Building an Anthology from Ephemera: The Legal Issues of Constructing a Political Art Archive

By Scotti Hill*

INTRODUCTION

Predating the advent of words, images have long served as an elemental tool of communication, working to describe and persuade. As the modern era’s complex political systems galvanized and alienated large masses of the globe’s population, the combination of image and text has forged a new path for the rapid dissemination of ideas. In response, political protest manifested into artistic expression, a form preferable to violence.

Attempts to preserve artifacts from political protests have been undertaken with renewed urgency. From the fight for democracy in East Asia to socio-economic and racial activism in the United States, urban areas are drowning in visual and textual evidence of dissatisfaction, reminders of the angst of political alienation. Over the past several years, political events and tragedies have also mobilized archivists hoping to preserve the emotional and historical potency of movements’ artistic output.

Spontaneous graffiti, posters and artifacts have accompanied large systematic protests, such as Occupy Wall Street and Black Lives Matter, raising concerns about the effectiveness of unauthorized artmaking. In Paris and New York, items gathered in the aftermath of terrorist attacks were collected with a sense of emotive resolution. The ephemera of political activism for these protests-posters, makeshift sculptures, graffiti, installations-have been cautiously assembled in archives. Building upon a recent New York Times commentary that investigates the increasing frequency of artifacts archives across the globe, this article explores the legal issues accompanying the preservation of political art, including how copyright, trademark, nuisance, First Amendment and vandalism claims can complicate the already murky notions of artistic authorship in political protest art.

Copyright: Is Political Protest Art Protected?

Copyright defines the possession of an exclusive legal right to literary, artistic or musical material. Normally, the creator retains copyright despite a change in ownership of the physical object. The government retains the copyright to public artworks it commissions, although under the Visual Artists Rights Act (VARA), artists can still enjoy certain protections for state owned works, including preventing the work’s destruction or removal from the site in which it is placed. As the first federal legislation of its kind, VARA effectively grants artists a moral right to protect their creations. VARA does, however establish criteria for what creations are protected, including original and exclusive works crafted from media such as paintings, photographs, sculptures and drawings.

The U.S copyright law is designed to protect intellectual property from being improperly appropriated, exploited and disseminated by third parties. U.S. copyright law’s fair use exception allows for reproduction in cases of educational commentary, criticism, reporting or teaching. In determining fair use, the individual or organization seeking to reproduce the image must articulate the underlying philosophical purpose accompanying the image and take care to not impede the original work’s potential marketability.

Generally, copyright protection for an artistic creation is broad, covering any work of original authorship crafted in a tangible medium that “possesses at least some minimal degree of creativity.” Do temporary or impermanent creations, like those used in political protests, retain the same protection?

Creators of political protest art frequently operate under the guise of anonymity, working to shape or build upon a dialogue. Such items are rarely crafted as art items, let alone designed to be exhibited after the event they are intended to address, shore up or put down. Instead of being cherished in a pristine exhibition space, works are created to be portable and destructible so that they may serve as instruments of a movement, rather than merely symbols of it. Such items include posters that loudly parade the epitaphs of the movement, sculptures symbolizing political ideals, and flyers and pamphlets that participants hand out to eager members of the public.  Most importantly, these items are intended to be shared, to elicit a desired reaction in furtherance of the larger philosophy for which they serve. The disposability of such items negates the care and attention paid to traditional artworks, decreasing the incentive to protect item through legal means. With the foregoing logic in mind, it’s seemingly unlikely that creators of political protest art can assert robust copyright protection for works not intended to survive beyond a certain event. As it stands, the record is silent on the issue of artists seeking copyright protection for works used in political protests, yet the advent of protest artifact archives may bring this once ancillary issue front and center.

