7 October 2022
Conservators & Copyright 2: More on Moral rights
By Amalyah Keshet
Discussing the conservation of Maurizio Cattalan’s notorious work “Comedian” and other perishable art works, Lena Stringari, the Guggenheim Museum’s chief conservator, has commented:
How do you preserve a balloon that contains the artist’s breath (it’s called “Artist’s Breath”) and that inevitably is going to deflate? (Tate Modern.)…
In fact, “Comedian,” as sold, does not include a banana or tape. What one buys is a “certificate of authenticity,” a surprisingly detailed, 14-page list of instructions, with diagrams, on how the banana should be installed and displayed.
The instructions will be quite easy to follow and are quite complete in addressing questions like how often to change bananas (7 to 10 days) and where to affix them (“175 cm above ground”).
“Of all the works I have to confront, this is probably one of the simplest,” Ms. Stringari said. “It’s duct tape and a banana, she added.”
…Ms. Stringari said conservators have to think carefully about the conceptual underpinnings of all works and whether the repairs are preserving the concept.
“We have to constantly make decisions about how they live on in the future,” she said. 1
This description of the challenges art conservators face when working with contemporary works of art is fascinating in itself. Viewed through the lens of copyright and more particularly the moral rights of the artists (see last month’s blog post), it invites even more complexity.
The right of integrity
In each of the situations mentioned above, a conservator’s intervention potentially raises moral rights dilemmas, provided by the artists themselves. Any changes to a work judged necessary for display or preservation but not approved by the artist – or not specifically built into the fundamental concept and declared as such – theoretically could be challenged by the artist or worse, by his or her heirs.
This is why the process of documenting an artist’s intentions and instructions when acquiring a work is so important to a museum’s management of contemporary art. The Artists Documentation Program (ADP), based at the Whitney Museum, NYC consists of interviews with artists and their close associates,
“…in order to gain a better of their materials, working techniques, and intent for conservation of their works. Unlike programmed questionnaires that have been widely used by museums in the past, Carol Mancusi-Ungaro’s approach was designed to capture the artist’s attitude toward the aging of the art and those aspects of its preservation that are of paramount importance to the artist. Structured as a conversation between the artist and conservator, the intent was to document the current state of the work of art under discussion as well as the artist’s intonation and thought processes that lay behind his or her opinions.
Contemporary works of art are often materially ephemeral, time-based, interactive, or conceptual. In preserving these works, conservators rely heavily on documentation of an artist’s materials, techniques, and intent, frequently needing to consult the artist directly.”
With this in mind, VOCA (Voices of Contemporary Art), also based in NYC, has created a programme for those interested in learning how to conduct productive artist interviews (usually in video format) and how to preserve them as viable records.
Zoe Miller of the Institute of Fine Arts NYC, has proposed the novel idea of seeing contracts as scripts or scores (as in musical scores) that lay out how works are to be “played” or displayed. Her excellent online presentation about the subject deals with:
…the many facets of authorship and ownership, and how they shape processes of acquisition and conservation of contemporary artworks, particularly time-based media works. The legal instruments specific to the care and preservation of these works will be discussed. Overall, the presentation reflects on how we might develop a greater understanding of the unique legal relationship between the artist and the collector, one that expands beyond a simple transaction. 2
Impermanence and moral rights
Many works of contemporary art, in particular time-based media art, can be considered “a relationship-dependent performance” stretching over time, with responsibility shared by artist and owner. The Achilles heel of New Media art is technological obsolescence, and the time-based fragility of the production and exhibition process itself requires an approach to permanence that recognizes the inevitability of change.
Advances in technology can eventually render artworks inaccessible, and that built-in technological obsolescence begs the question of an artist’s moral right of integrity, in a particular jurisdiction, long before it affects a specific case regarding a specific work.
Interpretations of the integrity right and what it encompasses vary considerably among jurisdictions and amongst legal academics. For instance, in India the courts have held that destruction falls within an artist’s moral rights to integrity, as an extreme form of mutilation (Sehgal v Union of India  FSR 829). In contrast, in Switzerland and the US, artists have statutory rights to object to destruction, distinct from their moral right to integrity (Swiss Federal Copyright Act 1992 s.15, US Copyright Act 1976 s.106A(3)(B))
There are considerable, practical consequences that stem from the current legal uncertainty in the UK. For one, it is unclear whether artists have a right to destroy their own artworks, or whether artists can incorporate and transform other artists’ works into their own using destructive techniques. This is important to the art world because Destructionist and Auto-Destructive artworks that self-destroy acquire their cultural significance from their destruction. As a recent high-profile example, Banksy’s ‘Love is in the Bin’ (2018) was created when Banksy’s ‘Girl with Balloon’ (2002) was shredded live at auction. 3
The right of attribution & Creative Commons
The moral right to attribution of one’s work (and the right to object to misattribution) 4 is perhaps the most obvious of artists’ moral rights, recognized as proper professional practice with or without knowledge of the law. No self-respecting collecting institution would minimize the importance of accurate attribution in its records, publications, and displays. What may be less well known, however, is the fact that most Creative Commons licenses require attribution, even if other rights are licensed freely, causing confusion due to differences in national moral rights legislation. 5 Interestingly, there are no exceptions to this right and therefore apparently no situations in which the right, once established, does not apply.
The Visual Artist Rights Act
One further note about the exceptionally limited moral rights protection available, only to certain visual art, in the US. “For the purposes of VARA, visual art includes paintings, drawings, prints, sculptures, and photographs, existing in a single copy or a limited edition of 200 signed and numbered copies or fewer”. A photograph must be taken only for exhibition purposes to be recognized under this subcategory. Independent art is not a focus of this waiver, because VARA only protects artwork that can be considered as having “recognized stature”. This last point is obviously and problematically an open invitation to interpretation.
On the other hand, for our purposes, there is a clear exception for conservation treatment: “The modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification described in subsection (a)(3) unless the modification is caused by gross negligence.”
For those interested, more insight into the moral rights of integrity and attribution in various media can be found in CREATe’s article “21 for 21: Moral rights.”
2 Another fascinating source on this topic is: Joan Kee 2017, “Felix Gonzalez-Torres on contracts,” Cornell Journal of Law and Public Policy 26. https://scholarship.law.cornell.edu/cjlpp/vol26/iss3/7/