{"id":559,"date":"2005-03-01T15:02:08","date_gmt":"2005-03-01T20:02:08","guid":{"rendered":"http:\/\/www.danziger.com\/articlesnews\/?p=21"},"modified":"2005-03-01T15:02:08","modified_gmt":"2005-03-01T20:02:08","slug":"moral-grounds","status":"publish","type":"post","link":"https:\/\/danziger.com\/?p=559","title":{"rendered":"Moral Grounds"},"content":{"rendered":"

You buy property and want to remove art installed by a previous owner. It might not be that easy.<\/strong><\/p>\n

Ars longa, vita brevis. As one of our clients discovered, that is not always a good thing.
\nHeather was the proud new owner of a beautiful country house. The only wrinkle was that the previous owner had commissioned an up-and-coming artist to decorate it in the style of a Roman villa, and Heather\u2019s taste ran more to I.M. Pei than I, Claudius. \u201cNo matter,\u201d she said cheerfully. \u201cI\u2019ll simply rip out every awful piece of \u2018art\u2019 in the place.\u201d
\nThe artist got wind of Heather\u2019s plans and directed his lawyer to stop her. That\u2019s where we came in.
\n\u201cI own this property, so can\u2019t I do with it what I want?\u201d Heather asked when we visited her home for a consultation.
\n\u201cNot necessarily,\u201d we explained, \u201csince you might be violating the artist\u2019s droit moral or moral right.\u201d
\nThe concept is based on a longstanding notion that artists imbue their creations with their own personality and that they retain rights of \u201cattribution\u201d and \u201cintegrity\u201d even after their works are sold. A corollary to this principle is that injury to art constitutes injury to an artist\u2019s reputation.
\nMoral rights were incorporated into U.S. federal law through the Visual Artists Rights Act of 1990 (VARA), which allows visual artists \u201cto prevent any intentional distortion, mutilation, or other modification\u201d of a work that \u201cwould be prejudicial to his or her honor or reputation,\u201d and allows the artist \u201cto prevent any destruction of a work of recognized stature.\u201d
\n\u201cDo you consider this junk \u2018works of recognized stature\u2019?\u201d Heather asked indignantly.
\nMaybe we didn\u2019t, but the law might\u2014especially since VARA fails to define \u201crecognized stature.\u201d We told Heather about the 1994 federal case Carter v. Helmsley-Spear, in which three sculptors tried to prevent the owners of a commercial building in New York from modifying or destroying their sculptures in the lobby. The district court said that the determination of \u201crecognized stature\u201d should be based on the opinion of \u201cart experts, the art community or society in general.\u201d In finding that the art fit this category, the judge gave greater weight to the testimony of witnesses for the sculptors than to the defendants\u2019 expert witness, the art critic Hilton Kramer. \u201cIn Mr. Kramer\u2019s opinion,\u201d the judge wrote, \u201cno artist has a reputation in the art world unless Mr. Kramer is familiar with writings about that artist. I find this to be an unpersuasive basis for determining whether alteration of the work would adversely affect plaintiffs\u2019 honor or reputation.\u201d
\nThe concept of moral rights came from the French Revolution, with its intense focus on the rights of the individual. Today the moral rights of artists are recognized in countries such as Australia, Canada, Germany, Japan, Mexico, Morocco, the Netherlands, Nigeria and the U.K.
\nHeather pointed to a large sculpture affixed to the wall. It depicted Caligula\u2014in the nude.
\n\u201cThis one\u2019s removable, so I\u2019ll quietly get rid of it,\u201d she said.
\nWe cautioned her against doing so. Under VARA, the sculptor could assert his moral rights unless Heather made a \u201cdiligent, good faith attempt without success\u201d to notify him of her intended action, or if he \u201cfailed, within 90 days after receiving such notice, either to remove the work or to pay for its removal.\u201d If the artist paid for the removal, he would get title to the sculpture.
\n\u201cHow about if I simply have my 10-year-old son \u2018restore\u2019 it?\u201d she asked. \u201cI\u2019ll give him a hammer and let him go to town.\u201d
\n\u201cBad idea,\u201d we replied. While VARA does permit the modification of works through conservation, it does not allow for unprofessional conservation that amounts to gross negligence.
