Animal rights and artistic freedom

Recently, it was reported in the news that the director of the Trapholt Modern Art Museum in Denmark had been prosecuted for cruelty to animals.  The prosecution related to the exhibition of an artwork by Marco Evaristti, which featured a live goldfish swimming in water in a blender. Visitors to the Museum were invited to switch the blender on and liquefy the fish.  The artist said he wanted to force people to "do battle with their conscience" and this, presumably, was the point of the artwork.  The Museum Director, Peter Meyer, vigorously defended his case on the basis of artistic freedom.  Ultimately, he was successful but on the basis that the fish was killed instantly and therefore it was not cruel.

As this case raises many thorny questions about the intersection of animal rights and artistic freedom, Arts Law decided to approach performance artist Mike Parr and ethicist Simon Longstaff for comment.

Simon Longstaff

Recent controversy has surrounded the creation of an installation inviting people to pulverise a live goldfish in a blender; all of this done in the name of ‘art’.  To date, the most common response to critics of this practice – in particular to those who condemn the act as cruelty to an animal – has been to invoke the principle of freedom of artistic expression.  How might we respond?

The artist, Marco Evaristti, who placed the goldfish in the blender evidently thinks that goldfish have some ethical status – that they cannot be disposed of with indifference.  We can see this by understanding the purpose of Evaristti’s installation, designed to force people to “do battle with their conscience”.  This can only be achieved if you assume goldfish to count for enough to trigger contemplation of one’s conscience.

It therefore seems that Evaristti has a serious purpose in his art.  As such, it might be argued that it ranks alongside other ‘non-trivial’ reasons that some people accept as justifying the killing of other animals (e.g. for food, clothing, medical research etc.)  Of course, not everybody accepts such reasons as being ‘good enough’ to offset the wrong that they see in the use of other creatures for our benefit.  That is, some people wish to extend full dignity to all (or at least some) other creatures in a way that would make it just as wrong to use them merely as means to an end as it would be to do the same to a human being.

Defenders of Evaristti’s work may wish to by-pass such discussion by making the claim that there are no rules for art; that anything done in the name of art is to be allowed (free from the usual critique offered from an ethical position).  It seems to me that this is an untenable position – surely there must be limits.  As a colleague asked, “what if it was a human baby in the blender?”  Our revulsion to the thought of sacrificing a child for ‘art’ is not based on any belief that it would merely be illegal to do so.  The matter goes deeper than this.

Evaristti’s best response is therefore to argue that his art was conceived within ethical boundaries and that these allowed, on balance, the killing of goldfish as an acceptable cost (to the goldfish and the universe) in return for the opportunity to engage the conscience of gallery-goers.  “Yes”, Evaristti might say, “goldfish do count for something – but not that much!”

Unfortunately for Evaristti, his art is compromised by the possibility that those choosing to ‘press the button’ (and blend the fish) proceed to do so without any thought at all.  Indeed, it could be that nobody seeing the predicament of the fish is caused to engage their conscience – even for a moment.  Let’s assume that those who kill goldfish in blenders do so without a moment’s reflection or hesitation.  In these circumstances, has the art failed in its own terms?  Was the death of the fish the waste of a piscine life?

Dr Simon Longstaff is Executive Director of St James Ethics Centre.

Mike Parr

It’s not easy to formulate a clear response to Marco Evaristti’s work, because the issues it raises are very complex. As I understand it, the work was a kind of proposition. One goldfish was put on display in a blender and it was made plain to the audience that they could choose to liquefy the fish by pushing a button. The work’s “realism” needs to leave open the possibility that someone might do just that.

On two occasions the button was pushed and the fish was liquefied. Maybe the button was pushed by someone very concerned with animal rights, because sacrificing fish in these circumstances obviously raises the possibility of outraged debate and lots of media attention and this is exactly what has happened. Even if the button was pushed by someone unconcerned with the plight of the fish the work’s consequence remains the same, so in a way it really doesn’t matter who pushed the button. Of course, calculation like this leaves out entirely how the fish might feel and this disregard for the feelings of animals will be taken by many people as the real problem of the work.

We can order fish live in restaurants and wait in anticipation of the meal. I have the feeling that most people accept the killing of animals for food. Peter Singer refers to improvements in the conditions of animals in factory farms and scientific laboratories as an example of what the animal rights movement can achieve. Last year 10 billion birds and mammals were slaughtered for food in the US alone and overwhelmingly these animals were factory farmed. Singer also tells us that factory farms in the US confine egg laying hens for life, in an area one half that of a sheet of quarto paper. Slaughterhouses in the US routinely skin and dismember animals while they are still conscious.

