Moral Rights – Destruction of the Artwork

INTRODUCTION

Is it the case that the best thing for art and artists is to avoid the destruction of artworks at all costs? If there are decisions to made regarding the destruction of artworks, who should make them? Picasso once said, ‘Every act of destruction is first an act of creativity’,¹ and it can surely be argued that new art may indeed spring from the destruction of the old and that that should be encouraged or at least protected. There are of course numerous specific examples and types of art generally that incorporate or even rely on destruction. As definitions, sensibilities, and working practices in the artworld evolve, they can come into conflict with laws that are ostensibly in existence to protect the artworks and artists in question.

Destruction in moral right’s law is not solely confined to the integrity right as we shall see. Can it be said that there is a right to destroy as well as a right to object to destruction?

This essay will look at the conflicts between differing moral rights regimes in various jurisdictions concentrating on those of France, the UK, and the US while also touching upon others. We will discuss whether moral rights laws in each are fit for purpose and indeed whether having strong moral rights laws is necessarily a good thing when faced with the ever-changing nature of art. Towards the conclusion, we will look at ‘destruction’ in art and at arguments asserting that moral rights in fact hamper creativity. This will all be done with a focus on the idea of the ‘destruction’ of artworks. In order to do this however, we will need to put moral rights in both an historical and geographical context, centering on artists and artworks, and all the while keeping an eye to the future.

WHAT ARE MORAL RIGHTS AND WHERE DID THEY COME FROM?

Moral rights are a creature of the civil law. It is only in the last 30 years or so that they have gained any sort of foothold in the common law world and then only to a limited extent.² The term ‘moral rights’ has its origin in the French, ‘Le Droit Moral’ but the direct translation into English does not adequately describe what those rights entail. As Cyrill P Rigamonti put it, the term is ‘a misnomer in the sense that moral rights are neither the opposite of immoral rights nor of legal rights.’³ In fact, whereas copyright attempts to protect the economic rights of an author⁴, moral rights are an attempt to protect something far more personal to the creator of an artwork. Joseph Sax sets out that an artist continues to have an interest in their creation, even after it has left them, and that this interest is linked to his reputation.⁵ Moral rights have also been variously described as being concerned with an artist’s relationship with his own work,⁶ to the notion of ‘artist as genius’ that evolved in the nineteenth century,⁷ and to ’a right of personality’.⁸ ‘Moral rights imply that an indissoluble bond exists between author and work and that in damaging the work or failing to ascribe proper recognition, the creator is somehow harmed.’⁹ To quote Julia Rodrigues Casella Hommes, ‘In a rough simplification, it could be said that moral rights are concerned with the artist him/herself and his/her personality, whereas copyright is concerned with the artwork itself, its reproduction and economic exploitation’.¹⁰ It might be added to this definition however that moral rights also find themselves confronted with issues surrounding the public interest at large, but we shall discuss this further when we look more closely at the integrity right.

There are a number of different types of moral rights, and not all of them are recognised in every jurisdiction. As France is a renowned bastion of moral rights,¹¹ it will be helpful to explore the different types from their perspective. France gives stronger protection to moral rights than most other jurisdictions.¹² At a glance, French moral rights consist of four separate rights. Le droit à la paternité, or the attribution right; le droit au respect de l’oeuvre, or the integrity right; le droit de divulgation, or the disclosure right; and le droit de repentir or de retrait, the right of withdrawal.¹³ These four rights, although extant in France, are by no means either universal or consistently applied. As we shall see, the evolution of moral rights took place at different speeds and at different times, depending on where one looks. Although this essay is mainly concerned with the right to integrity, moral rights are often taken as a whole¹⁴ and as such, it will be useful to briefly look at each in turn.

