Moral Lights

Appropriation – without a capital ‘a’ – of images by artists has been common practice throughout art history.

Artists whose images are appropriated can and do use national and international copyright laws to take legal action against unlawful appropriators, but sometimes a whole artwork – the material object, rather than images embodied in it – is appropriated into another artist’s work. Do artists have any legal rights over physical use by others of artworks they no longer own?

A relevant case involves Jake & Dinos Chapman, who acquired a suite of 80 Goya etchings printed in 1937 directly from the artist’s original plates: Disasters of War, 1810-20. The Chapmans systematically went through all the prints and changed the victims’ heads to images of clowns and puppies, producing a body of work that they exhibited as their own: Insult to Injury, 2003. As intended, this new work generated much media attention and fierce debate for and against the use of Goya’s originals. Jake had red paint thrown over him while delivering a gallery talk and numerous critics viewed the artists’ process of working as an act of vandalism defacing artistic treasures. In his book on Goya, art critic Robert Hughes asserted that Goya ‘will obviously survive these twerps, whose names will be forgotten a few years from now’. Conversely, the artists themselves, and supporters of their work, argued that Goya’s etchings were not vandalised because the artists offered a new interpretation of the prints.

None of the media coverage and debate over the Chapman brothers’ appropriation of Goya’s work embraced the legal issues involved and arising. This is understandable because Goya died almost two centuries ago, at a time when the legal rights of artists and their descendants were largely undeveloped and the legal right of property owners to do as they wish with their possessions was paramount. However, within a century of Goya’s death the industrial revolution had spawned widespread mass production techniques and communications technologies, which caused governments in developed countries to promulgate international treaties giving legal rights to creative artists to protect their original works against exploitation.

In 1886 the Berne Convention for the Protection of Literary and Artistic works gave creative artists international protection against unauthorised economic exploitation of their works. In 1928 the Convention was revised to add further protection against non-economic abuses of works, introducing moral rights. Nearly all countries have now enacted moral rights laws which automatically give their artists at least two basic protections: the legal right to claim authorship of a work; and the right to object to any mutilation, deformation or other modification of, or other derogatory action in relation to, the work that would be prejudicial to the author’s honour or reputation. Many countries have extended the two basic moral rights to include theright of withdrawal, whereby an author can prevent further reproduction, distribution or representation, in return for paying compensation to a distributor of the work who suffers resulting economic damage.

Berne requires that moral rights endure for at least the same length as copyright (lifetime of the artist plus 50 years after death, enforceable by their descendants). Some countries, such as the UK, extend the period of moral rights to 70 years after death. The US was reluctant to introduce moral rights into federal law until 1990, and did so via a curiously narrow statute (The Visual Artists Rights Act) that effectively applies to works made after 1991 and only lasts for the artist’s lifetime. Many other countries have enacted perpetual moral rights (often enforceable by the state if the artist’s descendants die out).

Within this contemporary national and international legal framework, let us now consider a very recent case concerning a Dan Flavin work: Puerto Rican Light (to Jeanie Blake),1965, which comprises one red and one yellow vertical fluorescent light tube, each about 8ft high, flanking a pink tube about 4ft high. The work was named after a gallerist who told Flavin that the work’s colours reminded her of Puerto Rican lights. Flavin intended to make an edition of five, but executed only three before his death in 1996. One version of the work was acquired by the New York-based Dia Art Foundation.

Jointly with the Conservation Trust of Puerto Rico, the Dia Art Foundation subsequently commissioned a new site-specific work from the collaborative Puerto Rican-based artists Jennifer Allora & Guillermo Calzadilla. The new work is sited in a remote tropical cave, a roost for thousands of bats which are preyed upon by boa constrictors and cats. The Foundation made Flavin’s work available to the artists from its collection, and the duo installed it high up in the cave in a hermetically sealed glass case to protect it from humidity and wild fauna. The light tubes are powered by solar panels installed at the cave’s mouth. The new work, Puerto Rican Light (Cueva Vientos), opened on 23 September 2015 for two years, and can be accessed via guided tours for small groups until September 2017 (www.puertoricanlight.org).

Controversy now surrounds this work, which has been criticised for using Flavin’s original inappropriately. In particular, strong objections have been voiced by the artist’s son Stephen on behalf of his father’s artistic estate. The principal objections are that a work of art by one artist should not be taken from an institution’s collection and used to satisfy an egotistical gesture by another artist, and that a work of art should not be placed in a context that is completely alien to the original artist’s concept, with complete disregard for that concept. This particular placement requires an enclosure to prevent bat excrement from accumulating and this alters the physical shape of the original work; it is claimed that this is abuse of the actual work of art, and therefore the work itself becomes a component of its own abuse. Further, the work should not be claimed to be the art of another artist, with a new title to reinforce this claim, and institutions charged with the support and care of works of art should not allow and facilitate such abuse by providing an actual work of art from their collection as a plaything for another artist and by providing space in which this abuse may take place. Finally, this abuse should not be rationalised with high-minded arguments in its favour, under the ambiguous concept of ‘appropriation’. Flavin’s Estate also asserts that the new installation bears no relation to the work of Dan Flavin: it ignores concepts of composition and architectural context, which were key components of his fluorescent light installations, and the Estate is troubled that Allora & Calzadilla felt comfortable laying claim to this installation as part of their own art and not as simply a curatorial effort.

Thus the Estate raises substantial artistic, ethical and legacy issues and objections, which illustrate compelling reasons for the introduction of artists’ moral rights legislation throughout most of the world for the artist’s life and beyond. Of course, in the US an artist’s moral right (to object to derogatory treatment of their artwork that is prejudicial to their honour or reputation) ends at death and does not apply to US artists’ works made before 1991 – this is no doubt why Flavin’s Estate could not take legal action in this case.

© Henry Lydiate 2016

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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.