Editorial Statement: Terms and Conditions. The Legal Form of Images

Who decides which images become visible or remain invisible on social media, when and why?

Why can the police take a picture of me, while I can’t necessarily take a picture of the police?

How is access to archives and databases in which films, photographs, videos and other (audio-)visual documents are stored regulated?

Why are images and sound recordings sometimes admitted as evidence in court and sometimes not?

How reliably are constitutional legal goods such as the “artistic freedom” or the “academic freedom” protected?

How to explain the growing interest of artists in questions of jurisdiction, justice, contractual relationships or criminal justice?

To what extent experiences with fascist legal concepts and practices and, in particular, knowledge of the history of Nazi lawmaking affect and inform contemporary art and culture?

If technology companies train their algorithms with data from the internet, what legal options do I have to sue them for the rights to my “intellectual property”?

What kind of legal spaces and legally regulated forms of audiovisual traffic arise when “artificial intelligence” “hallucinates” new images?

How can the rampant juridification of social, political and economic conditions be artistically visualized and captured in alternate narratives?

What is the legacy, where are the continuities of colonial legal systems in the post- and neo-colonial present?

 

This is a selection of questions that formed the starting point for Terms and Conditions. The Legal Form of Images. It very quickly became clear that we would only make progress in answering (or problematizing) these questions if we worked together, in context, in a network of different artistic practices and forms of knowledge. With this project, the Harun Farocki Institut and its partners are relying on the power of collaboration in dealing with a problem that affects the field of culture like never before. The ever-increasing importance that legal or quasi-legal or para-legal frameworks, boundaries and regulations, including new (and well-known) forms of state and corporate censorship, have gained for individual artistic, curatorial or theoretical practice, forces us to develop methods and strategies with which to counter this progressive juridico-legal restructuring of spaces for action.

In the course of the project, the conditions will be created for the development of legal literacy, i.e. a literacy in legal issues in the field of visual arts, film and critical media theory. In the best-case scenario, all participants see themselves as learners who might also be interested in unlearning certain ideas, concepts and norms that organize the way we deal with the law and its institutions, representatives and protagonists.

Deliberately, Terms and Conditions situates itself in an emergent field of artistic and curatorial initiatives, methods and operations as well as scientific research. This field ranges from Milo Rau’s or Jonas Staal’s engagement with the form of the court case and the tribunal to the “investigational aesthetics” of Forensic Architecture or Trevor Paglen, the network “Before Law” (https://before-law.com/) run by artists, activists and legal scholars, to an exhibition such as “Guilty, Guilty, Guilty!” (Kunstraum Kreuzberg, 2022/23), which brought together artistic works on feminist criminology, or the themed issue “Art Beyond Copyright” of the magazine Grey Room (2024, ed. by Amy Adler and Noam M. Elcott).

These are just some of the artistic and curatorial references that were present in the development of the project and the direction of Terms and Conditions. We refer to them, use points of contact and similarities, will elaborate aspects and look for opportunities for collaboration. We are not interested in any kind of dissociation from this archive of contexts and preliminary work simply for the sake of asserting a unique position. Nevertheless, we assume that our approach of asking about the consequences (and resonances) of an increasing juridification of politics and society in the spheres of contemporary art and film is breaking new ground.

The two cities in which the project will materialize are primarily Berlin and Leipzig, in addition to events (exhibitions, presentations, screenings) in Locarno, Zurich and Potsdam. The Harun Farocki Institut and the curators and researchers who run it have long been in contact with artists, filmmakers, curators and theorists about the legal and legalistic implications of their respective practices. This exchange has intensified, not least under the impression of a constantly and rapidly changing environment of digital media, machine learning, algorithmic governance, etc. and the political and social tendencies associated with these developments, in which questions of law and the need to intervene in civil society at the level of jurisdiction are pushing ever more vehemently onto the agenda. The course of these talks and discussions made a focused organization of the concerns and topics in a cultural project seem unavoidable.

Together with the Arsenal. Institute for Film and Video Art e.V., the Academy of Fine Arts Leipzig (HGB Leipzig), the Berlin Artistic Research Programme, the European Media Studies program (FH Potsdam and University of Potsdam), the Farocki Forum at the Department of Film Studies at the University of Zurich (UZH) and the Locarno Film Festival, we will plan and hold a sequence of exhibitions, screenings, workshops and lectures over the next two  years.

