Certificates of Authenticity in Conceptual and Minimal Art

Not Worth the Paper it’s Written On? – The Legal Status of Certificates of Authenticity in Minimal and Conceptual Art

Museums love them – when they are not on view, they present no storage problems. The artwork consists in terms of instructions in a drawer.
– John Weber ¹

Sol LeWitt, Certificate and Diagram for A Wall Divided Vertically into Fifteen Equal Parts, Each with a Different Line Direction and Color, and All Combinations 1970 Tate collection

INTRODUCTION

In April 1987, an art dealer by the name of David McKee paid $26,400 for a work by the American artist Sol LeWitt at Christie’s, New York.² The piece, which was entitled ‘Wall Drawing #86’ or ‘Ten thousand lines about ten inches (25 cm) long, covering the wall evenly’ was a conceptual artwork, i.e., the idea itself was the work of art and not any outward expression of it. This meant that David McKee did not buy a physical object, but supposedly an intangible idea. People Magazine wrote that this was the ‘first intangible work of conceptual art ever sold at auction in the U.S.’³ and claimed that what McKee had bought was the right to execute an idea. Practically speaking, he walked out of the auction house several thousand dollars lighter and with nothing but two pieces of paper, very similar to the ones pictured above. The piece of paper which accompanies the diagram is what is known as a certificate of authenticity, or simply a certificate and these come in many different forms. Once McKee bought the work and had the certificate to prove it, any other outward expressions of ‘Ten thousand lines’ was not a work of art by Sol LeWitt and was to be destroyed, although they didn’t have to be.⁴ As People Magazine put it, ‘McKee…can have the 10,000 lines re-created on any wall of his choice. Of course, so can you, but you wouldn’t have the real thing.’⁵

As art evolved from what Duchamp described as the merely ‘retinal’⁶ to a more intellectual form, an unusual change occurred in both the purpose and effect of certificates beyond authentication, which was precipitated by the beginning and rise of minimal and conceptual art. Because of the nature of the artworks and the practices of the artists associated with these movements, the various types of documents created by artists, collectors, and gallerists evolved into a variety of multifunctional items with different legal attributes. This adaptability is one of the strengths of modern-day certificates but also often means that the documents can be ambiguous or even have unintended consequences. In this dissertation it is proposed to analyse more closely what these different legal forms may be by using specific examples. It will first be necessary to briefly look at an overview of the main attributes and some key moments of minimalism and conceptual art, together with a discussion of certificates of authenticity both within and without these spheres. It is necessary to understand why certificates took such a prominent place within the artworld. Thereafter, we will delve into the work of specific artists such as Donald Judd, Sol LeWitt, Felix Gonzalez-Torres, et al. in order to assess how they have understood and utilised certificates in their work and what legal issues consequently arose, or may be said to be present. This will all be done with the hope of coming to a better understanding of what certificates of authenticity are, or attempt to be when used in minimal and conceptual art. Ultimately however, we will see that it is the adaptability and even ambiguity of certificates which is their biggest strength, and a more proper means to protect artists’ interests.

MINIMALISM AND CONCEPTUAL ART

Minimalism and conceptual art are sometimes conflated, mainly because there was an overlap in terms of time period, and because both were a reaction to a traditional view of art. As we shall see below, many issues arose in minimalism with authorship, authenticity, uniqueness, and the ability of collectors to transfer these types of work that often predicted and coincided with similar issues in conceptual art. Exploration of the scope and possibilities of certificates is therefore tied up with both minimal and conceptual art. This is not to say that the use of certificates was always or even usually the same by practitioners of each movement. As Martha Buskirk puts it:
[T]he use of certificates would present an important point of intersection between minimal and conceptual art as well as a distinguishing feature, as both the motivation and the function of such statements played out differently in relation to each movement.⁷

Minimalism emerged as an art movement in the early 1960s in America. It sprung up as a reaction to a form of art that proponents saw as having become ‘stale and academic’.⁸ The artists involved rejected the idea of the uniqueness of art objects, preferring to work with mass-produced, industrial-type materials, often using very geometric forms and repetition. Minimalism was a means of ‘prioritis[ing] the properties of the physical art object over the object’s ability to represent aspects of the world beyond the gallery.’⁹ Some artists worked in paint and others in sculpture, often responding to the physical space that the work was to be situated in. Take for instance Dan Flavin, who used commercially available fluorescent light tubes in various arrangements and colours to create his sculptures or installations. Or Donald Judd, who created large geometrical sculptures out of industrial materials such as wood or metal using repeating patterns. As we shall see, the ease with which some minimalist work could be recreated caused problems for collectors wishing to own their purchased pieces exclusively. What is to stop someone else recreating a work by Dan Flavin or Donald Judd, simply by purchasing the necessary materials? How is value to be maintained if one cannot be sure of the uniqueness of the artwork? We will briefly discuss copyright at a later point but suffice it to say for now, it does not offer adequate protections in cases like these.

Dan Flavin Greens Crossing Greens (to Piet Mondrian Who Lacked Green) 1966, The Guggenheim Museum, New York

Minimalism sought to eradicate any signs of authorship, relying instead on the viewer’s experience of the object in space and eschewing metaphor or inherent meaning. Because of this, difficult questions arose. Can an owner legitimately replace materials if they are damaged, or could they even allow for a brand-new construction to be fabricated elsewhere, in order to save on shipping costs when loaning the artwork? If these issues were dealt with say in a contract for sale between the artist and collector, how could the artist ensure that any subsequent purchaser would abide by the same terms? We shall see how, after several false starts, certificates became a means of anticipating and purporting to solve some of these problems.
While minimalism sought to negate the uniqueness of the art object, conceptual art sought to be rid of it entirely. Even though different, it can be said that these two movements are very much linked as both felt that the importance placed on the object within the artworld at that time was without merit and they wished to challenge the status quo that prevailed in relation to how art was made, displayed, and experienced.¹⁰ Not all conceptual art is alike and as a result, it is difficult to foist exact definitions upon it. It is perhaps best defined by the commentators and practitioners most associated with it such as critic Lucy Lippard and artist Sol LeWitt. It wasn’t until the latter half of the 1960s that conceptual art properly took off, but it has been around ever since.¹¹ In what has been described as the ‘founding document of conceptualism’,¹² Sol LeWitt set out in 1967 what he saw as conceptual art.

In conceptual art the idea or concept is the most important aspect of the work. When an artist uses a conceptual form of art, it means that all of the planning and decisions are made beforehand and the execution is a perfunctory affair. The idea becomes a machine that makes the art.¹³

As its name suggests, conceptual art is about the ‘idea’ above all else. Any physical expression of the idea was secondary with the ‘art’ being in the concept, not its expression. If an idea is to be expressed, it is the idea that informs the medium. This is why conceptual art does not have a homogenous output such as painting or sculpture. Conceptual artists utilise film, language, sound, performance, sculpture, and installations etc. to represent their work. Lippard described it as ‘work in which the idea is paramount and the material form is secondary, lightweight, ephemeral, cheap, unpretentious and/or “dematerialized”’.¹⁴ She points to Marcel Duchamp as an ‘obvious art-historical source’.¹⁵ Duchamp had long been a proponent of idea-based work. Roberta Smith points to his readymades, which date back to as far as 1913, as being the movement’s ‘ground zero’.¹⁶ Duchamp spoke about how he wanted to get away from ‘retinal work’ as he called it and how with his readymades, he wished pick objects with no aesthetic value; objects he neither liked nor disliked.¹⁷

Language became a huge part of the movement. Lippard wrote that conceptual art ‘offered a bridge between the verbal and the visual’.¹⁸ Images and bodies of text were often juxtaposed so as to ‘engage the mind’¹⁹ of the viewer and consequently, as Smith put it, ‘[t]he era of reading while standing up in art galleries was under way’.²⁰ There was also an appropriation of legal language, which was used to critique society at large in circumstances where the art object was not present, but also as an attempt to retain control over their works.²¹ This can be seen in the use and evolution of certificates from the 1960s onward. Joan Kee states that certificates fall into the same category of financial documentation as ‘receipts, invoices, and agreements generated upon, or in anticipation of, a work’s sale.’²² She doesn’t mean that they are necessarily as limited as these types of documents however, as she goes on to point out the multitudinous attributes of the certificates of Felix Gonzalez-Torres, saying how contract-like they became and how they imposed a mutuality of obligation on artist and buyer, more of which will be discussed below. It is true that with conceptual art, certificates allow the output to be commodified; to be bought, sold, and transferred, but artists also began to recognise the potential of these documents for protecting their rights, for keeping a degree of control over their work, and for collaboration between artist and owner.

