VARA Controversy in the Heartland Settled: Verdict to the Artist
This may not play into Yahoo's favor should the dispute discussed yesterday actually go to court. From Artinfo.com:
A federal judge has ruled that artist Chapman Kelley’s Wildflower Works I, a 66,000-square-foot patch of wildflowers he planted in Chicago’s Daley Bicentennial Plaza in 1984, is, as the artist insisted, a work of art, reports the Chicago Sun Times.OK, so this decision, unlike the Buchel Vs. Mass MoCA one, seems sure to stand as precedent. Important among the issues raised during the case were these two, via the Chicago Sun Times:
Kelley brought the question to court after the Chicago Park District removed half the garden three years ago to make room after a bridge linking the plaza to Millennium Park was built. Kelley argued that because the garden was a work of public art, and therefore federally protected, he should have been told about the plans at least 90 days in advance.
Federal judge David H. Coar called his ruling in the case, believed to be the first time an artist using "alternative materials" has successfully sued under the Federal Visual Artists Rights Act (VERA), passed in 1990 to protect public art and its creators, "a great victory for all artists."
[1]Under VERA, the district needed to notify Kelley 90 days before the reduction. Kelley argued he was informed only a few days before the work began, which gave him insufficient time to mount a legal fight or remove the plants.One of the things the justice system is supposed to do is take emotion out of a dispute and weigh the facts, well, matter-of-factly. That's as it should be. When it comes to determining damages for a wronged party, however, I feel it's perfectly appropriate to let emotions at least be considered. Kelley's feelings about this seem rather clear:
Among other arguments, Park District attorney Nelson Brown said Kelley's work was not art protected by VERA because it couldn't be copyrighted and was constantly changing. But [2] Kelley said even traditional paintings change over the years because of light and humidity. On the stand, Chicago appraiser Jane C.H. Jacob quoted Andy Warhol: "Art is anything you can get away with."
Some of the wildflowers still bloom, but Kelley will not visit the reduced version of Wildflower Works.In this instance, the judge has yet to determine the damages. One plant expert has estimate the piece to be worth about $1.5 million, though.
To see what's left would be like "going back to where your mother was run over by a train," he said, explaining it would be "too painful."
Labels: VARA
posted by Edward_ at
7:39 AM
44 Comments:
I feel for Kelley and I know what he's saying, but the hyperbole is a bit offensive to someone whose mother was murdered.
I'm really terribly sorry for you, if that's your situation Anon. How awful.
My first thought was similar: It's not really as bad as your mother being run over by a train, is it? I mean, I've had works of mine destroyed (I lost an entire box of drawings to a water leak recently) and while my work isn't as big and awesome and all as this wildflower thing, I did feel pretty bad about it. But not as if a family member had been killed.
I know artists are supposed to be sensitive, but let's not go overboard.
Now, if it was like my wife being run over by a train...no, wait. That'd be a happy occasion.
vacationed in the Borscht Belt, as a child, did ya Chris?
My real name is Morrie Abramowitz. Tip your waitresses!
This and the prior example of public art work that have been supposedly destroyed though change by the caretakers of the art are nothing more than opportunities to get more money for the work completed. Though the city and yahoo can more than afford to pay these artists additional funds, it is hardly warranted. Decommission the piece, sod it over and buy another work of public art from another artist, that’s the lesson. The level of histrionics from the artist statement are enough to set of the meter of opportunistic and frivolous litigation proceedings. They bought it, they own it, and they can choose to destroy it but not modify it. Then the future decision by any sensible company would be to notify the artist of it’s decommissioning and purchase new public art to fulfill the legal requirements for public art in order to avoid this type of lawsuit. No company is going to allow the fact that they bought a work of art years ago prevent them from managing their business and property which are just as valuable as assets to the company, in fact more valuable in that they have liquidity. These lawsuits will only serve to reduce the willingness of large companies to purchase any large scale environmental work. These artists won the battle and got their money and the other artists lose the war and will never even get the commission, and those artists that do have works in place risk having their work decommissioned automatically to prevent such litigation. Personally I do not see these verdicts as victories for artists.
