The article sketches the practical issues which should be taken into account defining and organizing the artist’s legacy before it becomes too late.
Mediator, Business Writer, Trademark and Patent Attorney
How do you want to be remembered?
Some considerations on Artist’s heritage
We are all mortal. That might be a somewhat gloomy way to start an article with, yet it is what it is. A day will come when the world will move on without us. What will be left aside from the fading memory? How do we want to be remembered? This is a question relevant for anyone, but probably and especially for those whose life is all about creation — artists: painters, sculptors, performers, and all the other creative human beings. Whether creativity is a professional endeavor or just a hobby it usually results in a number (sometimes large) of creative output. What is going to happen with it upon the death of a creative? Are those hundreds of paintings to be kept in storage, thrown away, donated, burned, sold? What about the brushes, easels, hammers or bags of concrete? In this article, I would like to address the matter of artist’s heritage, as well as pull together some important questions for the artists to reflect upon and for their advisers to take into account in their discussions with their clients.
First of all, it is essential to stress that an artwork is a specific type of asset. It is not only the physical possession which might raise certain issues, but also such matters as valuation, maintenance, insurance, intellectual property rights et.c. Above all, an artwork is a specific asset because in a majority of cases it is a very personal creation, a part of an artist’s persona in a sense. It bears in itself an artist’s emotional experience, a personal story and an expression of an artist’s personality. Artworks outlive an artist, but also in a way make him/her immortal. The bottom line is, that artworks cannot be treated the same way as the furniture in the living room of a deceased artist, or his/her clothes and cutlery. The question I put in the very title of this article: “How do you want to be remembered?” thus, becomes a primary starting point of a discussion.
1. artistic vision
In one of my previous articles (The right to destroy — https://artlaw.club/en/artlaw/what-if-da-vinci-had-destroyed-his-mona-lisa-legal-and-philosophical-issues-around-destroying-works-of-art) I gave examples of some artists who are/were destroying their artworks during their lifetime to be in charge of how the world will remember him/her or instructed others to do so (on many counts unsuccessfully). Those are examples of the artists who asked themselves a question of how they want to be remembered and what do they see as their artistic legacy. As said already this is the starting point for the conversation about the artist’s heritage. If the intentions are not clear it might become very difficult for the heirs of an artist. Even a basic “sell vs keep” dilemma is difficult. A decision to sell can result in tax implications, while a decision to keep might additionally inflict quite some expenses. In the case of multiple heirs that might become a matter of a conflict; whereas in case an artist was a part of an artistic group or co-created certain artworks, a potential conflict might transcend the family circle. If an artist has a vision of donating his/her artworks, then the accepting institution, likewise, needs to be contacted in advance. They might not be willing to accept a donation, or there might be other issues to consider.
When the artistic vision is defined, it is time to get to the details. What is the body of work in question? Is there any type of inventory of artworks? It can be an analog record, in other words, a handwritten notebook, or a spreadsheet on a computer or perhaps there is even a database. Whatever record there is, it would be important to at least have a list of all artworks created and their destiny. Some of the artworks created would probably be sold, gifted, perhaps loaned during the lifetime of an artist. Some of them might be a part of an exhibition at the moment of an artist’s death. Likewise, certain artworks might be a part of the personal / family collection, pieces created especially to remain on the wall in the lounge of the artist’s home, while some others were never planned for personal admiration. Thus, a meticulous inventory is a crucial next step. An important add-on, as we live in the digital era, a big part of the correspondence and agreements on and around artworks might exist only in a digital format: sometimes in a form of a message or even an SMS. To this end, a good practice to establish for an artist still during his/her lifetime is to find a way to archive digital communication at least to include the most significant items related to the destiny of artworks. Finally, an inventory of artworks might include not only the artworks by the artist him/herself but also works by someone else, which are in a personal collection of the artist. In other words, there might be three general categories of artworks left: 1) artworks created by the artist as part of his/her creative endeavor; 2) artworks created by the artist meant to remain in the artist’s family; 3) artworks by other artists in a personal collection of the artist. An additional sub-category might also be works co-created by the artist.
3. making sense of the inventory
When the list of artworks, their creation dates, brief description, perhaps a photo and a record of destiny is made, it is time to make sense of it all. Are the records complete? Is there a way to fill in the gaps, if any? Are there any inconsistencies, questions? Is everything clear? Are there diverse categories of artworks, that require different treatments? Are the locations of all artworks (at least those not previously sold or gifted) known? What is the current condition of artworks? Is there a short-term need for restoration of any? How are the conservation questions foreseen? The more profoundly the inventory is analyzed, the better.
4. artist’s studio
Most of the times even if an artist creates from the personal premises, s/he has a studio space. It can be just a room in a house or a completely separate location, but it is a space where the creation takes place. Besides, it is also a place where the tools are. The tools an artist uses are also a part of the artistic heritage. It could very well be that an artist sees no value in, for instance, his/her brushes and easels, but on the other hand, they might have historic value (or at least interest) for the future generations. A studio can significantly add to understanding the creative process of an artist. Perhaps a studio will be turned into a museum. Either or, when addressing the artist’s heritage, it would be a good idea to look as broad as possible.
5. contractual relationships of an artist
It is very handy for the heirs to know about all the contractual relationships of an artist because some of them will not end with the death of the artist. Who are the people and institutions the artist was involved with? What are the arrangements concerning an artist’s studio? Are there any arrangements for the ongoing or upcoming exhibitions? What about co-authorship: was that ever the case for the artist? Has the artist collaborated on a joint artwork? How are intellectual property rights arranged, if any? Are there any licensing agreements? Are there agreements about prints, multiples, perhaps, merchandise with the artist’s involvement? If an artist has ever incorporated or otherwise used another artist’s artwork in creating his/her own, are there agreements or arrangements allowing such a use? Are there any consignments?Contracts come in many forms. If they are written and signed by both parties (and kept in order in the personal archive) that is an ideal situation. The reality unfortunately does not always follow this ideal. In the modern world more than often agreements and arrangements happen through digital means, which does not render them invalid, but makes it complicated to keep track of.
6. financial matters
As mentioned already, artworks are not just simple, regular assets. They have costs attached. Insurance, tax matters, conservation, storage, potential restoration — all these are related costs. Even if the artist insists on the post-mortem destruction of his/her artworks that might still mean additional expenses. Besides, determining the value of artworks is still a separate question. I wrote an article about determining the value of artwork before (The mysterious world of the value of an artwork — https://artlaw.club/en/artlaw/the-mysterious-world-of-the-value-of-art). In essence, although there are procedures and defined steps for valuation, this matter still remains not so straightforward. An important add-on is the personal value of artworks to the artist. It is up to him/her to define which artworks best represent who s/he is and how s/he wants to be remembered; which are the best examples of his/her signatory style? The big question related to financial matters is whether the artist envisions a foundation to be established. This is a separate discussion, as foundations come in different forms, might have completely different goals and consequently will have different tax implications.
As the final note the artist’s studio might (and probably will) also have unfinished artworks. What is the artist’s vision in respect of those works? Would s/he be fine with allowing someone else to complete the work? Or perhaps s/he would prefer unfinished works to be destructed? Or even… maybe they should remain unfinished, as a monument to the fragility of life?
Questions I mention and themes I have sketched in this article are obviously not meant as an extensive list of issues, on defining and organizing the artist’s legacy. However, I do hope that I persuaded at least some readers to pay attention to these matters and reflect upon them (preferably in writing) before it becomes too late. After all, a creative drive is fueled by the wish to leave something greater behind. It would be reckless and unfair to these creations for their fate to be just left to chance.