CERTIFCATES

For conceptual artworks, or works that could be easily replicated using everyday objects, the certificate of authenticity had even greater import as the only tangible proof establishing the identity or existence of a specific work.
– Joan Kee ²³

For the purposes of this dissertation, we will use the term certificate of authenticity or just certificate because this is what artists, collectors, and gallerists call the documents in question. Authentication is not the sum total of their purpose however, especially since their evolution in the 1960s. Certificates of authenticity and ownership, and other sales agreements have been used in the buying and selling of art since the Renaissance.²⁴ Furthermore today, when we look at certificates used for older, tangible artworks, we may come across those signed by experts in the field or the artist’s estate or foundation. There are even examples of documents such as ‘laboratory certificates’ certifying materials used. This all goes towards authentication though. We must here differentiate between historical certificates (or more modern ones relating to older tangible works) and the ones used for intangible and easily reproducible works. Prior to the mid-twentieth century, certificates were standard documents used in art transactions, and contained language meant to guarantee the authenticity of a work of art. As Peter J. Karol explains, these were essentially a ‘contractual promise’ that a piece was what the seller said it was.²⁵ Therefore, any dispute in relation to the authenticity of the work would be centred around contract law principles. However, things are not so simple when we are talking about works of art that have not been created yet, or, in the case of conceptual art, are focused on something intangible in the first place. The wording of certificates differs hugely but usually one finds the title of the work, the year, a description, and most importantly, the artists signature. With unrealised works, instructions of course were paramount. Authentication is not a simple matter with work yet to be realised, however. How can a document guarantee the authenticity of something that does not yet exist? As Karol says, this appears to be a ‘legal paradox’.²⁶ There must be some kind of further action undertaken when the piece is actually realised. Karol speaks of these types of certificates as a form of ‘copyright licenses coupled with a right of source association.’²⁷ He also grants that they have a limited authentication purpose. He refers to them as ‘permissive certificates’, positing that in the future, museums will become collectors not so much of physical works, but of legal instruments which grant exclusive rights.²⁸ This line of reasoning will be further teased out when we look at Felix Gonzalez-Torres below.

Martha Buskirk explained how sometimes the purpose of certificates was simply to act as a ‘displaced signature’,²⁹ to be taken as the artist’s signature for a piece of work that simply cannot bear one. They are therefore integral to the artwork, but not actually the work itself. LeWitt stated on his wall drawing certificates, ‘[t]his certificate is the signature for the wall drawing and must accompany the wall drawing if it is sold or otherwise transferred’.³⁰ Furthermore, their evolution was predicated upon the need for collectors and others to prove the very existence of a work of art that they had purchased. Certificates such as this were produced for the market, ironically allowing for the commodification of ‘dematerialized’ art, which was sometimes seen as anathema to conceptualism.³¹ They therefore not only became integral to the work but were sometimes the sole ‘locus’ of the artwork’s value.³² Some artists such as Dan Flavin and Sol LeWitt (or now their estates) would refuse to reissue certificates, and consequently the loss of a simple piece of paper could have dire financial consequences.

Although certificates began as simple, often one-page documents, and were often compelled into existence by collectors rather than the artists,³³ they began to become more and more complicated as time and artists’ understanding moved on. Artists soon realised that they had leverage with their certificates both in issuing them and in what they contained.³⁴ Certificates for conceptual art are heavily centred around instructions and sometimes appear to be semi-licences or ‘terms and conditions’. Artists began to attempt to protect various interests within these documents such as intellectual property rights (including often under-protected moral rights) and also often successfully dictated what would happen to their work on a more continuing basis in the future, thereby retaining a certain amount of control that had previously alluded them. Moving forward into the 1990s, and as we shall see with Felix Gonzalez-Torres, these certificates could begin to look very much like contracts. This contractual style language also served to create apparent obligations upon buyers which in fact often caused there to be a semi or even explicit collaborative relationship between the artist and purchaser.

Certificates as art

Piero Manzoni Declaration of Authenticity No. 50 (Carte d’authenticité No. 50) 1961

Although artists saw and utilised the potential of certificates for practical reasons, some saw their potential from an artistic point of view. This can be seen in many areas of conceptual art, where legal language is used not for legal purposes necessarily, but to further an artistic agenda. Take for instance the certificate of Piero Manzoni pictured above. It references one of a series of works he did whereby he would sign a real person, and then create the certificate to declare that person a work of art.

The Artist’s Reserved Rights Transfer and Sale Agreement

We would be remiss not to briefly mention ‘The Artist’s Reserved Rights Transfer and Sale Agreement’ which was a contract written in 1971 by dealer Seth Siegelaub and lawyer Robert Projansky.³⁵ This was intended to be a standard form contract used by all those in the artworld and contained many provisions which sought to protect certain moral and other rights that they felt U.S. law did not adequately protect at the time. Some of these terms were quite onerous, such as a 15% resale royalty of accrued value and a requirement to attach a notice to the artwork (or certificate) to inform subsequent buyers of the existence of the contract. These onerous terms and issues surrounding privity of contract³⁶ led some to doubt the enforceability of the agreement.³⁷ Regardless however, as it required an almost universal concurrent uptake from artists and dealers to be effective, it was always going to be an unlikely thing to catch on.³⁸ It never really did take off but does show a very real attempt by those in the artworld to better protect the future interests of artworks and the artists who had made them. It has been described as ‘the most significant template for the artist’s certificate’ and as a ‘precedent’ for the protection of artist’s rights.³⁹ A less onerous but more likely to succeed means of protecting some of these rights developed in the form of certificates. This is because as already mentioned, the value of the work is caught up in these certificates. So too is the artwork itself and, consequently, the ‘terms’ therein become necessary even to have a work of art in the first place.

All of this simply goes to show that if certificates were once simple warranties meant to form a term of an overall sales agreement guaranteeing the authenticity of an artwork, once minimalism and conceptualism brought the very nature of an artwork into question, certificates too began to mutate and change. It is therefore not easy to define a certificate in circumstances where they can differ in substance and effect to such a large extent. They can however be said to be documents of various types that attempt to set nature and boundaries of an artwork, as well as the parameters for its ongoing existence.⁴⁰ On top of this of course they authenticate either an existing work, or the concept behind one.

COPYRIGHT

Any student of intellectual property law would balk at the suggestion of being able to own or legally protect an idea. ‘One who claims to “own” an idea as a work of art claims a right to fence off a domain of human thought, ostensibly free from the limitations’.⁴¹ This of course puts intellectual property law somewhat at odds with conceptual art or, as Shane Burke describes it, in ‘apparent contradistinction’.⁴² Although it is beyond the scope of this dissertation to examine copyright in conceptual art in great detail, there are some points of relevance when we are talking about certificates of authenticity.

