That didn’t stop Tate from spending €39,950 on Sehgal’s This is Propaganda in 2005 or the Museum of Modern Art in New York from buying, for an undisclosed five-figure sum, an edition of his Kiss, in which a couple embrace amorously in the gallery in a variety of positions. That museum’s director, Glenn D Lowry, described the process as “one of the most elaborate and difficult acquisitions we’ve ever made”.

Jonathan Sharples, an intellectual property lawyer at the City firm Simmons & Simmons, has been working with a young London gallery, Bosse & Baum, to attempt to bring some basic order to the process of buying performance art. This isn’t, he would be the first to admit, an easy task. Not least because, in the UK at any rate, “our copyright law starts from the point of saying that there is a certain set of categories and whatever you’re talking about protecting has to fit into those categories if it’s to attract copyright”. Performance art does not, predictably, fit into any easily defined category. You can’t compare it to a play because that’s a literary work and in performance art there is rarely a script.

“What you tend to end up buying, usually to support the artist to continue to make work, is a documentation of the performance, which may be a film or video or the preparatory drawings, or the artist’s proposal as a text,” says Sigrid Kirk, one of the few private collectors active in this area. “Galleries and artists alike, though, are still trying to identify satisfactory ways for collectors to purchase and support performance art. It’s definitely not resolved.”

Then there’s the philosophical problem: what does it mean to own anything? “Ownership is typically characterised by the right to exclude other people from whatever the thing is that you own,” Sharples says, “so that’s an odd thing to talk about when it comes to public performance.”

Francesca von Habsburg, who heads the TBA21 contemporary art foundation and commissioned Kjartansson’s first performance work, God, in 2007, is dismissive of the idea of ownership in this context. “To be honest, I don’t think that collectors really own any of the art we claim, we’re just guardians of it for a certain amount of time, and art that does stand the test of time, eventually it changes hands or it changes generations. I think the idea of ownership is about how we interpret that.”

Habsburg, along with her foundation, considers herself a commissioner, “and this is a different mindset to collecting and owning. What TBA21 has developed into is an agency to implement change and to inspire provocation through the commissioning of works. So when you commission a work you debate the whole structure and point of the work with the artist in advance, and you follow that whole creative process that leads to the work from beginning to end, without interfering in that creative process. You ensure that it happens and you support the artist and nurture that process from a production point of view.”

Kirk agrees. “Collecting performance is not for the faint-hearted. The work is ephemeral and transient and what you are essentially trying to hold on to and preserve is the memory of the action you witnessed. I’ve heard it described as like trying to keep smoke in your pocket,” she says. “I think for me this is part of the interest. In an experience-led economy we value ideas as much as things. And the very slipperiness around the notion of owning even part of an artist’s idea or action is appealing.”

Lisson Gallery in London looks after several artists working with performance, such as Ryan Gander, Marina Abramovich and the Puerto Rican duo Allora and Calzadilla. When I ask one of its directors, Louise Hayward, to name the collectors acquiring — or nurturing — performance, they are all women. “All the people I’ve ever sold performance art to, including the curators in museums, or I’ve had the conversations with that have led to the sale, have been women,” she says.

I suggest that the commitment that you have to make to the process represents a way of collecting that may be more appealing to women, as opposed to going into a gallery and saying: “I like that, I’ll have it.” “You said that, not me,” she says.

What is clear is that the purchase of performance art tends to emerge from quite a different motivation than, say, the acquisition of a stuffed shark. There’s a romance to it and a sense of responsibility for a collector that almost certainly is absent when an art adviser to a busy billionaire snaps up a Peter Doig painting to put straight into storage. From Kirk’s point of view, “I feel at a certain point we don’t need still more things on the wall, to own yet more art. Supporting performance art feels slightly subversive in a good way.”