The attribution right, also known as the paternity right is the right to be identified as the author of a work. Of moral rights, it is the one that comes up the most and may be described as being somewhat economic in nature in that it is necessary to establish ones authorship of a work in order to gain any financial benefit from it.¹⁵ In the UK, this right only applies when the work is published commercially or communicated to the public in some way¹⁶ and unusually the right must be asserted before it may be relied upon.¹⁷ This is in contrast to France where an author has the right to be identified ‘whenever a work is exhibited or reproduced’.¹⁸ The right in France is also wrapped up in the right not to be identified (i.e. remain anonymous) and to deny authorship.¹⁹ In the UK section 84 of the Copyright, Designs and Patents Act 1988 (The CDPA) states that an author has the right to not have a work either expressly or implicitly falsely attributed to them. This is not part of the integrity right per se as in France, but is separately set out.²⁰

We will be delving more deeply into the integrity right below, but it is useful to set the scene here. Plainly put, the integrity right gives artists some control and some opportunities to object to what use their work is put to even after they have parted with the object and its associated copyright.²¹ Merryman defines a breach of this right as a ‘[d]istortion, dismemberment or misrepresentation of the work [which] mistreats an expression of the artist’s personality, affects his artistic identity, personality, and honor, and thus impairs a legally protected personality interest.’²² Rigamonti defines it as providing authors ‘with a right to prohibit modifications of their works without their consent.’²³ However, as Ruth Redmond-Cooper points out, ‘the scope of this right varies greatly from one jurisdiction to another’.²⁴ These variances will be set out in further detail later on but briefly, the right allows an artist to object to any treatment of their work that they consider objectionable. Treatment covers for instance any addition to, deletion from or alteration to or adaptation of the work.²⁵ In the UK this treatment must be derogatory, and negatively affect the artists ‘honour or reputation’.²⁶ The strength of the right and likelihood of success varies greatly worldwide with France taking a subjective view of the matter, focusing on whether the artist feels that the treatment is such as to be a breach of his right. The UK takes an objective view however and looks at whether it is reasonable to say that the treatment lowers the ‘honour and reputation’²⁷ of the artist in the eyes of the public. When it comes to total destruction of a work of art the two jurisdictions are again entirely at odds whereas the US takes a leaf from each book by attempting to decide between works of art that deserve protection and those that do not. A comparison of these different regimes shall be forthcoming but it is interesting to note briefly here the wildly differing approaches to the right of integrity.

In 1893 James Whistler was commissioned by Lord Eden to paint a portrait of Lady Eden. Whistler was living in Paris at the time and ultimately a dispute arose about the amount of payment. Whistler, feeling insulted, refused to deliver up the portrait and in fact, painted out the head of Lady Eden. Lord Eden sued Whistler in the French courts for a number of reliefs including for restoration and delivery of the painting. Although Whistler had to pay damages and pay back the money he had been given, the court held that he could not be compelled to restore the painting and deliver it up to Lord Eden, despite an agreement to do so.²⁸ Here we see Whistler asserting his moral right of disclosure. ‘This component of the moral right gives the artist the absolute right to decide when (and whether) a work of art is complete, and when (and whether) to show it to the public.’²⁹ This right, does not appear in UK or US law and according to Redmond-Cooper, is not fully developed in France either.³⁰

Finally, there is the right of withdrawal. The idea behind this, is that an artist should have the right to decide what work the public should be allowed to see, and to decide what body of work properly represents him as an artist. Consequently, in France at least, there is a right in existence whereby an artist, on payment of an indemnity to the owner of the work, can take back their artwork. This is a rarely used right however³¹ and can be a hard one for those not from civil law countries to understand.³²

These rights as mentioned above, are treated differently in different jurisdictions. This is also true for the duration of the rights and any possibility of waiving them. We shall look briefly now at how this state of affairs came to be.

The Origin of Moral Rights

Most commentators place the origins of moral rights in the nineteenth century with German and French philosophical and legal scholarship, ³³ and more often than not, cite France as their birthplace.³⁴ It is true that moral rights in France first entered legal discourse from within judicial decision making³⁵ but interestingly, it was not until 1957 that they were enumerated in French legislation.³⁶ Merryman himself says, ‘It is interesting to note that the moral right of the artist in French law is entirely judicial in origin.’³⁷ Merryman fails to point out however that judges did not simply just pluck these rights out of thin air.³⁸ As Susan P. Liemer points out, these rights were very much in the public consciousness already when these judicial pronouncements were being made and had been for a long time before that.³⁹

