A Legal Discussion on Failed Restorations

April 1, 2021

By Marie Kessel.

No, these are not AI-made pieces but works that have been poorly restored, often after being poorly conserved. Art conservation is the act of “documenting, stabilizing, and preserving objects” through the use of scientific analysis, material science, and historic research.^[1] However, the word “restoration” specifically is a loaded one in the art world, and has been the subject of much controversy in recent years.^[2] Cautionary tales of restorations gone terribly wrong from different corners of the world raise questions about ethics and duties owed by all the actors involved (curators, restorers, owners of the art, etc) to the artists’ legacy, the public and to the art historical record.

Given that unsatisfactory restorations could, among other unintended consequences, devalue and even destroy the value of a work of art, which likely results in intervention from attorneys, this article discusses some unfortunate restorations in recent art history for three reasons: to touch on the differences between conservation and restoration, to bring attention to the prevalence of amateur restorations across the world, and to emphasize the importance of proper conservation practices as a whole.

This article will also touch upon the legal issues that can arise from unprofessional restorations. Does the original artist retain all rights of their work after they die? Can an owner of an artwork take legal action on the artwork of a deceased artist for an illegitimate restoration, and does any course of action change when the artist is still alive? While these questions open up a veritable Pandora’s box of legalese, the simple answer is that it depends on a lot of factors.

Restoration v. Conservation

While restoration technically falls under the umbrella of “art conservation” as a whole, the terms conservation and restoration differ significantly. Conservation pertains to keeping or stabilizing an artwork as close to its original state as possible. Conservation practices can involve cleaning the surface of an artwork, and removing features that could take away from the work’s original appearance.^[3]

A conservator’s ultimate goal is for the artwork to be enjoyed as the original artist intended it upon its creation.^[4] A conservator will not use any materials that will negatively affect the original artwork’s materials, and will take the utmost care to use preventative measures to inhibit any future deterioration of the artwork or art object.^[5]

Restoration focuses on returning an artwork as closely to its original state as possible.^[6] Restorers are permitted to use modern materials to make alterations. A restored art object may have had all physical evidence of wear and tear over the years completely removed.^[7]

Visual Artists Rights Act

In the United States, the Visual Artists Rights Act (VARA) was passed in 1990 with the intention of protecting artists’ work. This law “grants artists the rights to prevent intentional modification to their art and the destruction of a work of ‘recognized stature.’”^[8] VARA has been said to be very limited for a few reasons.^[9] For example, it only protects narrow categories of art^[10] and excludes works for hire, as well as works that U.S. copyright law does not consider a work of visual art.^[11] Furthermore, while VARA prevents the destruction of a work of “recognized stature,” it does not clearly define what recognized stature would constitute.^[12]

However, one could arguably say that the most prohibitive limitation of VARA is that the rights in the work are granted only to the creator of the damaged work, and that any rights cannot be transferred by the artist and officially expire upon their death.^[13] VARA was created to “protect the reputation of artists rather than to preserve cultural heritage.”^[14] While it can serve as a wonderful resource for living artists, it also does not safeguard against the risk of an illegitimate restoration conducted after the artist’s death.

There is a lot of history within fine art objects that can potentially be lost due to this limitation: below are some examples of bungled restorations under the hands of an inept restoration artist.

(1) Beast Jesus

When one thinks of botched restorations, one cannot help but immediately remember the famous case known as “Beast Jesus,” or “Monkey Christ.” Now, it is a worldwide phenomenon that prompts thousands of visitors to the small town of Borja, Spain every year.^[15]

Ecce Home, Before, After, and After the After. Source: Flickr (CC BY 2.0).

In 2012, then 83-year-old Cecilia Giménez attempted an unauthorized restoration on the damaged Ecce Homo, a 1930 fresco by Elías García Marínez depicting Jesus that hung in her local church, Santuario de Misericordia^[16] in Borja, Spain.^[17] The restoration went viral, receiving mockery and scorn on the Internet. It prompted the creation of many memes, and parodies,^[18] and Cecilia Giménez’s name was even featured on Stephen Colbert’s segment called “Alpha Dog of the Week.”

