Up Against the Wall: part 2
Moral, as opposed to economic, abuse cases are prevalent. One was discussed in last month’s AM issue, and here are some more. Each is a true story.
- Not satisfied with a completed canvas, the artist slashed the painting and threw it away. Retrieved by someone else and pieced together, the work was later sold as the finished work of the original artist.
- A sculpture, designed and installed for a particular public place, which proved controversial, was removed by the Local Authority to another place considered by them to be more appropriate; the sculptor did not.
- The owner of a mural comprising nude figures commissioned another artist to paint clothes on the figures, and refused the original artist permission to remove his signature from the altered work.
- A 2000 sq.yd. sculpture garden created by an artist on commission was later filled in with concrete by the owner.
Some would argue that each of the above artists should have been more careful: in the first case the canvas should have been burned, not slashed; in the remainder, the contract of commission or sale should have included an abuse or future care clause whereby the commissioner/owner would have agreed not to commit such an abuse. Others would argue for moral rights legislation to protect all artists against such atrocities. Before considering the need for legislation, it is essential to consider – if only to reject – the possibility of artists achieving sufficient protection through existing law, namely the law of contract.
Contractual Moral Rights?
The idea of including in a commission/sale contract an abuse clause is constructive, but the arguments in favour of that as the solution to moral abuses is weak. If the contracting party, say the first owner/commissioner, were to sell or give away the work to a third party, the latter would not have been a party to the original contract and so could not be sued for breach of a contract he did not agree to. Moreover, most contracting artists are usually in the weaker bargaining position when – ever grateful for the offer of a sale – the terms have to be negotiated; most find it difficult if not impossible even to raise the subject of future care of work.
Increasing numbers of artists and some galleries do successfully use written contracts of sale/commission, and many do include future care clauses. But although considered valuable by those who sign them, they by no means evidence the existence of comprehensive protection for all artists against moral abuses. They do, however, prove the increasing awareness of the need for protection of artworks; (see later for examples of contractual terms currently in use).
Need for Legislation
There are abuses. There are no existing laws offering comprehensive protection.
Legislation must be considered. Sixty-one states have satisfied the unmet needs of their arts communities by introducing moral rights legislation. It is to those other laws that we can look for inspiration. There are five areas of abuse where all artists have been given the absolute right to take appropriate legal action to deal with abuses past, present and future.
The Right to Create
Two celebrated legal battles illustrate the need.
Bonheur v. Pourchet (1865)
Pourchet commissioned Bonheur to paint a work which the artist later refused to execute, and Pourchet sought a court order forcing the artist to complete the work. The court refused the order and instead ordered the artist to pay damages.
Whistler v. Eden (1898)
Whistler was commissioned by Eden to paint a portrait and executed the work. Prior to delivery, Whistler successfully exhibited the work and the resulting acclaim caused him to raise the purchase price. Eden refused to pay. Whistler then painted out the subject’s head and Eden sued him, asking the court to order Whistler to restore the head and deliver the work. The court refused and instead ordered Whistler to pay damages for breach of contract.
In France, the law protects artists from being forced to create work they, in their sole professional discretion, do not wish to make – despite being contracted to do so. In many countries there is no such protection and artists do not enjoy such freedom of expression; there the need for legislation is clear. In the United Kingdom, fortunately, such protection is given by our common law of contract (developed over a thousand or more years by our judges and commonly accepted throughout the land). The law is clear: as a matter of public policy, a contract for personal services will not be enforced because to do so would amount to servitude. This applies to artists and, in any event, the collector/commissioner is given a perfectly good remedy in payment of damages. This is the only moral right existing for artists in this country.
The Right of Artistic Integrity
There are two areas of need: protection from alteration and from destruction.
Protection from alteration, distortion and mutilation
As our law currently stands, owners have absolute freedom to change colour, form, content and materials. The following cases illustrate the need for protection.
David Smith’s painted sculpture 17 h’s was sold to a dealer and resold to a collector who stripped it back to the metal. In America, Smith was powerless; the work is still attributed to him and will no doubt be further re-sold as his work.
Bernard Buffet painted panels on a fridge and gave the work to a charity for auction. It was bought by a dealer who cut off the panels and proposed to sell them separately. Buffet was able to prevent the sale of the mutilated work, but would have been powerless to do so in this country. No law in the United Kingdom would give Buffet the right to prevent mutilation or the sale of the parts.
Witness Michaelangelo’s work on the Sistine Chapel.
Terry Fugate Fox created a piece, 7000 AD, out of lead and gold. It was bought and the collector later severed the gold half to sell it simply as gold on the gold market. Fox was powerless to prevent this. (In fact, he persuaded another sympathetic collector to buy both halves and allow Fox to put them back together again). All artworks in this country remain unprotected from such abuses by their owners.
Destruction of artworks
The ultimate mutilation. The case mentioned last month is a good example; Sutherland’s portrait of Churchill, said to have been destroyed by his widow; the destruction of the Crimi frescoes in the States; and Flanagan’s construction at Laundress Green in Cambridge which was allowed to be vandalised to destruction: all classic examples.
Even the French, the leaders in moral rights legislation, have stopped short – so far – of enacting a law protecting privately owned artworks against destruction. The reason is clear. Traditional property rights include the absolute right to destroy what you own. Nevertheless, society does accept the concept of conservation of our environment and tries to protect our public places and spaces through planning laws, building regulations and the like. Why not artworks?