Ferguson, Street Art and the Politics of Anti-Institutional Artmaking

The 2014 death of Michael Brown rendered Ferguson, Missouri a hotbed of political and social unrest. In turn, artists and intellectuals resisted a media firestorm that presented the city’s extreme political unrest in a monolithic fashion. In his communal art project, Push Forward, artist Damon Davis pasted images of raised hands in various locations throughout Ferguson. With the permission of local business owners, whose establishments had been boarded up and closed to the community, these stirring images served as visual symbols of collective solidarity. Davis’ works, and many others like it, signal an increasing acceptance of graffiti as art, with more business owners allowing their structures to serve as mediums or ‘canvases’ of expression.

In the 21st century, street artists have seized a growing spirit of dissatisfaction with cultural institutions-namely museums and galleries for which pioneering Land Artist Robert Smithson deemed “mausoleums of culture.” Now, art forms such as graffiti bring art directly to the people, and while the last decade has ushered in an unprecedented degree of cultural acceptance to the medium that was once dismissed as vandalism, this arena is still abound with legal issues such as nuisance. 

As a common law tort, nuisance claims can be either public or private, and, arise from unauthorized and inappropriate uses of one’s property. Often, nuisance claims aim to reverse the tortfeasor’s action, which has affected the property’s value or the owner’s reasonable use of land. The illegal placement of graffiti has served as a logical iteration of nuisance, with the art form existing as a literal defacement of property-regardless of aesthetic value or societal appreciation.

Still other forms of political artmaking evoke public nuisance claims, raising concerns about the viability of art rooted in illegality. VARA’s protection of public artworks is contingent on whether or not the work is of “recognized stature.”  In affirming a legal standard for unsolicited street artworks, English v. BFC&R E. 11th St LLC held that VARA fails to protect illegally placed graffiti. While not all graffiti is protest art, its ongoing popularity attests to the viability of public avenues of expression. Like many of history’s most daring and thought-provoking artworks, graffiti often dares to confront directly that which would have otherwise remained hidden.

Cataloguing Chaos: Preserving the Evidence of Terrorist Attacks in Paris, New York, and the Occupy Wall Street Movement

In the wake of major terrorist attacks in New York on September 11, 2001 and Paris on November 13, 2015, archivists began the arduous process of cataloguing thousands of items compiled in makeshift memorials throughout the cities. In such events, archivists often struggle with determining the best procedure for both collecting the items and curating overwhelming collection.

In Paris, archivists prioritize letters and drawings above other artifacts, as these items seem to harness most eloquently the human dimension of tragedy. Archivists aim to preserve these artifacts’ emotional potency, what sociologists and intellectuals consider the most telling of the collective experience spurned by the event. The donative nature of these items negates legal concerns regarding ownership, however, preservation-determining the appropriate size of a state archive or who makes these determinations remains.

In contrast to the portable ephemera in Paris, New York’s post-9/11 archivist practices were decidedly more ambitious, relying on both small tokens of grief and large sections of destroyed structures. After the city’s terrorist attack, distorted masses of the World Trade Center were quickly isolated and stored with the intent to preserve. Their sublime presence in the 9/11 museum is emblematic of a cultural reluctance to let go, as if the fragments themselves carry with them a magnetic power to retell the trauma of that day’s human loss.

In addition to terrorist attacks, socio-political insurgencies in the West have catalyzed ambitious archives and databases. From the outset, attempts to document and preserve the Occupy Wall Street Movement were undertaken by sociologists, students and organizers. Archivists have to date thousands of items-posters, signs, photographs and messages-stored in physical and digital venues. The process has engendered a fascinating degree of debate from academics and movement insiders, many of whom question the legitimacy of archives’ underlying narratives.

Starting in 2011, students at New York University’s Moving Image Archive and Preservation Program (MIAP) began collecting items presenting the media coverage of the movement. With the help of MIAP director Howard Besser, the students dubbed themselves “Activist Archivists,” uniting under the principal goal of preserving “the spirit, decentralization, self-organization, playfulness, and whimsy of this protest movement [which would otherwise] be lost to history if the media that documented this did not survive.” The archive’s role as counter of ‘real’ history presents an empowering incentive for the process of collecting, and may well persuade other movements to make similar strides in the future.

