth using. The labor invested becomes the source of property in a very Lockean sense and from it derives the right of alienating the resulting product, so it can enter relations of exchange; that is, the product of one’s labor can then be posited as exchange value. Therefore, what the law does, as Pashukanis pointed out, is specifying “the most universal abstract conditions under which both exchange can take place according to the law of value, and exploitation can occur in the form of the ‘free contract’” (Pashukanis 1983, 39). In this respect, the concrete labors are only interesting once they have realized themselves as property, which is the previous step in the process of transformation of artistic works in commodities. Works of art are commodities in so far as they have the same social substance, i.e., in so far as they are the effect of an appropriation through labor.
For Fichte it was clear that the printer could only possible act on behalf of the writer. Possession splits. There is, on the one hand, possession of the form of the words, that mysterious thing called intellectual property that achieved general recognition and legal status in Europe during the 18th and 19th centuries. On the other hand, there is possession of paper and ink on the side of the printer/publisher. But paper and ink are not important in themselves. They constitute the property of the printer in so far as they are bearers of that form which is the exclusive property of the author. Therefore, author and printer enter a legal relationship—one that rests on a historically shaped division of labor—regarding the writing; and the user, who buys the printed book, doesn’t buy its property but the right of using it, as he pleases. The contract between the property in the form (author’s intellectual property) and the property in the reproduction of this form for commercial purposes cannot be damaged by the user. He buys the right to read, not the reproduction rights of the book. Similarly, one buys the right of contemplating a painting, not the right to modify it or reproduce it.
I am not going to rewrite now the history of intellectual property rights coming to be in the context of the European enlightenment (Bosse 1981; Hesse 1991; Rose 1993; Woodmansee 1994; Nuss 2006; Johns 2009). I want to emphasize that intellectual property means, after all, the legal recognition of the artist/author as commodity owner. The law establishes a legal framework that sanctions the production process as a process of appropriation through labor; one which enables the artist to enter market relations as the rightfully proprietor of a commodity. Thus the law is the superstructural expression of a social relation.
Private ownership through labor shapes exchange relations within the legal framework of intellectual property rights. For example, it makes possible for the artist to get access to different forms of income, like the royalties typical for reproducible works. At the same time, for works that are not supposed to be reproducible, copyright law (a concrete expression of intellectual property law) is crucial in sanctioning uniqueness, since the violation of uniqueness and originality means an injury to the individual rights of the artist as proprietor, as these rights are incorporated, i.e. realized or embodied, in the discrete work of art.
Having said that, can the market position or value of these artists be still considered in terms of a Fichtean form, i.e., an inborn ‘asset’ which is different in each individual and enables those more gifted “to achieve a high level of ‘artistic productivity’—great performances—that few competitors can supply” (Towse 2006, 877)? There is a strong analogy with the Ricardian theory of rent from the perspective of human capital theory, being the differences in income between artists explained in terms of differential inborn talent or ‘natural fertility’ in relation to demand. Intellectual property law sanctions the economic importance of this inborn ‘asset’ protecting the labor invested in getting it expressed or communicated, either as a living performance or discrete work. But human capital theory takes for granted that which needs to be explained, namely: why does the output of innate ability express itself in terms of a relation of property? The output of innate ability is understood as private property because it is considered naturally part of the unalienable Self, which is able to transform its ‘capital’ (i.e. ‘human capital’) through labor into an alienable work or performance subject to economic exploitation, that is, a commodity. The claim regarding the economic role played by innate ability is made on the assumption of this property relation between the Self and its externalization through labor, however leaving this relation unexplained. But without proprietorship functioning as category for social relations the role played by innate ability simply loses ground.
I suggest that the substance of value of the created commodity resides precisely in the relation of appropriation between the artist and the result of her expended labor, as it is sanctioned by intellectual property rights. From the perspective of the law all artistic labors represent the same substance: intellectual property. Correspondingly, any commodity being the product of artistic labor is treated as bearer of the same social substance in this respect. We may then consider that it transforms the concrete labor of artists in something homogeneous, that is, in an identical social substance or abstract labor. However, I do recognize that within the sphere of production the process here outlined exists only as possibility, i.e. potentially. Its realization takes place once relations of exchange, the sphere of circulation, step in, i.e. once the products of labor are realized as commodities.
