BY Daniel McClean in Opinion | 11 DEC 15
Featured in
Issue 176

Art Attack

What are the rights of artists when their work  is vandalized?

BY Daniel McClean in Opinion | 11 DEC 15

Anish Kapoor, Dirty Corner, 2015, exhibition view in the gardens of Versailles shortly after the third attack of vandalism. Courtesy Getty Images

In September 2015, a French court ordered the removal of anti-Semitic graffiti from the surface of Anish Kapoor’s monumental steel sculpture Dirty Corner (2015), which was installed in the grounds of the Palace of Versailles last June. From the beginning, however, the controversial work has been the focus of anti-Semitic vandalism: racists responded both to Kapoor’s identity as a Jewish artist and the fact that the work has been widely dubbed ‘the queen’s vagina’, in reference to Marie-Antoinette. Following the third attack on his sculpture, Kapoor requested that the graffiti should not be scrubbed off. The artist believes that it should remain as evidence of the ‘scar’ of French cultural fascism and France’s ‘dirty politics’.

Kapoor’s decision has, somewhat paradoxically, led to his being sued. A right-wing councillor, Fabien Bouglé, filed a complaint with the public prosecutor alleging that, by refusing to erase the graffiti, Kapoor and Catherine Pégard, the president of Versailles palace, were guilty of inciting racial hatred. The court upheld Bouglé’s complaint and ordered the erasure of the graffiti. Kapoor has now covered it in gold-leaf, which he explains is a ‘royal response’ to the edict. Essentially, the court failed to grasp Kapoor’s argument that the public reception of his sculpture had unavoidably become part of its meaning and that, in order to defeat racist speech, it is sometimes necessary to preserve it and re-frame it in the context of critical public debate.

The vandalism of Dirty Corner is part of a long tradition of attacks on art. The trial raised important questions, both regarding an artist’s ongoing rights of authorship once their work enters the public realm and the often-thorny question of how racist speech should be contested.

It is fair to say that artworks are usually vandalized or destroyed for three reasons: by mistake, out of indifference or intentionally. It is, however, the iconoclastic assaults on art that, in their literal and symbolic violence, are perhaps the most wounding – attacking not only their creators, but the culture that values them.

As with Dirty Corner, attacks on artworks have often been provoked when they offend prevalent prejudices. A notable example is the attempt by Austrian neo-Nazis to burn Hans Haacke’s temporary, partially resurrected Nazi monument in Graz, Und Ihr habt doch gesiegt (And You Were Victorious After All, 1988), which included an additional text commemorating those killed by the regime. Haacke believed this incendiary act upon his artwork conceptually completed it.

Generally, the artist, society and the law are aligned in proscribing attacks on artworks. This is articulated in the property rights granted to owners of artworks on the one hand and the moral rights of authorship granted to artists on the other. In some instances, nation states may even claim to exercise rights on behalf of humanity to deter and punish the destruction of items of cultural heritage as enshrined, for instance, in UNESCO's ‘Declaration Concerning the Intentional Destruction of Cultural Heritage’ (2003), which was prompted by the Taliban’s demolition of the Buddhas of Bamiyan in 2001.

Yet, even in the West, the legal protection of artists’ rights is not automatic: for example, in 1985, the court sanctioned the removal of Richard Serra’s sculpture, Tilted Arc (1981), which had been commissioned by the us Government, from Federal Plaza, New York. Serra’s plea during his trial – that to remove his literally and symbolically divisive site-specific work would be akin to destroying it – fell on the court’s deaf ears: sadly, the Visual Artists Rights Act (1990), which would have given Serra much greater legal protection, had not yet been enacted in the US.

At the heart of Kapoor’s case is a novel twist in the narrative of artists’ rights: can an artist enforce the exhibition of their work in a mutilated form? The rationale of the integrity right is to prevent and reverse the derogatory treatment of an artwork to protect the artist’s ‘indissoluble’ bond to their work or their artistic honour and reputation. In essence, this means protecting the artwork in accordance with the artist’s original intentions, which would usually lead, for instance, to the artist successfully removing graffiti from a publicly exhibited artwork. Here, Kapoor wants to do the exact opposite and preserve his disfigured sculpture.

Public artworks rely upon an ethical contract between the artist and society: a contract that changes over time. Surely, if a society brutally violates this contract then the artwork – and the artist – should be allowed to bear testimony to it. Whether this desire can be framed within the language of artists’ moral rights of authorship remains uncertain, but surely it should fall within the realm of artistic freedom of expression.

Daniel McClean is head of art and cultural property law at Howard Kennedy LLP, in London, UK. He is also a writer and curator.