Je Suis Charlie

According to the U.S. patent and trademark office, two applications were filed for “Je Suis Charlie,” Paris’ iconic rallying cry following the 2015 Charlie Hebdo attack. Recently, the Washington Post proffered a commentary on the increasing frequency by which private individuals and businesses have applied for Trademarks in the wake of public tragedies.

As discussed in Dennis C. Abram’s article “Je Suis Public Domain,” opportunists see great economic potential in creative output, such as slogans that encapsulate the essence of collective spirit following great tragedy. Such attempts are rarely, if ever, legally recognized. U.S. law dictates that a trademark must have some connection to a good or service that is being promoted and visually identified so as to distinguish it from other similar products. 

First Amendment and Vandalism: The Case of the Illuminator Art Collective

While material items such as posters, sculptures and pamphlets evoke the classic definition of a political artifact, performance remains an apt medium for the dissemination of socio-political critiques. Inherently uncommodifiable, performance art often prioritizes the immediate interaction of participants involved in political protests over secondary documentation in the form of photographs or videos. Groups like the Guerilla Girls, the famed feminists whose performances spurned valuable dialogue regarding institutional racism and sexism within the art world, have put art activism on the map in recent decades.

Similarly, the New York City-based Illuminator Art Collective (IAC) stages political protests at famous sites such as the Metropolitan Museum of Art and the United Nations Building, where these iconic structures become the conceptual canvas upon which political critiques are projected. Using a specially designed van that holds a projector on its roof, the group projects messages and symbols meant to provoke dialogue and reveal the secrets these institutions are inclined to keep hidden. The group’s tactics reveal a curious relationship between art activism and the First Amendment, as well as how the seemingly universal definition of vandalism must be altered to adapt to new technologies and artistic visions.

The group’s work highlights this fascinating intersection between art activism and law. On September 9, 2014, three members of the group, Kyle Depew, Grayson Earle and Yates McKee, were arrested for unlawful posting of advertisements, when they projected images on the façade of the Metropolitan Museum of Art. The images were critical of billionaire businessman David Koch, who had recently donated $65 million dollars to the museum in exchange for the museum’s public plaza being renamed after him. IAC’s projections were critical of Koch’s environmental stances, namely his denial of climate change. While parked on a public street, the van was approached by a NYPD deputy, who later seized the group’s projector equipment and arrested the three on the charge of unlawful posting of advertisements. Before these charges were formally dropped by a criminal court, the city of New York issued criminal summonses for three members. NYPL §145.30 “forbids unauthorized individuals from posting, painting or otherwise affixing to the property of another person any advertisement, poster, notice or other matter designed to benefit a person other than the owner of the property.” The law appears to be an adequate measure in protecting businesses from becoming hosts to unwanted advertisements from third parties. In instances of political protest however, does the projection of commentary on the exterior public space fit this definition? While the city of New York seemed to think so, the charges were ultimately struck down in criminal court, with IAC’s lawyer Sam Cohen rightly pointing out that a streaming projection fails to fit the standard definition of “affixing. ”

It follows that if IAC’s political projections fail to meet the definition of unlawful posting of advertisements; they similarly fail to match the legal requirements of vandalism. Vandalism is defined as the deliberate defacing or destruction of property. While it is clear that plastering a non-affixable projection to the façade of a building fails to constitute destruction, does it deface? Defacing implies the marking of a surface-though not in a severe a fashion as destruction. Therefore, IAC’s unique brand of projector activism exists as a clever exercise of first amendment free speech.

CONCLUSION

As curators and archivists undertake the arduous process of compiling artifacts for physical and digital preservation, many questions remain about the legality and posterity of protest art. What is the optimal manner by which to preserve political or artistic ephemera? Who is best situated to protect artists’ rights to create and capitalize on their own art? What do keepers of protest art see when they preserve or trade in this kind of creative output? While political upheaval and tragedy prompt inflections from diverse global communities, museum archivists and administrators as well as art dealers and collectors look to preserve the artifacts for entirely different reasons. Due to the changing and often unsettled landscape of political protest art, artists and collectors alike may find themselves in need of legal advice to obtain information about available protections and defenses.

