The Getty Conservation Institute recently organised a unique conference in Los Angeles, California, under the title ‘Mortality/Immortality: The Legacy of 20th Century Art’ to debate whether and, if so, how many contemporary works should be conserved.

It was addressed by a distinguished array of speakers including curators, museum directors, conservators, artists and academics. Unsurprisingly, no firm conclusions are reported to have been reached, but serious legal, economic, ethical and social issues were aired.

From an artlaw perspective, such a debate could readily have been labelled ‘Morality/Immorality: The Legacy of 20th Century Art’, for it is the law relating to moral (as opposed to mortal) rights which essentially arises in this context.

Moral Rights Legislation
Until 1989, UK law gave little or no protection to artists against abuses to their reputations such as public denial of their authorship and derogatory physical treatment of their works no longer in their possession, control or ownership; but from August 1 1989 protection for artists against such non-economic abuses was given by the Copyright, Designs and Patents Act 1988 and in the USA in 1990.

The reason for those changes is that both the USA and the UK are signatories to the Berne Copyright Convention which requires each signatory state to enact its own laws in terms that harmonise with the rules of the Convention. The key rule in this case is as follows:

‘Independently of the author’s economic right, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work, and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to the said work, which would be prejudicial to his honour or reputation’.

In the UK there are three basic rights:

  • to be identified as author whenever the work is exposed to the public
  • not to suffer derogatory treatment by any unauthorised addition, amendment, deletion or alteration
  • not to be named as author of a work the artist did not execute (so-called false attribution).

Similar rights have been enacted in most developed countries in the world, where artists from any Convention county can take legal steps to prevent or correct any such abuses, actual or anticipated.

Moral Rights legislation therefore raises serious legal issues for conservators, curators and collectors, as well as artists, in relation to contemporary works: the right not to suffer derogatory treatment lasts for the lifetime of the artist and for 70 years after death; artists can waive (forego) their moral rights, but cannot sell or give them away.

When curators of collectors buy a work, the contract of sale should be in writing and record not only the obvious details (such as selling price and description of the work) but also responsibility for conservation, restoration and repair. Since artists have a legal moral right not to have work shown in public if it has been distorted accidentally or otherwise), their involvement in any issues of conservation is best decided before, rather than after, the need arises. At the same time, agreement should be reached to determine how the artist will be identified as author whenever it is publicly exposed (another legal moral right).

Likewise, commissioners of new works should negotiate and agree not only the nature of the work, its price, delivery and so on, but also arrangements for conservation, restoration and repair.

Loans and Rentals
It is particularly important for loan or rental agreements to make provision for the artist to be involved in authorising or supervising any conservation work. This can be easily ignored or forgotten about when the artist is neither the lender nor the borrower (as is often the case when collectors lend their works to museums and galleries), since it can take a great deal of time and energy for the parties to locate the artists and secure their involvement.

Gifts and Bequests
Museums, galleries and collectors, both public and private, need to consider taking the lead in seeking out the artist and securing their involvement in conservation issues. The first question to be asked in relation to such a gift or bequest is: did the artist die more than 70 years ago; if so, then the artist’s legal moral rights do not need to be taken into account for conservation purposes – but then professional ethical issues arise.

All works, ancient and modern, suffer deterioration and/or damage, and obvious questions arise such as:

  • who is responsible for making good or arresting deterioration
  • who will pay for it
  • who decides what is the right action to take
  • when does conservation become restoration
  • when does restoration become replacement

In relation to contemporary works by artists who died more than 70 years ago, these are moral (ie ethical) issues for conservators, curators, collectors, museum and gallery directors.

In relation to contemporary works the law is very clear in most developed countries: during artists’ lifetimes and for 70 years after death, no physical treatment of their works can be undertaken lawfully without their authorisation – if such treatment would be derogatory to the artist’s honour, integrity and reputation.

The use of the legal term ‘moral’ for those artists’ rights is entirely appropriate in this context, because conservation and restoration issues are not only technical and legal but also moral in the ethical sense. Just as professional morality and ethics need to be brought into play when older and antique works deteriorate or are damaged, so they are also relevant in determining whether contemporary works will suffer derogatory treatment from conservation processes.

In a sense, therefore, moral rights legislation seeks to create a legal framework for the protection of contemporary works which reflect the same ethical issues that arise in relation to older and antique works.

In some countries, France for example the artist’s expressed wishes will strongly influence a court’s decision as to whether treatment of a work had been derogatory within the meaning of the law. In the UK, the courts have not yet been called upon to decide the issue – is this because our conservators and curators subscribe to higher professional ethical standards than elsewhere?

In relation to non-contemporary works there are often clues or messages from the grave – letters of the artist, wills, biographies, contemporary accounts, and so on. These can be very useful to conservators, who often say ‘if only the artist could tell us’. At the Getty Conservation Institute Conference, many celebrated artists did speak, making some fascinating comments: David Hockney, ‘if everything were saved, we’d be up to our eyeballs in rubbish; science will decide’; Bill Viola, ‘artists cannot be involved in preservation’; Ron Kitaj, ‘the destiny of art is in the hands of those who come later’, and Tony Cragg who did not want to have to think about it.

Most artists, curators and academics at the Conference appeared to agree, with the curators understandably arguing the other way. The final word on this important issue is left to the late Joseph Beuys, who is said to have commented that we cannot cheat fate, and are forced to choose mortality in relation to works that are not made to last.

© Henry Lydiate 1998

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.