On 18 October 2011, BBC Radio 4 broadcast a programme, Change of Art, exploring ideas to ‘rotate or retire’ public artworks that have become ‘tired, decrepit or meaningless’, in the course of which legal and practical questions arose about ownership of apparently abandoned or ‘orphaned’ works. These issues stimulate further questions about policies for public art commissioning, funding, decommissioning and preservation of cultural heritage.

Written records of the provenance of artworks are of crucial importance in establishing legal ownership of publicly sited artworks and who – if anybody – has a legal right to ‘retire or rotate’ them. All legitimate lines of enquiry should, ideally, lead back to the original artist’s studio. The older the artwork, the more difficult it is to achieve a satisfactory or convincing audit trail back to the original artist, who may have died centuries before. The newer the artwork, the easier authentication should be, especially where the original artist is still alive or died in recent times.

 Change of Art referred to notable historical precedents for relocation of public art, including Donatello’s bronze sculpture of Judith and Holofernes, 1460, commissioned by Cosimo de’Medici for the garden of the Palazzo Medici-Riccardi. In 1495, it was moved and placed outside the entrance to the Palazzo Vecchio in the Piazza della Signoria, then again in to the courtyard of the Palazzo before being moved yet again into the nearby Loggia dei Lanzi and then finally to its current location inside the Sala dei Gigli of the Palazzo Vecchio. In 1504, when still located at the entrance to the Palazzo Vecchio, Donatello’s bronze was replaced by Michelangelo’s David, 1501-04, which was itself moved into the Accademia Gallery in 1873 and replaced by a replica.
It is remarkable that written records have survived over half a millenium to confirm the commissioning, original siting and all of the relocations of Donatello’s sculpture. More significantly: as recently as 2010, an as yet unresolved political dispute has arisen about the ownership of Michelangelo’s David following a legal appraisal of historical records by the Italian Government, which now asserts its ownership of the statue – a claim that is being contested by the city government of Florence.
Just as the Italian Renaissance delivers insights into the nature and content of western art, posterity has also benefited from the survival of a wealth of documentation detailing the commercial transactions of (mostly commissioned) artists during that seminal art historical period and, to a certain extent, beyond it. Surviving letters of the artists, their assistants, benefactors, patrons, commissioners and related legal documents paint a vivid picture of the successful artist operating also as a sophisticated business manager. Written commission contracts appear to have been the norm, specifying in elaborate detail what should be created, detailed design specifications, the nature and extent of the hands-on involvement of the maestro, specification of materials to be used, completion and delivery dates, installation arrangements, a guarantee of how long the work would last and the maestro’s overall fee to be paid in stages.
The continuing survival of such enormously valuable documentation, as well as the works in question, can put beyond doubt authorship and authentication issues – and first ownership of the work. However, in the absence of a credible documentary audit trail from the original author to its first transfer or sale out of the artist’s possession through the many changes of legal possession and ownership to the latest owner who wishes to bring it to the art market for sale, ‘retire or rotate’ it, changes of ownership and physical location/possession of artworks over subsequent years, decades and centuries can be much more problematic.

Although the works of modern and contemporary artists are relatively closer to us in time – which ought to make it easier to establish the provenance of their works – the nature of their lifestyles, self-image and attitudes to their place in contemporary society can frequently result in less clear evidence than is available from earlier times. It has become common practice for artists to sell or give away their works without bothering with contractual or documentary formalities, for the new owners to do likewise and so on down the chain – remaining dormant until there comes a legal or business question of true ownership.
A very recent example is media interest in the ownership of the bronze cast of Henry Moore’s Knife Edge Two Piece, 1962-65, currently sited at College Green opposite the entrance to the House of Lords (where TV news reporters often interview politicians). It is in appallingly bad shape and needs serious restoration – even the plaque identifying the work and its author is missing. But nobody admits responsibility for its maintenance or ownership. It was originally sited nearby on Millbank at Victoria Tower Gardens, having been donated ‘to the nation’ by Moore in 1967, who said of the gift: ‘When I was offered the site near the House of Lords for the Knife Edge Two Piece sculpture, I like the place so much that I didn’t bother to go and see an alternative site in Hyde Park … It is next to a path where people walk and it has a few seats where they can sit and contemplate it.’
The Contemporary Art Society paid the fee of around £8,000 to cast Knife Edge Two Piece; installation arrangements were made by the then Ministry of Public Building and Works, whose press release at the time confirmed that the bronze had been ‘presented to the nation’. That Ministry (plus its buildings and works) was absorbed into the Department for the Environment in 1970 and then taken over by the Property Services Agency until its abolition in 1995. The Art Newspaper in October 2011 reported denials of ownership of the Moore bronze by the Department of Culture Media and Sport, English Heritage, the Government Art Collection, the Greater London Authority, the Contemporary Art Society and the Henry Moore Foundation. The land on which the work stands is owned by the Parliamentary Estate, which also denies ownership of the work. Its current estimated market value is around £5m.

Equally bizarre is the apparently orphan status of a bronze sculpture that remains at Victoria Tower Gardens: Rodin’s The Burghers of Calais, 1884-89. Cast in 1908, it was bought in 1911 by the National Art Collections Fund for £2,400 and installed in 1915 by the then Office (later Ministry) of Works. Recent denials of ownership have been made by both Government and non-government departments and agencies. The gardens are owned by the Queen as Head of State and are managed by the Royal Parks authority that only seven years ago accepted responsibility for maintaining the work – but denies its ownership. Common sense suggests that the Moore and the Rodin are now owned by the Government, which could remove any doubts by inviting Parliament to enact legislation accordingly.
Lineage lies at the heart of the matter. Living artists could greatly help themselves, their heirs and successors of their artistic estates – as well as assisting future provenance curators and art market professionals – by adopting the robust professional business practices of the Renaissance period: documenting their works from initial ideas, through execution to first studio sale or transfer. Art market traders could do likewise, to ensure the accumulation and perpetuation of sound provenance of original authorship and legal ownership.

© Henry Lydiate 2011

Addendum March 2013. The House of Commons recently claimed ownership for the Parliamentary Collection of Moore’s Knife Edge Two Piece, which is currently undergoing vital restoration work over an eight week period, at a cost of £32,000: £21,000 from Parliament and £11,000 from the Henry Moore Foundation. HL.

This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.