Note: This article is reprinted with permission from Entertainment, Arts and Sports Law Journal, Summer 2016, Vol. 27, No. 2, published by the New York State Bar Association, One Elk Street, Albany, New York 12207.

About the Author: Scotti Hill is a J.D. Candidate, 2018 from the S.J. Quinney College of Law at the University of Utah. She served as a summer 2016 intern for the Center for Art Law, and she can be reached at scottiaustinhill@gmail.com.

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.

Sources:

*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.

God Made Idiots: The Vandalism and Theft of Public Art

by Kristen Pionati

“In the first place, God made idiots. This was for practice. Then he made school boards.” –Mark Twain

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Mark Twain’s grave before and after the theft. (Star-Gazette)

In his 1897 book Following the Equator: A Journey Around the World, Mark Twain (born 1835, died 1910) wrote that “In the first place, God made idiots.” Even today education and upbringing continues to escape those who steal and vandalize art. Theft and vandalism of art are as old as time, but most of us like to think that here and now in the United States, graves are not desecrated and, if our city pays an artist for unique public works, they are not immediately stolen. However, we are wrong to assume these crimes only happen in faraway times and places. Some recent instances of theft and vandalism demonstrate the failure in our assumption and highlight the potential motivation behind those acts.

The granite pillar on Mark Twain’s tomb in Elmira, New York is 12 feet tall, or “mark twain” if you are a steamboat captain calling out a two fathoms measurement. Originally the pillar featured a 12 by 12 inch bronze plaque with Twain’s likeness in profile created and installed by local artist Enferd Anderson in 1937. However, sometime between Christmas and the New Year at the end of December 2014, someone brought a ladder to Woodlawn Cemetery and removed the plaque from its position towards the top of the pillar. The Cemetery Superintendent, Bryce Cuyle, told Elmira’s Star-Gazette he did not believe the plaque was stolen because of its “scrap value” but rather because “of who it was.” Cuyle went on to say he expected “someone will start chirping about this on social media.” Fortunately, if the original is not recovered, Twain expert Kevin MacDonnell has a plaster cast of Anderson’s work that could be used to restore the pillar according to the Star-Gazette.

Perennially reprehensible, theft of art extends to public works as well. For example, last summer, also in New York, vandals stole most of the street signs created by artist Ryan McGinness. In 2014, New York City commissioned McGinness to create abstract signage for city streets. The end result was fifty oblong red signs that look like traditional signage from a distance but upon closer view have bold graphic designs unique to each sign. In the first three weeks after the signs went up, nearly forty had been stolen. The Department of Transportation launched a full-scale investigation into the theft, seeking security footage from local businesses and government buildings where the signs were placed. The city replaced many of the stolen signs, but had not replaced all fifty as of August. No arrests were made in connection with the signs’ disappearances.

Similarly, last March a Memphis, Tennessee man stole a 4 foot by 3 foot statue by Ted Rust, the former director of the Memphis College of Art. The 350 pound statue, called “The Acrobat,” normally on view in a park, was stolen from a studio’s yard, where it was undergoing repairs and was kept covered by a tarp behind a locked fence and two heavy chain locks. Police found “The Acrobat” after pieces of the sculpture were recognized at a scrap metal yard. The scrap yard had paid the thief $300 for the pieces taken from the sculpture. Intact, the sculpture was worth $65,000. Wayne Barnes, 49, was arrested and charged with theft of property over $60,000 and vandalism between $10,000 and $60,0000.

