Misunderstood Art

Polonius: (To Hamlet) What do you read, my lord?

Hamlet: Words, words, words.

(Hamlet II, ii, 192-3)

Nobody mistakes a game of football for anything else; there is never the question that it might not be a game of football or that it might be about something other than football. There are rare exceptions, the 1956 Russian Hungarian Olympic Water Polo match was about more than a sport. Generally the quality of the playing is tested and the results displayed on a scoreboard. Debate about sport is possible but eventually resolvable, the best team is the one that wins the most games.

Art is not like that; nothing will ever be resolved, it can be tested but not definitively. New interpretations and assessments are always possible for art but, short of revelations of cheating, nothing reverses sports results.

With all art there is always the possibility that it will be fundamentally misunderstood, not just in meaning or quality but also in its very category. It could be interpreted in a number of ways, or in post-modern speak, there are multiple readings. It is this possibility of being misunderstood that brings a special kind of quality to art. Not that all misunderstood things are of art, nor that ambiguity should be the objective of art, but that without the possibility of being misunderstood, that ambiguous quality, that makes art more than the sum of it constituent parts.

According to Mary Douglas’s theory expounded in her book, Purity and Danger (1966) the ambiguous category of art should make it taboo, a pollution that should be expelled. Or, because it does not fit into any category, that it should be sacred. Art is seen as both sacred and a pollution in society.

This ambiguous quality means that art can be about something else. Art has a relationship to a subject that cannot be reciprocated. For example, art can be about football but football can never be about art; as football is always about football. For art is a sign and signs also have a non-reciprocal relationship with what they signify.

Humans naturally want certainty but art requires a sophisticated, civilised approach that is, in this aspect, against nature. Art requires a degree of uncertainly, ambiguity or cognitive indeterminacy; to not know if you are looking at an image or paint, a story or words, Hamlet or an actor. Art requires possibility of multiple correct readings and even misunderstanding.

The unsophisticated mistake fiction for fact: a character for a real person, an actor for the character played, etc. They are apt to mistake art as pornography, sedition, blasphemy or some other prohibited or offensive category. These are unsophisticated views because they are forgetting that art is ambiguous, that they are looking at nothing but a creation of ink, or paint, or lights on a screen.

When a government’s claims to be able to make unambiguous distinction between what is permitted and what is censored the government case will always appears unsophisticated. How an unambiguous distinction can make about ambiguous material is never explained. It is simply assumed that the government is acting in a reasonable and rational manner. That agencies like the Australian Classification Board represent community values in their decisions. That it’s arbitrary interpretations of ambiguous material are certain and definite even when they very from year to year.

Sport is uncensored and more approved of than art because sport can be legislated. It can be legislated and controlled because it is unambiguous.

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Hate Preachers and Censorship

Censorship by vandalism is unfortunately common in art galleries, public libraries and other public space. These vandals impose a ‘higher law’ on the world with violence, with hammers, knives and explosives. Recently Islamic fanatics have destroyed art and attacked artists that they call blasphemous but don’t forget that other religions have also acted in a similar violent manner.

Nicknamed ‘Pell Pot’ by ordained members of the Catholic Church in reference to the fanatical, ruthless ideologue, war criminal and former Cambodian leader, Pol Pot, Cardinal George Pell assisted in covering up the child abuse in the Catholic Church in Victoria, infamously remarking that: “abortion is a worse moral scandal than priests sexually abusing young people.” This is not to forget another stain against Pell’s character with his encouragement of the vandalism of Andres Serrano’s Piss Christ.

Andres Serrano, Piss Christ, 1987

In October 1997 there were several exhibitions by Andres Serrano planned for Melbourne, the National Gallery of Victoria was to show a Serrano retrospective and Serrano’s History of Sex was at the Kirkcaldy Davies Gallery. However before they opened the then, Archbishop Pell sought an injunction restraining the Gallery from exhibiting Serrano’s Piss Christ on the grounds of blasphemy. The Age falsely reported that the Victorian police vice squad had referred Serrano’s book to the Office of Film and Literature Classification after raiding the exhibition. Journalists also stalked Kirkcaldy Davies Gallery waiting for a police raid that never happened.

