Destroying Works of Art
by Ronan Deazley
Readers of Source may well have followed the recent litigation between French photographer Patrick Cariou and the artist Richard Prince with interest. Cariou’s book Yes, Rasta, published in 2000, contains portraits of Rastafarians as well as landscape photographs taken in Jamaica. In 2008 Prince produced a collection of 29 paintings (entitled Canal Zone) for the Gagosian Gallery, 28 of which made use of 41 photographs from Yes, Rasta. Some of Prince’s works consisted almost entirely of images taken from Yes, Rasta, albeit collaged, cropped, tinted, and/or over-painted, while others used portions of Yes, Rasta photographs as collage elements in works that included (often pornographic) images taken from other sources. The Gallery sold 8 of the Canal Zone paintings for approximately $10.5m, exchanged 7 others for art with an estimated value of $6-8m, and sold nearly £7,000 worth of exhibition catalogues. Cariou alleged copyright infringement. Prince and the Gagosian argued that his use of Cariou’s work constituted ‘fair use’ under the US Copyright Act 1976. In March 2011 a New York District Court ruled that both Prince and the Gallery were guilty of copyright infringement.
The case raises many intriguing questions about the propriety, and legality, of appropriationism as an artistic practice. For now, however, I want to consider an aspect of the ruling that has attracted relatively little attention in the commentary that has followed in its wake. In handing down her judgment, Judge Batts ordered that the defendants should ‘deliver up for impounding, destruction, or other disposition, as [the] plaintiff determines, all infringing copies of the photographs, including the paintings and unsold copies of the Canal Zone exhibition book’. That is, the order sanctions the destruction of all of the original paintings that have not yet been exchanged with or sold on to a third party.
Ultimately, the decision as to whether the artwork will be destroyed lies with Cariou. In a subsequent interview for ARTINFO Cariou spoke to the prospect of destroying the works: ‘I can destroy them if I want to, but that’s also an extremely drastic decision to make. Destroying art if you don’t like it, that’s something that you have to think extremely deeply about’. The destruction of the Canal Zone paintings by Cariou carries the authority of a court order, but Cariou’s obvious ambivalence about taking such action prompts broader considerations as to when, if ever, we should tolerate the destruction of any unique work of art (whether copyright-infringing or not) by someone other than the artist. Do – or should – artists have the right to object to the destruction of their work even if they have sold that work to another? Should the owner of the work of art be entitled to dispose of his physical property in whatever way he thinks fit, including by destruction?
It is almost universally accepted that artists enjoy certain moral rights in relation to the work that they create. These moral rights typically include the right of integrity – a right to object to having their work subjected to certain types of action that would be prejudicial to their honour or reputation. However, the scope of the right of integrity varies from jurisdiction to jurisdiction. In Italy, for example, it incorporates any action bringing damage to the work in question, including destruction. Similarly, under Portuguese law an artist is entitled to object to the destruction of their work, although the right to do so is generally limited to circumstances in which no other copies of the work exist. Swiss copyright law prohibits the destruction of a unique work without the owner first offering to return it to the author. In France, by contrast, the prevailing approach is to require the owner to inform the author of his intention to destroy, so giving the author the opportunity of re-acquiring the work from the owner.
In the UK, the issue of unauthorised destruction is unclear. For one thing, it has been argued that the right of integrity only attaches to the copyright-protected work – which, by definition, is an intangible good that cannot be destroyed – and not to the physical embodiment of that work (that is, the painted canvas, the photographic negative, and so on). Understood in this way, destroying the physical embodiment of the work does not destroy (or indeed modify in any way) the work itself.
Alternatively, it has been argued that destroying a work is not the kind of activity that falls within the right of integrity as defined within the UK copyright regime. That is, the right of integrity will only be infringed if the work in question has been subjected to a ‘derogatory treatment’, and ‘treatment’ of a work is defined to mean ‘any addition to, deletion from or alteration to or adaptation of the work’, actions which all imply the continued existence of the work itself. Put another way, destroying a work is not the same as adding something to, deleting something from, altering or adapting that work. As such, it will not trigger liability for breach of an artist’s right of integrity.
And yet, a different view is entirely tenable. Indeed, the recent comments of Fysh QC in the decision of Harrison v. Harrison (2010) appear to offer an alternative and more generous reading of the legislation on this point. Commenting upon the broad and general nature of the concept of ‘treatment of a work’, Fysh QC suggested that it should be understood to incorporate ‘a spectrum of possible acts carried out on a work, from the addition of say, a single word to a poem to the destruction of the entire work’. Whether Fysh’s interpretation takes root within the UK remains to be seen.