There has been significant recent growth in representation by art-market professionals of the estates of artists who died in recent times, and such activity is fast becoming an established business specialism within the contemporary art ecosystem. Agents and dealers are offering art-market skills and services to artists’ heirs and successors, who frequently need professional help to deal with works and related artistic material that they have inherited. Such business relationships are likely to require long-term investment of resources by art-market professionals before they achieve profitable returns from sales, which is perhaps why the so-called mega-galleries are leading this new niche sector of the art industry.

Hauser & Wirth gallery’s current representation includes 18 or so estates and foundations of notable artists, and last month it hosted (in partnership with DACS’s Art360 Foundation) an event launching a new publication exploring key issues on art after death. Artist, Authorship & Legacy: A Reader is a unique collection of essays commissioned and edited by Daniel McClean, a leading international art lawyer and independent contemporary art curator. An extensive discourse is offered by McClean as an introduction and overview critically examining the ‘construction and iteration of the artist-author both during the lifetime of the artist and beyond’. This is a theme running throughout the anthology: key issues facing those inheriting artists’ estates should ideally be considered, planned and provided for throughout an artist’s life.

The editor and authors have avoided pursuing an Anglocentric focus and context for their examination of issues that arguably apply to living artists – wherever they are based – who wish to make provision for their work after death. And for those artists who currently have no such concerns, especially young artists navigating the nursery slopes of their careers, there are many illuminating insights for mature consideration.

A score of authors from a range of disciplines offer legal, art-historical, and art-market perspectives based on knowledge and experience in their own fields. A valuable feature of this ‘reader’ is that it need not be digested as a whole work, and can be dipped into to explore topics of particular interest, each of which has an engaging title and scholarly footnotes referencing sources and further reading. The essays explore examples of recent cases – not only legal – and address ‘enduring issues that have become central to the contemporary art world, such as the collision between artist’s rights and the rights of owners of artworks, the problems of authentication and who has the final authority to determine authenticity, and the role of artist’s estates and legacy guardians’. For ease of reference, the collection is helpfully divided into three parts.

‘Authorship and Artist’s Rights’ is the focus of the first set of seven essays showing how artists’ rights have developed over the past half century. A seminal contribution was made in 1971 by US-based Conceptual Art curator Seth Siegelaub and lawyer Robert Projansky, who co-created the Artist’s Reserved Rights Transfer and Sale Agreement (Interview AM327). This included provisions giving the artist a right to be paid 15% of the profit on any resale of the work for life plus 21 years, and 50% of the fees from any hiring of the work. Furthermore, it sought to bind subsequent buyers of the work to the terms of the agreement, as well as binding the artist’s heirs. This radical document was signed by very few collectors. Other attempts were made over subsequent decades to introduce an artist’s resale right by way of a primary sale contract: they too failed to gain support from art-market professionals and collectors. However, coverage in the then leading contemporary art magazine, Studio International, of the concepts in this practical innovation led to its wider dissemination, which undoubtedly stimulated the eventual introduction of artist’s rights legislation around the world.

The second section, ‘The Artwork, Aura, and Authentication’, comprises eight essays critically riffing around the practices of contemporary artists whose works challenge traditional notions of authorship – what is unique, what is original – and undermine ‘ascription of a singular creator’ of a work. Whether or not intended by the artist, such practices often lead to complications for others handling such works in the cultural or market sectors – even more so after the artist’s death.

Post-mortem authentication issues are then explored by essays illustrating and exemplifying recent disputes: ‘Artists’ Legacies, Authentication, and the Art Market: Not Always a Happy Ménage’; ‘Brave New Market – Unsilencing the Authenticators’. Inevitably the landmark legal challenge made by a collector against unacceptable decisions of the Andy Warhol Authentication Board (Editorial AM342) is explored. The case led to the Board’s closure in 2011 (Artnotes AM351), which was followed by the closure of many other US-based authentication vehicles, including those acting for the late Keith Haring and Jean Michel Basquiat. High-profile disputes involving collectors and authenticators of works of artists post-mortem have continued (not only in the US), and have stimulated proposals for legislation to give greater legal protection to authenticators when their expert opinions are challenged by collectors who consider artworks they own to have been wrongly maligned.

‘Legacy and its Stewards’ is the final set of seven essays addressing key pre-mortem questions of estate planning and post-mortem issues of estate management: ‘in short, who shapes the narrative of the artist’s legacy and his or her place in art history?’ Personal, legal and financial factors shape legacy planning, which can be ‘anathema’ to many artists and can produce painful disputes between inheritors, and with others including market professionals with whom the living artist had business dealings – including tax authorities.

For artists who do tackle such issues, the crucial importance of appointing suitable people who can be trusted to act as artistic executors is illustrated by the landmark lawsuit in the 1970s over Mark Rothko’s estate. Some artists embrace and even relish the opportunity of determining whether and, if so, how their work will be exposed post-mortem: examples include Georgia O’Keefe’s destruction of her early works, and site-specific arrangements made by Donald Judd with Dan Flavin and John Chamberlain. A telling comment on legacy is quoted from Marcel Duchamp’s 1955 interview where he expressed interest in ‘a future public, rather than the immediate one that gives you success and everything. Instead of that, I would rather wait for a public that will come 50 years – a hundred years – after my death.’

Of course, in 1955 only Duchamp knew he had been secretly developing over the previous decade his final ‘creative act’: a work to be revealed only to his ‘posthumous spectator’. He continued working secretly for the next decade planning, sourcing and fabricating materials, and trialling assembly of an installation. He left written directions that the work could not be exhibited until after death, together with a manual of instructions for its assembly and disassembly. After his death in 1968, the work was assembled and exhibited at Duchamp’s intended location, the Philadelphia Museum of Art that continues to own and show his posthumous Étant donnés, 1946-66, through which Duchamp delivers the completion of his artistic explorations.

All in all, this publication thoroughly explores key issues surrounding artist, authorship and legacy, and provides substantial new scholarship that makes a valuable contribution to contemporary art practice.

Artist, Authorship & Legacy: A Reader, ed Daniel McClean, Ridinghouse, London, 2018, 400pp, bw, illus, pb, £20, 978 1 909932 45 6.

© Henry Lydiate 2019

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.