Artists’, Owners’, Restorers’, Conservators’, and Restorators’ Rights

This blog post was inspired by a series of e-mails to the Objects Specialty Group of the American Institute for Conservation (OSG-list-serv) during September 2010.  I hope to summarize the opinions for the AIC blog but I am really torn about whether to mention specific conservators in the blog post for the AIC blog, at first I thought it would be better to be anonymous and only offer a summary but after reading over all the e-mails again, I thought direct quotes would be more interesting and powerful.  This is a professional minefield and as a student just starting out I risk alienating myself and my fiancee, who is a fantastic ethnographic objects conservator.

“Courage is fear holding on for one minute longer” ~ George S. Patton

The Article is from the August 31st edition of the Wall Street Journal, “When Creator and Owner Clash” by Daniel Grant.  The purpose of the article is to summarize some recent cases of the Visual Artists Rights Act (VARA).  VARA was created in 1990, and in those 20-years there have been a few cases of note in which an artist sued the owner of their art after the work was ‘modified’ to a point at which the artist considered it no longer their work.

VARA is not a very long read,  it essentially offers an artist the:

  • right to claim authorship
  • right to prevent the use of one’s name on any work the author did not create
  • right to prevent use of one’s name on any work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author’s honor or reputation
  • right to prevent distortion, mutilation, or modification that would prejudice the author’s honor or reputation

The article cites one case in which the The Jewish Federation of Greater Harrisburg, Pennsylvania, and the City of Harrisburg’s Department of Parks & Recreation is against the artist David Ascalon of Cherry Hill, New Jersey.  David Ascalon created a work for the Holocaust Memorial in Harrisburg - the sculpture was made of two metals, a stainless steel column twined around with a large wire made of core-ten steel.  Visually, the stainless steel would appear polished while the core-ten would rust.  10-years later the piece was in need of treatment, instead of hiring the artist, who offered his services, the owner’s hired David Grindle, a local sculptor and restorer, to perform a modification to the piece, removing the core-ten, replacing it with stainless steel, removing the artist’s name (but not the date, 1994), and writing in “Restored by David B. Gindle, 2006 [and the names of the restoration committee]”.  Then the owner’s contacted David Ascalon to inform him that he can no longer claim this as his work of art.

So, the owner decided they wanted a different sculpture, and they changed the sculpture and removed the name of the artist, interestingly enough preventing the artist from claiming they mutilated his sculpture because the owner (or restorer and the restoration committee) have gone to lengths to remove the artist’s materials and the hand of the artist, preventing David Ascalon from exercising his VARA right to disown the piece as his work.

What is disturbing about this case is that while AIC membership personally supports VARA, believes in preserving original materials, and the artist’s intent, conservators are in a position between the owner or custodian of the piece and the artist who created it.

A look at the AIC code of Ethics for applicable quotes reveals:

“Professional Conduct:

3. The conservation professional should be cognizant of laws and regulations that may have a bearing on professional

6. Consent: The conservation professional should act only with the consent of the owner, custodian, or authorized agent.”

Should the conservator be required to perform a certain amount of research, or due diligence, to determine whether the treatment is appropriate?  Are conservators in the position of telling a owner what they can and cannot do with their collection?  A response to this article was drafted by Eryl Wentworth, Executive Director of AIC, to the Wall Street Journal and is available on the AIC blog, and perhaps a follow-up article will be written in the WSJ.

VARA specifically has a clause for conservation, but I would be surprised if this is used in this case:

(c) (2) The modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification described in subsection (a)(3) unless the modification is caused by gross negligence.

Although it is a fine line between what is a distortion, it appears that the artist still considers this to be his work, even after these modifications, and in his claim he is asking the owner for immediate access to the sculpture to restore it to it’s original condition and restore his name to the sculpture.  I am curious to keep up with Ascalon v. Department of Parks & Recreation, 1:10-cv-01544-YK, U.S. District Court, Middle District of Pennsylvania (Harrisburg). and to hear more about the outcome.

I hope to write a summary of the opinions expressed by OSG-list-serv members soon for the AIC blog.