Keith Haring’s last canvas painting continues to be the focus of intense social media controversy in these first months of 2024, triggered by an X-tweeted image of the work’s purported completion using generative AI posted on 31 December 2023.
Started and deliberately abandoned in 1989, months before his AIDS-related death in 1990, Haring named the work Unfinished Painting. The 100sqcm canvas (now in a private collection) is painted only in the upper left quadrant with black and white acrylic lines, forming typical Haring patterns on a purple background; streaks of purple paint dribble down into the otherwise empty lower-left quadrant; the right half of the canvas is also blank.
Haring left the work this way as a commentary on the HIV/AIDS crisis then sweeping across the US, especially in New York City where he was based. He had been diagnosed with HIV in 1987, and this knowledge drove and influenced all his subsequent work. ‘My life is my art, it’s intertwined,’ Haring said in a 1989 Rolling Stone interview. ‘When AIDS became a reality in terms of my life, it started becoming a subject in my paintings. The more it affected my life the more it affected my work.’
Haring told his authorised biographer, John Gruen, also in 1989: ‘Those works that I’ve created are gonna stay here forever. There’s thousands of real people, not just museums and curators that have been affected and inspired and taught by the work that I’ve done … So, the work is gonna live on long past when I’m gonna be here.’ Haring’s words are significant because they not only signal his earnest attestation about the value of his works to posterity, but also support widespread denunciations of the unauthorised completion of Unfinished Painting.
In response to criticisms, the X-tweeter posted a video explanation of the painting’s purported completion. ‘The story behind this painting is so sad. Now using AI we can complete what he couldn’t finish … It just came from…a friend of mine sent the original tweet that I ended up quote re-tweeting, which is the unfinished painting by Keith Haring, and I responded … It’s not even done … another friend of mine said Just finish it … And I finished it … A lot of people have assumed the intent behind it or … tried to project meaning onto it. I can’t even remember if I knew what the meaning or the intent behind the original was, and even if I had I would have done it anyway. I just thought it was sort of funny.’ Such comments about the purported completion illustrate why statutory moral rights legislation for artists was promulgated during the 20th century.
Most countries have now enacted artist’s moral rights into their domestic legislation, which include the integrity right forbidding derogatory treatment of an artist’s original work by changing its physical nature, or its visual characteristics in any copy of it, when such work or copy is exposed or communicated to the public. In the UK, as in most countries, this means that the visual content of original works – their shape, form, configuration, lines, colours, perspectives, and so on – must not be changed without the prior consent of the original artist. Such forbidden changes include deletion, adaptation, alteration or addition – if it amounts to a distortion or mutilation, or is otherwise prejudicial to the honour or reputation of the artist. The artist’s moral right of integrity arises automatically on the origination of a work, and endures in all countries for the artist’s lifetime plus in most countries (except the US) for decades after death (70 years for EU and UK artists).
The US version of artists’ moral rights legislation provides that they endure only for the lifetime of artists. Haring was a US citizen, and so integrity rights over his original works died with him in 1990. The guardian of Haring’s artistic estate and legacy is the Keith Haring Foundation (KHF), which he established in 1989 ‘to perpetuate his artistic and philanthropic legacy through the preservation and circulation of his artwork and archives, and by providing grants to children in need and those affected by HIV/AIDS.’
Although KHF owns and safeguards Haring’s copyright until 2060, Haring’s expired moral rights of integrity cannot be exercised by KHF to deal with derogatory treatment of his original works – or a copy of them – communicated to the public. The X-tweeter’s purported completion of Unfinished Painting self-evidently involved copying the original image, manipulating it through a generative AI process to add imagery to the blank canvas area, and producing a result that was then communicated to the public. Under US copyright law, in common with most other countries, non-commercial copying may be permitted – and copyright violation is therefore unlikely to apply to such fabrication and online posting. In which case, in the absence of Haring’s moral right of integrity, KHF would most likely be powerless to legally protect Haring’s honour and reputation against continuing public communication of the altered image.
Completion of works has long been a contentious issue for artists and their estates after death, which statutory moral rights seek to address not only via the integrity right, but also coupled with further rights to claim or deny authorship. Such authentication or denial rights can be exercised effectively to curb abuses of an artist’s honour or reputation, even in circumstances where exercise of integrity rights is legally doubtful or unavailable.
