Artists often claim to have a special relationship with their art that gives them rights over it even after it has been sold. One past example involved artist David Phillips and Fidelity. Fidelity hired Phillips to create a sculpture park and after its completion the company wanted to make changes to the work, the. With neither side willing to compromise, Phillips sued Fidelity alleging that the changes would mutilate his work. A rather famous example occurred in 1958 when the owner of the mobile Pittsburgh donated it to Pennsylvania’s Allegheny County. Alexander Calder, the creator of the mobile, unsuccessfully opposed the plan to repaint the black and white mobile green and gold. In 1969 sculptor Takis (Panayotis Vassilakis) tried to remove his work from New York City’s Museum of Modern Art. He claimed he had the right to determine how his art was exhibited—even after it had been sold. The most recent example involves watches.
Dann Thorleifsson and Arne Leivsgard, founders of the Kanske watch brand, purchased painter Tal R’s Paris Chic with the intent of cutting it into pieces to serve as watch faces. The painting was selected because it is considered a masterpiece and would, one presumes, serve to warrant their intended asking price of 10,00 Danish kroner per watch. The two have also purchased paintings by other famous Danish artists for the same purpose. Tal R has condemned the project and has endeavored to stop the scheme. While the court battle will sort out the legality of the matter, the philosophically interesting problem is determining what rights an artist retains over their work once they have sold it.
One obvious approach is to consider a work of art as any other commodity or service in which ownership changes hands. This view can be defended by an analogy. Suppose Sally hires Jane to paint the interior of her house. After the work is done, Sally decides she has changed her mind about one room and plans to repaint it. Imagine Jane learns of this and demands the room be left unchanged because she painted the room. Imagine further that Sally learns that Jane intends to spend her painting fee on a new laptop and demands that Jane give the money to charity instead. While Sally’s demand might seem absurd, it is no more absurd than Jane’s demand—either both have a right to control their former property or neither does.
It seems reasonable to see this situation as a change of ownership and hence a change of control: Sally now owns Jane’s painting and Jane now owns Sally’s money. Neither has a right to tell the other what she can or cannot do with her new property.
If the analogy holds, an artist who wishes to retain the right to control his work must place such restrictions in the original agreement (or not sell it at all). To simply insist on new conditions after the sale would be unfair, as the above analogy shows.
It might be objected that the artist has a special relationship with their art that places it outside the “commercial” realm and that this gives an artist the right to control their work even after selling it. In reply, when the artist agrees to sell their work, they place the art within the “commercial” realm. They cannot consistently accept payment and at the same time insist that art is special. They cannot have their cake and eat it too.
It might be claimed that a work of art itself has an inherent right not be altered. In reply: A work of art does not intuitively seem to be an entity that can have rights. While it is reasonable to suppose that people and animals have rights, it seems odd to assert that a non-sentient thing has rights. After all, rights against abuse are often because the thing in question can suffer and while art might cause suffering, art cannot suffer. Thus, the burden of proof would seem to rest on those who claim that a work of art has such a right. So, some other approach is needed.
A practical approach to the matter of the post-sale control of art is to focus on the importance of a contract—which can be an explicit legal document or an implicit set of agreements that might even pre-date the artist and purchaser. This can be seen as analogous to the social contract of political philosophy. The legal and moral obligations would be specified within the contract. Following Socrates this contract would hold as long as it was not the product of neither force nor fraud.
Explicit contracts cannot and should not be expected to cover everything. As such there is the matter of what should be simply assumed to be rights of each party (artist and purchaser)? This involves sorting out the moral default of what can be done with a work of art that has been sold. This assumes that a unique work is being purchased rather than a mass-produced copy of a work. For example, buying a copy of a Harry Potter book is rather different than buying an original painting—one owns that specific copy of the book, but not the work itself.
A right to resell s clearly a basic right, unless otherwise specified in an explicit contract. The right to destroy a work also seems to be an assumed right. While Tal R would prefer that the painting not be destroyed, he does agree that the owners have the right to do so. The point of dispute is that the owners want to use the painting to create watches that are to be sold as art. This seems to be a reasonable concern on the part of Tal R.
