"TEMPORARY" CONCEPTUAL ART: PROPERTY AND COPYRIGHT, HOPES AND PRAYERS.

AuthorChused, Richard
  1. INTRODUCTION 2 II. THE STORY OF WALL DRAWING #679 4 III. COPYRIGHT (AND PROPERTY) OR IS IT PROPERTY (AND COPYRIGHT)? 10 A. OWNERSHIP PATTERNS 10 B. REFINING AUTHORSHIP OF CONCEPTUAL ART 21 C. DECIDING AUTHORSHIP 26 D. OWNERSHIP PATTERNS IN WALL DRAWING #679 AFTER THE DEATH OF STERN 30 IV. INTERESTS IN THE DESTRUCTION, MUTILATION, AND RESTORATION OF TEMPORARY WORK 34 A. CONCEPTUAL ART, OWNERSHIP INTERESTS, TEMPORALITY, AND RESTORATION 35 B. MORAL RIGHTS: ATTRIBUTION, MUTILATION, DESTRUCTION, AND RESTORATION 47 1. ATTRIBUTION 50 2. MUTILATION AND ATTRIBUTION OF RESURRECTED TEMPORARY WORK 59 3. WORKS IN OR ON BUILDINGS: MUTILATION AND DESTRUCTION 61 V. CONCLUSION 64 I. INTRODUCTION

    This meditation on transitory art begins with Sol LeWitt. His conceptual art is representative of a large strain of creative endeavors that emerged after 1950. To this day it engages artists, gallerists, collectors, and museum curators worldwide. "Ownership" of his art was not always evidenced by possession of a physical object like a painting or a sculpture, but by possession of documents--a certificate of authenticity and a diagram in the case of LeWitt. Together these documents contained (typically partial) instructions on how to fabricate or install his work. Possession of a certificate and diagram gave their owner a guarantee of provenance and the authority to arrange for installation of the work with the artist or the artist's successors in interest--nothing more. (1) In addition, the actual installations of such works typically were not accomplished by the artists who made the certificates and diagrams; these installations were usually completed by others. Whether the installed work was a wall drawing by LeWitt, a construction by Donald Judd, (2) or a lighting work by Dan Flavin, (3) the pieces were often described by the artists as temporary, movable, or destructible after their installation. Such projects were distinctly different from routine art sales by galleries or auction houses. Rather than obtaining a painting or sculpture, a buyer obtained only the right to seek its creation and installation. It was the creative plan that was the artistic product, not an extant creative work.

    The unusual structure of conceptual art endeavors raises a set of conundrums governing a great deal of contemporary artistic work. First, what are the property and copyright ownership structures of a work of conceptual art? Those structures are controlled in various ways by pulling apart ownership of the certificate and diagram on the one hand and control over installation of a work on the other. Second, given the divided ownership patterns of much conceptual art, who might be designated as author of a copyrighted work? That issue also is complicated by the splitting apart of control over the certificate and diagram from installation of a work. Additional problems are raised by the fact that such works typically were and still are installed by persons other man the artist who devised the creation. Does that mean authorship of a copyrighted work might be split between well-known personages like Sol LeWitt and those who actually fabricated their creations? Third, who controls the actual installation of a work--the owner of the certificate and diagram, the artist or the successors of the artist who created the certificate and diagram, the craftspeople who actually do the work, or some combination of people or institutions? This first family of three problems is discussed in Part II of this essay. Fourth, who controls maintenance of a work of conceptual art if it remains in place for a significant period of time, of a work's demise, or, as in the case of LeWitt's Wall Drawing #679 used in this essay as a template, a plan to restore a work that was covered over? Are such decisions in the hands of the owners of the physical attributes of an installed work, the owners of the copyright interests in the work, the craftspeople who originally installed it, or some combination? This topic is covered in the first section of Part III. Fifth, given the complex ownership structure and power relationships surrounding a work of conceptual art, what sorts of moral right issues may surface over the attribution, destruction, or mutilation of a work if some or all of the relevant actors desire to alter, remove, transfer, or restore a work? The second segment of Part III takes this up. Finally, if all of those holding an interest of one kind or another in an installed work endeavor to destroy it, are there any non-legal, ethical considerations that should be applied in deciding how to handle such decisions? The conclusion tackles this question. All of these issues are implicated by the story of LeWitt's Wall Drawing #679--the template for this essay.