These crimes occur across the world. Just this month, a six-foot fiber glass and stainless steel statue of Manannán Mac Lir, the Celtic God of the Sea, disappeared from a mountainside in County Derry in Ireland. The sculptor, John Sutton, who also worked on HBO’s “Game of Thrones,” expressed his shock following the theft to the BBC. According to Sutton, it would have taken many men with angle grinders several hours to remove the statue from its base and from the mountaintop where it was displayed. Police are investigating a “religious aspect” to the crime. Left behind in place of the statue was a wooden cross that said “You shall have no other gods before me, likely a reference to the pagan nature of the statue. Fortunately, the Limavady Borough Council voted to replace the statue after people from all around the world offered to contribute to the creation of a new statue. The Council acknowledged that it will be more careful in ensuring the replacement artwork is less vulnerable to theft.

One reason these crimes involving public art keep occurring may have to do with the medium—metal. Rising values for scrap metal have caused thefts, including theft of public art, to rise. For example, the BBC reports that in the United Kingdom, many metal public works are being placed in storage while fiberglass copies are put in their place. This plan may be a good one because the scrap metal value of sculptures is significantly less than the value of the art. Worse, as the Memphis example above serves to demonstrate, in stealing the art thieves often have to destroy it. If the work is large enough, as Rust’s was, the thief must break it into smaller pieces to remove it from its place and convincingly sell it as scrap metal.

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The site of John Sutton’s Manannán Mac Lir statue before and after its theft. (BBC)

There are several ways the law is equipped to deal with theft of public art and artworks displayed in the open. They will be discussed in turn in the following sections.

Theft

Those found to have stolen art may be simply charged with theft. Model Penal Code § 223.2 defines theft as the unlawful taking or unlawful exercise of control over the movable property of another with the intent to deprive the person of that property. Under MPC § 223.1, if a stolen work of art is worth more than $500, that theft charge would be a felony charge. Once caught, the thief of the Mark Twain plaque would be subject to the New York Penal Law § 155.05, which bears nearly identical language to the MPC and takes a broad view in its definition of property. Wayne Barnes, similarly, was subject to Tennessee Penal Code § 39-14-105, which makes theft of property valued between $65,000 and $250,000 a Class B felony.

However, relevant Penal Laws do not extend to specifically protect public art commissioned and owned by the government. There seem to be very few laws specifically covering the theft of government property, including taking and vandalism of art. Many state penal codes explicitly outlaw the theft of property pertaining to public utilities like gas, water, electric, or sewer systems without specifically addressing other real property. Curiously, South Carolina is an exception. Section 16-13-330 of the South Carolina Code specifically prohibits the stealing or damaging of works of literature or art. The South Carolina statute takes a broad view of art and includes works of art in a “library, gallery, museum, collection, exhibition or belonging to or in the care of any department or office of the State or local government, or belonging to or in the care of a library, gallery, museum, collection or exhibition which belongs to any incorporated college or university or which belongs to any institution devoted to educational, scientific, literary, artistic, historical or charitable purposes.” Unfortunately, the statute defines the crime only as a misdemeanor, punishable by a fine not to exceed $100 or thirty days in jail, both clearly insignificant punishments when the art destroyed and stolen can be priceless.

Vandalism

Vandalism laws provide another source of punishment. In the New York penal code, vandalism is contained within the criminal mischief laws in Article 145. Under that Article, a person can be charged with several degrees of criminal mischief, requiring intentional or reckless damage of the property of another. The four degrees of criminal mischief differ in the value of the damage done to the property and determine whether the crime will be classed as a misdemeanor or felony. The state could also charge someone with criminal tampering, which is a misdemeanor unless a person tampers with a public utility. Most relevant to the theft from Twain’s grave, Article 145.22-3 prohibits cemetery desecration, including the theft of any real property from the grave whose value exceeds $250. Tennessee’s vandalism statute is similar. It prohibits the intentional cause of damage or destruction to property of another, including public property. Vandalism is graded identically to theft, resulting in a Class B felony for Wayne Barnes.