Why did this restoration receive so much backlash? It simply looks nothing like the original fresco. Upon describing its appearance, The Observer even wrote that this restored fresco received so much ridicule because of “its soulless eyes, anime-style nose and furry chinstrap from hell.”^[19] The restoration earned its nickname because it looked more like a primate than like Christ. When speaking about it, Andrew Flack, an opera librettist who journeyed to Borja to conduct research on a production, said, “[w]hy are people coming to see it if it is such a terrible work of art? It’s a pilgrimage of sorts, driven by the media into a phenomenon. God works in mysterious ways. Your disaster could be my miracle.”^[20]

Originally, the church threatened to file a complaint and experts across the world debated about how the damage could be undone, and if this would even be possible.^[21] However, thousands of people began petitioning for the work to be left as it was, so that people could come see this new version of the fresco.^[22]

Ultimately, Giménez’s restoration was responsible for saving Borja. Borja has a population of roughly 5,000 people, yet over the next three years after the restoration, 160,000 tourists traveled to the town with the sole intention of seeing the work.^[23] At the art center devoted to the work, the story of the restoration is told and canvases are provided to interested tourists who want to try to make their own version.^[24] Giménez herself even receives royalties from all of the business her Ecce Homo restoration brings.

While viewers can laugh at what is now a ridiculous-looking fresco, Cecilia Giménez’s maladroit restoration brings up a lot of questions relevant to the restoration debate. Did she ultimately destroy Elías García Martínez’s fresco? Is this restoration disrespectful to the original artist’s work, or does this get overshadowed by how much it helped the town? While this is an extremely famous example of a botched restoration, it is only one of many.

(2) Qing Fresco Restoration

In early October 2013, thanks to a Chinese blogger named “Wujiaofeng,” images of a botched restoration of 270-year old Qing Dynasty frescos adorning the walls of Chaoyang’s Yunji temple were leaked to the public.^[25] An unqualified restoration company carried out the restoration after the temple officials denied the company’s request for a restoration permit. The historic frescoes are now covered by completely unrelated, brand-new cartoons of Taoist mythical figures.^[26]

Source: CBC via AFT/Getty Images.

When speaking about the restoration, Alasdair Palmer from The Telegraph emphasized the extreme damage that professional treatments can do to an ancient work. Even though the frescoes had weathered over time, now their original image had been completely invaded^[27] to the point of irreversible damage.

An archaeologist with Henan’s Culture Relics Bureau, Li Zhanyang, also criticized the local government.^[28] He claimed that they were “uneducated, unreasonable and ignorant of the law” and that similar incidents happened every year because laws against illegal restorations were not enforced.^[29] He Shuzhong, the founder of Beijing Cultural Heritage Protection Centre, spoke about how experts want to finish projects quickly and may lack understanding about cultural relics. The restorers don’t know how to or understand the need of preserving the original object over altering it.^[30]

(3) Roman Mosaics in Turkey

Another example of a fumbled restoration occurred in May 2015, on a series of Roman mosaics in Turkey, that date from the 2nd to 6th century.^[31] The repair job was completed at the Hatay Archaeological Museum in Antakya.

Source: PBS via Hurriyet Daily News.

The public was only alerted to the failed restoration by local craftsman Mehmet Daskapan, who had photographed the mosaics.^[32] The restorer replaced many of the mosaic stones with stones of different colors and shapes, thus distorting the original image of the mosaics and altering the facial expression of depicted figures.^[33]

When speaking to the local newspaper, Daskapan said that “[v]aluable pieces from the Roman period have been ruined . . . .They have become caricatures of their former selves.”^[34] The deputy director of the Culture Ministry’s Heritage and Museums department announced that there would be an investigation, yet the damage has already been done, and is now compared to Beast Jesus.

(4) 15th-Century Sculptural Trinity of Mary, Saint Anne, and baby Jesus

In September 2018, a tobacco shop owner in Rañadorio, Spain, María Luisa Menéndez, undertook a restoration project of her own, by painting over a 15th-century sculptural trinity of Mary, Saint Anne, and baby Jesus, as well as two other figures of Saint Peter and of a second Virgin Mary.^[35]

Source: Artnet via DSF/AFP/Getty Images.

