Book review: Artist, Authorship & Legacy: A Reader

Copyright has nothing to do with art. Those who believe otherwise are romantic dreamers who overcomplicate this field of law. No doubt you will have heard or read this before. Perhaps you might even share this view. If so, Daniel McClean’s latest edited collection, 'Artist, Authorship & Legacy: A Reader’, may be just what you need to nuance your point of view. 

The ambiguity of copyright’s relationship with art, or art with copyright, is precisely what this book is about. McClean brings together twenty-two essays by different authors, who collectively examine both the overlaps and gaps between legal and artistic authorship, this against the backdrop of the day-to-day practice of commissioning, buying, exhibiting and curating artworks. The collection executes this task brilliantly by framing each chapter in relation to a particular event or dispute which took place in the open (in courts, museums or the press) or behind the semi-closed doors of the art world via ‘open secret’ arrangements between the artists, their estates and buyers. In this regard, the edited collection is a much welcome contribution to the scholarship.

This collection captures the extent to which the notion of ‘authorship’ is more relevant today than ever despite the attempts of contemporary art movements, initiating the ‘Death of the Author’ as announced some forty years ago by French theorists, such as Michel Foucault and Roland Barthes, who proposed to get rid of the traditional perception of the author as the sole "father" or creator of his work.

Despite the success of this approach within some academic circles, McClean’s edited collection demonstrates that, in practice, the authorship of a work remains a key criterion of value, symbolic or financial, for the art market (p. 12). This aspect is most evident in the cases of artists who have recanted authorship, only to lead to a decline in the monetary value of the piece or the withdrawal of a piece from catalogues or exhibitions. In short, the stakes associated with authorship run high, higher perhaps than what the copyright literature tends to acknowledge.

But legal authorship is only one of many ways that authorship is recognized in the art world, and it is perhaps relatively marginal in comparison to other well-established conventions, such as signatures, certificates, sales and resales of the work. All of these conventions mediate the construction of authorship and are central to the destiny of the artwork. Yet they have little to do with copyright law. Although McClean describes these conventions as a form of “soft-power” running alongside or in contradiction with the law (p. 14), it is clear from the cases reported by the contributors that this ‘power’ is everything but ‘soft’.

The edited collection is structured into three parts. Part One retraces the development of artists’ legal rights in the US, through the narration of various disputes. One such development, are recurring disputes under U.S. law upon the introduction of moral rights under the Visual Artists Rights Act (VARA) of 1990.

VARA is described has having re-aligned the legal and artistic authorship by giving a legal reality to “conventions so well-entrenched in the art world as to themselves constitute a virtual law” until the enactment of the law (p. 41). These conventions notably includes the site-specificity of an artwork, which recognizes the physical location of a work as being part of it. 

Site-specific cat.
Sculpture by Wang Du, exhibited by the Museum of Cat in 2017

Moreover, as described in the chapter by Donn Zaretsky,** we encounter the dispute between installation artist Christoph Büchel and the Massachusetts Museum of Contemporary Art as evidence of VARA’s [relative] success at granting relief to artists when “a museum behaves badly” (citing New York Times art critic Robert Smith’s, p. 50, ‘Training Ground for Moral Rights: MASS MoCA v Chrisoph Büchel’, Chapter 2*). In this case, the museum had opened to the public an art installation that Büchel had left unfinished. The dispute was ultimately settled out of court.

Part Two discusses the art market’s obsession with the authenticity of a work, and the complex processes employed by expert ‘authenticators’ to ascertain the unique nature or originality of a work. The chapters in this Part illustrate well how this obsession for the original (or ‘authentic’) work has survived contemporary art movements, which have complicated the author-work relationship by delegating the creation of the piece to art assistants or a group of artists, by site-specific pieces, or by making works that are to be experienced or performed.

Whilst the notion of the ‘authentic’ work survives, the markers of ‘authenticity’ have evolved. The edited collection demonstrates how new semi-legal practices emerged in the form of ‘certificates’ to prove authorship, when it is not obvious, or when authorship was ‘played with’ by the artists themselves. This phenomenon is particularly captured in the management of Sol Lewitt’s works, described by Shane Burke in his chapter, ‘Score, Performance, and the Posthumous Conductor’ (pp. 159-178, Chapter 10*).

Part Three explores what happens to a work after the death of its author. It describes how the curation of a work influences its place in art history, and that much of this stewardship will be contingent upon on policy and legal frameworks as ‘dry’ as tax law (see on this, Chapter 17* by Christine Vincent, pp. 259-282).

The book also accounts for the nuances of authorship through different genres, something perhaps copyright is poorly equipped to do because of its one-size-fits-all approach to protection. Penelope Curtis interrogates what it means to maintain the authenticity and legacy of a sculptor’s work when casts and mould are ‘left behind’, as well as instructions on how to how manipulate them (in ‘Demonstrable Legacy; or, What Sculptors Leave Behind’ pp.130-139, Chapter 8*). By contrast, Dawn Ades reports on the careful, and rather sophisticated, legal arrangements that Martha Graham’s estate put together regarding the use of her work following her death, relying on trusts, licensing agreements and donations governed by tightly-written contracts (in ‘Thing 000955 (Martha Graham’s Choreographies)’, pp. 303-323, Chapter 20*).

This book will be valuable for copyright specialists because it offers a picture of copyright (or legal authorship) as practiced in the rarefied atmosphere of the art market. The edited collection will also be of interest to those already familiar with the inner-workings of the art world, by suggesting more parallels between the worlds of art and copyright that one may suspect. Put simply, this edited collection is a ‘must’ for the reading list of any copyright or art law curriculum that discusses the notion and value of authorship. Be prepared to brush up on your contemporary art references.

* Kat’s numbering. There is no numbering of the essays in the collection.

** Zarestsy represented Christoph Büchel in this dispute.

Book reviewed: Artist, Authorship & Legacy - A Reader. Edited by Daniel McClean. 2018. Ridinghouse. £20, 29,95$. 22.5 × 15 cm. Softback. 400pp. English. ISBN: 978 1 909932 45 6. Available here and here.