The most crucial partners and actors within the project include visual artists and filmmakers such as Adelita Husni-Bey, Maayan Amir, Thomas Locher, Jasmina Metwaly/Philip Rizk, Ines Schaber, Susan Schuppli, Cathleen Schuster/Marcel Dickhage (titre provisoire), Oliver Ressler, Oraib Toukan, Clemens von Wedemeyer and many others.

Ines Schaber and Clemens von Wedemeyer are also professors at the HGB Leipzig, where they will work with HGB students on the themes and questions of Terms and Conditions in the summer semester 2024 and winter semester 2024-25. Together with Ilse Lafer, the director of the HGB gallery, students, teachers together with HaFI will develop a series of gatherings during this time in exchange with artists and academics involved in the project. In reference to the legal “case,” we call these gatherings “case studies.” They form exemplary starting points and material axes for discussion, laboratory and mediation formats at the HGB that address and involve an audience outside and inside the university.

Exhibitions, film programs, workshops and lectures in Zurich, Berlin, Locarno and Potsdam diversify and deepen the questions of the project, both in parallel to and following the “case studies” at the HGB; narratives, models, images of a different grammar and politics of law are presented or developed in situ. Throughout the project will be accompanied by an open-ended special issue of Rosa Mercedes, the online journal of the Harun Farocki Institut.

Experts from the fields of law, visual and art studies and philosophy such as Daniel Loick, Nico Heise, Katja Müller-Helle, Sabine Müller-Mall, Gwinyai Machona, Noam M. Elcott, Asia Bazdyrieva, Xenia Chiaramonte, Jussi Parikka, Natascia Tosel and many others will advise the project and help shape it with their contributions.

 

Theoretical-conceptual premises

Anyone operating in the audiovisual environments of today’s societies must be prepared to encounter legal facts at every turn and take legal theory arguments into account. In other words: Contemporary visual culture is an arena of actors and events of the law. Jurisdiction, legal discourse, all kinds of legal- or para-legal regulation and litigation, as well as criminal prosecution inform and change the ways we deal with images—to an ever greater and often unknown (or disavowed) extent.

Issues and topics of authorship, copyright, “intellectual property,” trademark law, privacy, human rights, testimony, constitutional law, legal history, censorship, criminology and forensics are in constant flux and change, not least due to new legal parameters of big data and AI-based control systems. The role of images and sounds in legal practice is not limited to that of evidence and proof. For their part, images and sounds can become a means of criticism, of “material” witnessing and of challenge in the spheres of law and jurisdiction.

Attending to the relationship of law and film, Orit Kamir has rendered the outlines of an emerging interdisciplinary field of study akin to the field of research and production envisioned by Terms and Conditions: “As socio-cultural formations, both law and film create meaning through storytelling, performance and ritualistic patterning, envisioning and constructing human subjects and social groups, individuals and worlds. […] Each invites participants—viewers, legal professionals, parties to legal proceedings and/or members of the public—to share its vision, logic, rhetoric and values. Law and film both demand adherence to rules and norms in exchange for order, stability, security and significance. Each facilitates—and requires—the concomitant and continuous creation of personal and collective identity, language, memory, history, mythology, social roles and a shared future. It thus stands to reason that an interdisciplinary approach to these two fields would offer lively and intriguing insights” (Kamir 2005).

Among the reasons for the ongoing engagement (and saturation) of contemporary audiovisual culture and art with elements of legal discourse (and, often enough, with the effects of regulation and coercion) is the global, cross-class and cross-generational dissemination of audiovisual means of production. This aggressive dissemination of the audiovisual is a central strategy of platform capitalism. One consequence of this strategy is the implementation of new, systematic and regulatory modes of pattern recognition, surveillance, control, etc. It is aptly referred to as platform seeing (Mackenzie & Munster 2019). Far-reaching changes in image practice are the consequence.

It has become a trivial observation that smartphone users are always also potential producers and distributors of images and sounds. As voluntary or involuntary documentarists, they can take on a role in the contexts of legal argumentation, criminal prosecution, jurisprudence, (counter)forensic investigations, the fight against police violence, etc. This is another reason why the understanding of the overlap between the visual and the law has changed fundamentally.

For the critical analysis of legal texts and institutions, however, it is crucial to acknowledge that the “legal complex” of contemporary forms of governance is multifaceted: as Nikolas Rose and Mariana Valverde noted 25 years ago, “codes, techniques, discourses and judgements of law are only one element in the assemblages that constitute our modern experience of subjectivity, responsibility, citizenship both public and private, even of rights, or of guilt and innocence. The workings of law are always intermixed with extra-legal processes and practices” (Rose & Valverde 1998).

