The three cases detailed in this article all raise the same question, one which has serious legal as well as professional practice implications for commissioners, owners, curators and conservators – as well as for living artists: what were the intentions of the originator?

  • The Louvre declined to remove the yellow varnish from the Mona Lisa
  • Brancusi's Endless Column is being attacked by pollution and may fall down
  • Henry Moore's Draped Reclining Figure was ordered to be returned to its original siting as an integral part of the Time-Life building in London

The Louvre's chief conservator issued a public statement last year to the effect that there was no question of undertaking conservation, of whatever nature, of Mona Lisa: the old varnishes make the picture yellow and affect its impact somewhat; but the work is painted on panel and is otherwise in superb condition. He went on 'Do I have to remind people that this painting is universally famous in its present state? I distrust on principle any conservation that might be considered “sensational” to the extent that it is not made necessary by the condition of the work itself'.

But public debate rolled on; to remove or not to remove, that was the question. Arguments in favour include: the old varnish is degraded and obscures the aerial perspective of the enchanted landscape and should be removed; it is important to reveal what Leonardo would have intended, which is not how it looks at present; as a national icon, it should be left alone, but as a work of art its discoloured varnish should be dealt with like any other damaged painting; spectacular progress has been made with lasers in recent years so that it is technically possible to restore without damaging the work; the varnish has discoloured the balance of the composition's palette, which now cannot be seen.

Arguments against include: current technology is insufficiently advanced to avoid the risks of disturbing the picture underneath the varnish; the result would be to produce a cleaned version of an old painting, not the original painting: Leonardo applied the paint in small touches in increasingly thin glazes, and the surface varnish could not be removed without also removing the touches; the painting is not at risk or grossly disfigured; the painting is not in need of preservation and should therefore be left alone. This dilemma – or possibly nightmare – for curators and conservators has moral as well as professional overtones, with both sides of the argument referring to the artist's original intentions, as well his original workings. As does the debate over Brancusi's Endless Column.

Erected in 1938 at Tirgu-Jiu in Romania as part of a World War I memorial, the metal of the central spine has been badly corroded to the point of possible collapse. The question has arisen of replacing the metal spine with a new support. However, the argument against doing so is that it would be an unacceptable intervention. The Romanian Government has made the replacement a special millennium project, due to be completed by 2000 at a cost of around $2m. Like the Mona Lisa, the sculpture has come to be regarded as a national icon, not just a work of art. An interesting twist in the tale came from the daughter of Brancusi's engineer who is reported to have said that her father would have wanted the work to be conserved. But what would Brancusi have wanted? Like Leonardo, we do not know, just as we have no idea what Henry Moore would have said about the removal of his Draped Reclining Figure from the Time-Life building in New Bond Street, London.

In 1954, Time-Life bought the Moore and other works soon after they had leased the then newly-built offices. In 1992 they were planning to leave the building and take their artworks with them. Westminster City Council, the planning authority, insisted that the artworks remained in situ, since they were an integral part of the building.

Time-Life's arguments were that they had bought the work and so were entitled to do with it as they pleased. Against these property rights were ranged the planning laws: the Time-Life building was listed and occupiers of listed buildings must comply with requirements of the planning authority, which insisted on the work remaining by arguing that the work was an integral part of the building (a fixture and not a moveable 'bolt on' decoration); further, that the building and its 'sculpture court' formed an architectural and artistic ensemble of great historical and architectural importance, since it was one of the only complete intact Festival of Britain-style buildings.

When this dispute arose in 1992, the sculpture was actually on loan in Scotland, where it remained pending resolution of the dispute. The case was eventually dealt with by the High Court in London, which decided that a fresh planning enquiry should be held under the authority of the Secretary of State for the Environment who was in law the ultimate arbiter of the matter.

But how was John Prescott to decide the matter, and does he know anything about art – site-specific sculptures in particular? Bless him, he decided late last year that the work should never have been removed from the listed building because it was indeed an 'integral part' of the architecture. Would Henry Moore have agreed?

All these cases illustrate and underline the importance – to living artists – of using clear and detailed records for the commissioning and installation of artworks, and for other future maintenance; above all else, to make it abundantly clear how long a life they envisage their works should have. Ideally, written agreements between the commissioner and the artist should cover these and other essential parts of the deal such as origination fee as well as the sale price (if it is also to be sold). In the case of site-specific installations, such agreements should also make it clear whether the work is an integral part of the landscape/building/environment. (In the case of Brancusi, the Endless Column is one element of the memorial, which also includes two further sculptures: The Gate of the Kiss at the entrance to the public park, and The Table of Silence).

Some artists never wish to address these issues at all, let alone publicly declare their intentions. That is their right, but it can leave all of us, lawyers included, with two 'moral' dilemmas: one is the type described earlier in relation to the Mona Lisa (because we can, we should?); the other is legal in the case of artists who are alive or who died less than 70 years ago. In the latter case, the Copyright and Designs and Patents Act 1988 gives the legal right to artists (or their heirs for 70 years after death) to prevent their works being treated in a 'derogatory' way; this could include conservation, restoration, renovation or removal from its specific site. That right is described in legal jargon as the artist's 'moral right'. Quite so.

© Henry Lydiate 1999

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.