Destructive Impulse

An artist may tear down aesthetic assumptions, but not another artist’s work.

One of the nice things about our art-law specialty is that we routinely field oddball legal questions from clients (Still planning to bequeath the Schnabel to your schnauzer, Mrs. R?). Occasionally, though, we meet someone truly peculiar, like Robin, a young sculptor with an ominous fixation.

Her first question to us was fairly blunt: “Do I have the right to destroy art?”

Yes, we told her, she was free to destroy her own works. And having seen some of her sculptures, we hoped she would take the hint.

Our advice to Robin does not apply, however, to works by other artists. As we explained in our last column, the federal law known as the Visual Artists Rights Act (VARA) prohibits the destruction of a piece of “recognized stature” by empowering its creator to “prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation.” Enacted in 1990, VARA applies only to “a painting, drawing, print, or sculpture existing in a single copy or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author” and, with a few exceptions, only to pieces created after June 1, 1991.

“But that makes no sense for contemporary art!” Robin protested. “After all, the best contemporary artists are destroying and re-creating art, rather than preserving it.” For support, she cited a historical example: Robert Rauschenberg’s famous “Erased de Kooning Drawing,” 1953, which the artist made by rubbing out a work given to him by his friend Willem de Kooning, leaving on the paper a faint shadow of the original. “And what about Warhol’s Brillo boxes and Duchamp’s urinal, both of which famously abolish the line between art and everyday objects?” she added.

We were skeptical — and, frankly, put off by Robin’s nihilistic bent.

“How about site-specific art?” she continued. “Could I destroy that? Say I bought a sculpture garden that contained busts of war heroes — could I slather black paint on the busts or smash them to pieces as my own commentary on war?”

We had the uneasy feeling that her question wasn’t purely hypothetical but decided to answer it anyway. In fact, we said, two recent cases suggest that site-specific art is actually not protected by VARA. The safety pins in Robin’s ears started to jiggle happily.

The first case, Phillips v. Pembroke Real Estate, was decided by a federal court in 2006. It concerned the sculptor David Phillips, who sued a realty company on the grounds that removing his 27 sculptures from a Boston city park violated his rights under VARA. While acknowledging the value and “importance of site-specific art, which unmistakably enriches our culture and the beauty of our public spaces,” the court concluded “that the plain language of VARA does not protect” such art.

The second case, Kelley v. Chicago Park District, decided by a federal court in 2008, involved the artist Chapman Kelley. Kelley sued after the district removed his “Wildflower Works” — elliptical arrangements of living plants — from a municipal park in which they had been exhibited for 20 years. The court denied his claim, reasoning that, in line with Pembroke, “VARA is silent on the issue of site-specific art.” It also arrived at the perplexing conclusion that although “Wildflower Works” qualified as visual art, it was not original enough to be copyrightable and therefore not protectable under the act — surprising, since the threshold for creativity under the Copyright Act of 1976 is generally low.

Some legal scholars have noted that the drafters of VARA could have chosen to protect site-specific art if they had wished to. The law was written during the time of the most famous federal case in this area: Serra v. United States General Services Administration. The 1988 lawsuit involved Richard Serra’s 1981 site-specific sculpture “Tilted Arc,” a 12-foot-high curved steel wall bisecting an open plaza in front of Foley Square in Manhattan. The sculpture, which was commissioned by the U.S. General Services Administration, generated so many complaints that the GSA eventually tried to remove it. Serra sued, arguing that the work was constitutionally protected free speech and that moving it would destroy the site-specific intent. The court held for the GSA, reasoning in part that “consideration of aesthetics is a legitimate government function.” “Tilted Arc” was ultimately pulled apart and has never been reconstructed .

Robin tried another tack. “But what are the laws on destroying artworks owned by other people?” she asked.

We replied that criminal law doesn’t distinguish art vandalism from other vandalism. The degree of the offense and the sentence depend on the financial loss. Typically, however, vandalizing art is categorized as mere criminal mischief, and in many states the sentences for this crime are relatively light. That was the case for a woman in Lakeland, Colorado, last November who, angered by an Enrique Chagoya collage depicting Jesus engaged in a sex act, attacked the display case with a crowbar and was charged with a misdemeanor.

“I can do better than that,” Robin said, frowning. “What if I wanted to, say, paint over a billboard?”

We replied that even if she technically did not damage the billboard, she would probably still be liable for vandalism and trespass.

“But that’s the whole point of ‘trespassory’ art!” she railed. “What about graffiti art?”

We said that state laws don’t distinguish between graffiti art and graffiti vandalism, classifying them as the same thing: vandalism.

“But it’s graffiti art! Like Keith Haring’s!” She paused to think. “Could I sue someone for destroying my tag or my mural? It may be trespassing, but it’s also a signed work.”

We explained that graffiti typically does not qualify as a work of “recognized stature” protectable under VARA. While proving this might require the testimony of a community of experts, such as artists, dealers, curators, and collectors, some graffiti artists have managed to prevail in such cases. In the 1998 California case Hanrahan v. Ramirez, artist M.B. Hanrahan and a group of neighborhood children painted an antidrug, antialcohol mural on the outside of a liquor store. The store’s owner painted over part of it three years later, and Hanrahan successfully sued under VARA’s mutilation and destruction sections. Citing the mural as one of 50 winners in a national contest, the judge found that it possessed “recognized stature.”

We could clearly see Robin’s wheels spinning. “How about laser graffiti?” she asked, referring to the recent trend of projecting a message on a building on a massive scale. We said that this would likely constitute both trespass and nuisance.

Robin fit Winston Churchill’s definition of a fanatic: someone who won’t change his mind and can’t change the topic. After an hour we had had quite enough of the scary sculptor and her destructive impulses.

Perhaps Robin had a right to destroy some art, but we had the right to suggest to her that she find another lawyer — which we cheerfully did.

Charles and Thomas Danziger are the lead partners in the New York firm Danziger, Danziger & Muro, LLP specializing in art law.

Some facts have been altered for reasons of client confidentiality or, in some cases, created out of whole cloth. Nothing in this article is intended to provide specific legal advice. “Destructive Impulse” originally appeared in the February 2011 issue of Art+Auction.