Artists often claim to have a special relationship that gives them rights over their art even after it has been sold. One example involved artist David Phillips and Fidelity. Fidelity hired Phillips to create a sculpture park and then the company wanted to make changes to it.  With neither side willing to compromise, Phillips sued Fidelity alleging the changes would mutilate his work. A 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.  A more recent example involves watches.

 Dann Thorleifsson and Arne Leivsgard, founders of the Kanske watch brand, purchased painter Tal R’s Paris Chic and claimed they wanted to cut it into pieces for watch faces. The painting was selected because it is considered a masterpiece and thus might justify the price they intended to charge for the watch. The two have purchased paintings by other famous Danish artists for the same purpose. Tal R condemned the project and won an injunction in court.  While the court battle sorted out the legal issue, the philosophically problem is determining what rights an artist retains over their work once they have sold it.

One approach is to consider selling a work of art like selling other goods. 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 have it repainted.  Suppose Jane demands the room be left unchanged because she painted the room. Imagine that Sally learns Jane intends to buy a new laptop with what Sally paid her. Sally does not like this and demands that Jane give the money to charity.  While Sally’s demand is absurd, it seems no more absurd than Jane’s. Either both have a right to control their former property or neither has that right.

It seems reasonable to see this 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 do with her property.

If the analogy holds, an artist who wishes to retain the right to control their work must place such restrictions in the agreement. To 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 beyond the realm of mere commerce. This relationship gives an artist the right to control their work even after selling it. A seemingly reasonable reply is that when the artist sells their work, they have made it a commercial commodity. They cannot consistently accept payment and insist that art is special. They cannot have their cake and sell it too.

It might be claimed that a work of art has an inherent right not to be altered and even if it is sold, it retains this right. But 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, even if it is a great work of art. After all, rights against harm are usually based on an ability to suffer and while art might cause suffering, art cannot suffer. Thus, the burden of proof rests on those who claim that a work of art has such a right. So, some other approach is needed.

A practical approach is to focus on the contract between the artist and the buyer. This could be a legal document or informal agreement that specifies how the work can be used. Following Socrates this contract would hold as long as it was not the result of force or fraud.

But contracts cannot and should not be expected to cover every possible situation. As such there is the question of which rights should be assumed to be possessed by the artist and buyer, even if they are not specified in the contract. This involves sorting out the moral default of what can be done with a work of art after it has been sold. This is, of course, focused on unique works rather than mass produced copies. For example, buying a copy of a Harry Potter book from Amazon is different from buying an original painting. In the case of the book, you own a copy but not the work itself.

A right to resell is clearly a basic right, unless otherwise specified in an explicit contract. After all, what can be rightly sold can be rightly sold again unless there is a relevant difference between the sales.  The right to destroy a work also seems to be a right one acquires upon purchasing something. There can be moral limits here, as in the case of buying a pet or in the means of destruction. While Tal R would prefer that the painting not be destroyed, he initially agreed that the owners had the right to do this. The point of dispute was that the owners wanted to use the painting to create watches that would be sold as art and Tal R opposed this.

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. It could even be argued that it would no longer be a work by Tal R, since Tal R would not be participating in the creation. While watches could be made that include cut up pieces of Tal R’s painting, they should not be considered works by the artist. They have no responsibility for the work if it is created without their consent for.

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 to sell as works involving Tal R would be wrong and inaccurate. 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 both inaccurate and wrong.

The owners of the painting could have taken the view that the watches are 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 any valuable item, such as a jersey worn by a famous athlete and selling the pieces as collectable objects. In this case, a watch would not be a collaboration, but an expensive container for a fragment of the work and this would have an impact on the artist’s rights. In such a case, it would not be a forced collaboration, but a division of the work for resale and this would be harder to argue against.