Keywords

1 Introduction

The conservation of works of contemporary art is a complex endeavour and involves a variety of stakeholders, including the artist, museums, collectors, gallerists and conservators. To manage all parties’ expectations, parties need to trust each other that they will work according to shared values and beliefs. It requires balancing theoretical, ethical, material, and aesthetic considerations. This chapter explores the relationship between artists and museums in terms of trust and control and considers the role that contracts can and do play within this relationship concerning the conservation of contemporary artworks.

We first explore the general attitudes to and practices around contracts in the art world, discussing the perceived resistance and antipathy to contracts in this field. Next, we consider the professional and institutional norms that apply to the conservation of contemporary art, focusing on the concepts of the integrity and authenticity of the work, and the artist’s intent as central to the artist-museum relationship.

These ethical norms and guidelines are then located in the context of the broader discussion on the ethic of trust that shapes all human relationships (Granovetter 1985; Tyler 1990). A classic definition of trust is “the process that enables actors to deal with irreducible uncertainty and vulnerability” (Möllering 2006, p. 110). Trust is needed to facilitate cooperation and coordination of mutual benefit in situations where (1) uncertainties and risks exist, and (2) actors are interdependent on each other. Where artists depend on museums to exhibit their works, and museums on the cooperation of artists to display and conserve their works, a relationship of trust is essential. It, however, entails both parties taking a risk, a “leap of faith,” that the other party will meet their expectations.

These risks and responsibilities are determined in part by social structures. We rely on literature that emphasizes the complementary relationship between social structures and trust. This helps us to understand how contracts can influence the relationship between artists and museums.

Relying on social structures as embedding of people’s behaviour, we understand contracts to clarify or further specify these structures. Institutional norms and rules form part of these structures. But where they are implicit, actors may find it difficult to extend their trust in the other party, also to aspects that are not (yet) or fully addressed by the relevant norms and rules. We suggest that the value of contracts in contemporary art conservation, therefore, lies in their capacity to formalise and clarify social structures, providing the basis for the relationship of trust between the parties. We argue that the usefulness of contracts also lies in alleviating uncertainty that derives from the variation of national laws, limited case law, and the uncertain application of copyright laws to emerging artistic practices.

In a 2019 panel discussion, Marianna Houghton Mermin, a lawyer at the Solomon R. Guggenheim Museum, commented that when entering into contracts with artists, the aim of the institution was “to memorialise expectations” (Stringari et al. 2019). We adopt a similar perspective, proposing that contracts are a mechanism for articulating expectations of artists and collectors, particularly in areas which copyright law does not regulate, such as mandating consultation with the artist and defining the roles of actors involved in conservation.

We adopt a social-legal approach, which recognizes that contracts are embedded in, and influenced by, informal norms and social sanctions. Literature from sociology and the art world is used to establish norms and values that apply to conservation of contemporary art. Literature on trust and control informs the framing of the relationship between contracts on the one hand, and trust and control on the other. We use doctrinal legal methods to assess how artists use contractual arrangements to regulate the conservation of their artworks, and the role executants play in relation to the work. We draw on copyright legislation and case law to interpret relevant legal rules, which contracts can clarify.

Throughout this discussion we refer to Cuban artist Tania Bruguera’s Tatlin’s Whisper #5, 2008 and the contract that she concluded with Tate on the acquisition of the work in 2009. Tatlin’s Whisper #5 is a work of performance art grounded in political activism, which was performed on 26–27 January 2008 at Tate Modern. The work involves two police officers in uniform, who patrol the gallery space on a white and a black horse. The police officers use crowd control techniques, manipulating the visitors into a single group, encircling them to tighten that group, frontally confronting them with the horse and breaking the audience up again into two distinct groups. An important aspect of the work is that the visitors do not recognize the performance as art, as it is unannounced (Article 3.II.a, “Conditions for Showing Tatlin’s Whisper #5 2008 by Tania Bruguera,” in Westerman 2016). Bruguera wants to create an experience of “how easily a safe space can become threatening when power announces itself” (Westerman 2016).