Liemer, in her essay, ‘On the Origins of Le Droit Moral: How Non-Economic Rights Came to Be Protected in French IP Law’ tracks the origins of moral rights back far further that most other commentators. Although she states that Roman Law had no intellectual property law, she does point to a number of powerful social norms that were attached to the artist and their work. These could not by any means be considered legal rights, but they do point to a public understanding of the value in protecting works of art. Liemer states that these social norms could ‘at best make them only rudimentary precursors to le droit moral’⁴⁰ but these customs or norms can be seen as an alternative explanation for the emergence of moral rights.⁴¹ However, she dismisses direct or continuous links between ancient Rome and le droit moral explaining that without an understanding of the artist as an individual, individual artist rights could not appear.⁴²

The Renaissance began to change people’s conception of artists and ‘By 1500, a few individual visual artists were rising to such prominence that they were able to begin to change the paradigm.’⁴³ Liemer points to Michelangelo as one of the first to assert his moral right of disclosure when he refused to let Pope Julius in to see how his Sistine Chapel was progressing.⁴⁴ Again, this was not a legally protected right but a right that stemmed from his prominence and reputation as an artist. In France at this time, writers began to insist upon rights that were not solely economic in nature and as Liemer says, ‘Protecting the creative expression of an individual person became a known value. A culture that could develop le droit moral was emerging in France.’⁴⁵ Liemer goes on to point directly to La Comédie-Française, which was a theatre company founded in 1608, as the thing that truly began to change things. ‘I posit that it was the Comédie-Française playwrights, with their very particular, heightened need to assert their honor and reputations, who made it possible for non-economic interests in creative work to become more fully recognized by French law.’⁴⁶ Liemer explains that it was necessary for the writers to attempt to protect the honour and reputation in both themselves and their work, often over and above the economic interests therein.⁴⁷ After a play was finished, it belonged to the troupe. The writer however could expect to be allowed to consult on creative decisions. ‘Thus, the economic right was separated from the integrity right, with the latter attaching to the author instead of the work.’⁴⁸ As time moved on, these interests became expectations and then in turn spread to other areas in the art world. After the revolution in France in, Napolean’s code was enacted in 1804⁴⁹ and although it made no mention of moral rights, these rights were seen in the courtroom and developed over the years, and ultimately put in writing in 1957.⁵⁰ ‘[A] very literal application of the Code would not necessarily have led to the further development of the non-economic, personal interests in intellectual property protected by le droit moral. But case by case, in judicial decisions, this area of the law did develop in France, even as the Code continued to not specifically address it.’⁵¹

Ultimately Liemer has pointed to a culture in France, long developed but present for hundreds of years, of appreciating non-economic rights that artists have. This is a persuasive line of reasoning and goes some way to explain why moral rights are so strong in France, and why they are so intricately linked to the reputation of the artist. In the 1880s, the writer Victor Hugo presided over the original Berne Convention.⁵² This is an international treaty, providing minimum standards of protections to creators however it was not until the 1928 revisions that moral rights were introduced.⁵³ These are limited however to the paternity right and the integrity right.⁵⁴
All of this serves to put moral rights in both an historical and geographical context. It sets the scene for why both the moral right of integrity and the issue of destruction are treated so differently around the world. It very much follows that if a society accepts that there is some intangible link between an artist and their creation that goes beyond an economic interest, any assault upon that is likely to do injury to the artist. When honour and reputation are at stake, there is a sense that the issues go beyond money. The common law used various means to protect similar rights such as defamation, passing off and injurious falsehood,⁵⁵ but mostly, the idea of moral rights was alien to it.⁵⁶ This is due to historical reasons as set out. The common law puts a premium on property, which according to Laurine Nocella, ‘can be seen as a residual influence of philosopher John Locke.’⁵⁷
We will now turn to look more closely at the moral right of integrity and specifically, the issue of destruction within it. This will be done by comparing its treatment in the three different jurisdictions of the UK, France, and the US.

INTEGRITY AND DESTRUCTION: THE UK, FRANCE, AND THE US
The integrity right is treated differently in the above-mentioned three jurisdictions. At its crux, the right pre-supposes an intangible, long-lasting link between the artist and his creation which is related to his honour and reputation. Therefore, any non-consensual modification or alteration to the artwork breaches the artist’s moral rights, thus causing him harm. The differences between how this right is dealt with in various legal systems tend to become clear when we look at first of all, what alteration and modification actually mean and secondly, who decides what, if any, effect that has on the artist or his honour/reputation. Importantly for our purposes, we must look at how ‘destruction’ is treated under this right in each jurisdiction. Some commentators point out that the destruction of a work seems the ultimate blow to an artist and is therefore the absolute extreme form of mutilation.⁵⁸ Others argue that the very fact that the work is destroyed (and therefore no longer visible) renders in effect the entire matter moot. How can something that no longer exists have any impact on an artist’s honour or reputation?⁵⁹