Speaking as someone who loves plants and has planted many gardens, given plants away in major moves, and lost an entire houseful of plants during the Austin deep freeze of 1989--HELLO! Plants die. They regenerate themselves, after winter. People build on the land where they grow, and they grow somewhere else. That's what plants are about.
This artist is obviously not a gardener. If he'd suddenly lost a rose garden that he'd been pruning and fertilizing and training and treating for leaf rot, he has a right to sue. But WILDFLOWERS??? By my calculations, the wildflowers had a 23-year run. Let go already.
And by what calculation could a patch of wildflowers possibly be worth $1.5 million? They must have been factoring in the value of the real estate.
I think you have to give something here, Anonymous. You write:
that have been supposedly destroyed
but don't give us any reasons for why "supposedly" is a valid qualifier here. There will, of course, be disagreements between artists and collectors about what constitutes "destroying" the work, which is why the law is a good thing (to help resolve such differences in a way that protects the rights of both) in my opinion, but to suggest once someone owns something that what constitutes "destroying" it is up to the owner seems rather anti-artist to me.
In the second case, the issue was centered on whether an artist should have the right (i.e., enough advance warning) to challenge a proposed change in court before it happens. I don't feel that's too much to ask. There's no guarantee they will win (or even decide to pursue the case), but simply to forfeit the right to say what their piece looks like just because someone bought it is to suggest it's not original "art" in the first place, to my mind. Which is what the city or company is trying to tell the world (for all the social and cultural benefits that carries) they purchased. I don't feel it's fair for them to have it both ways.
First of all, I didn’t say it was destroyed, hence the supposed, ask the artist why he considers it destroyed, it was his basis for his litigation.
Secondly, I agree with you, provided notice as per legislation for works already owned and placed. But simply put, this places a chill into a business which says do not buy any new works that may cause the potential for a repeat of this situation. Stick to art which can be moved.
What if you bought a picasso witht he express purpose of destroying it? Oh wait the chapman bros allready done that.
Let us now quote Andy "flowers" Warhol (who also said unironicly that business was the best art):
"Some company recently was interested in buying my `aura´. They didn´t want my product. They kept saying, `We want your aura´. I never figured out what they wanted. But they were willing to pay a lot for it. So then I thought that if somebody was willing to pay that much for it, I should try to figure out what it is."
Anonymous,
I'm not entirely sure why Kelley feels it was "destroyed" actually (I suspect because the city removed half of it), but I wrote rather clearly why Louden felt hers had been "destroyed" (it's conceived to reference the local wetlands, not the local golf course). Given that's why Louden considers her piece to have been "destroyed," your qualification of "supposedly" connotes a disagreement with her. I'm merely asking you to explain why you disagree. If I've misunderstood you, perhaps you could explain that as well.
But simply put, this places a chill into a business which says do not buy any new works that may cause the potential for a repeat of this situation. Stick to art which can be moved.
I don't disagree that businesses might feel hampered by the potential of a lawsuit should they later wish or need to decommission a work. In Chicago, though, that hardly gave them the right to wait until it was too late to inform the artist. Perhaps the artist would have been willing to work with the city on the changes, as well. But not giving the artist enough warning strikes me as inconsiderate disregard and makes the city unworthy of claiming they own a Kelley, which is what leaving half of it in place seems to suggest they still wanted to do.
Zip does bring up an interesting point. If a person or company buys a piece of non-public art -- the kind of thing that isn't out in the middle of the property where people can see it -- and then destroys it, do they get into legal troubles? Are they supposed to inform the artist 90 days before they destroy it? What about that guy who put his elbow through his Picasso?