  2. THE STORY OF WALL DRAWING #679

    A peculiar and fascinating example of the property and copyright problems embodied in conceptual art works became an object of widespread discourse in the artistic and museum worlds last year. A controversy arose over Sol LeWitt's Wall Drawing #679 originally installed during 1991 in the home of William Stern--a well-known and widely respected Houston architect. The tale, filled with intriguing questions about the ownership, copyright status, ethics, and control over the installation, removal, and restoration of impermanent conceptual art, began in the early 1990s. Stern designed the home pictured below for himself in Houston's Museum District at 1202 Milford Street--about a twenty-minute walk from the campus of the city's distinguished Menil Collection. (4)

    While the house was under construction he arranged with Sol LeWitt to formulate a work, also pictured below, for installation on a large living room wall thirty feet high and fourteen feet wide. (5) The certificate and diagram for the work, denominated as Wall Drawing #679, were created in 1991 and installation on a wall in the living room of the new house occurred the same year. (6) There also were two working drawings of the piece made before its installation to assist the artists who installed the work--Patricia Phillips and Rebecca Schwab. (7) Stern was a major patron and a trustee of the Menil Collection. When he died in 2013 he left his large art collection, (8) as well as his house, to the museum. And that was when events took a turn to the viral.

    Rather than convert the Stern house and its large art collection into an adjunct space of the Menil Collection, the museum elected to move all of the portable art into its primary facility a short distance away and sell the dwelling. At that point, the museum had to determine what, if anything, to do with the wall drawing in place in the living room. The museum elected to cover it up and end the visible life of Wall Drawing #679.

    The home was purchased by Dr. Georgia Hitchcock in 2014. She and her daughter Jonna knew about the existence of the wall drawing for quite some time after the purchase but made no efforts to learn about its condition for several years. A friend of the Hitchcocks then suggested that they dampen some of the wall and see if they could remove the material hiding the drawing. They discovered that the covering was composed only of a thin water-soluble skim-coat of sheetrock-mud or plaster. When damp it was easy to scrape away. As seen below, a scraggly line of it was removed. To their surprise the work was quite visible underneath; the drawing had not been painted over before the skim-coat was applied. The Hitchcock family then decided to arrange for the work to be restored and to create a documentary about the effort." Word got out and controversy ensued. (12) Some contended that the Hitchcocks had every right to do as they pleased; others opined that the life of the LeWitt work was over and they should let it rest in peace.

    While the family was considering how to proceed they contacted the Menil Collection to learn what the museum's position was about ownership and recovery of the hidden wall drawing. Jonna Hitchcock, daughter of the homeowner, received an email from David Aylsworth, the Menil Collection's Registrar. (14) He wrote:

    As I am sure you are aware, LeWitt's wall drawings are designed to be temporary, challenging the idea of permanence that so much of the art world is based on. The owner of one of his wall drawings does not own anything tangible. Rather, when he acquired the drawing, William Stern purchased the use of an idea. The idea was then executed by craftspeople overseen by the artist's studio and entrusted to carry out the idea satisfactorily.

    The drawing lives on only as a certificate of authenticity and diagram that transferred to the Menil as part of his bequest. LeWitt likened his wall drawing to a musical score. The artistic creation was in the design. The execution depended on talented craftspeople who take the design and adapt it to specific structural circumstances, under the supervision of the artist's studio (and now his estate). By design, they were intended to be on view for an undefined and temporary period of time, painted over, re-created and reconfigured by the owner of the diagram and certificate (in conjunction with the artist's estate) in different locations and at different times. When ownership of Wall Drawing #679 transferred to the Menil Collection, we became its caretaker. When we ceased to own the wall and the house it previously existed in, and could no longer be in control of its environment, it was painted over and its physical life came to an end. This was always the intent of the artist, and is the standard procedure when these works change ownership. While we have not had the opportunity to re-configure or reconstruct the piece, it still exists as a concept and idea. On the attached report it is represented as a tangible object and wall in Mr. Stern's house. But the artwork itself is the intangible idea represented by the directives that passed to the Menil with the bequest of his collection. (15)

    ...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT