LANDET'S DILEMMA: An Essay on the Legal Aspects of the Destruction and Mutilation of Artworks.
| Author | Negri, Juan Javier |
PREAMBLE: LANDET'S DILEMMA
Jose Luis Landet is a young and accomplished Argentinian artist, whose works have often publicly displayed, to date, there have been no objections. He creates his works over paintings by other artists that he has purchased. Landet then cuts the canvases into chunks or strips, or interferes with them in one way or another. Even the stretchers and leftover frames of these works are turned into three-dimensional sculptures. In other cases, Landet "... wrinkles old paintings, breaking the oil that covered them, as if he irresponsibly made them older." (1)
During conversations with the author of this essay, Landet said that he does not feel that his practice 'mutilates' works by other artists, but rather that he grants them new meaning: he re-signifies them. Moreover, he works with artworks at a low price point, acquired from local art fairs, popular street markets and cheap shops, as "I would not have the arrogance to do the same with a canvas by Picasso".
His works, through the 're-signification' of works by other artists, who may be dead or alive, entail the wilful and conscious mutilation or destruction of those works. Even though Landet owns those artworks, the process of 're-signifying' them violates the moral rights of the artists who created them.
Moral rights protect the integrity of an artwork, in an array of ways. They are included (sometimes with substantial differences) in the domestic legislations that implement the provisions of the Berne Convention. They presume the existence of a legitimate interest from every artist to oppose the mutilation or destruction of their artworks, regardless of their quality.
We consider it impossible to create or enforce legal rules that constrain artistic creation, for which reason it is necessary to resolve the following dilemma: how to legitimate an artwork created in violation of moral rights?
INTRODUCTION
It is certain that conflicts between the legal framework, on the one hand, and art and artists on the other hand, occur in reality with greater and greater frequency. As a consequence, this leads to clashes between artists' imagination and inspiration and the legal rules in force. As Julius stated:
Artists will always force the boundaries of what is held to be art; it follows that they will also force the boundaries of what is lawful. Just as aesthetics lags behind art, so law lags behind aesthetics. (2) The presentation of our thesis will aim to explain the arguments and elements at stake in the conflict between the artist's creative process and the legal framework surrounding the untouchability of the artwork which, in our opinion, limits the development of the former. We hope to be able to show that, as it is currently formulated, the sacrosanct principle of the integrity, taken to the extreme, of the work of art at the direction of its own author no longer serves any purpose.
One of the reasons for such an assertion is that the 'art' for which moral rights were created has suffered so many transformations that legislation protecting it must be amended. The main transformation unquestionably concerns the role that destruction plays in contemporary art.
Another reason, no less important, is that moral rights are conceived around the artist, rather than the artwork. In the current conception of moral rights, it is enough for the artist to claim a violation of his moral rights to set in motion the compensatory or reparatory mechanisms. We propose, instead, that these mechanisms should be set in motion only in light of the importance of the artwork. In other words, going from a subjective criterion--the will or interest of the artist--to an objective one: the importance of the artwork.
As art is universal, it would be ideal if the proposed legal solution could lead to uniform results in all jurisdictions, in order to avoid conflicts arising from the geographical location of the artist or his work. After all, "the legal system of every society faces essentially the same problems, and solves these problems by quite different means though very often with similar results." (3)
DESTRUCTION, MUTILATION, ALTERATION
Many of the legal norms that we will mention throughout this essay refer to both the destruction of works of art as all as to their mutilation. Nevertheless, from a legal perspective, it is not possible to equate the two terms. Legal doctrine, not without its discrepancies, asserts that moral rights frequently protect artworks against mutilation, but not against destruction (as is the case under the Berne Convention), whilst in other cases (such as under California's state laws), both hypotheses (that is, mutilation and destruction) are given uniform legal treatment.
