Book Review: “Posthumous Art, Law and the Art Market,” Sharon Hecker and Peter J. Karol, eds. (2022)

May 20, 2024

By Viola Koenz

The first impression after picking up the book Posthumous Art, Law and the Art Market, edited by Sharon Hecker and Peter J. Karol and published by Routledge in 2022 are two Statues of Liberty on the cover: the original by Frédéric-Auguste Bartholdi and the silhouette of another almost identical, darker-colored one, which represents one of the twelve posthumous casts of the Statue produced by the French art dealer Guillaume Duhamel. This duplicity already evokes some of the salient issues addressed in the book: the relationship of the posthumous reproductions to the original and the questions that arise from it.

The book contains seventeen chapters (divided into five sections) written by art historians, law and economics professors, attorneys, specialists of the art market, a museum director and a contemporary artist. The objective is to critically depict the scene of the production and dissemination of posthumous art, primarily through the narrative of key case studies.

Introduction

The editors start from the case of the Duhamel’s casts of the Statue of Liberty as they pose a series of core questions that arise from the creation of posthumous artworks, promptly directing the reader’s attention towards the complexity of the subject: around the artist’s intentions, the nature of the artworks as originals or replicas, the role of posthumous art in the artist’s legacy, and why replications are even being made. The book has five parts, including a total of twenty-three authors from diverse fields, who treat the topic of posthumous art with an interdisciplinary perspective, crossing across numerous cultures, eras, and point of views^[1].^[2]

Part One: Stage Setting

In Chapter 1, France-based art historians Élisabeth Lebon and Ève Turbat analyze how the creation of posthumous casts evolved in the twentieth century and how their value depends on three fundamental criteria: the sculptor’s attitude toward the dissemination of his casts during his lifetime, the expression of his intentions for posthumous casts, and the behavior of rightholders after the artist’s passing. The combination of these criteria can lead to countless variations and thus to a complex landscape that must be analyzed on a case-by-case basis.

In Chapter 2, law professor Guy A. Rub from the Ohio State University Moritz College of Law addresses the posthumous protection of moral rights and the difficulties entailed by the built-in rigidity of such long-term, non-transferable legal rights. His perspective includes European and US legislations, as he compares their different legal approaches. While in the US there is a lack of posthumous protection in federal and state level (only five states provide it), European nations tend to provide such protection, although the interpretation of these norms at the judicial level may result in their dilution over time, as moral rights may lose weight or require stricter conditions as time passes after the artist’s death.

In Chapter 3, art appraisers and advisors Sharon Chrust and Amy R. Jebrine address how the attitude of the artist’s estate in introducing posthumous prints and photography editions to the market can play a decisive role in the variation of their value and marketability. Through the examination of three case studies (the posthumous editions of Jean-Michel Basquiat’s prints, Diane Arbus’ photographs and Ana Mendieta’s performative and photographic work), the authors emphasize the importance of an attentive involvement of the artist’s estate in certifying the artworks and ensuring their quality.

Part Two: Intentions and (Mis)understandings

The second part of the book is a compelling investigation of the role of the artist’s intentions during their lifetime, focusing on how the law can help realize those intentions.

In Chapter 4, art historian Alexandra Parigoris studies the intricate legal case of Brancusi’s bronze posthumous casts and argues for the importance of rigorous and transparent documentation of the artwork.^[3]

In Chapter 5, law professor Eva E. Subotnik argues that the artist should clearly define their intentions for the future of the artworks after their death, but without imposing them in a binding way.

According to sculptor Andrew Lacey, on the other hand, posthumous art is a distant idea for living artists. Therefore, Chapter 6 explores Lacey’s belief that replication carries the risk of losing the artist’s own distinctive and unique imprint – an intriguing opinion if one thinks about the debate around the definition of a replica as an original or not.

Part Three: Museum Stewardship

The sequence of Chapters 7, 8 and 9 offer insights from the art historian Martha Buskirk, legal scholar Peter J. Karol and museum director Arie Hartog. They comment on the practical and administrative issues that museums and cultural institutions may encounter when dealing with posthumous artworks, such as the challenges of conserving, decommissioning and labeling them.

Part Four: Unruly Afterlives

The fourth part of the book provides a selection of key case studies that are able to captivate the reader. As the title of the section suggests, they all refer to the unpredictability of the artwork’s fate after the artist’s death.

In Chapter 10, art historian Bruce Rusk tells the story of the forged provenance of Xuande Incense Burners. These highly sought-after artifacts are supposed to originate from the Xuande era of the Ming Dinasty (1425-1435), as meticulously certified by a register that emerged in the first half of the eighteenth century. Rusk illustrates how both the artifacts and the register were actually forged during the eighteenth century, and how this served to attribute a posthumous life to these objects without them ever having existed contemporaneously with their supposed creators.

