Artists have long gotten away with murder, sometimes literally. After Benvenuto Cellini killed his rival, the goldsmith Pompeo de Capitaneis, in 1534, Pope Paul III—a Cellini fan—reportedly pardoned the Florentine artist, declaring that men like him “ought not to be bound by law.” In 1660 the Dutch painter Jacob van Loo stabbed a wine merchant to death during a brawl in Amsterdam, and then fled to Paris. But, as the art historians Rudolf and Margot Wittkower have noted in their vigorously researched 1963 treatise on the behavior of artists, Born Under Saturn, van Loo had no problem being elected to the Royal Academy there just two years later. His reputation as an artist was what mattered.
Artists have not only indulged in criminal behavior and then been forgiven for it, by philosophers and historians, princes and popes, they have also sometimes openly advertised it. “I do not understand laws,” Arthur Rimbaud wrote in 1873, summing up the attitude of the renegade artist. “I have no moral sense. I am a brute.”
Those lines, as well as Pope Paul’s (which Cellini shares in his autobiography), appear in Mike Kelley’s 1988 installation Pay for Your Pleasure, a long hallway lined with painted portraits of dead white men (intellectuals, artists, and the like) paired with choice quotations from them celebrating destruction, violence, and lawbreaking. It is, viewed from one angle, an indictment of the archetype of the artist as a macho man unbound by legal codes.
The installation is always shown with an artwork by a murderer, selected based on the exhibition’s location. (A painting by the serial killer turned artist John Wayne Gacy appeared in the debut.) Writing about Pay for Your Pleasure, Kelley wondered, “How can we safely access destructive forces?” and suggested that “criminals themselves, safely filtered through the media, serve the same function” as art. Gacy’s paintings, he argued, “allow us to stare safely at the forbidden.” He sets artists and criminals together, on the same level.
André Breton appears in Pay for Your Pleasure as well, alongside this infamous bit from his “Second Manifesto of Surrealism” of 1930: “The simplest Surrealist act consists of dashing down into the street, pistol in hand, and firing blindly, as fast as you can pull the trigger, into the crowd.”
This is a milestone moment: criminality explicitly proposed as a work of art.
No Surrealist ever acted on Breton’s suggestion. Nevertheless, his statement cracks open a secret history, hiding in plain sight, of artists who have not only broken laws to make their art, but have used lawbreaking itself as their medium. They have stolen artworks, robbed banks, and purchased and distributed drugs, experimenting with crime in much the same way that their contemporaries have experimented with silk screens or video. They have explored crime’s psychological effects (on both perpetrator and victim), its very definition, and its place in culture.
In 1976 the artist Ulay, then 33 and based in Berlin, drove to the Neue Nationalgalerie, stole Carl Spitzweg’s Der arme Poet (1839)—a painting much loved by Hitler—and installed it in a local Turkish family’s living room. Jörg Schmidt-Reitwein documented the action on film. The artist was arrested and faced a 36-day prison term or a 3,600 Deutsche mark fine. He fled the country. (Oddly enough, the painting was stolen again, in 1989, while on loan in Copenhagen. It has never been found.) The resulting artwork, There Is a Criminal Touch to Art (1976), provides a solid script for how the criminal art piece is usually created: the artist commits a crime, publicizes it (often with the aid of juicy documentation), and then, when the authorities swoop in, slips away.
This template (and this article) excludes acts of civil disobedience, like Pyotr Pavlensky’s setting fire to the entrance of the FSB’s headquarters in Moscow last year, or the “People’s Flag Show,” organized at the Judson Memorial Church in New York in 1970 to protest anti-desecration laws. The criminal artwork, by contrast, takes stranger forms, toward more diverse ends. The artist adopts the role of the trickster, complicating notions of both criminality and art. If politics are involved, they are approached obliquely, as in Ulay’s work, which layered critiques about German immigration policy, latent Nazism, and cultural patrimony.