There is still a lot of theoretical work to do in this regard. But we cannot deny the fact that the emergence of intellectual property parallels the consolidation of capitalist market relations. It also evidences the disappearance of those social relations that in some way or another had shaped the economic positions of artists before the appearance of capitalism.
I have pointed out that there is, in principle, no mistake in characterizing the economic position of artists as that of a petty commodity producer or self-employed laborer. But, in doing so, we should avoid easy generalizations of the kind that the work of art is a commodity like any other (Groys 2003a; see Jameson 1991, 4). Such a generalization can only lead into a cul-de-sac if we don’t make first clear what a commodity is, since being a commodity bears no explanation by itself. We should also try to avoid anachronistic characterizations that explain the production of art resorting to some pre-capitalist mode of production, as for example artist Carl Andre expressed it: “my social position, really, in the classic Marxist analysis, is I’m an artisan” (as quoted by Bryan-Wilson 2009, 69; for a similar argument see Prawer 2011, 313; King 2007, 326). A version of the latter proposes an analysis of the production of art within an understanding of capitalism as developing in successive stages following Marx’s well-known distinction between formal and real subsumtion. Nicholas Brown has suggested that the selling of the products of one’s own labor occurs under conditions of formal subsumtion, because under these conditions, as Milton’s example illustrates according to Brown, the production process doesn’t change, it is only drawn into capitalist economy, allowing “for Hegelian externalization to continue under capitalism” (Brown 2012, 11; see Virno for a similar argument in Lavaert and Gielen 2009, 82).
My exposition here is fundamentally different: I have outlined an explanation of value production in the arts by analyzing the social form of the production process of art without having to subsume its concreteness under the general rule of capitalist production or under market impositions.
I have proposed a way to examine the substance of value of artistic production, that is, that property which is at the basis of the relation of exchange (Iber 2005, 35). In this respect, I have considered crucial the examination of property relations regarding the labor of the intellect. Property relations that originate in the labor of the intellect cannot be considered a natural trait of the individual, but they are historically determined. In a specific historical context, property relations make possible for artists the appropriation of the results of the production process in order to enter market relations, and this appropriation takes a specific superstructural expression as intellectual property rights.
We should pursue in this research if we want to achieve a real understanding of the production process of art in terms of economic and socially determined relations.
I am grateful to Ian J. Seda-Irizarry for his helpful comments and his support in having this paper published by Rethinking Marxism.
Althusser, L. 1990. Theory, Theoretical Practice and Theoretical Formation: Ideology and Ideological Struggle. Trans. J. H. Kavanagh. In Philosophy and the Spontaneous Philosophy of the Scientists, 1-42. London: Verso.
Bosse. H. 1981. Autorschaft ist Werkherrschaft. Paderborn: Ferdinand Schöningh.
Bourdieu, P. 1993. The Field of Cultural Production, ed. R. Johnson. Cambridge: Polity Press.
Brown, N. 2012. The Work of Art in the Age of its Real Subsumption under Capital. nonsite.org (March 13th): 1-25. Reprinted in Contemporary Marxist Theory: A reader, ed. A. Pendakis et al. London and New York: Bloomsbury Academic.
Bryan-Wilson, J. 2009. Art Workers. Radical Practice in the Vietnam War Era. Berkeley and Los Angeles: University of California Press.
Cowen, T. 1998. In Praise of Commercial Culture. Cambridge, Mass.: Harvard University Press.
Dell. M. 2010. Ich-AG Kunst. der Freitag (May 27th).
Dobranski, S. B. 1999. Milton, Authorship, and the Book Trade. Cambridge: Cambridge University Press.
Durán, J. M. 2015. Arte y humanismo en el pensamiento de Adolfo Sánchez Vázquez. ¿Es posible una teoría del arte a partir de los escritos de Karl Marx? De Raíz Diversa. Revista Especializada en Estudios Latinoamericanos II (4): 185-209.
Economakis, G. E. 2002. Capitalist Mode of Production and Ground Rent: Aspects of Marx’s Theory Starting from Smith’s and Ricardo’s Analysis. In Beiträge zur Marx-Engels-Forschung. Neue Folge 2001. Neue Texte, neue Fragen Zur Kapital-Edition in der MEGA, ed. C.-E. Vollgraf, R. Sperl und R. Hecker, 160-199. Hamburg: Argument.
Edelman, B. 1979. Ownership of the Image. Elements for a Marxist Theory of Law. Trans. E. Kingdom. London: Routledge & Kegan Paul.