I guess public art is supposed to be a different thing. The company pays for it (in exchange for some considerations) and then doesn't own the art so much as displays the art for the public.
In which case the art is really in trust. On loan. Which means the company really shouldn't be making changes to it without talking to someone, even if the art appears to be their property (both in the sense of "something they own" and in the more literal sense, as in Kelley's and Loudon's work, of "the patch of earth which they legally possess"). So I suppose talking to the artist is a good concept.
The “supposedly” is required in the statement because the artist is saying the art is destroyed and the city/company says it is not. Hence the basis for litigation. I am not passing judgement but allowing the court to do so. I have not stated my position.
As for the “chill”. Would you as a business person allow for the acquisition of art which from an accounting perspective represents property, restrict you from managing, modifying, destroying or liquidating other property which belongs to your business. Or would you avoid such a situation? Why risk the appropriation of property by virtue of ownership of the art? This verdict serves to restrict the rights of the owner of the art and further restrict their rights to other property they own. Even from a resale point this is negative as I imagine the artists right under the legislation are automatically transferred to the new owner of the property. Thereby reducing value by limiting use. When purchasing these large scale environmental works is the company given tax credit for the loss of this associated property. The best business solution is to avoid the situation altogether.
Art is business, Andy was right, so why would a business look or treat art in a non business context. They are legally required to look after the best financial intrests of the shareholders. This is contraindicative of that.
Exactly, corporations will avoid any kind of permanent or site specific work...I would. More and more art is separated from the public/audience for this reason.
Look at it this way Edward, I as a private collector decide to purchase a Kelly. He makes my entire yard into a site specific work by Kelley. I love it but my three kids get divorced and move back home with 2 kids in tow each. I don’t have enough room in the house and decide that I will have to extend the house. I notify Kelly 90 days prior who then has his lawyer send me a cease and desist letter or else he will sue me for his assessed current value of the work which due to his meteoric rise in stature is now more valuable than the house. One could argue that I now own a valuable Kelley so be happy. In truth I now own an unsellable house to anyone but a Kelley collector due to the site specific nature of the work. As the next owner will inherit the responsibility of custodian and the so will any future owners of the property beyond that . The house and property which isn’t a Kelley but by virtue of having one on top of it has become one. The house could almost be now assessed into the value of the Kelly. But now has a much more limited use and strong liquidity problems. Therefore in purchasing the Kelly I have negated the rights to my house and property unless he or his descendants agree to waive their rights of copyright. If this becomes precedent my bank could in effect call in the mortgage on my property if I buy such a work because I am altering the value, use and liquidity of the property. My bank wants to now that in the event of default it owns a house that call be sold not a Kelley with a very limited market.
Both Anons, you miss the point, which is that there is a quid pro quo going on here. The companies pay for public art in exchange for certain considerations. If the company can then do whatever it wants with the art, then the quid pro quo is meaningless.
For example: Acme Co. gets a 10-percent tax break from Philadelphia for commissioning and displaying Richard Illinois' HATE sculpture. Acme Co. decides it's tired of having its cleaning crew scrape pigeon crap off of it, so they melt it down and sell it for scrap. What happens to that tax break now? Does Acme still get it?
The checks and balances built into the system currently are that the company is allowed to make changes to the art work if and only if they notify the artist in time for the artist to approve or disapprove. In effect, the artist acts as the representative of the public for whom the art was intended -- the public which has traded something (in my example, tax revenue) for something else (a HATE sculpture).
What these court cases are trying to work out, I imagine, is what happens when that system breaks down. Which is what the law is all about.
I apologize for my bad spelling. I should proofread these comments before posting.
Corrected
My bank wants to know that in the event of default it owns a house that can be sold not a Kelley with a very limited market.
On-topic = below
I am cheating.
I need to comment first on the post 3 days ago that was blocked.
