8 December 2021

Mischief, Fakes, and Provenance

By Amalyah Keshet, Senior Consultant

Photo by Kadir Celep on Unsplash

The Museum of Forgeries (take a look here) is the latest escapade cooked up by a Brooklyn, New York, collective calling itself MSCHF [i], which is thoughtfully providing us with some provocative things to ponder as the art world morphs into a financial world all its own. A full description of the collective and their, um, creative projects – Jesus Sneakers featuring soles filled with water from the Jordan River being one – can be found here.

Despite its goal of anti-establishment anarchy and its concentration on conjuring up the absurd, the group has raised at least $11.5 million[ii] in outside investments over the last two years.  “The company runs on ‘structured chaos,’ “according to founder and CEO Gabriel Whaley.  Refreshingly, they aren’t doing NFTs.  Yet.  “My mom thinks we make toys.”

Instead, MSCHF dreams up art-market stunts like last year’s Severed Spots Manifesto (have a read here): purchasing a Damien Hirst Spot print for $30,000 and selling the 88 carefully cut-out individual spots for $480 each. The original print, effectively now a piece of paper enhanced by 88 holes and Hirst’s signature, was put up for auction with a $126,500 minimum. (It sold for much more.[iii])

No copies were made, so arguably the reproduction right was not infringed.  Could this “performance” be considered a derivative work? No word yet from Damien Hirst or his lawyers apparently.  One wonders if this would qualify as an infringement of Hirst’s moral rights under VARA, the very limited US moral rights provision – since the works were created in the US.  Were Hirst to sue in the UK, higher powers would decide which jurisdiction would hear the case. In the meantime, here’s the background for the moral rights issue potentially involved from the point of view of US copyright law, helpfully provided by The Fashion Law blog

“Despite the widespread media attention, [one] element of MSCHF’s venture has gone undiscussed: VARA.  A relatively obscure federal law, the Visual Artists Rights Act of 1990 (“VARA”) provides certain artists – such as those behind single or limited edition paintings, drawings, prints, photographs, or sculptures – with the right to sue if their “moral rights” in a work are violated…the law enables artists to prevent the destruction of a work of art if it is of “recognized stature” and allows artists to control the use of their name in connection with alterations of their works (and the sale of altered works)… even after they have sold their creations. While copyright and physical ownership are property rights that can be freely transferred, moral rights stay with the artist no matter what.”  (In the US, the focus of copyright law is the protection of economic rights. VARA applies only to “works of visual art.” Posters, maps, globes, motion pictures, electronic publications, and applied art are explicitly excluded.)  Thus, theoretically, Hirst would most likely prefer to pursue the issue in the country with stronger moral rights protection: the UK.

In the meantime, Hirst announced his first NFT project, called “The Currency,” (take a look here) involving the sale of 10,000 unique hand-painted spot works on paper, each corresponding to a nonfungible token, at $2000 each. Not content with something as nouveau-conventional as that, the paintings/NFTs come with the stipulation that each purchaser has to decide within one year whether they want to keep the NFT, in which case the physical artwork will be ceremonially burned by the artist, or if they want to keep the physical work, and give up ownership of the NFT.

“The maximum price paid so far sits at $120,614 for a work titled ‘Yes’, which is considered one of the rarer of the pieces in the series because it has a single word title. HENI ranks each of the works in “The Currency” for its rarity based on algorithms that analyse density of the spots, colors used, and what kind of words are in each title, which all come from Hirst’s favorite songs.”  One can’t help noting the reach for “rarity” based on the words in a work’s title. At any rate, Hirst’s point is to play the physical art market and the NFT market for all it’s worth, which was, at the end of August, including secondary-market sales, reportedly $26,345,475.[iv]

Back to the Museum of Forgeries. Having apparently gotten away with the Spot Manifesto, above, MSCHF bought a 1954 Andy Warhol drawing for around $20,000, created 999 identical new versions, “aged” and stained the paper, mixed the original in with the fakes – and sold all 1000 at $250 a pop. The idea being, of course, that no one knows who has the original. 

“The escapade is a dig at the art world, and possibly museums, which the artists say is (sic) far more concerned with authenticity than aesthetics” according to the group.  It’s an interesting claim. The art market, maybe.  But Museums?  On this conceptual moebius strip of valued attributes – authenticity and aesthetics – that establish both market value and art historical value, is one really more important than the other?

“[This is] proven time and again by conceptual works sold primarily as paperwork and documentation.” Which is an interesting point, in light of the currently popular idea that blockchain recordation can “solve” the problem of provenance. (It certainly doesn’t seem to be solving any problems of aesthetics.)  “Artwork provenance tracks the life and times of a particular piece–a record of ownership, appearances, and sales. An entire sub-industry of forensic and investigative conservation exists for this purpose.”[v]

MSCHF’s argument is that “copies might reduce value but they increase revenue.” That echoes claims that the NFT market can democratize participation in a hyper-lucrative art market. Of course selling limited edition, even large edition, prints isn’t exactly a radical new idea. More to the point, thought-provoking as the stunt may be, their purportedly identical copies of the Warhol drawing are assumably infringing if produced and sold without permission.  To complicate things further, MSCHF declared “The copies are ours. More accurately, the entire performance of copying and selling is ours. Not 1000 identical artworks, but a single overarching piece with a thousand co-owners and co-participants. The act of creation is the act of upcycling culture into recombinant forms. Fairies, 1954, by Andy Warhol, is a MSCHF artwork.[vi]” No word yet, apparently, on what the Warhol Foundation thinks. 

Further financial mischief, and outright legal provocation, was recently created by the Danish artist Jens Haaning, who was lent a large sum in banknotes (the equivalent of about $84,000) as materials for re-creating temporary copies of two of his works. Instead, he presented the commissioning museum with empty frames, and is refusing to return the money – as a “protest against low pay and modern-day capitalism.”[vii] Appropriately, he re-titled the work Take the Money and Run.  Under the terms of the contract between Haaning and the Museum of Modern Art in Aalborg, he is expected to return the loan at the end of the exhibition in January 2022.  “Of course I will not pay it back,” Haaning says. “The work is that I took the money and I will not give it back.”[viii]  Conceptual art?  Breach of contract as Performance Art? Theft? Provenance nightmare? At least the museum handled the artist’s moral rights correctly.  Stay tuned until January.

[i] https://mschf.xyz/

[ii] https://www.businessinsider.com/mschf-company-behind-viral-jesus-shoes-feet-generator-bull-moon-2020-1?r=US&IR=T

[iii] https://severedspots.com/

[iv] https://news.artnet.com/market/damien-hirst-nft-update-2002582

[v] https://moforgeries.org/

[vi] https://www.museumnext.com/article/museum-of-forgeries-fakes-999-warhols-to-sell-with-original/

[vii] https://artlawandmore.com/2021/10/01/protesting-artist-runs-off-with-danish-museums-money-will-they-work-it-out/

[viii] https://www.theartnewspaper.com/2021/09/28/danish-artist-takes-museums-money-and-runs-i-will-not-pay-it-back-he-says

© Naomi Korn Associates, 2021. Some Rights Reserved. The text is licensed for use under a Creative Commons Attribution Share Alike Licence (CC BY SA)

Disclaimer: The contents of this blog post are based on the assessment of Naomi Korn Associates Ltd at the time in which the resource was created (December 2021). The contents should not be considered legal advice. If such legal advice is required, the opinion of a suitably qualified legal professional should be sought.

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