New York artist, Andres Serrano was raised a Catholic. Serrano created Piss Christ in 1987, it was a photograph of a plastic crucifixion submerged in a jar of the artist’s urine. The large format photograph was printed in an edition of four, one retained by the artist and three others that are privately owned.

The hearing on the injection on Piss Christ was held before Justice David Harper with Cliff Pannam QC representing Archbishop Pell and well known human rights lawyer, Julian Burnside QC representing the NGV. Pannam argued that for court granting an injunction against exhibiting Piss Christ on the grounds of blasphemous libel in common law and that was also in breach of the indecency provisions of the Summary Offences Act 1988.

Justice Harper did not accept Pannam’s arguments finding that: “not only has Victoria never recognised an established church, but now s 116 of the Australian Constitution forbids the Commonwealth making any law for establishing religion.” Read more on the law of blasphemy in Australia on Find Law Australia.

When legal measures failed there were several Christian extremists willing to act where Australia law would not to protect the honour of their faith by destroying an image that the Archbishop Pell had declared was blasphemous. First John Allen Haywood took Piss Christ down from the wall and kicked it but did little damage. The following day two young men, aged 18 and 16 attacked it with a hammer. After that then Director of the National Gallery of Victoria, Dr Timothy Potts closed the Serrano exhibition concerned about the safety of his staff and visitors.

The Christian extremists who shut down the Serrano exhibition received very light sentences. Even though he was unrepentant, John Haywood received a suspended one-month sentence telling the media after his trial that he’d like to punch Serrano. It is not known what sentence the teenagers received. The reaction from the public, the law and media to the actions of these Christian extremists was very differently to the reaction to Muslim extremists when they take violent action against what they consider blasphemy. This is because there are no votes for Australian politicians in creating panic over Christian extremists and hate preachers like Cardinal Pell.

Piss Christ was also attacked when on exhibition in Sweden and in France, on Palm Sunday in 2011 when four Christian extremists damaged it beyond repair.

Are You Experienced?

In covering the Paul Yore story I felt hopelessly out of my depth, as an art critic I wasn’t experienced reporting on politics and law. I persevered, determined to follow the story to the best of my abilities for over a year.

From the start, covering the case felt like a futile task as I already knew the outcome, it was as predictable as continued government funding for the National Gallery. Sure, it might not happen, especially if people treated the outcome as predictable and that any energy spent on it wasted but realistically, what are the chances?

If Paul Yore had been found guilty it would just been a further repeat of what happened to Mike Brown with the sentence reduced to practically nothing on appeal. To expect anything else is to expect a revolution, art galleries ransack, Chloe seized by police from Young and Jackson’s…. As much as such a purge might be the wet dream of some right wing conservatives, it is not something that magistrates and judges would want to encourage. What they want is to preserve the status quo.

However in Australia, the status quo includes the random persecution of artists. I’m concerned that this could happen again, not in Victoria, not for a few years at least, after the police pay costs for the case, but to another artist in another state in a couple of years. Following the police raid on the Linden Centre gave me the feeling of the repeated witch hunts in Australian culture.

The typical Australian mob chants: “We don’t like it. Ban it!” Art, books, clothing, people…. “We don’t like it. Ban it!” The mob needs to shut up, listen to reason and understand that just because they are the mob doesn’t mean that they should dictate taste. That instead of banning art and the expensive circus of police raids and court cases that we should engage in a democratic discussion. But what are the chances of that happening?

Being out of my depth with covering a criminal case there were things that I could learn, how to find court dates, get media statements from the police but as I learnt I also realised one of the drawbacks of being a blogger and freelance writer. What I was missing as a freelance writer and blogger was the experience of a large newsroom where I could have consulted with, or even collaborated with, the regular court reporters and the politics reporters.

Now I’m not asking for your sympathy but for you to consider a world with smaller editorial departments, smaller news rooms, more freelance journalists trying to tell larger stories. In the current world experience is too often dissipated rather than concentrated.

Sometimes I felt like a vulture lopping over to the carcass of an artist’s career, amid the flapping wings of other vultures and having a feed on the remains. Choosing to stop by Neon Parc on my rounds of galleries in the city to see if I could pick up something.

I wrote a summary of the case for the online art magazine Hyperallergic and an article for Vault Magazine that examined Yore’s use of collage and assemblage in the light of Max Delany’s testimony to the court.