Furthermore, the length of time that moral rights subsist has no overall consistency worldwide with some limiting their duration to the life of the artist⁶⁰ and others are perpetual⁶¹ (with some falling somewhere in between these two levels). If the integrity right is personal to the author and mainly concerned with his honour and reputation, some commentators question why it should survive the death of the author ‘ghostlike’ at all.⁶² The contrary position to this is one more focused on the public interest and their apparent right to experience artworks in the way that the artist intended.⁶³ And finally there is the matter of artists destroying their own work. Does it follow that if an artist has the right to prevent the destruction of his work due to reputational issues, he should therefore have the right to insist upon destruction for similar reasons? What then of the public interest and is there a case to restrain even the creator from destroying that which he created? It is these issues that we will now focus upon as seen through the lens of each of the three different jurisdictions and ultimately from the point of view of the artist and public too.

The UK

The common law has long looked at the strong moral rights regimes in places like France with something close to disquiet.⁶⁴ It was only in 1988 with the enactment of the CDPA that moral rights were given any statutory consideration in the UK. In fact, prior to the introduction of the CDPA and under the Fine Arts Copyright Act 1862, the owners of artworks could make any alterations they wished so long as they did not attribute them to the original artist.⁶⁵ Moral rights were introduced in only a very limited fashion however. This is evident in the broad waivability⁶⁶ of moral rights in the act as the CDPA ‘rejected the paternalist approach prevalent in Continental moral rights legislation’.⁶⁷ Newman describes moral rights as ‘very much “tacked on” to the system of copyright [in the UK]’.⁶⁸ The CDPA sets out the integrity right in section 80 and describes it as the ‘Right to object to derogatory treatment of work’. It then goes on to substantially limit any power this section may have actually had. ‘The CDPA allows authors and directors to validly consent to any act that violates their moral rights.’⁶⁹ Rigamonti goes so far as to say that because of the limitation placed upon them, statutory moral rights in the UK are ‘largely symbolic’.⁷⁰

The relevant sections in the CDPA for our discussion about ‘destruction’ are as follows:
S. 80 (1) The author of a copyright literary, dramatic, musical or artistic work, and the director of a copyright film, has the right in the circumstances mentioned in this section not to have his work subjected to derogatory treatment. S. 80 (2)(a) “treatment” of a work means any addition to, deletion from or alteration to or adaptation of the work… S. 80 (2)(a) the treatment of a work is derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director;

The above sections may give an artist recourse if his work is modified against his wishes, but they give no protection from the outright destruction of a piece.⁷¹ The reason for this is that in order to fall under the above section, the work must have undergone a ‘treatment’. The definition of ‘treatment’ as, ‘any addition to, deletion from or alteration to or adaptation of the work’, clearly encompasses a situation where a work is destroyed.⁷² The problem for the artist lies in the fact that said treatment must be ‘prejudicial to the honour or reputation of the author’. As previously mentioned, the argument goes that the non-existence of something cannot be prejudicial to the honour or reputation of the artist. The courts in the UK take an objective approach here, deciding the matter based on whether the public would think the artist’s reputation has suffered.⁷³ Copinger and Skone James on Copyright⁷⁴ points to an Indian case where it was held that by reducing the overall body of an artist’s work, his reputation is prejudicially affected, however they do not think this would be followed in the UK.⁷⁵ As a result, the owner of the physical work tends to be in a better position with regard to destruction than the artist himself. This is not however in keeping with the apparent purpose of moral rights which is to ‘qualify property rights in certain objects.’⁷⁶ As we shall see, this is the opposite position taken in France, where the courts take a subjective view and take as their starting point the feelings and opinions of the artist himself. Furthermore, As there is no right of withdrawal and only limited integrity rights in the UK, there is no right to destroy ones own artwork when ownership of the physical work has passed from the artist. In Snow v Eaton Centre Ltd⁷⁷, artist Michael Snow successfully relied on his integrity rights in Canada when he objected to Christmas ribbons being put on his public sculptures of geese. Referencing this, and in a tone deftly combining sarcasm, frustration, and despair, Teilmann laments: ‘there is no consolation for us when a displeased sitter destroys “his own” portrait by a famous artist⁷⁸, or when a painting by Van Gogh vanishes at a collector’s whim. Both these actions are among the privileges of ownership, and are therefore legal. But to tie a ribbon around a fibreglass goose for the duration of the festive season? Certainly not: there are laws against that.’⁷⁹

