A Decidedly French Bonfire of the Vanities

If you are collector, then you know how it feels to discover that the object you purchased is a fake, a copy, or a reproduction.  Once, an art dealer friend grew very excited about a painting he bought at an estate sale, thinking he had discovered an original 19th century work for a song, only to be told – by me – that it was in fact a rather so-so copy of a portion of a fresco by the 16th century Venetian Renaissance painter Paolo Veronese.  Since then, he tends to gives me a jingle when he is considering purchasing a painting that he is not 100% sure about.

We should of course draw a distinction between the three categories described above, at least insofar as these terms apply to the art world.  A fake is an object created with the intent to deceive.  Copies and reproductions on the other hand, are made for various reasons.  For example, artists whose work was very popular in their own lifetime would sometimes paint copies of their own paintings, or have their assistants do so for them.  Later artists will often copy works by earlier artists, trying to study and understand the techniques that were employed.  Reproductions do not come from the original artist’s studio, but are made through a variety of methods, for the sake of making a popular image available to a wider audience.

So one cannot help but feel some pity for British businessman Martin Lang, who purchased a painting which he believed to be by the prominent Modern artist Marc Chagall.  Not only has a committee of experts in Paris decided that the painting is a fake, but under French law Mr. Lang will probably not get his painting back.  Instead, Chagall’s heirs have the right to insist that the painting be burned in front of a French judge.  As an example of ridiculous French jurisprudence – though I repeat myself – this result is rather unfortunate, to say the least.

However it is so not for the reasons pointed out by art expert and BBC presenter Philip Mould, who in effect unintentionally created this mess for Mr. Lang by sending the painting to Paris.  The issue of whether or not the painting is determined to be genuine now or at a later date is almost beside the point.  It is a pity that Mr. Lang will have to suffer the loss of a bad art investment, but the old warning of “caveat emptor” applies when it comes to all commercial transactions, whether one is buying a home, or a second-hand car, or a (purported) Chagall.  Sometimes there are recourses available to the injured purchaser, and sometimes not.

Rather, the stink to be raised here has to do with the question of property rights in general, and the reasonableness of the remedies available to both parties in this dispute.  In the case of the Chagall estate, the argument is that the existence of a fake dilutes Chagall’s legacy, much in the way that the fellow selling fake Louis Vuitton bags on the pavement outside the Metro station dilutes the value of the LVMH corporation.  Chagall’s reputation as an artist is deemed to suffer as a result, and although no one seems to be mentioning it in the press I have read so far, of course the prices of Chagall works would, in theory, go down as well, thus negatively impacting the income of his estate.  By contrast, all Mr. Lang will lose in this dispute is face, since it is embarrassing to find out you have been swindled, as well as the money he originally plunked down for the painting.

Yet as is usual in French history from 1789 onward, the solution to the dispute is so completely out of proportion with common sense, so ignorant of possible other, more civilized ways of addressing the problem, that it quite rightly makes the Anglo-American mind reel.  In the interest of protecting the property rights of the Chagall estate in France, the French are perfectly happy to violently interfere with the property rights of a man in England, who was acting in good faith.  Surely there must be other ways of making sure that this painting does not mistakenly gain the Chagall imprimatur and negatively impact the Chagall “brand”.

I am not suggesting, necessarily, that one grab a big Sharpie and write “FAKE” all over the back of this picture in permanent ink.  The point I am trying to make is that whether or not this is a Chagall (and assuming, arguendo, that it is not), the penalty imposed on the purchaser of such an item is so extreme as to be outrageous.  The decision on what to do with a fake of this kind ought to be the owner’s, as the bona fide purchaser for value, and not that of a committee located in another country; while the Chagall estate has a legitimate interest in protecting and preserving the intellectual property rights of the artist, the mere existence of a copy of a Chagall painting ought not to automatically consign that piece to the flames.  Such an attitude betrays the fact that the real motivation here is not to protect the integrity of a dead artist’s work, but rather to continue to line the pockets of his heirs, until all residual ownership rights are finally exhausted.

Don’t believe me? The Louvre, among many other museums in France – and indeed as is commonplace throughout the art museum world – is full of paintings which bear labels such as “Attributed To”, or “Circle of” or “After” world-famous, dead artists.  These works are exact copies, near approximations, or variations on the works of other painters, though not believed by experts to come from the hand of those original painters.  Whether the creators of these works intended them to be fakes, copies, or reproductions, we do not know.  Yet they continue to hang on the walls, rather than go to the scrap heap, because no one is complaining about them being a source of lost revenue.

Using the line of thinking employed here under French law, when Mr. Lang’s “Chagall” is taken out and burned – presumably on the Place de la Concorde, where countless other French legal injustices have taken place – I challenge French art institutions to be honest, bring out their own fakes, and burn them as well.  No more fake Leonardos, no more pseudo-Rubens, heave another mock-Poussin on the fire, boys. Let’s just have a big bonfire of French vanity for all to enjoy, and toast our marshmallows over the demise of common-sense property rights in jurisprudence.

The painting in question.

The painting in question, supposedly by Marc Chagall c. 1909-1910

Civilization and Contemporary Art – Part II

Yesterday in the first half of this two-part blog post, we explored the question of why a lack of respect for property rights among certain contemporary artists and their aficionados is a departure from some of the basic principles of our civilization.  Today we look at a different, but not unrelated, aspect of how contemporary art and civilization interact.  Specifically, I would like us to think about how much residual right should an artist have in their work?

