Ownership

When is a ‘work’ completed? Is it when the artist releases it for public viewing, and/or only if released for sale? What is the status of a work an artist (or a deceased artist’s estate) disowns after its release? These and other perplexing questions were explored by an array of commercial and non-commercial contemporary art specialists at a unique event held in April 2019. ‘Object Lessons: The Panza Collection Initiative Symposium’ was organised by the Solomon R. Guggenheim Museum, New York, in partnership with the Getty Conservation Institute, Los Angeles.

The Panza Collection Initiative (PCI) ‘focuses on the extensive collection of Minimalist, Post-Minimalist, and Conceptual art from the 1960s and 1970s that the museum acquired from Italian collector Giuseppe Panza di Biumo in 1991 and 1992, and its long-term preservation and future exhibition’. Funded by the Andrew W. Mellon Foundation, PCI has been a decade-long research project that prompted the symposium’s exploration of related ‘questions surrounding the changing status of the art object after 1960’.

Status is a key question: it can connote either a subjective or objective standpoint. In the artist’s view work may be unfinished or in progress, but others (into whose hands work may pass) could view it as completed. The PCI research underlines the need to respect the artist’s decisions about the status of work before it passes into the hands of others, rather than others imposing their own view of a work’s status when making decisions about, say, its physical treatment, public exposition, cultural or market value. If an artist has not made clear the status of work before its release, divining an artist’s intentions subsequently can be a difficult if not impossible challenge – especially if the artist has died.

Before deciding a work’s suitability for release, artists are uniquely empowered to determine its status when viewed by others in the public arena. Concepts and ideas for work may be inchoate until manifest through heuristic processes of trial and error, in a journey of exploration towards what may become ‘work’ for release to outsiders. Work may then, for example, be ‘signed’ in some way that customarily signifies it is ‘authorised’ and suitable for release to the public. In recent times many artists choose not to sign works that they release; as a result collectors and art professionals have developed a now common practice of requiring a certificate of authenticity signed by the living artist (or their estate) before acquiring or trading a work. Authenticity certificates can help establish whether a work is genuine and completed.

Further and perhaps better actions could be taken by artists to control the status of work before release. A key issue for institutional and private collectors as well as art market professionals is whether a work is acquired or traded as being unique, or one of an edition or series (numbered and limited or otherwise). Collectors do not want the value of their unique or limited acquisition undermined by further versions being issued by artists or their estates (who invariably own copyright, which gives them the legal right to make further versions of works they have already released). Collectors and artists (or via their primary sales agents/dealers) could ideally guarantee in written purchase agreements the unique or limited nature and extent of work being acquired for the first time (whether or not also attested in a separate artist-signed authenticity certificate). In any event an artist’s otherwise good name and ethical reputation in the contemporary art world would be seriously undermined if they were to make and market a work beyond a unique or limited number the artist had expressed or implied at point of release (for sale or otherwise).

Works made by a readily replicable process pose particular difficulties in these respects. For example: photography, film, printing, casting (from moulds) are techniques and processes that artists may use to replicate or reproduce the first positive/original image/object. Technological innovations have enabled images/objects to be manipulated to produce an infinite variety of works ‘struck’ from the original. And it has been long-established custom and practice for artists to securely safeguard original artwork, to document the nature and number of any edition before release, and to safeguard or destroy the means of others making unauthorised reproductions (such as by securely archiving celluloid negatives or destroying printing plates). In these ways artists buttress the unique or limited status of work that, ideally, they will have also documented as such before release. Destruction, however, is also a traditional means of artists guaranteeing that work unsuitable for release does not fall into the wrong hands.

Art history records that artists have always destroyed their own work, for many and varied reasons, including unsuitability for release: they have an absolute right to do so. A recent case demonstrates the importance of artists ensuring that such self-destruction is done. In 2016 Gerhard Richter discarded four post-card sized photographs that he had streaked with oil paint and deemed ‘not good enough’, putting them in a rubbish bin outside his home in Germany. An opportunist retrieved them from the bin, and consigned them for sale to a leading Germany-based auction house that contacted the Gerhard Richter Archive for provenance and authenticity checks: both were denied. The recent criminal conviction of the opportunist for stealing and attempting to sell the discards was instructive. The court decided that even though the artist ‘had the desire to dispose of them’ the discards remained the artist’s property; and that the discards were unsigned and therefore ‘not authorised to be sold in the market place’. The court ordered the opportunist to pay a fine, and the discards to be confiscated. Richter wants the discards destroyed.

If released work becomes the legitimate property of another, artists no longer have absolute rights and powers as first owner. But neither are a subsequent owner’s rights absolute: they are restricted by artists’ statutory moral rights of paternity and integrity. Enforceable throughout most of the world, artists have the legal right to respect for their name and status as author, and of their works. Sometimes moral rights are exercised by artists disavowing work that has been mistreated by an owner. In 2017 US-based artist Cady Noland sued an owner of her installation Log Cabin, 1990, for mistreating it by discarding original materials for conservation purposes without consulting her. Noland disavowed the work and claimed it should be destroyed. Several years previously she had forced Sotheby’s to withdraw from auction her work, Cowboys Milking, 1990, which she disavowed because all four corners of the fragile aluminium piece had been damaged to the extent that ‘the current condition of the work materially differs from that at the time of its creation’.

It would be wise and prudent practice for artists throughout their career always to maintain a record and inventory of the status of all work, whether archived or released to the public domain. Let us leave the last word to Picasso: ‘To finish a work? To finish a picture? What nonsense! To finish it means to be through with it, to kill it, to rid it of its soul, to give it its final blow… the coup de grâce for the painter as well as for the picture.’

© Henry Lydiate 2019

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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.