Book Review: “Artist, Authorship & Legacy: A Reader” (2018)

October 15, 2019

By Jana S. Farmer

Artist, Authorship & Legacy is a collection of twenty-two interdisciplinary essays edited by Daniel McClean, art attorney in California and the United Kingdom, author and independent curator, who also contributed an introduction and his own essay on artists’ estates to this volume. Other contributors include artists, art historians, art lawyers, curators, museum directors, writers and editors. This book should appeal to a broad audience. Jana Farmer’s review outlines the book’s structure and content, and concludes with an impression on its value to a wide range of readers, from practicing lawyers and art world professionals to art and law aficionados and students. Overall, the volume illustrates how contemporary artistic practices, which are continually changing and expanding the boundaries of artistic expression, present existing legal frameworks with a constant challenge to catch up and adequately serve the needs of the artists, owners of artworks and art world professionals.

This anthology is structured in three sections. “Part One: Authorship and Artists’ Rights” follows the development of artists’ rights in the United States and Europe since the 1960s and illustrates the importance of the identity of the author as creator in how artworks are valued in the contemporary market, even though many artists have questioned and tried to eradicate the concept of the single author by creating “authorless” works. With the concept of authorship come the related rights: right to be credited as an author of the artwork, right to object to false attribution, right to revoke authorship and right to prevent destruction or modification of the artwork. Part One also analyzes the American construct of fair use doctrine, a defense to copyright infringement that allows appropriation artists to take the work of others and subject it to creative transformation.

“Part Two: The Artwork, Aura, and Authentication” uses plenty of contemporary art references to show how artists’ choice of mediums, delegation of production and performance, and choice to allow replication of artworks after the artist’s death are at odds with copyright law’s concepts of creator, original expression and derivative work. This section also addresses the ongoing tension between collectors and authenticators, where the opinions of the latter are much needed for the art market to function, but may be silenced under threat of unwarranted litigation by disappointed collectors.

“Part Three: Legacy and Its Stewards” focuses on the role of artists’ heirs and foundations in shaping the narrative of the artist’s legacy and place in art history. Essays in this section analyze issues surrounding how the artist may direct the way their oeuvre is seen over time, who should be entrusted with stewarding the artist’s legacy and how these matters should be handled.

Part One: Authorship and Artists’ Rights

In the opening essay of Part One, Joan Kee, art history professor, former attorney and frequent author of publications on art and law such as Models of Integrity (see the Center’s review here), recounts the history of the development of artists’ rights in the United States. Starting from the artist Vassilakis Takis’s liberation of his artwork from the Museum of Modern Art (“MoMA”) in New York, she outlines artists’ turn to contracts in an attempt to control the use of their artworks post-sale, the adoption of the Visual Artists Rights Act (“VARA”) and the recent demise of the resale royalty rights legislation in the United States. Prof. Kee suggests that rather than juxtaposing artists’ rights against those of art collectors, common ground may be found through negotiation and focus on custodianship. This idea is echoed in a later essay by Mr. McClean.

Donn Zaretsky, art law professor and practicing attorney, shares his perspective on the case of MASS MoCA v. Christoph Büchel,^[1] a moral rights matter decided under VARA in which Mr. Zaretsky represented the artist.

Martha Buskirk, art history professor and author, analyses the practices of denunciation and artistic withdrawal in connection with damaged and unfinished works or even early works that artists no longer wish to recognize as part of their oeuvre, and the impact of these practices on the art market.

On the example of Kreuk v. Vō^[2] litigation, Christian Viveros-Fauné (writer, curator, former art dealer and fair director) explores the tensions between the worldview of business and that of art and artists when it comes to enforcement of art commission contracts. The example of the Dutch court that attempted to compel the artist to make an artwork is a cautionary tale for other courts faced with enforcement of personal service contracts.