The visual and the producers and interpreters of visual facts are at the service of law enforcement, but can also serve to question legal systems and intervene in conflicts between law and justice. Furthermore, the new ubiquity of user- (and increasingly AI-) generated audiovisual material as well as open source investigations (OSINT) and other forms of (counter)intelligence must be considered in the context of the current and ongoing transformation of the “image complex,” i.e. “the circulation channel,” i.e. “the channels of circulation through which cultural forms move […] and the discursive platforms that represent and encode them in specific modes of truth” (McLagan & Mc Kee 2012). It is not only our concept of professional news journalism that has changed for good.

This saturation of visual culture with non- (or para-)state image production and its immediate archiving has a direct impact on the forms of (documentary) film and photography as well as time-based media and photographic practices in the field of contemporary art. And while the function of the audiovisual image as evidence in (pre-)judicial proceedings attracts considerable attention in discussions about the links between law and art in the field of contemporary art, the line of inquiry could and should now be drawn even further.

In this sense, Terms and Conditions intends to extend research to the political grammar of the very “legal form” that supports and complements the capitalist (and racializing, patriarchal ) value form of “late modern proprietary regimes of recognition” (Brenna Bhandar, referring to Yevgeny Pashukanis, an early Marxist theorist of the “legal form”). It is thus concerned with the juridical basis (or legal matrix) of image operations and exposes the power relations and institutional arrangements that underlie them. The normally unnoticed substrate of power/visuality can also be understood as part of the black boxing that technological developments inevitably entail. For: “the more successful science and technology are, the more opaque and obscure they become” (Latour 1999).

A complementary task will be to identify audiovisual practices that work to challenge the juridical structures that govern the production and dissemination of images—including those strategies that ostentatiously disregard visual evidence and render images illegible or “semi-legible” (Mnookin 2014), such as in the case of the “blurring” in the photographs of Ming Smith, a visual chronicler of Black life, or in the practice of fabulated evidence as in the work of Lebanese artist Rabih Mroué.

As a rule, artists and their audiences are unaware of the legal frameworks and infrastructures that circumscribe virtually every single audiovisual act, unless such conditions and infrastructures manifest themselves, for example, as obvious cases of censorship or violations of “artistic freedom.” We would therefore be well advised to leave this state of ignorance (and thus immaturity) behind and acquire a competence that can be applied and made effective both within and outside the legal sphere in the narrower sense. This would be tantamount to empowering all those who seek to intervene in the intertwining of law and aesthetics on their own terms.

However, it must be emphasized that there is no single legal framework. Rather, we are dealing with a complex web of national laws, transnational agreements, international law European law, US law and the legislation of non-governmental organizations. This complexity (some would say confusion) is part of the problem that is paving the way to a condition that must be described as post-democratic. An important aspect of this condition are the legal ambiguities of data protection and the platform economy in general. These affect how images circulate in social media, including, for example, video conferencing as the new normal of social interaction and (artistic) presentations.

The literacy to be pursued therefore fosters a knowledge of the intricacy and complexity of the existing legal regimes that structure the use of audiovisual media platforms, archives and datasets—from copyright law to ‘terms and conditions,’ from the admissibility or non-admissibility of visual evidence in court to the legislation governing images that violate applicable law (and are therefore censored and altered by human labor or automated processes). Moreover, such literacy would enable us to better understand and thus deal with how the making, viewing, editing, searching and processing of images is affected by the rules and constraints of law and law enforcement—including the numerous exceptions and loopholes that contribute to the enormous malleability and volatility of these rules and constraints.

Contributing to the plasticity of law are the multiple interactions between legislation, legal advice, policy making (at national and transnational levels), technological development, trade regulations, economic interests, etc.; the ability to apply a ‘formalist reading’ to legal texts can therefore be a prerequisite for navigating the juridico-legal infrastructures of contemporary visual cultures.

In this context, the “’juridical moment’ in artistic production” (McLean 2010; Parsley 2022), a turn to questions of legality and jurisdiction, and a “juridical-visual activism” (Feldman 2017) in contemporary art that was initiated by conceptual practices of the late 1960s/early 1970s and has since spawned a variety of contemporary practices, can prove to be a resource to “break down the institutional constructions of art and legal worlds and offer a form of ‘resistant (in)formalism’ that takes matter and change into account and asserts convergence as a medium” (Finchett-Maddock 2019).

