Summarize

Are you allowed to destroy what you have created? It this most extreme feature of property ownership applicable to what is yours from the moment of creation or acquisition? The article below is meant to initiate a discussion on the topic. Please read about the most well-known cases of destruction (or the last minute rescue) and share your opinion on what are the legal and philosophical issues related to it*

*intro by ArtLaw.club

Maria Boicova-Wynants,

Mediator, Business Writer, Trademark and Patent Attorney

What if da Vinci had destroyed his Mona Lisa?

Legal and philosophical issues around destroying works of art.

To the best of my knowledge, Leonardo da Vinci never actually attempted to destroy his masterpiece. Imagine for a moment the damage to the world cultural heritage, had it happened.

Does it mean that an artist cannot freely destroy her own artwork? There is indeed an argument that once created, artworks no longer belong to the artist and, thus, she has no moral right to destroy them. The analogy drawn here is a child “not ours to destroy once we gave her life”. Nonetheless, art history knows of many examples of let’s call it “reputation preserving destruction”: Georgia O’Keeffe, Claude Monet, even Michelangelo (his sculpture Deposition though preserved, bears the traces of the famous artist’s furious hits with a hammer). Furthermore, what about the owners? Be it the owner of an artwork, or the owner of, say, a building on which a street art artwork is made — do they have the right to destroy it? Issues are numerous.

To begin unfolding this matter, one might start with the obvious questions: what is being destroyed and by whom?

1. Is it an artist destroying her own legacy?

2. Or is it the owner of a particular artwork, who decides to destroy it?

If it is an artist herself, as already mentioned, there is the dilemma of her reputation vs. keeping the body of works intact for history. One line of thought is that artworks created, instantly enter the flow of art history belonging to all of us. While taking them out of this flow would mean ripping us all of the cultural heritage. Then again, what if an artist considers her work to be not good enough to stay and bear her name? Like for example, the Belgian painter Luc Tuymans, who constantly purges his portfolio, destroying every artwork he believes not to be good enough to go to his dealer. It would be unfair to deny an artist the right to define such personal legacy. In tune with this thought, in his book “Playing Darts with a Rembrandt” (1999) Joseph Sax “grants” an artist the right to destroy her creation reasoning exactly that an “artist should be entitled to decide how the world will remember him or her”. Seems logical, but then again, for example, Franz Kafka wanted all his unpublished works to be destroyed upon his death. If his will had been duly executed we would not remember Kafka as an author of such masterpieces as “The Trial” or “The Castle”. Luckily, his will was not honored. 

Moving on to the owner of an artwork; does the physical ownership grant the ultimate universal right to do whatever an owner deems appropriate? Or is an owner bound by certain moral obligations towards an artist and public at large? If it is about ownership of a masterpiece of historical value, can a single person ever decide its fate? On the other hand, who decides on historical value? James O. Young in his essay “Destroying Works of Art” for the Journal of Aesthetics and Art Criticism (Vol.47, 1989) concludes that “no matter how bad some work is, it possesses historical interest”. Thus, even when the value is dubious, there is still room for interest, making a case against destroying even objectively (or better — subjectively) bad artworks. Young elaborates even further, stating that “the single individual is never the sole cause, or creator, of an artwork. It is much more accurate to say that artworks <..> are the product of an artistic tradition. The individual artist is simply the last stage in a causal chain which has included many other artists.” Therefore, it is always about the general historical context, about the cultural heritage and interests of the public at large, or… isn’t it?

If someone buys a table (even a very nice antique table made by a famous craftsman) and smashes it into pieces with an ax, that would normally not cause problems or questions. However, what about an art collector, who bought, say, a painting by Renoir? Can he just throw darts at it if he wishes? Ok, Renoir is long dead, so one might dispute moral obligations towards the artist, but then again — not towards the general public and not towards history, which would be ripped off a masterpiece. However, bringing the argument further: what if it is contemporary art; for example, David Hockney? What if the owner of the Pool with two figures (1972) would decide to burn the painting in a BBQ? In the US visual artists are protected by the provisions of the VARA (Visual Artists Rights Act, 1999), which amongst others prohibit the destruction of visual art that is “of recognized stature” during an artist’s lifetime. To the best of my knowledge, there is no analogous law anywhere else, at least not in Europe. Does that mean that the owner of Hockney’s work would be prevented by law from destroying the work he owns, while in case of Renoir there would only be moral considerations in the way?