David Cauchi was mesmerized by the idea that Chelsea was the art center of the world:
David: it is NOT the center of the world. It is ONE of its center. Assume they are 5 "bigger" chunky places in the world where a lot of things arty "happen", and it would be in the top 3. But because so many things are tied to money in Chelsea, there is a lot more to art than it will be able to exhibit.
Second, to anonymous who hate commenters: well, we are very unlike. In things regarding art I am only interested in exchange and dialogue. Without it, I'm off. I'm not interested by self-sufficiancy and the narrow-mindedness of one-way communication, and I don't understand why so many people indulge into that: I mean, what of a need to communicate but that's only going your way out? Why? Because your audience isn't intelligent enough to reply the "interesting stuff"? Let's assume that's true. Then why the need to write to them? To wave air? To make sure that the one person in the world with the talent to challenge you will not be able to reach you?? (or is it you assume they will be in a position that they will?)
Why should a critic (since this blog is all criticism) should not be intrigued by criticism?
Regarding today's topic:
The issue is about someone's right to alter your art once they buy it. Art is never merely art because the artist says so. I have a right as a viewer to refuse this. So, until the artist sell me their work, it is art in their house. If I buy it and it is in my house, it is not art anymore if I say so. Its original conception was art. What is art is the copyright, the document or image that there was ever an "artist idea" in the realization of the object/project, documents that hopefully the artist have kept in their safe. But to a certain limit, I think someone is able to transform any artist object and call the result "their art" (involving an artist piece in the medium), or "non-art" (which would fit the artist description anyway).
The problem with public work is how so much paper acknowledge pieces as being works of art.
But this is about "social bonne entente". If a great amount of people refuse a work as art (say, in the case of a Serra piece bloking their view while they are going to work), I think the majority has the right to "win" their opinion and discard objects they refuse. It is the reponsability of the artist to then take it back. But things are complicated when they don't "own" the object anymore, is it? So it becomes this eternal question between artist copyright ("right to an artistic idea") and object itself. It always brings you back to the essential questions about what constitute art.
They are gestures, they are movements in the universe, circulations of energy (including of course, matter), and then, temporarely, some of it is called art by sensible minds.
But it is the mistake of artists to assume the results of their movements will become eternal, or to assume all minds should share their own sensibility.
These discussions are futile, an artist should be curious to see whatever happens to their work once it is out in the air, out of their house, and that includes the potentiality that it will become non-art, or something other than their art.
Once you sold your work, it is not yours. What is yours, is the document you made at time of conception, and that you kept as record of an activity that you describe as artistic.
Basically I don't believe that any object/project are, inherently, art. Art is just a circulation of ideas and emotions surrounding the processes of creating or perceiving these artefacts. If someone alters this in ways that are shocking to you, than you realize that the world is complex and people are not sharing your exact same levels of ideas and emotions.
Cedric Caspesyan
centiment@hotmail.com
The legislation upon which the prosecution is based is not limited to corporations and tax law. Therefore any legal precedent would be extended to private ownership as well.
Don't forget that copyrights last for, what...125 years max??
After that they are only owners's rights.
Should bring perspective to this discussion.
Eternal gardens of Babylone my A...
;-)
Cedric Caspesyan
centiment@hotmail.com
(PS: so..the way I understand this... artists merely want to make sure their art remains intact until they die? Laughable)
C.C. said "(PS: so..the way I understand this... artists merely want to make sure their art remains intact until they die? Laughable)"
Actually I believe that the artists would be more reasonable than the descendants. After all they could potentially make more art to sell, the descendants on the other hand are working with a limited pool of resources. It is the descendants that are responsible for an ever lengthening time limits of copyright law.
I don't think descendants are even as much of a problem as corporations, particularly Disney.
Let me ask your opinion Edward. At what point does the rights of the owner supersede the rights of the artist? (or visa a versa if you prefer) At least as related to the matter in question.
The spirit of this law is to protect the artist from plagiarism, forgery and misinterpretation from misappropriation and modification of their art. The limits of this law from literal interpretation are still to be determined in court.
