“The urge to destroy is also a creative urge.” – Pablo Picasso
Restoration workshops in the Louvre
For those following the art industry this past year, the issue of art destruction should be top of mind. At the start of 2022, the United Kingdom-based group “Just Stop Oil” began international attacks on precious and famed artwork in the name of climate activism. During its first attack, one representative attempted to glue his head to Vermeer’s Girl with a Pearl Earring while his companion poured red liquid on him. Since then, multiple other incidents have taken place, including tomato soup being thrown on a Van Gogh in London. Unfortunately for the art world, climate activist groups elsewhere have followed suit. Recently, the German group “Letzte Generation” (“Last Generation”) threw mashed potatoes across a Claude Monet in Potsdam, Germany.
Now, the vandalism has branched out. In October of 2022, a fifty-three-year-old woman was arrested and charged after spraying fake blood on Henri de Toulouse-Lautrec’s Clown in Berlin’s Alte Nationalgalerie. She claimed she was disconnected from any protest, simply causing destruction for destruction’s sake.
These cases bring up fascinating legal questions. What were the vandals charged with? Can these actions be protected under the First Amendment in the United States? Are there insurance ramifications for art museums? If these artworks are on loan, how does an attorney contract around the heightened potential of destruction-based activism? And, of course, how do these acts affect the value of the works?
The Value of Destruction
The last question is what most attorneys and collectors alike are wondering. If an agreement is in place for the sale or loan of a piece that is later vandalized, can the buyers or collectors repudiate? What if the value of the piece increases?
Even those outside of the fine arts community likely remember just four years ago, as a Sotheby’s London auction room watched, baffled, while Banksy’s Love is in the Bin shredded at the sound of the gavel during an evening sale. But the stunt far from devalued the work, giving little basis for repudiation. Love is in the Bin has become an international marvel. As Banksy quoted Picasso stating, “The urge to destroy is also a creative urge,” nodding to a lush history of destruction adding value to fine art.
In 1953, Robert Rauschenberg was perhaps the first to push the limits of art when he asked if an artwork could be produced “entirely through erasure.” His work, Erased de Kooning Drawing, was his answer. Taking a historically significant work, Rauschenberg and Jasper Johns turned a masterpiece into faint smudges on a yellowed bit of drawing paper. Some found the work repulsive, others enigmatic. Regardless, Erased de Kooning Drawing now hangs in the San Francisco Museum of Modern Art’s permanent collection, a masterpiece in its own right. This would be a prime issue for the estate of de Kooning to sue under the Visual Artists Rights Act (“VARA”), except that Rauschenberg acquired permission from the author.
Just a few decades later, Ai Weiwei pushed not just the idea of art, but national laws, to answer if the destruction of art can also be part of the preservation of culture. In 1995, Weiwei created the performance piece and subsequent gelatin silver prints, Dropping a Han Dynasty Urn, by doing just that — dropping a priceless 2,000-year-old ceremonial urn. Instead of only destroying art, the artist, exiled by the Chinese Communist government for his work, made a visceral statement:
“Chairman Mao used to tell us that we can only build a new world if we destroy the old one.” Through destroying a symbol of old China, Weiwei simultaneously mocks Mao and lets go of painful “social and cultural structures” that create value.
With this rich history of art destruction creating value in mind, it is difficult to anticipate how the value of vandalized artwork will shift, and therefore if there is any basis for damages.
Legal Protections
Destruction of an artist's work is a moral rights issue that falls under the moral rights doctrine, a European doctrine introduced in Article 6 bis of the Berne Convention in 1971. In California, artists’ rights to preserve their works past the point of sale as an expression of their personalities was codified in the California Art Preservation Act of 1980 (“CAPA”). This was the first instance of state law recognizing an artist’s personal rights in the United States. The rule declares that
“the physical alteration or destruction of fine art . . . is detrimental to the artist's reputation, and artists therefore have an interest in protecting their works of fine art against any alteration or destruction.”
CAPA is limited to only protecting works within the bounds of California, and does not cover instances of negligence. Lubner v. City of Los Angeles, 45 Cal. App. 4th 525, 531, 53 Cal. Rptr. 2d 24, 29 (1996).
The U.S. Legislature also appears to favor the artist over destructive creative urges. VARA, as codified in 17 U.S.C. § 106(a)(3), grants certain rights to artists, including protection against distortion or destruction of their works. Although, an artist may waive this right with a written statement. This rule only applies to works created after December 1, 1990, when VARA was enacted, and is limited to destruction created outside of organic aging of the materials from the passage of time. VARA claims exclusive governance to all rights regarding visual works under the statute, effectively preempting CAPA. This creates a scenario where VARA and CAPA may never be applied simultaneously.
In the examples above, the Erased de Kooning Drawing was created and destroyed before any American laws took effect, although Rauschenberg had received permission from de Kooning. Dropping a Han Dynasty Urn occurred outside of the United States. While Banksy’s Love is in the Bin certainly created the possibility of a suit by Sotheby’s, it has expressed no interest in pressing the matter; likely because the event immediately increased the work’s value. Originally sold at $1.4 million in 2018, the piece sold in 2021 for $25 million.
There is plenty of room for caselaw to clarify some of the questions surrounding VARA and CAPA suits on the destruction of art. A prime example was presented in 2006 when a piece by Los Angeles artist Kent Twitchell on a government building was painted over by a government contractor without his consent. After two years, the case was settled with the artist receiving $1.1 million and leaving legal scholars without case law guidance.
The NFT Frontier
Further, beyond fake blood and glue, art has also recently been destroyed in the name of NFTs, a completely new question for art law attorneys. The Mexican-American businessman Martin Mobarak, founder of Frida.NFT, announced in July of 2022 that he would burn Frida Kahlo’s diary to promote his 10,000 NFTs. The famous Mexican painter’s diary was filled with artwork that was federally considered an “artistic monument,” valued at more than ten million U.S. dollars. But, in just a few minutes, it was reduced to ash. In the wake of Mobarak’s flaming video, there has been outrage on behalf of fine art against NFTs. Although it was revealed he burned just one page of the diary, his plan was generally successful — the art industry again began talking about the destruction of art as art itself.
As with most legal questions, there is no clear answer to the issues posed above. The answer to “will the vandalized artwork decrease in value” and “can a collector demand damages in response” frustratingly is, “it depends.” Andy Warhol’s 1973 screen-print, Mao, vastly increased in value after it was shot by actor Dennis Hopper. As the director of the auction house Christie’s intoned, while
“[t]here are other examples of Warhol’s Mao series out there, none have the history, the story and, of course, the bullet holes.”
The destruction raised the price.
Perhaps in the wake of “Just Stop Oil” and NFT-related performances, similar bumps in price will be seen and considered when contracting for the sale of now-historic artwork. So, when drafting a contract for a collector, be sure to include cases of vandalism as the instances increase.
*The views expressed in this article do not represent the views of Santa Clara University.