Blinky Palermo’s reputation was given a major boost through retrospective exhibitions in Barcelona and at London’s Serpentine Gallery in 2003. This, in turn, has led to funding recently being achieved by Edinburgh College of Art to ‘rescue’ one of his ‘lost’ paintings: Blue/yellow/white/red, 1970, a mural Palermo executed between August 23 and September 12 1970, during that year’s Edinburgh Festival.

Painted with Rowney acrylic on the back wall of the entrance hall to the College, Palermo’s work was his contribution to an exhibition involving several artists including Joseph Beuys, Gerhard Richter, Klaus Rinke and Sigmar Poike who had been invited to make new work within the college, under the title ‘Strategy-Get-Arts’.

‘Strategy-Get-Arts’ was a temporary artistic intervention and, when it was over, Palermo’s mural was painted over. Richard Demarco, who had invited the artists to work at the college, appears to have been the only objector at the time. Since then things have changed, and the college is now committed to ‘revealing’ the mural. Revealing or rescuing the hidden work will be difficult because the original acrylic paint was water-based, and is unlikely to survive removal of many layers of decorative over-painting during the past 30-odd years. The college is therefore considering remaking the work, on the wall on which the overpainted original lies. Blinky Palermo cannot be consulted, because he died in 1977, aged 33.

The college’s inability to discuss their rescuing/remaking plans with the artist raises important issues concerning the artistic legacies of deceased artists, and how they may be handled.

Few artists record their wishes and intentions for dealing with their work after completion, or indeed, after death, but some have done so through specific instructions in their wills or in detailed documentation forming part of their artistic estate. In the absence of any such clear documentation, those inheriting responsibility for a deceased artist’s estate can be placed in great difficulty when having to decide whether, for example, to execute artworks conceived but never, or only partly, completed before the artist’s death; to allow works to be remade – be they ‘lost’, destroyed or irreparably damaged; to permit the conservation or restoration of deteriorating or damaged works; to exhibit works hitherto unexposed by the deceased artist; to licence the reproduction and merchandising of works; to prevent a deceased artist’s name being falsely attributed as the author of work they did not make; to allow completed, but unsold, studio works to enter the market place; to preserve, to publish or to destroy, the deceased artist’s personal and private archives, including especially any confidential or sensitive information, artistic techniques or know-how.

Where those responsible for an artist’s estate have no experience or knowledge of art, and the deceased’s work in particular, the absence of instructions or guidance from the artist makes it very difficult for appropriate decisions to be made. Where there is such documentation, those responsible for the estate will suffer far less stress, be much more likely to make decisions of which they can be fairly confident the deceased would have approved, and might make a significant contribution to the promotion of the artists’s reputation. Consider the following examples.

Marcel Duchamp’s large structural assemblage, Etant Donnés: 1. The Waterfall 2. The. Illuminating Gas, 1946-66, was conceived and developed by him in complete secrecy. During its 20-year construction, assisted confidentially by his wife Alexina (Teeny) and close friend William Copley, he made copious notes and instructions including a subtitle for the work Collapsible mock-up made between 1946 and 1966 in New York with scope for ad-libbing during assembly and disassembly. Eight months after his death, in accordance with his written wishes, and using his notes and instructions, the work was reconstructed and installed in 1969 at the Philadelphia Museum of Art. Specifically, Duchamp had declared the work to be a companion piece to his The Bride Stripped Bare by Her Bachelors, Even (more often known as the Large Glass), 1915-23, that the museum had acquired in 1953. Both works are seminal, and inform each other.

On a purely legal note, only the inheritors of an artist’s copyrights and statutory moral rights have the authority to authenticate their works, permit any changes to them, and authorise any reproductions of them; and to do so for 70 years after the artist’s death. Only the executors of the Duchamp Estate would have had the legal powers to reconstruct and exhibit the posthumous work.

Kurt Schwitters’ 3rd Merzbau, 1947-48, was made from plaster and found objects applied directly to the stone walls of an old barn in Ambleside, Cumbria where he lived for many years until his death in 1948. Schwitters’ landlord had promised somehow to preserve the work after the artist’s death. In order to move the work to a safe or exhibition venue, the stone barn wall would have to be moved in one piece. It was not until 1965 that Richard Hamilton arranged and supervised the dismantling of the wall, its transportation to and permanent installation in the University of Newcastle Upon Tyne’s Hatton Gallery. This important work is the third and only surviving Merzbau: the first, made in Hanover, Germany (1923-37) was destroyed by an air-raid in 1943; the second, made in Norway (1938-40), was destroyed by fire in 1993. Schwitters’ landlord owned the barn, and therefore the yd Merzbau’, fortunately, he was also a good friend who not only had the legal right but also the knowledge of and loyalty to fulfil the deceased artist’s wishes.

In the Momart fire earlier this year (see AM278) among works destroyed were those by Patrick Heron and Jake & Dinos Chapman. Should there arise any question of remaking any of Heron’s lost work, only the executors of his estate could authorise doing so because they will own his copyright (Heron died in 1999); and in the case of the Chapman brothers, still alive and the owners of their joint copyright, only they can lawfully remake their lost work. In this connection, Richard Hamilton’s 1965-66 reconstruction of The Bride Stripped Bare by Her Bachelors, Even, 1915-23, the original of which in Philadelphia had been damaged, was explicitly authorised by Duchamp who also signed the work, thereby making it a replica.

Palermo’s death in 1977 means that copyrights in his works will expire at the end of 2047, and will be owned by those responsible for his estate; only they can authorise the proposed remaking of his Blue/yellow/white/red, 1970. Presumably the Edinburgh College of Art owns the wall of its entrance hall, and therefore owns the mural buried under the overpainting; and the college would therefore have the legal property right to remove the overpainting – if possible – to reveal the original wall-painting. Unless, of course, there existed contractual documentation between the college and Palermo specifying precisely who owned the mural, for how long, and who may have had the duty to preserve it or the right to destroy it. Recently, writing in Scotland on Sunday (August i, 2004) about the mural and plans to reveal or remake the work, the college’s director of research development said ‘Its stay was short-lived – perhaps because the artist never intended it to be permanent and certainly because the college authorities lost no time in painting it over.’ What might Palermo say now?

© Henry Lydiate 2004

NOTE (added November 2009): Historic Scotland Conservation Centre conducted architectural paint analysis of the over-painted Palermo work, and advised that it could not be re-captured. Instead, Palermo’s work was recreated in 2005 (and now called Palermo Restore), through collaboration between Edinburgh College of Art, the Scottish National Gallery of Modern Art and the University of Edinburgh’s Talbot Rice Gallery.



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.