All Charges Dismissed

15 months after the police raid on Linden Gallery Magistrate Amanda Chambers dismissed all charges and ordered the police to pay costs. She was also critical of the police handling of the search warrant where they excised with a Stanley knife parts of Paul Yore’s installation.

Over those 15 months Paul Yore has continued to exhibit, except when his installation was removed from Sydney Contemporary 2013. He is currently exhibiting in Primavera 2014: Young Australian Artists at the Museum of Contemporary Art Australia in Sydney.

Paul Yore made a statement through his lawyer; ”Paul is glad to see the end of what has been a long and drawn out process. He would like to extend his heartfelt thanks to the legal team, namely Marita Altman, Neil Clelland QC and Rowena Orr. He is especially grateful for all of the support from his friends and family and the broader arts community, especially Juan Davila, Max Delany, Antonia Syme, Dr Juliette Peers, Callum Morton, Mikala Dwyer, Geoff Newton, Jason Smith and Jacob Oberman.”

The months of police investigation failed to look into the Australian Classification Board’s ruling on the installation. It was this ruling, that prosecution presented in its own evidence, that the exhibition was classified ‘Restricted’ that decided the case.

From the police’s perspective, what else could they do? They had a report of child pornography and they had a duty to investigate; a police officer who was an expert in art crime would have helped the investigation. However, using an artist’s career for purposes of clarification of a law is not an innocent activity and the police were not the only people involved. This case went past by multiple magistrates who should have asked questions rather than simply rubber stamp procedures.

The police clearly violated Paul Yore’s moral right for the integrity of his art by removing portions of it without his consent. When Detective Senior Constable Samantha Johnson of St. Kilda police was asked under cross examination by defence barrister Neil Clelland QC: “Who authorised you to remove the parts with a Stanley knife?”

Contable Johnson  replied; ’The Magistrate’

“Did you inform them on how you would remove the images?”

‘No.’

I do not expect that anything will be learnt by the police from this experience.

There have been many articles, and I’ve contributed my fair share, media spots and even a play, Wank created by James Hogan et. al. at The Bloomshed in April 2014, about the case. However, none of the most important question has been answered either by the court or in any of the articles: why was Paul Yore charged in the first place?

Paul Yore Trial Day Two

On the second day of the contested hearing of the charges of production and possession of child pornography against Paul Yore. Magistrate Amanda Chambers will decide if the case at 9:30am on 1st of October.

Mark Newman Delany, commonly known as Max Delany, the senior curator at the NGV had prepared a report for the court on Paul Yore and his art including the his installation at Linden Gallery. It was labelled defence exhibit #4.

Max Delany explained to the court about collage and assemblage. He explained that the crucial factor in collage is that the cut is obvious, that it is evident that it has been taken from one source and placed in a different context. That the cut does violence to the image, it is unnatural; by removing the the image from its context the image no longer functions according to the context. That advertising images in a collage do not function as advertising.

Max Delany was asked by the police prosecutor, Acting Sargent Kirei Wall about the artistic merit of the pieces of cardboard that the police had cut out with a Stanley knife. Max Delany told the court that they were not now part of Paul Yore’s art work and were in the context of a court of law. He would only comment on Paul Yore’s work as a whole and went on further about the artistic merit of Yore’s work. When he was asked would it have artistic merit if the art was made by anyone else, Max Delany replied: “This art couldn’t be made by anyone else.”

The magistrate then asked the very difficult question of what factors constitute artistic merit. Max Delany’s list: professional discourse and recognition, technical and formal qualities, conceptual and historical qualities, poetic (creating new meaning in the everyday) and context.

Summing up the case for the defence barrister Neil Clelland asked the court if the material constitutes child pornography at the time that it was part of the installation, Everything is Fucked, between the 14th and 17th of May. Clelland made arguments about how images are produced and how they depict.

What is it to produce an image and how is this different from making art. That the artist does not produce the images in a collage but does make the collage.

What is it for an image to depict and that this does not depend on intent or that it is perceived as but that it is seen as depicting by a reasonable observer.

The police prosecutor, Acting Sargent Kirei Wall argued that Australian Classification Board only classified the submission on Paul Yore’s installation and not the whole installation. She also argued that the children were hurt because their images were included without their permission and that their photo was placed with a photo of adults in sexual poses or a sexual context without respect for their rights and reputation.