Trying to put Marco Evaristti’s work in context in this way will not dispel some people’s doubts, because artworks are privileged and artists are egotists. I suppose the suspicion is that this work is more about art than it is about animals and that there is something ruthless in the dispassionate way it uses both the fish and the audience. On the other hand, a refined artlover might chose not to press the button, while hoping that someone would, because an unwitting proxy may well be the most convenient way of starting the debate i.e. of raising the rights of animals and the limits of art. In every respect, the work relies so completely on the audience that it’s very hard to attribute responsibility. The audience could have “policed” the work, but then the plight of animals doesn’t normally entail that kind of concern, because the management of art and animals is normally left to professionals.

This work assumes then that people normally experience artworks passively and it is interesting that the work only became an issue after the button was pushed. The issue of convenience and the sanctity of art lurk in the background, because the work does not merely “stay in place”, as some kind of picture or representation, rather this piece requires that “we do something”.

Mike Parr is a well known Sydney based visual artist

Legal analysis

Simon Etherington

We have also prepared this analysis of how Marco Evaristti’s artwork would fare under Australian law:

Legislation around Australia prohibits cruelty to animals.  The legislation varies in each State.  A typical definition of an act of cruelty is to ill-treat or unreasonably, unnecessarily or unjustifiably beat, kick, wound, mutilate, abuse, torture or terrify an animal.  The emphasis is on preventing animals from suffering “unnecessary pain”.  Except in NSW, it is legal to kill animals without any reason, provided it is relatively painless.  In NSW you must have some reason or justification for killing an animal.  The statutes generally contain lots of other more specific offences relating to laying baits, docking horse tails, conducting scientific experiments, debarking dogs, making animals work when they are unfit and neglecting to properly care for and feed animals, among other things. 

Australian legislation takes a ‘utilitarian’ approach to animal protection as opposed to an ‘animal rights’ view.  Utilitarianism is about minimising harm and maximising good.  To this end, the rights of individuals may be subordinated to the overall benefit of the community.  In animal protection legislation this means that animal life is not seen as having any inherent value and animals have no right to life or good treatment where the benefits of ill-treating them exceed the harm that is caused by the ill-treatment.

The critical question then becomes ‘When is it “unreasonable”, “unnecessary” or “unjustifiable” to harm animals?’  Usually reports of decisions in previous cases help lawyers to interpret what words like these mean.  However, perhaps because animal cruelty is not viewed as seriously by the justice system as other crimes, there are very few reported decisions in this area. 

Andrew Wozniak, a solicitor and also President of RSPCA NSW, was involved in one of the only animal cruelty cases that went all the way to the NSW Court of Appeal.  He suggests that these terms will have their “ordinary, commonsense” meanings.  These meanings change over time in line with community values.  What may have been acceptable 50 years would be viewed as barbaric and unacceptable now.  Mr Wozniak also pointed out that what is reasonable or necessary will depend on all the circumstances.  For instance it is reasonable to feed and water stock less in times of drought.  But it would probably be illegal to stage a goldfish swallowing contest at the local pub. 

In a Canadian case involving the harming of an animal in the name of art, the court did not hesitate to convict the defendants.  In that case two art students had very cruelly tortured and finally killed a cat.  They video-taped what they did and when they were prosecuted the students said they had made the video as an artwork.  In their defence, the students’ lawyer also cited a video they had previously submitted at College which depicted them catching, killing, cooking and then eating a chicken, and for which they had received an ‘A’ grade.  Just the same, given the horrific circumstances of that case, and the dubiousness of their claims, the court sentenced each of the defendants to go to prison. 

It remains to be seen how a court would respond to an artist, like Marco Evaristti, who kills a goldfish as part of a ‘serious’ art work and who claims this is a legitimate exercise of freedom of artistic expression.  Certainly, artists receive no special treatment under the legislation.  Nor is their any defence of ‘artistic merit’. What’s more, Australian law does not guarantee any of us freedom of expression – artistic or otherwise.  Indeed, the law circumscribes free expression in many ways – including by censorship and obscenity laws, copyright law and defamation.  For these reasons, it seems likely that a court would interpret the legislation in a way that will give effect to its aim of promoting animal welfare. 

Ultimately, it will come down to what the judge on the day considers “unreasonable” or “unjustifiable”.  However, if an artist cannot show that they have a sound explanation for why they are killing or harming an animal – and this would have to include them showing why alternative means were not viable – they are exposing themselves to criminal conviction.

Simon Etherington is a former Arts Law Legal Officer.

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