Who owns Spiral Jetty?

By Felix Salmon
July 8, 2011

Greg Allen is a true polymath: he’s a filmmaker, curator, art collector, web entrepreneur and a philanthropist. He’s an artist in his own right: he likes to play with conceptual art-about-art-about-art works. He even has an MBA in finance from Wharton. And now he’s set up the Jetty Foundation, which has made a bid to lease from the state of Utah the site of Robert Smithson’s most iconic work. (And, according to Tyler Green, the Greatest Post-War Artwork in the world.)

The backstory is here; basically, the land used to be leased by the Dia Foundation, but that lease expired and now everything is up in the air. Greg explains:

In the simplest terms, I’m bidding for the lease because it seems irresponsible not to…

When I called the Department to ask to be notified if the State decided to open the lease for competitive bidding, I was told I’d be added to the list. At that moment, it occurred to me that parties other than Dia were expressing interest in the lease.

As weeks passed, with no resolution, the possibility that Dia might not automatically get a new lease grew, along with the uncertainty of Spiral Jetty‘s fate.

At the core of Greg’s bid is a pretty mind-bending three-way distinction between the artwork itself, the intellectual property it represents and the land it is made of. Here’s Greg trying to explain things to Tyler:

“I made very clear in my application letter that by creating this foundation and by pursuing this lease, we are acknowledging fully the artist’s estate as the owner of the intellectual property of the artwork and Dia as the owner of the title of the artwork (as donated by the estate). I was making no claims on any of those items. I think that’s a distinction that the state itself had not really thought through in its own process.”

Greg dryly says in his own post that he “will not speculate” on “no-doubt invigorating conceptual implications” of this idea — but I’m pretty sure that very few people other than Greg Allen would have come up with the idea that they could somehow own the Spiral Jetty without actually owning Spiral Jetty. I particularly like the way he talks in his post about “Dia’s undisputed ownership of the Spiral Jetty artwork”, as though it’s self-evidently obvious that you can separate the land comprising the object, on the one hand, and the object itself — and that they could be owned by two different entities.

Indeed, if Greg’s bid is accepted, there will be no fewer than four entities with ownership claims here: the Jetty Foundation, with the lease to the land; the state of Utah, which owns the land; the Dia Foundation, which owns the artwork; and the Smithson Estate, which owns the intellectual property rights associated with the artwork. Clear? I didn’t think so.

With more conventional art, these kinds of distinctions make no sense at all. For instance, I own William Powhida’s drawing of the market oligopoly system; he, however, owns the intellectual property and so I need his permission if I want to reproduce or sell images of it. My ownership is of the object, not the intellectual property. The object is the artwork: I could never sell the paper that the drawing sits on without selling the artwork itself.

In the case of Spiral Jetty, however, Greg seems to be asserting that what we have here is something closer to architecture, where a building can be owned by one person and the land underneath it by another. (Unsurprisingly, this is not good news when it comes to property values.)

But in the case of lend-lease buildings, the lease on the land is, as a rule, held by the owner of the building. It takes a former investment banker like Greg Allen to come up with the idea that the leaseholder could be different from the owner of the building, with all the “invigorating conceptual implications” that implies.

And of course there are big differences between Spiral Jetty and a piece of architecture. Spiral Jetty is the land: it doesn’t just sit atop the land. (Indeed, right now, it’s under water.) When Smithson made the work, what he was doing was pretty simple, conceptually speaking: he took a piece of Utah, and made it art.

Today, Spiral Jetty is still art and it’s still a part of Utah. But art is big business and big money now and Spiral Jetty has become both valuable and politicized. A large part of the subtext to Greg’s bid is that the Dia Foundation has done a bad job of handling local Utah politics and that a Jetty Foundation would be significantly better at that kind of thing than Dia is.

But the Jetty Foundation’s interests are not fully aligned with Dia’s. For one thing, of course, they’re bidding against each other to lease the land. And then there’s this, from Greg’s post:

Should the State decide to award Dia a new lease on the site, I would hope that the Foundation’s role will be constructive and catalytic in bringing the importance of site and local engagement to the fore for the decades ahead.

This is a clear statement that the Jetty Foundation will continue to exist even if it doesn’t get the lease and ends up with no right to anything. Greg has created a pressure group, basically, and one of the entities that the group exists to pressure is the Dia Foundation.

