ART CONSERVATION AND THE LEGAL OBLIGATION TO PRESERVE ARTISTIC INTENT
ANN M. GARFINKLE, JANET FRIES, DANIEL LOPEZ, & LAURA POSSESSKY
VARA has expanded the exposure of conservators to claims by artists for modifications to their works. Now, not only the owner of a work of art may be able to sue a conservator if restoration goes awry, but a living artist may assert a moral rights claim against conservators under copyright law. Both artists and collectors can assert claims against conservators under a variety of legal theories that existed before the enactment of VARA. To avoid incurring legal liability, conservators should always proceed with caution.
There are several basic recommended precautions. First, conservators should diligently follow the AIC Code of Ethics and Guidelines for Practice. These standards provide an excellent road map for conservators. In particular, to decrease the potential for an artist to claim a violation of moral rights, conservators should “strive to select methods and materials that, to the best of current knowledge, do not adversely affect cultural property or its future examination, scientific investigation, treatment, or function” (AIC 1994, article VI). Such efforts are also emphasized in the Guidelines for Practice, as in paragraph 23, which underscores the need to document any intervention to compensate for loss in treatment records and reports (AIC 1994). This guideline also suggests that such compensation be detectable by common examination methods and be reversible (AIC 1994). A conservator wishing to take precautions against potential violations of moral rights may want to ensure that documentation and reversibility of conservation efforts are carried out on a regular basis and for other activities in addition to compensation for loss.
In addition to the standards of the AIC Code and Guidelines, the conservator may want to consider other measures to reduce the likelihood of a moral rights claim. Notably, if the artist is alive, obtain the artist's permission. Take note of the fact that although moral rights in the United States only exist for the life of the artist, moral rights in other countries extend beyond and may vest in the artist's heirs. As a consequence, even if the artist is no longer living, and particularly if the work was created in another country, the conservator may want to notify or seek permission from the artist's heirs. While paragraph 6 of the AIC Guidelines recommends seeking consent of the owner, custodian, or authorized agent, frequently the owner of the work is not the artist (AIC 1994).
As is suggested by the AIC Code of Ethics, a conservator should recognize his or her limitations and use good judgment. Conservators should not commit to the restoration of a work of art unless they have the required skills and knowledge. Given the remedies now available to artists under VARA, conservators should not be pressured by deadlines that cannot be met without sacrificing professional standards. Conservators must test thoroughly. As discussed, the law imposes testing as a professional duty, and conservators should make a thorough and detailed record of anything done in connection with the restoration. Through incorporation of these measures and diligent adherence to the AIC Code of Ethics and Guidelines for Practice, conservators may promote a high level of professionalism and at the same time meet the artistic, and now legal, goal of preserving the artist's intent.