It is true that an idea cannot be protected, and although that would appear to make conceptual art problematic, there are in fact many aspects of conceptual art that may fall under relevant definitions. Zahr K. Said writes that we are too quick to dismiss the possibility of copyright protection in physical expressions of conceptual art.⁴³ She speaks mainly about the ‘fixation’ requirement from a U.S. perspective, claiming that this is an illogical means of excluding conceptual art from protection. For instance, she claims that with one of Felix Gonzalez-Torres’s ‘stacks’ the fact that viewers are allowed to remove pieces of the work in the form of a sheet of paper from a pile of paper, does not render the work unfixed. ‘That the viewer’s input has a limited, and predictable, impact on the work constrains the range of possible different versions of the work, and renders it effectively fixed.’⁴⁴ She goes on to say that they should be treated similar to video games which are considered ‘fixed’ for copyright purposes.⁴⁵ Having said this however she does admit that there may be other reasons to exclude conceptual art; for instance, the idea/expression dichotomy which still holds such weight in copyright law.⁴⁶ Shane Burke points to a ‘judicial aesthetic bias against text towards visual reproductions.’⁴⁷

If we look at a Sol LeWitt wall drawing certificate such as the one pictured above, we are struck by the fact that he is asserting copyright on the face of the document itself. However, even if in his mind he was claiming protection over the idea, the only thing copyrighted in this instance would be the text. It is in a way a set of instructions, but that would not preclude it from being considered an ‘original literary work’ as set out in UK legislation for instance.⁴⁸ Knitting and sewing patterns which ‘are essentially a set of instructions’ are protected as a ‘literary work’ in the UK.⁴⁹ Importantly however, just because the text is protected, does not mean that if someone were to follow the instructions and create the wall drawing that they would be committing any form copyright breach. In Cuisenaire v. Reed⁵⁰ the Supreme Court of Victoria in 1963 concluded that in following directions in a book to make an arithmetic teaching aid, the defendants had not breached literary copyright. Pape J. agreed with the argument put forward that were the law otherwise, ‘everybody who made a rabbit pie in accordance with the recipe in Mrs Beeton’s Cookery Book would infringe the literary copyright in that book’.⁵¹

If the wall drawing were to be created by a draughtsman, under the supervision of LeWitt, copyright would subsist in it as an original artistic work. As Burke points out, it may give rise to issues over joint authorship.⁵² If we look at Dan Flavin’s certificates, they consist of a diagram together with text. It is possible that it could be protected therefore as an artistic work. In the UK, the Copyright Designs and Patent Act (CDPA), states that ‘the making of a three-dimensional reproduction of an artistic work from a two-dimensional drawing may constitute infringement.’⁵³ Of course, his certificates were supposed to be instructional, rather than a work of art. He clearly stated that they were ‘certificates’, and as such, it may be difficult to argue that someone creating a three-dimensional piece from instructions is the same as someone creating a three-dimensional version of a two-dimensional work of art.

Ultimately the situation is not overly clear and as conceptual art finds itself on the fringes of intellectual property protection, it is often the case that any successful protection is almost hit or miss. The true protection from is to be found in the idea of authentication. It may not be legally possible to stop someone recreating a work from instructions in a certificate but it would be a fruitless endeavour; without the certificate the work would not have any of the financial or artistic value associated with a work of art by the artist himself. This indirectly protects artist’s rights in a way that transcends limitations such as time and definitions, and also negates jurisdictional issues and differences in the law.

HOW CERTIFICATES HAVE BEEN USED

We will now turn to look at the realities and practicalities of the use of certificates in art. In order to do this, it is proposed to focus on three individuals: an art collector and two artists. It is hoped to show just how nebulous things may become when trying to pin down the nature of these legal-esque documents, and also to point to the dangers inherent in their misuse or in using them without fully understanding the implications.

The Collector, Panza

Count Giuseppe Panza di Biumo (Panza) was an Italian collector of post-war American art of which he amassed one of the world’s biggest collections.⁵⁴ He was also an early pioneer with regard to certificates in minimal and conceptual art, as much of his collection consisted of plans and not the actual fabricated work.⁵⁵ His archives are apparently an insight into his various efforts to secure certificates from artists, as well as a repository of the certificates and agreements themselves.⁵⁶ Panza was trying to protect himself, to prove ownership, and to give himself broad authority over the work. His acquisition of these certificates led to disputes with several artists over the way in which he fabricated their work. These disputes seem to stem from two sources. First, it appears at times that Panza would ‘conflate minimal and conceptual art’.⁵⁷ Secondly, some of the artists may not have been aware just how much they were giving up by signing the documents that Panza created. This can be illustrated by looking closely at the following examples.

Martha Buskirk points to an incident which appears to have influenced Panza’s opinion on the need for certificates.⁵⁸ Panza had previously purchased several works by the conceptual artist Bruce Nauman in the form of plans. He later heard that Nauman’s dealer had decided to create two versions of a Nauman work (not one owned by Panza) in order to have a version in North America and in Europe. Panza became alarmed at this news and expressed this to the dealer. Panza was worried that he did not have exclusive rights to the pieces he had bought. Ultimately Nauman’s dealer changed his mind about multiple versions and reassured Panza that the works he had acquired were unique. They also provided what Buskirk describes as ‘certificates…in the form of photographic documentation signed on the back by the artist.’⁵⁹ It is difficult to see however, what if anything this would amount to legally. If a dispute made it to court, a judge may just see it as an autographed photo. It is of evidentiary benefit only.

In 1974, Nauman signed typed certificates for works Panza already owned in plan form. These, according to Buskirk,⁶⁰ declared Panza the owner and allowed him to ‘realize and to assign the right to realize the work.’⁶¹ Panza also included the following guarantee: ‘I certify that the above work is my original and unique creation, and I undertake not to do, realize, sell, or authorize the same work and or of similar work’.⁶² This is clearly quite broad language, capable of being severely limiting to the artist. Nauman removed the last five words before signing; an astute decision.

There was a disconnect between what Panza thought the scope of his ownership of minimal and conceptual pieces meant, and what the artists in question thought. Especially when it came to minimal art which, as stated above, still relied on physical objects. ‘Part of the tension inherent in Panza’s approach emanated from his insistence on relying on linguistic and legal conventions to frame his understanding of works while the artist remained committed to the material object.’⁶³ Panza was clearly enamoured by the way in which conceptual artists (such as LeWitt) used certificates and this blinded him to the differences that occurred when they were used by minimalists.

Panza purchased a number of works from minimalist sculptor Donald Judd in the form of plans, and in the mid-70s, Panza made a concerted effort to regularise the role and the number of certificates in his collection. Around this time, Judd agreed to sign a number of certificates that were ‘remarkably broad in the latitude granted to Panza’,⁶⁴ and which covered works still in ‘plan’ form as well as previously realised pieces. These certificates allowed Panza to recreate any existing work if it was destroyed or lost, etc. as long as he notified Judd and followed the specifications. They allowed him to make temporary exhibition copies as long as they were destroyed after, and even allowed him to recreate the piece in another location to avoid transport costs, as long as the original was destroyed. Again, it must be borne in mind that minimalism is not the same as conceptual art. These sculptures were original works of art, and although yes, they could be recreated because of an absence of the visible hand of the author, it does not necessarily follow that any remake is a work of art by Judd. Martha Buskirk posits that ‘it was precisely because he did not think of his work in conceptual terms that Judd did not consider the implications of the language in the contractlike certificates he endorsed’.⁶⁵ He assumed he would always have final approval.⁶⁶ These agreements were bound to lead to future problems and that is exactly what happened.

In 1990 Donald Judd took out a quarter page advertisement in Art in America. In it he referenced a piece attributed to him that Panza had ‘loaned’ to Ace Gallery in Los Angeles. Panza had authorised the gallery to recreate the work by Judd and another by Carl Andre. Neither artist was consulted, and Judd’s ad made that clear, stating the work was ‘wrongly attributed to Donald Judd’. Carl Andre also publicly disavowed the copy of his work.⁶⁷ Judd went on to publish ‘Una Stanza Per Panza’ in 1990 where he excoriated Panza and the way in which he operated.⁶⁸ ‘Giuseppe Panza makes my work himself, contrary to the original agreement that it be made only under my supervision.’⁶⁹ Judd is referring here to the fact that despite giving Panza broad powers in his certificates, he had made sure that a line was included saying his own manufacturer would be the one to construct pieces.⁷⁰ Panza thought this was too expensive⁷¹ and attempted to get Judd to agree to an independent arbitration between their lawyers on any disagreements. Buskirk points out that this shows how Panza thought about these works of art in legal and contractual terms whereas Judd decried the use of lawyers and the courts as being symptomatic of the underlying problems with the commercialisation of the art world.⁷² All of this goes to show that Panza put a huge amount of weight into the legal nature of the certificates. It shows the importance of the wording contained therein, but also the importance of leaving control of the certificates with the artist and not the collector.