Paul Yore Trial Day One

Today opposite the Melbourne Magistrates Court, there was a demonstration out the front of the County Court drawing attention to the first day of the Melbourne hearings into Royal Commission into the Institutional Response to Allegations of Child Sexual Abuse. In court room 20 of the Magistrates Court, in front of Magistrate Amanda Chambers, there was the first day of an anticipated three day trial of Paul Yore.

The court decided that the best place to start was by viewing a video of Paul Yore’s installation, Everything is Fucked. This was the defence video because the police admitted that it was better than the one that they made. Alleged child pornography being shown in a public court, the magistrate felt that some kind of warning had to be made before the video was shown to the public, no one left. For about six minutes the magistrate attentively watched the psychedelic rainbows of colour, the ultra violet lighting, the collage of objects and images. The court also heard a pod-cast interview with Paul Yore describing the sickly sweet surface with more symbolic ideas beneath the surface of the spectacle of mass consumerism.

The police case consisted of Exhibit #10, seven pieces of cardboard, paper and tin foil that Detective Senior Constable Samantha Johnson of St. Kilda Police Station had cut out with a Stanley knife from Paul Yore’s installation. These bits were described as photos of children’s heads with or without Pokemon stickers over them, stuck onto the naked bodies of adults, again with or without Pokemon stickers on them.

There was a large members of the bar in court, not just Yore’s defence team but separate representation for members of the staff and board of directors of the Linden Centre who had all been called as prosecution witnesses. They were conceded about exposure to allegations of procession of child pornography arising from their testimony and were given certificate from the court that their evidence would not be used against them.

One of the crucial pieces of the defence argument came in the Linden’s Gallery Director, Melinda Martin’s testimony where it emerged that the documentation in the application to the Australian Classification Board consisted of images of Paul Yore’s installation before the police removed any images. Although the application did lack detail it appears that one of the parts removed by the police may be seen in the application for classification. The Australian Classification Board classified Yore’s work Classification 1, Restricted, suitable for people over the age of 18.

Yore’s defence team of Neil Clelland and Rowena Orr was focused on the statutory definition of child pornography. They were not contesting the police time line of events nor any of the police evidence. They wanted to know how the concept of production of child pornography was being proven.

The defence case consisted of expert witnesses, or “witnesses with specialist knowledge” in the current legal speak. Jason Smith, director of the Heide Museum of Modern Art, Antonia Syme, the director of the Australian Tapestry Workshop, and Max Delany, senior curator at the NGV. The defence of artistic merit was clearly made to which the prosecution was trying various arguments, the best of which the magistrate returned to putting the questions directly to Antonia Syme; what if Leonardo da Vinci made child porn does it follow that because he is an artist the work has artistic merit? To which Ms Syme replied: “Putti. Leonardo did lots of naked children.” Max Delany will give his evidence tomorrow morning.

Censorship, Barry Keldoulis and Paul Yore

Prior to the Melbourne Art Fair I asked Barry Keldoulis some questions about the censorship of art by Paul Yore and Tyza Stewart at Sydney Contemporary in 2013 and assured  him that his replies would be printed in full.

Barry Keldoulis: Thank you Mark, and some of my answers are going to be fairly long winded as to answer the question properly will require background information on the circumstances.

Black Mark: What I am concerned about is what happened at the Sydney Contemporary. In your statement about removing the work of artists at Sydney Contemporary you were definitive that the artists were on the wrong side of the law, how were you able to achieve this degree of certainty with a law that has never been tested in court?

Barry Keldoulis: I think it’s worth noting firstly that some of the work of Paul Yore and Tyza Stewart were removed form the fair, and those that were not found to contravene the laws of NSW remained on display. I am not a lawyer or a policeman, so when it became clear that there was some elements of the Yore installation that may contravene the law, legal expects were asked to view the work. Three barristers who specialize in this particular area, typically and often successfully defending the accused, came and spent a couple of hours examining the installation.

It may be worth noting here that I had spoken to Paul on a number of occasions and sought his assurance “that nothing in this work will contravene the Australia Council’s Protocols for Working with Children in Art or relevant existing laws in NSW.”

