Thursday, June 13, 2013

Are artists abusing the right to be identified as the author of an artwork?

NEW YORK. I know I said the focus of the blog would be primarily English law but I felt compelled to cover this story from the US as I have moral rights on my mind after completing the module on artists' rights as part of my Diploma in Art Law with the Institute of Art and Law.

In 2012 the dealer Marc Jancou brought two related lawsuits: the first against artist Cady Noland for tortious interference with the consignment agreement between Jancou and Sotheby's for the sale of Cowboys Milking (1990) by the artist and the second against Sotheby's for breach of the same contract. The underlying (and undisputed) facts of both claims are that in 2011 Noland disclaimed the work owned by Jancou on the basis that it was damaged ("bent beyond repair") and Sotheby's consequently withdrew the lot from auction since the work could no longer be attributed to the artist. Noland's disavowal of Cowboys Milking constituted an assertion of her moral rights under the Visual Artists Rights Act, 17 U.S.C. §106A ("VARA") - more on that later.
The application of the law, which resulted first in the dismissal of the Sotheby's claim and more recently the claim against Noland, is straightforward. The contractual claim against Sotheby's was dismissed on a motion by the defendant for summary judgment because the consignment agreement by its terms gave the auction house the right to withdraw the work from sale if, in its sole discretion, its attribution was uncertain. When Noland disowned the work just days before it was scheduled to be sold Sotheby's was well within its contractual rights to pull it from auction as it effectively had no attribution. It was then only a matter of time before the tortious claim against Noland was dismissed since, inter alia, under the common law of torts there can be no interference with a contract without a breach of that contract. The implications for consignment agreements generally is evident: intermediaries will want contractual withdrawal rights to protect themselves, amongst other things, against artists' assertion of their moral rights especially given that such rights remain with artists regardless of who owns the artwork itself and/or the copyright. Similarly, consignors of art will have to consider claims other than tortious interference with a contract when bringing suit against an artist on similar facts (though in any event they should negotiate any withdrawal rights a consignee has to make them as narrow as possible). Note too that a consignor with major bargaining power could even get the artist to expressly waive his moral rights in a signed writing.

But enough of the routine application of the law - what drew me to this case was a comment by Jancou's lawyer questioning an artist's discretion to determine what constitutes a "distortion, mutilation, or other modification" of an artwork and thus to some extent control it potentially long after ownership has passed to a third party such as a gallery or a collector (see §106A(d) of VARA on the duration of the rights of attribution and integrity). According to plaintiff's counsel, federal legislation is "putting the fox in charge of the hen house" when it comes to enforcing an artist's right of integrity. It seems to me that the obvious response to this statement is to point out how the artist in question is surely in a far better position than the court to assess whether one or more artworks the subject of a claim has, or have been, distorted, mutilated or otherwise modified. Furthermore, there is a clear safeguard in the legislation to help prevent abuse of this statutory right of attribution: the artist must prove that the distortion, mutilation or other modification is "prejudicial to his or her honor or reputation" (emphasis added). This is an objective test and it is for the artist to present sufficient evidence to the court that reputational harm results from the treatment of the relevant artwork. I am not familiar with the jurisprudence in this area but I suspect that the burden of proof is not easily satisfied. I would add too that in this context, the interests of artists and intermediaries buying/selling their work should, for the most part, be aligned - if artists continuously and disingenuously abused their moral rights (at the federal level in the US these are limited to the rights of attribution and the right of integrity) they would likely kill over time any secondary market in their work or prevent one from developing which presumably they would not want to do.

Turning to the UK now, under The Copyrights, Designs and Patents Act 1988 (the "CDPA") the right of attribution does not include the right to prevent the use of an author's name as author of a work that has been the subject of "derogatory treatment" (essentially the equivalent of "distortion, mutilation or other modification" of a visual work under VARA). However, the CDPA to some extent protects this kind of attribution right in the form of the right to object to false attribution of a work. An artist that qualifies for protection of moral rights under the CDPA would have to demonstrate the following to prevail in a false attribution claim:
  • the work was "altered",
  • the alteration occurred after the author had "parted with possession" of the work and
  • the person dealing with the work in the course of a business dealt with it as being unaltered knowing or having reason to believe (emphasis added) that that was not the case.
How is this similar/different from the position under VARA? Well for starters a false attribution claim under the CDPA has an intent requirement whereas in the US a person dealing with a work need not know or believe that the work has been distorted, mutilated or modified (indeed Jancou appears to have regarded the damage to Cowboys Milking as "just wear and tear"). But if discretion lies with the artist as to what constitutes an alteration of his or her work then asserting the right of false attribution is as easy as communicating this opinion (e.g., having seen the work on display) to a dealer who cannot then sell the work as being unaltered without infringing the artist's moral right. The fact that the CDPA does not define what amounts to an alteration of a work is, I think, significant especially when one compares this with the insertion of definitions of "treatment" and "derogatory" in relation to the right to object to derogatory treatment of a work. Another difference is that false attribution need not cause reputational harm to the artist as with the third kind of attribution right under VARA. Given the absence of this safeguard against abuse, unless the test for what constitutes an alteration of a work is objective and not in the artist's sole discretion (I will research this point), then the implications of this kind of moral rights for consignment agreements may be even greater in the UK than in the US.

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