It may be that the terms of the certificate would be enforceable, but in reality, no one wanted to go to court. The art market would be far more likely to follow a Judd statement over a Judicial ruling. Take for example the U.S. case of Greenberg Galleries v. Baumann.⁷³ Here the plaintiffs had purchased a sculpture by American artist Alexander Calder for $500,000. They concluded it was a fake however, and in court had on their side the expert Klaus Perls with his ‘premier credentials in respect to Calder’s work.’⁷⁴ Perls was convinced that the sculpture was ‘an exact copy’ and therefore a forgery. This is despite the fact that the work had a signature whose authenticity was never challenged in court. The court favoured the defendants however, preferring their expert’s evidence and noting the ‘impeccable provenance’ of the work.⁷⁵ The Judge held that the evidentiary burden had not been met and consequently stated there was a strong presumption of authenticity. Interestingly, the Judge alluded to the fact that Perl’s authority was such that his opinion on the authenticity of the work would likely have market repercussions. This indeed came to pass because as Daniel McClean points out, the piece in question has not been included in the Calder catalogue raisonné and apparently the dealers have been unsuccessful in reselling it.⁷⁶

It is consequently interesting to imagine what would happen if say Judd and Panza went to court with Panza being ultimately successful. His reliance on the contract-like nature of these certificates would all be for naught if Judd were to simply disclaim the work in public. Therefore, there is something more powerful than a strictly legal reading of certificates. As Patricia Cohen put it, although a Judge has the final say in their own courtroom, ‘in the art world their verdicts can be overturned by a higher authority: the market.’⁷⁷

Certificate for Dan Flavin’s Untitled (to Henri Matisse) 1964 and the work installed,1995, The Guggenheim Museum, New York

Another dispute arose between Panza and minimal artist Dan Flavin. ‘You purchased finite installations of fluorescent light from me…you have no right whatsoever to recreate, to interpret, to adapt, to extend, to reduce them’⁷⁸ Flavin wrote in a letter to Panza in 1988. Flavin worked with fluorescent light tubes to create sculptures and refused to issue certificates for works until they were completed.⁷⁹ An example of his certificates as they became is pictured above. His grid style was a later development which he made standard for all his work. We can see that he considers the work an edition, this certificate showing edition 2 of 3. The purpose of his certificates was not to prove the existence of a work of art but to prove the fact that the fluorescent light sculpture you own is indeed a work by the artist.

Flavin got a shock in 1988 when he saw a number of his works including Varese Corridor and Greens Crossing Greens (to Piet Mondrian who lacked green) recreated in an exhibition despite the former being site-specific and the latter having been recreated from a black and white photograph without permission, and based on an agreement that was out of date.⁸⁰ Again there was a disconnect between the artist and collector. Panza thought that the certificates, which he often requested from Flavin, could be for works not yet realised, whereas Flavin refused to issue any for work that had not been completed. The Guggenheim Museum sold works by artists like Kandinsky and Chagall, just so they could build up their conceptual portfolio. When they purchased a swath of works from the Panza collection, they apparently knew they were also taking on a ‘mare’s nest of problems.’⁸¹ The museum spent years and millions of dollars going through what they bought and making decisions on whether one thing was a work of art, or whether it had been tainted in some way by the actions of Panza and should therefore be destroyed or kept for historical interest only.⁸²

Sol LeWitt

With minimal art, the focus of the artists was on the physical object and as a result certificates were not out in front but kept behind the scenes.⁸³ When the direction of art changed towards to the idea however, we can see a difference.⁸⁴ Sol LeWitt was a leader in the conceptual art movement, but also dabbled in minimalism and painting. His conceptual work usually took the form of instructions in a certificate like his famous ‘wall drawings’.

Sol LeWitt Wall Drawing #1136 Scottish National Gallery of Modern Art 2004

If one buys a Sol LeWitt wall drawing, the only thing that changes hands is the certificate (together with a diagram). LeWitt never wanted the wall drawings to be seen as static works of art or ‘artifacts’.⁸⁵ He had no problem with owners re-drawing the works over time if they faded or got damaged.⁸⁶ This is because in his eyes, they were not works of art, and neither were his certificates. His certificates are instructional, provide authentication and proof of ownership, and can also be considered property in terms of value. In a way they’re a chattel and could be said to be treated the same as a painting would, in that they are subject to damage and therefore kept safe and insured.⁸⁷ Regardless of the aims of idea-based artworks (anti-commodification etc.), the certificates in reality did allow for ideas to be bought, sold, and transferred.

In Texas, an interesting situation arose after an architect called William Stern died having bequeathed all of his artworks, together with his house, to the Menil Collection (a museum in Houston). They decided to sell the house but not with the Sol LeWitt wall drawing within intact. And before the sale they had it painted over. This, as a spokesperson for the Menil Collection explained, is ‘standard procedure when these works change ownership’.⁸⁸ This is of course because they retained the certificate.

The daughter of the new homeowner discovered that the LeWitt drawing was not simply painted over but only covered in a layer of ‘sheetrock’ which could be removed. She began to slowly do so and to document her experience.⁸⁹ There was some backlash from certain sources but the gallery itself seems to have ‘begrudgingly tolerated’⁹⁰ the project but not without making it very clear that they did not consider the physical painted wall that is being uncovered to be a work of art by Sol LeWitt. Paula Newton wrote a blog post about the ‘uncovering’ where she stated, ‘the LeWitt painting, though, was site specific, painted directly on the wall, and could not be removed without damage to the work.’⁹¹ This of course completely misses the point of Sol LeWitt’s wall drawings as he often spoke about how they could be erased and transferred. When Newton above says the work could not be removed without damage, she failed to realise that the work existed as an idea, not as a painting on the wall. The Menil Collection actually replied to the blogpost to set the matter straight stating, ‘[LeWitt’s] wall drawings are designed to have a life cycle; they are temporary installations. It is important to underscore that the owner of a LeWitt wall drawing owns an idea.’⁹²

Of course, as previously stated one cannot own an idea. The bold language used by the Menil Collection above is slightly nonsensical, but it is a nonsense that crops up time and again in this area. The museum owns a certificate which purportedly gives them the right to recreate an idea of Sol LeWitt’s. Newton then made a new blog post having been ‘schooled’ by the Menil Collection and others, as she said, in order to correct the record. She describes that which was being uncovered as ‘simply the remnants of what was once the execution of the conceptual work.’⁹³ Everyone is being so careful with their language. Peter J. Karol points out how fascinating it is that the Menil Collection, as a successor owner of the certificate, successfully persuaded an non-related third party blog to retract statements claiming that the painting on the wall was a work of art by Sol LeWitt. This is despite the fact that LeWitt was specifically commissioned to create a work for that space! ‘On what grounds?’ Karol asks. ‘The certificate had since changed hands.’⁹⁴

In 2012 collector Roderic Steinkamp sued Rhona Hoffman and her gallery in the New York Supreme Court after she lost his Sol LeWitt certificate for wall drawing #448. Hoffman claimed her insurance wouldn’t cover the loss and ultimately Steinkamp took her to court.⁹⁵ The complaint filed on behalf of Steinkamp states: ‘Since the wall drawings do not constitute freestanding, portable works of art like a framed canvas or a sculpture on a podium, documentation of the work is key to transmitting it or selling it to a collector or institution’.⁹⁶ The complaint also points out that his certificate states, ‘This certification is the signature for the wall drawing and must accompany the wall drawing if it is sold or otherwise transferred’.⁹⁷ Steinkamp sued for breach of bailment, breach of contract, negligence, and conversion. He was seeking in excess of $1.4 million.

The Menil collection above claimed the certificate was proof of ownership of the idea behind Sol LeWitt wall drawing. The Steinkamp complaint makes it clear that the value in the work is in the certificate. This seems to suggest that the certificate needs to be taken as a piece of property in its own right. The complainants were suing for breach of bailment (amongst other things). Bailment is the common law notion of delivering goods to a bailee for some purpose, without transferring ownership. The bailee will thus have duties attaching to him including a duty to look after the goods. Bailment has to do with personal property – with chattels, and it can therefore be seen that Steinkamp and his lawyers were treating the certificate as a piece of personal property for their immediate purposes. Part of their claim was for breach of a contractual term where the Hoffman Gallery had agreed to ‘protect the works against loss, damage, or deterioration.’⁹⁸ Despite the fact that, as we have seen, the certificate is not considered the work in the art world, for practical purposes it is treated as such in the complaint. Other statements contradict this, however. For example, they state: ‘documentation of the work is key to transmitting it or selling it’.⁹⁹ ‘Documentation of’ the work, but not ‘the work’. In paragraph 6 it is stated that ‘the certificate encompasses the accompanying work of art’. It seems quite contradictory to say that the certificate can ‘encompass’ a work of art while also ‘accompanying’ it at the same time. It does go to show however, the difficulties surrounding defining exactly what these certificates are, especially in ways that a Judge will readily accept and understand. The matter was settled out of court for an undisclosed sum, denying us the chance to see how a Judge would have grappled with conceptual art worth hundreds of thousands of dollars and which only existed as an idea evidenced by a piece of paper. A win perhaps for Steinkamp, but a loss for art law enthusiasts.