Taking Tal R’s painting and using it to create new art without his consent would not be work by Tal R, but a forced collaboration. In fact, it would no longer be a work by Tal R, since they are not participating in the creation of the work.
To use an analogy, consider a crime in which a criminal uses custom software created for non-criminal purposes by a programmer: the programmer’s work is being used in a crime, but they are not thus a criminal. Likewise, the watches could be sold as having cut up pieces of the painting in them but could not justly be called works by the artist. They have no responsibility for the work if it is created without their knowledge and consent for use in that manner. Going back to the crime analogy, the programmer is not part of the criminal work if they did not know or consent to the criminal use of their work.
As such, the owners of the painting can sell the unmodified original as a work by Tal R, but to use the painting to create new works while the author is still alive (and thus can consent or not) to sell as works involving Tal R would be wrong. The same would hold of other works. For example, if an author sells their book to a company and the company then decides to split up the chapters and combine them with the works of other authors to create numerous books to sell as works by that author, then this would be wrong.
The owners of the painting could contend that the watches merely contain pieces of the painting and this would seem to allow for some possible trickery. They could claim the derived work is not a derived work while cashing in on the artist’s status. In defense of this approach, one could draw an analogy to cutting up some valuable item, such as an historic flag or jersey worn by an athlete and selling the pieces as collectable objects—the same could be done with the painting. This seem to come down to intuitions about whether the watches would be sold as having a piece of the painting in them and thus serving as an odd sort of case for the fragment or if the watch was being sold as a collaboration without consent.
Since the original artist sold the painting with no restrictions, the purchaser is not bound by any. So that would seem straightforward.
However, in European law, there is a concept of Moral Rights, From Wiki’s summary in the Berne Convention “Independent of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, modification of, or other derogatory action in relation to the said work, which would be prejudicial to the author’s honor or reputation”
and
“In most of Europe, it is not possible for authors to assign or even waive their moral rights. This is following a tradition in European copyright itself, which is regarded as an item of property which cannot be sold, but only licensed. The author can agree to waive them to a limited extent (and such terms are very common in contracts in Europe). There may also be a requirement for the author to ‘assert’ these moral rights before they can be enforced. In many books, for example, this is done on a page near the beginning, in and amongst the British Library/Library of Congress data.”
The article portrays the watch designers as treating the story as performance art in itself.
Having looked at some images of the artist’s work, I am unmoved by the whole story, It seems to me merely to highlight the need for case law or contracts to become part of art culture, as they have in writing or music.
If the paintings were ones I valued, I might feel outraged. However, that would merely lead me again to advocate for case law or contracts to become part of art culture, since while I might feel the designers’ actions were wrong, I would also not see what right either the artist or the public might have to stop them.
“In most of Europe, it is not possible for authors to assign or even waive their moral rights. This is following a tradition in European copyright itself, which is regarded as an item of property which cannot be sold, but only licensed. The author can agree to waive them to a limited extent (and such terms are very common in contracts in Europe). There may also be a requirement for the author to ‘assert’ these moral rights before they can be enforced. In many books, for example, this is done on a page near the beginning, in and amongst the British Library/Library of Congress data.”
Which if actually enforced in the real world limits the artist’s ability to make a living. People forward thinking enough would think twice about buying something edgy as they won’t be able to get rid of it if/when (inevitably) it goes out of style. Unless maybe they can force the artist to take it back? Does this restriction end when the artist dies?
I certainly agree that artists who sell their work need to spell out the limits in a clear contract. If they want to retain meaningful control, then they need to either not sell it or license it properly.
It varies by country. Denmark seems to be life + 70 years.
The moral rights do nor restrict re-sale, but misrepresentation and using the work in a way “prejudicial to the author’s honor or reputation”. While the author would have the right to object to a misuse of the work, the moral rights do not require the author to object, so I would not expect them to affect any valuation.
I would not expect them to affect any valuation.