Scrap Metal Regulations

Finally, in order to combat thieves selling scrap metal, there are laws which govern scrap metal processors or junk dealers. In New York, General Business Code Articles 6 and 6-C respectively require junk dealers and scrap metal processors to be licensed with the state. Both junk dealers and scrap processors must keep a record of the person selling the metal, their address, and contact information. In both cases, the person must provide identifying information about the metal, either when they purchased the metal or a description of when, where, and from whom the property was obtained. The Institute of Scrap Recycling Industries (ISRI) is a Washington, D.C. based trade association dedicated to raising awareness about the theft and sale of scrap metal. It targets law enforcement agencies, prosecutors, recyclers, and legislators to help develop a comprehensive program to address the problem of metal theft. ISRI even runs a website, ScrapTheftAlert.com, that allows users to report metal thefts and subsequently notifies other users in the area so they can contact law enforcement if they have additional information. That site has led to over 200 arrests and the recovery of $1.4 million in scrap metal of all kinds, not necessarily all from stolen art.

The vandalism of Mark Twain’s grave and the theft of Ryan McGinness’ New York City street signs are just two examples of the countless number of idiotic, senseless actions taken against art, often because that art is made of metal. As the prices for art and metal scrap continue rising, we can expect to learn of more and more illegal takings of artworks more prized for their provenance, aesthetic and cultural value than their salvage wroth. These basic crimes are brazen acts that destroy art, its value, and rob the community of valuable cultural experiences but they are not without redress. Stewardship of public works and memorials as well as outreach to the metal scrap facilities may help reduce the irreversible loss of cultural artifacts. Existing law may need to be revised to deliver more exacting and weighty consequences to more effectively punish offenders and deter others from committing similar acts.

 Selected sources:

About the author: Kristen is a recent graduate of Villanova University School of Law where she pursued her interest in art law in her research, at the Tulane-Siena Institute for International Law, Cultural Heritage, & the Arts, and at the National Cultural Heritage Law Moot Court Competition at the DePaul University College of Law.

YouTube Offers Evidence and Confession of a Picasso Vandal

Last June, an art student, Uriel Landeros, was caught on video vandalizing a Picasso painting, Woman in a Red Armchair, at the Menil Collection in Texas. Following his attempts to escape to Mexico, Landeros was caught and charged with criminal mischief. Ultimately, he plead guilty to graffiti charges. On May 21, 2013, he was sentenced to two years in prison, down from the ten years sought by the prosecutors.

As part of his Picasso ‘improvements,’ Landeros wrote ‘conquista’ and drew a bull and a bullfighter on the 1929 portrait. The video of Landeros’ actions appeared on YouTube(see above), and subsequently, Landeros’ posted a YouTube video of his own explaining his actions. He admitted to defacing the work but explained that he knew that his actions would leave no permanent damage to the painting. Instead, he wished to bring attention to the wrongs of our society. “My intention was never to destroy Pablo’s painting or to insult the Menil. If I would have wanted to destroy the painting, I would have ripped it with a knife or burnt it.

Attorney representing Landeros is Emily Detoto.


Source: The Art Newspaper.

UPDATE: Mark Rothko Vandal Sentenced

Vladimir Umanets, also known as Wlodzimierz Umaniec,
defacedMark Rothko’s Black on Maroon at the
 Tate Modern October 7, 2012.

Judge Roger Chapple, of the Inner London Crown Court, sentenced Vladimir Umanets to two years in prison.  Umanets vandalized a £9 million (US$15 million) Rothko at the Tate Modern on December 7th.  He admitted responsibility and to £5,000 of criminal damage.

However, the Tate estimates that the restoration of Rothko’s Black on Maroon will cost between £5 million and £9 million.  Initially conservators believed that the painting could be easily restored, but after closer examination they discovered that the ink marker used by Umanets permeated several layers of paint and into the canvas itself.

In his statement, Judge Chapple told Umanets: “Your actions on the 7th of October of this year were entirely deliberate, planned and intentional” and “wholly and utterly unacceptable.”  Judge Chapple not only noted the value of the painting and the cost of restoration, but also the cost of new security measures now under consideration at museums around the United Kingdom.

For our previous coverage on this case visit: Rothko Defaced at the Tate Modern

Sources: The Telegraph, image from RT