Monumental Manoeuvres in the Dark

The destruction of a sculpture the Government specifically commissioned and permanently installed on a national site is one of the more outrageous of the issues raised recently.

I don’t care
How many letters they sent
Morning came and morning went
Pick up your money
And pack up your tent
You ain’t going nowhere. * *

The fact that the sculpture, the Government and the site happen to be in the USA, is irrelevant only in so far as specific legal arguments are involved (and these are not the reason for my raising the subject); but the other issues involved ware entirely relevant to us, for two principal reasons: the high level of energy being expended by the few to achieve the many public commissions now mushrooming in this country; and the real danger that what is now happening to this major commission in the USA could well happen here.

Gustave Harrow is a New York attorney celebrated for his tenacious and successful pursuit through the New York courts and elsewhere around the world of the culprits responsible for fraudulently disposing of Rothko’s estate. This time the monumental problem, which is his brief, is one which at least has a living artist as the client.

RE: A Hearing to Consider the Destruction of Sculpture the Government Specifically Commissioned and Permanently Installed on a Federal Site. In 1981 the U.S. General Services Administration permanently installed Richard Serra’s sculpture Tilted Arc in Federal Plaza.

This installation was the culmination of a carefully devised process established by the Agency to ensure the selection of a highly qualified artist and an appropriate artistic concept for the Plaza.

The present Regional Director of the Agency in New York now urges removal of the sculpture. To achieve this he has convened a public hearing which will displace the impartial process originally employed in selecting the artist and the sculpture, and in deciding to permanently install it in the Plaza.

The public hearing will be convened in New York City on March 6 and 7 to consider dismantling the work. Its ostensible purpose is to further assess local reactions to the sculpture and its effect on the Plaza. However, this bearing will generate an issue of fundamental importance which cannot be resolved by the unstructured expression of opinion regarding the sculpture and its site.

This issue is- whether a national decision, formulated through procedures designed to ensure impartiality and excellence, can be reversed after the fact, through an ad hoc process, in order to rescind the government’s commitments.

If this can be done, integrity in governmental programs related to the arts will be compromised, and artists of integrity will hesitate to participate in them. It will mean that the government’s own decisions are vulnerable, leading to an erosion of confidence in its role in relation to the arts. If government can destroy works of art when confronted with restrictive pressures, then its capacity to foster artistic diversity, and its power to safeguard freedom of creative expression, will be in doubt.

The background, and a summary of the selection process which led to installation of Tilted Arc, is necessary for a clear understanding of these pressing issues.

At the request of General Services the National Endowment for the Arts designated a panel of experts to nominate artists for the work. After a thorough screening of the nominees, the Director of General Services invited Richard Serra, an internationally recognised sculptor, known for his large, abstract site-related sculptures, to submit a proposal for Federal Plaza. He was assured that consideration of his proposal would involve objective, non-reversible procedures, and he agreed to participate in the process.

Extensive studies of full-scale mock-ups made at the side resulted in a proposal for the sculpture. This was presented in the form of a precise scale maquette placed in the context of an architectural model. This proposal was accepted after a jury evaluation by the General Services Administration in Washington, D.C. in which a representative of the Agency in New York participated.

Serra was then requested to submit answers to specific questions related to the effect the sculpture would have on the Plaza’s structure, its use and the environment. These questions dealt with a structural analysis of the Plaza, placement of the sculpture, accessibility to the Plaza and the building, an analysis of pedestrian traffic flow, cleaning the sculpture’s surface, visual control of the area and illumination for safety and security purposes. After two years of close scrutiny and evaluation, acceptance of the sculpture for permanent installation was finalised by General Services both in Washington and New York.

The sculpture Serra created is a site-specific work, integral to the context of the Plaza. It was basic to the conception of the work that its installation be permanent, since any removal would alter and destroy it. Throughout the process, accordingly, Serra was given unequivocal commitments that the work would remain permanently installed. These assurances were critical since he would not have proceeded without them. Moreover, the significance for Serra of having the work permanently affixed was known to all concerned. Site-specificity is a concept he helped to innovate and develop and it represents the work with which he is continuously involved. Some of his permanent installations have been placed in St. Louis, Washington State, Barcelona, Paris, Berlin, Amsterdam, Dublin and Toronto.