Martin Roeder published an article in which he argued that moral rights do not protect the work of art against its destruction, only against its mutilation. (4) Merryman, Essen and Urice note that the legal grounds for this assertion lay in the Lacasse case, decided in France. (5) In that case, a priest commissioned a painter to decorate the local church with several frescoes. The bishop of the region received many complaints about the works and, after inspecting them, judged them to be in poor taste. He also thought that there was no possible way of altering these works that would render them acceptable, for which reason he had them destroyed. Following a complaint from the artist, the case came before the Paris courts, which rejected the claim and held in favour of the bishop. (6)
Merryman et al state that Roeder used this ruling to construct his theory that moral rights do not protect artworks against their destruction. In the opinion of those authors, however, there are not enough precedents to support this interpretation. They argue that the only cases that allowed total destruction of an artwork involved conflicts between the artist and the owner of the building to which the work was affixed. (7)
The view generally adopted in Argentinian legal writing, with which we do not entirely agree, is that:
the author's right to claim the reparation of the moral damage from the owner of an artwork who destroys it must be recognised. This is a natural consequence of the principle of property serving a social function, which prohibits the abusive exercise of a right (article 2513 of the Argentinian Civil Code). It is not possible to acknowledge an individual's right, even if the owner, to destroy an artwork that belongs to the cultural heritage of a people and it is natural that the suit for damages acknowledges the party most injured, which is the author. (8) From a purely lexicographical perspective, "to destroy" is "to reduce to pieces or to ashes something material or cause it grave damage", whilst "to mutilate" is "to cut or amputate a body part, and more particularly, of a living body" or "to cut or discard a part of portion of something of which it should have been a part of'. From this angle, the difference between the two terms is frankly imperceptible, for which reason we warn the reader that both concepts have often been used indistinctly. Different is the matter of alteration, for the concept in and of itself is clearer and unmistakable "to change the essence or shape of something", leaving less room for doubt. (9)
In sum, it seems to us that destruction means, in most cases, the disappearance of the artwork, without leaving any trace, and where its reconstruction is impossible, whilst mutilation means violently damaging an artwork, without leading to its absolute disappearance. Alteration, in turn, seems closer to changing the work rather than eliminating it.
MUTILATION OR DESTRUCTION OF ARTWORKS BY OTHER ARTISTS
Landet's work is not the only instance of voluntary destruction or mutilation of artworks. Of the perhaps thousands of destructions and mutilations that have taken place throughout history, the most relevant for the purposes of this article are the ones of destruction or mutilation of a work of art by another artist, in order to 'build' or 'create' his own.
For example, performance artist Pierre Pinoncelli was famous for smashing two of the eight existing replicas of Fountain, the urinal by Marcel Duchamp, with the argument that the works had lost their provocative value and that he, as an artist, could once more question, as Duchamp had done in his time, what should be understood as art. The first destruction of a urinal by Pinoncelli took place on 25th August 1993 in Nimes, and the second at the Pompidou Centre in Paris on 4th January 2006. (10) It should be clear that, in both cases, Pinoncelli was not the owner of the artworks he destroyed.
Other cases involve the Chapman brothers, enfants terribles of Britart and winners of the Turner Prize in 2003. (11) In 2008, they used watercolours allegedly by Adolf Hitler as a base for their joint work, with the argument of 'embellishing' them. (12)
Between April and June 2003, the Chapman Brothers acquired one of the few, excellent, and very rare surviving series of 80 engravings titled Desastres de la Guerra by Goya, to disfigure them, in a work titled Insult to Injury, about which an art critic said:
Poor Goya! In his lifetime he had to put up with deafness, the Spanish Inquisition and the Duke of Wellington. Now he has Jake and Dinos Chapman to contend with. (13) The artists mutilated the work of the Spanish artist " ... to rectify it ... we changed all the visible victims' heads to clowns' heads and puppies' heads." (14) Naturally, there were those who called them vandals. Jonathan Jones, art critic of the Guardian stated "[t]o destroy a work of art is a genuinely nasty, insane, deviant thing to do." (15) In this case, the Chapman Brothers were the owners of the destroyed artworks.
Finally, it is worth mentioning Erased de Kooning Drawing, a work by Robert Rauschenberg, which was the result of a full month spent meticulously erasing a drawing by Willem de Kooning, which de Kooning had...
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