I had reminded Paul that the laws in NSW were different to the laws in Victoria. Indeed they are considered by many to be the strictest in the land, and do not refer to ‘child pornography’ but the wider term ‘child abuse material’.

His written response to me was : “I understand and obviously accept these conditions for my new work at Sydney Contemporary’s installation section.” And furthermore, “I am acutely aware of the need to respect relevant laws especially in relation to children”.

However, the barristers found that, and I quote, “The Large Installation, I am afraid offends in many varied ways the provisions of the Crimes Act legislation in NSW.  The Large Installation is interesting and intrinsically devoted to the display of boys, probably under 16 years of age in Child Abuse Material under S91FB of the Crimes Act 1900 (NSW).  The definitions of these Materials are wide and includeS91FB(1) (b) depiction of child (under 16), S91FA, and furthermore in “sexual pose or implied in presence of another in sexual pose or sexual activity, or private parts of person apparently involved in sexual activity.”

They added, “Accordingly, the Installation in spirit and in detail come within the definition of “child abuse material” and is fatally doomed to probable conviction of your client for possession and /or exhibition.”

My understanding is that conviction would mean a jail term. Some seem to think that Paul should go to jail. I acted to protect him from that eventuality.

But it was not as simple as that. The legal experts also informed us that under the laws of NSW that “The mere possession of such material is potentially an offence.”

This meant that my initial idea to bring one of the theatrical curtains in the space forward in front of the work and signpost it to only allow adults in and to warn of possible offence, as is often done in institutions, was not an option. With Child Abuse Material,  the existence of the material is the problem, not its exhibition.

And in these circumstances, the exhibiting institution is considered the ‘publisher’, which meant that the staff of Carriageworks could be looking at conviction for possession and /or exhibition. People who have a long history of being incredibly supportive of artists at the forefront of experimentation and diversity were also in danger.

Black Mark: Why do think that censorship is “in the best interests of all the galleries showing” (from your statement re: Sydney Contemporary)?

Barry Keldoulis: In this discussion and can be easy to forget that the event involved some 80 galleries and the work of hundreds of artists. Had the work been allowed to stay and become the subject of a police enquiry the media tornado would have sucked in all the oxygen and denied any attention to the hundreds of other intriguing and stimulating works on display.

Black Mark: Why do you think that acting as a cop in censoring art works is part of your role as director of an art fair? Why not wait for the real police to follow their normal procedures and wait for a report from the public and investigate?

Barry Keldoulis: I did not act as ‘cop’, but on advice from legal experts, and others.  I took no pleasure in the proceedings, but acted in the best interests of the persons concerned.

An art fair, being open to the public and attended by tens of thousands of people, including children, does not seem the appropriate place to pursue this issue to it’s legal conclusion. However I think your suggestion is interesting. Perhaps the gallerist involved and who surely advises the artist on these matters, and may  disagree with the legal advice we received, should take a space in NSW and re-create the installation in its entirety, and invite the police to have a look, remembering that possession is a crime, not just exhibition.

Black Mark: How does the diversity of income streams (galleries, sponsors etc.) of an art fair influence this position?

Barry Keldoulis: This was a legal issue around the possession and exhibition of Child Abuse Material, and ‘income streams’ had nothing to do with it.

Thanks again Mark for the opportunity to answer your questions with more than a sound bite.

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Obscenity laws are prima facie unjust because it is impossible for a reasonable person to know before conviction if something is obscene. No other crime is so open to such subjective interpretation. Although some crimes, manslaughter for example, do not require an intention to commit a crime, no other crime convicts a reasonable person acting in good faith.  The obvious intention of obscenity laws is to force everyone to conform to the thinking of the dominate institutional power in this society.

We live in a society where laws have been made by the state, under the influence of the religious institutions; a society where both the state and religious institutions are currently under investigation for child abuse and the covering up of these crimes (The Royal Commission into Institutional Responses to Child Sexual Abuse). Why does anyone believe that such institutions have any moral authority or even any morality? Why does anyone tolerate the unjust and amoral dictates made by these institutions – because of the threat of violence?

“The State does not permit me to use my thoughts to their full value and communicate them to other men… unless they are its own… Otherwise it shuts me up.”

– Max Stirner, The Ego and its Own, 1845