2 Contracts, Ethical Norms and Trust in the Artworld

Before discussing the role of contracts in the relationship between artists and museums, we explore the normative framework that governs this relationship. Firstly, we survey the general practices and attitudes to contracts in the art world. This context is important as it demonstrates the (anecdotal) antipathy of the art world towards contracts and reveals the ethic of trust that underpins relations within the field. We then highlight key aspects of conservation theory and practice that provide normative structure to the relationship between the artist and the museum, before exploring literature on the broader notions of trust and control that regulate social relationships.

2.1 Resistance to Contracts

The art world is often described as reluctant to enter into contracts. Buck and McClean describe this reticence in their handbook on commissioning artworks, noting

many elements of the art world have been highly resistant to written contracts—and to lawyers in general! Even in today’s global multimillion art market, many agreements for both the sale and the purchase of the most valuable artworks are still frequently made on the basis of a handshake and the delivery of a basic invoice, rather than with the use of a proper legally binding contract. (2012, p. 218)

The perceived reticence to enter into contracts stems from the assumption that contracts undermine the ethic of trust that ought to underpin relationships between artists, dealers, and collectors. Contracts are viewed as adversarial rather than cooperative instruments. Kee notes that contracts are often understood as indicative of a compromised relationship: “in many cases, the very use of contracts implies that no one will get everything he, she, or it wants” (2017, p. 517).

Several artists are particularly resistant to limiting their artistic freedom. Jeremy Deller, for instance, describes his view on contracts as follows:

I try not to sign any piece of paper … to commit myself to doing this, that or the other or to stick to an idea. I try to leave it to the last possible moment to sign anything… . You don’t want to lock yourself into something that you are not happy with a week or a month later… and why should you, if the work is in progress? (Buck and McClean 2012, p. 218)

Despite the presumed reticence towards contracts, some contemporary artists have displayed interest in and engagement with the aesthetics and function of legal forms and processes, embracing what McClean calls “the legal moment” (McClean 2010). This engagement can be viewed in artistic and political rather than legal terms; in many cases the documents do not amount to binding legal agreements. The examples briefly discussed here reveal an artistic engagement with legal language and discourse that contributes to the reflexive relationship between art and law.

Artworks may incorporate or consist of valid legal instruments, rendering the law both subject matter and medium of the work. This becomes clear in particular where the work is based on a transaction of some kind, such as Tania Bruguera’s Obra nueva que no existe—todavía (New work that does not exist—yet) (2007). Bruguera auctioned on eBay a work that “did not exist yet: not even in the mind of the artist” (Calonje and Bruguera 2014, p. 41). In these ways, legal instruments may amount to—or stand in for—artistic medium. Ima-Abasi Okon’s work ^^^^^^^^^^^^^^^^^^^^^^^^^, 2018, exhibited at The Showroom in London as part of the group exhibition “there’s something in the conversation that is more interesting than the finality of (a title),” comprises a dishwasher and a printed copy of the “General Service Agreement” between Okon and the gallery (Okon 2019). This document sets out the terms of the agreement, according to which the artist will make tablets for the dishwasher and supply them to the gallery. Okon’s work shows that contracts can form an intrinsic part of the artwork itself, demonstrating artistic engagement with legal instruments, forms, and language.

Contracts also play a separate important role in artistic practice more broadly, facilitating the acquisition of works by collectors, and setting conditions for their custodianship. Okon’s ‘General Service Agreement’, which sets out the specific terms of her labour and remuneration, also shows that the division between contracts as artworks and contracts for artworks is not clear cut. Adrian Piper, whose exhibition and sale agreement, the ‘Solo Exhibition Agreement,’ is adapted from Siegelaub and Projansky’s contract, has stated that she does not view the document itself as an artwork, but that it forms “part of [her] conceptual work in art” (Piper and Eichhorn 2009, p. 203).