In contrast to the Ulay piece, Maurizio Cattelan’s Another Fucking Readymade (1996) is, unsettlingly, free of any motivation beyond self-interest. Asked by the De Appel Arts Centre in Amsterdam that year to create work for a group show, Cattelan responded by simply purloining a Paul de Revs show—and all of the office equipment—from the nearby Galerie Bloom and exhibiting it as his own work.
The theft was a “survival tactic,” Cattelan later told curator Nancy Spector in an interview, sounding a bit like someone arrested for stealing food from a store. He had been given only two weeks to produce work for the show, he explained, but it usually takes him six months to come up with something. And so, he continued, “I took the path of least resistance. It was the quickest and easiest thing to do. Afterward, I realized that it was much more about switching one reality for another.”
After some initial outrage from the proprietors of Galerie Bloom, who called the police, the Italian artist was allowed to display his work for the first few days of the show before returning it to the gallery—an outcome that nicely highlights the special dispensation artists often enjoy when committing their crimes. And for the record, yes, Cattelan’s heist seems to have been suspiciously well orchestrated—an inside job, perhaps, or maybe a complete fabrication. Rumor and exaggeration are baked into many criminal artworks. (Cattelan did not respond to requests for an interview, though Galerie Bloom is on record as being mystified about how he pulled off the caper.)
Ulay and Cattelan are not outliers. Amazingly, there exists a whole subgenre of criminal pieces that involve stealing works, or parts of works, by other artists. In their brilliant book Lifting: Theft in Art, which accompanied a 2007 traveling show of the same name that originated at the Peacock Visual Arts Center in Abderdeen, Scotland, Gavin Morrison and Fraser Stables highlight the work of Ivan Moudov, Timm Ulrichs, and Mark Jeffrey, which also involves art thefts. (Cattelan and Ulay are explored in depth, as well, and I am indebted to the authors for their impressive research on all these artists.)
In his series “Fragments” (2002–7), Moudov presents bits of artworks he has stolen on his travels. In part, he said, the work is meant as a reaction to the lack of contemporary-art institutions in his native Bulgaria; it is an attempt to bring knowledge to his homeland. More atavistically, it is also a way for him to feel closer to the art. “I appreciate the Native American belief that when they scalp their enemies they take their power,” he said. “My situation is not exactly the same but I do think that I become stronger.”
If Cattelan’s theft was a riposte to the overproduction demanded of contemporary artists, Moudov’s project, involving the permanent alteration of artworks, represents something far more problematic. The same goes for Eva and Franco Mattes’s series “Stolen Pieces” (1995–97), which eerily mirrors Moudov’s work. For two years, the Matteses, then at the start of their careers, stole tiny pieces of famous and generally very expensive artworks on view in museums—a flake of paint from a Vasily Kandinsky, a label from the pedestal of a Jeff Koons sculpture, a bottle cap from an Ed Kienholz assemblage (their first job), and a fragment of a fragment chipped off of a Marcel Duchamp urinal.
Only in 2010—when the statute of limitations had expired for their crimes, their dealer suggested (the artists reject this)—did they show the purloined scraps, along with video and photographic documentation of their activities, as art. Franco told the critic Blake Gopnik that the series was “absolutely not vandalism. I thought it was the greatest tribute I could ever pay to these artists.” That seems a rather disingenuous statement, but it does beg the question of what crime the Matteses had actually committed. It was theft, to be sure, but they had stolen something with almost certainly no monetary value. How do you value a chip of paint from a blue-chip painting? They had committed vandalism, but it seems unlikely in most of the cases that even the most astute conservators would have spotted the damage.
Such pieces raise all sorts of philosophical questions regarding what constitutes an artwork and what constitutes a crime. The Matteses’ attention to the statute of limitations is particularly canny—some might say devious. If, after more than a decade, no one would hunt us down and prosecute us, their actions seem to argue, perhaps there was no crime at all. And that presents a frightening question: exactly how much of an artwork would they have had to steal before someone noticed?
