Art in public spaces is so common that we rarely ask ourselves about various conflicts of interests behind it. In this second article in a set, the author talks about tensions that might arise between the artist and the commissioner of the artwork, as well as about public interests and their rights to object against the work.
Mediator, Business Writer, Trademark and Patent Attorney
Art in Public Space: art might be public, but what about the rights?
In my previous article ( https://artlaw.club/en/artlaw/place-space-art-1 ) I have started talking about public art, artworks made to exist in the public space. In this and several subsequent articles, I would like to address various conflicts of interests and issues which exist in this respect.
Provided that there are numerous stakeholders in what concerns coming into being of public artwork, there are also many tensions between these stakeholders, which can potentially result in conflicts. Two most obvious tensions exist: (1) between copyright and property rights, namely between the artist and the owner or commissioner of the artwork; (2) between copyright and public interest, namely between the artist and the public interacting with the artwork.
As public art is most of the time commissioned, would that mean that the relationship between an artist and a commissioner should be regarded through the prism of “work-for-hire”? And generally speaking, who owns the copyright in public art, and which particular rights are referred to when copyright is claimed?
To begin with, while it might be tempting to regard commissioned public art as a work-for-hire, it is not, as an artist never becomes an employee for the realization of artwork in the first place. Yet, even if it would have been a work-for-hire, the moral rights therein anyway belong to the author. As a quick reminder, copyright includes the moral rights of the author (the artist) and economic rights, which can be (but not by default are) assigned in the course of artwork commissioning process.
The main moral rights of the author are: (1) the right of acknowledgment, namely the right to be known as the author of the artwork and (2) the right of integrity, namely any alteration to the artwork is reserved to the author and is subject to her/his approval. But what about for example relocation or deaccessioning? Usually, questions of the intended lifespan of an artwork, deaccessioning, relocation, same as issues around dealing with potential damage or vandalism are discussed with the author at the time of commissioning of public artwork. On the other hand, the discussing by itself does not imply that the author has the right, for example, to prohibit the relocation or even the deaccessioning of public art s/he created. In November Artnet reported on the brewing conflict between the city of New York and the artist Arturo Di Modico, who is the author of the renown sculpture Charging Bull located in the Bowling Green Park in the Wall Street district. The city administration has decided to move the sculpture closer to the New York Stock Exchange, which the artist is fiercely opposing. How the situation will evolve is yet to be seen, however, I speculate that the sculpture will anyway be relocated to the intended place, as the interests of the public and the commissioner will most likely prevail.
The case of Richard Serra’s Tilted Arc already mentioned in the previous article (https://artlaw.club/en/artlaw/place-space-art-1) is also an interesting example of the tensions between the artist and the commissioner (as well as the general public). The sculpture made for the square in Manhattan was badly received by the public and following numerous complaints, the General Services Administration decided to remove the sculpture with an initial idea of placing it elsewhere. The artist, Richard Serra, perceived the replacement as destruction and sued the General Services Administration claiming $30 million for violation of his copyright (and First Amendment rights: the freedom of speech). The court decided in favor of the General Services Administration, among others relying on the fact that the economic rights were signed off by the nature of the commission, namely, Richard Serra was not the owner of the sculpture and the decision to move it or not hence was not the author’s to make.
While in questions related to the relocation of stand-alone public art the property rights tend to prevail, in cases of destruction (which the relocation of integrated and applied works would almost always result in) it is much less straightforward. Thus, worth recalling is the well-known and heavily debated case of 5Pointz in Queens (New York). In this case, the owner of the old factory building for many years allowed artists to paint graffiti on its walls. The resulting public artworks over the years became a popular tourist destination, but in 2013 graffiti were first painted over and then the whole building was demolished to give way to a luxury apartment project. The street artists whose works were destroyed brought the case to court and were awarded $6.75 million. Noteworthy is that it is not so much the destruction of the street art that caused such an impressive award, but the fact that no opportunity was given to the artists “to document or remove the murals” before they were whitewashed.
In cases when graffiti is not an artwork in itself, but a way of vandalizing another public artwork, it would generally be the property rights owner’s responsibility to restore the original artwork in its original form. Otherwise, the author’s moral rights in the work’s integrity would be violated. But then again, consider the case of Anish Kapoor’s Dirty Corner at the Palace of Versailles. It was repeatedly vandalized with graffiti, whereas the removal of the first graffiti-round was done by the artist himself. The second graffiti-round Kapoor decided to leave as is, which was nevertheless opposed by one french politician, who even took the artist to court. The court didn’t insist that Kapoor removes the graffiti, but accommodated the request to protect the public against offensive statements (second graffiti contained anti-semitic slogans), by ruling to cover the vandalism up with gold leaf. Ultimately the work was put into storage.
Recently, another public art (and also the one already mentioned in the previous article) — Bouquet of Tulips by Jeff Koons was also the target of vandalism. The plinth of the sculpture was tagged with an offensive indication that the artwork is the “bouquet of anuses” rather than tulips. The graffiti was rapidly cleaned up by the city of Paris, who is agreed to be responsible for the maintenance of the sculpture.
Generally speaking, the public has the right to object the public art and while the artist probably will not have the means to prevent relocation or even deaccessioning of public art s/he created on commission, s/he nonetheless, has the right to at least be properly notified in advance. In determining the balance between copyright and property rights, one needs to take into account that copyright has two facets: the moral rights, which by default belong to the author, and the economic rights, which in case of the commissioned public art will most likely belong to the commissioner together with the final say on the destiny of public artwork. This does not mean, however, that having the economic rights allows to disregard the moral rights of the author, nor that would be a fair practice. Therefore, a lot of questions related to the handling, maintenance, intended lifespan, potential damage repair, and the future relocation (if any) are usually discussed already in the course of the commissioning process.
An interesting issue related to public art is also the right of reproduction of the public artwork, namely the right to take pictures of public art for commercial and non-commercial purposes, including the much-discussed freedom of panorama provisions. However, this is a subject that warrants a separate discussion and will be elaborated on in the next article.
 As mentioned before, public art can take various forms, including the ephemeral performance art or temporary installations or artworks. While there are quite some questions in respect of ephemeral public art, for the sake of this article I will omit them, focusing only on the permanent public art. The latter can be further categorized into (1) applied works, put on to an existing interior or exterior (for example, street art); (2) stand-alone works, which are by definition free-standing and (3) integrated works, which are made to be integral to the existing space (for example, a ceiling or a floor in a building or other built space).
 Additional tensions might arise in connection with (3) heritage interests on one hand and public interests on the other; as well as (4) between private interests of the owners or commissioners and, likewise, public interests.