Gallery of Lost Art

Summer 2012 in the UK was notable for the opening of two unique exhibitions with closely related themes: invisible art and lost art.

On 12 June London’s Hayward Gallery opened ‘Invisible: Art About the Unseen 1957-2012’, which explored ‘ideas related to the invisible and the hidden, including work by some of the most important artists of our time as well as younger artists who have expanded on their legacy. From Yves Klein’s utopian plans for an “architecture of air” to Robert Barry’s Energy Field (AM 130 KHz) piece from 1968’.  The exhibition closed on 5 August.
On 2 July Tate launched ‘Gallery of Lost Art – A New Online Exhibition’ (accessible until 3 July 2013: It is ‘an immersive, online exhibition that explores the stories behind the loss of some of the most significant works of modern and contemporary art … this virtual year-long exhibition explores the sometimes extraordinary and sometimes banal circumstances behind the loss of artworks by over forty artists’. Tate’s head of collection research Jennifer Mundy explains: ‘This online exhibition focuses on significant works that can no longer be seen. Visitors are able to view documents relating to the different artworks featured in the exhibition and the stories of how they were lost. The records include photographs, newspaper cuttings, letters, audio and film excerpts, as well as twenty newly commissioned films.’

The site offers a tab to select from different types of loss: stolen, destroyed, transient, rejected, unrealised, discarded, missing, ephemeral, erased, attacked; or to select an artist whose work is exhibited, of which 26 are currently uploaded including Bas Jan Ader (Unrealised), Francis Picabia (Erased), Georges Braque (Discarded), Otto Dix (Stolen), John Baldessari (Destroyed), Rachel Whiteread (Transient), Willem De Kooning (Attacked). Fourteen more works will be added over coming months. Each work offers an essay by Mundy giving concise and valuable contextual information about the work’s origination, execution, exposition and loss, and a critical evaluation of the significance of the work and the artist. Many of the lost works raise interesting and significant artlaw issues – two are considered below.

Frida Kahlo’s oil painting on board, The Wounded Table, 1940, is categorised as missing. Painted in 1939 for the ‘International Exhibition of Surrealism’ held in 1940 at Mexico City, Kahlo expressed her disappointment at its reception in a letter to Diego Rivera later that year: ‘unfortunately I don’t believe my work has interested anyone. There’s no reason why they should be interested and much less that I should believe that they are.’ Kahlo kept the work until 1946 when, according to Mundy, she ‘entrusted it to the Russian ambassador in Mexico, possibly with a view that it should be given to a museum in Moscow. Notes of an interview she gave to a reporter in 1949-50 confirm this but do not reveal any details. Both Kahlo and Rivera were committed communists and like a number of other artists in Mexico were keen to exhibit and gave some of their works to communist countries around the world … The last trace we have of The Wounded Table is the catalogue of an exhibition of Mexican art held in Warsaw, Poland, in February 1955. The catalogue does not indicate who then owned the painting, but it does refer to a “museum in Moscow” among the lenders. It is possible, though unproven, that this painting was then owned by a Soviet museum.’

Searches for the work have been in vain. Mundy plausibly speculates that the work may yet be found by citing the anecdote of Kahlo’s large canvas painting Glorious Victory, 1954, which also disappeared after an Eastern European touring show in 1956 only to be found in a store room at Moscow’s Pushkin Museum in 2006, after which it was repatriated to Mexico.
Kahlo died in 1954 without children. Copyright under Mexican law lasts for 100 years after death. The Diego Rivera and Frida Kahlo Museum Trust now controls and manages their copyrights and, particularly, their moral rights to claim or deny authorship.
Authorship is significant because, if a work claimed to be The Wounded Table were to be found in the future, its authenticity would inevitably require verification – and might be contested. Such a dispute occurred in 2009 following the discovery of a cache of works asserted by the owners/finders to be Kahlos, which the Museum Trust authenticated. The cache included 16 small oil paintings, 23 watercolours and pastels, 59 notebook pages, 73 anatomical studies, 128 pencil and crayon drawings, 129 illustrated prose-poems and 230 illustrated letters. In 2011 a Mexican court rejected a lawsuit brought by several US and Mexican dealers in Kahlo’s works claiming the cache was ‘bogus’. The court ruled in favour of the joint respondents, the Bank of Mexico and the Diego Rivera and Frida Kahlo Museum Trust, who asserted the works were authentic.
If the authentic Wounded Table were to be discovered in future (and made public), a further artlaw consideration is likely to arise: whether the finder will claim the work was an outright gift from Kahlo in 1946 and not an ‘entrusting’ by her to the Soviet Ambassador to Mexico. In which case, the lost work’s registration in the online international Art Loss Register would help the Diego River and Frida Kahlo Museum Trust to prove their legal claim to ownership of the work.

Marcel Duchamp’s original Fountain, 1917, is categorised in Tate’s online gallery as discarded. Duchamp bought an industrially mass-produced urinal, signed it R.Mutt 1917 and submitted it to the inaugural exhibition of the Society of Independent Artists in New York in April 1917. According to Mundy, this work ‘challenged traditional understanding of what a work of art was … and that anything presented by an artist as a work of art was indeed art, whether or not he or she actually made it. However, the artwork with which Duchamp made this point in 1917 seems to have been lost almost immediately (amazingly, no-one is certain how)’. The work was rejected for exhibition by the Society; its existence is only known from one photograph of it taken immediately after its rejection (when it still had the Society’s label attached to it).

During the last two decades of his life Duchamp authorised the issuing of replicas of Fountain. Complex copyright and moral rights issues are raised by Fountain and its authorised replicas, and in relation to all Duchamp’s readymade works. A key legal criterion for establishing ownership of copyright and moral rights is that the work must be original: the physical work must have been originated – made or directed to be made – by the artist. Not so in the case of Duchamp’s readymades. To this day, art lawyers debate whether such works pass the legal originality test: on the one hand, it is argued that Duchamp appropriated mass-produced objects and therefore fails the legal originality test; on the other, that he passes the test because he designated the objects as art to create what are unquestionably unique and seminal works of the 20th century.
Intentionally, and perhaps ironically, another loss will happen when this remarkable and unique research resource closes on 3 July 2013. Hopefully during the coming year Tate will reconsider and make this a permanent archive.

© Henry Lydiate 2012

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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.