The Curious Case of Cady Noland and the Disappearing Cabin

• Publication year: 2018

The Curious Case of Cady Noland and the Disappearing Cabin

Amanda Hoefer
University of Georgia School of Law

THE CURIOUS CASE OF CADY NOLAND AND THE DISAPPEARING CABIN

Amanda Hoefer^*

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I. INTRODUCTION.....................................................................................................242

II. BACKGROUND.....................................................................................................243

III. ANALYSIS.............................................................................................................250

IV. CONCLUSION......................................................................................................254

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I. INTRODUCTION

An artist creates a work, sells it, and lives happily ever after with a check in pocket—right? Or are artists afforded some rights to the quality of their work even after the sale?

In July 2017, the renowned artist Cady Noland filed a lawsuit in the Southern District of New York seeking the destruction of Log Cabin Blank with Screw Eyes and Café Door (Log Cabin), a wooden sculpture formerly attributed to the artist that had since been disavowed by Noland and the subject of various legal disputes.¹ Log Cabin, created by Noland in 1990, was purchased by German art collector Wilhelm Schurmann the same year, and was installed on view outdoors in 1995 at the Suermondt-Ludwig-Museum in Aachen, Germany.² The piece, which was displayed outdoors for approximately ten years, was evaluated by a conservator in 2010; this conservator recommended that all of the logs should be replaced.³ As a result, "the entire edifice" of the piece was replaced, and the original was discarded.⁴ Noland was allegedly informed about the refurbishment of her work for the first time after the newly conserved Log Cabin was sold by Galerie Michael Janssen to Scott Mueller, a collector in Ohio, in July 2014.⁵ Shortly after the sale, Noland faxed Mueller to disavow the piece, writing that the Log Cabin he had purchased was not an "artwork," and that it had been repaired without her consultation and consent.⁶

What might seem to be a purely symbolic gesture from Noland to signal her displeasure with the galleries and conservators who altered her work without consulting her had significant economic ramifications for all involved. By disavowing her work, or refusing to have her name associated with the work, Noland stripped Log Cabin of its economic value.⁷ In addition, Noland is currently suing the gallery involved in the restoration of her work for violation of her moral rights and copyright under the Visual Artists Rights Act (VARA), a

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statute affording artists control of their work after sale or transfer of a copyright.⁸ Noland's complaint raises questions pursuant to her rights under VARA that have not been conclusively addressed by the courts yet, including what constitutes negligent restoration under VARA; what intellectual property rights remain after disavowal; and how conservation of art intersects with the artist's copyright in her work.⁹ This Note will address the distinction between moral rights and intellectual property rights; the moral rights afforded to artists in the United States; the rights afforded to Noland after the sale of Log Cabin; and the tension between an artist's right to the integrity of her work, and the responsibilities of a gallery and auction house to maintain, restore, and conserve the works that they hold.

II. BACKGROUND

Art, literature, and other original works of authorship have traditionally enjoyed certain protections not afforded to standard consumer goods under a variety of intellectual property doctrines.¹⁰ These rights have traditionally included an artist's copyright, which protects artists from those who would unscrupulously reproduce their work.¹¹ Artists also enjoy a set of protections related to how others might exploit their work and reputation for their own gain.¹² Moral rights aim to protect society's interest in an artist's ability to create work that reflects her vision and ethos by allowing an artist a right to put her name to her work and to prevent any distortion or mutilation of that work.¹³ "The key concept to remember is that moral rights are not traditional property rights and do not purport to protect property interests. Rather, they are a separate set of rights, more like rights of personality or civil rights, which protect the artist's unique extension of herself."¹⁴ Moral rights may protect an artist's financial interests by allowing the author to take credit for her work and thus profit from its sale.¹⁵ However, moral rights are not entirely economic in purpose.

Moral rights seek to protect the artist's creative process by protecting the artist's control over that process and the finished work of art. If artists feel more secure about the treatment they as creators and their creations will receive, they

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are more likely to create. Recognizing moral rights is one way a society can encourage artists to create.¹⁶

When one buys a typical consumer good, such as a chair, he or she may typically do whatever she pleases with it, precluding the manufacturer from any sort of continued interest.¹⁷ For works that are protectable under moral rights laws, the rights of the artist take precedence over the property rights of the consumer based on idea that art transcends commerce, and that art is "connected to personhood, to dignity, to something that [cannot] be commodified."¹⁸ Art differs from your typical consumer good because it is an extension of its creator's personhood.¹⁹ To incentivize the emotional labor and vulnerability required to produce visual art, an author retains control over the work she has created even after it is sold, and the author is no longer bound in privity to the purchaser.²⁰

The United States enacted VARA in 1990.²¹ Tacked onto The Copyright Act of 1976, VARA was passed to bring the United States into compliance with the Berne Convention for the Protection of Literary and Artistic Works, which required member nations to, at minimum, protect the rights of integrity and attribution.²² VARA trains its focus onto a relatively limited class of artists, granting moral rights to authors of "a work of visual art."²³ To qualify for moral rights protection under VARA, the author must produce an original or limited edition painting, drawing, print, sculpture, or still photographic image.

A painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.²⁴

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Reproductions, such as a mass-produced print of a painting, are not entitled to the rights of integrity or attribution.²⁵ An author of such a work is then granted the rights of attribution and integrity to her work for the duration of the author's life.²⁶ An artist may waive her moral rights, but may not transfer her moral rights to another party.²⁷ VARA specifies that an artist's moral rights over her work are distinct from her property rights; an artist who transfers her copyright does not waive her rights to attribution and integrity, and an artist who waives her moral rights does not also transfer ownership of the work or its copyright.²⁸

"The right of attribution, also known as the right of paternity, gives the artist the right to have her name accurately associated with her work,"²⁹ and to prevent the use of her name as the author of any work that she did not create.³⁰ In practice, an artist may insist that her name appear on the art and sue if his or her name is elided from the work.³¹ This right creates a "chain of title" from the creative process to the production of the work itself, allowing an artist to be credited for her work.³² This right also protects the artist's economic interest in being able to sell work under her name and to build a portfolio of works representative of her creativity.³³

The right of integrity is directly linked to the maintenance of an artist's reputation, allowing the artist to prevent her work from being distorted, mutilated, or modified without her permission.³⁴ The artist maintains this right after she transfers ownership or copyright in the work to another party; as such, any new owner must consult the artist before making any changes to the work.³⁵ The statute distinguishes modifications of visual art as a result of: the passage of

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time, the inherent nature of the materials, and conservation or public presentation from impermissible modification—so long as the modification was not caused by gross negligence.³⁶

The right to integrity also encompasses the artist's right to disassociate from her work when that work has been irrevocably compromised.³⁷ An artist may disavow his or her work when that work is materially altered in a manner that the artist considers prejudicial to her reputation.³⁸ For instance, if an auction house damages the pedestal of a sculptor's work in an egregious or noticeable way, then that artist may demand that the work be removed from auction under her name.³⁹ This disavowal can be as informal as an email or fax that demands disassociation from a work; no court order, process, or notice to the consignor or owner of the work is needed.⁴⁰

These narrow protections work in conjunction with the United States Copyright Act to protect an artist's economic interest in profiting off of her work, and to maintain artistic integrity in the context of the artist's brand or reputation.⁴¹ For the most part...