ART CONSERVATION AND THE LEGAL OBLIGATION TO PRESERVE ARTISTIC INTENT
ANN M. GARFINKLE, JANET FRIES, DANIEL LOPEZ, & LAURA POSSESSKY
4 MORAL RIGHTS UNDER THE FEDERAL STATUTE
Despite attempts to draw a clear line between economic and moral concerns, all art professionals realize that reputational issues affect the economics of art. VARA does have economic impact, but that is not its focus. Rather, VARA focuses on the protection of artists' personal relationships with their art, on artists' right to be recognized, or to choose not to be recognized, as creators of their work (the “right of attribution”), and on artists' right to prevent harm to their work (the “right of integrity”). These rights also become economic in the sense that they are bargaining chips that potentially give artists additional power in negotiations for projects. This shift in economic position may affect conservators as well.
4.2 “WORK OF VISUAL ART” UNDER VARA
Under VARA, the right of attribution and the right of integrity are defined very narrowly. In Europe, moral rights are recognized for most creations in many different artistic disciplines, but these rights under U.S. law are restricted solely to a “work of visual art.” According to VARA, a “work of visual art” is:
- “a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or
- a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author” (Visual Artists Rights Act 1990).
VARA expressly excludes “any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture, or other audiovisual work, book, magazine, newspaper, periodical, database, electronic information service, electronic publication, or similar publication.”
Even if a work falls within the definition of a “work of visual art,” VARA does not apply if the work is not subject to copyright protection under the Copyright Act or is a “work made for hire” (Visual Artists Rights Act 1990). Further, these federal rights do not apply to reproductions of the work, and mere reproductions of the work do not violate either of these rights. (However, it should be noted that New York does grant protection to reproductions.) Despite the narrow application of these new rights, the conservator may be confronted with moral rights issues since it is often the narrow band of works to which VARA applies that require conservation.
4.3 SCOPE OF THE RIGHTS OF ATTRIBUTION AND INTEGRITY
Once it is determined that an artist's work falls within the definition of a “work of visual art” and the rights of attribution and integrity apply, it is important to know exactly what the scope of these rights is and under what circumstances a conservator may be found to violate these rights. If the rights of attribution and integrity apply to a work, they are given exclusively to the artist who created the work (VARA 1990). Only the artist can assert moral rights, not collectors, gallery owners, dealers, or museums. When a work was created determines the extent of moral rights protection for that work. Essentially, there are two categories of works: works created after the effective date of VARA (June 1, 1991) and works created prior to that date. Full moral rights protection exists for all works of visual art created after June 1, 1991, and last for the life of the artist. For works created prior to VARA, protection exists only if the artist still has title in the work and exists only for the duration of copyright protection (VARA 1990).
The right of attribution gives an artist the right: (1) to claim or disclaim authorship of a created work; (2) to prevent the use of his or her name in association with a work that he or she did not create; and (3) to prevent the use of his or her name as the artist of a work that has been modified in such a manner that would be prejudicial to the artist's honor or reputation. This right is also referred to as the right of “paternity,” which recognizes that the relationship between artists and their work is analogous to the personal and legal relationship between parents and legitimate children. A conservator must be concerned with an artist exerting this right, especially if the artist believes that the result of the work of a conservator is prejudicial to his or her honor or reputation.
The right of integrity gives artists the right: (1) to prevent intentional distortion, mutilation, or other modification of their work that is pre-judicial to their honor and reputation; and (2) to prevent any intentional or grossly negligent destruction of a work of recognized stature (VARA 1990). The statute does not define “recognized stature” or “harm to honor or reputation.” When a statutory definition does not exist for relevant terms, the judiciary has the role of interpreting the terms in a manner consistent with the intent of Congress. The right of integrity affects conservators particularly because conservation frequently involves works that are widely considered works of recognized stature or are created by renowned artists. Within statutory constraints, if poorly done conservation is construed as a mutilation or destruction of a work, the conservator will be liable to the artist under VARA.