Move too far to the owners rights and you raise the potential for exploitation by a business for commercial reasoning. Conversely too far to the artists rights and you squeeze off the goodwill necessary for making these discretionary purchases.
Of course no matter what you decide each side will attempt to wring from the cloth upon which this legislation is written as much as they can personally gain. That is what businesses do, and as stated earlier art is business.
I do not fault the artist for exerting their rights as a business, I just believe that the after effects of this verdict will prove to be negative for other artists due to the fear of prosecution. If the artist is going to act like a business which it is, then admit to it and stop the dramatic outpourings. But try to remember that if you bite the hand that feeds you then do not be surprised if they stop feeding you.
Let me ask your opinion Edward. At what point does the rights of the owner supersede the rights of the artist? (or visa a versa if you prefer) At least as related to the matter in question.
IANAL, but...
I think the rights of the owner supersede the rights of the artist up until the question of authorship enters into it. Which is to say, until the point that what the owner claims is an original piece by so-and-so has been so altered by the owner that the artist can no longer agree to that.
That will vary based on the nature of the work though. A collector can put a certain photograph in a butt-ugly frame that turns the artist's stomach and still claim to have an original piece by that artist, for example, IMO. A collector cannot decide the figure in a painting needs different color eyes, paint them to suit his/her tastes, and still claim to have an original piece by that artist, however, in my opinion.
I'm hard pressed to say I feel a collector should be in any way legally bound to not destroy a work they paid for. Ethically, perhaps, but not legally. I don't think that's what's at question with these two cases though. Each institution is trying to have it both ways in my opinion: alter the piece to suit their needs, without the input of the artist, and still for all intents and purposes claim they own an original piece by that artist. In the case of Kelley, I'd be curious to hear EXACTLY why damages are being awarded, but it seems to me that the city is obligated to take the entire piece down or leave it in a state the artist will sign off on. It should not be an option, in my opinion, to change it to where it embarrasses the artist and still leave it there for the world to assume that's what they intended it to look like.
You've been harping, Ed, in all these VARA discussions, on this theme of an artist's name being attached to an object that doesn't represent them properly. You seem quite peeved at the notion in all the cases you've brought up that an artist's reputation might suffer when people see their name affixed to an object which has been radically altered.
I think you're ignoring a lot of more interesting points in all these discussions -- for example, my point (which I worked out on the fly while typing) that public art isn't really owned by the corporation displaying it.
I think also you're missing a larger context, which is simply this: Art objects are never stable. They change all the time. Paint pigments fade or react chemically with other elements in the work; paint films crack; sculptures weather, rust; patinas change; corners are knocked off, surfaces scratched, and so on.
If we had to take the artist's name off of every object that no longer represented their vision, we'd have to jettison most of the oeuvre of J.M.W. Turner and a huge amount of Picasso's earlier work; to say nothing of all the objects in the King Tutankhamun show I saw in Philadelphia over the weekend -- works which don't even have artists' names attached!
It seems to me if, as an artist, you choose to work in a medium like "wildflowers," or "marsh grass," you have to admit the work's going to change significantly over time. In fact, you'd have to admit that's part of the work's appeal.
Now, in this case, we're lucky the artists are still alive to check in and complain, or maybe fix, the works. So I'm not begrudging them that. And also, my argument above -- that corporations hold their art pieces in public trust -- still holds, I think.
But to keep hammering away at your hobby horse -- that it's not art any more if the artist disowns it, and legally their name should be removed from it -- misses these points. Further, it only highlights the problems with your underlying thesis -- which we've discussed before -- that "art" is that which an "artist" says it is. If art lives or dies entirely by fiat, yes, you have problems like the ones you've detailed. But if art is something arrived at by consensus, it's a lot easier to deal with the cases.
