The marked deterioration of Damien Hirst’s The Physical Impossibility of Death in the Mind of Someone Living, 1991 – the tiger shark in a vitrine of formaldehyde – was the subject of a prescient article by contemporary art conservation research expert Dr Alison Bracker (V&A Conservation Journal, Issue 35, Summer 2000) six years before the shark’s replacement in 2006:
‘Hirst’s shark has deteriorated noticeably since its creation in 1991. By 1997, when it secured the first gallery of the Royal Academy’s ‘Sensation’ exhibition, even casual observation revealed it to be straining its seams. I have yet to determine when this decomposition began, but Michael Heath’s cartoon of a disintegrating John Major suspended in a Hirst-like tank suggests that news of the shark’s decay entered the public arena as early as 1992, only a year after the work’s completion. In any event, it didn’t take long for media comments about the shark’s dilapidation to circulate … The challenge that the sculpture’s deterioration presents to conservators is therefore considerable … In fact, the shark’s deterioration highlights the implications for the private collector of retaining responsibility for conserving impermanent works of art in general, and those currently deemed to be of national cultural value in particular.’
Laws of most industrialised countries impose a strict legal duty of care on designers, makers and traders of manufactured products that cause personal injury/fatality or damage to property, and provide victims with legal causes of action. Although such legal frameworks are aimed at protecting consumers and users of mass-produced articles, they may embrace physical artworks. Designers or makers or traders may include artists, and their independent contractor fabricators and agents/dealers; victims may include individuals or institutions that have physical contact with the work in some way.
For example: a publicly sited sculpture falls over, causing personal injuries to spectators and/or their property. Even though such victims do not have contractual business relationships with the artist, product liability laws may nevertheless place legal responsibility on several parties: the artist/designer, and/or any fabricator/installer, and/or the owner of the artwork, and/or the occupier of the land or building where the artwork is sited. Such legal responsibilities are generally described as being ones of ‘strict liability’. This means the victim is not required to prove that the designer/maker/owner behaved carelessly or recklessly in relation to their link in the chain from concept to end use of the artwork; victims simply exhibit their injuries/damage and assert that the falling artwork caused them – following a long-established legal doctrine called res ipsa loquitur (the facts speak for themselves). In the UK, such strict liability generally lasts for up to three years from the date of the personal injury and up to six years if the victim dies or property is damaged (other countries have different timescales/statutes of limitations for bringing product liability claims).
Strict liability claims may be defended under some countries’ laws, including the UK, by satisfying a court that thorough research was conducted at the design and making stages to embrace the most up-to-date processes, materials and expertise that was then available – often called a ‘state of the art’ defence. For these reasons, it is sensible and normal practice to conduct thorough research, to apply the latest and best practices when designing and making, and to maintain a documented audit trail of everything that has been undertaken in order to mount a successful state of the art defence in future, if necessary. In this connection, it is important to bear in mind that most product failures are the result of inherent or latent design faults, rather than errors in fabrication or end-user activity.
It is also sensible and normal practice for product designers and makers to try to limit their strict liability by transferring as many risks as possible to others by way of contractual terms and conditions. For example, an artist/designer of a 3D sculpture contracts with a foundry to make a mould, then to cast a work. In that contract, the artist should consider persuading the foundry to accept full responsibility for all the processes and materials (and so on) that are exclusively beyond his or her professional knowledge and expertise but within the foundry’s, and to provide the artist with a full indemnity for any legal claims brought against him or her by victims in future. Such contractual transfer of risk is unlikely to absolve the artist/designer from strict product liability but may assist in establishing a state of the art defence and, if such a defence fails, the artist might use the ‘transference of risk’ element of the contract with the foundry to recoup all or part of any compensation paid by the artist/designer to a victim.
Product liability insurance cover is readily available, with modestly priced premiums for artists, to indemnify against any future claims by victims of ‘faulty’ artworks. Such cover might include public liability insurance in the event of publicly sited structures/installations causing personal injury/death/damage to property: current cover typically ranges between £3m and £6m per claim/victim. Similarly, professional indemnity insurance cover is available to artist/designers to guard against claims for giving negligent advice, for example, when working with independent fabricators or installers, or when transferring ownership of the work to a purchaser or donee: current cover is typically around £250,000. It is sensible and normal practice for artist/designers/makers to maintain both types of insurance cover. Artquest’s website offers information about companies offering such insurance cover, as does a-n The Artists Information Company.
Written contracts of sale of existing work, and commission contracts for the origination of new work and its acquisition, are important tools through which artists may protect themselves against future claims arising from ‘faulty’ works; their works against unwitting physical misuse; and their clients and others from injury. Such contracts might sensibly include terms along the following lines: that the work should be cared for by the new owner/buyer in ways set out in a separate maintenance manual supplied by the artist when the work is handed over/collected/delivered (such a maintenance manual should include any warnings about hazardous materials and how to avoid any hazards, and advice about steps to be taken if a hazard occurs); and an undertaking by the new owner/buyer to execute a written contract when they come to re-sell/donate/lend the work, and that any such contract will include the same maintenance provision (and manual) and undertaking by the new owner/donee/borrower.
When consigning a work for sale by an agent/dealer, it is also prudent for artists to include in the written consignment contract provisions along the following lines: that the work should be cared for by the agent/dealer in ways set out in a separate maintenance manual supplied by the artist when the work is handed over/collected/delivered; and an undertaking by the agent/dealer to execute a written contract when they sell the work, and that any such contract will include the same maintenance provision (and manual) and undertaking by the buyer.
Artists need to be vigilant in considering their legal responsibilities for the physical form they are designing and creating when it is out of their possession and control, and take sensible business steps to achieve appropriate insurance cover, contractual risk transference and indemnities, and protective written contract terms.
© Henry Lydiate 2012