When artworks are stolen or altered, judgments can be hazy. But other artists have made even more morally questionable choices, as Chris Burden did in his TV Hijack (1972), when, while being interviewed live on a California television station, he took the host, Phyllis Lutjeans, hostage. “Holding a knife at her throat, I threatened her life if the station stopped live transmission,” he wrote later, adding that he told her he was going to make her perform obscene acts. Interviewed in 2015, Lutjeans told a California radio station that he did no such thing. “I remember him saying. ‘Phyl, don’t worry,’ ” she said. And anyway, she knew it was art.
Some victims of criminal artwork have not taken it so well. When the filmmaker Joe Gibbons decided to rob a bank in Providence, Rhode Island, as part of a film he was shooting, he has said, he tried at first to add some levity to the situation when he slipped a note to the teller informing her about what was going on. “I tried to make it a funny note, something to get it on the news,” Gibbons told the New York Post last year. “The upsetting thing there was that the teller was jolted by the note. It really upset her.”
The teller in the next bank he robbed, this one in Manhattan’s Chinatown, however, kept her head and slipped an exploding ink-dye packet into his bag along with the money, which totaled only about $1,000. (Gibbons later said he thought it would make “a great souvenir” when he heard the packet go off.) Gibbons bragged about the action to incredulous friends; he believes he was apprehended because one of his former students turned him in.
In fact, the heist that led to his arrest was rather amateurishly executed and something of a farce—not least because Gibbons apparently deliberated for some time about whether to go through with it while standing outside of the bank, causing the battery to start to die on his video camera during the action. It was all of a piece for Gibbons, who has regularly toyed with alternate identities in his videos, trading one reality for another (à la Cattelan) and making it difficult for viewers to distinguish fact from fiction.
On the one hand, Gibbons has said that what got him “over the final hurdle was the desperation of not having any money and not having a place to stay, not having anything to eat.” On the other, he at least claimed to have been inspired by certain radical antecedents. “I read the works of Arthur Rimbaud, who essentially believed a poet had to descend into the depths of all that was bad and report back,” he told the Post. “This whole thing has been one long project about discovering the disenfranchised portions of society.”
After spending a year in jail in New York, Gibbons is, as of this writing, out of prison but on bail awaiting trial for the Rhode Island robbery. The ultimate irony—or maybe this was part of his plan all along—is that he will not be able to benefit financially from showing video that he shot during the Manhattan holdup because New York’s Son of Sam law prevents criminals from profiting in any way from their crimes. Instead, he recently exhibited some simple, subtle drawings at the Southfirst gallery in Williamsburg, Brooklyn. One shows his cafeteria tray at the prison on Rikers Island.
‘It was important that the activity include fracturing a legal code,” the late Dennis Oppenheim told Morrison and Stables, when they interviewed him for their book. He was discussing Violations (1971–72), which consists of 153 hubcaps reputedly stolen from cars in California, along with a video of the artist making off with one of them. “Fracturing” is the key word: the subtitle for the piece rather gleefully lists “Evidence of 153 misdemeanors in violation of Section 484 of the California Penal Code (Petty Theft).” But Oppenheim clearly knew it would be impossible to trace the individual hubcaps back to the cars even if the authorities came into his show, to say nothing of actually convicting him of the crime.
One could divide criminal artists into two separate camps—ones that seek to tangle up and obscure issues of causality and criminality, “fracturing” it (the Matteses, Oppenheim), and those who blatantly break the law (like Gibbons and Cattelan, even if the latter would ultimately get off the hook). David Hammons falls into the second camp, embracing crime in his 1981 performance Pissed Off, in which he urinated on Richard Serra’s soaring T.W.U. (1980) sculpture, then installed in Manhattan’s Tribeca neighborhood. Knowledge of the piece exists thanks to photos snapped by Dawoud Bey, which show Hammons taking a casual pee and then having what looks like a friendly exchange with a New York City police officer. (Whether or not he was arrested remains a matter of speculation.)
While Pissed Off has long been understood as a kind of critique of the Serra work, Hammons was also committing one of the quality-of-life offenses that have mired many minorities and lower-income city residents in the legal system (and which the de Blasio administration has sought to decriminalize). Could the work have been complete without the artist at least risking being pulled into the same system?