4.4 THE RIGHT OF INTEGRITY: GROSS NEGLIGENCE OR INTENTIONAL HARM
Under VARA, a conservator may be liable to an artist for the intentional or grossly negligent destruction of a work of recognized stature. However, if an artist has the right to protect a work from grossly negligent or intentional destruction, a question of fact arises as to whether the conservator's performance falls within those terms. VARA expressly states that modifications resulting from the passage of time and the natural aging process of a work are not considered a distortion or mutilation. VARA also states that a modification resulting from conservation or public presentation is not a mutilation or destruction unless the modification is caused by gross negligence. In short, a conservator has violated an artist's right of integrity if the conservator, intentionally or with gross negligence, damages a work of recognized stature or intentionally modifies a work in a way that causes harm to the artist's honor or reputation. A full understanding of what this means requires the definition of terms and some background on negligence as defined in the law of torts.
The standards set forth in VARA—“intentional” and “gross negligence”—are derived from tort law. A “tort,” derived from the Latin torquere, meaning “to twist,” is an act that causes harm to a person or that person's property, a civil wrong. To determine when harmful conduct requires compensation to the injured person, courts will generally follow the basic principle that reasonable people owe each other a duty of care. When that duty is not upheld, when it is “breached” and harm results, the wrongdoer is liable for his or her conduct. A breach of this duty of care is referred to as “negligence,” which is the “failure to use such care as a reasonably prudent and careful person would use under similar circumstances” (Black's Law Dictionary 1990). When the person with the duty of care is a professional, the duty is higher than that for the average “reasonable person.” For conservators handling valuable works of art, great care is reasonable. “Gross negligence” is the failure to perform a manifest duty in “reckless disregard of the consequences as affecting the life or property of another” (Black's Law Dictionary 1990).
“Intentional destruction” does not necessarily mean its conventional reading of an intent to destroy or modify a work. An artist or collector may claim an intentional destruction or modification by asserting the tort of conversion. A “conversion” is defined as “an unauthorized assumption and exercise of the right of ownership over goods … belonging to another, to the alteration of their condition or the exclusion of the owner's rights” (Black's Law Dictionary 1990). A conversion claim could arise, for example, if a conservator destroys or fundamentally alters the work without the knowledge, consent, or approval of the owner and such destruction or alteration so substantially diminishes the value of the work as to render it worthless. The “intent” here refers to the conservator's intent to conserve or repair the work without the knowledge or consent of the owner. In such a case, courts have held that it is fair to require the defendant to pay the plaintiff the fair market value of the converted property. The enforcement of a conversion action can be viewed as a “forced sale,” where the convertor is required to pay the full value of the converted property, not merely the diminution in value caused by the harm. If the conservator can repair the alteration, however, there may not be a conversion of the property.
These varying degrees, or “standards,” of liability—negligence, gross negligence, and intent—are increasing degrees of severity by which the tort may be measured. An intentional wrongdoing is more severely looked upon by courts than a negligent tort. If an injured person proves that harm was directly caused by the wrongdoer's intentional or negligent act and that the harm resulted in actual damage, the injured person can recover money from a wrongdoer.
The prudent conservator should err on the side of caution and work with great care. For example, if a conservator is repairing a work that he or she has repaired previously, the conservator should not only consult the notes and tests taken for the previous repairs but also test the area again and not rely on earlier notes or tests. The conservator may have made an error in the original testing or recorded inaccurate data. By taking these actions, the conservator is above the negligence line and plainly within the scope of reasonable care. A conservator should never take shortcuts, even if he or she reasonably believes that they will not cause harm to the work.
If an artist can prove that a conservator damaged a work due to the conservator's gross negligence, in addition to a claim for damages to integrity, VARA allows the artist to deny attribution. Such a denial would mean that, even though the artist originally created the work, the artist would be entitled to deny authorship and prevent others from attributing that work to him or her. The economic effect of such a claim could mean the loss of a million-dollar investment and a lawsuit seeking damages from the conservator or the conservator's employer. The artist could also sue for damages to his or her honor or reputation. Both of these actions could include statutory damages and attorneys' fees.
4.5 THE FIRST CASE UNDER VARA
To further complicate matters for conservators and others seeking to understand how these new provisions affect them, the extent to which the provisions apply is not entirely clear. Undefined terms like “work of recognized stature” or “harm to honor or reputation” raise a number of questions about the actual applicability of these rights. A perfect example of this lack of clarity is the first case to be brought by artists asserting federal moral rights claims, Carter v. Helmsley-Spear, Inc.
