Material Ephemerality

Works made from short-life materials used by modern and contemporary artists increasingly pose problems and challenges for those who handle or possess works: collectors, estates and foundations, conservators and restorers, curators and consignees, storers and transporters; and for those who have a legal and business interest in such works: would-be donees and inheritors, purchasers, sponsors and patrons, investors and insurers. Are such concerns shared by contemporary artists?

‘Chris Burden: Extreme Measures’ opened at the New Museum in New York City last month where it runs until January 2014. The show is described as ‘an expansive presentation of Chris Burden’s work that marks the first New York survey of the artist and his first major exhibition in the US in over 25 years.’ Burden is a US-based artist well known for his performances, sculptures, and installations. This exhibition includes A Tale of Two Cities, 1981: a major installation work that Burden had recently resolved to destroy because its material components had badly degraded and he considered it unfit for public exposition.

The work reflects Burden’s career-long interest in war toys, bullets, model buildings and antique soldiers. In this work, such bought and found items (5,000 or so from the US, Europe and Japan) are arranged on a large mound of sand and rock, surrounded by a jungle of houseplants. Metaphorically representing two 25th-century warring city-states, the work occupies around 1,200sqft, is 12ft high, and weighs 20tns. It is owned by the Orange County Museum of Art, California, whose conservators (together with the New Museum) proposed to Burden a major refurbishment of the work so that it could be included in the retrospective. Initially sceptical as to whether the refurbishment could be done effectively and in time for the New York show, Burden allowed a small part of the work to be tackled. ‘Once he saw the first mock-up, it was like a problem had been solved, and he was on to asking about specific toys’, said Donna Williams, Orange County Museum of Art’s conservator. At a cost of $50,000 (funded by both museums) and over an eight-week period, the work was cleaned, components repaired, eBay searched for replacement items, new aluminium bases made (replacing now mouldy cardboard originals) and thousands of loose components permanently affixed. Burden pronounced that he was ‘really pleased it has been brought back to life’.

As owners of the work, Orange County Museum of Art might have elected to refurbish the piece without involving Burden; instead, they sought Burden’s express consent: an ethically and professionally sound judgement call which was undoubtedly influenced by legal considerations. The museum’s original purchase agreement was in writing and sensibly included a balanced term giving Burden (not the museum) the right to modify the work but only subject to the museum’s right of approval. Such prescience demonstrated by both parties to the original acquisition underlines the essential characteristic of good contractual agreements: foresight; the ‘what if this happens in future’ factor.

Such contingent contractual terms and conditions were not the norm in written contracts for the acquisition of works made by artists during the modern era. However, increasing numbers of collectors, particularly public institutions who have experienced materiality problems with past acquisitions, now include ‘what if’ terms and conditions in their agreements for acquisition of works directly from today’s artists.
In 2007 Tate Modern held a colloquium, Inherent Vice, to address issues of conservation, restoration and replacement of works in their collection that were manifesting instability/deterioration. Concerns were expressed about works, acquired last century, by artists such as Naum Gabo, Marcel Duchamp, Laszlo Moholy-Nagy, Antoine Pevsner, Vladimir Tatlin, Eva Hesse, Dieter Roth and Matthew Barney. As with the recent Burden project, Tate’s physical treatment plans would embrace terms and conditions (if any) relating to treatment of materials that were contemplated by original purchase agreements. However, decades-old purchase agreements are less likely to have contemplated future treatment scenarios, which is where sound ethical and professional principles and practices take centre stage.

Tate’s current acquisition policies and practices set sound ethical and legal standards for any collectors (public and private), and include a commendably transparent written purchase agreement. Tate’s model document makes its ownership subject to specified terms and conditions which contemplate possible future issues in relation to display, installation and restoration (documentary information is required). Tate has many other useful acquisition documents that are publicly accessible online.
Digital and mixed-media works pose particular acquisition challenges. Experienced collectors of such works would usually require the donor/seller (via a written contract) to provide: an archival master copy replicated from the artist’s master original and, in the case of public-facing museum and gallery collections, possibly an exhibition-quality copy or the right of the institution to make one if necessary for exhibition purposes. This latter copying requirement is likely to be legally enforceable, but only if the artist is the direct seller/donor; it is not necessarily so if the acquisition is not directly from the artist because only the copyright owner/artist has the legal power to license such copying. In other words, a secondary market owner who sells/donates to an institution is unlikely to have the legal right to license copying of the work by that institutional collector. This raises the further issue of resales.

Public-facing contemporary art collectors usually try to acquire directly from artists or their representatives, whose contractual accession agreements (contemplating ‘what if’ scenarios, discussed above) should give collectors possible solutions to future treatment issues. Many public institutional collectors also maintain policies and practices that self-impose constraints on de-accessioning; in which case, it is likely that works will require some form of treatment in the longer term. But what if contemporary works are acquired in the secondary market, not directly from the artist?

The secondary market for contemporary art is less frequently entered by publicly funded collecting institutions than by private purchasers and investors, many of whom intend (or need) to flip over their acquisition in the market in order to gain profit (or liquidate their asset). Such secondary market players are less likely to hold on to works for the long term and therefore are unlikely to be too concerned about future treatment issues. Accordingly, such purchasers are less likely to require the terms and conditions of their sale agreements to contemplate future treatment issues; and so on, down the line of further secondary market purchasers. Such a chain of secondary transactions will inevitably cause the loss of any future treatment provisions included by artists in their primary/studio sales agreements. Such ‘privity of contract’ problems prompted the introduction of statutory moral rights for artists during the 20th century.

Artists’ moral right of ‘integrity’ automatically empowers them to prevent/correct, through legal action if necessary, any ‘derogatory treatment’ of their works in the possession/ownership of others, notwithstanding that there is no direct contractual relationship with those others – hence Cady Noland could disown a damaged work of hers days before it was auctioned by a secondary market dealer (Artnotes AM368). Around 165 countries currently implement the integrity right, not only for their own artist/citizens but also for those from other countries that reciprocate, including France (droit au respect de l’intégrité de l’oeuvre) and the US (right to prevent distortion, mutilation, or modification that would prejudice the author’s honor or reputation). In most countries the integrity right lasts for the artist’s lifetime plus 50 years after death (70 in the EU); but not after death under federal US law.

© Henry Lydiate 2013

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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.