Playing Darts with a Rembrant: Public and Private Rights in Cultural Treasures.

AuthorHall, Jason Y.

PLAYING DARTS WITH A REMBRANDT: PUBLIC AND PRIVATE RIGHTS IN CULTURAL TREASURES. By Joseph L. Sax. Ann Arbor: The University of Michigan Press. 1999. Pp. xiv, 245. $32.50.


Because of the thoughtfulness of its arguments, the range and depth of its presentation of specific cases, and the fairness with which it reveals, thinks through, and allows some validity to opposing points of view, Playing Darts with a Rembrandt is a valuable contribution to understanding which parties have, and should have, rights in key objects that comprise our collective heritage. That I am not persuaded by some of the specific arguments in the book in no way reduces my admiration for what it accomplishes.

In the lucid, direct style that characterizes the book, Joseph L. Sax(1) opens with:

This is a book about a very odd matter: Many of the greatest artifacts of our civilization can be owned by anyone who has the money to buy them, or the luck to find them, and their owners can then treat the objects however their fancy or their eccentricity dictates. [p. 1] After presenting a quick overview of the topic, he makes his own position clear:

The thesis of this book is quite straightforward. It is simply this: There are many owned objects in which a larger community has a legitimate stake because they embody ideas, or scientific and historic information, of importance. For the most part it is neither practical nor appropriate that these things be publicly owned. It is, for example, highly desirable that private individuals collect art according to their own tastes and have the enjoyment of it. The conjunction of legitimate private and public interests, however, suggest [sic] that ordinary, unqualified notions of ownership are not satisfactory for such objects. I propose that several qualifications are generally appropriate: a bar on destruction and on denial of access, and at least a presumption against grants of exclusive access to particular individuals (such as authorized biographers or favored researchers). Of course, no such general prescription can resolve the numerous and fascinating variant situations that arise: Must the heir of a famous writer make her love letters public? How long should material -- admittedly of historic interest -- be embargoed in library collections? Should libraries distinguish between scholars and journalists in granting access? Is an archaeologist who wants exclusive rights to a site different from an authorized biographer who wants exclusive control of his subject's papers? Should anyone be allowed to destroy a great artist's work? The artist himself? The artist's heirs or executors? A patron, who is displeased with a commissioned work? [pp. 9-10] In making his case, Sax divides his book into three parts. The first, The Fine Arts (pp. 11-78), begins with a detailed account of the celebrated 1930s controversy about Diego Rivera's mural, commissioned by the Rockefeller family for the RCA building at Rockefeller Center in New York. Sax follows with a discussion of artists' "moral rights" and public rights, focusing on the California Art Preservation Act (pp. 21-34); the rights of portrait sitters and of the artists themselves, and of their heirs and executors (pp. 35-47); duties in the protection of notable architecture (pp. 48-59); and collectors and their duties to the public (pp. 60-78). In this part, as in the following two, the book has the great virtue of providing sufficient details of the many specific historical situations noted so that the reader has enough evidence not only to see Sax's point but also potentially to reach different conclusions about the proper disposition of property in similar cases in the future.

In Part Two, Paper Trails (pp. 79-150), Sax provides individual chapters that explore the rights of access to historically significant written materials, including discussion of the history of the treatment of ownership of presidential papers. Further, Sax provides accounts of the varying provisions laid down by Supreme Court justices (Black, Brandeis, Frankfurter, Holmes, Brennan, and Thurgood Marshall) for access to their own papers, including their judgments about degrees of confidentiality needed to preserve the appropriate functioning of the Court. Sax concludes this part with chapters that highlight the different access rules for library and museum collections and that elaborate on the range of relationships between heirs, biographers, and scholars. As illustrations of such relationships, he discusses the handling of the letters of Warren Harding, James Joyce, and Matthew Arnold, and the papers of Benjamin Banneker and Martin Luther King Jr., and he considers authorized biographies and economic benefits to heirs.

The third part, Skins and Bones (pp. 151-96), tackles the scholarly conventions in archaeology, anthropology, and papyrology for first access to ancient manuscripts and archaeological objects and sites. An entire chapter is devoted to "An Academic Scandal Par Excellence: The Dead Sea Scrolls" (pp. 153-64) followed by a discussion of the rationale for such conventions and the argued social costs of their application. The part ends with a discussion of rights in archaeological treasures, illustrated chiefly by the cases of the famous Tyrannosaurus rex "Sue" and the wall paintings in the Chauvet Cave in southern France.


    There are difficulties with some of Sax's main arguments. Could we ban destruction of cultural objects as a practical, enforceable matter? Would that stop anyone who was determined? And how would society enforce this -- would the "culture police" come to your home with a warrant periodically to check on you? Or would your envious neighbor report that you have been burning suspicious things in your back yard? Would you have to register the object? Post bond on it?

    We do not need such a ban on destruction. How sensible would it be to create a law banning what Sax himself concedes is the unusual occurrence of destruction as "simply an act of proprietary caprice" (p. 16) -- the very "playing darts with a Rembrandt" of the title? Indeed, all the incentives -- the high price paid for the object, the prestige of being its owner, the rarity or uniqueness of the object, its aesthetic or intellectual beauty, its value in enhancing one's career -- are on the side of preservation in most cases.(2) And where owners wish to destroy because they hate the message of the object, they are now deterred more strongly than at any time in the past by the threat to their reputation posed by such an act. (Public disapproval of such an act is both more intense, due to evolving attitudes about cultural objects, and more instantaneously widespread, due to television and the Internet, than ever before.)

    Society also cannot effectively ban an owner's ability to deny access to the object. Some things are not reachable by the law. Objects from cars to art are, and will continue to be, stolen to order by unscrupulous buyers, and the more unique, and therefore conspicuous, the object, the more likely the contractor of the theft will be to hide it away entirely.(3) To illustrate, a stolen Mercedes may be publicly drivable if taken far enough away from the point of theft because...

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