A year ago Isamu Noguchi's "Shinto," a 1,600-pound aluminum sculpture which hung from the lobby ceiling of the Bank of Tokyo near Wall Street, was ordered cut to pieces by bank executives displeased with the work. When Noguchi learned of its destruction, he remarked sadly that "as long as they paid me for it, I have no legal right." The bank felt no obligation to contact Noguchi because the sculpture was their property. But because it was their property, had it ceased to be Noguchi's art?
In Pennsylvania, Allegheny County officials altered Alexander Calder's monumental black and white mobile "Pittsburgh" by first repainting it green and gold, the county colors, then painting it a distorted "Calder Red" that the artist claimed was pink, and finally by readjusting Calder's subtle balancing of the mobile so that its parts never moved as the artist intended them to move. Should ownership of the mobile give the county the right to make changes in a sculpture which is exhibited as the work of Alexander Calder?
After sculptor David Smith's passing in 1965, critic Clement Greenberg and artist Robert Motherwell, executors of Smith's estate, ordered the removal of paint from the surface of his sculptures without regard for the artist's intentions and the integrity of his work. What protection is there from such vandalism?
Former Congressman Robert F. Drinan left behind him in the House of Representatives a bill which might offer a partial solution to such problems. The Moral Rights of Artists Bill, cited as the "Visual Artists' Moral Rights Amendment of 1979," would revise the copyright law "to secure the rights of authors of pictorial, graphic, or sculptural works to prevent the distortion, mutilation, or other alteration of such works, and for other purposes," by adding these lines:
"Independently of the author's copyright in a pictorial, graphic, or sculptural work, the author or the author's legal representative shall have the right, during the life of the author and 50 years after the author's death, to claim authorship of such work and to object to any distortion, mutilation, or other alteration thereof, and to enforce any other limitation recorded in the Copyright Office that would prevent prejudice to the author's honor or reputation."
The concept of an artist's moral right or droit moralm is French in origin, and has been recognized since 1928 by the Berne Convention, made up of countries including France, Germany, Italy, Mexico, and Venezuela. (The United States is not a party to the convention.) When Representative Drinan introduced the Artists Moral Rights Bill, he said that moral right is really "an extension of the personality of the author and seeks to protect the creativity which produced the art work." Unlike copyright, moral right goes beyond economic and property rights to define and protect the special relationship between a created work and its creator.
Property and contract theory have traditionally been applied to the buying, selling and owning of art. But because there may be times when more fundamental considerations, like individual moral rights, are in question, perhaps there need to be other applicable legal theories. The fact that rights to property must sometimes yield to rights of person is well recognized by the law. Without such recognition, creative works would go unprotected and would be vulnerable to misrepresentation or distortion or even destruction, as the Noguchi incident demonstrated. Artistic creation, unprotected by a regard for the artist's moral right, might cease to be art at all.
Even when contracts are involved, they must be construed according to the principles of contract law, and that means considering what the parties intended. If the contract expressly permits a buyer to make free use of the art being purchased, so be it. I suspect, however, that few artists would intend to contract away or sell their moral rights but would insist on the right to be properly identified as the creator of a work, the right to preserve its integrity, and the right to keep it free from any distortions or changes which would injure the artist's honor and livelihood.
(No government yet recognizes destruction as a violation of an artist's moral rights. The destruction of art is a most interesting issue, and while the Drinan bill does not mention it, it at least seeks to prevent distortion, mutilation, and alteration and makes us ask whether we must sometimes be willing to presume in favor of the artist if creativity and free expression are to be encouraged.)
Should we have a legal standard sensitive to art and to the singularity of an artist's identity? France's Tribunal de la Seine affirmed this in 1911 in a case concerning reproductions of Jean Franois Millet's work, when the court held that a work of art must be "protected and kept as it emerged from the imagination of its author, and later conveyed to posterity without damage from the acts of individuals with dubious intentions guided by some transient fashion or profit motives."
Even in the US, there has been occasional recognition of the special nature of the arts. In 1910 a justice of the New York Supreme Court wrote a concurring opinion in Clemens v. Press Publishing Co.,m in which the court found for an author seeking to have a manuscript published under his own name -- a moral right for artists as well as writers:
"Even the matter of fact attitude of the law does not require us to consider the sale of the rights to literary production in the same way that we would consider the sale of a barrel of pork. Contracts are to be construed as to give effect to the intention of the parties. The man who sells a barrel of pork to another may pocket the purchase price and retain no further interest in what becomes of the pork. While an author may write to earn a living, and may sell his literary productions, yet the purchaser, in the absence of a contract which permits him so to do, cannot make as free use of it as he could of the pork which he purchased."
Unlike Plato, who was suspicious of the arts and excluded artists from his ideal city state, we have included them in our nation state. We should therefore guard and secure their moral rights, and thus maintain the important distinction between a piece of art and a barrel of pork.