In this context, contracts may be exploited by artists as mechanisms for making political statements, as methods of neo-institutional critique, and as instruments valued as much for their communicative and declaratory properties as for their capacity to create enforceable legal obligations (McClean 2010). Piper’s ‘Solo Exhibition Agreement,’ for instance, contains a clause requiring that the dealer or gallery representative does not under any circumstances offer a percentage discount on her work, as “it is already subject to the 50% Off Black Artists Discount and the 25% Off Women Artists Discount” (clause 5(b), reproduced in Piper and Eichhorn 2009, p. 210). The exhibition In Deed: Certificates of Authenticity displayed a selection of certificates of authenticity, diagrams and instructions, divided into categories, including documents deemed to be “Assertive Acts” (Hapgood and Lauf 2012, p. 81). This categorisation recognises the political instrumentality of contracts in the art world, separate to their legal function and value.

Thinking about contracts in this way reinforces an understanding of them as social and political as well as legal instruments. They are a vehicle for artists to use legal forms, methods, and rhetoric to articulate and enact a political position. The most widely known artist contract is ‘The Artist’s Reserved Rights Transfer and Sale Agreement,’ drafted by dealer and gallerist Seth Siegelaub and lawyer Robert Projansky, published in 1971. Speaking about the contract, which was made freely available to use, Siegelaub stated: “We have done this for no recompense, for just the pleasure and challenge of the problem, feeling that should there be a question about artists’ rights in reference to their work, the artist is more right than anyone else” (Siegelaub 1973, p. 144). The use of Siegelaub and Projansky’s agreement demonstrates a commitment to ensuring that artists have the right to consultation and control over alterations and conservation of their works.Footnote 1

Among other things, the agreement stipulates that in the event that the work is resold, the artist shall be paid 15% of the appreciated value (implementing, through contract, the equivalent of a droit de suite) (Article 2(b)), that the collector not intentionally modify, alter, or destroy the work (Article 9), that the collector must obtain the artist’s consent prior to the work’s exhibition (Article 7), and that the artist is to be consulted in the event that the work requires repair (Article 10). Incorporating these conditions into the contract of sale articulated a political position regarding the standing of artists in their dealing with collectors and institutions. At the same time, it gave artists rights not afforded to them by legislation.

Either working with lawyers—Daniel Buren drafted his artist’s contract Avertissement (1968/69) with lawyer Michael Claura; Seth Siegelaub collaborated with Robert Projansky in developing ‘The Artists’ Reserved Rights Transfer and Sale Agreement’—or alone, some artists have embraced contracts as a means by which they can “make his or her own law” (Eichhorn 2009, p. 15). For them, contracts provide a mechanism by which they can exercise control over their works after they have been sold, and this has significant implications for the conservation of contemporary art.

The use of contracts, however, does not negate the importance of a relationship of trust; contracts are an instrument and artefact of the relationship between the parties and their meaning, and should be interpreted as such. This is illustrated by the final provision in artist Ima-Abasi Okon’s ‘General Service Agreement’:

Although this agreement is informed by employment law regulations, it is not a binding contract as understood in English and Welsh contract law. It is rather governed and bound by mutual respect and a sincere commitment to each other as human beings. It is based on the recognition that both parties agree to fully pursue the agreement both in spirit and in practice. (2018, Article 8)

2.2 Norms and Guidelines for the Conservation of Contemporary Art

While a full account of the norms and guidelines for the conservation of contemporary art is beyond the scope of this chapter, some key concepts inform this discussion of the relationship between artists and museums, namely the integrity and authenticity of the work, and artist’s intent. These concepts are deeply intertwined, related to understandings of the status of the artist (van Saaze 2013, p. 48).

Respect for a work’s integrity is enshrined in professional codes of ethics as a central concern of conservation. Sease describes integrity broadly, as “an unmarred, unimpaired or uncorrupted condition” (1998, p. 102). This definition encompasses both tangible and intangible aspects of the work. Conservation literature and professional codes propose an understanding of integrity as multiple: physical, aesthetic, historic, cultural, and conceptual (Clavir 1998; Muñoz Viñas 2005; ECCO Art. 5; AICCM Art 2).

