Whose Rights? Anish Kapoor’s “Dirty Corner” Exposes A Battle Between Artists’ Moral Rights and The Rights of the Public

By Adrienne Couraud*

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Anish Kapoor’s Dirty Corner, before and after vandalism.

In 2008, President of the L’Établissement public du château, du musée, et du domaine  national de Versailles, Jean-Jacques Aillagon debuted a series of solo art shows and temporary art installations at the house and gardens of the Chateau de Versailles. Beginning with the summer solo retrospective of American artist Jeff Koons, the program has grown both substantively, including past artists such as Takashi Murakami (Summer 2010), Joana Vasconcelos (Summer 2012), and currently, Olafur Eliasson (Summer 2016), as well as procedurally, expanding from a seasonal to a year long program. In 2015, the contemporary art program of Versailles offered artist Anish Kapoor a solo show to integrate his sculptures within the spatial challenges the house and Versailles gardens present. As President of the Palace of Versailles Catherine Pégard states, “[Versailles] is not a museum or a gallery or an exhibition space.”

In his own words, Indian-born but British-raised artist Anish Kapoor describes his raw-material born sculptures as “talking” about himself. Kapoor’s sculptures emulate a “void” straddling the duality of  “something, even though it is really nothing.” Kapoor originally described his 2015 “Dirty Corner” installation destined for Versailles , a steel-and-rock sculpture over sixty meters long and ten meters high, as “the vagina of the queen who is taking power,” but later retracted his statements to focus on his message: “to create a dialogue between these great gardens and the sculptures”.

After the sculpture was installed it was subject to repeated vandalism attacks and Kapoor declined to remove it “to bear witness to hatred”. Following the complaint about the Kapoor’s “Corner” launched by a right-winged politician and Councilor of Versailles Fabien Bouglé, an administrative French court ordered the covering of anti-Semitic graffiti on artist Anish Kapoor’s installation, Dirty Corner, at the Palace of Versailles [“Versailles”] in September 2015. Mr. Bouglé filed a complaint with a French public prosecutor against Mr. Kapoor and Catherine Pégard, President of Versailles, for “inciting racial hatred, public insults, and complicity in these crimes,” after Kapoor decided to leave the vandalism as a public testament, “belonging to anti-Semitism that we’d rather forget.”

The Dirty Corner Court Case

Prior to the court decision, Versailles announced plans to alter Kapoor’s installation by covering the vandalism with a shiny gold foil against the faded brass structure, leaving the defacement as an obvious disruption of the work – a process that was expedited following the court decision. Despite artist’s meeting with French President François Hollande, who declared the defacements “hateful and anti-Semitic,” Kapoor explained to the French newspaper Le Figaro, “I had already questioned the wisdom of cleaning [the installation] after the first vandalism.” The French Minister of Culture, Fleur Pellerin, stated she respects Kapoor’s decision but found the public debates thus spurred “extremely interesting and raise the question of creative freedom.”

The Tribunal Administratif de Versailles released a statement about the decision deeming the vandalism a “serious and clearly illegal breach of fundamental liberty.” Though the court acknowledged the moral rights of artists, “this freedom has to be reconciled with respect for other fundamental liberties,” alluding to the requisite for public peace. The public nature of Kapoor’s installation required that the court ensure protection to “everyone from attacks on their human dignity.”

Kapoor reacted to the court’s decision in a phone interview from Moscow at the opening of his exhibition at the Jewish Museum and Tolerance Center, declaring the court’s decision a “perverse reversal” of his accord. “Without proper public debate and proper public exposure for culture,” Kapoor proclaimed, “we are in a fascist state.” Kapoor’s installation was vandalized once prior to the court decision and, thereafter, three additional times, to which Kapoor maintained, “I don’t want to see it on the work; I find it vile.” In his steadfast battle against racial hatred, however, Kapor has “refused to remove it and pretend it didn’t happen,” raising important questions concerning the boundaries of  aesthetic taste and artistic value.

What Are Moral Rights?

