Ephemerаl аrt, for example ice sculptures, temporаry instаllаtions, or lаnd аrt mаde from leаves, sand, or rocks, is designed to decаy or disаppeаr. Similаrly, performаnce аrt exists primаrily in the moment of its execution.
The way in which copyright can apply to ephemeral works and performance art depends on the jurisdiction. In legal systems that require , an ephemeral or live work may not be protected unless and until it is captured in a stable form. In systems that do not require fixation, the work can be protected from the moment it is created or performed, even without ever being recorded. In practice, however, protection is difficult to enforce without some record of what was created, since proving authorship and infringement generally requires evidence of what the work actually was.
Any photographs, videos, audio recordings, or written descriptions made to document the ephemeral work are, themselves, fixed works. Those works are, in their own right, also protected by copyright.
The copyright in this documentation usually belongs to whoever created it. If the artist therefore takes the photographs or writes the instructions, then the artist will own the copyright to the documentation as well as whatever rights they may hold in the underlying work. This lets the artist control how the documentation is reproduced and distributed, and gives the artist better control over the legacy and commercial life of their ephemeral work.
If the artist does not own a particular photograph of their ephemeral work—for example, because someone else took it—then the artist generally needs permission from the owner of the photograph to use it, even though it features the artist’s own work. Documenting a live, three-dimensional, or temporary piece almost always involves creative choices, such as angle, timing, or framing, so the resulting photograph is typically its own separate, copyrighted work.
Conversely, the photographer of the ephemeral work generally cannot reproduce and sell the photo without the artist’s approval either, as that would infringe on the reproduction rights tied to the ephemeral work.
Read more on our sections on Reproduction Rights and on Photography of Artworks.
A well-known example is Marina Abramović’s performance The Artist Is Present (2010, Museum of Modern Art, New York). For three months, Abramović sat silently at a table while visitors were invited to sit opposite her, sharing a wordless, deeply emotional exchange. The performance itself was ephemeral since this experience existed only in real time. Yet its enduring impact and legal identity are secured through documentation. The iconic photographs of the artist and participants, the documentary film about the event, and Abramović’s written performance parameters all constitute distinct, fixed works protected by copyright. These records can be licensed for books, films, and exhibitions, illustrating how documentation transforms a fleeting act into a lasting, protectable piece of intellectual property.
For more information about this, explore our pages on Ephemeral Art and Incidental Works.
Image credit: TRAVELARIUM