The Right of Disclosure
This would give the artist the absolute right to decide when a work was complete and ready for release.
In 1917 the painter Georges Rouault contracted to consign all his output to Ambroise Vollard, a dealer, in exchange for a stipend, with a specific term allowing Rouault alone to decide when a work was finished which he would signify by signing the canvas. In 1939 Vollard died and his heirs claimed 806 unsigned paintings stored in the gallery, which Rouault counter-claimed were his own because they were unfinished i.e. unsigned. The court ordered their return to Rouault not only because of the contractual term but also because it was held to be the moral right of the artist alone to determine when a work was complete.
In the absence of such a term in a contract, an artist in this country contracted to consign or sell their output to a gallery; would find it difficult to prove this arguable point. Legislation giving the right of disclosure would avoid the argument.
Prince Albert made several etchings never intended for public view. The printer improperly allowed copies to be made which an exhibitor named Strange proposed to show and had published in catalogue for the show which contained the images. This was in 1849 when our copyright laws did not offer the protection against part of this abuse (unauthorised copying) which they do now. Prince Albert succeeded in preventing the exhibition and publication as a breach of the law of trust or confidence. This most unusual decision, based upon its own peculiar facts cannot be regarded as a legal precedent enabling all artists to prevent inappropriate release of their works today.
The Right to Control Public Exhibitions
The Whitney Museum held an exhibition called ‘Two Hundred Years of American Sculpture’, and borrowed a piece from Carl Andre who withdrew it when he viewed its placement in the show. The museum then replaced the work by another which they owned, and Andre was powerless to prevent them. They owned the piece absolutely.
Spain has now introduced the following law in these terms: the transfer of a work of art does not constitute a transfer of the right of public exposition of the work, unless there is a contrary agreement. A balanced provision, allowing the artist and buyer room to negotiate.
The Right of Attribution
There are three elements of the right to attribution, often called the paternity rights: to claim authorship of a work; to declare that a work, purportedly that of the artist, is in fact the work of another; and the right to declare that because a work has been altered, without the approval of the artist, it is no longer to be regarded as the work of the artist.
The right to claim authorship
Two problems frequently arise: non-attribution and wrongful attribution.
Vargas created the ‘Vargas Girls’ in Esquire magazine and sued the publishers for not including his signature on the drawings. He failed because the commission contract did not include a term specifically requiring the magazine to publish his signature, and American law did not give artists the right to be credited as author. Our law is the same.
If a Henry Moore sculpture were to be wrongly exhibited as being the work of
John Moore, Henry would have no legal remedy to insist that he be correctly attributed as the true author.
The right to deny an attribution
The same example (Henry Moore, above) also illustrates this need: John Moore also would have no legal remedy to insist that he not be attributed as the true author.
John might have a remedy under current English law, but only if he could prove that the work was to be sold under his name.
Alterations and authorship
If a Henry Moore sculpture is altered by someone other than the artist, then exhibited as the true (unaltered) work of Henry Moore, there is no remedy in English law. However, if the altered work or a reproduction of it were to be offered for sale as the true (unaltered) work of the artist, then Henry might have a remedy under our current copyright law, but only in very limited circumstances.
There is still no general artist’s right to prevent alterations or to sue for damages to their reputations which the alterations might have caused.
Artists Moral Rights Act 19…?
The likelihood of an Artists Moral Rights Act being introduced into the laws of the United Kingdom in the foreseeable future is very remote. The very nature of the unmet need for protection from abuses is that they are moral, rather than economic, in most cases. And without an economic motive to spur the community of visual artists on to lobby Parliament for such laws, it is inconceivable that any government would consider bringing forward such legislation of their own volition. And have they not done enough already? After all, they did sign the Berne Convention.
The strongest existing lever which might force the issue, is the fact of the United Kingdom Government’s outstanding international obligation to ensure that artists’ moral rights do exist within our law. That was and remains our Berne Convention obligation. A strong and united voice representing most artists in this country might succeed in persuading a government to introduce such laws; to do so would cost the taxpayer nothing.
Meanwhile, artists wishing to exert an influence over sold work must rely on written contracts. In this way at least first owners might be persuaded to respect artists’ moral concerns. Examples of such clauses currently used are:
The purchaser agrees not to intentionally destroy, modify or alter the work;
The purchaser agrees to maintain the work in good repair; and it is further agreed that if the work is altered, damaged or in need of any restoration, then
- the artist will be consulted before any restoration is commenced; and
- the artist will be given first opportunity to do the restoration; and
- if the artist does the work, s/he will receive reasonable payment.
The purchaser agrees that the artist may borrow the work for the purpose of exhibition for up to forty days every five years, on the following conditions:
- the artist must supply written notice of intent 90 days prior to the opening of the exhibition; and
- the artist must insure the work for the reasonable market value of the work; and
- the artist must repay the costs of transport.
However, it is for the artists or their agents/dealers to persuade the buyers/commissioners to agree to the inclusion of such terms – always assuming, of course, that a written contract is acceptable to both sides.
In 1979 the artists of California finally succeeded in persuading their State legislators to enact The California Art Preservation Act. This is the sixty-first state in the world to introduce moral rights legislation.
© Henry Lydiate 1983
(With great credit and many thanks to the Australian artlawyer, Shane Simpson for the use of the Moral Rights chapter in his book, ‘The Visual Artist and the Law’ pub. The Law Book Publishing Co. 1982)