Ethical practices of art conservation have become a renewed subject of debate following publication of a pre-conservation image of Salvator Mundi, c1500, which was recently attributed to Leonardo da Vinci and subsequently sold for $450m at auction by Christie’s New York in November 2017. Debate was initiated online by an Instagram post of Christie’s image by the recently retired director/CEO of New York’s Metropolitan Museum of Art, Thomas P Campbell, together with a caption: ‘450 million dollars?! Hope the buyer understands conservation issues.’

Key players in the art world have long debated whether conservation should be attempted at all and, if so, the nature and extent of techniques and treatments. From the second half of the 20th century to date, conservation practitioners and their professional institutions have developed codes of conduct notably requiring that wherever possible interventions are reversible, fully documented, and transparent.

Transparency is a challenge for conservators when an owner of a work wants its appearance improved before sale. Will the conservator treat the work in such a way that might deceive or mislead a potential buyer about its condition? Or is deceiving or misleading buyers literally out of the conservator’s hands and in the hands of the owner/seller? There is no common international standard of transparency for art-market professionals selling works: each decides on a case-by-case basis whether, and if so, how much pre-sale condition and provenance history and information is provided, and whether to offer this only when potential buyers request or proactively without request.

Christie’s chose to publish its full condition report on Salvator Mundi 24 hours or so before the auction sale. This was a sound business decision: the auction house was anticipating record levels of bidding and doubtless wanted to obviate post-sale complaints about condition from the eventual buyer. Doing this also enhanced its market reputation for transparent ethical conduct.

So what was Campbell’s caption driving at with the hope that ‘the buyer understands conservation issues’? Online debate focused on what is seen after interventions. Is it still the work of the original artist or the conservator, or both? And is it an ethical violation of the original cultural object to intervene at all – even with the best intentions of arresting or correcting deterioration or physical damage?

Public-facing museum and gallery institutions face similar questions (though without the added complexity of commercial concerns). Curators working with conservators for the sole purpose of displaying cultural objects have developed two principal schools of thought: one, do not under any circumstances touch the work or, two, do as much as ethically possible to intervene for posterity. The older the cultural object the more acute the ethical challenge; over time, 3D objects are far more likely to have been damaged and repaired than 2D works. Is it deceiving or disrespecting the viewing public to ‘hide’ or ‘fail to disclose’ the nature and extent of any conservation? Would public disclosure and explanation of before-and-after facts and images add value to cultural experience?

Are there also legal questions? Perhaps three aspects of artist’s intellectual property rights require consideration: copyright, moral rights, and resale rights. In most countries these rights are automatically given by national law to artists when they author a legally original artwork. But there is no commonly agreed international legal definition of originality. Laws in some countries operate a relatively low/minimal requirement, which is relevant in this exploration: a work will pass the legal originality threshold test so long as it is not slavishly copied from another artist’s earlier work. Other countries’ laws operate a relatively higher requirement: that a work be the visual expression of the mind and personality of its artist. Between these two poles are laws of countries requiring works to‘possess at least some minimal degree of creativity’. These are very murky legal waters, which are usually only navigated by courts deciding on a case-by-case basis as and when disputes arise.

Now consider legal originality in relation to two notable works. Marcel Duchamp’s L.H.O.O.Q., 1919, a postcard reproduction of Leonardo da Vinci’s Mona Lisa, c1503/17, onto which Duchamp drew a moustache and beard in pencil and appended his new title; and Salvador Dali’s Self Portrait Mona Lisa, 1973, a photomontage adding Dali’s eyes and moustache to the face of the original image. These examples involved alterations to reproductions of original images.

Three further examples involve alteration of the original physical object. First, Jake & Dinos Chapman’s Insult to Injury, 2003, a suite of 80 Goya etchings printed in 1937 directly from the artist’s original plates (Disasters of War, 1810-20) owned by the brothers, who systematically went through all the prints and changed the victims’ heads to images of clowns and puppies, producing a body of work that they exhibited as their own. Second, Hans Holbein the Younger’s The Ambassadors, 1533, which was treated in 1998 to deal with old and perished varnish, remove black overpaint of the (now green) curtain, filling in gaps between wooden supports and retouch losses around the anamorphic skull – substantial changes shown by before-and-after images. Similarly, Leonardo’s Salvator Mundi: the pre-sale condition report includes the latest restoration of 2007-10, which removed layers of crude and distorting overpainting (including a beard on the face), in painted losses and made cosmetic changes in the words of the conservator ‘to bring it back closer to Leonardo’s original’.  These words are perhaps key to assessing legal originality: it should not depend on whether comparisons of before-and-after images show striking differences (and therefore the creation of a ‘new’ image), but on whether an intervention seeks to take a work back to its original state.

Moreover, it would be absurd to assert that if works made by artists who died more than 70 years ago (whose intellectual property rights have therefore expired) were altered so as to produce a new and different image, the author of that altered image would automatically be given legal intellectual property rights over that altered image lasting for up to 70 years after death. Such authors would arguably have exclusive legal control over the altered image for the purposes of reproductions and other merchandising, further amendments and additions and alterations, and be entitled to receive royalty payments from resales of their altered work. And it would be ludicrous if laws allowed such a cycle of renewed intellectual property rights to be repeated every 70 years or so, ad infinitum. The founding rationale and still current principle of authors’ intellectual property rights over their original works is that they should last for a limited period then ‘fall into the public domain’ so that society can freely enjoy and use them.

A final issue: do photographic images of 2D artworks generate new intellectual property rights for the photographer? Some laws say yes because such images pass their (relatively low) legal originality threshold test; others, like in the US, say no because such images do not create an original image, merely slavishly copy an existing image. UK courts have not yet clarified this vexing originality question. However, in 2015, citing a 2012 ruling of the European Court of Justice, the UK’s Intellectual Property Office stated that a digitised reproduction of a work out of copyright was unlikely to be sufficiently original to attain a new copyright.

© Henry Lydiate 2018

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.