\nIn a 2001 case, Flack v. Friends of Queen Catherine, the court for the Southern District of New York rejected a motion to dismiss an action alleging gross negligence during conservation. The case involved a statue of Queen Catherine of Braganza, the namesake of the New York borough of Queens, which had been commissioned from the sculptor Audrey Flack. Flack sued the group managing the project, claiming that the head of the statue had been placed outdoors in a \u201cgarbage dump,\u201d where the face had been damaged.
\nAccording to Flack, the defendants tried to restore the sculpture by hiring \u201ca mere \u2018assistant\u2019 who was not trained in conservation, was not competent to perform work without [plaintiff\u2019s] supervision.\u201d The case has since been settled.
\nHeather next walked us out on the lawn. \u201cWhat about the mosaic of the Roman orgy on the side of the gazebo?\u201d she asked. \u201cI can\u2019t remove it without destroying it.\u201d
\nFortunately for her, the mosaic was installed in 1990. VARA\u2019s restrictions on destroying art incorporated into buildings do not apply if the artist agreed to its installation before the law took effect on June 1, 1991.
\nNext, Heather led us to an installation created especially for the garden, titled Evening at the Coliseum. It featured marble lions munching on slaves. \u201cCan I hide this work in a dark corner of my basement instead?\u201d she asked. The answer was yes. Immediately, if possible.
\nVARA does not protect the placement of site-specific sculpture. This was the ruling in the 2003 U.S. District Court case in Boston, Phillips v. Pembroke Real Estate. The case involved a sculptor, David Phillips, who tried to stop a real estate company from altering a park that he had helped design and from modifying sculptures he had made for the park. Phillips argued that his sculptures were site-specific and moving them \u201cwould be like painting over the background of the Mona Lisa.\u201d The court rejected his claim under VARA, but ruled in his favor based on Massachusetts state law, which grants broader protections to the artist.
\nFinally, our client showed us the pi\u00e8ce de r\u00e9sistance: a huge mural of a Roman bacchanalia titled \u201cCaesar\u2019s Salad\u201d. \u201cCan I whitewash it?\u201d Heather asked in a hopeful tone.
\nWe told her that owners of a building tried doing exactly that (using opaque sealant) to a huge, bright mural painted by Jesus Campusano in San Francisco. The result was a lawsuit brought by the artists\u2019 children under VARA, and a $200,000 settlement reached in 1999.
\nIn Mexico last year, artists reportedly sued the country\u2019s new museum of Latin American art, the Gelman Collection, for $15 million, claiming that their rights were violated when the supermarket chain that paid for the museum demolished buildings with murals on the site.
\n\u201cHow about if I simply erect another wall right next to the mural?\u201d Heather asked. \u201cThat way, no one will be able to see it.\u201d
\n\u201cLegally, that would work,\u201d we said. We described English v. CFC&R East, a 1997 federal case involving six artists who created murals and sculptures in a New York City community garden and tried to enjoin developers from building on the lot. The judge rejected their assertion that obliterating a visual work from view is equivalent to destroying it, since \u201cthis interpretation would effectively allow building owners to inhibit the development of adjoining parcels of land by simply painting a mural on the side of their building.\u201d
\nTrying to be encouraging, we said that under VARA, moral rights last only through the life of the artist.
\n\u201cBut the artist is still in his 30s,\u201d Heather replied with a frown. \u201cAnd he lives in a rent-stabilized apartment.\u201d
\nOne bright spot for our client is that artists in the U.S., unlike most countries, can waive their moral rights in a signed document. And given the proper economic incentive, many do just that.
\nHeather\u2019s last question was a philosophical one: \u201cWhat about the property owner\u2019s right to be free from compelled artistic expression\u2014 especially in one\u2019s own home? How do you balance this basic American right against the French droit moral?\u201d
\nWe spared Heather a lengthy response to this one. Tempus fugit, and we lawyers bill by the hour.<\/p>\n

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You buy property and want to remove art installed by a previous owner. It might not be that easy. Ars longa, vita brevis. As one of our clients discovered, that is not always a good thing. Heather was the proud new owner of a beautiful country house. The only wrinkle was that the previous owner … <\/p>\n

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