Words they don’t teach you
at school (TWC)
A Legal Portrait of Adib Fricke 1
According to current legal interpretation the word works of Adib Fricke are not protected by copyright. They share this fate with a few of the truly great works in art history: with Marcel Duchamp’s ready-mades, with Joseph Beuys’ expanded concept of art (Erweiterter Kunstbegriff) and with certain art movements such as Appropriation Art. The law is not in the position to grasp this art in legal terms—less because it does not want to, than because it cannot with present legal criteria. A conflict between art and law becomes apparent. This conflict has tradition2 and the strategies offered as solutions to it also have tradition: Either the law makes the artist or his works responsible for the fact that they are not art “in the legal sense” because what cannot be subsumed under the legal definition of art cannot be protected. Alternately, the law pursues the matter and changes, “updates”, the legal definition of art.
Adib Fricke develops new words which he offers for sale as art works and for which he claims copyright protection. What does one buy when one buys a word? The word or the paper upon which it is reproduced? Without question it is the printed piece of paper, a certificate as the materialized form in which the word appears. Words as language cannot be bought or sold. By the same token they cannot—as language—be monopolized. Like the air we breath language belongs to everyone. It is the basis for our communication. Everyone can, may, and should say what he wants. The use of words is free. There are no state regulations for specific words, but there certainly are regulations regarding the meanings or messages of certain words. Thus, in general the word “Auschwitz Lie” [Term used to denote any attempt to deny the Holocaust and the existence of concentration camps such as Auschwitz. Translator’s note.] can be used, but only in a particular context. One can only speak publicly about the “Auschwitz Lie” as the denial of the crime, which the name Auschwitz exemplifies, and at the same time as the denial of a historical reality. Thus, the word itself is a lie.
If a word as language neither can nor should be traded or monopolized, then the economic utilization of a new word can be regulated. The protection of new words through copyright registration should not be considered here. Such a registration is time-consuming and expensive and, in contrast to a name or brand designer, one cannot expect an artist to pay for the protection of his works. After all, it is precisely the aim of copyright law to protect the intellectual property of artists.
The problems created by copyright protection of Fricke’s Protonyms and units consisting of words have already been pointed out by Arthur Waldenberger. Nevertheless, copyright law offers a few starting-points which—if they were developed further and supplemented with contemporary artistic methods and positions—could lead to a satisfactory solution.
The regulation of musical works, §24 Absatz 2 of the Urheberrechtsgesetz (UrhG—Gesetz über Urheberrecht und verwandte Schutzrechte) offers a copyright parallel. Accordingly, a musical theme can only share a very limited sequence of notes with an earlier work. Otherwise it is considered to be a plagiarized work and the original creator must be compensated. Couldn’t a word like ONOMONO be understood as a sequence of sounds? And isn’t the as literature protected anagram3 that is formed from elements of already existent words technically very similar to word creations like those Fricke carries out? Under copyright law a word has not up to now been considered sufficient to earn protection. A single word is not yet literature, a stamp not yet a picture, a word melody not yet music, and the invention of new words is not an artistic discipline. However, how does Ernst Jandl’s one-line poem rot, ich weiß, rot [The German word “weiß” can alternately mean know or white. Thus, Jandl’s poem can be read in two ways: “red, I know, red” or “red, I white, red.” Red-white-red are also the colors of the Austrian flag. Translator’s note.] or Gertrude Stein’s most famous sentence A rose is a rose is a rose differ from Fricke’s units consisting of words such as In Words We Trust or Protestant Lust?
Perhaps Fricke’s concept is too similar to the legal approach for legal professionals to accept the discovering/uncovering of words as artistic expression. After all words like “Law regarding the copyright protection of patterns and forms” (“Geschmacksmustergesetz”) and “illegitimate mother” come from their pens. What connects Adib Fricke’s artistic work to legal work is homage to the word. However, in contrast to Fricke whose words have no meaning and are thus not terms that designate anything, the legal professional is as concerned with precise classification of meaning as with exactitude in abstraction. Legalists are masters of the term and their task is to recognize the general in the individual and to apply the general to the concretely individual. For a word like “contract” there is a guiding pattern which covers all contracts regardless of whether one buys a loaf of bread, a house or a share of stock, engages a lawyer or marries, gives a bouquet of flowers, or brings shoes to the cobbler. The word has—according to the context in which it is used—its own, situational meaning. As a legal term it expresses a particular, clearly defined principal that describes a structural similarity within the various contexts.
In contrast, Fricke’s words do not have such a clear function. They can certainly be used in the most varied of contexts, but they can, at least theoretically, be assigned meaning arbitrarily. They can receive a meaning and mean the opposite without the meaning being false. This anarchy within the medium of language is diametrically opposed to legal thinking. The reason for denying Fricke’s word creations copyright protection, however, lies deeper than the different use of word and meanings at first suggests. If copyright law does not regard Fricke’s words as worthy of copyright in the spirit of §2 UrhG, then this not only means that an outdated concept of work underlies the law. At the same time it also points to a difficulty that results from the content and function of legal thinking.