France

The integrity right, like all moral rights in France, is both inalienable and perpetual⁸⁰ and, as previously discussed, France is held up as ‘a model for moral rights law’.⁸¹ In France, these rights are protected under the French Intellectual Property Code, but as we have seen, they have been around much longer than this statute. When it comes to matters relating to the integrity right, artists in France do not have to demonstrate any damage to their reputation or honour.⁸² ‘The right exists to ‘protect the artist’s personal and emotional involvement with the work’.⁸³ The courts in France use a subjective test and because of this, it is far easier for an artist to succeed in claims relating to destruction.⁸⁴ Having said this, Newman points out than an over-emphasis of moral rights’ importance in France is not warranted either. ‘Actual cases where an author has recovered substantial damages from the French courts for infringement of his moral rights are very few’.⁸⁵ Injunctive relief may be awarded however, which can of course have large financial consequences.⁸⁶ When it comes to destruction, the scene is a very different one in France than in either the UK or the US. Instead of only using or attempting to use the right of integrity to prevent destruction, French artists in recent years have used the destruction of their artworks (or the threat thereof) to preserve their integrity rights.⁸⁷ Sofie G. Syed points to French artists such as Daniel Buren⁸⁸ and Alain Mila⁸⁹ who have asserted a ‘right to destroy’ in order to protect their integrity.⁹⁰ Syed points out that ‘the invocation of the right to destroy generated public debate about the boundaries of the moral right of integrity in practice.’⁹¹ She points to the right of withdrawal as a possible justification for an artist’s right to insist upon their artwork being destroyed. If removing the artwork ‘expresses a unique message, withdrawal might serve a purpose consistent with broader aims of droit moral.’⁹² However, because of indemnity issues surrounding the right of withdrawal, French artists have centred their apparent ‘right to destroy’ in the integrity right.⁹³ We shall discuss artists destroying their own work in more detail below but suffice it to say, it is in France where an artist would have the most chance of asserting such a right. In 1931, Charles Camoin, an expressionist artist, sued the writer Francis Caro. Camoion had slashed and discarded some of his own works, only to have them found, restored, and put up for sale by Caro. The court sided with Camoin and ordered the destruction of the work as he had wished, but focused on the right of disclosure rather than integrity.⁹⁴ As we can see from these examples, when we discuss the destruction of artworks, more rights than simply integrity can come into play.

The US

In the US, what moral rights exist are to be found in the Visual Artists Rights Act 1990 (VARA), and they last for the life of the author. As in the UK, the disclosure right and withdrawal right are not present and with regards to the integrity right, its narrow scope dilutes its effectiveness. However, within this narrow scope, VARA ‘follows the moral rights orthodoxy much more closely than the CDPA.’⁹⁵ Under VARA, artists may object to ‘any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation’.⁹⁶ This only applies however to ‘works of visual art’ which are ‘essentially defined as paintings, drawings, prints, photographs produced for exhibition purposes, or sculptures.’⁹⁷ Artist’s in the US also have the right to object to the destruction of artworks of ‘recognized stature’⁹⁸ Furthermore, any ‘intentional or grossly negligent destruction of that work is a violation of that right’.⁹⁹ This puts the US in the surprising position of being one of the very few countries in the world to explicitly prohibit a form of destruction of artworks.¹⁰⁰ Although this VARA protection is limited, it says more about destruction than the UK, and most other European countries.¹⁰¹ In Carter v Helmsley-Spear Inc, the court stated that ‘the recognized stature requirement is best viewed as a gate-keeping mechanism’.¹⁰² It explained that the views of art experts, the art community and the public were the relevant factors. However, as Mathilde Pavis points out, this gives judges final say and ultimately puts them in the ‘difficult position of acting as cultural gatekeepers’.¹⁰³ This can be seen in the recent decision in the 5pointz case,¹⁰⁴ where a judge concluded that the whitewashing of a large and well-known graffiti wall was in breach of VARA as the work was of recognised stature. He awarded the enormous sum of $6.75 million. Before the introduction of VARA, the art historian Albert Elsen wrote, ‘If moral rights laws are enacted, some of my art historian colleagues are concerned that we will never be able to do away with bad art.’¹⁰⁵ Perhaps his colleagues were concerned with a French-style moral rights regime being introduced. As we know however, the US brought in essentially the same protection for moral rights as the UK with the one big exception being the protection from destruction for works of recognised stature. This could be said to be a happy middle ground, but problems arise when confronted with questions such as who decides what is worth protecting and who are we protecting art for. It is now time to look more closely at artists, their art, and destruction as a whole, removed from a legal perspective. This is so we can, with the benefit of having set out various different moral rights regimes, attempt to determine which of any work best and for whose benefit.

