Art: Postmodern Art Laws

I can see the prototypical criminals now: They are Peter Sellers and Ringo Starr in The Magic Christian. In this film, the two attend an auction where they buy an Old Master portrait, one so murky and dark that all that is distinguishable is the model's nose. Having paid for the painting, Starr takes out a pair of scissors, plunges it into the canvas and carves out the nose while John Cleese, the auctioneer, sputters in disbelief. When Cleese protests feebly that they can't cut up the work, Sellers says he owns the painting and can do what he wants with it. Nose in hand, he and Starr leave.

The rich vandal who wants to buy and slash should avoid Massachusetts, California, and New York, however. In these states, simply owning a work of "fine art" does not give one the right to destroy it. All three have passed laws against the destruction or mutilation of paintings and sculptures—laws that grant artists and their estates an ongoing interest in their work. And soon there may be such a law at the federal level, too. Sens. Edward Kennedy and Robert Kasten have introduced a visual artists' rights bill in Congress.

The art preservation laws are all based, quite explicitly, on the French legal concept of droit moral, or moral right. Under the droit moral, artwork cannot be mutilated or destroyed without the artist's permission, even after the work is sold. And an artist also retains the right to disavow her work. In French law these rights are nearly absolute: An artist need give no reason if she wishes to disavow a given painting—she may, for example, simply be dissatisfied with an early work as an immature expression. The state statutes, on the other hand, require a "just and valid reason" for disavowal. For example, an artist may disown a work if it has been altered in some way or is being displayed in a setting that she considers an insult to the integrity of the work.

The law proposed by Kennedy and Kasten comes much closer to the French doctrine than do any of the state laws. Specifically, the act calls for a commission to study the possibility of granting artists the right to royalties when their works are resold. Earlier versions of the bill would have given artists the right to royalties, but it was on that issue that the measure met the most resistance. Supporters of the act think that leaving the royalties issue aside for a while will give the bill a much better chance of passing.

But the Kennedy-Kasten bill illustrates how radical a departure such laws are from two of the most fundamental doctrines of British and American common law: the alienability of property and freedom of contract. In French law, artists' rights are inalienable: The artist cannot sign them away as part of the sales contract. Similarly, under the proposed federal Visual Artists Rights Act of 1989 artists can neither waive nor transfer their rights when they sell their work.

It is hard to figure out why these state laws have been passed and why such a measure is being considered in Congress.

Perhaps if Peter Sellers and Ringo Starr were roaming about the nation doing damage to paintings there would be a reason. But when I looked for such colorful villainy in the lawsuits that have been brought under the art preservation statutes, I was disappointed. There simply don't seem to be any vandals rich enough to buy art just to trash it.

The cases brought so far in Massachusetts, for example, involve neither malicious canvas slashers nor famous art treasures. In one case, the administrators of Concord-Carlisle High School threw away a ceramic mural made by an art teacher and left in the school's studio at the end of her tenure. And in another, the new owner of a restaurant painted over a mural commissioned by the previous owner. In both cases, the artists have declared their lost works "fine art" and are suing for tens of thousands of dollars in compensatory and punitive damages.

Do these suits do anything to encourage the creation and enjoyment of new art? Elaine Yoneoka, the high school's artist-in-residence whose ceramic mural was thrown out, clearly thinks so. She justifies her lawsuit largely in terms of promoting an appreciation of art. "The town set up this [artist-in-residence] program to tell kids the arts are valuable, and then they turn around and destroy my work," she says. "They don't understand that art isn't a commodity, and that the artist has continuing rights in the work." But is Yoneoka's suit doing anything to further the cultural education of the children of Massachusetts? I doubt it. How long will it be before Concord-Carlisle High School brings in another artist-in-residence? Just as litigation over sports injuries has led many schools to scale back or cancel their athletic programs, so too litigation over art could easily discourage schools from getting involved with it.

The implications are similar in the case of Paul Goodnight, whose restaurant mural was painted over when the building was sold. Goodnight's lawyers argue that the wall should have been removed and replaced, the painting kept intact. If Goodnight wins his suit, what building owner in his right mind will contract a mural to be painted on his walls? And those who nevertheless sponsor paintings on their buildings will be well advised to make sure the works are inoffensively bland, so as not to put off lessees or buyers.

Discrimination against unknown artists pervades these laws. It is most obvious in the way the laws define—or more accurately, avoid defining—art. Lawmakers want to protect "fine art," not just any picture drawn by some clod with a paintbrush. But aesthetic value is an even more slippery concept than moral value, and legislators who try to define it are sure to be embarrassed. Thus they haven't even tried. Instead, the California and Massachusetts statutes and the bill before Congress define "fine art" as work that is of "recognized quality." They leave it up to the courts to determine in each particular case whether the piece in question is of "recognized quality." To do that the courts are instructed to follow the expert opinion of artists, dealers, collectors, curators, restorers, and others involved in making or selling "fine art."

Even the proponents of these laws recognize that defining fine art according to the opinions of experts is likely to "preserve a conservative notion of what art is." Still, these laws give the art establishment the ability to make, for all intents and purposes, legally binding judgments about what is and is not art.

Further, the possibility of litigation may persuade an art buyer to pass on the work of an unknown. The uncertainty in the laws imposes costs on those who would invest in an unknown's work. If the artist later becomes famous, the piece will obviously then be of "recognized quality," and the artist will have an interest in the painting, an interest that a court might not have given him at the time the work was sold. The terms of a sales contract with an unknown artist, then, may change long after the sale.

Thus artists' rights laws do little to help unknown artists or promote education or production of art. Indeed, such laws are likely to work against these goals. Add to these problems the fact that the laws create a legal art aristocracy and that the droit moral conflicts with our common law tradition, and art preservation laws look quite ill-conceived. The final argument against such laws, though, is that they are entirely unnecessary.

The artist who wants to ensure that her work will be preserved, or who wants royalties on the resale of a piece, is perfectly free under existing contract law to enter into an agreement with the purchaser that grants her those rights. Such a carefully worded contract can impose on the purchaser the obligation not only to preserve the work but also to maintain it. Indeed, since 1980, agreements of this sort have been regularly signed by Boston's public transit system when it has contracted works of art for subway stations.

No such contract was ever worked out between Yoneoka and the Concord-Carlisle High School. In fact, the high school never even agreed to keep her work. Yoneoka merely signed it and left it behind. She made no effort to find out what the school had done with the piece until two years later when she came back to get a photo of it for a grant application. All through her tenure Yoneoka had the opportunity to come to an agreement with the school about the fate of her work, but she seems not even to have tried. Somehow I find it hard to mourn her loss.

Eric Felten covers Congress for Insight magazine.