For works of contemporary art, ensuring physical integrity does not guarantee conceptual integrity. This is reflected in evolving ideas of authenticity that have shifted from ensuring the persistence of a work’s material form to reliance on the artist’s ongoing approval of the work’s manifestation/s. The ethical commitment to integrity is thus linked to both notions of authenticity and the artist’s intent. Conservation literature has placed artistic intent as a central concern and wrestled with the ethical dilemmas posed when an artist’s intent is unarticulated, ambiguous, or conflicts with established professional standards (Irvin 2005; Sommermeyer 2007; Gordon and Hermens 2013; Quabeck 2019).

These theoretical positions inform standard institutional practices of care for contemporary artworks, which involve gathering extensive information and knowledge about the work from the artist, through documentation, interviews and ongoing dialogue and consultation (INCCA 2002; Mancusi-Ungaro 2005; Beerkens et al. 2012). The artist’s participation—through interviews, consultation, and ongoing dialogue—is crucial to developing and implementing conservation strategies for their work. Caring for works of contemporary art, therefore, often depends on a relationship of trust and goodwill between the artist and the institution.

Contracts, therefore, have an important place in contemporary art conservation theory and practice. They may be framed as part of what Irvin describes as “the artist’s sanction,” the body of an artist’s explicit and implicit communications about the work (Irvin 2005). Contracts for artworks may also be viewed as forming part of the work’s “score” (Laurenson 2006; Rinehart 2003; Phillips 2015; Burke 2018).Footnote 2 Contracts occupy a position of authority among other types of documentation that conservators routinely draw to build an understanding of a work and develop conservation strategies.

2.3 Trust and Control

In this chapter, we ask how the ethical guidelines applicable to the art world can be reconciled with contractual commitments. In particular, we consider whether relationships between artists and museums are governed mainly by trust, control in the form of regulation or rules, or a combination of the two. For that purpose, we explore the concepts of trust and control, and how they may apply to the relationship between the artist and museums.

Mayer, Davis and Schoorman distinguish trust from the ability to monitor or control. According to them, trust entails:

the willingness of a party to be vulnerable to the actions of another party based on the expectation that the other will perform a particular action important to the trustor, irrespective of the ability to monitor or control that other party. (1995, p. 712)Footnote 3

Control is defined here as the level of constraint imposed on the other (Möllering 2005, p. 286). Coleman characterizes monitoring, controlling and sanctioning as mechanisms of distrust, the opposite of trust (1990, p. 100).

While this perspective was dominant in the 1990s, later research has presented a more nuanced position towards trust and control. It supports that the two can complement and strengthen each other (Six 2013, p. 165), emphasising the possibility of a positive relationship between trust and control (Möllering 2005, p. 285). Möllering speaks in this context of a duality of the two concepts rather than a dualism. Such a duality perspective assumes “the existence of the other” (Möllering 2005, p. 284). We follow this perspective on trust and control, as it takes the reflexive nature of modern social relations into account and is developed on the basis of contract negotiations, a case similar to the subject of this article.

Following notions of embedded agency, actors are constrained by social structure but also exercise agency, through contingent and purposeful action (Garud and Karnøe 2001, pp. 9–11). This analytical framework helps us to understand how actors form positive expectations of the behaviour of other actors to whom they are vulnerable (Möllering 2005, p. 286). Since social interaction depends on both embeddedness and agency, actors will form their expectations of the behaviour of others on the basis of both variables. Relating this back to trust and control, the reliance on structural influences on the embedded person represent control, whereas assumptions of benevolent agency by the person represent trust (Möllering 2005, pp. 287–288).