You've been harping, Ed, in all these VARA discussions, on this theme of an artist's name being attached to an object that doesn't represent them properly. You seem quite peeved at the notion in all the cases you've brought up that an artist's reputation might suffer when people see their name affixed to an object which has been radically altered.
Well...securing the reputation of an artist is a gallerist's most important goal, so this can't be that surprising considering the source, can it?
I don't disagree with your other points, but I don't see where I'm undercutting them in anyway by highlighting my primary concern in this.
I agree in principle with what you have said.
But I do not believe that the planning department nor the grounds maintenance department put as much thought into it as you give them. I doubt that there were meetings to discuss how to make the changes requested of them while maintaining the integrity of the work and retaining the value or prestige of ownership.
And hence lies the legal problem. If the damage was without malicious intent, then are they culpable? Was the grounds department told that the long grass was an integral part of the work or were they simply told that they have a city order to cut down the long grass. They may have taken them just to be funky lights, not art.
If damages are to be awarded, then why should the artist be awarded based on current value. Since when do artists retain a percentage of proceeds of capital appreciation. They were never in a position to gain from said appreciation. The alternative for the artist would be the loss of the work altogether and the prestige of having your work in a corporate collection. In both the Loudon and Kelly cases I would say they have the right to demand the work be taken down without monetary compensation and be awarded legal costs. In both situations no real damage has been accrued by the artists in terms of reputation except that they will no longer be part of these corporate or municipal collections. But unless the original commission placed a proviso of perpetual exhibition and maintenance it is in the owners rights to do what they want with the property. They just cant misrepresent it. They have in the artist opinion so decommission it.
And hence lies the legal problem. If the damage was without malicious intent, then are they culpable?
Again, not a lawyer, but I'm not at all even arguing about culpability. If they grounds keeper accidentally mutilates the piece, apologize to the artist and decommission it or apologize to the artist and pay them to restore it. Just don't suggest to the artist (as Yahoo has done) that they should be happy about the changes they were not consulted on.
I think we agree on most of that though...
If damages are to be awarded, then why should the artist be awarded based on current value.
Another question a lawyer should answer. There may be very good reasons, but I'm not sure. I'll be surprised if the judge in the Kelley case rules for $1.5 mill in damages, actually. That estimate was merely a reference point, I'm sure.
Ed sez:
I don't disagree with your other points, but I don't see where I'm undercutting them in anyway by highlighting my primary concern in this.
You're not exactly undercutting other points so much as ignoring them altogether in favor of points which really have nothing to do with the cases at hand. I don't think the artist's intent -- or feelings towards the now-mangled pieces -- are relevant in the last two cases we've discussed. (Büchel's intent was probably relevant.) Everyone agrees that what we have are two works of art which have been altered. The question is: Are the alterations enough to qualify as outright destruction? And, if so, who's responsible, and should they be held accountable?
Trying to take artistic intent into this equation muddies the waters, and talking about whether or not the artist's name should be removed is a side issue. Artistic intent cannot be quantified.
Remember VARA is not about art in general, it's about public art. It's about protecting the public's interest in a work of art, using the artist as a guide.
Chris, I think you're leaving out a big part of the Louden story. Yahoo made changes to the piece and suggested to her that she should be happy with them. This has everything to do with the case in point.
The lenghtening of Disney's rights is a huge debate in many copyrights forums.
The owners' rights are limited. If you go to the Frick Museum, you are not allowed to take pictures of the pieces because you are inside a private building. If they pass pieces to another museum, than museum staff don't permit photographs because it is too complicate to deal with rights when so much material are on loan from many different places.
But potentially, and you don't need to be Louise Lawler for this, if you catch the piece in between spaces, while it's being transported, you have a right to take a picture if it is old and have bypassed copyrights.
There is also the fact that these considerations change from country to country. I was asking about reproductions when Remote Viewing was on at Whitney (abstract art exhibit), about why the catalog featured so little repros, and someone at the museum said that some owners didn't give rights to repros. I found that reply very strange, and always dreamed to investigate that.