Felix Gonzalez-Torres

All these pieces are indestructible because they can be endlessly duplicated. They will always exist because they don’t really exist or because they don’t have to exist all the time … there is no original, only one original certificate of authenticity. – Felix Gonzalez-Torres ¹⁰⁰

Felix Gonzalez-Torres, ‘Untitled’ (Portrait of Ross in L.A.) Art Institute Chicago, 1991

Felix Gonzalez-Torres was a Cuban-born conceptual artist active in New York between the mid-1980s until his untimely death at the age of 38 in 1996. He is renowned for his ‘groundbreaking installations’¹⁰¹ which, despite their outward simplicity, combined various conceptual and minimalist elements that came before him with political activism and honest, emotional expressions of his own personal history.¹⁰² Central to his work as an artist was his wish for viewer participation. In fact, he often said that participation by the public was essential for certain works to be completed or to even exist.¹⁰³ His identity as a Cuban-born, gay man suffering from AIDS also hugely informed his work. However, even from this outsider perspective, he felt it necessary to work within existing structures.

It’s more threatening that people like me are operating as part of the art-market – selling the work, especially when you consider that, yes, this is just a stack of paper that I didn’t even touch. Those contradictions have a lot of meaning.¹⁰⁴

Gonzalez-Torres is well known for pieces such as his ‘stacks’ and ‘candy spills’ as they are sometimes called. One example is ‘Untitled’ (Portrait of Ross in L.A.). The work consists of a pile of individually wrapped candies, placed in the corner of a room and ideally weighing 175 pounds. The weight is a reference to the ideal average weight of his deceased partner of 8 years, Ross. Viewers of the work can take a candy and thus the work diminishes, a reference to how Ross faded away as he suffered from and ultimately succumbed to complications relating to AIDS. Curators have ‘the right’ to replenish the pile each day, which of course makes the work infinite and as Gonzalez-Torres says above, ‘indestructible’. It was also not an artwork in his eyes without the public’s interaction. The physical dimensions and shape of this work will be different, depending on how it is installed. Gonzalez-Torres usually gave a lot of leeway to owners and curators of his work, placing an emphasis on the collaborative possibilities that were important to him. Similarly, he created his ‘stacks’ which were stacks of paper made to particular specifications. People could take a piece of paper home with them, and again, the institution/owner could replenish the stack. He was careful to point out however that individual sheets were not unique works of art.¹⁰⁵ It is through his certificates that he sought to control his oeuvre. He trusted those who had to install his works from written language with decision making capabilities of their own. Whereas before, certificates had been used for protection, for instruction and for evidentiary proof, it was Gonzalez-Torres who on top of those uses, brought in real collaboration between himself, and the curators and viewers.

Gonzalez-Torres’s early certificates were similar to what we have discussed above, namely, a mixture of authentication and instruction. In the mid-1990s however, they became increasingly long, setting out various obligations that owners now had in order to both complete the work and if they wished, to transfer it.¹⁰⁶ These documents which were signed by the artist (or his estate after his death) and the owner are more akin to contracts than certificates in terms of their length and language.¹⁰⁷ And although all elements for a contract may be there, they of course function as a certificate as well. As a certificate is the primary means of proving the existence of a work and is in fact the thing that one buys, an unusual situation arises whereby the document being signed as if it were a contract is also the thing in a way being contracted for.

Joan Kee speaks about these certificates as lacking ‘either the clarity or precision expected in contracts generally.’¹⁰⁸ She points to how the artist chose language that allowed for owner interpretation and the ability to make choices about the installation of the artwork, rather than placing obligations on them. As a result, she claims, there is a huge increase in the likelihood of owner compliance with the artist’s wishes, ‘without the acrimony that often accompanied such transactions’.¹⁰⁹ In his certificate ‘Untitled’ (Portrait of Dad) 1991,¹¹⁰ which is six pages of dense repetitive language, Felix Gonzalez-Torres often uses phrases such as ‘the owner has the right to…’ and ‘[the owners] will use their utmost discretion…’.¹¹¹ This is balanced with some unambiguous language such as ‘the authorized exhibiting institution must allow the individual candies to be taken away by the viewing public.’¹¹² The description of the work is brief, and the majority of the document explains what to do if the work is to be loaned or sold. These certificates are now issued anew with each transaction and their wording has been slightly altered since the artist’s death. They are not however completer rewrites. It is set out that the estate has a right of first refusal and if sold to someone else, they will issue a new certificate with the new owner’s names on it. The text of the document allows for a large amount of discretion on behalf of the owners and in this way, Felix Gonzalez-Torres has ensured that his work remains collaborative, even after his death. He has put a lot of trust and responsibility on the owners, but without a lot of liability. The ambiguities of the certificate make it unlikely you could be found liable for getting it wrong. There are no clauses about what to do if disagreements arise, which jurisdiction legal disputes will fall under, or what repercussions shall ensue should the terms not be properly followed. It is more like something that looks like a contract than one meant to be treated as enforceable.

Joan Kee claims that a lack of enforceability may bar the certificates of Gonzalez-Torres from being able to be described as contracts. Peter J. Karol disagrees¹¹³ and his arguments seem to be correct. Just because something is ambiguous, or lacking in detail, does not mean it is not a contract. It just means if will be difficult for a court to discern certain terms but does not mean the whole thing falls down. There is of course a contractual agreement above and around this document, but perhaps, because of how tied up the artwork is in the certificate, it is better to say that it is only of evidentiary value of the broader agreement. Offer, acceptance, consideration, and intention to create legal relations (the essential componants of a contract) are all present but as mentioned above, it is submitted that the fact that the ‘contract’ itself is also in a way the consideration may bring up a whole host of problems neither party may wish to get into.

Perhaps it is too simplistic to say however, that the certificate is the thing being contracted over. The market may see it as such, but buyers are not going to spend millions on a whim, and with Felix Gonzalez-Torres at least, there is something more going on. ‘Relying heavily on conditional words like “may”, the certificate functions more like an offer than evidence of an already negotiated agreement.’¹¹⁴ Joan Kee is suggesting here that, as the work of art is only completed when the owner takes further steps, and when the viewers in fact engage with the piece, how can it be something contracted over? Ultimately she goes on to say that the purpose of them was not to contractually bind the parties, but that by using contractual language, Gonzalez-Torres was attempting to set up a relationship different from a contractual one; a relationship of trust and individual responsibility thus better ensuring the sanctity of the artwork. ‘[The certificates] main objective is not to identify and punish instances of noncompliance, but rather to improve the chances that an agreement’s general terms will be upheld.’¹¹⁵

Peter J. Karol writes at length about certificates of authenticity, including ones by Felix Gonzales-Torres.¹¹⁶ He prefers to refer to them as ‘permissive certificates’, however. Karol sets out his persuasive argument that, under U.S. law at least, courts would have no problem treating these permissive certificates as a hybrid of a limited retrospective warranty (that the work of art in question is a work by the artist) and a form of intellectual copyright licence.¹¹⁷ The limited warranty Karol speaks of is that of the ‘underlying content’ as opposed to a warranty of a particular ‘tangible object.’¹¹⁸ He points out that it is not possible to authenticate something yet to be made, and that either the artist or their estate would need to almost endlessly certify any future iteration of a work. If a certificate purports to prospectively certify a physical work, it is misleading.¹¹⁹ This paradox he says, ‘led to a near-immediate parade of disputes’ during the period when these certificates first began to be used¹²⁰ and we have already discussed some of these above. Therefore, these certificates must be looked at as ‘conditional’, with a right to associate the name of the artist to a work, should certain terms be fulfilled. This is, he says, akin to a copyright licence and posits that courts in the U.S. would interpret them as such.

