[Guest post] “The art is the wall”: Picasso, Nesjar, and the moral rights of the artists in Oslo’s Y-Block

The IPKat is happy to host the following guest blog post by Mira T. Sundara Rajan on recent developments in Norway, which raise some intriguing questions concerning copyright's moral rights.

Here's what Mira, who would like to thank Beatrice Ignacius (for her outstanding research assistance with Norwegian law) and Martine Valland (who drew her attention to the fate of the Y-Block sculptures), writes:

“The art is the wall”: Picasso, Nesjar, and the Moral Rights of the Artists in Oslo’s Y-Block
by Mira T. Sundara Rajan

Oslo's Y-Block
When the celebrated sculptures embedded in the walls of downtown Oslo’s Y-Block government buildings were damaged in an infamous terrorist attack in 2011, the city’s leaders faced the difficult task of how best to address the harm. The sculptures were designed by Pablo Picasso and executed on this concrete surface by his long-time collaborator, Norwegian artist Carl Nesjar. “The Fisherman” is located on an exterior wall of the building, while “The Seagull” is a smaller work in the lobby. After the attack, questions arose about the feasibility of conserving the sculptures on site, where the safety of the damaged building needed to be assessed.

By 2014, the government had decided to demolish the building and relocate the sculptures elsewhere. This was followed, in 2017, by plans to redevelop the area. However, these proposals unexpectedly met with a surge of public resistance. The sculpture, and the site on which it stood, had become a powerful symbol, not only of Norway’s cultural heritage, but also, of memory and resilience in the face of violence. Indeed, in the eyes of some Norwegians, destroying the building would effectively complete the terrorist attack – a “cruel irony,” as noted by Mari Hvattum, professor of architectural history and theory at the Oslo School of Architecture and Design.

Public opposition to the demolition plans gained the support of cultural heritage experts and advocacy groups in Norway, and around Europe and the world. Nevertheless, in March of 2020, the government began taking concrete steps to move forward with the demolition, arguing that the delay was becoming expensive and would only postpone the inevitable. Redevelopment plans for the site were already in place. As of early May, the building has been fenced off and initial demolition operations have begun – even as Carl Nesjar’s daughter voiced her concerns about the possibility of damage to the murals while dismantling them. “Nobody has explained how they will do it,” she says. “The art is the wall.”

Throughout this process, little attention has been paid to a key issue: the perspectives of the artists whose work lies at the heart of the controversy.

Artists hold in their hands what may be one of the most valuable tools available to conservationists: special rights under copyright law, known as the “moral rights” of the artist.

Moral rights allow the artist to object to actions that may be damaging to his or her work. They are inalienable and, accordingly, continue to be held by the artist even after a work has been sold and ownership has been relinquished. These legal provisions are based on the deep philosophical conviction that an artist has a special bond with his or her own creation. The mistreatment of an artwork can ultimately inflict various kinds of harm, from reputational damage to psychological trauma, on the artist.

What is the situation under Norwegian copyright law? Section 5 of the Copyright Act provides broad protection for the artist’s moral right of integrity, stating that a work must not be altered or made available to the public “in a manner or context that is prejudicial to the reputation or individuality of the author or the work.”

Carl Nesjar at work
Changing the location of site-specific artwork, particularly where there is a significant risk of damage to the work in this process, clearly has the potential to violate the moral rights of the artist. When significant alterations to the work or its context are proposed under Norwegian law, they should not be carried out over the objections of the artists who created the work.

In the case of the Y-Block sculptures, the organization established by Picasso’s heirs for the purpose of safeguarding the artist’s moral rights, known as the Picasso Administration, was persuaded to agree with the plans. Still, in an interesting sequel, the director and chief curator of the Picasso Museum in Antibes, Jean-Louis Andral, has now written to the Norwegian prime minister, in a letter dated May 19, to urge her to intercede against the demolition.

As highlighted by Mr. Andral’s letter, Picasso was not the only artist involved in the creation of the Y-Block sculptures. A crucial collaborative role was played by Carl Nesjar, an artist who Picasso, himself, considered to be outstanding, and without whose practical and creative involvement, the Y-Block sculptures could not have been realized. Nesjar passed away in 2015. Before his death, he had expressed concerns about the plans for demolishing the Y-Block and dismantling the sculptures, raising the question of what would replace them. And yet, according to a 2014 interview, the government had not even informed Nesjar or his wife, a scholar of the artists’ work, about these plans.