Edward The Confessor:
>>>I feel a collector should be in >>>any way legally bound to not >>>>destroy a work they paid for.
There was a case in Japan when authorities refused that a Van Gogh be buried at the request of a deceased. Sometimes a work has so much cultural value that social consensus relieve any power to owners' personal wishes. In the case of contemporary art, many pieces are officialized as art merely by a tiny group of people: gallerist, artists, institutions, governments, etc, whereas the social consensus never agreed to them.
"Eat that Serra plate you ignorants!!" (I'm kidding, I love Serra but I agree to how "Tilted Arc" was irrealistically agressive)
Edward:
>>>it embarrasses the
>>>>artist (to) still leave it >>>>there for the world to assume >>>>that's what they intended it to look like.
I agree to the extent that these works involve large consensus, if not city papers confirming that the pieces are accepted as the artist art.
In the Yahoo case, Yahoo should remove the artist name, but to some extent they could still do what they want with the object. In the city case, it is important to remove everything, because public art involves citizen rules and money and ethics about how we all deal with our artists as a society. Scrap it all off, and write a disclaimer next time "sorry but, permanent work may involve that shit happens too and that your work become not so permanent in the future. Signed: your neighbors". That garden had lived its life. One day we'll say the same about a room filled with earth in Soho. Nothing is permanent. And to follow Chris about Tuthankamon, even the pyramids weren't permanent, we had to dig them back up.
Edward:
>>>securing the reputation of an >>>artist is a gallerist's most important goal, so this can't >>>>be that surprising considering >>>>the source, can it?
You could also say: "well, Artist, I will only be responible with what you show here in the space,
and I don't ever want to hear about your stupid legal problems with city parks, Ever, Ok?!: Now..Are you still willing to exhibit?". Lol.. I probably
would.
Cedric Caspesyan
centiment@hotmail.com
Cheers,
Cedric Caspesyan
centiment@hotmail.com
I'm wondering half-seriously if artists are going to get another law written for our protection ever again, given the possible edge cases: Cristoph "The Incompletist" Buchel, Chapman "My Art Was Mowed" Kelly, heaven knows who else.
Oh, and VERA? Priceless. Reportage at its finest, there.
Ed sez:
Chris, I think you're leaving out a big part of the Louden story. Yahoo made changes to the piece and suggested to her that she should be happy with them. This has everything to do with the case in point.
I'm not sure what her feelings have to do with it except insofar as VARA has her acting as the representative of the public. The bottom line is not whether or not her name should still be attached to the piece; the bottom line is, did Yahoo's landscapers wreck a work of art (at the behest of the city government, no less), and, if so, should they a) pay to fix it or b) remove it? And if b), what happens to the quid pro quo?
You wrote this is a "story about the rights of a corporation (Yahoo) clashing with the rights of an artist (Sharon Louden)." I don't think that's the case.
Oh, and VERA? Priceless. Reportage at its finest, there.
Yeah...but I keep wanting to write VERA as well, so I understand the impulse.
As for those arguing that permanence is a fantasy, well, yes...only there's a big difference between natural aging and premature interference, no?
I'm not at all sure I understand your point any more Chris.
I'm actually reading VARA right now. It says specifically, "...the author of a work of visual art...shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and...to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right".
In other words, Louden is perfectly within her rights. And much of what I've said about VARA is wrong (based as it was on discussions here and not on the actual legislation).
Although it's still not a clash of Yahoo's rights versus Louden's rights: Only Louden has the rights in this case. Unless she signed some kind of contract, which would need to be scrutinized by teams of lawyers, of course.
A couple of points of clarification:
1. The protections of VARA only last during the artist's lifetime (so no heirs telling Yahoo which grasses to plant).
2. VARA applies to all works of recognized stature (which has not been well defined, but which most people would agree includes the works being discussed here), regardless of who owns it or where it is displayed. The reason we hear so much about it in the "public art" context is that the nature of these works tend to trigger questions about what precisely constitues modification/destruction that paintings and drawings usually do not.
