But within our practices and within the law, we do in fact treat artworks differently than other kinds of objects. I think that is a part of what makes disputes over the ownership of artworks so compelling. (And each week seems to bring another story in the media about the recovery or restitution of artworks: Ancient statutes returned to Cambodia, the horde of Nazi-looted artworks found in the apartment of Cornelius Gurlitt, the Banksy mural removed from a wall in Bristol and confiscated by the local government.) These disputes challenge some of our intuitions in fundamental ways. They force us to think about our usual notions of “ownership” and what it means for an individual or an institution to possess something.
We usually think of ownership as meaning that we have some basic rights over objects that we own. First among these is the “right to exclude.” If I own land, then ordinarily I have the right to stop others from trespassing onto that land. If I own a shovel, I might lend it to you if you ask, but I also have the right to refuse. If I own a painting, I am also within my rights to hide it away and refuse to allow anyone else to see it. However the right to exclude has limits. I don’t have the right to exclude the police from my land if they have a search warrant. And while I have the right to deny access to the artworks I possess, the reality is that dealers for the most sought-after artists may decline to sell to a collector whom they believe will refuse to lend the work out for exhibitions. Ensuring that the works go to the “right” kinds of “cooperative” buyers is often more important than making a sale.
Another right that ownership confers is the right to use or alter something as I wish. I can paint my shovel any colour I want, I can replace the blade if it becomes damaged, I can even shorten the handle to make it easier to use. But in many jurisdictions I would not have similar rights over an artwork, even if I owned it. Artists retain “moral rights” over their creations even when they no longer have physical possession. In areas where moral rights are protected, no one may alter or destroy a work without the artist’s permission.
Moral rights typically expire at some point after an artist’s death. Yet the right to destroy an artwork that one owns is not an obvious entitlement, even if the artist’s moral rights no longer apply. Collector Ryoei Saito caused a scandal in 1990 when he “joked” that two paintings he had bought at auction – one by Van Gogh and one by Renoir – were to be cremated and buried along with him when he died. Perhaps even more strange (from a legal point of view) are cases when someone else, other than an artwork’s owner or creator, claims the right to destroy it. The Chagall Committee, an organization run by the artist’s grandchildren to protect the late painter’s reputation, authenticates works and also claims the right to destroy forgeries so that they never appear on the open market. Imagine the shock of British collector Martin Lang who was told, not only that the painting which he had bought for the equivalent of nearly $200, 000 Cdn. was a likely forgery, but that it was slated for destruction.
Finally, we ordinarily have the right to transfer the ownership of things we own. I am free to give away, trade or sell my shovel. Again, the situation is more complicated with artworks. Many countries have laws forbidding the export of significant works. Bequests of art may come with prohibitions against transfer, and it is not always straight-forward whether a museum has the right to de-access works.
There are restrictions on the transfer of artworks may not come as a surprise. In fact, the whole area of what counts as a “valid” transfer – of an artwork or of anything else – is fraught. I’ll have more to say about it in a later post.