Giacometti: a Foundation, an Association, and a Catalogue Raisonné

By Colby Meagle*

Screen Shot 2017-09-29 at 11.17.22 AMRenowned Swiss sculptor and painter Alberto Giacometti passed away in 1966. Although he died childless, his legacy lives on as his works continue to grow in value and prestige across the world, strengthening his reputation as a prolific artist. One of the staples for retaining a robust art market for works posthumously is the existence of a catalogue raisonné. As demand for works grows, collectors need to reduce the risk of buying forgeries. In the 2000’s there was a ring of dealers and sellers marketing in forged Giacometti’s who are said to have made close to $9 million from their illegal business. One of the contributing factors to the forgers success may have been the lack of communication between the Giacometti Association and the subsequent Foundation, which halted progress in creating a dependable catalogue raisonné. Yet, despite the wake up call that a discovery of a forgery scandals produced, the market for Giacometti’s work has remained strong. The following is a discussion on how Giacometti’s overture has progressed.  

It is important to know that Giacometti’s death more half a century ago conveyed his droit morale rights, which are moral rights retained by the author (and recognized in France) of an artistic work, to his family, allowing family members to opine on authenticity of works created by their ancestors. French law recognizes perpetual moral rights, so that the artist’s reputation, Giacometti’s in this case, can be safeguarded absolutely. However, it can also lead to conflict between family members and copyright owners who disagree with what the artists would have wanted. This is true of Giacometti’s family members, who often found themselves in dispute with both the Association and the Foundation. The disagreements frequently concerned the right of authorship, or Droit à la Paternité, and the authenticity of works.      

Preparations for the Giacometti catalogue raisonné were commenced immediately after the artist’s death by his widow, Annette Giacometti, who resided in Paris at the time, and dutifully collected information and accumulated data over the following years. Before her death in 1993, Annette created the Giacometti Association (1986), intending it to be a place-holder until the Foundation described in Alberto’s will could be properly established (a daunting task due to heavy French regulations on Artist Foundations) (Reviving Giacometti’s Legacy, 2015). The association was housed in a building in the Cour de Rohan, in Paris.

Only in 2003, the Giacometti Foundation came into being; however, the Association did not dissolve as the settlor (Annette) intended. Rather, a lengthy and muddied string of disagreements and lawsuits, primarily in France, ensued, involving the two organizations and some of members of their staffs, as well as various family members, over the right to represent the artist. This caused quite a setback for the development of the catalogue raisonné. During one particular legal battle in 2001, brought by the Foundation against the Association, the court seized all of the papers and documents that the Association, and their secretary Mary Lisa Palmer, had been working on for over twenty years. Allegedly, nobody bothered to organize them as they were packed into boxes and taken under court order.

One incident made headlines in 2007, when Roland Dumas the executor of Annette’s estate, and the former French foreign minister, was convicted of illegally selling Giacometti’s works. The purchaser was Jacques Tajan, a notable auctioneer at the time, and he was likewise convicted for being involved in the conspiracy. Both men were said to have defrauded the foundation of nearly 2 million dollars from the sale of 14 sculptures and four paintings. (See “The case of the dishonourable Roland Dumas”).       

Thankfully, in 2013 there was a ceasefire between the warring parties. The Giacometti Association finally dissolved and any left over legal disputes were mostly resolved or abandoned. With the newly developed detent, the Giacometti Foundation was finally able to resume work on the Giacometti catalogue raisonné.

Much of the cataloging work is overseen by the foundation’s authenticator, Michèle Kieffer, who has an advanced degree in art history from Université Panthéon Sorbonne in Paris, and has been a research assistant at the Foundation before becoming the manager of the Giacometti Committee in 2015. She specializes  on Giacometti’s sculptures. Kieffer’s duties include organizing the day to day life of the Committee, being a liaison between auction houses and collectors, and elaborating the catalogue raisonné. 

In 2016, the Foundation published the first installment of the artist’s extensive body of work in the 2016 catalogue raisonné of Giacometti’s graphic works, Catalogue Raisonné of Prints by Alberto Giacometti (Berne: Editions Galerie Kornfeld, 2016). The first catalogue consists of two volumes of around 500 works and is accompanied by black and white photographs. The Foundation, employing around fifteen team members, continues to work on catalogue raisonnés for Giacometti’s paintings, drawings, and sculptures. In the meantime, the Foundation’s website www.fondation-giacometti.fr/ offers a large searchable database of his work.    

Catalogue Raisonné of Prints by Alberto Giacometti is available for purchase online at various resell sites, the average price for the two volume set is around $550.

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About the Author: Colby Meagle is a 2019 J.D. candidate at Pepperdine University School of Law. Prior to law school, she received her B.A. in Arts Administration and B.F.A from Elon University in 2016. She can be reached at colby.meagle@pepperdine.edu

 

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.