You can buy a painting, but it’s not really yours
The first lesson that prospective art buyers have been learning is that artworks aren’t yours to do with whatever you want. Art owners are “stewards” and “custodians” of objects that belong to the ages. If it is a mural on the side of a building you own, you can’t just whitewash it or knock down the wall as part of an expansion. If the artist calls the sculpture “site specific,” you can’t just move it to some place that seems just as good or better. If the artwork needs cleaning or restoration, don’t just take it to someone to do the job, but contact the gallery for recommended conservators and the artist for approval of the job. If the dealer you bought it from says not to sell it for at least five years, not to sell it at auction or not to sell it at all, better not.
Perhaps this is part of a larger trend. Apple laptops are held together with proprietary screws, requiring special — that is, Apple-made — tools to remove them, and some appliance and auto manufacturers have computer codes that only may be reset by the manufacturers, forcing consumers to pay extra for factory repairs instead of fixing things themselves. However, consumer pushback, such as a 2012 Massachusetts law requiring automakers and others to share diagnostic and repair information, has led to changes favoring consumers who are handy.
No such luck for owners of art.
“Restrictions on what you can do with things you have bought are foreign to the American concept of jurisprudence,” said New York art lawyer Susan Duke Biederman. “Under American law, when title changes hands, generally you can do what you want with what you own. The art world is different.”
Because it is different, One of her jobs is to counsel clients who are considering the purchase of art, especially ones with less experience in collecting, about the protocols and legal restrictions of buying and selling. “A fair amount of my advising clients concerns the mores and wrinkles of the art market. I explain things and get wide-eyed looks. ‘Oh, my, really?’”
And they had better understand.
Many top dealers are choosy about whom they will sell to, demanding that buyers sign purchase agreements that spell what they can and cannot do. For instance, if they choose to resell the work, they may only do so through the gallery. Others proscribe owners from selling these pieces at an auction house, while some dealers permit no sales at all but require buyers to agree to donate the artwork to a museum. Crossing the dealer may result in being blackballed or sued. “I’m often asked, ‘are these conditions of sale really enforceable?,’” said New York lawyer Daniel Weiner, “and the answer is, ‘if you agreed to it in writing then, yes, they are.’”
Lawsuits aren’t plentiful in this area — gallery owners generally do not want to sue the people who buy from them — but they have happened. In 2011, Manhattan’s Michael Werner Gallery brought a lawsuit against Pittsburgh collector James H. Rich who, in 2004, had purchased for $162,000 from the gallery a Peter Doig painting “Red Boat (Imaginary Boys)” that had a provision written into the invoice that the “artwork, while purchased privately, is done so with the explicit agreement that the work is to be given as an eventual gift to the Carnegie Museum of Art,” where Rich is a trustee. However, Rich changed his mind when he saw how prices had risen for paintings by the artist, consigning the work to Christie’s auction of postwar and contemporary art, where it sold for $9,897,195. (The lawsuit aimed to stop the sale but the gallery withdrew the suit after Rich “agreed to donate to the Carnegie Museum a major new painting by Mr. Doig,” according to a statement released by the gallery at the time.)
Sometimes, disputes can result in blackballing. In 2010, a lawsuit was filed by collector Craig Robins against New York’s David Zwirner Gallery for refusing to sell to him any paintings by artist Marlene Dumas precisely because Robins had secretly sold one of her works, violating the artist’s requirement that her collectors only donate these pieces to public institutions. (The lawsuit was dismissed for lack of documentation a few years later.)
Another lesson: It is not at all uncommon for sought-after artists and their dealers to use their leverage to control the market, establishing conditions for selling artwork, such as James Turrell and Sol LeWitt, who both have demanded that those who own their work apply to them (in LeWitt’s case, his estate) for “transfer” documents, permitting the artists to approve or disapprove the sale of certain works to new owners. Yet another artist, Hans Haacke, requires all buyers to pay him a resale royalty of 15 percent whenever they sell his work on the secondary market. Additionally, if buyers exhibit his work in “a public venue, I want a say in the circumstances,” he said. “I want to know the theme of the exhibition, the sponsors of the exhibition and the institution where it will be shown.” The reason for wanting say over sponsors, Haacke claimed, is that he would not want his work associated with “corporations I object to.”
Another one of those wrinkles is a federal law, the Visual Artists Rights Act, which empowers artists (and their heirs) to bring lawsuits when their work is intentionally destroyed or altered in ways in which the artists do not approve. One instance of an artwork’s destruction involves a science fiction-themed mural titled “Six Heads” on a building in the Los Feliz district of Los Angeles that had been painted in 1992 by artist Monte Thrasher. In 2014, the owners of the building decided to whitewash Thrasher’s mural in order to have a new image painted on the wall more befitting the theme of the saloon inside. Thrasher brought a lawsuit against the building’s owners and the saloon owner, Marci Siegel, who stated that she was not aware of laws protecting artwork. A lawsuit is perhaps the most painful way to learn a lesson about the responsibilities of art ownership.
The Visual Artists Rights Act has generated other legal actions involving how owners of artworks have or have not maintained their appearance, particularly with pieces created by artist Cady Noland. In one case, a work titled “Cowboys Milking” was not conserved (“The current condition of the work materially differs from that at the time of its creation,” her lawyer claimed in 2011) and in another case an installation titled “Log Cabin” was treated by a conservator (“Noland angrily denounced the restoration of the artwork without her knowledge and approval,” according to a lawsuit filed in 2014). In both instances, the artist disclaimed authorship of these works, which has the effect of diminishing their value.
The Visual Artists Rights Act does permit normal conservation and does not pertain to changes in an artwork that are the “result of the passage of time or the inherent nature of the materials,” but the parameters of when an artist is entitled to disclaim authorship were not laid out in the statute or subsequently determined in a court of law.
As a result, another lesson for collectors is that if they “need to have a work of art cleaned or repaired, they should not just take it to someone on their own but go back to the gallery where they bought the work, if the gallery still represents that artist, for recommendations on which conservators should do the cleaning or restoration,” Weiner said. “And then you need to check with the artist to make sure that the artist approves of what is being done. Of course, there is a risk that the artist will say ‘no,’ and then you are stuck with something whose value may be reduced by not cleaning or repairing it — or have no value at all if you do repairs and the artist disclaims it.”
Daniel Grant is the author of “The Business of Being an Artist.”