Nothing is Forever

It seems that the number of artists whose works suffer minor indignities or major censorship at the hands of the powerful will continue to increase until kingdom come. But nothing, as Pat Lally observed, is forever.

Pat Lally is leader of the Glasgow District Council Labour Group and his remark on the fleeting existence of things was part of his explanation of his rejection of the murals in Glasgow’s Concert Hall. His rejection was given to the artist without notice and in front of approximately 150 guests at a dinner to which the artist, Ian McCulloch, his family, friends and colleagues has been invited.

The dinner marked the handing over of the paintings by Strathclyde Regional Council, the original commissioning body, to Glasgow Cultural Enterprises, the company through which Glasgow District Council owns the Concert Hall. Lally informed the assembled multitude that he would have the murals removed on the first anniversary of the hall’s opening. The shock which greeted his announcement was partly to do with the manner in which it was made, but it was mainly because almost everyone concerned with the original commission, the artist and Strathclyde Regional Council, had believed that the works were to be on permanent display in the Concert Hall. The rubric of the competition stated that the artists would provide ‘the completed paintings for permanent display in the chosen location,’ and until Lally intervened there had been no doubt as to where that would be – the foyer of the concert hall. However, it also said that Strathclyde Regional Council would ‘notify the selected artist if they sell, lend or otherwise part with the possession of the commission, and such notice will include the name and address of the body which has acquired possession of the commission and where the commission is housed.’ It appears that the artist is caught between the sword and the wall: whilst the whole selection procedure, the judging process, the international nature of the competition, the award of £50,000 – all these elements – indicated that the work was to be on permanent display in the Concert Hall, the rubric of the competition also made clear that ownership of the murals could change. Strathclyde Regional Council cannot be faulted on their treatment of the artist. The second owner was, unfortunately, not so careful.

HOW TO RUIN AN ARTIST’S DINNER No. 27
Tell him or her that their recently completed mural commission has been rejected, but wait until the dinner in honour of the artist and then tell them in front of all the guests.

The artist has since mounted what is essentially a political campaign which has been successful in the amount of press coverage it has attracted, but appears unlikely to achieve a permanent display of the paintings. He is, after all, fighting a past master on his own ground. Even if the artist is able to inflict political damage on Lally, the paintings seem destined to come down.

There is another possible course of action which we will discuss here: the artist’s statutory moral rights given by the Copyright Design and Patents Act 1988, which gives the artist the right not to have his work subjected to derogatory treatment, but would this view coincide with the definition of ‘derogatory treatment’ given in the Act?

Treatment of a work is defined as ‘any addition to, deletion from or alteration to or adaptation of the work’. McCulloch was commissioned to make a work for permanent display and he undoubtedly did this. Pat Lally admitted the importance of the location of the work when he explained why he wanted to have it removed: ‘There has to be a degree of harmony and empathy between paintings and their environment’. Site-specificity in other words. To remove the murals from the site for which they were designed, surely amounts to treatment of the work both its meaning and visual effect will be considerably adapted and altered; and indeed maybe added to and/or deleted from.

Having established that what Lally is proposing is a ‘treatment’ of the work, we then have to ask whether or not this treatment is derogatory. According to the Act the treatment of the work is derogatory if it ‘amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour and reputation of the author’. Surely the removal of a site-specific work is prejudicial to his ‘honour and reputation’. And the removal in such a manner, without consultation with the artist as to where else the work should go, or even informing him of the decision to remove it, arguably aggravated the artist’s grievance.

The Act also defines what it means by an infringement of an artistic work, it includes exhibiting in public a derogatory treatment of the work. Any legal action taken by the artist to defend his moral rights would be difficult. The case is not absolutely clear cut in the terms that the law lays down nor is there as yet any indication of the kind of remedies that the courts would propose if it were to decide in favour of the artist. However, the artist involved in this case has made it clear that he is prepared to put considerable effort and go to some expense in fighting a political battle to right the wrong that has been done him. If he is serious about standing in the next election, and it appears that he is, he may be better to consider a moral rights action. Ultimately, it has more likelihood of success in gaining him some tangible redress and it could possibly set a precedent from which all artists could gain.

Is there a case for Lally et al to answer? Morally, of course, there is, but, in UK law, there is as yet no precedent to help lawyers advise the artist as to how the courts might judge the unique circumstances of this case. Such a legal action would indeed be unprecedented; the act came into force less than two years ago. It would also be expensive to pursue.

One further, possibly decisive, argument that might be used against the artist may well be found in the terms of his original commission agreement. The commissioner and artist seem to have agreed that parting with possession was both contemplated and permissible – so long as the artist was notified where the work had gone. This probably amounts to a contractual ‘waiver’ by the artist of his statutory moral right to object to any such removal on the grounds that it would prejudice his ‘honour and reputation’. The Act specifically provides that artists are allowed to waive – forego – their statutory moral rights. Perhaps this is why the artist is now diverting his energies and expenses into fighting a political battle to right the moral wrong he is suffering. We wish him well and would seek to draw from this unsatisfactory scenario some lessons:

  1. Site-specific commissions require clear contractual terms tying down the site owner (not necessarily the same body as the commissioner) to keeping and maintaining the work – and for as long as need be.
  2. Whether or not site-specific artists and commissioners should agree whether the completed work is, or is not, to be owned by someone other than the artist (assuming the work will be movable).
  3. Whether or not site-specific or owned by someone other than the artist, commission agreements should clarify that the completed work will not be subjected to any addition, amendment, alteration, deletion or even complete destruction – without the artists express consent.
  4. As for non-commissioned works intended by artists to be allowed out of their possession at some stage during their lives or during the fifty years after death, that the work has indelibly marked on it a declaration about copyright ownership and the existence of statutory moral rights including identification as author and absolute protection against any derogatory treatment.

All of that is easier said than done. What it takes is a lot of foresight and a little legal help at the outset; the former is a quality possessed of artists in spades; the latter can be quite difficult to find, we know. Hence this little piece of hindsight.

© Henry Lydiate & James Odling-Smee 1991

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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.