The Second Circuit Defines "Interactive" Digital Radio

This is a legal article adapted from a presentation I gave to the Copyright and Literary Property Committee of the NYC Bar on October 21, 2009. It's a little lengthy for a blog post, so here's a link to the article, and to the court decision discussed in it. It is also viewable through my firm's website.

Stuart Sherman = Stuart Sherman as Stuart Sherman → Stuart Sherman

The following is an essay I recently wrote for a catalogue accompanying a recently-closed exhibition entitled Stuart Sherman: Nothing Up My Sleeve, curated by Jonathan Berger at PARTICIPANT Inc. Gallery, 253 East Houston Street, NYC, running November 8 - December 20, 2009. See recent Art In America piece. (I am also - not so incidentally - the executor of Stuart Sherman's estate.)

I.

If you ever asked Stuart Sherman who “influenced” him, you’d get a boring answer, because it’s a boring question. He had a stock answer ready, anyway, of course: Magritte. I’m sure that was a good enough answer for most of the people who asked him that question, but I always thought he was just trying to be polite to them. I found that I got a better answer if I simply asked him whose work he liked, and sometimes an even better answer – a surprising one – when I asked him whose work he didn’t like. For instance, his frank distaste for Marcel Duchamp interested me a lot more than his claimed affinity for Magritte. It meant I had to think a lot harder about both Duchamp and Magritte, and even harder about Stuart himself.

One reason I believe Stuart and I became friends and (luckily) remained so until he died was that although he was reasonably sure that I liked and engaged his work on its own terms, he was also fully aware that the longer and deeper my familiarity with his work grew, the less confident I was in characterizing how it worked, or why, in any generalized way, it did. The more I knew the less I understood it, because what would “understanding” it amount to? You can give anyone who has never seen any of Stuart’s work a vague sense of its effect (or “affect,” as Stuart would punningly interject) by describing a handful of his devices and motifs. But that’s no more than the ring on a coffee table left when some slob misses the coaster. You could almost say Stuart’s “career” was a series of such seemingly-accidental precipitates, look right enough in saying that much, and be completely wrong.

Stuart was a lot more trouble for all of us than that – and for himself, for that matter – because he never had a career. He was an Artist. Capital “A,” like it or lump it, and your relationship with his work shifted accordingly, or you didn’t have one. His work comprised an entire cosmology, not just some narrow range of recondite obsessions. It was a universe he mapped obsessively and tirelessly – every single day of his life. Accordingly, for someone with a well-earned reputation for self-effacing kindness and generosity, there was nothing really self-effacing about him. He knew the Deal: He was an Artist. In this world, he could declare bankruptcy (which he did, at least twice), get a grant out of the blue and spend it all making more videos. He didn’t have a career; he had daily urgent duties: “Quotidian,” as he named his erstwhile production rubric and briefly self-published magazine. Quotidian was not to say workaday; it was life snatched from creeping disorder and disaster like dialysis or insulin shots. He also knew that any number of people who thought they were Artists, too, were not. More power to them if they meant well, he might say, but they didn’t have similarly urgent assignments in their in-boxes. He rarely had reason or occasion to make that sort of distinction aloud, but if anything could be a core belief for him, I’m reasonably certain that was one.

II.

One of the most interesting conversations I ever had with Stuart about his work was also one of the last few times we met. In his last years, he was traveling most of the time while subletting his New York apartment all year round, mostly emptied of his work by then (except for one closet crammed to the top, as I discovered posthumously). When Stuart was back in New York, we would meet for lunch. When he came for dinner, he always brought a small gift. After I had my first child, the gift would be for my son.

On one of these latter occasions, I mentioned that his work often reminded me of something I’d seen in an elementary school math textbook when I was very young – in an obscure introductory section that students never bothered to look at – describing the Properties of Equality. One of them was the “Reflexive Property”:

If a = a, then a = a.

I remembered wondering what possible use such a simple-minded principle could have. And then there was the “Symmetric Property”:

If a = b, then b = a.

Only slightly more useful. Then there was the third in the series, which was called the “Transitive Property”:

If a = b, and b = c, then a = c.

Well, useful enough, but that’s all.

Twenty odd years after grade school, however, Stuart Sherman’s work brought those “obvious” principles to my mind in a different way. As soon as I mentioned the Transitive Property of Equality to Stuart, he lighted right up. “I never thought anyone ever noticed that!” he exclaimed.

What if you were that rare – or even unique – someone for whom the “=” sign was in no way a reassuring indicator that the universe ever evens out? What if causing a to equal b was your job? And it was a struggle? What if it was really difficult to make a equal a, let alone equal b and equal c, too? And at the same time, what if the risk of failing to make them so – and failing to demonstrate that necessity to others – brought its own kind of existential dread for you? Stuart began each piece with no givens: as if the equivalence or equality between a, b and c was something that had to be theorized, diagrammed, constructed, proven, and won, constantly.

You can visualize this dilemma on your own.

Pick up a blank white letter-sized piece of paper. Attune yourself to the fact that you are holding and viewing, not only the said object, but also a legion of demons possessing it at the same time – including, but not limited to, (1) the name of the object, (2) the image of the object, (3) the name of the image, (4) the color of the object, (5) the shape of the object, (6) the function of the object, (7) the name of the function, (8) the image of the color and shape, and (9) the names of the color and shape – and that any of these can be substituted for, and function in the place of, any of the others. Or that the chain of associations can be broken down into separate parts, each of which may function independently. A = a = a.

Turn the piece of paper face toward you, holding it horizontally. This is a movie screen upon which is being projected a film called White Rectangle that plays continuously. A = b = a.

Keep holding the page. You are looking through a window. Since what’s visible through the window is completely white, either you are inside a room looking through the window at blinding sunlight outside, or you are outside in the night looking through this window into a room with lights on so bright you can’t make out any details. Perhaps the room inside the window is actually a movie theater you want to get into, and the movie you want to see is visible through the window as the film is projected inside the theater. The movie is called White Rectangle. The paper you are holding is your ticket for this movie. When the usher tears the ticket in two to let you in, the movie ends. A = b = c = b = a.

Welcome to Stuart’s universe. And yours.