The Incoming Tide and its Relation to Copyright: Jim Denevan’s Ephemeral Creations

“Time and tide wait for no man”, Geoffrey Chaucer is reputed to have said back in the 14^th century (although versions of the saying predate Chaucer). King Canute proved the truth of this parable in his unsuccessful attempt to command the tide to recede. All he got was wet feet—although he apparently didn’t really believe he could stop the tide but rather was trying to demonstrate to his nobles the limited power of kings. In this, he evidently succeeded. The tide tables continue to be a welcome element of stability and predictability in an unstable and uncertain world. We rely on them to time boat launchings, decide when we should go fishing and, in the case of sand artist Jim Denevan, to know how much time he has left to work on his sand sculptures and when, precisely, his artistic creations will be inundated and obliterated for all time.

According to a CBC report on Denevan’s work at Tofino’s Chesterman Beach on the rugged west coast of Vancouver Island, he takes a philosophical approach to the immutable power of the tides, saying that it is a good life lesson because nothing is permanent. On July 9, at 9:30 p.m. the incoming tide washed out four months of planning and preparation and over a week of work, the designing, digging, etching and creation of an amazing geometric installation in the sand of Chesterman Beach. Chesterman was chosen because, unlike many beaches where the force of nature exerts its presence twice a day, this beach has a berm that is breached only when a king tide comes in. As it did on July 9.

Denevan has created sand installations in many locations, some on dry land, others on beaches. He has worked in various parts of the US (where there is sand, either beach or desert), Saudi Arabia, the UAE, Australia and Canada. His works are massive—and ephemeral by intent. The Tofino installation was of awe-inspiring scope, a full kilometer in length with a width of 200 metres, as you can see from the photos. Clearly a work of that scope requires some serious advance design work, not to mention a healthy dose of physical labour to dig and etch carefully, symmetrically and in straight lines. Under normal circumstances, a finished work of art like this would be protected by copyright, allowing Denevan to exert control over reproductions. But if you go to Chesterman Beach today you will find no trace of Denevan’s work. Nature has seen to that. Yet, because of the partnership with his son, drone photographer Brighton Denevan, Jim Denevan has a physical record of what he has produced, and through Brighton is able to protect reproductions of the work, and to monetize them if he wishes. That, however, is not his intent.

Denevan’s business model does not depend on licensing reproductions of his work; instead he accepts commissions to create them (although the Tofino work was a labour of love). As a result, he does not sell photos of his artwork (Brighton freely gave me permission to use the photo in this blog) if he controls the rights. When accepting a commission under US law he would normally be creating a “work for hire” where the commissioning entity owns the copyright, but Jim has been careful to keep the copyright and limit the use of the reproductions through contract. For example, his sand sculptures have been used in advertising (where he has permitted authorized limited time reproductions to be used on billboards or for video ads) or as ephemeral cultural manifestations, as in the case of his massive sand sculpture in Saudi Arabia (“Angle of Repose”) for the DesertX 2022, AIUla art exhibition. Actually, Denevan’s main line of business is the bespoke mass dining experience known as “Outstanding in the Field”, which he founded some 30 years ago. The commercial success of this endeavour allows him to explore his interest in ephemeral art and to undertake projects out of interest rather than financial return. Thus, Denevan’s only compensation for his Tofino project was seeing the work unfold, and then seeing it disappear under the incoming tide a few days later.

This brings me back to the question of whether ephemeral art can qualify for copyright protection. A photograph is the easiest way to convert an ephemeral work into something more concrete or “fixed”. The need for a physical manifestation of the work arises from the requirement for a copyrighted work to be “fixed” in some medium for it to qualify for protection, at least under US copyright law. Sand on a beach doesn’t appear to qualify under US law as a medium for fixation (although it might under British copyright law where the medium of fixation is less important, an issue I will explore in a future post). A photograph, however, does.

I wrote about the various dimensions of this issue a couple of years ago in a blog post, (“My Fixation with Fixation”). It is not only sand art creations that face this problem. It applies to any creative work that is transitory, such as ice sculptures, cake decorations, fireworks displays etc. Because copyright laws vary between countries, while generally following common principles, the fixation issue leaves plenty of room for discussion. The overarching international treaty that sets the principles and minimum standards for copyright protection for its members, the Berne Convention (to date, 181 members, just about every jurisdiction in the world), prescribes fixation but not its form. The Convention states (Article 2 (2)) that:

“it shall [ ] be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form.”

But the Convention leaves to each member state to decide the means of fixation. In the United States, to cite the US Copyright Office;

“To be copyrightable, a work of authorship must be “fixed in any tangible medium of expression, now known or later developed, from which [it] can be perceived, reproduced, or otherwise communicated, either directly or indirectly with the aid of a machine or device.” 17 U.S.C. § 102(a) “…and the work must be sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” 17 U.S.C. § 101 (definition of “fixed”).

The Office goes on to add that, “if the work or the medium of expression only exists for a transitory period of time, if the work or the medium is constantly changing, or if the medium does not allow the specific elements of the work to be perceived, reproduced, or otherwise communicated in a consistent and uniform manner”, it may not be protected.

But what is “transitory”? Denevan’s sculpture on Chesterman Beach lasted for 9 days as it evolved. Fixation does not mean permanence. After all, what is “permanent”? Ask Ozymandius. A wood carving, a sketch on paper, or a design on textiles may not be permanent given their inability to withstand the ravages of time, although the physical existence of the work might outlast the period of copyright protection.

Arguments can be made that even a transitory work can be protected if its design or instructions for creation are recorded. However, while we can consider the complexities of protecting a work that exists in fixed form only through the written or recorded instructions for its assembly or execution, the simplest and most straightforward solution to the conundrum as to whether a transitory work like Denevan’s is, or was, fixed, is to ensure that it is recorded after execution in an enduring, physical medium, of which photography is the most obvious.

Photography is a very suitable partner for Denevan’s art because, without the aid of the birds-eye perspective provided by Brighton Denevan’s drone photos, it would be impossible to truly appreciate the complexity and symmetry of the designs. You can observe them from ground level, or maybe even from an adjacent hill, but it takes the overhead shot to truly bring out the full dimensions of the work. The relationship between the sculpture itself and the overhead photo of it is symbiotic; you cannot really have one without the other. Thus, it is entirely appropriate that the copyright rests, in effect, with this father-son team even if they have no interest in exploiting it. Of course, there is nothing to stop a third party from flying a drone over the work and taking their own photos, establishing a separate copyrighted work. But, thanks to the tides, they would have limited time to do that.

Perhaps that is the beauty of an ephemeral production; the sculpture can be created, photographed and then erased (by nature), never to be subject to further exact replication. A true one-off. Even if the design could be replicated exactly, the medium (Chesterman Beach) will have changed somewhat owing to wave action, light, storms and so on. That also makes the photos truly unique. No-one can go back and produce a facsimile because all they will see is empty sand. The sculpture existed for a moment in time and was captured in that instant by the eye of the camera. Unlike a photo of the Golden Gate Bridge, or the Tower of Pisa, or whatever permanent art-work you can name, it can never be recreated precisely again. I think that’s pretty cool.

© Hugh Stephens, 2022. All Rights Reserved.