Tomorrow is a Long Time

Alteration, defacement, mutilation, modification, deterioration and destruction of artworks are matters usually ignored at the outset by artists, their commissioners and/or buyers.

In future columns we will look at the conservation concerns of keepers of artworks (be they first-aid measures or major surgery); this piece examines conservation issues which should be dealt with at commissioning stage (i.e. preventive medicine). By way of introduction and illustration of these and other issues, let us briefly review an important test case currently being fought through the civil courts in the United States.

Robert Newmann’s Manhattan Mural
Blank walls abound in Lower Manhattan. An artist, Robert Newmann, wanted one. A rock music promoter, Ron Delsener, had one. It was on East 13th. Street: the rear wall of the Palladium Theater, whose front address was 126-128 East 14th Street. Delmar Realty owned the building, but leased it to Ron Delsener. In February, 1982, they made a deal.

The artist was allowed to install a ‘wall treatment’. The work involved a ‘subtractive process’, namely, sandblasting at fixed intervals in order to coax a variety of tones out of the bricks. The deal was to last until April 1988, and required the owner to use his best endeavours to persuade any new tenant to agree to the continuation of the project, in the event of a new lease being negotiated.

The Public Art Fund is a private, non-profit organisation that aids public exposition of art; The National Endowment for the Arts is similar to the Arts Council of Great Britain. Both agreed to fund the project.

Work commenced.

In March 1983, Delmar Realty negotiated a new lease with the Muidallap Corporation, which then blocked the continuation of the incomplete project; Muidallap proposed to paint the rear wall of the Palladium black and possibly install a new entrance in the wall – through the mural.

Work ceased.

In January 1984, the Artists’ Authorship Rights Act came into force, providing that works of art are not to be displayed publicly in an altered, defaced, mutilated or modified form, or in such a way that they might hinder the artist’s reputation.

In February 1984, the artist successfully sued the Muidallap Corporation (together with Delmar Realty) and obtained a State Supreme Court Order temporarily preventing Muidallap from destroying the mural. The court ruled that the continued display of the incomplete mural was to the probable detriment of the artist’s reputation, and a violation of the spirit of the Artists’ Authorship Rights Act; the judge also commented: ‘whether the plaintiff (artist) will choose to complete the work at the risk of its subsequent obliteration is for him to decide. He should not be compelled, however, to suffer display of the mural in its current, unfinished state.’

Moral Rights: Protection Through Contractual Terms
The first point to note is that this legal dispute arose not between the original contracting parties (the artist and the rock promoter), but between the artist and someone he did not originally contract with – the new tenant. The artist, therefore, had no direct contractual rights with regard to the new tenant, and would have found it very difficult to bring a successful legal action against him without the aid of the Artists’ Authorship Rights Act. This facet of the case illustrates the need for ‘moral rights’ legislation to be enacted in order to protect artists against all abuses to their works or professional reputations; without such legislation, artists are solely reliant for protection upon the terms of their contracts which can only bind the original – directly contracting other party – and only when alteration/mutilation clauses are inserted.

Contractual arrangements relating to the commissioning of public art have been the subject of considerable debate, discussion and writing in recent years. (See, for example, ‘Art Within Reach’ published in 1984 by Art Monthly in collaboration with the Arts Council of Great Britain and the Crafts Council). In this connection, there are three main areas of concern. First, the life of the proposed piece; this is frequently not discussed and agreed at the outset, but should obviously determine the contractual arrangements about to be made for the execution of the project. Second, therefore, arrangements should be made for execution; the artist, commissioner, site owner, funding bodies and any other involved parties should discuss and make contractual arrangements in careful detail (see ‘Art Within Reach’, at pp.84-94, for detailed appraisal and specimen forms of contract). Third, arrangements should also be made – at commissioning stage, remember – for the future maintenance and protection of the finished piece in the care of the proposed keeper; this should also take into account the legal liabilities in any event of the maker/artist for deterioration and/or inherent/latent defects.

