The Destruction Gap: A Study of the Unprotected Societal Interest in Privately Held Artworks.

• Author: Schmitz, Jessica

1. INTRODUCTION

   Imagine putting a Warhol through a washing machine, a Rembrandt in a recycling bin, or a Seurat in a shredder. If you are the lucky owner of a masterpiece by one of these artists you may take any of these actions and face no legal repercussions, thereby destroying the artwork and removing it from the cultural landscape. (1) Our understanding of world history would be neither as beautiful, illuminated, nor as informed if artworks of cultural significance like these were destroyed. (2) For example, little would be known of the ideologies of pre-historic civilizations but for the sculptures, wall paintings, and other artistic endeavors our predecessors have left behind. (3) Beyond their historical significance, these original works of art can improve critical thinking skills and the viewers' mood. (4) Thus, there is a general societal interest in preserving our shared artistic history for generations to come. (5)

   This societal interest, however, is not itself a generally recognized property interest. Further, it must co-exist with the owner's own recognized interest in the work as personal property and the artist's recognized interest as protected by copyright. (6) Thus, there are three competing interests in any artwork--that of the public, the collector, and the artist--and each interest holder has different rights to destroy or prevent destruction. Consequently, who makes decisions related to a work of art is a complex question.

   Private collectors have played an essential role in conserving art, as they often preserve works that would otherwise be ignored or abandoned. (7) However, even though collectors serve this positive purpose for society, they are subject to no formal legal responsibility for the art's care and protection. (8) If they so choose, this unqualified ownership permits collectors to indulge in a private desire to destroy art, thereby eliminating public benefits. (9) As art endures long after an individual owner's sensibilities have been "relegated to history's attic" there is a collective interest in protecting it against an owner's inclination to destroy it. (10) This collective interest is particularly important when the work is one of historical significance and recognized stature that cannot be easily reproduced.

   This Note will review two safeguards against the destruction of artwork held by private collectors--droit moral laws and museum deaccessioning regulations--and present the legal gap--the "destruction gap"--that remains in protecting a societal interest in such works. Part II assesses the various interests in a work of art, the historical development of safeguards to protect these interests and analyzes the safeguards' weaknesses. Part III presents recent developments in these safeguards, and Part IV suggests gap-filling measures that could be enacted to resolve these safeguards' weaknesses.

2. LEGAL BACKGROUND

   To understand non-ownership interests in a work of art, including society's general interest, it is critical to first recognize the broader landscape of interests that exist in any given piece. This Part begins by providing an overview of these interests, followed by a closer look in the subsequent two sections at the current safeguards that have arisen to protect non-ownership interests - droit moral laws and museum deaccessioning regulations.

   1. Ownership and Destruction

      Under the traditional labor theory of property law, one who mixes their labor with an article is the owner of the product. (11) This simple formulation, however, is not easily applied to a creative, commingled product. (12) When an artwork is produced, there may be multiple parties claiming an ownership interest--a copyright interest in the one who created the work intellectually, (13) a personal property interest in the one who completed the work through physical labor, and a personal or real property interest in the one who later purchases the work. (14) For example, if an aerosol artist puts a painting on someone else's building, the building owner's real property interest would typically grant them exclusive dominion over modification of the property, but an artist's copyright interest also grants the artist exclusive dominion over modification of the work. (15) Therefore, in this situation, akin to a forced co-ownership, who decides the fate of an artwork is not always clear.

      The conflict that arises from this forced co-ownership demonstrates that the artist's interest is somewhat protected through copyright law. (16)

      However, for the general societal interest in preserving artwork, there is no such legal avenue through which a concerned party may intervene. This is particularly true in the United States, where individualistic ownership rights are praised, and interference with such rights is feared. (17) A famous art collector, Douglas Cramer, parroted this sentiment when he said, "I don't care if you have a thousand pictures in your possession, you have an American right to dispose of them as you chose." (18) American jurisprudence exemplifies this tension between the "private property rights of the individual and culturally legislated imperatives of the commonality." (19)

      The tension that arises from this clash of interests is felt poignantly in the realm of art destruction. (20) Historically, art was viewed largely as the product of religious life or social power, and art destruction was largely driven by clashes of power or religion. (21) For example, when a conqueror took over a new city they regularly stole or destroyed artwork to evidence their power. It was only beginning in the 17th and 18th centuries that the radically secular idea of art as the work of individual genius took hold. (22) After the value of an artwork in itself was recognized, efforts were undertaken to protect these cultural remains from destruction. (23) This goal was first recognized in American legislative history during the Civil War when Francis Lieber included in the first military code of conduct a clause that said, "In no case shall [works of art] be...wantonly destroyed or injured." (24) An expansive history of protecting art, specifically from war and looting, followed from this time. (25)

      Although the history of art destruction is mostly filed with stories of politically and religiously motivated acts, there are unfortunate instances of intentional destruction at the whim of the owner. (26) Artworks may be intentionally destroyed by a variety of persons, including those who commissioned the artwork, collectors, the artists themselves, and the subjects of the artwork. (27) For example, one collector purchased a work by Gustave Courbet with the express purpose of destroying it. (28) Since the time of the Lieber code, Congress has enacted further laws to try and combat such destruction, such as national landmark laws. (29) However, these laws only offer protection as long as the art is not owned by a private collector. (30) For example, France enacted similar laws that restrict the sale or export of certain works it considers part of the national heritage, but once sold to a new owner within France, that owner owes no obligation to the public. (31) Therefore, once in private hands, a priceless Degas or Monet could disappear forever.

      The cultural laws that have been enacted are important resources for protecting national heritage, but none of them deal directly with protecting society's interest against destruction by private collectors. The tension between private ownership and a general societal interest leaves open a destruction gap. The analysis that follows reviews two safeguards that allow a non-owner interest holder to exert at least some influence to protect an artwork from destruction and fill this gap: droit moral laws and museum deaccessioning regulations.

   2. Droit Moral (Moral Rights) Laws

      The moral rights theory, first accepted under French law, recognizes that there are two elements to creative works: "the economic aspect, which treats the works as a good in commerce, and the personal aspect, which treats the work as an expression of the author's personality." (32) Droit moral laws were created to protect this latter element. (33) Under droit moral laws, art is not just an object but a part of the artist's personality that embodies their reputation. (34) These laws entitle artists to protect their reputation by preventing others from altering their works. (35) The moral rights provided under droit moral laws are personal to the artist and exist independent of the artist's copyright. (36)

      Droit moral laws were first adopted by the Berne Convention for the Protection of Literary and Artistic Works in 1886. (37) Although the United States became a signatory in 1988, Congress made clear that American participation did not confer any "moral rights" on artists in the United States. (38) It was not until the passage of the Visual Artist Rights Act ("VARA") of 1990 that artists received moral rights in the United States, and to date, VARA remains the only federal law which explicitly protects these rights. (39) Even after its passage, VARA offered fewer protections than similar provisions of the Berne Convention. (40) In part, droit moral laws were slower to take hold and more limited in the United States because they defy the American ideal of complete ownership. (41) When California was passing a law similar to VARA, one legislator's adverse reaction to this type of regulation elicited the statement: "it's mine, I can do anything with it, I can cut it up if it's too big for a certain place that I want to put it." (42)

      VARA explicitly protects two set of rights: attribution and integrity. (43) Attribution is the right of an artist to be recognized by name as the author of their work, and integrity allows the author to prevent destructive and mutilating changes to their work even after title transfers. (44) The latter of these rights is what protects against destruction. Under VARA...