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Who owns commissioned artwork? The artistic, legal and ethical implications of the commissioning process

Published 28.05.09 at 13:56

History reveals that the relationship between artists, their commissioners and collectors has always been fraught; from Whistlers' famous dispute in the 19th century with Lord Eden over a commissioned painting that Whistler refused to deliver; to Richard Serra's failure in the 20th century to prevent the removal of his site-specific sculpture, 'Tilted Arc'.

Historically, artists have lacked so-called 'moral rights' in the UK and US jurisdictions to prevent the mistreatment of their artworks once they have been sold and to thereby prevent damage to their artistic reputation. This has contrasted to civil law countries like France and Germany, where artists' moral rights have been championed.

Only in 1988 (in the UK) and 1990 (in the US), did the legal protection of artists expand to encompass the right of authors of original artworks to object to the derogatory treatment of their artworks (thereby protecting their honour and reputation) and to ensure that artists would be correctly attributed as the authors of their works.

Moral rights were at the heart of the recent high-profile case of The Museum of Contemporary Arts, Massachusetts v Christoph Büchel (2007). Büchel tried to prevent MoCA from exhibiting his unfinished installation after he had abandoned it, claiming that it would damage his artistic reputation. The judge ruled that the museum could exhibit the work but would need to publish a disclaimer explaining that the work is unfinished. Although this seems like a victory for the commissioning institution, the case raises unwelcome questions about the ethical position of museums and galleries when dealing with the works of artists.

But, what could be the consequences of such cases for future art commissions? Will artists be requested to waive their moral rights in contracts with commissioning institutions thereby leaving their artworks vulnerable to derogatory treatment? And what is the position of the commissioner or collector when the artist has died? How far should commitment to the moral rights of an artist go when, for example, an installation is complex and needs the artist's collaboration and authorisation before it can go on public display?

A March 2009 Own-it event tackled these questions with presentations by Daniel McClean from Withers LLP, Kate Bush, head of art galleries at the Barbican and Professor Elke Bippus, professor of art history and the philosophy of art at the University of the Arts in Zurich.

Professor Elke Bippus's presentation is attached.

Photo credit: Moriza

Please note that this article and the attached content discuss the legal position in the UK at the time of publication. They provide general information only and are not to be regarded as legal advice. You must take advice from a specialist lawyer in relation to your specific circumstances. Further, you should seek additional legal advice when dealing with parties based in other parts of the world or works originating from other parts of the world as the legal position may vary.

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