The art world’s general manoeuvring towards online exhibiting and selling because of physical distancing restrictions during the Covid-19 pandemic has seen increased use of digital technologies to communicate images of artwork to spectators prevented from physical viewing.
Artists employing such technologies to communicate their artwork may personally control the nature and quality of their images, whether those images are born digital or born physical and reformatted digitally. If, however, the original physical artwork is no longer in possession of the artist (whether having been sold, lent, consigned or donated), then whoever now possesses the artwork should ensure that any reformatting they intend to execute does not violate the artist’s legal rights of quality control via moral rights legislation.
Artist’s statutory moral rights are given by laws of most countries worldwide as soon as an artwork is created. Lawsuits concerning the exercise of such rights are rare. One was launched recently in the US that merits consideration.
Pat Lipsky is a New York City-based artist whose painting practice for the past six decades or so developed from critical recognition in the influential ‘Lyrical Abstraction’ touring exhibition, which concluded at the Whitney Museum of American Art in 1971, to being widely recognised now as a leading practitioner of the Color Field movement, with works collected by over 25 public-facing institutions across the US. Lipsky’s professional status as such an artist is a key element in her lawsuit.
Spanierman Gallery is a New York City-based dealership that currently exhibits for sale the works of around 20 artists. Artspace is a New York City-based online platform exhibiting for sale contemporary artwork, which was subcontracted by Spanierman to market and sell a Lipsky painting, Bright Music II, 1969. Both art businesses are currently being sued by Lipsky for violating her statutory moral rights by publicly exhibiting distorted digital images of Bright Music II. The mistreatment Lipsky alleges is the digital lightening of colours beyond those of the physical original painting, and that such lightening damages her standing and reputation in the eyes of those who would recognise a significant lowering of the customary colour qualities of her paintings.
Lipsky’s suit further claims that the digital image both Spanierman and Artspace exposed to public view had been ‘digitally manipulated to disguise damage to the raw areas of the canvas, most likely due to moisture, mold, and or mishandling’, and that this digital treatment ‘grossly distorts the work’s overall color palette, substantially muting the colors of the work’s composition and making them appear chalky and lifeless’.
Spanierman and Artspace have now removed the contentious digital image from public view, yet Lipsky continues to sue for a court decision ordering Spanierman and Artspace to pay financial compensation for damage to the artist’s reputation resulting from violation of her statutory moral rights. Lipsky asserts that she saw ‘her painting sales drop’ following Spanierman’s online exposure in 2019 of the digitally manipulated image of Bright Music II (after the painting had been consigned to the gallery for exhibition and sale by the then owner).
The legal basis for Lipsky’s lawsuit is not US federal law, but a law enacted by the legislature of New York State that applies to acts or omissions occurring on or after 1 January 1985 within the territorial boundaries of that state: the New York Artists’ Authorship Rights Act 1984 (NYAARA). All parties to the lawsuit and the acts complained of are located within New York state.
NYAARA gives artists the right to take legal action ‘if any person knowingly displays, in a public place within the state, the artist’s work (or any reproduction of it) in an altered, defaced, mutilated, or modified form’. And the law requires the artist to show that ‘the display must be reasonably likely to damage the artist’s reputation or has resulted therefrom’. As for legal remedies, the law allows an artist to claim authorship or, upon a showing of just and valid reasons, to disclaim authorship of a work of art, and to be awarded financial compensation/damages payable by any moral rights violators.
A significance of this case is that NYAARA pre-dates by six years US federal law enacting statutory moral rights for artists throughout the nation (via the Visual Artists Rights Act 1990). However, as Lipsky’s lawyer explained, ‘the federal statute does not apply to the distortion of images of artworks but only to the physical distortion and destruction of the actual work, while the older New York law expressly covers reproductions, such as photographs used for sales purposes’.
Throughout the EU, artists’ statutory moral rights closely resemble those given by NYAARA, including rights over public exposition of reproductions of works. In the UK (today and post-Brexit, come what may), the Copyright Designs and Patents Act 1989 gives artists automatic rights over both their physical artworks and any visual image of them – for their lifetimes plus decades after death, notably when the original object is not in their possession and/or ownership. Three key moral rights apply whenever an artwork or visual image of it is exposed to public view: the paternity right to be identified as author, the reverse right not to be falsely attributed as author of a work the artist did not make, and the integrity right not to have the work suffer derogatory treatment (such as addition to, deletion from, alteration to, or adaptation of, the original work).
Applying UK moral rights laws to Lipsky’s suit to remove the digital image from public viewing in any sales drive: this could amount to false attribution of authorship of an image of a work Lipsky did not make (in that distorted form). And public exposition of a distorted visual image of the painting could amount to a violation of the artist’s moral right of integrity.
Furthermore, statutory moral rights under UK law specifically extends liability (for moral rights violations) to traders in art who possess or deal with a work (or visual image of it) that has suffered derogatory treatment – and such traders would be liable even if they did not themselves create the derogatory treatment.
Art-market practitioners would be prudent and wise to take proactive steps to take care that any digital images of contemporary artwork they make and/or use for sales purposes do not violate the artist’s statutory moral rights of quality control.
© Henry Lydiate 2020