A combination of political, aesthetic and legal expertise achieved by means of artistic research could be brought into the context of far-reaching, intersectional political struggles against violations of human (and animal, environmental) rights, against racial profiling, against anti-Semitic violence, against the marginalization of ethnic minorities, women, non-conforming sexualities, people with disabilities, against sexualized violence, white supremacy, speciesism, climate injustice, and for decolonization, indigeneity, care, mutual aid, degrowth.

Rather than looking for a place where law can be improved and humanized, the development of radical legal education should engage with the operative power of the legal matrix to facilitate access to understanding and support abolitionist causes that aim to overcome the economy of violence that law has entailed since its inception.

Last but not least, such a radical formation of law, such a mobilization of law “from below,” will deal with the violence and injustice committed by images and image makers in times of a “visual legal dispute” (Amir 2022). For images regularly become perpetrators, images of perpetrators that belong in court. This would concern those “cruel images” (Oraib Toukan) that silence those who seek to respond to the acts of violence they depict (or the result of such acts); it would concern evidential images used to support legal claims in international politics or inscribed (and usually automated) in the algorithmic military apparatus; furthermore, it would apply to images that operate in systems of digitized law enforcement and thus literally kill (or help create the conditions for killing),

However, the study of the legal matrix of audiovisual practices and productions cannot be separated from questions of justice and the potential and actual role that such practices and productions play in the search for a just society. It is therefore crucial to combine research on the juridification of the image with a thorough elaboration of the relationship between image and justice. Law and justice may be separate spheres, but as many artists, writers, filmmakers and theorists have shown, they can and should be related to each other. In this way, practitioners in these fields can contribute to a much-needed “renewal of the socio-legal imaginary” (Grear 2013) in the face of multiple crises on a planetary scale.

Pursuing these questions further, the discussion on the juridification of the image should be complemented by “paying greater attention to the legal forms of property,” as Brenna Bhandar and Alberto Toscano have argued, in order to “problematize the unconscious character attributed to commodity exchange as a form of practical abstraction.” According to Sven Lütticken, “legal forms are consciously elaborated as real abstractions that are effective in the social world. The value form in capitalism is deeply dependent on the supposedly universal rights granted to the abstract person—in particular the right to own property” (Lütticken 2023, 241).

Undoubtedly, the legal forms that real abstraction entails (and the specific abstractions induced by law) are crucially shaped by the current bubble of Generative Artificial Intelligence (NFTs, ChatGPT, images.ai, DALL·E 2, Stable Diffusion etc.). The extent to which techno-economic development will continue to influence the juridical-ontological status of images may prove relevant in assessing the impact of the legal matrix on the practices and production of the audiovisual.

In view of this dilemma, it must be emphasized that the project does not only aim to identify and describe the legal form that organizes the “image complex.” It also recognizes what the philosopher Jean-François Lyotard called “the contradiction.”

For Lyotard, the concept of the différend is crucial in order to penetrate a realm of justice that is systematically denied and negated in legal discourse: “The différend is the unstable state and moment of language in which something that must be able to be put into sentences cannot yet be.” What is important is that the différend “includes silence” by calling up the “sentences that are possible in principle” and consequently the feeling of wordlessness. Lyotard therefore calls for “new rules for the formation and linking of propositions capable of expressing the différend revealed by the feeling, unless one wants this différend to be immediately stifled in a legal dispute and the alarm caused by the feeling to be in vain” (Lyotard 1983/1988, 13).

The “alarm” triggered by the “feeling” that legal discourse is failing and that one feels speechless in the silence that prevails beyond the legal dispute is the trigger for the “cruel image” and the techno-military-colonial visualities that execute the law but in turn generate violence beyond words. The search for new idioms of the visual that evade litigation can reveal non-committal, recalcitrant and ultimately lawless images—images that are silent rather than silencing; images that are idiomatic rather than symptomatic.

 

Objectives

For many decades, until his untimely death in 2014, Harun Farocki reflected on images and their function as documents and evidence. His research shows that image practices raise questions of power, knowledge, labor, violence, law and aesthetics. While his work was seen as an early example of a forensic approach to images, it also offers further starting points for a fundamental reflection on the legal implications of art and visual culture.

The analysis of the current accumulation of global and planetary crises cannot be separated from the attempt to understand the collapse of the regime of truth in which Western ideas of enlightenment, modernity, liberalism and democracy were once organized. Against the background of this complex of crises, the importance of the sphere of law has increased considerably. The juridification of social, economic and social realities promises more control. At the same time, it creates new actors for enforcing and observing these legal relationships.