Even though the statues had been professionally restored 15 years ago, Menéndez claimed that the statues in the shrine needed to be painted and that she had received permission from the local clergy to do so. She told El Comercio, “I’m not a professional painter but. . . . I painted them as best I could using what I thought were the right colors.”^[36]

María Luisa Menéndez’s intervention involved giving the statues in the shrine fresh lipstick and eyeliner.^[37] Figurines were painted over in neon colors, such as pink, turquoise, and green. The original restorer, Luis Suárez Saro, left the entire trinity piece unpainted, because it was never originally painted.^[38] When speaking about Menéndez’s restoration, Saro said that one does not know whether to laugh or cry when looking at the trinity now. Many in Spain considered the restoration an attack on their cultural heritage and took to Twitter with the hashtag #SOSPatrimonio to bring attention to the shrine.^[39]

(5) Immaculate Conception by Bartolomé Esteban Murillo

A copy of the famous painting Immaculate Conception by Bartolomé Esteban Murillo is yet another artwork to suffer under an unprofessional restoration. In 2020, a furniture restorer attempted to clean the painting for a private art collector in Valencia, Spain, but after two attempts to restore the painting, it was completely unrecognizable.^[40]

Source: The Guardian via Europa Press News.

This recent botched restoration prompted more backlash from recognized experts in the art world. Fernando Carrera, a professor at the Galician School for the Conservation and Restoration of Culture Heritage said that only properly trained restorers should be allowed to restore artwork.^[41] While the law in Spain currently lets people work in restoration even if they didn’t have the proper education, Carrera declared, “[c]an you imagine just anyone being allowed to operate on other people? Or someone being allowed to sell medicine without a pharmacist’s licence? Or someone who’s not an architect being allowed to put up a building?”^[42]

One of the vice presidents of Spain’s Professional Association of Restorers and Conservators (ACRE), María Borja, even claimed that such restorations are more common than one may expect and that many a time, the public only learns about an inept restoration after it is posted on social media.^[43] There needs to be more investment in the care of cultural heritage, and mandatory training and enforcement of laws regarding restoration processes.

(6) Bank Façade in Palencia

In November 2020, another unfortunate restoration was spotted in Palencia, Spain: while part of a bank façade originally displayed a woman surrounded by cattle and livestock, the carving had been completely changed by an unknown restorer to look nothing like the original.^[44] Some observers said that the piece now looked like Mr. Potato Head or Donald Trump.^[45]

Source: The Art Newspaper via Antonio Guzmán Capel, Facebook.

When speaking about the piece, journalist Caroline Goldstein describes it with the following: “The female figure’s head, once tilted downward, is now a smooth, egg shape, with cockeyed mismatched eye sockets stuck on …. the mouth is formed by two thin, slightly upturned lips, her cheeks and chin nowhere to be found.”^[46]

Many took to social media to declare their outrage over the failed restoration, and to compare it to previous cases such as Beast Jesus, Saint George, and Murillo’s Immaculate Conception.^[47] Acre posted on Twitter, saying “THIS #IsNotARestoration… It’s a NON-professional intervention.”^[48]

If the Artist is Deceased . . .

As shown through VARA, it is extremely difficult, if not impossible, to prevent an artwork from being restored in any capacity (at least in the United States) after an artist’s death, as rights to the work expire when an artist dies. Lawsuits are rare. In many of the examples above, cases were not brought because it was not even known who the restoration artists were.

One example of a case that did go to trial for a fumbled restoration even though the artist had already passed was City of Amsterdam v. Daniel Goldreyer, Ltd.^[49] On November 5, 1993, the city of Amsterdam filed a lawsuit against Daniel Goldreyer and Daniel Goldreyer Ltd., listing six causes.^[50] Daniel Goldreyer Ltd. is a New York City-based company that specializes in the restoration of artwork. The company had been hired to restore “Who’s Afraid of Red, Yellow and Blue III” by Barnett Newman in 1988, after the piece had been slashed in Amsterdam’s Stedeljik Museum.^[51]

The plaintiffs claimed that Goldreyer committed a breach of contract, that he gave misrepresentations about what his method of restoration would be, and that the actual method damaged the artwork.^[52] Goldreyer claimed that he utilized a “pinpointing” method, when in actuality, he had painted over a large, important part of the painting. In the defendants’ reports, he did not say which method he would be using, and failed to give bimonthly updates to the museum regarding the status of the restoration.^[53] The plaintiffs were able to prove that Goldreyer had completely repainted over part of the work, thus harming it as the paint and sealer cannot be removed without damaging the artwork, after they had the piece tested at the Forensic Laboratory of the Netherlands Ministry of Justice.^[54] Goldreyer’s actions were inconsistent with the industry restoration standards.