Longevity is, of course, the first and paramount consideration. Planning permission, which may well be needed for the work, might be forthcoming only on a temporary or outline basis (witness Liliane Lijn’s Circle of Light, her kinetic sculpture installed at Milton Keynes in 1980, and now removed); the site owners may be temporary, on a short fixed term, or may sell up and leave – the new site owners may well not wish to be contractually bound by the original commissioning arrangements; similarly, the keepers of the work may change identities and cause similar difficulties; the continued existence of the work may well be over-ridden by the enforcement of superior legal powers such as compulsory purchase and other orders, local and central government projects for slum clearance, new town growth, green belt creation/ preservation, industrial development, road/air/rail transport schemes, and so on; and not forgetting, of course, the maker/artist who may envisage the work as a temporary and/or deteriorating piece in any event.

It follows, therefore, that written contracts containing ‘moral rights’ clauses, though always essential in order to clarify the rights, and obligations of all parties involved in the project, may on their own be insufficient. Complete protection will only be secured if ‘moral rights’ legislation is enacted in this country. To date, no such legislation has been introduced.

Moral Rights: Protection Through Legislation
The Artists’ Authorship Rights Act, introduced into New York State’s legislation last year, dealt only with alteration, mutilation and so on, but not with destruction of works. One of the arguments advocated against Robert Newmann was that the new Act did not seek to outlaw the outright destruction of works, but merely sought to protect artists’ reputations resulting solely from alteration/defacement/mutilation/ modification. Although this was rejected by the first judge, it is nevertheless a very strong point and may well find favour at the eventual court of trial and/or courts of appeal. It serves to illustrate the point that moral rights legislation, to be fully effective, must involve protection of such works from destruction – even to the extent of overriding any other legal powers given to local and central government by other legislation.

However, if artists are to become the beneficiaries of such powerful protective legislation (in common with their colleagues throughout most of the rest of Europe), they will no doubt be required also to receive corresponding obligations – for deterioration and inherent/latent defects in their works. In other words, Parliament is likely to say: yes, there will be protection against alteration (and so on) and destruction; in exchange for which benefits artists will be fully responsible for inherent/latent defects in their works. Artists should have no difficulty in assuming those obligations when put into statutory form, because the common law already imposes those obligations on all makers/artists in any event. Two vital question which will then arise, in this context, will be: how long should the protection last?; and how long should the artist’s obligations last? We return to longevity, once more; New York’s Daily News reported the outcome of Robert Newmann’s initial success as follows: ‘We’ll not quarrel with the decision. We wonder, however, if (the legislators) really had alfresco murals in mind when (they) passed the law. Preserving great art is an admirable goal, but if every painting on an outdoor wall has to be saved, New York is going to look mighty funny in a few years.’ Ay, there’s the rub.

Tomorrow Is A Long Time
Does the life of an artwork matter; if so, who decides – the artist, commissioner, buyer, funding body or the keeper – surely not Parliament or the Courts? Should we ask the conservationists, the guardians and protectors defacto of the artists’ ‘moral rights’ over works in their hands – or are they, perhaps, the abusers of those ‘moral rights’ by the very nature of their work?

It does matter to those concerned for the introduction of ‘moral rights’ legislation; it matters to those who have used and will be using ‘moral rights’ clauses in contracts for commissioning and/or selling works; it matters to makers/artists in any event (and irrespective of the presence/absence of contractual moral rights/obligations or their introduction through legislation) because they are all still responsible in law – as mentioned previously – for ensuring that all their works are ‘reasonably fit for the purposes for which they were intended’, are ‘of merchantable quality’, and do not contain any inherent or latent defects in the hands of any ‘consumer’.

Finally, the life of an artwork does matter to professional conservationists and keepers of works; their practices perennially pose this question: the distinction between conservation and re-creation. That will be discussed anon.

© Henry Lydiate 1985

 

 

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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.