Artists often claim to have a special relationship with their art that gives them rights over it even after it has been sold. One past example involved artist David Phillips and Fidelity. Fidelity hired Phillips to create a sculpture park and after its completion the company wanted to make changes to the work, the. With neither side willing to compromise, Phillips sued Fidelity alleging that the changes would mutilate his work. A rather famous example occurred in 1958 when the owner of the mobile Pittsburgh donated it to Pennsylvania’s Allegheny County. Alexander Calder, the creator of the mobile, unsuccessfully opposed the plan to repaint the black and white mobile green and gold. In 1969 sculptor Takis (Panayotis Vassilakis) tried to remove his work from New York City’s Museum of Modern Art. He claimed he had the right to determine how his art was exhibited—even after it had been sold. The most recent example involves watches.
Dann Thorleifsson and Arne Leivsgard, founders of the Kanske watch brand, purchased painter Tal R’s Paris Chic with the intent of cutting it into pieces to serve as watch faces. The painting was selected because it is considered a masterpiece and would, one presumes, serve to warrant their intended asking price of 10,00 Danish kroner per watch. The two have also purchased paintings by other famous Danish artists for the same purpose. Tal R has condemned the project and has endeavored to stop the scheme. While the court battle will sort out the legality of the matter, the philosophically interesting problem is determining what rights an artist retains over their work once they have sold it.
One obvious approach is to consider a work of art as any other commodity or service in which ownership changes hands. This view can be defended by an analogy. Suppose Sally hires Jane to paint the interior of her house. After the work is done, Sally decides she has changed her mind about one room and plans to repaint it. Imagine Jane learns of this and demands the room be left unchanged because she painted the room. Imagine further that Sally learns that Jane intends to spend her painting fee on a new laptop and demands that Jane give the money to charity instead. While Sally’s demand might seem absurd, it is no more absurd than Jane’s demand—either both have a right to control their former property or neither does.
It seems reasonable to see this situation as a change of ownership and hence a change of control: Sally now owns Jane’s painting and Jane now owns Sally’s money. Neither has a right to tell the other what she can or cannot do with her new property.
If the analogy holds, an artist who wishes to retain the right to control his work must place such restrictions in the original agreement (or not sell it at all). To simply insist on new conditions after the sale would be unfair, as the above analogy shows.
It might be objected that the artist has a special relationship with their art that places it outside the “commercial” realm and that this gives an artist the right to control their work even after selling it. In reply, when the artist agrees to sell their work, they place the art within the “commercial” realm. They cannot consistently accept payment and at the same time insist that art is special. They cannot have their cake and eat it too.
It might be claimed that a work of art itself has an inherent right not be altered. In reply: A work of art does not intuitively seem to be an entity that can have rights. While it is reasonable to suppose that people and animals have rights, it seems odd to assert that a non-sentient thing has rights. After all, rights against abuse are often because the thing in question can suffer and while art might cause suffering, art cannot suffer. Thus, the burden of proof would seem to rest on those who claim that a work of art has such a right. So, some other approach is needed.
A practical approach to the matter of the post-sale control of art is to focus on the importance of a contract—which can be an explicit legal document or an implicit set of agreements that might even pre-date the artist and purchaser. This can be seen as analogous to the social contract of political philosophy. The legal and moral obligations would be specified within the contract. Following Socrates this contract would hold as long as it was not the product of neither force nor fraud.
Explicit contracts cannot and should not be expected to cover everything. As such there is the matter of what should be simply assumed to be rights of each party (artist and purchaser)? This involves sorting out the moral default of what can be done with a work of art that has been sold. This assumes that a unique work is being purchased rather than a mass-produced copy of a work. For example, buying a copy of a Harry Potter book is rather different than buying an original painting—one owns that specific copy of the book, but not the work itself.
A right to resell is clearly a basic right, unless otherwise specified in an explicit contract. The right to destroy a work also seems to be an assumed right. While Tal R would prefer that the painting not be destroyed, he does agree that the owners have the right to do so. The point of dispute is that the owners want to use the painting to create watches that are to be sold as art. This seems to be a reasonable concern on the part of Tal R.
Taking Tal R’s painting and using it to create new art without his consent would not be work by Tal R, but a forced collaboration. In fact, it would no longer be a work by Tal R, since they are not participating in the creation of the work.
To use an analogy, consider a crime in which a criminal uses custom software created for non-criminal purposes by a programmer: the programmer’s work is being used in a crime, but they are not thus a criminal. Likewise, the watches could be sold as having cut up pieces of the painting in them but could not justly be called works by the artist. They have no responsibility for the work if it is created without their knowledge and consent for use in that manner. Going back to the crime analogy, the programmer is not part of the criminal work if they did not know or consent to the criminal use of their work.
As such, the owners of the painting can sell the unmodified original as a work by Tal R, but to use the painting to create new works while the author is still alive (and thus can consent or not) to sell as works involving Tal R would be wrong. The same would hold of other works. For example, if an author sells their book to a company and the company then decides to split up the chapters and combine them with the works of other authors to create numerous books to sell as works by that author, then this would be wrong.
The owners of the painting could contend that the watches merely contain pieces of the painting and this would seem to allow for some possible trickery. They could claim the derived work is not a derived work while cashing in on the artist’s status. In defense of this approach, one could draw an analogy to cutting up some valuable item, such as an historic flag or jersey worn by an athlete and selling the pieces as collectable objects—the same could be done with the painting. This seem to come down to intuitions about whether the watches would be sold as having a piece of the painting in them and thus serving as an odd sort of case for the fragment or if the watch was being sold as a collaboration without consent.