There are too many artworks that incorporate illegal drugs to go into here, but Rob Pruitt’s Cocaine Buffet (1998) is of particular interest, since it throws into stark relief the very real risks taken by Hammons, an African-American man committing a crime in public. It was 1998, and for a group show at artist Jennifer Bornstein’s loft, Pruitt presented a 16-foot-long line of cocaine on a mirror and invited guests to partake. Once people got snorting, it reportedly lasted for about ten minutes.
“I think that the cocaine line was also a line in the sand,” Pruitt—whose career prior to the event had been at a nadir—would later muse. “People were able to see me new again.” It was a work open to multiple interpretations—a potlatch; a bribe; a bit of critical participatory theater, as the viewers, the drug users, were forced to kneel down, supplicating themselves before the artist; and a perfect illustration of the insularity of the art world, which is the reading that seems most interesting here.
Judging from photos of the event, there was at least half an ounce of cocaine in that room, a felony punishable by one to nine years in prison under current New York State sentencing guidelines. (If there were four or more ounces, which seems like an outside possibility, it would have been a three-to-ten-year sentence.) Yet both artist and participants were apparently sure no authorities would be tipped off. At a time of increased penalties for drug offenders, it was a breathtaking assumption of privilege.
Crime is changing with technology, and so is the criminal artwork. A whole book could be written on artists who break into networks, tweak and alter digital information, and steal legally protected material, playing with notions of copyright and privacy. But technological advances are also changing crime in more unusual ways, “fracturing” legal codes, as Oppenheim put it.
Derek Frech and Aaron Flint Jamison have each produced artworks that allow people to jam various signals—radio, cellular, and Wi-Fi, among others. Using them in many countries, including the United States, is illegal. Both artists brush up against the very edge of the law, in effect placing a loaded gun in someone’s hand and letting him or her decide whether or not to use it.
New technologies are leading to tough new questions. In 2014 the Swiss artists Carmen Weisskopf and Domagoj Smoljo, who operate under the name !Mediengruppe Bitnik (and were profiled last year in ARTnews), exhibited at the Kunst Halle Sankt Gallen in Switzerland items that a shopping bot they had programmed randomly purchased on the darknet, the area of the Internet that traffics in illicit information and goods. Among the things acquired by the bot were ecstasy pills, which are illegal in that country.
In what can only be described as a glorious coincidence, the kunsthalle is located next to a police station. Had the artists committed a crime? asked Mike Power in the Guardian. Yes and no. “We are the legal owner of the drugs—we are responsible for everything the bot does, as we executed the code,” Smoljo told the paper. “But our lawyer and the Swiss constitution say art in the public interest is allowed to be free.”
The issues raised by Random Darknet Shopper (2014–), as the piece is titled, are no longer merely speculative. As year by year the world becomes increasingly dominated by complex, interlocking systems that are beyond the scope or expertise of any one individual, it is not hard to imagine an artwork that begins as a program or a process and then expands into other, untested legal territories. (Already works of bio-art have sparked legal action; the Critical Art Ensemble was hit with cease-and-desist letters for engineering materials that could kill Monsanto’s “super crops,” as Carolina Miranda has reported in these pages.) Can a work that behaves in ways that its creator did not intend still be considered an artwork, or is it something else entirely?
Richard Nixon’s old line about executive privilege—“when the president does it, that means that it is not illegal”—proposes a tempting formulation: when an artist does it, it’s not illegal. I suspect that would not satisfy artists or judges or ethicists. But this much is certain: In its most extreme manifestations, the criminal artwork places artists or viewers at risk, opening them both to the possibility of physical or emotional harm, or at the very least, the power of the state. It lays bare systems of power in ways that other art cannot, rendering them painfully visible.
Andrew Russeth is co-executive editor at ARTnews.
Update, May 23: Clarified that Eva and Franco Mattes’ dealer suggested that the statute of limitations played a role in the time of the unveiling of their work. The artists did not propose this.
A version of this story originally appeared in the Summer 2016 issue of ARTnews on page 102 under the title “When Felonies Become Form.”