Why not? For any other product that I buy (supposedly…let’s say most other products…see one exception below), I own that thing and can do with it as I please. Dispose of it when and how I please. But now this ‘art’ stuff has restrictions. I no longer own the entire thing. And if the restriction goes beyond death, even if I am simpatico with the artist, if I feel about the art the same way he feels about the art, once he dies it’s a crap shoot as to what the restrictions are on what I just bought. That has to affect valuation. At least with anyone who doesn’t live 100% of their time “in the moment”, as the new hipster saying goes.
Don’t know about Europe but over here we have ‘historical buildings’ that once designated as such can often become a burden on the new owners. This inevitably has impact on the resale value and thus even the amount that one can borrow against it as equity. It can become something of a white elephant. A town I used to live in had one prominent in the small downtown area. I’m sure it was quite a beautiful thing in it’s day, built I believe by the town’s founder or one of his children. It sat like an eyesore for many years. Then someone bought it and fixed it up and it looked good for some time but it became a burden (all wood structure in central Florida) to maintain. It eventually fell into disrepair again. I believe the owners went bankrupt or something. Last I saw it, it was again an eyesore. One real estate person I spoke to told me that some potential buyers are scared away from buildings that just might one day be declared ‘historical’ as it’s a problem they don’t want to deal with.
Wrong assignation of the burden of proof, there. Why would they affect value? What cases have there been of negative effects on value from moral rights? Not many people buy paintings to cut them up and re-use the pieces.
As for other products that you buy every day – well, maybe a couple of times a year – you are just not conscious of how much you are not allowed to “do as you please” with things that you buy. In the case of any product that contains software, from DVD players and printers, to some toys, to cars, your DMCA forbids you to change its programming. Search terms to find more is “right to repair” and “freedom to tinker”.
I’m not following how I assigned a burden of proof. I thought I proved it rather well. You have X. Any restrictions on the use of X lowers its value relative to what that value would be without those restrictions. That’s why they’re called restrictions and not augmentations. Now as you say, there are many products that limit your use of them in some manner that perhaps you may not care about thus no effect on the value. And also some of those examples are products that are effectively useless from a resale perspective. But that’s built into the essence of the product as being (mostly) what that product is. Others that you mention I can still use how I please, it just voids the warranty or protects the producer from being sued for some sort of negligence. Another can of worms the lawyers have foisted upon us.
Also, per my point about ‘historical buildings’. While that doesn’t fit the artist analogy perfectly, it is a kind of moral clause that affects the value of the property, does it not?
Any restrictions on the use of X lowers its value relative to what that value would be without those restrictions.
Only if the restriction is relevant enough to enough people. It is not a given to assume that all possible restrictions decrease value. Some restrictions increase value, or at least increase price, as in the drug market.
Buildings being listed for preservation of course add costs to their upkeep, thus remove value from the buildings.
Only if the restriction is relevant enough to enough people.
No, it only has to be relevant enough to one primary buyer. Actually, it doesn’t even have to be relevant at all. If potential buyers THINK it’s relevant, it impacts the value. And if the seller somewhat agrees, even subconsciously, it is a negotiation aspect that will affect the price to the detriment of the seller. If the market in general, people not actively interested in what the seller is offering, has an expressed negative feeling about those restrictions, a potential buyer can use that as leverage, whether it matters to him or not, so long as he can convince the seller, at some level conscious or not, that it matters.
Also from the buyer’s perspective…:Let’s consider a piece of business real estate, putting aside the limitations of historical value. The exact same piece of real estate under two different conceptions. Let’s imagine that the buyer knows all about its location, the local traffic, etc, but is misinformed that the lot is empty. He’s willing to pay a certain price. But then he arrives to find an older building on top of it. He had designs for that property based on it being empty. The building, whether relatively functional or not, needs to be removed before he can do with that real estate parcel what he originally intended. The building will cost money to remove. Thus what he is willing to pay for the real estate parcel as a whole is actually reduced in value even though there is something that cost a good deal of money to create sitting on top of it.
Drug market, again a big can of worms with too much interference from various factors such that, in today’s world anyway, it barely resembles a market, let alone a free one. So let’s put that one aside.