This development towards an (over)emphasis on the law is also noticeable in the visual arts, in film and in visual culture as a whole. In order to make the functioning of the legal matrix in which images are embedded clear and comprehensible, the proposed curatorial project aims to initiate artistic research that is also aimed at “literacy,” the ability to react confidently to the volatile legal framework of artistic action and visual production.

The intertwining of legal forms and what appears as an image on the screens, on the printed page, in the spaces of contemporary art, thus becomes the subject of artistic processes and forms of knowledge, which in turn influence a general social discourse.

Largely inspired by Harun Farocki’s critique of documentary and operative images in projects on surveillance and law enforcement, the following aspects are central to the project:

a) the entanglements of contemporary visual art and film and law (from contractual practices to the forensic turn);

b) the infrastructures and forms of circulation of the law that determine the visibility (and invisibility) of images;

c) audiovisual media as used in law enforcement, court proceedings and other legal contexts;

d) images and image producers who have become influential actors in the problematization of legal frameworks in the search for a socially anchored form of justice;

e) visual / diagrammatic representations of the law in the context of—increasingly AI-supported—legal informatics

The project consists of a carefully curated sequence of small exhibitions (the “case studies”), publications, workshops and screenings. In close collaboration between the partners, the political and aesthetic urgencies of legislative and regulatory interventions in the field of contemporary image production and dissemination will be explored and mapped—including copyright issues, “rights to (one’s own) image,” contractual matters, censorship, “content moderation” etc.

The central goal is a comprehensive gain in competence among the participants and the interested public—a deeper, socially anchored and therefore empowering understanding of the legal framework under which images (artistic and otherwise) are produced, circulated, viewed, used and reused. In this way, the critical sovereignty of individuals and collectives towards (and in dealing with) laws, regulations and legal disputes is to be strengthened.

Harun Farocki Institut—April 2024

 

References

Amir, Maayan (2022), “Visual Lawfare: Evidential Imagery at the Service of Military Objectives,” Journal of Visual Culture 21, no. 2 (2022): 321–348

Bhandar, Brenna and Alberto Toscano (2015), “Race, Real Estate and Real Abstraction,” Radical Philosophy 194 (November / December 2015): 8-17

Feldman, Avi (2017), After the Law: Towards Judicial-Visual Activism, PhD dissertation, Reading School of Art 2017

Finchett-Maddock, Lucy (2019, “Forming the Legal Avant-Garde: A Theory of Art/Law,” Law, Culture and the Humanities 19, no. 2 (2019): 320–351

Kamir, Orit (2005), “Why ‘Law-and-Film’ and What Does it Actually Mean? A Perspective,” Continuum: Journal of Media & Cultural Studies 19, No. 2 (June 2005): 255–278

Lütticken, Sven (2023), Objections: Forms of Abstraction, Vol. 1 (London: Sternberg Press, 2023)

Lyotard, Jean-François (1983/1988), The Differend. Phrases in Dispute [1983], transl. Georges Van Den Abbeele (Manchester: Manchester University Press, 1988)

MacKenzie, Adrian and Anna Munster (2019), “Platform Seeing: Image Ensembles and Their Invisualities,” Theory, Culture & Society 36, no. 5 (2019): 3-22

McLagan, Meg und Yates McKee, “Introduction,” Sensible Politics. The Visual Culture of Nongovernmental Activism(New York: Zone Books, 2012), 9-28

McLean, David (2010), “The Artist’s Contract / from the Contract of Aesthetics to the Aesthetics of the Contract,” Mousse (1. September 2010), https://www.moussemagazine.it/magazine/daniel-mcclean-the-artists-contract-2010/

Mnookin, Jennifer L. (2014), “Semi-Legibility and Visual Evidence: An Initial Exploration,” Law, Culture and the Humanities 10, no. 1 (2014): 43–65

Parsley, Connal (2022), “Contemporary Art in the Aftermath of Legal Positivism: The ‘Other’ Contract Art as Material Jurisprudence,” Pólemos 16, no. 2 (2022): 247–270

Rose, Nikolas and Mariana Valverde (1998), “Governed By Law?,” Social and Legal Studies 7, no. 4 (1998): 541-551

 

Imprint: Rosa Mercedes 08: Terms and Conditions
Editor: Harun Farocki Institut

April 10th, 2024 — Rosa Mercedes / 08