The plaintiff alleged that they had suffered damages worth $3.5 million for the artwork. Not only had the artwork been harmed irreparably, but now the public would be deprived of ever seeing the piece in its original form again.^[55] The defendant tried to dismiss the charges, but the court denied the defendant’s motions to do so in entirety.

In this example, the city of Amsterdam stood in the artist’s place to represent the work, and was able to prove that it had fallen victim to a botched restoration job from Daniel Goldreyer’s company.

If the Artist is Still Alive . . .

If an artist is still alive, they can use VARA to keep control over their own artwork, as they maintain all rights until their death to the work. One artist who has attempted to exercised her VARA rights throughout her career is Cady Noland, known as the “bestselling living female artist at auction.”^[56]

Cady Noland’s work Cowboys Milking was set to be sold by Sotheby’s at auction in 2011, with owner Marc Jancou as the consignor.^[57] Noland went to visit the artwork before the sale, and noticed that there had been a restoration conducted on the work: the aluminum corners of the piece had been bent in the process of it.^[58] Because of this, Noland disavowed authorship of the work and demanded that it be withdrawn from the auction and Sotheby’s complied. Marc Jancou sued Sotheby’s for $26 million. Fortunately for Sotheby’s, the auction house had already created a contract that allowed them to withdraw any work from auction “if in its ‘sole judgment (a) there is doubt as to its authenticity or attribution…’”^[59] Noland declared that VARA entitled her to disavow her work under a matter of moral rights, but the work was clearly Noland’s, not a forgery. Amy Adler writes that “it is not at all clear that VARA affords her the right to disclaim authorship of a work and to render it inauthentic merely because she doesn’t like its condition.”^[60] In this instance, Marc Jancou still had no chance of ever winning his case, given the language of Sotheby’s contract. However, Cady Noland was able to use her power as the original artist in deciding what would happen to the work, even if it is still unclear if her reasoning applies under VARA or not.

More recently, the Southern District of New York dismissed Cady Noland’s third amended complaint regarding her Log Cabin Blank With Screw Eyes and Café Door (1990).^[61] Initiated in 2017, Noland’s suit argued that she authored a derivative work when she permitted a Defendant to stain and restore Log Cabin, located in Germany, sometime after VARA’s effective date and that the derivative work was entitled to copyright and VARA protection. In 2018, the suit was dismissed for failure to offer a basis for extraterritorial application of the copyright laws but allowing the artist to file an amended complaint. In June 2020, the court granted’s Defendants motion to dismiss the artist’s third amended complaint by establishing that Noland could not make out a claim for violation of her VARA rights in the United States or for copyright infringement. The Court explained that the derivative work would not terminate Noland’s copyright in her initial work. But, the Court held that Noland could not grandfather Log Cabin into VARA coverage through the derivative work because she was not its author.

Why is Proper Art Conservation Important?

The listed legal cases and tactless restorations from all over the world show how great of a role restoration can play in the history of an artwork. They bring to light questions such as: who maintains the control over an artwork (artist, consignor, auction house, museum, etc.) and what causes those factors to change? What should we be doing to ensure that the interests of the artist and of the original artwork are being respected?

While it is impossible to safeguard every piece of art in the world, and to prevent any inexpert restorations from happening, stricter guidelines in restoration practices can potentially help preserve historical objects in a safe, respectful way.