A curious twist: what if the owner destroys an artwork with the consent of the artist? Robert Rauschenberg erased the drawing by Willem De Kooning (creating The Erased De Kooning Drawing (1953) — now in the collection of SFMOMA^[1]). De Kooning gave it to Rauschenberg, knowing what the latter was planning to do and, even though not really approving the intent, but also not preventing the experiment. Would it be any different if Rauschenberg would have bought De Kooning’s drawing and proceeded with deleting it without prior informing the artist?

In the Roman law, which is the basis for the majority of modern laws, property rights were denoted as jus utendi fruendi abutendi — meaning the right to use the object, benefit from the income it generates and to completely consume or destroy the owned object. Likewise, in the earlier editions of “Black’s Law Dictionary” (prior to the 7th edition of 1999) the property right explicitly contained the right to destroy [see L. Strahilevitz, The Right to Destroy, 114 Yale Law Journal, 781 (2005)]. Not anymore. This most extreme feature of property ownership has been scratched from the definition. Truth must be told this refers to the general property rights, not to the particular case of artwork ownership.

Already mentioned Joseph Sax contends that an art collector never actually owns an artwork, but rather “she is the work’s steward and ought to incur permanent legal obligations to preserve it and make it accessible to scholars, art lovers, and members of the general public”.^[2] Now, literally taking this statement, in my view, is an exaggeration, but I tend to agree with its spirit. Culture is in a sense what makes us human and cultural heritage has a universal value for everyone and each of us in particular. Owning an art object and getting profit out of transactions with it is one thing, however, I do believe in the higher value of the pure existence of an object for the public at large.

Some final considerations.

A separate category of artworks is temporary works, that at the outset are created to be one day destroyed. Here, for example, theDoll House (by Heather Benning), which was subsequently burnt down; ice sculptures made to last for a number of days, or a Burning Man in the Nevada desert, annually celebrating self-expression and disappearing in a week. But — and here, of course, there is also a “but” — the Eiffel Tower was once also created as a temporary industrial object to be dismantled after the 1889 World Expo. Would it be appropriate to still do it now? If not, when exactly did that right to destroy expire?

An interesting case likewise prompting discussion is accidental destruction. A notable example of that is the destruction of Elias Garcia Martinez’s fresco painting of Jesus Christ and, most importantly, a dreadful “restoration” which followed. The resulting “modern art” (Ecce Mono) by Cecilia Gimenez, in the end, attracted myriads of tourists to the local church in Borja in Spain and brought attention and money, which would not be there otherwise. The question is, what is more valuable now: the “restoration” or the original painting? Would it be appropriate (and beneficial for the general public) to destroy the “restoration” by Gimenez and try to recover the original painting by Garcia Martinez? Or the historical value of the existing “restoration” is now much higher than that of the original work? How to define such a value?

The end of 2018 brought into the spotlight also another type of art destruction — creation by destruction — Love is in the Bin by Banksy (The Balloon Girl shredded by Banksy during the auction at Sotheby’s). This highlight of 2018 has been analyzed from all sides already, but in the context of creation by destruction, it is a bit like artists using their old canvases to create new paintings. Here as well, from the art-historical standpoint, do artists have the right to destroy if they are creating by or through destruction? Should they be obliged to keep the initial original and alter the copy? Should they preserve the initial work in some other way? Also these questions are not answered.

To conclude… there is no conclusion, there are only numerous discussion prompts. The very concept of ownership in connection with art objects is an issue which invites a discussion around many facets of value, amongst others an absolute value of the cultural heritage and an obligation to prevent its destruction. Should only the rights of an owner be restricted to ensure there is no (or is only a limited) right to destroy, or should an artist also be prevented from destroying her own works, thus ripping society of its cultural heritage? How to define the scope of the right to destroy? Yet, even more, how to define the scope of the cultural heritage as such and historically valuable (or should it better be — historically interesting?) pieces worth protecting from destruction?

By this article, I want to start a dialogue about cultural heritage, its multifaceted value and the rights and obligations of owners or holders, amongst others towards the society at large.