Deterioration and degradation of contemporary art increasingly concerns specialists in the field of conservation and restoration.

Such experts are being asked for advice and assistance from key actors – including artists – in the art ecosystem, about work made and acquired in recent times beginning to manifest material weaknesses. There are more questions than experts can currently answer – particularly about ways artists work with non-traditional materials and techniques.

Conservation of contemporary art was the subject of a public debate held in May 2015 at London’s Royal Institution. The RI is a scientific institution and was an appropriate host for this event because it has for over two hundred years been ‘at the forefront of public engagement with science … to encourage people to think more deeply about the wonders and applications of science’. Before a large public audience, chaired by journalist and broadcaster Mark Lawson, five perspectives were given by a panel comprising Sir Christopher Frayling, former Rector of the Royal College and of Arts Council England; Head of Conservation at the V&A Sandra Smith; artist Gary Webb; contemporary art scholar-curator Kenny Schachter; and contemporary art collector and insurance specialist Robert Hiscox.

Lawson suggested using a working definition of contemporary art: works made by artists born after 1945 or thereabouts. There were no objections from panel or audience to this proposition, which reflects a growing consensus amongst art market professionals and statistical monitors. A context-setting video clip was shown in which leading contemporary art market analyst Anders Petterson of ArtTactic Ltd offered pithy observations: that the market for contemporary art sales has grown exponentially since 2003(save for the world economic downturn of 2009), including especially new purchasers who are not traditional longer-term collectors of artistically valued objects but investors seeking to make profits in the shorter term; contemporary art is now a recognised ‘asset class’; for collectors and investors of works needing conservation, there is some comfort in knowing that the artist is still alive and can be asked to remedy the problem; but if the artist is dead, conservation solutions are trickier – and the art market has not yet properly thought this through. Perhaps this instant debate marked a beginning of the market pondering conservation problems.

The ensuing dialogue between panellists themselves and with the audience illuminated many conservation issues. The overall theme of the debate was characterised as ‘do we care, should we care?’ Panellists’ responses were many and varied, including: the art market is the last great unregulated industry, where caveat emptor applies; if you buy directly from the artist, you should talk about longevity at point of purchase; different geo-cultures have different expectations of longevity; artists distinguish between internal concerns about the making process and external concerns, especially where work is destined for installation in a public place; museum collections try to manage the deterioration process by slowing it down, unless the artist intended the work to decay; it becomes easier to address conservation problems when the artist is dead because the owner’s hired conservator decides; artists should take responsibility for the longevity of their works after they have left art school.

But there was a marked absence of discussion about the law: no mention was made of legal responsibilities – if any – of artists as makers and primary sellers to collectors, of re-sellers to their purchasers, of agents and dealers and art fairs and auction houses to their clients, or of artist’s estates to posterity. Perhaps artlaw became an elephant in the room, of which most present were aware but unwilling or unable to discuss. Let us consider whether artlaw factors add value to key issues that were debated.

It is true to say – perhaps even a hostage to fortune – that the art market is not a regulated industry. The marked paucity of laws and rules specific to art business worldwide means that contemporary art business is treated in most countries like sales of other goods: they should be of merchantable quality and fit for purpose, especially if they are sold as brand new – in which case laws place responsibilities to consumers on the retailer as well as the manufacturer. In principal such legal responsibilities apply to first sales of contemporary art, and artists as ‘manufacturers’ and their dealers as ‘retailers’. In practice collectors/consumers may run into legal difficulties proving that a brand new work they acquired is now not of ‘merchantable quality’ and unfit ‘for purpose’. And contemporary art market professionals – say dealers – who buy brand new work might run into further difficulties if it is contended that they are not ‘consumers’ but specialists who should know what they are buying. All these factors feed a common perception that caveat emptor applies to art sales, placing on the buyer of a brand new work any risk of inherent or latent defects.

Caveat emptor is a Classical Roman Law doctrine that operated particularly at public auctions of second-hand goods, which has trickled down over centuries to be incorporated into many modern legal systems in the Western world. Today’s buyer beware doctrine applies only in limited circumstances, especially where for example the goods being sold are second-hand and so is likely to apply to secondary sales of art. However, artists asked to remedy a defective work by a second- or third- or fourth-hand buyer (with whom they have not contracted the first sale of a brand new work), are unlikely to use caveat emptor or any other reason to evade responsibility. In practice most artists adopt a sound ethical and professional business-like approach to such requests from collectors, and take responsibility for finding solutions – often at their own expense, and using specialist conservators where necessary. Professional reputation in the art eco-system is of paramount importance.

Artists could add value to their reputations in the cultural and market sectors by adopting sound and straightforward professional practices at the point of first sales. With an eye on managing collector expectations – perhaps even on posterity – artists could emulate standard practices of their Western Renaissance predecessors who – surviving documents show – signed written contracts with patrons guaranteeing a minimum lifespan of their commissioned works. Additionally many artists supply initial collectors with written instructions for good care and maintenance of their works, and especially those requiring player hardware, power sources, light fittings, and so on. It is now common practice for institutional collectors to make a/v recordings of interviews with artists whose works are collected, discussing and explaining artistic intentions as well as materials and ways of working.

Posterity problems are of little or no concern for most artists, especially at the start of their careers and certainly at art school. Doubtless drawing upon his thirteen year experience as Rector of the Royal College of Art, Frayling offered the debate his view in terms that young artists have enough to worry about, but the rest of us should care (about conservation). Another view is that art schools should build into their curricula professional practice studies, not as an optional add-on where guest speakers from the art eco-system fly in to tell war stories, but as a required programme of study about the commercial dimensions of a fine art practice including conservation.

© Henry Lydiate 2015

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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.