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Endnotes:

1. The Ultimate Art Conservation Guide, B.R. Howard Conservation (last visited February 8, 2021). ↑
2. Caitlin O’Riordan, Art Conservation: The Cost of Saving Great Works of Art, Emory International Law Review (2018). ↑
3. Id. ↑
4. Top 3 Differences Between Art Conservation and Art Restoration, Stella Art Conservation (July 25, 2019). ↑
5. What’s the Difference Between Conservation and Restoration?, B.R. Howard Conservation (last visited February 8, 2021). ↑
6. Id. ↑
7. Id. ↑
8. Laura Gilbert, Why the Visual Artists Rights Act is Failing, Artsy (Sept. 29, 2015). ↑
9. Id. ↑
10. Id. ↑
11. Id. ↑
12. Id. ↑
13. Heidi Stroh, Preserving Fine Art from the Ravages of Art Restoration, 16 Alb. L.J. Sci. & Tech. 239, 256–57 (2006). ↑
14. Id. ↑
15. Ryan Steadman, Botched Fresco Restoration Saved a Spanish Town, Observer (March 18, 2016). ↑
16. Michael Daley, And the World’s Worst Restoration Is… , ArtWatch UK (May 8, 2015). ↑
17. Id. ↑
18. Christie Chu, Botched Restoration of Jesus Fresco Miraculously Saves Spanish Town, Huffington Post (December 16, 2014). ↑
19. Ryan Steadman, Botched Fresco Restoration Saved a Spanish Town, Observer. ↑
20. Christie Chu, Botched Restoration of Jesus Fresco Miraculously Saves Spanish Town, Huffington Post. ↑
21. Michael Daley, And the World’s Worst Restoration Is… , ArtWatch UK. ↑
22. Id. ↑
23. Ryan Steadman, Botched Fresco Restoration Saved a Spanish Town, Observer. ↑
24. Id. ↑
25. Ruth Osborne, Qing Fresco “Restoration” Yields Disastrous Results, ArtWatch International (last visited February 8, 2021). ↑
26. Id. ↑
27. Id. ↑
28. Tania Branigan, Chinese temple’s garish restoration prompts outrage, The Guardian (October 22, 2013). ↑
29. Id. ↑
30. Id. ↑
31. Henri Neuendorf, Botched Repair Ruins Priceless Roman Mosaics in Turkey, Artnet News (May 5, 2015). ↑
32. Id. ↑
33. Id. ↑
34. Id. ↑
35. Kate Brown, ‘The Statues Really Needed Painting’: An Amateur Artist Defends Her Neon ‘Restoration’ of a 15th-Century Religious Shrine, Artnet News (September 10, 2018). ↑
36. Id. ↑
37. Id. ↑
38. Id. ↑
39. Id. ↑
40. Sam Jones, Experts call for regulation after latest botched art restoration in Spain, The Guardian (June 22, 2020). ↑
41. Id. ↑
42. Id. ↑
43. Id. ↑
44. Isis Davis-Marks, Botched Art Restoration in Spain Renders Smiling State Unrecognizable, Smithsonian (November 12, 2020). ↑
45. Id. ↑
46. Caroline Goldstein, Who Did This? Yet Another Amateur Art Restorer in Spain Has Absolutely Demolished a Once-Beautiful Artwork, Artnet News (November 10, 2020). ↑
47. Isis Davis-Marks, Botched Art Restoration in Spain Renders Smiling State Unrecognizable, Smithsonian. ↑
48. Id. ↑
49. City of Amsterdam v. Daniel Goldreyer, Ltd., 882 F. Supp. 1273 (E.D.N.Y. 1995). ↑
50. Id. ↑
51. Id. ↑
52. Id. ↑
53. Id. ↑
54. Id. ↑
55. Id. ↑
56. Amy Adler, Cowboys Milking – Formerly Attributed to Cady Noland, The Brooklyn Rail (Mar. 2016). ↑
57. Id. ↑
58. Id. ↑
59. Id. ↑
60. Id. ↑
61. Noland v. Janssen, No. 1:17-cv-05452 (S.D.N.Y. June 1, 2020). ↑

About the Author: Marie Kessel is a Spring 2021 Graduate Intern at the Center for Art Law. She is a B.A. graduate of the NYU Gallatin School of Individualized Study, where she created her own major in Art Law: Authentication, Valuation and Ethics, and minored in French. Marie is also interning for Tali Farhadian Weinstein’s campaign for Manhattan District Attorney and works as an academic tutor at Kweller Test Prep.