And it’s the right thing to do, Thornton believes. “It’s such a vital art form in contemporary culture. Some of the most exciting and important artists of the time are working in time-based media or installation or performance. Museums have a responsibility to collect those art forms so that we don’t become out of touch or irrelevant. If museums just carry on collecting in the traditional way, we’re not collecting the important art of our own time, we’re not collecting our own history, the history of that period. And ultimately that engagement through acquisition and archiving keeps the work alive. That will be the way that audiences can access that art form in 100 or 200 years.”

It seems likely that for the foreseeable future the acquisition of performance art will stay mostly within the limited world of institutions and foundations. There are still relatively few private collectors willing to pour money down an invisible well, and a work of performance art has yet to be sold at auction by heirs offloading their parents’ precious collections. (Although documentation of performance by big-name artists has occasionally fetched healthy sums, such as Abramovich’s Rhythm 5, a gelatin silver print from 1974 that in 2010 sold at Sotheby’s New York for $25,000.)

“I think it’s always been a niche market and it will always be a niche market,” says Hayward. “I’m not sure it’s going to suddenly become the thing that people rush to Miami Basel [art fair] to buy. It will never compete with painting, ultimately. But I believe that if you’re working with collectors who have that innate understanding of art and of what it means to own art, their desire to own the piece and then to share it with people, in some ways the medium is irrelevant.”
The Sky in a Room is at the National Museum Cardiff (0300 111 2333), to March 11

Five seminal performance artworks

Cut Piece, Yoko Ono (1964)
Ono first performed Cut Piece in Kyoto. The artist sat on a stage dressed in her best suit, with a pair of scissors in front of her. The audience were invited to come and cut off a small piece of her clothing and take it away to keep. Some were respectful or timid, trimming her hem, some bold or aggressive, snipping her bra straps or the front of her shirt. The tension between the passive female artist and the small, deliberate acts of violence she invited made this one of the most memorable performance works of the Sixties.

How to Explain Pictures to a Dead Hare, Joseph Beuys (1965)
When visitors arrived to the opening night of Beuys’s exhibition at Schmela gallery in Dusseldorf, they found the doors locked. Pressing their noses to the glass, they could only watch as the German artist wandered forlornly around the space, his head covered in honey and gold leaf, whispering explanations of the art to the dead hare cradled in his arms. “Even a dead animal preserves more powers of intuition than some human beings with their stubborn rationality,” Beuys sniffed in a statement on the work. Say what you like about Beuys, he was never guilty of stubborn rationality.

Seedbed, Vito Acconci (1972)
Possibly the ultimate pearl-clutcher, this work by the American artist, first performed at Sonnabend gallery in New York, involved Acconci lying under a makeshift wooden ramp with a microphone and masturbating furiously, his sexual fantasies fuelled by the sounds of the visitors walking above him. His startling, graphic monologue could be heard through the gallery’s loudspeakers. Tate now owns some of the documentation, though not, perhaps mercifully, any audio.

Rhythm 0, Marina Abramovic (1974)
The artist stood still before a table containing 72 objects (including an iron bar, honey, a scalpel, nails and a loaded gun) and instructions that visitors should do whatever they wished to her with them. Her interest lay in how far the audience were prepared to go. Over the course of the six hours at Studio Morra in Naples her clothes were cut off, she was sexually assaulted, her neck was slashed so that someone could taste her blood and the performance only ended when someone put the gun into her hand and pointed it at her head, prompting a section of the audience, alarmed at her passivity, to intervene.

One Year Performance (Time Clock Piece), Tehching Hsieh (1980-1)
In the late 1970s and early 1980s Tehching Hsieh made five year-long ordeal performances, the most famous of which is probably Time Clock Piece, for which the Taiwanese artist punched a time clock in his studio every hour on the hour for a year, photographing himself each time. He only missed 133, usually because he was so exhausted he slept through his incredibly loud alarm clock. “It was like being in limbo, just waiting for the next punch,” he later said. In 2000 Hsieh stopped making art altogether, and you can rather imagine why.

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