It is a very interesting way of looking at certificates, and although he goes into much detail surrounding U.S. law and his reasoning, he only briefly brings up the thorny issue of copyrightability. He is speaking of certificates as being similar to, if not actual, copyright licences, which of course would be problematic if there cannot be any copyright subsisting in the work in question. As mentioned above, it is not clear at all that conceptual art generally attracts copyright protection but as Karol points out, there is ‘at least a colorable claim of copyright in many cases.’¹²¹ He then goes on to use examples of certificates he asserts have copyright and thereafter discusses licences. It is consequently not clear what he is saying the status of certificates for works without copyright protection is exactly.

More interestingly, he discusses the right of an owner to attach the name of an artist to the work they have purchased, not as a right ascribed in the certificate, but as originating indirectly from the certification of authenticity. This he says, ‘immunize[s] the owners from … claims so long as the owners do not affiliate themselves with the artist or the estate, and so long as the works comply with the certificate’s instructions.’¹²² Perhaps from this we can discern that even if copyright does not subsist in the work, and therefore there cannot be a copyright licence granted, if you have an exclusive right to use the name of the artist, you have all you need. This is because with this, the artwork maintains its value, and any other reproduction would be worthless financially or, open to litigation if the artist’s name were being used without permission. He likens it to a person reselling an item with a trademarked name being allowed to use that name without risk, as long as the item was genuine.¹²³ He further goes on to show how this, in its own way, protects an artist’s moral right of integrity, including in circumstances and jurisdictions where protection of that right is minimal.¹²⁴

The certificates of Gonzalez-Torres represent a high-water mark of a document that is now an industry standard for works that can be said to be reproducible or dematerialised. Their real strength lies however, in an unspoken and unexpressed understanding between all involved that it is to everyone’s benefit to treat these documents as important.

CONCLUSION

For a market generally averse to contracts, the artworld embraced certificates of authenticity.¹²⁵ From what we have discussed, it can be seen that certificates are often ‘similar to’ certain legal forms rather than amounting to such forms completely. They have, and still do take various forms so as to satisfy a variety of interests. We have traced a line from the bumbling efforts of Panza, Flavin, and Judd, through simple clarity of purpose in LeWitt, to the wordy, contract/licence-like collaborative efforts of Felix Gonzalez-Torres. The ideas and motivations behind minimal and conceptual artists do not fit easily into legal conventions. This of course was never their purpose. In fact, instead of using the law to safeguard any particular interest, it was often was used as a means of critically analysing itself, the market, or society more generally. Karol says that ‘[certificates] harbour an unappreciated power as a tool for artist control.’¹²⁶ This control however is an amalgamation of certain legal attributes of the certificates as described above, coupled with a collaborative, mutuality of understanding between artist, gallerist and buyer. Importantly also, because of the dematerialisation of the artwork itself, certificates contain something of the ‘aura’ of the artwork as famously expounded by Walter Benjamin. This ‘aura’ is not something found in a common legal document.

Penalver and Sarmiento said that ‘Gonzalez-Torres appropriated the language of the art market and legal system in order to guarantee that the relevance of his art works and ideas were well secured’.¹²⁷ This perhaps points us towards the real importance of these documents, viz. their effects. Regardless of what legal form they may take, what matters is whether they are fit for purpose. We have seen above how the art market is almost a law unto itself, and because of the transnational nature of that market, a willingness to give certificates an importance they may not actually have is a necessary component. Manzoni creating a certificate declaring a person art has no legal status. However the concept behind it is a work of conceptual art and because of this the certificate has value, even if it has no legal standing save for authentication of an idea and as a valuable chattel. Gonzalez-Torres’s certificates are replete with legal language and contain terms that could be relied upon in court, but should a dispute arise, the power of the estate is absolute when deciding what is and is not an authentic work.

Ultimately it is to everyone’s benefit that certificates do not become contentious. The artists want their vision protected and buyers want both the value maintained and want to be true to the source by following instructions properly. If certificates ever make it near a courtroom they have failed. They allow a connection to subsist between the artist and the work which transcends time and space, and because the artist’s hand has been removed from works of art of this sort, that connection is even more important.¹²⁸

Daniel McClean put it well when he said,
‘despite its bureaucratic and legal appearance, the artist’s certificate of authenticity does not provide clarity; it offers only a promise that, like the object, is contingent. With this promise it is the personal relations founded upon trust between artist and collector that count more than the law.’129 Certificates can and should be, tools for the artist to protect and enhance his work and also to progress the cause of art more generally; a ‘strategy to facilitate creative liberty’.130 Let the lawyers worry about the legal implications of these documents, and let the artists concentrate on the concept.

