from the so-now-what? dept
We’ve discussed moral rights here a few times in the past. These rights — which focus on things like attribution and making sure artwork is not damaged, denigrated or destroyed — are generally not recognized in the US. They’re much more popular in Europe, and in fact, are often referred to as “droit moral,” which is the French term. Of course, as overly pedantic IP lawyers never fail to remind us, while the US has generally not recognized moral rights, that is not entirely true. As part of trying to sorta kinda pretend that the US was compliant with the Berne Convention on copyright, which requires that moral rights be recognized, the US passed the Visual Artists Rights Act (VARA), which does recognize moral rights for certain types of physical artwork, including paintings, drawings, prints and sculptures.
That has now created an interesting legal (and, possibly, moral and artistic) conundrum in New York City. The Four Seasons Hotel in midtown Manhattan happens to have a mural painted by Picasso, called “Le Tricorne.” The mural was originally part of a set decoration for a performance of Diaghilev’s Ballets Russes, but has been in the Four Seasons restaurant lobby since 1959. Given how easy it is for anyone to go see it, it has been called Pablo Picasso’s most readily accessible painting.
And, voila, a legal and cultural conundrum. As Mira T. Sundara Rajan at the 1709 blog writes:
Where does this leave things with Picasso’s mural? Given its authorship, the ease of establishing that the Picasso is a work of “recognized stature” seems fairly straightforward. Accordingly, VARA could be invoked by the New York Landmarks Conservancy, which owned the Picasso after it was donated to the group in 2005, to prevent its possible destruction by removing it from its place in the Four Seasons Hotel. Such a ruling can be predicted with reasonable assurance in only a few jurisdictions in the world – including India, strongly pro-moral rights, and the United States, strongly ambivalent, which both agree on the principle that destruction of a work should be prevented, in so far as possible, by artists’ moral rights.
Above all, the case fascinates because of Picasso’s absence from the debate. Moral rights are often said to serve the aggrandizement of individual artists or (gasp) their heirs. In this case, however, the dispute would seem to have little impact on Picasso’s reputation or the wealth of his heirs. On the other hand, the painting has aptly been called “Picasso’s most readily accessible painting” (Terry Teachout in the Wall St J, cited here), and it presents the alluring image of art interwoven with the fabric of life in ways that are not usually possible in Western cities. In this case, at least, moral rights are widely perceived as a public interest issue.
There are obviously a number of different arguments to be made about what makes the most sense here, but the destruction of artwork always seems like a distressing result. At the same time, there are legitimate property rights issues — and a more serious question of what if the structural integrity of the wall is actually in question. Do you “save” the artwork just to have the wall eventually cave in anyway? But where this gets even more interesting to me, is what it might mean for other types of artwork as well. Take, for example, Banksy. His works certainly fall into the realm of “works of recognized stature” — but they might also be done in places where he had no permission to do them. That’s true of a number of other increasingly well-known artists these days. And while Banksy may not be a fan of intellectual property, could someone invoke moral rights (which he may not even care about) to block the removal of one of his works?