The Concept of Copyright Law
Works as determined by copyright law are personal, intellectual creations. According to §2 Absatz 1 of the UrhG linguistic and textual works, musical works as well as the fine arts are, for example, counted as copyrighted works. In the realm of the fine arts the term creation presupposes the aesthetic content and the individual quality of the work. “Each personal, intellectual creation, especially in the fine arts, enjoys unlimited protection.”4
Fricke’s new words EXPLOM and AVANZ can also be subsumed under the term creation. These words did not previously exist. Fricke developed them. Thus, one can speak of a “word creation” in the legal sense. These word creations can be seen in a particular artistic tradition such as the invention of names in literature.5
The intellectual content of a word like MIPSEL or SMORP lies in the word creation itself. It is comparable to the intellectual content of the names. The meaning of the name as the concentrated expression of the novelistic personality is known from literature. Names are also words without meaning whose content lies in language’s atmosphere or in the intellectual realm. In contrast to descriptive words they are not bound to a concrete person or thing, not to a bearer of the name.6 Names exist independently of the people who carry them. Different people can be the bearers of the same name. The referential character of the name (for example, Ernst Richter is this concrete person) first emerges through the giving of the name. It is similar with the words without meaning. The protonym MINGIS could be used as a woman’s name like Gertrud or Annegret. In addition, the intellectual content of the artistic work contains conceptual elements. The respective word work is simultaneously part of Fricke’s broader artistic work, The Word Company (TWC).
The reduction of an artistic work which concentrates on the uncovering/discovering of new words to the benefit of an artistic concept which examines the positioning or handling of individual words within different social systems such as the legal system and thereby seeks a continuous rewriting of the words makes, in addition, communication between absolutely unrelated thought and language systems possible.
For example, discussing the legal questions pertaining to copyright protection is not only a continuation of Fricke’s words. It is at the same time a representation of the law within the “art system.” This communication requires the “collaboration” of representatives of other systems like legal professionals. Communication in this form is only possible because Fricke’s word works draw on a medium which these systems also use and because as words without meaning they are at the same time so “free”, they set so few guidelines that each respective system can represents itself through them. Permitting different “systems” to communicate with each other in this way is a new artistic approach, but in a certain sense it is within the avant-garde tradition. It attempts—quasi methodically or strategically—to produce a link between art and other areas of life which used to be called “connecting art and life with each other.”7
The aesthetic content of words lies in the words’ or the language’s sound and is complemented on the visual level by the particular typographical form of presentation such as the form of the stamp which Fricke uses.
With a name the word’s sound can already be described as a corporeal entity and, thus, as a form. “The name is the most delicate form in which intellectual essence appears.”8 With Fricke’s words the recognizable outer form consists of the letter sequence. The letter sequence is the textual translation of the word’s phonetic sound. It outwardly fixes and concretizes the word work. This form is supplemented by the external manifestation of the stamp, the offset print or the adhesive tape which make the word into an image.
The potential to individualization of Fricke’s words is a consequence of the manner in which they are developed. Given the origination process in which a variety of drafts are checked, rejected, reworked and added to one can suppose an intensity of creation which substantiates the formal quality of the individual words and in all due probability precludes the possibility of another person coincidentally discovering the same words. If the art of word development were a common artistic discipline which, for example, were taught at academies, then individual coinings of single word creators would be better recognized. Due to the fact that Fricke’s word creations are relatively rare as artistic works and, thus, there are few points of comparison that verify an individual coining, it cannot be concluded that such coinings do not exist.
From the creative process one can at the same time surmise the degree of formal height necessary for copyright protection. Even if Fricke only used computer programs to assist in the obtaining of new words, in such a case he would chose only a few usable suggestions which he then would individually add to or supplement and, thus, arrive at a for him acceptable result. And finally, the word creations are bound to the total artistic concept of The Word Company. Thus, further indicators for the formal height are the form of the presentation within the frame of TWC as well as the continuity of the artistic work process.
Justice is equality before the law. A right that one person is entitled to everyone is entitled to. If one granted Fricke copyright protection for forming new words, then this protection would according to legal interpretation up to now be then due to all others who uncover/discover new words. Our society already has sufficient vocabulary at its disposal and, thus, the loss for the general public would not be especially large in this case. But it would be quite different with the ready-mades of Marcel Duchamp. If one could in a legally binding way declare a random existing object to be art, if several people could declare the same object to be their art work, then a granted copyright would endanger the exchange of goods, further processing and consumption and our economic system could collapse in a matter of a few days.