© Ronan Bergin 2020

¹ Sol LeWitt’s dealer on ‘Certificates’, quoted in, Rita Reif, ‘Art of the Mind’s Eye is the Object of Unusual Auction of Conceptual Works’ New York Times (New York 30 April 1987) <https://www.nytimes.com/1987/04/30/arts/art-of-the-mind-s-eye-is-the-object-of-unusual-auction-of-conceptual-works.html> accessed 29 July 2020
² See generally Reif (n 1) and Michael Small, ‘Talk About Lines! a Guy Paid $26,400 for This Drawing – and Then They Demolished It’ People (25 May 1987) <https://people.com/archive/talk-about-lines-a-guy-paid-26400-for-this-drawing-and-then-they-demolished-it-vol-27-no-21/> accessed 25 July 2020
³ ibid (Small)
⁴ Sol LeWitt had no problem with temporary duplicates of his work being created for purposes such as this, although when asked by the New York Times what he thought about the possibility of people cheating, and not erasing works they have sold, he responded, ‘I never could think of anything to do to prevent it’ (Reif n 2)
⁵ Small (n 2)
⁶ Marcel Duchamp, ‘Joan Bakewell in conversation with Marcel Duchamp’, taken from Late Night Line-Up (BBC 1968) available <https://www.bbc.co.uk/programmes/p04826th> accessed 25 July 2020
⁷ Martha Buskirk, ‘Certifiable’ in Susan Hapgood and Cornelia Lauf (eds) In Deed: Certificates of Authenticity in Art (Roma Publications 2012) 98
⁸ ‘Minimalism’ The Art Story <https://www.theartstory.org/movement/minimalism/> accessed 29 July 2020
⁹ ‘Donald Judd. Untitled 1990’ Tate <https://www.tate.org.uk/art/artworks/judd-untitled-t07951>
¹⁰ ‘Minimalism’ <https://www.tate.org.uk/art/artterms/m/minimalism#:~:text=The%20development%20of%20minimalism,art%20of%20the%20previous%20generation.> accessed 25 July 2020
¹¹ Roberta Smith, ‘ART/ARCHITECTURE; Conceptual Art: Over, And Yet Everywhere’ New York Times (New York 25 April 1999) <https://www.nytimes.com/1999/04/25/arts/art-architecture-conceptual-art-over-and-yet-everywhere.html> accessed 25 July 2020
¹² Isaac Kaplan, ‘If You Don’t Understand Conceptual Art, It’s Not Your Fault’ Artsy (31 March 2016) <https://www.artsy.net/article/artsy-editorial-if-you-don-t-understand-conceptual-art-it-s-not-your-fault>
¹³ Sol LeWitt, ‘Paragraphs on Conceptual Art’ in Kristine Stiles and Peter Selz (eds) Theories and Documents of Contemporary Art – A Sourcebook of Artist’s Writings (University of California Press 1996) 822
¹⁴ Lucy Lippard, ‘Escape Attempts’ in Six Years: The Dematerialization of the Art Object from 1966 to 1972 (University of California Press, 1997) vii
¹⁵ ibid ix
¹⁶ Smith (n 11)
¹⁷ Duchamp (n 6)
¹⁸ Lucy Lippard, Six Years: The Dematerialization of the Art Object from 1966 to 1972 (University of California Press, 1997) intro ix
¹⁹ LeWitt (n 13) 826
²⁰ Smith (n 11)
²¹ Lauren van Haaften-Schick, ‘Conceptualizing Artists’ Rights: Circulations of the Siegelaub-Projansky Agreement through Art and Law’ (Oxford Handbooks Online March 2018) <https://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199935352.001.0001/oxfordhb-9780199935352-e-27> accessed 26 July 2020
²² Joan Kee, Models of Integrity: Art and Law in Post-Sixties America (University of California Press 2019) 192
²³ Joan Kee, ‘Felix Gonzales-Torres on Contracts’ (2017) 26 Cornell J L & Pub Pol’y 517, 523
²⁴ Haaften-Schick (n 21)
²⁵ Peter Karol, in conversation with Brian Frye, ‘Peter Karol on Conceptual Art Certificates’ Ipse Dixit Podcast (14 March 2019) <https://www.youtube.com/watch?v=ce7e-WjFQ60&t=1s> accessed 7th August 2020
²⁶ Peter J Karol, ‘Permissive Certificates: Collectors of Art as Collectors of Permissions’ (2019) 94 Washington Law Review 1175, 1183
²⁷ ibid 1182
²⁸ ibid 1184
²⁹ Buskirk Certifiable (n 7) 98
³⁰ See for example figure 1.
³¹ See Van Haaften-Schick (n 21) where she also points out that some artists professed an ‘anti-commodity position’ while also seeking participation within the system.
³² Karol Permissive Certificates (n 26) 1229
³³ See discussion about Giuseppe Panza below
³⁴ Martha Buskirk, ‘Public Experience/Private Authority’ (2017) 26 Cornell J L & Pub Pol’y 469, 476 Buskirk here points to Dan Flavin refusing to issue certificates to works he considered ‘site-specific’ and consequently, they could not be sold or transferred
³⁵ See generally Van Haaften-Schick (n 21) and Kee Models of Integrity (n 22) Chapter 1
³⁶ This is the common law doctrine that a contract cannot impose rights or obligations on a third party who is not part of a contract. This may be relevant because after a number of transfers of an artwork, an artist, despite what the original contract of sale may have said, is no longer a party to further contracts of sale and consequently would not have any rights under same
³⁷ See Van Haaften-Schick (n 21) citing John Henry Merryman and Albert Edward Elsen, Law, Ethics and the Visual Arts: Cases and Materials (New York: Bender, 1979) 4–142
³⁸ It was bad for business. Hans Haacke is one of the very few artists who consistently used it. See Roberta Smith, ‘When Artists Seek Royalties on the Resale’, The New York Times (New York: 31 May 1987) <https://www.nytimes.com/1987/05/31/arts/when-artists-seek-royalties-on-their-resales.html> accessed 8 August 2020
³⁹ Susan Hapgood and Cornelia Lauf, ‘Doodles, Deeds, and Calims’ in Susan Hapgood and Cornelia Lauf (eds) In Deed: Certificates of Authenticity in Art (Roma Publications 2012) 81
⁴⁰ Martha Buskirk mentions the importance of certificates in defining the ‘nature and boundaries’ of the ephemeral artwork, thus allowing it to exist in the marketplace – The Contingent Object of Contemporary Art (The MIT Press 2005) 15-16
⁴¹ Eduardo M Penalver and Sergio Munoz Sarmiento, ‘Law in the Work of Félix Gonzáles-Torres’ (2017) 26 Cornell J L & Pub Pol’y 449, 453
⁴² Shane Burke, ‘Copyright and Conceptual Art’ in Enrico Bonadio and Nicola Lucchi (eds) Non-Conventional Copyright: Do New and Atypical Works Deserve Protection? (Edward Elgar Publishing 2018) 45
⁴³ Zahr K Said, ‘Copyright’s Illogical Exclusion of Conceptual Art’ (2016) 39 Colum JL & Arts 335
⁴⁴ ibid 348
⁴⁵ ibid 348
⁴⁶ ibid 354
⁴⁷ Burke (n 42) 53
⁴⁸ Copyright Designs and Patents Act 1988 (CDPA) s. 1
⁴⁹ ‘Copyright Notice: knitting and sewing patterns’ Intellectual Property Office (UK Government: January 2015) 2 <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/399646/Copyright_Notice_4-2015.pdf> accessed 10 August 2020
⁵⁰ [1963] VR 719
⁵¹ ibid at 735
⁵² Burke (n 42) 48
⁵³ CDPA s. 17(3)
⁵⁴ William Grimes, ‘Giuseppe Panza, 87, Collector of Postwar American Art, Dies at 87’ New York Times (New York 1 May 2010) <https://www.nytimes.com/2010/05/02/arts/design/02panza.html> accessed 9 August 2020
⁵⁵ Buskirk The Contingent Object (n 40) 34
⁵⁶ ibid 34
⁵⁷ ibid 56
⁵⁸ ibid 34-35
⁵⁹ ibid 35
⁶⁰ Martha Buskirk has had access to the archive in the Guggenheim which contains a vast number of letters, certificates and documents relating to Panza
⁶¹ Buskirk (n 40) 35
⁶² ibid) 35
⁶³ ibid 35-36
⁶⁴ ibid 37
⁶⁵ ibid 38
⁶⁶ ibid 40
⁶⁷ ibid 2-3
⁶⁸ Donald Judd, ‘Una Stanza Per Panza’ Originally published in four parts in Kunst Intern (May, July, September, and November 1990) Part 1 available behind paywall <https://www.scribd.com/document/252455226/Una-Stanza-Per-Panza> accessed 8 August 2020
⁶⁹ ibid
⁷⁰ Buskirk (n 40) 37
⁷¹ ibid 41
⁷² ibid 42
⁷³ Greenberg Gallery, Inc. v. Bauman, 817 F Supp 167 (DDC 1993)
⁷⁴ ibid at 174
⁷⁵ ibid at 175
⁷⁶ Daniel McClean, ‘Authenticity in Art and Law: A Question of Attribution or Authorization?’ Art Zip Issue 5 (2012) <http://www.artzip.org/authenticity-in-art-and-law> accessed 8 August 2020
⁷⁷ Patricia Cohen, ‘Ruling on Artistic Authenticity: The Market vs. the Law’ The New York Times (6 August 2012) <https://www.nytimes.com/2012/08/06/arts/design/when-judging-arts-authenticity-the-law-vs-the-market.html> accessed 10 August 2020
⁷⁸As quoted by Buskirk The Contingent Object (n 40) 43
⁷⁹ Buskirk The Contingent Object (n 40) 43
⁸⁰ ibid
⁸¹ Randy Kennedy, ‘Tricky Business: Defining Authenticity’ The New York Times (New York: 20 December 2013) <https://perma.cc/Y8YK-RVT5> accessed 10 August 2020
⁸² Any Battaglia, ‘”The Work of Art Begins to Wobble”: Guggenheim Museum Stares Down Heady Questions about Minimal and Conceptual Art in Panza Collection’ ArtNews (9 April 2019) < https://www.artnews.com/artnews/news/guggenheim-panza-collection-symposium-12322/> accessed 10 August 2020
⁸³ Buskirk Certifiable (n 7) 99
⁸⁴ ibid
⁸⁵ Buskirk (n 40) 45
⁸⁶ ibid 45-46 quoting Sol LeWitt
⁸⁷ In 2015 Crystal & Co. in partnership with AIG Private Client Group announced they were now offering coverage for conceptual art (via the certificate) which had not previously been spelt out in other insurance plans. See ‘Crystal, AIG Offer Conceptual Art Insurance for Private Clients’ Insurance Journal (31 March 2015) <https://www.insurancejournal.com/news/national/2015/03/31/362698.htm> accessed 10 August 2020
⁸⁸ As quoted by Julia Halperin in, ‘One Texas Woman’s Paradoxical and Controversial Quest to Prove She Rediscovered a Major Work of Conceptual Art’ Artnet (18 January 2018) <https://news.artnet.com/art-world/sol-lewitt-drawing-menil-texas-1201514> accessed 28 July 2020
⁸⁹ See Lynn Steen and Joanna Hitchcock, ‘Un-erasing Sol LeWitt <http://unerasingsollewitt.com/> accessed 8 August 2020
⁹⁰ ibid
⁹¹ Paula Newton, ‘Disappeared Sol LeWitt Painting Slowly Reappears in Houston Home’ Glasstire (9 January 2018) <https://glasstire.com/2018/01/09/disappeared-sol-lewitt-painting-slowly-reappears-in-houston-home/> accessed 8 August 2020
⁹² ibid (in comment below piece)
⁹³ Paula Newton, ‘Update: Why “Unerasing” a Sol LeWitt is Impossible’ Glasstire (11 January 2018) <https://glasstire.com/2018/01/11/update-why-unerasing-a-sol-lewitt-is-impossible/> accessed 8 August 2020
⁹⁴ Karol (n 26) 1181
⁹⁵ Steinkamp v. Hoffman, No. 651770, 2012 WL 1941149 (N.Y. Sup. Ct. May 22, 2012) Complaint available <https://iapps.courts.state.ny.us/nyscef/ViewDocument?docIndex=VV2LCXcFA6k5nHSy541g1g==> 8 August 2020
⁹⁶ ibid Paragraph 5
⁹⁷ ibid Paragraph 6
⁹⁸ ibid paragraph 12
⁹⁹ ibid paragraph 5
¹⁰⁰ Quoted by David Deitcher in ‘Contradictions and Containment’ in Julie Ault (ed) Felix Gonzalez-Torres (Steidldangen Publishers 1997), 317 available <http://daviddeitcher.com/wp-content/uploads/2017/06/FTG_ContradictionsAndContainment.pdf> 31 July 2020
¹⁰¹ ‘Felix Gonzalez-Torres’ The Art Story <https://www.theartstory.org/artist/gonzalez-torres-felix/#nav> accessed 31 July 2020
¹⁰² Gregory S Alexander, ‘Objects of Art; Objects of Property’ (2017) 26 Cornell Journal of Law and Public Policy 461, 462
¹⁰³ ‘Felix Gonzalez-Torres’ (n 101)
¹⁰⁴ Quoted by Deitcher (n 100) 318
¹⁰⁵ See for example page 2 of Appendix (a) (2017) 26 Cornell J L & Pub Pol’y [i] which is a certificate for ‘Untitled’ 1989/1990 by Felix Gonzalez-Torres
¹⁰⁶ Kee Felix Gonzales-Torres on Contracts (n 23) 518
¹⁰⁷ ibid
¹⁰⁸ ibid 519
¹⁰⁹ ibid
¹¹⁰ Available at appendix (b) (2017) 26 Cornell J L & Pub Pol’y [i]
¹¹¹ ibid 2
¹¹² ibid 1
¹¹³ Karol (n 26) 1212
¹¹⁴ Kee Felix Gonzales-Torres on Contracts (n 23) 524
¹¹⁵ ibid 531
¹¹⁶ Karol (n 26)
¹¹⁷ ibid 1199
¹¹⁸ ibid 1183
¹¹⁹ ibid 1195
¹²⁰ ibid 1179
¹²¹ ibid 1202-03
¹²² ibid 1218
¹²³ ibid 1219
¹²⁴ ibid 1224
¹²⁵ As pointed out by Kee Felix Gonzales-Torres on Contracts (n 23) 523
¹²⁶ Karol Permissive Certificates (n 26) 1175
¹²⁷ Penalver and Sarmiento (n 41) 451
¹²⁸ Buskirk The Contingent Object (n 40) 3
¹²⁹ McClean (n 76)
¹³⁰ Hapgood and Lauf (n 39) 78

