I am saddened that Gallerie Perrotin, nor David Datuna nor Basel have responded to my messages. Sadder still, it is likely that Perrotin destroyed my work of art “Reduced to Memes” which I created on their wall in December. According to the Visual Artists Rights Act, Perrotin is the one in the wrong, and the destruction or loss of my piece is legally actionable. Refer to the Five Points Case if you are unfamiliar.
Let’s get to the law. I didn’t break it. We’ll be switching person.
Florida statute 806.13 for Criminal mischief section (1)(a):
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“A person commits the offense of criminal mischief if he or she willfully and maliciously injures or damages by any means any real or personal property belonging to another, including, but not limited to, the placement of graffiti thereon or other acts of vandalism thereto.”
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As many are aware, Gallery Perrotin held an exhibit at Art Basel where the artist Maurizio Cattelan taped a banana to the wall, and dubbing it a piece of art. This work of art called “Comedian,” was priced at $120,000. On December 7th, 2019, David Datuna walked up to the wall where the banana was taped, and ate it. Perrotin chose not to press charges, and their representative, Lucien Terras even went so far as to say of Datuna, “He did not destroy the art work. The banana is the idea.”
By virtue of the gallery allowing David Datuna to create a new piece of art through destroying an old one, they created a situation in which an artist like Rod Webber, (or anyone else), might reasonably believe that he or she could behave in a similar way, by creating a new art piece, just as Datuna had. Any such person attempting to create a new work could not be seen as *willfully and maliciously* damaging property, even if damage was done. One might even conclude that Perrotin was inviting the public to join in on the performance. Webber’s act was not malicious— it was motivated by Webber’s desire to create art, just like the guy who just ate the art off of the wall. Also, let’s not forget the first amendment.
Accordingly, Mr. Webber’s marks on the gallery wall cannot be considered criminal mischief.
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Perrotin Gallery seemed to agree with this premise, since they said they wouldn’t press charges against David Datuna, and they wouldn’t press charges against Rod Webber. Remember, in the words of the gallery, David Datuna, “did not destroy the art work. The banana is the idea.”
So, if the banana is the art, and the art is the idea, then the jury must conclude that Rod Webber too was creating a work of art when he scrawled “Epstien Didn’t Kill Himself” in red lipstick on the wall of the Perrotin Gallery. The only way the jury can find Rod Webber guilty is if the jury concludes that Webber’s actions were not art, because his actions for some reason were an invalid idea.
There was no willful malice. And in “the land of the free” there should be no idea so strange that it should be considered invalid. To begin branding ideas as invalid would require forming “thought police,” and doing so would be to step one step further down the path to George Orwell’s 1984 dystopia.
Lastly, there was no victim. If there is no victim, there is no crime.
The court hearing is at 9AM in Miami Beach.
Feel free to get up to speed on your jurisprudence.
JURY INSTRUCTIONS FOR CRIMINAL MISCHIEF
I expect that this will result in a hung jury— unlike Jeffrey Epstein.
Rod Webber 