I can’t imagine that Dia will be overjoyed by Greg’s arrival on the scene, or thanking him profusely for taking on the burden of dealing with local Utah politics. Instead, I’m quite sure they’re hoping fervently that they will be re-awarded the lease to the site and that the Jetty Foundation will then wither quietly away. That solution is still the easiest and most obvious one. And it would surely create fewer tensions on the site than awarding the land to a foundation which Dia neither controls nor approves of.

4 comments

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This brings back memories. I had a print of the spiral jetty, circa 1980, that I received at an art exhibit at Cornell University at around that time. As a young professional, I kept the print in my office, a security defense engineering facility, until it was stolen one day after hours. So much for the secure part of that facility.

Posted by Curmudgeon | Report as abusive

While I differ in how I’d characterize The Jetty Foundation’s mission, I applaud and and a bit envious of your analysis here, Felix.

That said, I’d also point out that the distinction between the Spiral Jetty artwork and the land under it is not mine, or not originally mine. In first reporting on the expiration of Dia’s lease, Glen Warchol at the SL Tribune noted that the standard language of Utah’s Dept of Natural Resources lease calling for the removal of “any improvements” within 90 days could apply to the Jetty.

http://www.sltrib.com/sltrib/news/519700 92-78/dia-jetty-lease-spiral.html.csp

Setting aside the IP aspects of artwork, which are fairly universal, there are other instruments like certificates of authenticity that can come into play with conceptual or other contemporary work. But these have economic impact. You can’t sell a Flavin without the certificate, but the Flavin Estate can and does refabricate any work it wants to for exhibition anytime.

Spiral Jetty is unique as an Earthwork inextricably tied to its site, which happens to be sovereign state land, but it has long since been removed from the market by virtue of its entry into Dia, a non-profit’s collection. So I guess my biggest issue here is keeping a distinction between ownership and stewardship. The Jetty Foundation’s mission is the latter, not the former.

Posted by gregorg | Report as abusive

Lewis Carroll got there 150 years ago.

Alice was walking beside the White Knight in Looking Glass Land.

“You are sad.” the Knight said in an anxious tone: “let me sing you a song to comfort you.”

“Is it very long?” Alice asked, for she had heard a good deal of poetry that day.

“It’s long.” said the Knight, “but it’s very, very beautiful. Everybody that hears me sing it -
either it brings tears to their eyes, or else -”

“Or else what?” said Alice, for the Knight had made a sudden pause.

“Or else it doesn’t, you know. The name of the song is called ‘Haddocks’ Eyes.’”

“Oh, that’s the name of the song, is it?” Alice said, trying to feel interested.

“No, you don’t understand,” the Knight said, looking a little vexed. “That’s what the name
is called. The name really is ‘The Aged, Aged Man.’”

“Then I ought to have said ‘That’s what the song is called’?” Alice corrected herself.

“No you oughtn’t: that’s another thing. The song is called ‘Ways and Means’ but that’s only
what it’s called, you know!”

“Well, what is the song then?” said Alice, who was by this time completely bewildered.

“I was coming to that,” the Knight said. “The song really is ‘A-sitting On a Gate’: and the
tune’s my own invention.”

Posted by FosterBoondog | Report as abusive

Felix,

You need to spend some time talking to a dirt lawyer before you write these pieces.

The splitting up of land ownership akin to medieval “how many angels can fit on the head of a pin” acrobatics has a long history. What this investment banker is doing is nothing new. It only seems new to you. A good example is Rockefeller Center or the Chrysler Building. Both buildings sit on leased land (Columbia U. owns the RC land and Cooper Union the Chrysler land) but no one thinks that those institutions get to control the IP associated with those landmarks unless somewhere in the actual ground leases those rights are given to the landlord vs. the leaseholder.

The ultimate division of rights under the lease will govern what the Jetty Foundation can do with the Spiral Jetty. Utah can’t grant rights to the lessee it doesn’t have a right to grant (mineral and water rights are a great example out West – often those rights are separated from the actual possessor of the land). Perhaps they will build a swanky desert tent camp for visitors. Perhaps they will be allowed to charge for admission (with Utah getting a cut). The right to control access to a property is valuable and in this case certainly worth bidding for (though one wonders how many actual visitors there would be even if the site gets amenities that would make it more amenable to visitors a la Marfa).

Sometimes you come off as the greenest cub reporter. You don’t have to speculate when discussing this when a 30 minute call to a competent real estate attorney in Utah would have educated you fully on what the possibilities are here.

Posted by Sad_Oligarch | Report as abusive