The Blued Trees symphonic movement to put “public” back in “public benefit”
by Gusti Bogok
In the era of Citizens United — when money equals speech and inanimate objects, corporations, are “people,” enjoying the same legal privileges — activists pondered why can’t trees be art? Why can’t copyright law trump eminent domain abuses and protect the commons? One artist would later respond by asking, why can’t trees be “notes?” Why can’t a clearing be an “interval,” or a wooded patch a “musical score?” This is a story about how art, activism and trees joined together in song.
The initial question was posed by a group of New York State residents in a desperate bid to save pristine stretches of forest, hundreds of thousands of trees and wildlife habitat, and family-owned properties from the ever-ravenous chainsaws of pipeline builders. Alarmed and angered by the onslaught of toxic fossil fuel infrastructure projects proliferating across the state, and grown weary of a regulatory and administrative system with a long track record of industry bias, they wanted to try something new.
They got the idea of using copyright law to oppose land seizures from the example of Canadian artist Peter von Tiesenhausen, who succeeded in preventing a pipeline company from ruining his property in Alberta. He designated his entire 800-acre farm as a work of art and placed a copyright claim on it, stopping the pipeline cold. The activists, who had exhausted all the usual channels in their mission to stem further industrial encroachment on their communities, were excited to test von Tiesenhausen’s novel strategy in New York.
Moved with a sense of urgency to spare miles and miles of forestland from the chopping block, they hatched a triage plan to halt eminent domain seizures on their home turf — land condemned for clear-cutting by Oklahoma-based Williams Company, builder of the proposed Constitution pipeline.
The activists put out a call to artists for help. Eco-artist Aviva Rahmani answered.
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| Photo credit – Jack Baran |
Artist and activists spun into action. While Rahmani worked on the overall design idea, sketches and satellite images of the targeted forest swath, local activists reached out to landowners, sought partners and set up painting teams. Writers penned articles for outreach, and photographers and videographers readied themselves to document each step of the process.
Rahmani envisioned a conceptual design that is both simple and elegant. Rahmani’s creation, dubbed “Blued Trees,” takes its shape by painting blue marks (sine waves) using a non-toxic slurry (find non-toxic pigment ingredients and instructions here) on specific trees in a designated pattern. The marked or blued trees represent individual “notes” in a full “symphonic score,” which encompasses the specific cordon of land coveted by pipeline builders. A copyright claim would then be filed to establish an intrinsic relationship between the art and the painted trees within the threatened area.
Team members scoured the list of landowners along pipeline routes for those who had refused to sign easement agreements with Williams Company — to obtain permission to begin the crucial first phase: painting the trees, making the area an art installation.
The team also sought legal advice from an attorney with a prominent intellectual property law firm. He felt the case had the potential to create new case law using a hybrid of real estate and copyright law, specifically VARA — the Visual Artists Rights Act. The challenge of eminent domain and the creation of new case law would be expected to ultimately wend its way to the Supreme Court. (Photo credit – Jack Baran)
When asked about the cost and length of time required for such a legal battle, the attorney estimated it could take up to six years and cost between $5 and $7 million. Two other trusted New York attorneys told the group they did not believe the copyright approach was likely to succeed. The Courts would most certainly deny a de-facto copyright claim placed on previously condemned lands, such as the corridor sought for the Constitution Pipeline by Williams. However, they did feel this inventive strategy might be able to protect yet-to-be-condemned lands, and that it could be strengthened by including below-ground elements in the artwork.
Upon consideration of the attorney’s suggestion, Rahmani modified her design idea and copyright claim to extend the blue sine marks or “notes” into the earth—the very soil that trees and all life rely upon for life, so that the Blued Trees Symphony would protectively embody not only the swath of land and trees tagged for clearing, but also the soil beneath it.
Activists looked elsewhere for a possible foothold, and were introduced to a member of a small community in Peekskill, Westchester County, whose cooperatively-owned 50-acre property—held by the same families for three generations--is being sought by the Texas-based Spectra Corporation for construction of the so-called Algonquin Incremental Market (AIM) pipeline (The AIM pipeline would transport highly volatile fracked gas and pass within 105 feet of vital structures of the aging and accident-prone Indian Point nuclear power facility, posing a catastrophic risk to densely populated Westchester County, just 25 miles from metro New York City).
Happily, the Peekskill community agreed to move forward with the Blued Trees project as a way to highlight the dangers of the AIM pipeline.
But given the high cost and uncertain legal prognosis, activists decided that the time, and fundraising commitments required for the labyrinthine legal journey to the Supreme Court were too great and withdrew from the anticipated six-year battle, although they did enthusiastically agree to participate in the premier installation of the artwork and help document the process on the Peekskill property.
Rahmani is courageously persevering with the Blued Trees copyright filing, the long-term legal strategy and potential court challenge.
On June 21st, 2015 with Rahmani in the lead, the originators of the idea and their allies, marked the beloved trees with a sine wave and, walking contemplatively through the woods, intoned the notes of the score—the Blued Trees Overture was finally launched.
The team continues to believe that the Blued Trees project has potential to influence public discourse concerning eminent domain takings, ongoing land-grab abuses and skewed interpretations of the doctrine of “Public Benefit” and “Public Use” that favor corporations over people. If enough funds can be raised, they remain hopeful that the AIM pipeline can at least be delayed.
Eco-artist Aviva Rahmani is proceeding to promote her Blued Trees artwork for other at-risk sites in the US and internationally. Blued Trees can be repeated anywhere as part of Rahmani’s ongoing Greek Chorus by anyone with a pressing desire to paint a blue sine wave on a tree, and give voice to the music and the message in the trees, wielding little more than a bucket of blue pigment and a brush.
Article by Gusti Bogok - one of the original activists inspired by artist Peter von Tiesenhausen.