In other essays, Nate Harrison (artist, writer and lecturer) comments on the seminal fair use decision in Cariou v. Prince,^[3] which he sees as a marker of a new judicial tolerance for artistic appropriation;. Lisa Rosendahl, Berlin-based curator and writer, explores the transition of the contemporary artistic practice away from the Romantic notion of the author-as-individual-genius and the shift in understanding of the author’s function from the 18th century to today; and John C. Welchman, art history professor and author, examines the works of American artist Mike Kelley, concentrating on his work as a writer and his interrogation of the notion and implications of authorial making.

Part Two: The Artwork, Aura, and Authentication

Part Two opens with the essay of Penelope Curtis on the legacy of sculptors. Ms. Curtis, Director of the Calouste Gulbenkian Museum in Lisbon, Portugal, considers how museums may handle issues of legacy, using Auguste Rodin’s legacy as a case study. She also questions who owns artistic legacy, as new generations of artists reference works by the earlier artists and take up their predecessors’ legacy as their subject.

The essay of Alessandra Donati, professor of comparative contract law and art law and practicing attorney in Italy, explores the multifaceted role of archives in conjunction with contracts and certificates in authentication and transfer of ownership of works of Conceptual artists. Conceptual art presents particular challenges for the existing framework of copyright law as it applies to visual art. Where ideas are not copyrightable and only the person who carries out the idea in tangible form is considered to be the author, copyright law would not protect, for example, Sol LeWitt’s authorship in his wall drawings − instructional works consisting of directions to a museum or a collector that purchases them on how the work may be drawn on a wall. Shane Burke, researcher and lecturer in intellectual property law at Cardiff University, points to a solution: the score/performance/conductor model that is already familiar to copyright law from the music industry also is capable of protecting the integrity of Conceptual artworks. Under this model, the artwork is the score that is performed by the collector or museum under the direction of the artist’s estate or foundation, which fulfills the conductorial role.

An essay by Guy Brett (London-based curator, art critic and lecturer on art) explores the question of the replication and recreation of artworks after the life of the artist in relation to the works of the Brazilian artist Hélio Oiticica. Where physical participation in the artist’s work is essential to its nature − as is the case with Oiticica’s made-on-the-body Parangolé participatory events − the artist’s foundation was faced with the dilemma of how to allow the audience to authentically experience the works. The adopted solution of replicating the works from plans, notes and drawings left by Oiticica was praised as deeply moving by some and criticized by others who remembered the originals.

Georgina Adam, the editor-at-large of The Art Newspaper, gives an overview of the relationship between the art market and artists’ estates and foundations, and the problems that arise. Judith Bresler, prominent art law attorney and co-author of the acclaimed treatise Art Law: The Guide for Collectors, Investors, Dealers, and Artists, points out that while art experts who render good faith authenticity opinions play a crucial role in the art market by helping prevent the circulation of fakes and forgeries, they practice their trade at their own risk. In the United States, where courts do not generally award attorneys’ fees to the prevailing party in litigation absent a contractual or statutory requirement, a string of recent lawsuits resulted in the effective silencing of many such experts. Ms. Bresler’s solution is enacting legislation to require claimants to plead causes of action against art experts with particularity and including cost- and fee-shifting provisions in favor of the prevailing party. The approaches to addressing authenticity issues differ from country to country. Corinne Hershkovitch and Guiseppe Calabi, who practice art law in France and Italy, respectively, analyze their countries’ experiences with disputes over the authenticity of artworks, including the right of heirs to authenticate.

Part Three: Legacy and Its Stewards

In the opening essay of Part Three of this volume, Loretta Würtenberger (founder of the Institute of Artists’ Estates) and Karl Von Trott Zu Solz (director at Fine Art Partners and consultant for the Institute of Artists’ Estates) introduce the topic of how artists’ bodies of work and legacies may be handled after their death and discuss the areas of expertise required of today’s custodians of artists’ legacies.