DESTRUCTION IN ART

One cannot purport to look at moral rights in any detail without examining their purpose. In France, the purpose of the moral right of integrity is based on protecting the ‘intimate bond’¹⁰⁶ between the artist and his work whereas in the US, it seems the integrity right and the right to object to the destruction of a piece is grounded more in the public interest and the preservation of work, although even then, the public has no cause of action under VARA¹⁰⁷. The UK appears to treat moral right as a burden, acceding to them only to adhere to international obligations.¹⁰⁸ However, with intellectual property rights as a whole, we must remember their true purpose viz. to encourage the creation of art. It is here argued that integrity rights, as with moral rights in general, have lost sight of this goal as the art world moves beyond the scope of legally defined parameters. There is a strong presumption in the literature that moral rights are a good thing; the stronger the better.¹⁰⁹ This does not hold up however when we look at the integrity right and destruction more closely and how they may interact with the artworld. There are two issues at play here. What should an artist be able to do with his own work and what should artist be able to do to other artworks.

Amy Adler bucks the trend in moral rights discourse as she challenges what are for many self-evident truisms in her essay ‘Against moral rights’.¹¹⁰ She focuses on current artistic practices and the integrity right in particular as she argues that ‘moral rights laws endanger art in the name of protecting it’¹¹¹ and more specifically, that ‘the right of integrity threatens art because it fails to recognize the profound artistic importance of modifying, even destroying, works of art, and of freeing art from the control of the artist.’¹¹² She points out that the public’s interest does not always coincide with the artist’s interest and argues that artists cannot always be trusted with their own work.¹¹³ This she can only argue by attacking the widely held notion of a parent/child-like relationship between an artist and their work and the glorification of artworks themselves. ‘Moral rights law depends on and glorifies a line between art and everyday objects that no longer exists.’¹¹⁴ Separately she points to contemporary art practices that work with destruction and discusses an artworld rebelling against notion of art enshrined in moral rights law.¹¹⁵ These are bold statements, a fact she readily acknowledges, but her insistence on viewing moral rights through the prism of contemporary art practice feels novel and important. Adler quotes Alan Liu as saying ‘the history of art is incomprehensible without a matching history of ‘de-arting’’.¹¹⁶ We will now turn to some specific examples of destruction in its various forms in the art world.

In 2014, Lutz Henke wrote and article in the Guardian Newspaper explaining why he had taken part in the destruction of famous graffiti in Berlin that he co-created with Italian graffiti artist Blu, and French artist JR.¹¹⁷ In the dead of night he and his accomplices painted over the huge ‘Kreuzberg murals’ which he describes as often being referred to as ‘Berlin’s most iconic street art.’¹¹⁸ To the artists, the work was ‘directly linked to the history of this district of the city, which used to border directly on to East Germany.’¹¹⁹ However, the work became commercialised, with tourists coming to visit and gentrification taking place all around the area. The original meaning of the work was lost. Henke explains that they destroyed the work ‘out of sorrow’.¹²⁰ Syed states about this destruction that ‘Henke’s exercise of a right to destroy without formal approval subtly emphasizes the fundamental nature of an author’s connection to their work; here, public justification of the act is an afterthought, not a prerequisite.’¹²¹ But there is more to it than that. Henke himself says this act of destruction ‘signifies a rebirth: as a wake-up call to the city and its dwellers, a reminder of the necessity to preserve affordable and lively spaces of possibility, instead of producing undead taxidermies of art.’¹²² Not only have they unilaterally enforced their integrity right (or even perhaps their withdrawal right) through destruction, they have created, in his eyes, a new work from the destruction of the old.

