Tate Modern will host a colloquium, Inherent Vice: the replica and its implications in Modern Sculpture, this month.

With the support of by The Andrew W Mellon Foundation, 40 specialists from a range of art disciplines have been invited to debate ‘controversial questions posed by the need or desire to replicate modern sculptures made from disintegrating or decaying materials’.  This workshop is an important facet of Tate’s four-year Sculpture Replica Project, which started in 2006 and aims to pioneer new research, open debate and collaboration with other institutions, and to work towards international standards of practice in relation to the controversial issues of replicas.

The other facet of this project involves undertaking specialist conservation research surveys of works in its collection that are disintegrating due to inherent instability of material, chiefly focusing on 17 of 67 Naum Gabo works in Tate’s collection (the largest Gabo holding worldwide). These works have been chosen because Gabo’s pioneering use of cellulose plastics (offering transparency and ease of manipulation, and signalling modernity) are inherently unstable and prone to irreversible discolouration and disintegration. Scientific and technical methods are being used to analyse the materials with a view to offering practical conservation solutions, and to enable pilot ‘study replicas’ to be made ‘so that their form is preserved for posterity’. It is also hoped that such research will assist in dealing with the deterioration of works of other artists whose ways of working over the last 100 years or so have involved the use of inherently unstable materials, including among many others: Marcel Duchamp, Laszlo Moholy-Nagy, Antoine Pevsner, Vladimir Tatlin, Eva Hesse, Dieter Roth and Matthew Barney.

The Tate’s colloquium will explore issues including: the ethics of replication, the aura of originality, artists’ intentions, individual case studies and the role of replicas in the art marketplace and within the museum. Specialist participants were invited to submit papers on these and related issues, to provide focus for debate. This column summarises my contribution addressing ethical and legal issues in relation to conservation, restoration and replication of the works of dead artists.

The first and paramount reason for distinguishing between the works of living and dead artists – in the context of conservation, restoration and replication – is legal: artists have intellectual property rights over the physical treatment and reproduction/replication of their works, which last for their lifetimes plus (in most countries) 70 years post mortem. Let us first consider those rights in relation to living artists, before exploring their posthumous application.

Under most international and national laws, artists have the statutory ‘moral right’ to object to what UK law calls ‘derogatory treatment’ of their works. This means they can legally object to any addition, alteration, amendment to or deletion from their original works that damages their ‘honour, integrity or reputation’; which could therefore apply to any or all conservation or restoration treatment. In the case of living artists, permission should therefore be sought from the artist for express consent to any proposed treatment, which has the distinct advantage not only of complying with the law but also of eliciting the artist’s original and current artistic intentions for their work.
Similarly, most countries have copyright laws that give artists the statutory right to prevent their works being reproduced (and/or such reproductions being merchandised); and would therefore include any replication. Express consent from living artists should therefore be sought, for the reasons given above.

The estates, trusts or foundations of dead artists usually inherit their statutory moral rights and copyright, which normally last for the same length of time post mortem – with two notable exceptions: under US federal law, statutory moral rights generally last only for the artist’s lifetime; under French law statutory moral rights last indefinitely. As with living artists, therefore, express permission should be sought from the artist’s estate for ‘treatment’ or replication, in most cases for at least 70 years. In those circumstances, dead artists’ intentions can only be gleaned second-hand from their chosen heirs and successors – which raises important issues for living artists planning the future of their estates, and whether they wish to make written records (for their immediate successors and for longer term posterity) about whether, and if so how, their works should be ‘treated’ or replicated.

In the case of artists who have been dead for more than 70 years, all of the issues discussed above should nevertheless be considered by those wishing to undertake ‘treatment’ or replication of works – but for professional and ethical rather than legal reasons. In the case of the works of French artists, both legal and ethical reasons continue indefinitely; in the case of the works of US artists, while the replication issue remains for 70 years post mortem, the ‘treatment’ issues become purely professional and ethical after death.

It is also important for museums and collectors to understand that the statutory moral rights and copyright of artists (and their estates) are determined by the artist’s legal ‘intellectual property status’. Different countries may have different rules, but generally the intellectual property status of a rights owner is normally their nationality, legal domicile or residency – at the material time. This would normally be when the work was made or, if uncompleted, when the artist abandoned the work or died. For example, UK statutory moral rights and copyright laws would govern the completed and uncompleted works of an artist who lived and died as a UK national. It follows that museums and collectors of works need to note the ‘intellectual property status’ of the artists whose works they own, and act accordingly.

A related, less certain and even more complex issue, is the impact on the market value of works from their being replicated. The issues involved and arising chiefly relate to the seller (be it the original artist or any subsequent resellers). A seller or reseller (especially an art market professional) would normally be required, by the laws of most developed countries, to describe a work accurately. For example, an offer of a work for sale must state if it is one of an artist’s limited edition or series – because such information will affect the work’s market value, and it would be misleading not to provide the buyer with such important economic information. In relation to works offered for sale that are not expressly limited editions or series, it would be reasonable and proper for a buyer to assume that their purchase was of a unique work, and that replicas, reproductions or further versions of that work would not be made – such further versions, after the sale, are likely to diminish the work’s market value in relation to any subsequent versions.

It is therefore important that anyone (artists, their estates, museums and collectors) contemplating replicating or authorising the lawful replication of work bears in mind the potential economic damage that may befall owners of the original pre-existing work(s). Similarly, sellers and resellers of lawfully replicated work should make expressly clear to potential buyers that work is a lawful replica, by whom it has been authorised and made, and how many other ‘versions’ exist; they should also have appropriate documentation of their original purchase and its provenance, and give to the new buyer their own documentation adding to the provenance chain they inherited.
Tate intends to disseminate wider outcomes on these important issues after completion of the colloquium.

© Henry Lydiate 2007

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.