Contractual Performance, Labor & the Art of Life

An extract from a 2014 conference paper, most of which has been rewritten into draft chapters for Infrastructures of Uncommon Forms. But reminded of it, posted here, for Kesha. (Scroll down for the video performance.)

… “the art of life” is a phrase used by the English mathematician Alfred North Whitehead in the early twentieth century to, in a sense, displace the juxtaposition between the two historical schema of evolutionary biology and physics, as expressed through the temporal orders of ‘natural selection’ and the ‘second law of thermodynamics.’ Whitehead contends that “the function of reason is to promote the art of life,” in a move that is as deeply rationalist as it is mythic. But what interests me is the way in which this concept links to Whitehead’s development, along with Betrand Russell, of a system of notation that is significant to the technical development of automation, robotics, interactive machines.

Leaving aside Whitehead, Marx and Holmes, the point, simply put, is that choreography is the experimental field of precisely these questions. The emergence of choreography as a discrete practice, its history in relation to copyright laws, and indeed the very sense that the chorό (the dance) could be distinguished from and linked to a notational system, the grάphos, draws together these three domains of contract law, political economy, and mathematics. That history is a well-rehearsed one, but some of its specifics bear repeating in light of the above.

In 1892, in the famous legal case of Fuller v Bemis, the judge found against Loie Fuller’s copyright claim over the Serpentine Dance. The performance and the case are often situated as pivotal to the emergence of modern dance. The use of yards of silk fabric and lighting effects emphasised performance as the dynamic, kinaesthetic enactment of forms. As others have pointed out, the Fuller v Bemis case also illustrates the ways in which the proprietary claim over the performance of this dance—and indeed modern dance itself—were staked in the contested contractual margin between the properties of whiteness and women as property.

While Fuller had become famous in Europe for performing the Serpentine Dance, her work in New York was routinely dependent on male managers and producers with whom she had contracted and, as was routine, according to which it was possible for them to sell or lease her on to other theatres. Fuller had been refusing to honour such transfers—her circulation between men, as it were—unless she had signed the contract herself. Her regard for the work of performance as work extended to describing her own circulation through various theatres by way of a range of contracts as “migrations of personality,” and they were movements she insisted on having a role in deciding through formal contracts. In any case, it was one of these contractual disputes which led to her to bring a suit against the chorus girl Minnie Renwood Bemis, in what we now know of as the case of Fuller v Bemis. Fuller had been replaced by Bemis during an argument over whether a producer had fulfilled the contractual stipulations regarding billing for the Serpentine Dance.

If Fuller had insisted on contractual authorship in New York, the Serpentine Dance itself nevertheless alluded to both the skirt dancing of music hall and vaudeville, and, as Fuller herself and others had suggested in varying accounts, to ‘Nautch dancing’ (the colonialist term for Indian dance) that was part of the Orientalist repertoire of English theatres while Fuller was in London. Fuller herself had remarked that the costume she used in the Serpentine Dance was “an old Hindoo costume” given to her by a British officer who hade served in India; on another occasion that it was a costume that had been used in an Oriental production at London’s Savoy Theatre.

Fuller’s contractual claim in New York, in other words, was not only directed toward difficult negotiations with theatre producers and the interchangeability that organises competitive strata within discrete labour markets. It also sought, but failed to, as Anthea Kraut and others have argued, to distance the Serpentine Dance from “the sexualized, laboring bodies of the variety stage” while simultaneously trading in the exoticism that passes for novelty within the formal market, that is: the bleaching of otherwise racial/gendered performance, so as to make its circulation possible through systems of contractual authorship and proprietary arrangements. Appropriation, of course, underwrites proprietary forms.

In bringing the suit, Fuller had contended that the Serpentine Dance was a “dramatic composition” and was therefore subject to copyright. Yet the judge dismissed the claim on the grounds that the suit described “merely mechanical movements by which effects are produced on the stage.”

The judge ruled that:

An examination of the description of complainant’s dance, as filed for copyright, shows that the end sought for and accomplished was solely the devising of a series of graceful movements, combined with an attractive arrangement of dra­pery, lights, and shadows, telling no story, portraying no character, depicting no emotion.

It was not until 1972 that choreographed works would be covered by copyright. The condition of this was, first, the development of systems of notation, such as Kinetography Laban, Laban Movement Analysis, Labanotation, and so on. And, secondly, the effective reversal of the judge’s decision in Fuller v Bemis by Justice Oliver Wendell Holmes in his 1911 ruling on Kalem Company v. Harper Brothers. The matter of Kalem v Harper was a film version of ‘Ben Hur’. Holmes ruled that

Drama may be achieved by action as well as by speech. Action can tell a story, display all the most vivid relations between men, and depict every kind of human emotion, without the aid of a word.

And so, citing both Fuller v Bemis and Kalem v Harper, in 1961, a judicial review of patents, trademarks, and copyrights announced that “a dance which portrays character or depicts an emotion may also qualify as a dramatic composition” —thus setting the groundwork for the inclusion of choreography in copyright law.

But while the story of Fuller v Bemis and choreography more generally has many dimensions, it nevertheless also underlines the significance of performance to the traversal of the distinction between body and machine through the development of a notational system and performance indices derived from Plato’s theory of forms. For Rudolf Laban, the five regular polyhedra, otherwise known as Platonic solids, were the scaffolding for a notational system plotting dance movements within what he called a kinesphere, namely: that “space which can be reached by easily extended limbs.”

Laban, of course, is a highly controversial figure. Choreographer of the Gemeinschaftstanz, the “moving [mass] choirs” that would become the emblematic performance of German national identity in kinaesthetic form. Head of the Department of German Dance Theatres in the Reich Chamber of Culture. And, an ardent supporter of (in his words) “the great tasks of our Volk” and Fuhrer, right up until he lost favour with Goebbels over the choreography for the 1936 Olympic ceremony. The question of whether Laban was ‘really’ a national socialist or not is irrelevant. Performatively speaking, he was. Laban, perhaps, saw it rather differently. For him, the movements of the body were the outward expressions of an interior will, though in typically Fordist managerialist practice he meant the will and consciousness of the choreographer and not quite the dancers in the “moving [mass] choir.”

Perhaps, then, the question is not how to ground the performative in something other than the materiality of its enactments. For Werner Hamacher, the aformative (rather than the performative) is

stripped of its subjectivity as well as of its normative or regulative forms: it is not performative in the sense of the fulfillment of an assumed or conventional form of action, but rather an opening up to possible forms, thus ad-formative; a dissolution of sedimented forms, aformative; and, thirdly, a conjuring of that impossibility of form that is the absence of language, afformative.

There are problems with Hamacher’s formulation of the contract and the promise. Still, here, by way of comparison, is another part of the judge’s ruling in Fuller v Bemis, an index of failure but perhaps also a way to characterise disaffection as the aformative strike, beyond any question of will or intention, in the experimental field of performance:

The merely mechanical movements by which effects are produced on the stage are not subjects of copyright where they convey no ideas whose arrangement makes up a dramatic composition. Surely those described and practiced here convey, and were devised to convey, to the spectator, no other idea than that a comely woman is illustrating the poetry of motion in a singularly graceful fashion. Such an idea may be pleasing, but it can hardly be called dramatic.


This is an extract from a conference paper, “Contractual Performance, Labor & the Art of Life,” Living Labor: Marxism and Performance Studies Conference. Beyond Marxism and Performance Studies: a closing plenary session convened in honor of ST Collective Member José Esteban Muñoz. New York University, Sunday, April 13, 2014.

Aren Aizura kindly stepped in for its performance. This is a video of the session:



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