This case was brought in U.S. District Court by three artists working collaboratively (they call themselves “the three Js”), who contracted with the owners of a building to design and create a permanent sculpture in the lobby of the building. The artists were creating a huge sculpture to fill the 18,000-square-foot lobby of the defendants' multiuse warehouse in Queens, New York. The artwork consisted of 50 tons of recycled cars, buses, sinks, and abandoned appliances. (For a photograph, see the May 1994 issue of Art News.) Two and one-half years after work began on the sculpture, the building owners filed for bankruptcy. The entity with the rights over the real estate demanded that the artists leave the property and prohibited them from entering the building to complete their work of art.
When the artists learned that there were plans to remove the sculpture, they asserted their moral rights under VARA and asked the court for injunctive relief to prevent its destruction and removal while trial was pending. The U.S. District Court granted a preliminary injunction. Following the trial, the court held that the sculpture was protected under VARA and consequently the three Js were entitled to a permanent injunction to prevent the building owners from distorting, mutilating, modifying, destroying, or removing the work. The U.S. Court of Appeals for the Second Circuit reversed this decision and held that the three Js, due to the terms and conditions of their particular employment, were not entitled to the protection of VARA.
In the Carter case, the district court determined that VARA protects the artist's moral right of integrity even when the party that owns the work of art no longer wants it, while the court of appeals reversed it on other grounds. After this case, all building owners, including museums and galleries, will need to take precautions when installing “permanent” exhibits. Prudent conservators should not attempt to conserve a work of visual art by a living artist unless there is a written agreement signed by the artist waiving moral rights and expressly permitting the conservation. Many museums already have this rule for staff conservators.
For a sculpture to be protected by VARA, a court must determine whether destruction would harm the reputation of the artist and whether the work was a “work of recognized stature.” In Carter, the court stated that “reputation” is readily understood as the “condition of being worthy or meritorious.” To establish “reputation,” an artist must prove (with the testimony of art experts) that alterations to the work would damage an existing reputation that is embodied in the protected work. To determine “recognized stature,” an artist must prove that the visual art in question “is viewed as meritorious” and that experts or other members of the artistic community are familiar with the visual artist. As demonstrated in Carter, establishing definitions turn on the testimony of experts and members of the artistic community. In order to make these determinations each side called expert witnesses to testify as to the reputation of the artists and the stature of the work.
When the case was appealed, the U.S. Court of Appeals for the Second Circuit dismissed the moral rights claim on the grounds that the work fell within the Copyright Act's definition of a “work made for hire.” According to the court of appeals, the nature of the relationship between the artists and the original building owners resembled that of an employer-employee relationship, and the artists' sculpture was a work made for hire and not a commissioned work. Since Congress expressly excluded works made for hire from VARA protection, the artists could not claim a violation of their moral rights.
Since Carter, other cases brought by artists asserting VARA rights have further defined the scope of the provisions. These cases include Pavia v. 1120 Avenue of the Americas Associates, in which the dismantling of a sculpture prior to 1991 was found by the court not to fall under VARA protection because the damage occurred before the statute was enacted. Because VARA is so narrowly defined, conservators may find that they may use VARA as a defense against similar alternative claims, discussed in the next section, on the basis that VARA preempts these other claims.
4.6 REMEDIES UNDER THE STATUTE
If a conservator is held liable under VARA, he or she may be required to compensate the aggrieved artist in a variety of ways. VARA grants artists the full range of remedies allowed under the copyright statute. Artists may receive monetary compensation in the form of actual damages (which must be proved by the artist), statutory damages of up to $100,000 for each willful infringement of the artist's moral rights, and costs and attorneys' fees. Equitable remedies include injunctive relief, seizure, forfeiture, and impounding. Additional remedies exist under various state laws that are similar to federal remedies, but they will, of course, vary from state to state.
The sculptor Judy Pfaff sued the Denver Art Museum for $175,000 for the intentional destruction of her work, Ciello. This 110-foot-long sculpture of wires, plastic tubes, and a large red ball was originally installed in Denver. As agreed, it was then dismantled and shipped to Columbus, Ohio. Pfaff left instructions with the Denver Art Museum for the disassembly and packing of the work, but when she arrived in Columbus she found that the work had been haphazardly cut up, crated, and shipped to Columbus where it arrived, in her words, as “kindling” and “shards.”