Andy Warhol was a victim of false attributions of authorship of unauthorised copies of many of his photo screenprinted works, especially his icon series in the 1960s and 1970s. In the absence of US statutory moral rights, Warhol adopted a now celebrated pragmatic personal approach to dealing with such inauthentic works he encountered – by playfully, perhaps defiantly, endorsing them on their reverse with the words ‘This is not be me. Andy Warhol’. Inevitably, such endorsed works are rare collector’s items that can now fetch extremely high prices in the art market. In 1995 The Andy Warhol Foundation, created by his Will, established the Andy Warhol Authentication Board. The Board’s remit was to certify works submitted by owners for authentication, and to spot and deny false attributions. $10m was spent defending lawsuits challenging its many denials of authorship – most of which may perhaps have been avoidable had US moral rights applied to Warhol’s works – and so the Board was dissolved in 2011.
Peter Doig successfully defended a US lawsuit against him in 2016 by a purchaser who claimed a painting was authored by Doig in 1976, on the ground that a signature on the face of the work read ‘Pete Doige 76’. In 2011, the purchaser consigned the work to a commercial gallery for resale, and the gallery diligently contacted Doig seeking his authentication of the painting needed for potential purchasers. Doig repeatedly denied authorship, and after a full trial of the matter the court ruled that Doig ‘did not paint’ the disputed work. Furthermore, the court subsequently ordered the unsuccessful claimant and his lawyer to pay Doig’s legal fees of $2.5m – on the basis that ‘the claims were factually meritless [and] to continue the litigation past that point was frivolous, as the complaint’s central allegations had completely unraveled under the weight of contrary evidence.’ Doig’s case went to an expensive full trial because he had no moral right of paternity in 2011 over a work created in 1976, because US statutory moral rights were not enacted until 1 June 1990, and applied only to artworks created on or after that date.
Christo established the Christo and Jeanne-Claude Foundation in 2018 exclusively for charitable, educational, literary and scientific purposes, including to support one or more not-for-profit organisations operating an art museum, and also to promote the artists’ legacy and to ‘complete a project or two that was still in the works at the time of Christo’s death’ in 2020. The Foundation’s resources include unsold artworks from the late 1950s to 2020, such as drawings, collages and lithographs, archival documentation about both sold and unsold pieces and projects, plus the building on Howard Street in Manhattan’s SoHo district where the artist couple lived and worked, from which the Foundation operates. The combined estimated value of those assets is between $150m and $200m, and were doubtless drawn upon to fund the realisation and completion of L’Arc de Triomphe, Wrapped, Project for Paris since 1961, in 2021 – 12 years and 18 months respectively after Jeanne-Claude’s and Christo’s deaths.
The Foundation is also guardian of the artist’s intellectual property rights which, as US citizens, do not include statutory moral rights of integrity and maternity/paternity, but do include copyright in their works. In particular, the Foundation has authority to realise The Mastaba, Project for the United Arab Emirates, the artists conceived in 1977. This work will be a flat-topped pyramid made up of 410,000 oil drums, reportedly making it the largest sculpture on earth, to be built in Abu Dhabi. According to the Foundation ‘The Mastaba is also fully engineered, the possible locations decided and all aesthetic decisions made during the artists’ lifetimes.’
Christo and Jeanne-Claude were very knowledgeable about the legal and commercial dimensions of their practice and projects – including the absence of US moral rights, which was evidently of little or no concern to them because their public artworks were always ephemeral: time-based, completed, documented, then disassembled. ‘Do you know that I don’t have any artworks that exist?’ Christo notably said, ‘They all go away when they’re finished. Only the preparatory drawings and collages are left, giving my works an almost legendary character. I think it takes much greater courage to create things to be gone than to create things that will remain.’
Banksy’s Pest Control Office recently denied official authentication of his 2023 street work, Valentine’s Day Mascara (which had been removed from its location and was being marketed for sale), explaining that Banksy’s street works are not created to be sold, are site-specific, and are gifts to local communities. Conversely, later that year, Banksy not only officially authenticated a stencilled work on paper, but also re-titled it Girl Without Balloon, 2021 – having previously re-titled the same object as Love Is In the Bin, immediately following its infamous shredding when sold at Sotheby’s in 2018 with its original title of Girl With Balloon, 2006. In other words, Banksy exercised his so-called paternity right to give the same physical object three different titles – often said to be three different artworks.
© Henry Lydiate 2024