The Live Music Forum

Hamish Birchall Bulletin

Wednesday 8th December 2010 - The licensable Turner Prize winning installation

In moving from visual to sound art, lawyers agree that this year's Turner Prize winning entry has unwittingly become a licensable entertainment - but Tate Britain's galleries are not licensed under the Licensing Act 2003 for the playing of recorded music.

This plan of Tate Britain shows the areas outside the gallery space where Westminster City Council allows 'licensable activities' (within the red lines):

'All art constantly aspires to the condition of music', wrote Walter Pater, the distinguished 19th century essayist and critic, in his 1877 essay 'The School of Giorgione'. No doubt he would be surprised just how literally his observation has been realised by this year's Turner Prize winner, Susan Philipsz.

Her installation consists of a recording of her singing a traditional folk song, 'Lowlands Away', played through two loudspeakers in the Tate Britain Turner Prize exhibition gallery. See Daily Telegraph news video:

'Lowlands' can still be heard in folk clubs across the country. The artist explains in her interview: '... the song is about a sailor who appears in a dream to their loved one... to say a final farewell' [there are different sets of lyrics - see this folk discussion group: ]

The problem is that the recording falls within the description of entertainment in the Licensing Act 2003, Sch.1 para 2(1)(f): '... any playing of recorded music... where the entertainment takes place in the presence of an audience and is provided for the purpose, or for purposes which include the purpose, of entertaining that audience.'

Within the Act '"Music" includes vocal or instrumental music or any combination of the two.' (LA2003, Sch.1 para 18).

It might be argued that this playing of recorded music is not entertainment. But that is problematic, and would have wide implications. If adopted it would mean that many very similar examples of the otherwise licensable playing of recorded music, in cafes and bars for example, could with equal justification be described as art installations, and thereby exempt. Many musicians (working in jazz and classical music particularly) could reasonably argue that the purpose of their performances is entirely artistic expression, not entertainment, and therefore not licensable as regulated entertainment under the Act.

It is in any case difficult to argue with conviction that such art installations have no intention whatever to entertain (an Oxford English Dictionary definition is 'to occupy agreeably'). The Act is worded so that however subordinate entertainment may be to the main purpose, it is nonetheless caught.

It might be argued that there is no audience as such. People wander through; some may sit and listen. But spectators are of course explicitly included within the meaning of the word 'audience' (Sch.1 para 2(2)).

The installation is not a film, so cannot benefit from the Act's exemption for films shown in museums or galleries by way of an exhibit (LA2003, Sch.1, para 6).

It cannot qualify for the 'incidental music' exemption (LA2003, Sch.1, para 7) because the recorded singing is the focus of the installation and as the winner of the Turner Prize it is now a featured exhibition:

As it has now been very widely publicised thousands of people will come specifically to hear and view it. Being the main reason for people attending is one of the key reasons that incidental music exemption would not apply. See the government's statutory Licensing Guidance ('Guidance issued under s182 of the Licensing Act 2003', p31, paras 3.20-3.22):

Lastly, the installation recording meets the necessary licensing conditions: a) it is public for the purposes of the Act (Sch.1, para 1(2)(a)); and b) the gallery has been made available to enable the entertainment to take place (Sch.1, para 1(3)).

Does this mean that Tate Britain is breaking the law? Only the courts can put that beyond doubt, and whether the courts will have an opportunity to rule on the matter depends on whether or not Westminster City Council issues proceedings.

But independent lawyers Simon Mehigan, a leading licensing QC, Robin Bynoe (solicitor, senior counsel at Charles Russell) and Richard Bridge (solicitor, partner at King Prior MacDonald Bridge) have considered the entertainment licensing implications of the Susan Philipsz installation, and all agree that it is regulated entertainment for the purposes of the Licensing Act 2003.


Hamish Birchall