Christine J. Vincent (Project Director of the Aspen Institute Artist-Endowed Foundations Initiative) focuses her essay on the available types of legal structures for artistic legacy stewardship in the United States and the factors to be considered in selecting the appropriate type of stewardship to best care for the artworks and intellectual property. Particular attention is given in this essay to private charitable foundations, which are both the most highly regulated tax-exempt entities in the United States and the kind of entity most commonly used by artists.

Daniel McClean, the editor of this anthology, introduces a critical discussion of the role of artists’ estates as the guardians of artistic legacy in his essay. Artists’ estates are tasked with a wide range of functions, including conservation, archiving, cataloguing, authentication, promoting exhibitions of the artist’s work and scholarship of the artist’s oeuvre. Mr. McClean includes examples of situations where these roles were used positively and negatively. He suggests that artists’ estates work most effectively when they act as custodians, encouraging dissemination of the artists’ works, rather than as gatekeepers restricting the use of or access to the works. Gabriel Pérez-Barreiro, Director and Chief Curator of the Colección Patricia Phelps de Cisneros, discusses the roles of foundations as mediators between art and the public and their duty to serve both.

Dawn Adès, Professor Emerita of the History and Theory of Art at the University of Essex and former trustee of the Tate and the National Gallery, recounts the controversial history of Marcel Duchamp’s Fountain (readymade sculpture, 1917) − a found object and the first example of Conceptual art − and the attempts to reattribute the authorship to Baroness Elsa von Freytag-Loringhoven.

Brussels-based international initiative, Agency, recounts the dispute over the ownership of copyright in the dances that Martha Graham created that played out between the Martha Graham School and Dance Foundation, Martha Graham Center of Contemporary Dance and Ronald Protas, her sole executor and legatee, highlighting the tension between the copyright doctrine and the customs of the dance community. In the last essay of this collection, Gilane Tawadros, Chief Executive of the Design and Artists Copyright Society in the UK, provides several mini-essays on the artistic practices and legacy of several British artists, prompting the reader to reflect further on the main themes of this volume.

Impressions: It is said that a book is worth reading if one can get even a single new idea out of it. This anthology stands poised to provide many new ideas and varied viewpoints on the subjects of artistic authorship and stewardship of artists’ legacies. While this book is not intended as either an introductory text or a comprehensive treatise on these subjects, readers of different levels of experience with the topics covered will likely find something to take away. Practicing intellectual property lawyers and art world professionals may find food for thought and perhaps inspiration to find creative solutions for their clients’ particular challenges and requirements. Art and law students will benefit from several excellent overviews of the existing frameworks of artists’ rights, authentication and legacy stewardship; case examples used to illustrate the issues; and the book’s extensive bibliography. Some familiarity with contemporary art history is advisable, and the volume will likely pique the reader’s curiosity and encourage further background reading.

About the Book: Artist, Authorship & Legacy: A Reader. Edited by Daniel McClean. Ridinghouse, 2018. Paperback. ISBN 978 1 909932 45 6. Available here.

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Footnotes:

1. Mass. Museum of Contemporary Art Found., Inc. v. Büchel, 593 F.3d 38 (1st Cir. 2010). ↑
2. Rechtbank Rotterdam, 24 Juni 2015, Kreuk v. Vō (Neth.). ↑
3. Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013). ↑

About the Author: Jana Farmer is a partner at national law firm Wilson Elser. Jana represents clients in matters of copyright, sale and transfer of rights in artworks; protection of valuable creative assets; and general commercial disputes and transactional matters. A key contributor to the expansion of the firm’s Art Law practice and its current chair, Jana is an active member of NYSBA’s Entertainment Arts and Sports Section and its Fine Art Committee; she also is a member of ArtsWestchester. Jana is an Advisory Board Member at the Center for Art Law. She regularly publishes articles, presents on art law topics and provides pro bono services for Volunteer Lawyers for the Arts in New York City.