This idea sounds artificial and absurd because no artist would hit on the idea to repeat Duchamp’s ready-mades (except for Elaine Sturtevant whose artistic concept comprises precisely this question) or to claim copyright protection for the ICE [a high-speed German train. Translator’s note.] or to declare the chocolate in the purple paper to be a multiple [reference to Milka, a well-known German brand of chocolate with distinctive purple packaging. Translator’s note.]. No cultural academic would hit on the idea to treat later ready-mades as completely equivalent to those from Duchamp or to claim that the sports car MG B, color: British racing green must be exhibited in a museum as a new artistic position. But in what way do Duchamp’s ready-mades differ from mere copies and how could this difference be legally understood?
In consideration of more recent art development two hurdles are to be surmounted. The first is the increasing theorization and conceptualization of art which must be understood in legal terms; the other is the principle of equality applied to both. If it could matter-of-factly and objectively be proved that and why Duchamp’s ready-mades are art and all other industrially produced products are not, then there would be criteria to make the expanded concept of art of Beuys, which he himself called his greatest art work, identifiable as art—and indeed without everyone else at the same time appealing to the sentence, “every person is an artist” (“Jeder Mensch ist ein Künstler”) because this artistic position could be understood and protected. If taking the law into account one could make even the development of a particular artistic approach or the development of an art concept identifiable as creative forming and as a materialized “creative concept” and if, moreover, it could be established that the artistic innovation consists of precisely the development of this “conceptual approach”, that, in other words, Duchamp’s ready-mades are as unrepeatable as the Mona Lisa, then copyright protection for Fricke’s word creations could no doubt be affirmed. This justification would not, however, give up purely formal reflection and disregard the contents’ message. But Leonardo da Vinci’s Mona Lisa is also not art because she smiles.
**) Marshall McLuhan, Understanding Media: The Extension of Man, New York: New American Library, 1964, p. 73.
1) The term legal portrait appears with a double meaning: it expresses that the law, if it wants to grasp contemporary art, must understand this art as an individual position. Common in the art world, the term “portrait” is used here as the abbreviated designation for a legal strategy of definition. In doing this not only the outer form and the content of the art works should be considered, but also the artistic concept, that is the conceptual and theoretical approach of each respective artist. As a consequence of this strategy the principle of equality before the law comes into effect on another level and is no longer purely formal (“each canvas upon which paint is applied is art”) nor content-based in the traditional sense (“each object that demonstrates the individual mark of its creator is art”). At the same time this text is a portrait of Adib Fricke; the portrait is composed of legal terms. If one portrays an artist in the law, then the function of depiction is not fulfilled through aesthetic categories. Rather, the resemblance is reflected in legal categories whose beauty shows itself in the law’s own category of effectiveness (legal protection) which is foreign to art. This “reflection” technique also reflects the principle of “word creation.” The attempt to understand a word without meaning legally, that is to subsume it under already existent terms, does not create any new legal words, but new meanings and, thus, new legal opinion. As reflected in the law, as it is to be expected, Fricke’s concept is topsy-turvy.
2) Compare Ludwig Leiss, Kunst im Konflikt – Kunst und Künstler im Konflikt mit der “Obrigkeit”, 1971.
3) Compare legal opinion on Folterhilda, in Arthur Waldenberger, “The Words’ Form”, The Word Company, Vol. III, Berlin: Edition Fricke & Schmid, 1997.
4) Compare Fromm/Nordemann, Urheberrecht, §2 Rn 1, 8th Edition, 1994.
5) One can find a whole series of literary evidence for the meticulousness and passion with which authors searched for names for their novels’ heroes whose sound and meaning revealed the destiny of these heroes. For example, it is known that Gustave Flaubert implored Emile Zola to cede him the two names Bouvard and Pécuchet that Zola wanted to use for his own planned novel; Cf. the book which Pavel Florenski worked on from 1923 to 1926, Namen, Berlin, 1994, p. 7-8.
6) Names also have a symbolic meaning, a referential character derived from the so-called namesakes. This character, however, develops first in the course of the story through the different bearers of the name. Such a symbolic relation arising from later use is—at least theoretically—not be ruled out for Fricke’s words.
7) On the subject of artistic system dialogue compare, for example, “Surfing Systems” (Kasseler Kunstverein, Kassel 1996) and “Kontext-Kunst” (steirischer herbst ’93, Graz 1993).
8) In his analysis of name giving and finding in literature Florenski demonstrated that names in art works obey the same internal necessity as the figures who bear them; compare Pavel Florenski, op. cit., p. 22-23: “These figures are nothing other than developed names” and “here it testifies of a catastrophic misunderstanding of art if one wants to declare every literary name, the name as such, for an arbitrary, subjective, made-up, limited characteristic of the types and artistic forms.”
The paragraphs and sections quoted refer to German laws and in the translation from German to English were left in the original. (Translator’s note.)
Published in: The Word Company, Volume III, Berlin 1997
© 1997 Christine Fuchs and Adib Fricke.