The Right to Destroy Artwork

Michael Landy’s Break Down installation on London’s Oxford Street opened to the public for two weeks in February 2001, and made national broadcast news headlines following the press view.

The work was commissioned by The Times newspaper and Artangel Open, who describe it as ‘Landy’s most personal and disturbing enterprise to date’. They explain: ‘Landy and a team of assistants will systematically weigh, catalogue and then take apart every single one of his possessions. His clothes, his furniture, his old photos, his records, his art, his books, everything will be broken down…’. The selection panel that commissioned the work comprised Richard Cork, Brian Eno, James Lingwood and Rachel Whiteread. Some of Landy’s possessions are said to include other artists’ work which he owns, and that they would be included in the destruction. Is that right?

Modern artists have benefited from the enactment of moral rights laws throughout most developed countries during the 20th Century. The UK Parliament did so through the moral rights provisions of the Copyright Designs and Patents Act 1988, which gives to artists for their lifetimes and for 70 years after their death the legal right to object to ‘derogatory treatment’ of their works in ways which damage their honour, integrity and reputation. Such ‘treatment’ includes any unauthorised addition or amendment to, deletion from, or alteration of, their works; but does not include the right to prevent the destruction of their works.

Moral rights laws derive from international intellectual property conventions which have been signed by most countries in the developed world, including the UK; such a commitment by signatory Governments requires them to enact in their own state laws which comply with the terms of the convention. In the case of moral rights laws, it is the terms of the Berne Convention which require the following: Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work, and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to the said work, which would be prejudicial to his honour or reputation’. Because each signatory to this Convention is required to enact within the domestic law of its own state the precise terms of the moral rights given to its artists, different moral rights provisions apply in different countries.

France was the country that developed the notion of what English speakers call moral rights, but which in the French language and culture are known as droit moral: these in turn flow from the broader social concept of droits d’auteur – author’s rights. In France today, the droit moral does give artists the legal right to object to, and prevent, destruction of their works.

In the UK, a most celebrated case occurred in relation to Graham Sutherland’s portrait of Winston Churchill. In 1954, Sutherland was one of the UK’s most renowned portrait painters, and he was commissioned by Parliament to paint Churchill, with a view to the picture being gifted to the subject on the occasion of his 80th birthday. This was done, but the painting disappeared from public view. It is well known, and documented, that Churchill loathed the picture: ‘it made me look half-witted, which I ain’t’; Churchill’s wife hated it even more.

Churchill died in 1965 and his wife in 1977, at which point the executors of Lady Churchill’s estate revealed that she had destroyed the work (although unconfirmed rumour has it that Churchill’s mistress did the deed in 1955). Following the announcement of the destruction, Sutherland is reported to have viewed it as ‘an act of vandalism’, but acknowledged that ‘I know Sir Winston didn’t like it’. This publicly debated incident was the first time for many years that issues surrounding the destruction of artworks occurred in the UK. Art critics, historians and curators entered into public debate to declare that the work was of excellent quality, and also to comment on the right – or otherwise – to destroy it: should the right to own property, and do with it as you will, override the public’s right to benefit from the experience of works of art; and so on.

The last notable public incident in the UK before this one probably occurred in the 1920s, when King George V ordered his portrait, painted by Charles Sims (of the Royal Academy) to be destroyed, because he disliked it intensely. In the case of Sutherland’s portrait, unlike Sims’, photographs of the work were taken at the time of the presentation and still exist today to give some record of the destroyed work. This raises other interesting issues in relation to copyright: at the time of the commission (1954) UK’s copyright law provided that the commissioner owned the copyright in a portrait painting, unless the parties agreed otherwise; presumably, therefore, Parliament owns the copyright in the work until 70 years after Sutherland’s death: not the Churchills’ estates.

Copyright law is an economic artist’s right (to prevent others from making financial gain from the product of the artist’s original aesthetic skill and labour); but moral rights laws are the artistic equivalent of the laws of defamation (which offer compensation for damage to an artist’s professional reputation). This distinction is an important one in Europe, where the EU is keen to harmonise the economic laws and frameworks of the 15 member states, through the issuing of Directives requiring EU member states’ legislatures to enact consistent economic legal provisions: VAT is one example; the proposed Directive requiring the enactment of artists’ re-sale royalty rights (droit de suite), is another. There has not been, and is not proposed, an EU Directive to harmonise member states’ moral rights laws. At present, therefore, France leads the EU in giving its artists the legal right to object to, or prevent, destruction of their works.

In the USA, the California State legislature enacted a provision which gave the public a right to object to destruction of artwork: ‘The legislature hereby finds and declares that there is a public interest in preserving the integrity of cultural and artistic creations’ (California Civil Code, Section 989). This is quite a step removed from the French droit d’auteur (the author’s right). Moreover, the California legislature passed a further law specifically to preserve a David Hockney mural he had executed on the walls of a swimming pool – without such a special provision, Hockney’s work would have been caught by another law which required all swimming pools to have white walls.

In 1989, the US Congress enacted The Visual Artists Rights Act, a federal statute that applies across the States; it includes the prohibition of destruction as well as derogatory treatment of artwork: because ‘society is the ultimate loser when works are modified or destroyed’ (it was said in the House of Representatives). Had Michael Landy’s installation occurred in the US or France, the artists whose works were destroyed in the process would have been able to object. Not so in the UK, which appears to place a higher premium on private property rights.

© Henry Lydiate 2001

 

 

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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.