Crop Buster

A collector who trims an inch or two off some photographs he bought is acting perfectly within his rights as their owner, isn’t he?

Although we like to believe that our clients are among the most intelligent members of the international art community (and many of them are), from time to time they make us wonder if we are such good judges of character after all. At such moments, we tend to think that, whatever our hourly rate, we are definitely being underpaid.
Take the case with a photography collector we represented. This gentleman agreed to lend an important collection of photographs by a living artist to a German museum on the condition that the museum purchase several of the works. But before the show traveled to Germany after it made an appearance at an exhibition space in New York, and that’s where our client’s troubles began. Apparently someone at the New York venue decided (with our client’s blessing) that the photographs would look better if they were smaller, and simply cropped them all.
Not surprisingly, the photographer of the works did not appreciate this editorial intervention (words like “mutilation” and “irreparable harm to my reputation” appeared in letters to our client), and the result was a serious threat of litigation against both the New York venue and our client. Similarly outraged, the German museum declared that it would neither mount the exhibition nor purchase the photographs. Our client was now faced with what we lawyers technically refer to as a “real mess.”
Although mildly sympathetic to the photographer, our client did not understand why, as a legal matter, the photographer had any right to object to the pictures being cropped, since he no longer owned them. In fact, the collector made a special trip to our offices and gave an eloquent (if rather long) speech about his constitutional rights to freedom of expression, freedom of property and freedom from want. Ignoring his last argument, which neither of us quite grasped, Thomas explained to our client that, even though he owned the photographs, he did not have the legal right to do with them as he pleased.
In the U.S., various state statutes have increasingly recognized the long-established European principle of so-called moral rights. These are actually a bundle of rights that give the artist the right to prevent alteration of his or her work (the “right of integrity”), to decide when a work should be changed (the “right of modification”), to decide when a work is complete (the “right of respect”), to decide whether a work should be identified as the artist’s (the “right of paternity”), to decide when the work should be first exposed to the public (the “right of disclosure”), and to decide when the work should be removed from the public (the “right of withdrawal”). Because moral rights are generally attached to the creator, they are typically retained by artists even after a work is sold.
The concept of moral rights originated in France, where such rights are perpetual, inalienable and pass to the artist’s heirs (and may even be transferred to a third party by the artist’s will). One important French moral rights case involved Bernard Buffet, who painted six metal panels of a refrigerator to be auctioned off for charity at the Galerie Charpentier in Paris. Buffet considered the panels to be part of a single work of art and signed only one of them. Six months later, to his fury, a single panel turned up in another auction catalog, listed as “Still Life and Fruits by Bernard Buffet.”
The artist sued the consignor, arguing that the six panels were an artistic unit and could not be disassembled and sold individually without his consent. In 1962, a French court agreed and enjoined the sale as a violation of Buffet’s right of integrity. The court found that the artist had the right to ensure that his work retain its original form when displayed under his name.
Different nations have adopted varying approaches to the concept of moral rights. For example, the Italian moral rights law states that not only the artist (and his successors) but also public officials may enforce an artist’s moral rights. By contrast, the German statute, which limits moral rights to the duration of copyright, does not grant public officials any enforcement authority. (In post-War Germany, the amount of authority the government should have in the cultural sphere is still a sensitive issue.) Some countries allow artists to assign their moral rights to a third party, while others – the U.S., Japan, the U.K. and Canada among them – do not.
In our case, the photographer asserted a violation of the U.S. federal moral rights law, the Visual Artists Rights Act of 1990 (VARA). This law protects a limited class of artwork, including photographs that are produced for exhibition purposes in a signed, numbered edition of 200 or fewer. Thus it applied to our situation. Under VARA, a photographer has the right “to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation.”