“Droit moral”, or moral rights, stem from the Kantian and Hegelian concept of transferring an artist’s personality into a work and refers to the right of an artist to control his work. Moral rights protect the personal value, rather than the monetary value, of a work. Under American Law, inalienable moral rights are have more limited jurisdictional protections than in other jurisdictions, as they are protected under judicial interpretation of copyright and trademark law, coupled with 17 U.S.C. §106A, or the Visual Artists Rights Act of 1990 (VARA), which protect moral rights for the life of the artist.

Prior to VARA, U.S. legislative history reveals the American endeavor to define moral rights as “derivative works”, or artistic works based on the work of another artist, demonstrated within the Copyright Act and the Lanham Act, which defines trademarks and unfair competition. After VARA was passed, in the United States moral rights automatically vest within an artist but are limited to a “work of visual art,” granting two particular rights: the right of attribution and the right of integrity. The right of attribution allows an artist to associate or disassociate his name from his work of visual art. The right of integrity prevents both the intentional modification of his work of visual art if the modification is likely to harm the artist’s reputation and the destruction of any work of visual art protected by a recognized stature.

Under European Law, however, copyright law typically protects inalienable moral rights perpetually. Under French law particularly, copyright law protects four moral rights: the droit de divulgation; or the right of disclosure, the droit de repentir ou de retrait, or the right to affirm or disaffirm works previously publicized works; the droit de paternite, or the right of attribution; and the droit au respect de l’oeuvre, or the right of integrity. French courts have refined the right of integrity to allow owners of physical works the right of reasonable use and the right of reasonable adaptation without gross distortion.  For example, French moral rights do not expire, regardless of the number of created copies of a work, while American moral rights more rigidly limit works based on the number of copies created.

The Dirty Corner’s Effect on Moral Rights

The French court decision affecting Kapoor’s Dirty Corner appears to place two additional refinements on moral rights in France because of the work’s public location. First, the public installation of Kapoor’s work subjected it to a public order. Second, the public installation of Kapoor’s work subjected the public to “protections of human dignity.” Though the court recognized Kapoor’s moral rights, the moral rights could not outweigh “other fundamental liberties” of the public, alluding to the requisite for public peace over artistic scandal.

“It’s a terrible, sad thing,” Kapoor announced in his reaction to the court decision. “France is weird, I don’t understand it,” Kapoor added. “It doesn’t take in the full context. We’re going to take the case to appeal and we’ll see what happens.” Kapoor continued, “[w]e have to experiment in public, it’s our role as artists, that’s how society grows. If we stop that, we might as well live in a fascist state.” For now, however, Kapoor will have to channel his determination to test the creative and cultural limits of France outside of the Palace of Versailles.

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*About the Author: Adrienne Couraud (J.D. Candidate 2017) is a student at Brooklyn Law School. She may be reached at adrienne.couraud@brooklaw.edu.

Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.

Attacks Against Cultural Heritage Abroad Raise Questions at Home

by Melissa (YoungJae) Koo*

Just about a month after the attack at Charlie Hebdo journal and a deadly shooting at a kosher supermarket in Paris, five teenagers are detained in France for desecrating as many as 250 gravestones in a cemetery in a rural town in eastern France, where many Jews are buried. This incident again calls to mind concerns about violations against art and cultural property and the increasing anti-Semitism in France and elsewhere. According to Professor Richard Weisberg, the Walter Floersheimer Professor of Constitutional Law at the Benjamin N. Cardozo School of Law and a White House appointee to the Commission on the Preservation of America’s Heritage Abroad, the recent troubling desecration event in France has been on the Commission’s radar. It is one of many desecrations of Jewish sites in Europe that have historically happened in Central and Eastern Europe. Although it is not clear whether the motivation of the grave desecration was based on anti-Semitism, the commission has assumed that anti-Semitic sentiment was a major driving force in the actions, Professor Weisberg stated.

Weisberg indicated that the act of vandalism is punishable by criminal law; however, he added that although France as well as the rest of Europe needs to further educate younger generations, there is always a possibility of anti-Semitic incidents happening time to time. To counter other future similar acts, the Commission on the Preservation of America’s Heritage Abroad has been supporting maintenance of sites like graveyards even if there is no desecration, if the sites are important to American constituents. The Commission also has been working with European governments and private groups, both Jewish and non-Jewish, to educate people to prevent desecration.