British artist Michael Landy created a performance piece called ‘Break Down’ in 2001 whereby he systematically catalogued every single one of his possessions and then went ahead and destroyed them all.¹²³ This is a clear and simple example of ‘destruction’ being used as a medium in a work of art. What makes it more interesting for our purposes however, is that included in his possessions were works of art by people like Tracey Emin and Damien Hirst.¹²⁴ As explained earlier, under UK law, no one could have stopped him destroying these. Not the original artists or the public; there was and is no law preventing someone from outright destroying works of art. But from this destruction we have Landy’s ‘Break Down’. The entire force behind his performance piece would have deflated had he hesitated and decided he would only destroy most things but not all.

Adler is not alone in focusing on contemporary art practices when looking at moral rights. Jessica Lewis is relatively scathing of moral rights in her essay, ‘With Love and Kisses: Nothing Lasts Forever: An Examination of the Social and Artistic Antiquation of Moral Rights’.¹²⁵ She too sees strong moral rights provisions as a shackle on proper development of modern art. She links public interest with a more ‘free-flowing, interactive expression’¹²⁶ and claims that ‘[b]oth economic and moral rights work to reward already-formed works and to limit further creations’.¹²⁷ This in stark contrast to Merryman’s views on what is in the public interest viz. ‘the interest of others in seeing, or preserving the opportunity to see, the work as the artist intended it, undistorted and “unimproved” by the unilateral actions of others’.¹²⁸ Herein lies one of the many contradictions in moral rights law and attempts to prevent destruction: the public interest and the artist’s interest do no always overlap. On the one hand you have moral rights saying the author should be sole arbitrator on his own work, which is an argument that people like Merryman link to the public interest in preserving work. But this mindset can conflict with the public’s interest when the artist wishes to destroy his own work or, to destroy someone else’s work in order to make valid art from that very act. Is the public best served by protecting artworks as they are now in stasis for ever, or by allowing a more open and free culture of creative expression. Lewis says ‘Modern art is a fluid experience that can feature and result from modification or destruction. Thus moral rights can have the effect of stalling the creation of contemporary art.’¹²⁹ Adler would agree, and so would I. It is ironic of course that it took generations for artist to successfully argue that their work was more than mere craftmanship and therefore deserving of special protection, only to have many contemporary artists now rebelling against this very notion.

Conclusion

Like the history of art, moral rights have developed and changed over time to reach the point that they are at now. What this essay has attempted to show is that through the idea of ‘destruction’ we can perhaps see most clearly where moral rights fall down. A broad civil law tradition of strong moral rights being placed in conflict with the reverse, i.e. a weak tradition of moral rights protection in common law countries, ignores the fact that neither perhaps are best for the flourishing of art. Moral rights protect artworks and the integrity right attempts to protect from destruction. However, as Juan Javier Negri says, ‘Today the destruction of a work of art is part of the creative process.’ ¹³⁰ Protecting artworks as a general rule without further thought, is not enough in this modern age. As has been discussed above, there are other ways of thinking about the issue and consequently there are other ways to better regulate moral rights and in particular, ideas surrounding destruction. It seems counter-intuitive to argue the two extremes that artworks should be protected from destruction because of their connection to the author, and on the other hand arguing that an author should have no barriers to destroying his own work, wherever it may be. This essay does not pretend solve these issues and overturn moral rights laws in general, but to point to the possibility of a middle ground, perhaps closer to the US’ idea of ‘recognized stature’. Gregory S Alexander reminds us that the issue is not simply black and white. ‘Recognition of the right to destroy a work of art in the Churchill case would not necessary commit us to conceding that all other owners of art must be granted the same right’.¹³¹ Whether protecting from destruction or arguing for a right to destroy, it is the artists who have always pushed these issues forward, being as they are, the ones actually creating the work. As we have seen, artists are now, once again, pushing these boundaries in their work, using the idea of destruction to advance our collective ideas of what art is and can be. It is lucky for us that these artists did not sit around and wait for moral rights to catch up with them.

© Ronan Bergin 2020