November 11, 2019

Artists’ moral rights in the frame

Fine arts insurers will have breathed a collective sigh of relief when a Californian jury, following  13-years of litigation regarding damage by art handlers to the cardboard frames on a triptych of the Martin Kippenberger paintings Copa III, Copa IV and Copa IX, recently dismissed a $95m claim for bad faith against XL Specialty, instead awarding just $19.500 for loss of value in the artwork.

This case is noteworthy not only for the sheer size of the claim but also for the relative ease with which the damaged frames were in fact restored by Kippenberger's collaborator, who had collaborated with Kippenberger on the original work, and who was able to use similar materials as those first used for the frames – thereby virtually removing any diminution in value of the piece.

Unfortunately restoration cases are not always so straightforward, especially when it comes to dealing with living artists. While some artists are happy to have their damaged art restored, and indeed contribute to the restoration, others take issue with restoration/conservation, especially by third parties, if they feel that the proposed restoration work would render the piece different from their original creative concept. In such circumstances artists may rely on their moral rights effectively to prevent the owners of the artwork, often an insurer post-loss, from taking steps to restore a damaged piece.

Moral rights concern the non-economic aspects of an artist's interest in the artist's work. At international level these rights are enshrined in Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works, which provides that even when an artwork has been sold, the author maintains the right to claim authorship of the work and to object in certain circumstances to distortions, mutilations or other modifications of their work prejudicial to the artist's honour or reputation. These provisions have been implemented in the UK through Chapter IV of the Copyright, Designs and Patents Acts 1988.  

You may therefore wonder - how could moral rights affect collectors' economic rights over their pieces? Just think back to when Cady Noland in 2011 invoked the protection available under the US Visual Artists Rights Act 1990 to prevent Sotheby’s from selling the work 'Cowboys Milking' with her name associated to it, because the art work had been damaged. Similarly, Noland is currently involved in a copyright lawsuit claiming that restoration work done to her piece Log Cabin (1990) was so extreme that it amounted to the destruction of her original work and the creation of an unauthorised copy. 

These cases feed into the fascinating debate on what makes art unique. In practical terms they highlight the tension between the ability of an art owner to deal freely with the art they own  (especially when restoration is required or can easily be carried out to preserve the art's condition and value) and a living artist's moral right to disown, which can destroy value in a piece and make it effectively impossible to sell – but this does not mean that artists are entitled to disavow their artworks as it suits them. This tension - and the limitations placed on a living artist's rights to disown – are rarely easy issues.