From an evidentiary perspective, the doctrine of moral rights requires that the artist’s point of view, as expressed by himself, form the core of any assessment of the moral right of integrity – and indeed, it must be weighed more heavily, in reaching judgement, than even the opinion of an artist’s heirs.

Two important conclusions can be drawn from this analysis. First, securing the agreement of the Picasso Administration was insufficient for the government’s purposes, because another artist was also involved in the creation of the work. Picasso’s consent, or the consent of his heirs, cannot be a substitute for Nesjar’s.

Secondly, Nesjar was in a particularly powerful position to comment on the Y-Block plans. Unlike Picasso, he lived long enough to see the terrorist incident and its aftermath unfold before his own eyes. He was clearly concerned about the proposed demolition.

There is yet another artistic layer to the Y-Block – that of the remarkable building itself, known as a “brutalist jewel of the Oslo cityscape.” The building was designed by noted Norwegian architect, Erling Viksjø, whose collaborative work with artists reflected a unique conception of the relationship between art and architecture. An architect, too, is entitled to moral rights under copyright law, although, in Norway, the extent of those rights is limited to the “aesthetic” aspects of the work. In the case of the Y-Block, these would be significant.

While the circumstances of the Y-Block are unique, Norway is by no means the first country to face challenges involving the preservation of important public artworks. Similar cases in the United States and India – the whitewashing of the 5 Pointz graffiti site, and the destruction of Amar Nath Sehgal’s mural – offer disturbing precedents, where the courts strongly condemned and penalized defendants whose actions flouted public opinion and led to cultural harm.

In the Norwegian context, moral rights are not only an artist’s right; they are rights explicitly in the public interest, as well. In an unusual provision, Norwegian moral rights allow for the protection of the “general cultural interests” of the public. Under the Norwegian Copyright Act, all aspects of the integrity right enjoy permanent protection. Section 108 states:
Even if the term of protection of copyright has expired, an artistic work may not be made available to the public in a manner or context that is prejudicial to the reputation or individuality of the artist or the work, or that may otherwise be considered harmful to general cultural interests.
A wealth of evidence attests to the cultural importance of the Y-Block sculptures. However, the protection of “general cultural interests” relies upon the government to assert the right. We have come full circle: under these innovative provisions, the government is effectively assigned the role of custodian of the public interest in the integrity of artistic works. What remedy can the Norwegian public now hope to rely upon when the government, itself, is moving inexorably forward with plans that carry a very real risk of damage to unique and irreplaceable works of art?
[Guest post] “The art is the wall”: Picasso, Nesjar, and the moral rights of the artists in Oslo’s Y-Block [Guest post] “The art is the wall”: Picasso, Nesjar, and the moral rights of the artists in Oslo’s Y-Block Reviewed by Eleonora Rosati on Thursday, June 04, 2020 Rating: 5

1 comment:

  1. The moral rights in these sculptures may be threatened in two specific ways: first that they are destroyed or seriously damaged during their removal from the building itself, and secondly even if they are successfully removed intact, the new location for them may be such that the sculptures themselves are treated in a disrespectful manner. Neither ground of objection is per se a cogent reason to prevent the demolition of the rest of the building, which appears to be the ultimate aim of the objectors. Also, not all jurisdictions agree that destruction of a work necessarily impugns the honour of the artist concerned, in the same way that an alteration or deliberate defacement might do. I have no idea of the Norwegian legal perspective on this.

    Turning now to the argument about the architect's moral rights in this instance. These would seem to be less strong when one considers two other provisions of the Norwegian Copyright Act which appear to point in the other direction.
    "§ 39. Alteration of buildings and utility objects

    Buildings and articles of use may be changed without the consent of the author when it is done for technical reasons or for use."

    "§ 109. Obligation to notify the author before destruction of intellectual property

    Requires the circumstances that original copies must be destroyed and the originator alive
    the author is given reasonable notice when it can be done without any major inconvenience."
    (both quotes courtesy of Google Translate)
    Now clearly the last quoted section does not actually apply in this case as the architect Erling Viksjø is dead but its very existence does at least suggest there is an arguable case that the owner of a physical object subject to copyright may destroy it notwithstanding any moral rights.

    Section 39 could seemingly be invoked if the Y Block building is deemed to be too unstable to be saved (ie a technical reason).


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