Various U.S. states also have their own moral rights laws, which may permit more extensive protection than the federal VARA statute. The U.S. cases dealing with moral rights issues, many of which arose before either VARA or related state laws were passed, read like the Perils of Pauline. For instance, in 1958 a private collector donated a black and white mobile by Alexander Calder to the Allegheny County, Pennsylvania, to be installed in the Greater Pittsburgh International Airport. Before installing the mobile, and without seeking Calder’s approval, the County locked it so that it would not move, and painted it green and gold to reflect the county’s official colors. When Calder found out, he vehemently objected and continued his protests over the final 18 years of his life, with no success. Since Pennsylvania’s moral rights statute had not yet been enacted, Calder lacked an effective legal remedy. Only years later, in the face of public outcry, did the County restore the mobile to its original state.
New York State’s moral rights statute may have been prompted by a 1982 case involving the artist Frank Stella. He had discarded two of his paintings by placing them on a landing outside his studio in the rain. To his intense displeasure, they re-emerged for sale in an art gallery. Fearing that the damaged paintings would harm his reputation, Stella sued the gallery on the theory that the works had been stolen. Like Calder, he could not make a formal moral rights claim, since the New York law had not yet been passed. The parties in the case eventually settled out of court, and Stella destroyed the paintings.
Soon thereafter, New York passed its moral rights statute, which prohibits the unauthorized public display of an altered work as being the work of the artist – or under circumstances where the work would reasonably be regarded as being by the artist – if the display is likely to result in damage to the artist’s reputation. Interestingly, the New York statute permits the total destruction of artwork; apparently, wiping out a work of art altogether is considered less damaging to the artist’s reputation than exhibiting a work in a mutilated form. The photographer in our case argued that the cropping of the photographs was in direct violation of this statute.
He also made reference to a 1990 moral rights case that specifically involved photographs: that of the late multimedia artist, David Wojnarowicz, who had successfully sued the American Family Association (AFA) for altering his works in violation of New York’s moral rights statute and harming his reputation. The AFA had distributed pamphlets reproducing bits of Wojnarowicz’s images that it considered particularly offensive (including depictions of sex acts and Christ with a hypodermic needle) in an effort to stop public funding of such art. At trial, an expert testified that because the cropped images in the pamphlet gave the impression that Wojnarowicz’s work consists mainly of explicit depictions of gay sex acts, the artist’s name would be anathema to museums and the market value of his work would suffer. Although the court ruled for Wojnarowicz and noted that the AFA’s actions were reasonably likely to harm his reputation, it decided that the artist had suffered no actual damages and awarded him just one dollar.
Among the various defenses available to our client was the argument that even if cropping the photographs was an intentional distortion of the works, it was not prejudicial to the artist’s reputation and therefore not actionable under either the New York or the federal statutes. Moreover, since the photographs were trimmed in order to “look better” in the frames being used for the exhibition, our client arguably did not violate VARA, which does not apply when a modification of art is the result of the public presentation of the work, unless caused by gross negligence. However, we did not really believe that these arguments would carry the day for our client, especially since several of the larger photographs had been cut down practically to wallet size.
Faced with expensive and messy litigation, we counseled our client that his best option lay in a creative and amicable settlement with the photographer. Charles pointed out that photography as an art form is fundamentally different from many other artistic mediums, since damaged art can literally be recreated (i.e. reprinted) with the assistance of an obliging artist and his studio. We therefore fashioned the following compromise: the photographer agreed that, for a handsome fee, his studio would reprint the photographs for our client. In order to preserve the photographer’s reputation, the New York venue promised (somewhat reluctantly) not to distribute any posters, postcards, or other images depicting the cropped photographs. And the German museum agreed to mount an exhibition of the new prints and purchase a number of the works as originally planned.
In turn, our client promised to destroy the cropped photographs and agreed not to alter the new prints or to authorize anyone else to do so. He seemed satisfied with this outcome, and the photographer – upon receipt of the settlement check – said that his dignity and reputation had been restored.
While our client and the New York venue may not have exercised terrific judgment in cropping the photographs, others have done far worse. Consider, for example, the case of the two Australian entrepreneurs who reportedly purchased a 1959 Picasso’s print, Trois Femmes, for $10,000, and cut it up into five hundred tiny squares that they then sold for around $100 each, in order to “give ordinary people a chance to own a piece of work by the century’s greatest artist.” They allegedly boasted that they would “buy other masters as well and give them the chop” if the enterprise took off. With the advent of moral rights legislation, this would qualify as a truly bad business plan.

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