3. VARA specifically addresses the Turner hypothetical above by carving out normal deterioration caused by fading and break down of materials etc.
4. An artist can waive their rights under VARA. This is particularly crucial to the discussion since given the vagueries inherent in VARA I feel that most corporations and artists who enter into a commissioned "public" art type project would be better served by clearly defining in advance what is acceptable (trimming grass, replacing malfunctioning fake reeds are okay, replacing the grass and damaging the fake reeds not okay). Likewise this puts the corporation (and their attorneys) on notice and then proper protocols can be put in place for when the groundskeeper decides to fire up the lawn mower.
For those of you truly interested in this topic, I would suggest actually reading the VARA statute-- it is very short and answers many of the questions that have been posed here.
The last few posts have brought up a new and probably important issue: the necessity of contracts. I believe the judge in the Buchel case stated it pretty plainly that that entire mess could have been avoided with even the barest of a contract between the artist and the museum. The same would go for any of these cases. 'Get it in writing'. Don't handshake it and believe everyone is going to behave with grace and generosity.
Re the question above about why an artist should share in the monetary appreciation of a work (or why a destroyed work should be valuated/compensated at its present value rather than at its value when originally sold/commissioned:
This is not a completely new idea. There is a statute in some states that says that artists should get a percentage of the profit on the resale of their work. It's hard to enforce, but it is there, and I think it's a good idea. If you sell a piece when you're young and unknown for, say, $500 and later your reputation soars and the collector sells that piece for $5000, I think that by nature of your authorship of this piece of cultural capital, you should benefit from the increased value, which has turned into liquidated profit by nature of the collector reselling it.
This shouldn't necessarily apply to public works that degrade over time due to the nature of their materials (grass, wildflowers, etc.) even if the work was altered or destroyed by humans. These kinds of works are inherently ephemeral, almost like performances that eventually end.
I wonder if this issue has come up in the resale of very conceptual works. Does anyone put into auction or otherwise resell those "instruction" pieces, or other works which don't exist in actual space? How about that guy who said something to the effect that his work is "in all the shoe shops in Amsterdam"? Could that piece be destroyed and could he then be compensated (assuming he could convince anyone to buy it in the first place)?
Sorry, I rambled here, stream-of-consciousness style.
ps
Ed, to paraphrase your favorite quote, on the right, if someone destroyed the shoe shop piece, then had to pay for it, it still might be worth it.
In both these cases, what is "right" is nebulous and we can argue about it for decades- what is concrete, though, is what the contracts actually said.
And in both cases, the corporation and the city signed contracts with the artists that spelled out certain things. Which is the grounds for both lawsuits.
Corporations prefer not to be bound by these types of contracts- but in cases like Yahoo, the desirability of building in Sunnyvale outweighs the negatives of taking on a contract with an artist. Other corporations are free to build down the road in a town that doesnt have such a law.
In other words, both Yahoo and The City of Chicago are big boys, who had lawyers go over the contracts before they signed em. If, based on those contracts, the artists can get money or force restoration of the artwork, then, morals or no morals, what I, or you, or Oprah thinks is "right" is pretty meaningless.
One point that has not been brought up, that I find ironic, but not unexpected, is that the bridge in question, that displaced Kelley's piece, was a Frank Gehry bridge. One "artist" destroys the work of another. And I would bet that nobody from Gehry's office even thought about the art, or notifying the artist- after all, who could be more important than the great Frank Gehry?
'Decommission a work' is a horrible phrase.
I just want to apologize for misunderstanding the discussion here. FBoyd up there is right -- reading VARA is actually pretty easy. My only excuse for not doing so earlier was I assumed it was some DMCA-like monstrosity unreadable by humans. In fact it's quite concise and comprehensible.
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