In addition, Weisberg’s recent article “Even in the wake of Charlie Hebdo, France’s Jews are living in peace” in the New York Daily News points out the overreaction of media, especially in the U.S., toward anti-Semitism in Europe. Weisberg mentioned that despite sometimes being criticized, French government officials “stand[] in solidarity with [their] Jewish population.” The French government has expressed vocal and politically courageous statements in support of the Jewish community as well as abhorrence toward such anti-Semitic incidents, both on national and local level. Indeed, the French Prime Minister Manuel Valls went on record to address his citizens after the January attacks in Paris to underscore that “[a] Jew who leaves France is a piece of France that is gone” to discourage an exodus. The French government’s support of the Jewish community and outcry over destruction of cultural patrimony respond to ongoing issues with extreme right winged, old forms of anti-Semitism in France. In a similar fervent fashion, the French President François Holland has criticized recent ISIS attacks against cultural institutions such as the Tunis museum, attacked by gunmen on March 18 that left 23 people dead, among them 19 tourists from different nations.

Hate crimes that resulted in desecration of a burial place in France also run parallel to the recent extremists’ attacks on cultural sites in Iraq, Syria, Tunisia and elsewhere. As the world leaders denounce such acts, attacks against museums, cemeteries, and cultural properties that affect culture heritage and people in the community, sadly, continue.

*** The author wants to express special thanks to Professor Richard Weisberg for his time and kindness during the interview.

Select Sources:

About the Author: Melissa (YoungJae) Koo, Legal Intern with Center for Art Law, is a third year student at Benjamin N. Cardozo School of Law, concentrating in Intellectual Property law, especially art and fashion law. She can be reached at youngjae.koo@law.cardozo.yu.edu.

 

 

Update: Vatican Suppresses Photos of Gay Men Kissing

Following the threat of legal action against an art gallery by the Vicariate of Rome over an exhibition that included photos of gay men kissing in churches, vandals raided the gallery and spray-painted three works on display.  (See Despite Papal Declarations of Tolerance, Vatican Suppresses Photos of Gay Men Kissing.)  According to L’Opera gallery assistant Martina Adami, who was the only staff member present at the time, five men in their twenties rushed in, and while one distracted her with questions, the others attacked the artworks.

The works by artists Mauro Maugliani, Gonzalo Orquín, and Luis Serrano were part of an exhibition, Trialogo, subtitled Nuns, Weddings, Interiors.  The three artists had been invited by journalist and art critic Edoardo Sassi to create works on unconventional themes and to treat them in unconventional ways.  Orquin’s Si, Quiero (Yes I Do),  an installation of 16 photos of same-sex couples kissing in front of the altars of 16 different churches, caught the attention of the Vicariate of Rome.  The Vicariate said that the photos were taken without authorization, and showed “expressions not suitable for a holy place and thus harmful to the religious sentiment of the faithful.” In response to the Vicariate’s threat, Orquin decided to leave his installation in place, but he covered it in black and created a “graveyard” of black crosses below it.

When Orquin’s gay kiss photos nevertheless appeared in the media, there was an outcry from some of the faithful opposed to the exhibition.  One blog, The Eponymous Flower, which calls itself, “a polemical Catholic Royalist blog,” stated with respect to Trialogo: “Art is confused with mockery and desecration and profanation of the sacred space by obscene acts which are expressly condemned by the Catholic doctrine, a show of arrogance and contempt… The exhibition in Rome represents another unacceptable provocation by the enemies of the Church.”

The gallery has kept the three spray-painted works on display to highlight artists’ struggles against censorship and violence in Italy.  Ironically, Orquin’s Si, Quiero was not touched by the vandals.

The exhibition is on view through November 15, 2013.

View of Galleria L’Opera Showing Vandalized Art
photo © Sebastiano Luciano

Si, Quiero, as Modified by Its Creator, Gonzalo Orquin
Photo c/o ibtimes.co.uk

Sources: International BusinesTimes, October 18, 2013; The Eponymous Flower, September 25, 2013

Destruction of Art as Crime Against Humanity?

