Who owns Elizabeth Frink?

Elisabeth Frink’s Desert Quartet, 1990, comprises four bronze sculptures commissioned in 1985 by property developers The Avon Group as an integrated external feature of their then new Montague Centre shopping precinct in the coastal town of Worthing, West Sussex.

A public row has recently blown up over The Avon Group’s plan to replace Frink’s work with new sculptures chosen by the group from its recently launched £10,000 prize competition. It is not known what the group proposes to do with Frink’s bronzes – install them in another public location, keep them privately, donate them to a public museum, or sell them (resale values have been speculated as being around £1m). Whether Avon has the legal right to do any of these things – even remove them – lies at the heart of the public wrangle.

In 1991, Eduardo Paolozzi, one of Frink’s contemporary fellow sculptors, founded the Public Monuments and Sculpture Association (PMSA) to protect and promote public sculpture in the UK. The PMSA has joined forces with the Twentieth Century Society (TCS), the national amenity organisation that fights to safeguard the best of architecture and design in Britain from 1914 onwards, and the local Worthing Society, to prevent the planned removal of Frink’s work. Jo Darke, director of the PMSA, said: “This series of four bronze heads cannot be replaced by new sculpture “of the same quality” for a single reason – it is unique and endows Worthing with a work of art of a quality and value few other townscapes can claim. The PMSA vigorously supports new public sculpture of good quality, but never at the expense of a unique example such as Desert Quartet. Any town or country should be proud to have ownership of this series. It is irreplaceable and should be celebrated, not dismantled.’ And Catherine Croft, director of TCS, said: ‘We are campaigning against the removal of the Desert Quartet, not just because it is a unique and powerful work that looks great in its current setting. There is also a broader principle at stake here. Where a fine sculpture is installed as a condition of a planning consent we want to make sure that it stays in place. The intention was that the Frink heads should bring pleasure to the public permanently. Public sculptures should stay where they belong – in full view of the public.’

Croft’s reference to planning consent is significant. Desert Quartet’s original installation was imposed by the local planning authority as a condition of planning consent for The Avon Group’s construction of the Montague Centre. Crucially, the authority, Worthing Borough Council, stated that Frink’s work should be ‘permanently placed’; its removal and its replacement should also require the Council’s legal authority.

The joint campaigners against the removal and replacement of Desert Quartet have recently made an application to the Department of Culture, Media and Sport (DCMS) requesting its legal ‘listing’. The secretary of state for the DCMS has legal power to protect important artistic or architectural property that is in imminent danger of damage or loss, by specifying or ‘listing’ that it should not be altered, destroyed or removed. For example, in 1993 a dispute arose between the owners of the Time-Life building in Bond Street, London, which had been legally listed in 1988 when the building included a fixed sculpture by Henry Moore, Draped Reclining Figure, 1952-53. Time-Life later sold the building – including the Moore as a fixture – to new owners who, in 1993, wanted to remove the work when they relocated from Bond Street: listing and planning laws prevented them removing the Moore.

Professor Fran Lloyd, the 20th-century sculpture expert, has appraised Desert Quartet anther written report to the DCMS argues that ‘the townscape setting of this four-part work, developed in collaboration with a major architect, is unparalleled in 20th-century Britain. This, together with the superb handling of materials, the subtle perspectival alignment and the monumental scale, makes this an extraordinary example of public art’, and concludes: ‘I have no hesitation in recommending that these sculptures by Elisabeth Frink together with their supporting piers and loggia are an architectural structure of truly outstanding quality, and that they should be included in the statutory list at the highest grade, Grade I.’

The joint campaign also challenges The Avon Group’s assertion of ownership of the work, on the basis that it was demonstrably given to the people of Worthing by the group at the public unveiling ceremony in 1990. In any event, the fact that the group asserts its ownership of the Frink work and therefore has legal rights to remove and replace it, can be overridden by listing and planning laws, if the secretary of state decides that the public cultural interest has a superior claim – a claim that would be strongly buttressed by the local planning authority’s conditional planning consent, namely that the work would be ‘permanently placed’.

The council’s original planning consent for the shopping centre, including the sculpture, would not have specified a period of time for its continued existence, because the planning authority has legal oversight of its built environment and can therefore review and change consents periodically as time and dilapidations occur.

These current disputes over ownership and permanence, as well as maintenance and replacement, could well have been avoided – certainly minimised – through the existence of clear documentation of the terms and conditions of the original agreement between artist and commissioner. Such written commission agreements, especially for art that is to be installed as a public cultural amenity, should ideally clarify at least the following. What the artist is being paid to do: design, fabricate, install the work; and transfer ownership of the work, or licence the work to be sited on or at a specified place. Whether the artist’s transfer of ownership, or licence for some body to possess the work, is conditional upon the work remaining on or at the specified place. Whether the work will revert to the artist’s ownership and/or possession, if it is removed. How long the work is guaranteed to last in good condition (if properly maintained) on or at the specified place, and therefore what should happen to the work at the end of that specified period. How the work should be properly maintained, by whom and at what cost. Hopefully, any new public art commissions from The Avon Group will include such documentation, and any artists willing to pitch for such a commission will insist upon it – as might the local planning authority whose legal planning consent would be required.

Antony Gormley’s Another Place, 1997 (comprising 100 cast-iron, life-size, naked male figures installed at intervals along three kilometres of the foreshore and one kilometre into the sea at Crosby Beach on Merseyside), was the subject of a planning dispute in 2006 as to its temporary or permanent installation (see AM302). This was finally resolved in March 2007, when the local planning authority amended its original decision to permit the work’s temporary installation, to allow it to remain ‘indefinitely’. In this case, there were no doubts as to the ownership of the work when it was temporarily installed, which was with the artist.

© Henry Lydiate 2007

NOTE (added November 2009): In 2007 the UK Government’s Department of Culture Media and Sport exercised its statutory discretion to ‘list’ the Frink sculptures, so preventing them by law from being removed from the shopping centre building.

 

 

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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.