ART CONSERVATION AND THE LEGAL OBLIGATION TO PRESERVE ARTISTIC INTENT
ANN M. GARFINKLE, JANET FRIES, DANIEL LOPEZ, & LAURA POSSESSKY
6 PRECAUTIONS AND AVOIDING LEGAL LIABILITY
After reading the preceding paragraphs, a conservator may be filled with trepidation concerning tomorrow's conservation and wonder how to avoid the “wrath” of the copyright law. To avoid liability it is perhaps best to approach the law in a manner suggested by Oliver Wendell Holmes in The Path of the Law: “A legal duty … is nothing but a prediction that if a [person] does or omits certain things he will be made to suffer in this or that way by judgment of the court. [Therefore,][i]f you want to know the law … you must look at it as a bad man, who cares only for the material consequences that such knowledge enables him to predict, not as a good one, who finds his reason for conduct, whether inside or outside of it, in the vaguer sanctions of conscience.”
With this perspective in mind, consider drawing an analogy between conservators and physicians. By law, physicians have a legal obligation to practice medicine with the same degree of skill and care that is expected of the average physician acting under similar circumstances. Often, in order to meet this standard, a physician is obligated to run tests on the patient before giving treatment or offering advice. The law imposes a duty under circumstances in which the benefit received by testing outweighs the burden of giving the test. This is especially so when the cost of testing is extremely low and the possible resulting harm is great.
If publicly asked why they run so many tests, doctors will respond that they test to provide the best possible medical services to their patients. If asked in private, they may add that they test to avoid a possible lawsuit. This is not to suggest that doctors do not care about their patients. However, one look at the cost of malpractice insurance suggests that doctors do consider the legal consequences of failing to test. In an increasingly litigious society, this practice is common and prudent.
Arguably, the conservator's restoration of a work is analogous to health care providers' treatment of their patients. When a work comes into the conservator's studio it is usually ailing in some way. The conservator's goal is to maintain or restore the good health of the work by preserving the intent of the artist and to avoid any harm to the work and thereby avoid any legal liability. Before proceeding in a restoration, conservators should fully understand the scope of the restoration and run cost-effective tests that will enable them to fulfill their obligation. Testing provides protection for the work and protection for the conservator. Tests will guide conservators in providing their patients with professional care while taking precautions against harming the patient and incurring legal liability. Conservators, like doctors, should always be cautious in their attempts to restore their patients to good health and follow the recommended procedures as well as the rules and regulations of their profession.
A prudent practice is to always adhere to the AIC Code of Ethics and Guidelines for Practice, which creates an ethical obligation for conservators and sets out the accepted standard of care for the profession (AIC 1994). If followed, the guidelines will help shield the conservator from legal liability. For instance, the AIC Guidelines wisely require documentation for any and all actions of conservation. Proper documentation provides professional care for the work and legal proof that the conservator acted with the requisite care—that is, that he or she did not act negligently. Therefore, it is important to document everything done to a work, no matter how slight, and to photograph the work both before and after restoration.
Although the AIC Code of Ethics and Guidelines are extensive and require the conservator to maintain a relatively high ethical and professional standard, conservators should not automatically assume that adhering to them will provide complete protection from liability. Even if a conservator diligently follows the AIC Guidelines, a court of law, upon hearing the facts, could require even further diligence. The prominent jurist, Learned Hand, writing for the Second Circuit in the 1932 opinion of The T. J. Hooper, said: “In most cases reasonable prudence is in fact common prudence; but strictly speaking it is never its measure; a whole calling may have unduly lagged in adoption of new and available devices. It may never set its own tests however persuasive be its usages. Courts must in the end say what is required.” Conservators, therefore, should actively pursue better and more efficient methods of restoring and conserving art. To ignore or disregard an effective technique of conservation could expose a conservator to liability despite a strict adherence to commonly accepted practices. Above all, if the conservation is of the work of a living artist, the conservator must get that artist's permission. There may also be circumstances under which a conservator's best course of action is not to accept a commission to restore a work of art.
An additional preventive measure would be for museums and other art purchasers to obtain more comprehensive information at the time of accession. When a work of art is acquired, in particular when it is acquired from a living artist, museums could and should request, by use of forms, pertinent information including the materials used, tools used, the history of any treatment, and guidelines for storage or display of the work. The cost of obtaining this information is low and would prove invaluable to conservators. Some museums are doing this already, and others should be encouraged to adopt the practice. If registrars and curators obtained detailed information about works of art—including, for example, what brand of paint, what shade of blue, what kind of brush, what kind of varnish—restorations would be easier and more accurate and carry a greatly reduced chance for the commission of negligent acts.