The Case of the Readymade Mountain

If Chinese contemporary artists have ascended meteorically in the art market, they have also left lasting fissures in their wake. Most notoriously, artists undercut the established gallery system and produce excessive editions of photographic works.  However, one of the most intriguing conceptual wrinkles that contemporary Chinese art has raised in the intellectual property arena remains largely overlooked. The issue is the authorship of the celebrated performance and photography work, To Raise an Anonymous Mountain by One Meter, which presents an unprecedented conundrum for copyright law.

On May 22, 1995, 10 Chinese artists from the Beijing East Village, the impoverished but intellectually explosive community (now defunct) of experimental and performance artists, gathered on Miaofeng mountain on the capital’s outskirts. The artists were Cang Xin, Duan Yingui, Gao Yang, Ma Liuming, Ma Zongren, Wang Shihua, Zhang Bingbing, Zhang Huan, Zhu Ming and Zu Zhou—several of whom are well-known names in contemporary Chinese art. For the performance, the 10 stacked their naked bodies atop each other, temporarily raising the mountain’s height by a meter.  A poetic commentary on the eternal tension between futility and self-determination, Mountain is an iconic work of Chinese contemporary photography. Ironically, the performance’s theme of collaborative effort is echoed in the copyright issues reflected in later developments of its commercial marketing.

In 1995, Chinese contemporary art was a far cry from the white-hot commodity it is today, and it is unlikely that Mountain’s artists gave much thought to the economic implications of their collaboration. Then, Zhang Huan became the first of the group to rise to stardom with his conceptual photographs, including Mountain, which he sold solely under his own imprimatur. After witnessing Zhang’s phenomenal success, the other participants in the performance decided, one by one, to offer up their own photographic prints of the work under their own names. As a result, there are now several versions of Mountain on the market, differing by artist, size, edition number, color and even orientation. Zhang, for example, has sold both black-and-white and color versions of Mountain, as well as a version in which the image is laterally reversed. Reputation, predictably, commands a premium: to date Zhang’s Mountain has fetched a maximum price of $50,400 at auction (at Sotheby’s in March 2006), versus Cang Xin’s highest auction price of $12,300 (at Artcurial Briest in December 2006, albeit for a smaller version). The lesser-known artists presumably fetch more modest prices for their pictures.

This commercial free-for-all raises novel hypothetical scenarios regarding the 10 artists’ respective legal rights in the work.

Is Mountain a single work in which its authors have joint, indivisible interests, or is it actually 10 independent entities in which each artist holds a sole interest?  Under the PRC Copyright Law (1990), in a work of joint authorship that can be separated into independent parts and exploited separately, each co-author is entitled to independent copyright of the parts that he has created, provided that the exercise of such copyright does not prejudice the copyright in the joint work as a whole. Mountain, by its collaborative nature, cannot be divided into 10 equal parts (except by a conceptual feat of the imagination); hence the artists’ rights are joint and indivisible.

The paradox, of course, lies in the artists’ clear awareness of the work’s collective origins while, simultaneously, each artist represents himself through his commercial activity as the work’s sole author. What rights, then, does each artist have in Mountain if one artist had occasion to consider his copyright interests in the work infringed? Under PRC Copyright Law (which governs the individual artists’ rights in Mountain, the work having been created within China by Chinese citizens), each artist holds certain property and personality rights in the jointly authored work, including those of publication, authorship (the right to have one’s name mentioned in connection with the work), alteration, integrity (the right to protect one’s work against distortion and mutilation), reproduction and adaptation. Consider these two entirely plausible scenarios, the first describing an infringement of property rights (in this instance, rights of publication and reproduction), and the second an infringement of personality rights (here, rights of alteration and adaptation).

In the first hypothetical, Mountain Artist No. 1, who successfully sold out his editions of Mountain years ago, sues Mountain Artist No. 10, who has just released his first edition of the work, for infringing Mountain Artist No. 1’s right of publication.  Their interests clearly conflict as they both possess the same rights to publish the work, and also to deny permission for its publication.

Incensed by the situation, Mountain Artist No. 10 then floods the market with so many different sizes and editions of Mountain prints that the value of every Mountain print, regardless of its author, plummets. Although each Mountain Artist enjoys the same right of reproduction, in an equitable world no one Mountain Artist should be permitted to exploit this right to the extent that it damages the market for Mountain works as a whole. The difficulty, of course, lies in deciding when one print is too many, particularly in a volatile and non-transparent market.

In the second scenario, Mountain Artist No. 2, who is color-blind, claims that Mountain Artist No. 3 has altered Mountain by issuing the photograph in color. Who prevails? Again, their interests conflict as each of them holds the same right to prevent—or authorize—the work’s alteration.

Furthermore, what if the joint authors disagree over a third-party adaptation of the work?  Shi Xinning, another renowned contemporary Chinese artist, creates paintings where he inserts Mao Zedong’s visage into famous historical scenes. Shi recently painted the Great Leader benevolently gazing upon the pile of human bodies in Mountain, implicitly paying tribute to the iconic stature that Mountain has achieved in contemporary Chinese art history. What would happen if Mountain Artist No. 7 despises Shi’s painting and considers it an infringement of his copyright in Mountain, but Mountain Artists No. 8 and 9, on the contrary, are hopelessly flattered by Shi’s work? Does Mountain Artist No. 7 have the right to sue Shi (who, presumably, would prevail because the PRC Copyright Law provides him with the right to adapt an existing work to create a new work), even over express objections by Mountain Artists No. 8 and 9?

Lacking any agreement between the 10 artists addressing copyright interests at the time of the work’s creation, it would be nearly impossible to remedy any copyright conflict in a manner that is both equitable and legally accurate. In reality, the Mountain affair is only possible because all its participants closed one eye to the legitimacy of their actions. The monetary fruits of their mutual complicity are presumably sufficient to outweigh concerns about individual copyright interests. Duchamp might have relished the unresolved case of the Mountain copyright as a true artistic coup: a conceptual gambit that, unwittingly but brilliantly, subverted the very legal structures that society enacted for the autonomy of artists.