Claude Monet, Waterloo Bridge, London (1901)

“Crimes against humanity,” decided by the International Criminal Court, include ‘odious offenses’ against human beings but not inanimate objects. The International Court of Justice may only hear disputes between states as parties to the dispute and usually those stemming from an international treaty or convention. There is no international forum to decide crimes against art and there are no laws declaring art destruction a crime against humanity. The apparent fate of the paintings stolen from the Rotterdam’s Kunsthal museum in the Netherlands on October 16, 2012, is calling for retribution and international efforts to protect great works of art from successful but thoughtless thieves.

The seven paintings stolen from Kunsthal’s exhibition last fall, included Picasso’s Harlequin Head (1971), two late Monet’s Waterloo Bridge, London (1901) and Charing Cross Bridge, London (1901), Matisse’s Reading Girl in White and Yellow (1919), Paul Gauguin’s Girl in Front of Open Window (1898), Meyer de Haan’s Self-Portrait, (ca. 1890) and a Lucian Freud painting Woman with Eyes Closed (2002).* They were on loan from a private foundation and made up a part of the “Avante-Gardes” exhibition from the collection of Willem Cordia.

A parent of one of the suspected thieves said she burned the paintings after her son, Radu Dogaru, a suspects in the art heist, was arrested in January 2013. Now experts from the Romania’s National History Museum are examining ashes found in the Dogaru stove in the village of Caracliu to make a positive identification. The ashes are reported to contain remnants of 19th century paint, old canvasses and brass canvas nails suggesting the worst, the paintings valued at over $200 million were indeed destroyed. The estimated value cannot compare to the cultural importance and aesthetic value of these works. according to the spokesman for the Rotterdam museum, Mariette Maaskant, allegation of the destruction “underscores the pointlessness of the theft.”

If this terrible news is true, then the last trace of hope that the art works would return is definitively gone… It would be a loss that touches every art lover.

~Rotterdam Museum Spokesperson.

In the end, there is not such commandment as “Thou shalt not covet museum art.” and prosecution of art thieves is typically limited by a statute limitation. For lack of a better solution, isn’t now the time to reevaluate what happens to art works stolen and held hostage because they cannot be offloaded on the open market for fear of recognition? While most nations claim that they do not negotiate with terrorists, there is frequently an amnesty given to criminals who take hostages. Indeed, the promise of amnesty to Dogaru may have been enough to save the Cordia paintings from the fire.

*All seven paintings can be seen here.

Sources: Art in America; FoxNews; Rome Statute; Time World.

Delacroix’s "Liberty Leading the People" Vandalized and Restored One Day Later

Delacroix’s “Liberty Leading the People” (1830) at the
Le Louvre-Lens.

Eugene Delacroix’s masterwork, “Liberty Leading the People” (1830), was defaced on February 7th at the Le Louvre Lens, a satellite museum of the Louvre located in Northern France.  According to reports, a 28-year-old woman used a permanent marker to write “AE911” in the lower right hand side of the painting.

Both The Guardian and the Agence France-Press speculate the message refers to the organization Architects and Engineers for 9/11 Truth, a group calling for an independent investigation into the 9/11 attacks.  The painting may have been targeted because of its revolutionary iconography.

The graffiti, measuring only 30 centimeters, was removed the next day.  The restoration took two hours and the painting remained hanging on the wall.
The museum is pressing charges against the woman, who was immediately apprehended by museum guards.  The police are awaiting a psychological investigation into the woman’s mental health and report that she appears “unstable.”  Phillipe Peyroux, the local prosecutor, told the Agence France-Press, “Is this a person who acted under the influence of some kind of frenzy or is it some kind of demand?  We are waiting until we are able to find out a little more about this person.”
The case resembles the vandalism of Mark Rothko’s “Black on Maroon” at the Tate Modern in October 2012.  Vladimir Umanets, who was sentenced to two years in prison this December, defaced the painting to promote his radical art movement.  For our report visit: Rothko Defaced at the Tate Modern.
Sources: Kim Willsher, “Delacroix Painting at Lens Louvre Gallery Defaced with Permanent Marker,” The Guardian, February 8, 2013; Kate Diemling, “Vandalism of ‘Liberty Leading the People’ May be Linked 9/11 Truth Movement,” Artinfo, February 8, 2013.  Image source: Agence Frence-Press.