Fleischacker, S. 1996. Values behind the Market: Kant’s Response to the Wealth of Nations. History of Political Thought XVII (3): 379-407.
Gouverneur, J. 2011. La economía capitalista. Una introducción al análisis económico marxista. Trans. X. Gracia. Madrid: Maia.
Graeber, D. 2007. The Very Idea of Consumption: Desire, Phantasms, and the Aesthetics of Destruction from Medieval Times to the Present. In Possibilities. Essays on Hierarchy, Rebellion, and Desire, 57-84. Oakland: AK Press.
Groys, B. 2003a. Einführung. Kunstwerk und Ware. In Topologie der Kunst, 9-29. Munich: Hanser.
–––. 2003b. Der Künstler als Konsument. In Topologie der Kunst, 47-58. Munich: Hanser.
Gullì, B. 2005. Labor of Fire. The Ontology of Labor between Economy and Culture. Philadelphia: Temple University Press.
Hess, C., and E. Ostrom, eds. 2011. Understanding Knowledge as a Commons. From Theory to Practice. Cambridge, Mass.: The MIT Press.
Hesse, C. A. 1991. Publishing and Cultural Politics in Revolutionary Paris, 1789-1810. Berkeley: University of California Press.
Hobsbawm, E. 1998. Behind the Times. The Decline and Fall of the Twentieth-Century Avant-Gardes. Walter Neurath Memorial Lecture. London: Thames and Hudson.
Iber, Ch. 2005. Grundzüge der Marx’schen Kapitalismustheorie. Berlin: Parerga.
Jameson, F. 1991. Postmodernism, or, The Cultural Logic of Late Capitalism. Durham: Duke University Press.
Jaszi, P. 1994. On the Author-Effect: Contemporary Copyright and Collective Creativity. In The Construction of Authorship. Textual Appropriation in Law and Literature, ed. M. Woodmansee and P. Jaszi, 29-56. Durham: Duke University Press.
Johns, A. 2009. Piracy. The Intellectual Property Wars from Gutenberg to Gates. Chicago and London: The University of Chicago Press.
Jones, C. A. 1996. Machine in the Studio. Constructing the Postwar American Artist. Chicago and London: The University of Chicago Press.
King, B. 2007. Modularity and the Aesthetics of Self-Commodification. In As Radical As Reality Itself. Essays on Marxism and Art for the 21st Century, ed. M. Beaumont, A. Hemingway, E. Leslie and J. Roberts, 319-345. Bern: Peter Lang.
Klamer, A. 1996. The Value of Culture. In The Value of Culture. On the Relationship between Economics and Arts, ed. A. Klamer, 13-28. Amsterdam: Amsterdam University Press.
Lavaert, S. and P. Gielen. 2009. A Dismeasure of Art. An interview with Paolo Virno. Open Cahier on Art and the Public Domain 8 (17): 72-85.
Lindenbaum, P. 1994. Milton’s Contract. In The Construction of Authorship. Textual Appropriation in Law and Literature, ed. M. Woodmansee and P. Jaszi, 175-190. Durham: Duke University Press.
Lüthy, M. 2002. Das Konsumgut in der Kunstwelt – Zur Para-Ökonomie der amerikanischen Pop Art. In Shopping. 100 Jahre Kunst und Konsum, ed. M. Hollein and Ch. Grunenberg, 148-153. Ostfildern-Ruit: Hatje Cantz Verlag.
Marx, K. 1986. Economic Manuscripts of 1857-58 (First Version of Capital). In Collected Works, vol. 28, London: Lawrence & Wishart.
–––. 1987. The Original Text of the Second and Beginning of the Third Chapter of A Contribution to the Critique of Political Economy. In Collected Works, vol. 29, 430-507. London: Lawrence & Wishart.
–––. 1988. Ökonomische Manuskripte 1863-1867. MEGA II/4.1. Berlin: Dietz.
–––. 1989. Marginal Notes on Adolph Wagner’s Lehrbuch der politischen Oekonomie. In Collected Works, vol. 24, 531-559. London: Lawrence & Wishart.
–––. 1994. Economic Works 1861-1864. In Collected Works, vol. 34, London: Lawrence & Wishart.
–––. 1996. Capital. Vol. 1. In Collected Works, vol. 35, London: Lawrence & Wishart.