The Visual Artists Right Act (VARA) was passed by Congress back in 1990, and you would be forgiven for never having heard of it, gentle reader.  In a nutshell, the law was designed to protect artists from having their name attached or detached from works of art without their permission, and from having their artworks significantly defaced or vandalized during their lifetime.  This latter protection includes work which they themselves no longer actually own.  It is in effect largely a moral law, rather than a commercial one, but its application can have significant financial implications.

Back in 2008, mural painter Kent Twitchell received a $1.1 million settlement under VARA from the Federal government and private contractors, who had painted over one of his works, a monument to pop artist Edward Ruscha, without his permission.  The mural was located on the outside of a government building in Los Angeles which was being renovated, and no one contacted Twitchell to let him know that his painting was being destroyed, either to allow him the opportunity to have it removed or for him to seek some sort of legal remedy to prevent its destruction.  Whatever one feels about the art in question, or the size of the settlement, we can certainly understand why an artist would be upset to see something he created being destroyed.  But what happens when an artist decides that the laws protecting his work do not go far enough?

In an article published yesterday in The Art Newspaper,  a curator claimed that prior to a retrospective at the Metropolitan Museum of Art back in 2011, artist Richard Serra made a number of changes to works which had been lent to the exhibition.  In some cases, Serra re-created works of his which had been lost or irreparably damaged, and rather than list their new creation date insisted on dating them from the time when their predecessors had been created.  It was also alleged in the article that Serra threatened a private collector that he would “withdraw” a work of his which was owned by the collector from the owner’s collection, if Serra was not allowed to make the changes he wanted – a charge Serra himself denies.

Serra is arguably among the most prominent contemporary artists working in America today; his works are sought by collectors and museums all over the world.  To be frank, I loathe his work.  Yet let us remained focused not on the man’s art, but on his mindset.  To that end, I found this quote rather telling:

Serra says it is not important whether audiences know which version they are seeing. “There’s no aura of originality because it’s an anonymous surface. It’s a difference without a value. I try to keep surfaces as anonymous as possible.”

To re-create a work of art and then back-date as per Mr. Serra is simply ludicrous, and insulting not only to art collectors, museums, and historians, but also to future generations, who will have to try to figure out exactly when he created what.  If I wrote you a letter today, but dated it to October 12, 1992 because I am copying a letter I wrote you then, does that make the result an actual letter from 1492?  Of course not.  So to argue that re-creating a lost work and back-dating to the past, rather than in the present when it was actually made, is completely nonsensical, and frankly rather disturbing.

This bit of irrational art-speak nonsense on the part of Mr. Serra aside, the really interesting contrast here is between the Twitchell case and the Serra incident.  The former involved the destruction of a public work of art, owned by the public, while the latter involved a work owned by a private individual.  Under long-established principles of our law, a private owner has at least a reasonable expectation that he can do what he wants with the property in his possession to which he owns clear legal title.  It appears that what some contemporary artists are attempting to do, under VARMA and similar laws elsewhere, is to assert that they retain a type of ownership which they can assert at any time they see fit, even once they are no longer the legal owners of one of their works.

Throughout art history there have been examples of artists who, after one of their works leaves their hands, have asked the new owner if they can have the piece back, in order to make some changes or repairs.  Whether or not they are granted this request has always depended largely on the good will of the owner.  While VARMA tries to offer some protections, out of interest for preserving the artist’s reputation, clearly this law was not intended to allow an artist a right to take back possession of his work.

Imagine that you were fortunate enough to possess an original work of art by a major living artist, who one day knocked on your door and insisted that he come in and see how well you were taking care of his work, and that he be permitted to carry it away so that he could make some alterations to it.  You would be well-within your rights to call the police, but then what would the courts ultimately decide?  Do you actually own the work of art, or do you simply possess it in some sort of bizarre tenancy in common?

This is now a serious question, as ridiculous as the situation may be, because more and more artists like Mr. Serra will be using this law to assert what they believe this law gives them, morally.  There is a growing perception among some contemporary artists, and the collectors too afraid to challenge them, that artists have a right to reclaim their work from whoever has subsequently legally purchased it.  If this were to become legal precedent, it would be so outrageous a development in jurisprudence as to call into question many aspects of our real property system, and all for the sake of some very egotistical, well-paid artists with the deep pockets necessary to bring such claims.

As is so often the case historically, the art world is ahead of the curve when it comes to how society is going to change over time.  Recognizing that this is the case, it must be said that far too little attention is being paid to what is going on in contemporary art by those who are simply on the lookout for the next outrageous act of anti-Christian blasphemy.  By staying so narrowly focused, they miss the truly subversive thinking that is going on right alongside such works.

That being said, in considering these matters it is important to point out that not every artist working today believes that the ideas and behavior described in these blog posts are legitimate ways of either thinking or behaving.  I am fortunate enough to call a number of very talented, professional artists my friends, and none of them would behave like the people described in these articles.  Nor should you assume that merely because an artist does not create works portraying recognizable subjects, that they are out to destroy Western civilization.  We will leave that task to Planned Parenthood.

Rather my intent here, as is always the case in my writing, is quite simple: to encourage you to go educate yourself.  And should you find, upon further investigation, that you completely disagree with my concerns, then by all means please come back and engage me in discussion, and tell me so.  For it is only by shedding light on this type of thinking and behavior that civilization can be prevented from crumbling into anarchy.


“Monument to Ed Ruscha” by Kent Twitchell (1987) [destroyed, 2006]
Job Corps Center, Los Angeles