Curator Rosalind McKever, in Chapter 11, comments how Umberto Boccioni’s sculpture Unique Forms of Continuity in Space (1913) was reproduced after his death and analyzes how the bronze replicas were cataloged over time since a first catalogue by Marinetti in 1927, highlighting in particular the constant need for clear information about the casts’ history.

In Chapter 12, art historian Sharon Hecker addresses the case related to Medardo Rosso’s pre-1896 altered replication of the antique marble The Emperor Vitellius. She argues that a replica can also entail a creative dimension and thus an opportunity to create something new. In Chapter 13, the lawyers Andrew Gilden and Taylor Hurwitz discuss an element of unpredictability: how the evolution of artificial intelligence also extends to artistic creations and which repercussions are on the level of intellectual property.

In Chapter 14, the economists Nathalie Moureau and Dominique Sagot-Duvauroux analyze the success of François Pompon’s posthumous casts from an economic perspective and discuss what strategy is best to make the most of this notoriety. The authors illustrate in particular the theoretical basis and consequences of the strategy of vertical differentiation, which “conciliates the necessity of a large supply to stimulate the art market (…) with the imperative of rarity.”^[4]

Part Five: Continuity and Community

The final part of the book comments on the role of posthumous reproduction in establishing links between time and artist.

In Chapter 15, according to the art historian Lisa M. Rafanelli, reproductions of Michelangelo Buonarroti’s Pietà serve as a tribute to the original and a way of conveying its effect. A similar pattern can be retrieved from other cultural approaches: the practices of early modern Chinese painting recounted by art historian Michael J. Hatch in Chapter 16 are able to revive the artist through emulation of his work, whereas the creations of Native American communities commented by the indigenous studies scholars Lara M. Evans and Mique’l Dangeli in Chapter 17 serve to ensure cultural continuity.

Conclusion

The book ends with a reflection by law professor Brian L. Frye on the future of NFTs in the art world, comparing art and the art market. In a final argument, professor Frye suggests that while the NFTs are seen as a natural evolution of the art market, art can not be placed at all into any market logic.

Comments

In Posthumous Art, Law and the Art Market, the authors aimed to offer an interdisciplinary glimpse of the subject of posthumous art.^[5] The result is a dense collection of deeply inspiring, exhaustive essays that not only recount major cases, debates and developments on the topic, brilliantly covering its intricacies, but also challenge the reader to expand their knowledge and contemplate new questions about the ever-evolving dynamic between the art world and law.

Throughout the book, some characteristic patterns emerge to the theme of posthumous art: often the complexity of posthumous art stories is challenged by the difficulty of establishing appropriate and up-to-date legal frameworks; at the same time, however, posthumous works are appreciated in the art market and tend to find a good response from the public. Moreover, echoed in several essays is the importance of thorough and complete documentation in relation to the artworks, which cannot surprise in a topic as intrinsically linked to provenance as that of posthumous art.

Additionally, by discussing how posthumous artworks can be perceived in nuanced ways, the fifth part of the book provides a particularly illuminating socio-cultural perspective. While it is understandable for the purpose of the book that it cannot delve into several cultural perspectives, perhaps mentioning the attitudes from additional cultural contexts or environments could have further enriched the volume.

The increasing curiosity that arises as one delves into the text, urging the reader to know more and more, is but a demonstration of the book’s effectiveness in rendering the wide perspective of posthumous art in all its complexity. Overall, the volume certainly represents an extraordinary resource for both specialists in the art world and newcomers curious to discover more about the fascinating topic of the afterlife of art.

From the Editors

For the Center, this book is of particular interest in light of the Center’s Artists’ Legacy and Estate Planning clinic which looks at how artists and their heirs can steward and preserve works and archives. ON JUNE 11, 2024, the Center will host a panel (entitled The Afterlife of Art: Posthumous Moral Rights & Copyrights) with four of the contributors to the book (Sharon Hecker, Peter J. Karol, Eva E. Subotnik & Guy A. Rub) discussing copyright issues related to estates of deceased artists.

Additional materials:

Check out an upcoming event hosted by the Center for Art Law on June 11 at 12 noon EST: The Afterlife of Art: Posthumous Moral Rights & Copyrights HERE.

About the reviewer:

Viola Koenz is a master’s degree student in law at the University of Zürich.

References:

1. Art history, law and appraisals from the art market. ↑
2. Sharon Hecker and Peter J. Karol, ed., Posthumous Art, Law and the Art Market (New York: Routledge, 2022), 4. ↑
3. Ibid, 55. ↑
4. Ibid, 164. ↑
5. Ibid, 4. ↑