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.

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