As approved, the sculpture was built into the existing steel and concrete of the Plaza, an installation process necessitated by the tonnage of the piece and the tilt of the arc, which was crucial to the work. The scale, shape and placement of the work were determined by the context of the Plaza and its surrounding buildings. By its placement, curvature and lean Tilted Arc creates a volumetric space and defines the otherwise undifferentiated Plaza in sculptural terms. This effects a new space and place.

The final decision to install Tilted Arc, therefore, not only followed impartial screening processes as to selection of the artist and approval of his concept; it was also based upon full knowledge of the sculpture and the commitment to install it permanently. The sole provision in Serra’s contract, which can be construed as related to the issues of dismantling or relocation, is one which refers to ‘Ownership’ (Article 6). This provides that ‘All designs, sketches, models and the works . . . shall be the property of the United States. . .’ and that ‘all such items may be conveyed. . . to the National Collection of Fine Arts – Smithsonian Institution for exhibiting purposes and permanent safekeeping.’ This contractual provision, which contemplates relocation, is inapplicable to the project. Tilled Arc was conceived of, and approved as, a uniquely site-related work. Since it has no meaning other than in relation to its site, it cannot be removed without destroying it. As a result, this clause, which refers to relocation, is not pertinent and is otherwise contrary to the terms of the Government’s contract.

There was, however, a clear agreement on the question of removal or dismantling of the work after completion. It was agreed, through explicit commitments, that the work would not be removed or dismantled. These commitments were made with specific reference to Article 6 in the contract. Accordingly, the Government’s contractual commitment in commissioning Serra to do this sculpture precludes its removal without his consent.

Nevertheless, the New York Times recently reported that offers have been received by General Services to relocate Tilted Arc. While these offers are clearly responsive to the Regional Administrator’s initiatives and his resolve to remove the work, they proceed without communications with, or knowledge on the part of, Richard Serra.

In addition, as reported in the press, the relocations contemplated would violate New York’s recently enacted ‘Artists’ Authorship Rights’ law. (N.Y. Arts and Cultural Affairs Law, Article 14-A). This prohibits the public display of an artist’s work in an altered or modified form without his consent (Sees. 14.53, 14.55). This law, then, also precludes relocation without Serra’s consent.

There are compelling reasons for not considering the removal of Tilted Arc in addition to these legal obstacles. The Agency gave its commitments, and made its decision to install the work, in accordance with involved, impartial screening procedures. After this carefully devised process, a retraction and disavowal of the outcome is now contemplated. If a reversal should result in response to subsequent pressures from specific sources outside of the process it would fundamentally undermine confidence in it. An objective, binding process will have been substituted by a public hearing, convened by a local administrator, to reverse the outcome.

From the perspective of administrators of the art-in-architecture program, this would mean that commitments could not in good faith be made. From the perspective of participating artists, it would similarly mean that commitments, exchanged for their involvement in time, effort and creativity, could not be relied upon. From the public’s perspective, official yielding to such pressure will be perceived as an assault on freedom of artistic expression, at a time when its protection ought to have a priority which is second to none.

In addition, if despite these legal and administrative impediments, the scheduled public hearing is to proceed as presently planned and structured, it will fail to have a semblance of due process. According to news accounts, the hearing is to be presided over and evaluated by the New York Regional Administrator, William Diamond. He is also reported as having already concluded that the work should be removed. Obviously, a hearing can serve no legitimate purpose if the evaluator of it has prejudged the issue.

The scheduled public hearing cannot serve as a substitute for the legal consequences of contracts or applicable laws; and it ought not to be employed as a vehicle for disregarding carefully considered governmental commitments. If there is any area in which such a disregard of contracts and commitments would be most damaging, it is certainly where the issue of uncensored artistic expression will be perceived as the one at stake.

Accordingly, the legal requirements applicable to this situation, and the priority to be accorded commitments seriously undertaken, ought to be reasserted, and consideration of the removal of Tilted Arc ought to proceed no further.

