In June 2008, the Museum of Modern Art in New York purchased Tino Sehgal’s Kiss (2003) for a five-figure amount. No papers were signed, no artwork was delivered; instead, a purchase contract was orally concluded in the presence of a notary. What museum visitors will see when MoMA exhibits the Kiss are Sehgal-trained “interpreters” 
in a choreographed re-enactment of intimate embraces from iconic artworks by Constantin Brancusi, Gustav Klimt, Jeff Koons, Edvard Munch and Auguste Rodin.

Sehgal’s artworks, which he calls “constructed situations,” transcend mere performance or dance. They engage unwitting spectators in an artistic process that 
can be absurd, awkward and intriguing. Museum attendants dance and sing or recite the day’s headlines, or children 
play games in the gallery, pausing to speak with viewers. 
These “situations” actively refer to the structures of an industry that for two decades has been driven by a frenzy of biennales, market speculation and ironic self-referentiality.

At the heart of Sehgal’s work is its ephemeral and undocumented nature. The choreography of each work may 
only be orally conveyed. The artist prohibits physical documentation of his work, including catalogs, photographs and printed press releases. The media blackout, however, does have its practical limitations; articles and reviews about Sehgal’s art appear in print and press releases for Sehgal’s shows are distributed on the internet. As Sehgal’s Kiss circulates in the art economy from the artist to 
gallery to museum, it provokes an inquiry into copyright law as it applies to non-traditional, intangible artworks—namely, the issues of artists’ rights in such non-material works and the subsequent economic implications.

Sehgal receives copyright protection for Kiss only under certain jurisdictions. The Berne Convention (1886), the international agreement on general principles of international copyright law, initially required that a choreographic work had to be fixed in writing or otherwise recorded in order to warrant protection. This requirement was dropped in 1967, and it was left up to individual countries to legislate whether works had to be documented in order to qualify for protection. Today, for example, under German copyright law, which like much of continental law is strongly rooted in the philosophy of natural rights and treats artistic creations as extensions of their creator’s personality, Kiss would be recognized as a protected “personal intellectual creation.”

In contrast, both the more instrumentalist United States Copyright Act of 1976 and the United Kingdom’s Copyright, Design and Patents Act of 1988 require a work to be fixed or recorded in a tangible medium of expression to qualify for copyright. Under these regimes, improvised jazz and lectures that are not recorded are ineligible for copyright; Picasso’s light drawings would not be protected, although photographs documenting their existence would. Similarly, Kiss, which by definition is undocumented in any non-transitory medium, is not entitled for copyright protection.

Copyright’s primary purpose includes granting artists
the right to prevent the unauthorized exhibition, reproduction and distribution of their work. Sehgal possesses these rights only if Kiss is copyrightable. If others
make public photographs or videos of Kiss, they will inevitably alter perception of the work—but Sehgal can’t prevent this if he doesn’t own the copyright to the work.

The repercussions of copyright on Kiss’ economic 
value are significant. The work exists in four editions, 
all of which can be bought, sold and lent like any tangible artwork. This appears to be Sehgal’s ironic nod to the 
art market’s symbiotic circuits of collectors, curators, 
dealers and museums that create value from transactional relationships: theoretically, only the availability of “interpreters” limits the number of times the work’s 
owner can lend it to other parties.

If Kiss, two lip-locked “interpreters” rolling around 
the museum floor, is protected by copyright, as with 
other artworks, the value of each of these four editions would be determined by their provenance, the availability 
of other editions, general demand for Sehgal’s work and broader market factors. However, if Kiss is not eligible for copyright, other parties could freely distribute recordings or photographs of the work, or perform similar or identical works for economic gain. In this situation, the value 
of all four “original” editions could be severely diluted. Alternatively, in a strange twist, Kiss could gain wider notoriety and the four “original” editions could increase in importance and value by virtue of their authenticity.

Kiss’ copyright status also impacts its valuation 
in other incidental areas. For example, how the work’s owner, such as MoMA, insures the work depends on whether it is copyrighted. Furthermore, Sehgal is eligible for royalties from the European droit de suite laws, by 
which artists receive a percentage of the purchase price upon every resale of their work, only if he holds the copyright to his own works.

More than any of Sehgal’s other works, Kiss juxtaposes 
these intellectual puzzles alongside viewers’ intimate experience of corporeal embraces drawn from masterpieces.The beauty of Kiss is that it is a paean to our collective, temporal experience of art—the way it excavates memory and turns it into flesh, but only for a moment as our eyes race before our thoughts. It documents, if you will, exactly that which we are incapable of remembering.