BIBLIOGRAPHY

Legislation

• Copyright Design and Patent Act 1988 (UK)

Case Law
U.S.

• Greenberg Gallery, Inc. v. Bauman, 817 F Supp 167 (DDC 1993)
• Steinkamp v. Hoffman, No. 651770, 2012 WL 1941149 (N.Y. Sup. Ct. May 22, 2012) Complaint available <https://iapps.courts.state.ny.us/nyscef/ViewDocument?docIndex=VV2LCXcFA6k5nHSy541g1g==> accessed 8 August 2020

Australia

Cuisenaire v. Reed [1963] VR 719

Journal Articles

• Alexander, G, S., ‘Objects of Art; Objects of Property’ (2017) 26 Cornell Journal of Law and Public Policy 461
• Buchloh, B, H.D., ‘Conceptual Art 1962-1969: From the Aesthetic of Administration to the Critique of Institutions’ (1990) MIT Press 55
• Buskirk, M, ‘Public Experience/Private Authority’ (2017) 26 Cornell J L & Pub Pol’y 469
• Karol, P, J., ‘Permissive Certificates: Collectors of Art as Collectors of Permissions’ (2019) 94 Washington Law Review 1175
• Kee, J, ‘Felix Gonzales-Torres on Contracts’ (2017) 26 Cornell J L & Pub Pol’y 517
• Penalver, E, P., and Sarmiento, S, M., ‘Law in the Work of Félix Gonzáles-Torres’ (2017) 26 Cornell J L & Pub Pol’y 449
• Said, Z, S., ‘Copyright’s Illogical Exclusion of Conceptual Art’ (2016) 39 Colum JL & Arts 335

Books

• Burke, S, ‘Copyright and Conceptual Art’ in Enrico Bonadio and Nicola Lucchi (eds) Non-Conventional Copyright: Do New and Atypical Works Deserve Protection? (Edward Elgar Publishing 2018) • Buskirk, M, ‘Certifiable’ in Susan Hapgood and Cornelia Lauf (eds) In Deed: Certificates of Authenticity in Art (Roma Publications 2012)
• Buskirk, M, The Contingent Object of Contemporary Art (Cambridge, Massachusetts: The MIT Press 2005)
• Kee, J, Models of Integrity: Art and Law in Post-Sixties America (University of California Press 2019)
• LeWitt, S, ‘Paragraphs on Conceptual Art’ in Kristine Stiles and Peter Selz (eds) Theories and Documents of Contemporary Art – A Sourcebook of Artist’s Writings (University of California Press 1996) 822
• Lippard, L, Six Years: The Dematerialization of the Art Object from 1966 to 1972 (University of California Press, 1997
• Lippard, L, ‘Escape Attempts’ in Six Years: The Dematerialization of the Art Object from 1966 to 1972 (University of California Press, 1997)
• Merryman, J, H. and Elsen, A, E., Law, Ethics and the Visual Arts: Cases and Materials (New York: Bender, 1979)

Websites

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• Cohen, P, ‘Ruling on Artistic Authenticity: The Market vs. the Law’ The New York Times (6 August 2012) <https://www.nytimes.com/2012/08/06/arts/design/when-judging-arts-authenticity-the-law-vs-the-market.html> accessed 31 July 2020
• ‘Copyright Notice: knitting and sewing patterns’ Intellectual Property Office (UK Government: January 2015) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/399646/Copyright_Notice_4-2015.pdf> accessed 10 August 2020
• ‘Crystal, AIG Offer Conceptual Art Insurance for Private Clients’ Insurance Journal (31 March 2015) <https://www.insurancejournal.com/news/national/2015/03/31/362698.htm> accessed 10 August 2020
•  Deitcher, D, ‘Contradictions and Containment’ in Julie Ault (ed) Felix Gonzalez-Torres (Steidldangen Publishers 1997) <http://daviddeitcher.com/wp-content/uploads/2017/06/FTG_ContradictionsAndContainment.pdf> accessed 31 July 2020
•  ‘Donald Judd. Untitled 1990’ Tate <https://www.tate.org.uk/art/artworks/judd-untitled-t07951> accessed 29 July 29020
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•  Halperin, J, ‘One Texas Woman’s Paradoxical and Controversial Quest to Prove She Rediscovered a Major Work of Conceptual Art’ Artnet (18 January 2018) <https://news.artnet.com/art-world/sol-lewitt-drawing-menil-texas-1201514> accessed 28 July 2020
•  Judd, D, ‘Una Stanza Per Panza’ Originally published in four parts in Kunst Intern (May, July, September, and November 1990) Part 1 available behind paywall <https://www.scribd.com/document/252455226/Una-Stanza-Per-Panza> accessed 8 August 2020
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•  Small, M, ‘Talk About Lines! a Guy Paid $26,400 for This Drawing – and Then They Demolished It’ People (25 May 1987) <https://people.com/archive/talk-about-lines-a-guy-paid-26400-for-this-drawing-and-then-they-demolished-it-vol-27-no-21/> accessed 25 July 2020
•  Smith, R, ‘ART/ARCHITECTURE; Conceptual Art: Over, And Yet Everywhere’ New York Times (New York 25 April 1999) <https://www.nytimes.com/1999/04/25/arts/art-architecture-conceptual-art-over-and-yet-everywhere.html> accessed 25 July 2020
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• Karol, P, in conversation with Brian Frye, ‘Peter Karol on Conceptual Art Certificates’ Ipse Dixit Podcast (14 March 2019) <https://www.youtube.com/watch?v=ce7e-WjFQ60&t=1s> accessed 7th August 2020