Some Issues for the Artist
a. The Contract

‘All designs, sketches, models and the works . . . shall be the property of the United States’. This element of the agreement indicates on the face of it that the artist waived all property rights to the work, so that relocation or destruction were exclusively in the hands of the owner. Moreover, ‘all such items may be conveyed . . . to the National Collection of Fine Arts-Smithsonian Institution for exhibiting purposes and permanent safekeeping’ – again, on the face of it, the artist was agreeing to forgo any other rights he might have had to the sculpture’s permanent siting at the Federal Plaza; a curious provision to which to agree if the work was conceived of, and approved as, a uniquely site-related work – it will no doubt be argued by its opponents. The validity or otherwise of this latter explicit phrase must now be the eye of the storm – even if it is accepted that the Artists’ Authorship Rights law protects the work against relocation without the artist’s consent.

b. The Artists’ Authorship Rights law
This prohibits the public display of an artist’s work in an altered or modified form without the artist’s consent. Accepting, for a moment, that such display at a relocation amounts to an alteration/modification within the meaning of the law, it may well be an insurmountable hurdle for the artist to get over that by the specific terms of the contract he appears to have given express consent for these purposes. Moreover, there is also some prospect of success for the further argument that such a relocation would, in any event, not result in alteration or modification of the work itself, divorced from the site.

It will be interesting and valuable for us to monitor the developments of the dispute in the USA, but let us now turn to some of the broader issues for us, here.

Some Issues for Us
The Tilled Arc case appears, at first blush, to raise the question of artists’-moral rights (i.e. protection against abuses of their works and/or their reputations). The problem does, of course, provoke these issues, but it goes much further: it begs the question of whether there is a need for legislation dealing with the permanence (or otherwise) of works situated in public places.

Consider the following, highly unlikely, hypothesis:

a. just suppose an artist in the UK negotiated, agreed, constructed and executed a written public commission contract requiring the commissioner to guarantee the permanent siting of the work in a public place; and/or

b. just suppose there existed in the UK an Artists’ Moral Rights Act, giving artists complete protection against abuse of their works, including their relocation, and (even more outrageous a notion) against their destruction without the artist’s consent; accepting these suppositions as reality, there are likely to be then (as there are now) legal powers capable of being exercised by others so as to override the supposed protection of such works.

Created by Parliament, given to central, regional and local authorities, powers might be invoked through laws relating to: town and country planning and development; regulation of all buildings and other structures; regulation of fire hazards; development of road/air/rail/sea transport schemes, port/dockland/industrial development; and, through indirect central government control, the national and nationalised industries and services, such as coal mining or the NHS, may require the exercise of powers to acquire land and erect/demolish buildings. All of these powers, and others not mentioned, could cause artwork permanently sited to become the subject of orders for, say, compulsory purchase, removal from site, or even destruction – in order to facilitate, say a new road, port, defence installation, council estate, hospital and so on.

Some Solutions for Us

a. Contracts
It is still, of course, vital that unambiguous written contracts do achieve, as far as possible, agreement for the degree of permanence intended by the artist and commissioner.

b. Moral Rights Legislation
It is still necessary for Parliament to create Moral Rights legislation protecting artworks from abuse, and specifically including their relocation and destruction without the artist’s consent; but it will also be essential for publicly-sited works to be protected expressly against any overriding central/regional/local authority. Parliament alone can do this, should be asked to do so, and will certainly require realistic proposals to be put forward to enable such protection to be given.

c. Listed Public Artworks
One method of achieving overriding protection might involve the promulgation of powers through which artworks permanently situated in a public place could be ‘listed’ (rather like the listing of works of architectural merit). The power and duty to list artworks, might be given to one or a combination of the following: Minister for the Arts; Secretary of State for the Environment; Arts Council of Great Britain; Regional Arts Associations; national artists’ associations; or an independent institution specifically established and funded for such purposes whose members were drawn from those listed above.

In the Tilted Arc case, there was a contract dealing with permanence and there is also moral rights legislation, yet the threats to the work still arose and are very real. The vital issue for those involved over there, as well as for us here, is the existence of overriding governmental authority. Only the government of the day can change their order of preference in such matters and only if they are pressed to do so.

Where, may I ask, are we going?

© Henry Lydiate 1985
© ** Dwarf Music 1967

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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.