Marx, K. and F. Engels. 1975. The German Ideology. In Collected Works, vol. 5, 19-539. London: Lawrence & Wishart.
Macpherson, C. B. 1962. The Political Theory of Possessive Individualism, Hobbes to Locke. Oxford: Oxford University Press.
McNally, D. 1993. Against the Market. Political Economy, Market Socialism and the Marxist Critique. London: Verso.
–––. 2001. Bodies of Meaning. Studies on Language, Labor, and Liberation. New York: State University of New York Press.
Milios, J., D. Dimoulis and G. Economakis. 2002. Karl Marx and the Classics: An Essay on Value, Crisis and the Capitalist Mode of Production. Aldershot: Ashgate.
Montag, W. 1999. Bodies, Masses, Power. Spinoza and his Contemporaries. London: Verso.
–––. 2005. Materiality, Singularity, Subject: Response to Callari, Smith, Hardt, and Parker. Rethinking Marxism 17 (2): 185-190.
Nuss, S. 2006. ©opyright & Copyriot. Aneignungskonflikte um geistiges Eigentum im informationellen Kapitalismus. Münster: Westfälisches Dampfboot.
Ong, W. J. 1988. Orality and Literacy. London and New York: Routledge.
Owens, C. 1992. From Work to Frame, or, Is There Life After “The Death of the Author”? In Beyond Recognition, 122-139. Berkeley and Los Angeles: University of California Press.
Pashukanis, E. B. 1982. Law & Marxism: A General Theory. Trans. B. Einhorn. London: Pluto Press.
Prawer, S. S. 2011. Karl Marx and World Literature. London: Verso.
Roberts, J. 2007. The Intangibilities of Form. Skill and Deskilling in Art After the Readymade. London: Verso.
Rodríguez Herrera, A. 2015. La riqueza. Historia de una idea. Madrid: Maia.
Rose, M. 1993. Authors and Owners. The Invention of Copyright. Cambridge, Mass.: Harvard University Press.
Rubin, I. I. 1973. Essays on Marx’s Theory of Value. Trans. M. Samardzija and F. Perlman. Montréal: Black Rose.
Sánchez Vázquez, A. 1973. Art and Society. Essays in Marxist Aesthetics. Trans. M. Riofrancos. New York: Monthly Review Press.
Schapiro, M. 1994. On the Relation of Patron and Artist: Comments on a Proposed Model for the Scientist. In Theory and Philosophy of Art: Style, Artist, and Society. Selected Papers, 227-238. New York: George Braziller.
Sherman, B. 2002. Appropriating the Postmodern: Copyright and the Challenge of the New. In Dear Images: Art, Copyright and Culture, ed. D. McClean and K. Schubert, 405-419. London: Ridinghouse/ICA.
Sherman, B. and L. Bently. 1999. The Making of Modern Intellectual Property Law. Cambridge: Cambridge University Press.
Sholette, G. 2011. Dark Matter. Art and Politics in the Age of Enterprise Culture. London: Pluto Press.
Singerman, H. 1999. Art Subjects. Making Artists in the American University. Berkeley: University of California Press.
Towse, R. 1996. Market Value and Artists’ Earnings. In The Value of Culture. On the Relationship between Economics and Arts, ed. A. Klamer, 96-107. Amsterdam: Amsterdam University Press.
–––. 2006. Human Capital and Artists’ Labour Markets. In Handbook of the Economics of Art and Culture, ed. V. A. Ginsburgh and D. Throsby, 865-894. Amsterdam: Elsevier.
Ursprung, P. 2009. Narcissistic Studio: Olafur Eliasson. In The Fall of the Studio. Artists at Work, ed. W. Davidts and K. Paice, 163-183. Amsterdam: Valiz.
Vernant, J.-P. 2006. Myth and Thought among the Greeks. Trans. J. Lloyd. New York: Zone Books.
White, M. V. 1999. Obscure Objects of Desire? Nineteenth-Century British Economists and the Price(s) of “Rare Art”. In Economic Engagements with Art, ed. N. De Marchi and C. D. W. Goodwin, 57-84. Durham: Duke University Press.
Williams, H. L. 1983. Kant’s Political Philosophy. Oxford: Basil Blackwell.
Wolff, J. 1984. The Social Production of Art. New York: New York University Press.
Woodmansee, M. 1994. The Author, Art, and the Market. Rereading the History of Aesthetics. New York: Columbia University Press.