Estates

Three apparently unlinked events were reported in the media during the past month. On closer examination they reveal an interesting common thread: the death on March 4, 2003, of Francis Bacon's sole beneficiary; recent reports from Romania of further deterioration of Brancusi's Endless Column and the launch of UK's Save Our Sculpture campaign.

Bacon died in 1992 leaving his estate to John Edwards, his last best friend and occasional model. Bacon was single with no legal dependents, as was Edwards, so neither had legal claims against their respective estates from such quarters. Bacon appears to have made no legal arrangements specifying what should happen to his works after death, save the legacy to Edwards, and speculation has arisen as to what provision the legatee made - if any - for what should now happen to the Bacon/Edwards Estate. Before he died, Edwards launched, then settled out of court, a case against Bacon's dealers, the Marlborough gallery, to clarify the nature and extent of their commercial dealings with the artist over a period of about 40 years. Edwards also gave to the Hugh Lane Gallery, Dublin the final contents of Bacon's London studio to enable it to be reconstructed there for public viewing.

Brancusi's Endless Column, 1938, his celebrated 'column without end' located at Targu-Jiu in Romania as one element of the town's First World War memorial, is nearly 30 metres tall. The column's central steel core holds an outer casing of 17 cast-iron blocks, which have been the subject of extensive and expensive conservation over decades, and recent reports reveal contemporary conservators' concerns over the success and/or appropriateness of those works. Conservation expert Eric Shanes reported (in the April 2003 issue of The Art Newspaper) his opinion that the most recent treatments will have to be redone, and suggests that it was Brancusi himself who 'inadvertently caused the problem'. It is said that Brancusi elected not to follow the advice of his metal supplier and his supervising engineer that 'thermally sprayed brass should not be used to coat its cast-iron modules', because rain would eventually turn its intended outer colouring of yellow to black. Two years on from the latest conservation work, the column has turned black again.

Brancusi died in 1957 and, under the laws of most European states, his estate would have benefited from statutory moral rights laws until 2027. These laws give artists and their estates legal rights to object to 'derogatory treatment' of their works - whether or not they still own them - for up to 70 years after death. 'Derogatory treatment' means any unauthorised addition, amendment, alteration or deletion that damages the integrity of the work or the professional reputation of its author. At present, we can only speculate as to whether the change of colour from yellow to black amounts to such derogatory treatment - in the legal or ethical sense - and whether any further action could or should be taken to deal with this apparently endless problem (and if so, by whom).

The UK's Public Monument and Sculpture association's Save Our Sculpture campaign was recently mounted, and links with the association's Sculpture At Risk register and National Recording Project. The campaign hopes to raise awareness of public sculpture in need of attention, and is asking the public to identify any such works and inform the Association at: www.pmsa.org.uk. The Association's work, and this recent initiative in particular, is commendable and represents a significant attempt in the UK to address an issue common to the three events reported so far: what can or should be done to care for artworks after the author's death?

When an artist dies there is not only a finite body of work available for both the art marketplace and critics/historians, but also a finite amount of time running for the exercise of copyright and - in this particular context - the artist's statutory moral rights. As stated earlier, statutory moral rights usually last for 70 years after the author's death, and require that their works be treated with respect. In France, however, these rights last indefinitely, and are an attempt by French legislators to address the care of artwork issue in an exceptionally bold and comprehensive manner. Incidentally, Brancusi's work may well be protected under French moral rights laws because of the artist's longstanding formal French connection, even though in the case of Endless Column it is located in Romania.

The French approach to statutory moral rights for authors contrasts starkly with the US approach, whereby statutory moral rights cease on the artist's death. For the purposes of considering ways in which artworks could or should be cared for, it also obviates the need to distinguish between works of living (US) or living/recently dead (UK) artists, and works of dead (US) or long-since dead (UK) artists. There are a variety of methods employed throughout the world, usually making that very distinction: between what can be called, for these purposes, 'dead' art and 'living/recently dead' art. There are international treaties through which governments have undertaken to protect and respect their own and other states' national cultural treasures: for example, treaties dealing with the repatriation of works looted by foreign occupying armed forces, or for the invalidation of subsequent sales of such works. Such treaties, in turn, cause some states to enact their own national legislation giving legal force to their international obligations, or to put in place governmental regulations or policies preventing the export of significant cultural works and/or the publicly funded purchasing thereof (eg the UK's National Heritage Memorial Fund).

In some cases, regional or local laws have been enacted: for instance, the California Art Preservation Act, 1979, prohibits 'defacement, mutilation, alteration or destruction of fine art', and was successfully used to stop the removal/destruction of a Hockney swimming pool mural on a hotel wall.

All artworks, be they authored by 'living/recently dead' artists (and thus benefiting from statutory moral rights protection) or by long-since 'dead' artists (and enjoying no such benefit - except French artists), can be the subject of legally enforceable private arrangements by artists or other owners. Wills are an obvious example, whereby bequests and legacies can be made by owners of artworks specifying what should happen to works they own at their death - as in Turner's bequest requiring much of his work to be kept together as a collection after his death. Commissions for new work, particularly for publicly sited art, can and should include in the original commission contract provisions dealing with the work's future life, its maintenance and the funding thereof.

Some artists put much thought and effort into establishing some form of legal trust or foundation to take care of not only their works, but also their personal/professional archives and any future merchandising activity: Rothko tried to do so in his will, as did Andy Warhol; and the Henry Moore Foundation was established several years before the artist's death, as was Dalfs. There is no Francis Bacon Foundation, but last year the John Edwards Charitable Foundation was constituted, and is led by Brian Clarke who was the executor of Bacon's estate - the foundation will promote and expose Bacon's work to the public. UK's art community continues to speculate on what unsold works were inherited by Edwards, where they are and what will happen to them in future in terms of public sales, donations to collections, or the establishment of a permanent collection.

For artists equivocal or agnostic about the future of their work after death, a sensible first step would be to identify and catalogue their unsold works, and their personal/professional archives - which would be a great help to those who might care what happens to their works after death.

© Henry Lydiate 2003

This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material.
The article is for information only, and not for the purpose of providing legal advice.
Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.