Trust assumes the existence of control because when relying on the benevolence of a person, one also assumes the particular social structures in which this benevolence can occur. At the same time, where one relies on the controlling influence of social structures on persons, one also assumes that these structures leave a certain degree of freedom to act, and that that freedom is not malevolently exploited. Therefore, Möllering argues, “control alone is not enough, if it is not supported by trust” (2005, p. 290). Translating this to the art world and contracts, Stephen Snoddy, Director of the New Art Gallery in Walsall (United Kingdom), reflected this idea in his own words:

It is very helpful to have a simple and straightforward agreement at the outset, so that the artist knows exactly where he or she is. This is not so much within a legal framework; it is done on the basis of trust. I have learnt that if you don’t have something that lays out the parameters, then that trust can quickly go. (Buck and McClean 2012, p. 217)

Social structures consist of various factors. In professional relationships, the general rules of the trade as well as past mutual experiences play an important role (Möllering 2005, p. 290). General rules of the trade can be unwritten rules for negotiations, ethical norms etc. Social structures in this sense provide a certain level of control. However, actors will still need to trust that within these structures, the other will not exploit his agency in a malevolent way, by possibly even going against social structures. According to Daniel McClean, contracts should best be understood as providing a promise that is contingent upon trust rather than certainty: it is the personal relations founded upon trust between the artist and collector that count more than the law (McClean 2012, p. 94).

How much trust is needed depends on the level of social structures that control the possible actions by actors. The room for agency depends on the room left by social structures. For this reason, there is a reflexive relationship between the two (Möllering 2005, p. 291). Applying this to the relationship between contemporary artists and museums, one can identify several social structures that apply to this field: the legal rules that determine the rights of the artist, the ethical and professional norms of conservation, established practices for acquiring works of art, the relationship of goodwill between the artist and the institution, and the past experiences of both the artist and the museum.

In this context, written contracts between artists and museums that specify certain treatment, ownership or display of the artwork could be viewed as having two effects. Where contracts stipulate rules that are not yet defined or specified in previous social structures, they increase the level of social structures by regulating more than previously accepted norms, and hence leave less room for individual agency. Parties will then only have to trust that the other will use that reduced space of action benevolently.

In other situations, where contractual provisions formalize norms that are underlying previous social structures, a contract does not add new rules but merely makes these rules explicit and adds a stronger control mechanism. Arguably the same level of trust is then required that the trustee will act benevolently. Importantly, no matter whether more social structures or stronger structures are created, trust is still required for positive expectations of each other and a fruitful cooperation after all.

3 Contractual Arrangements as a Mechanism to Manage Expectations

Starting from the presumption that social structures are inherent to relationships between artists and museums, we perceive contractual arrangements as a means to provide more clarity about these social structures. In particular, where the law does not regulate aspects of importance to artists and museums, contracts may help to manage expectations between the parties. Works of performance and political art, such as Tatlin’s Whisper #5, represent a particularly volatile and contingent medium; an explicit agreement setting out the terms of performance can help to preserve the very idea of the artwork. We suggest the option of contractual arrangements because parties in the art market already turn to the law when disputes arise, in particular for conflicts among artists and collectors for the high end of the global art market (McClean 2018, pp. 13–14). Using legal means like contracts upfront to prevent disputes from arising could offer more legal certainty and, in the end, reinforce the relationship built on trust. As Mark Stephens, partner at the London law firm Finers Stephens Innocent, put it:

It is essential with commissioned artworks, in the interests of both artist and commissioner that a written, clear and detailed commissioning contract is in place from the outset. This paves the way for artistic freedom and better creative outcomes. The commissioning contract should help to create certainty and foster trust between the parties in a spirit of partnership rather than lead to distrust and mutual suspicion. (Stephens cited in Buck and McClean 2012, p. 223)

Many areas of law establish rules that are applicable to the art market, such as the broader field of property law, tort law, law of obligations, law protecting cultural heritage, etc. However, where questions of treatment of contemporary artworks are concerned, relevant rules are established in copyright law. In this chapter, we therefore look at current copyright rules in a few jurisdictions, and how contracts could help to clarify and provide legal certainty on how contemporary artworks should be treated. In particular, we consider two aspects of copyright law that differ between jurisdictions and often are not regulated in statutes or by case law. First, the protection of a work’s integrity; second, the role of executants as (co-) authors in the realisation or installation a conceptual artwork.

We are aware that contracts cannot deviate from the principles of reasonableness, or equivalent concepts of national contract law. While the present chapter does not provide a detailed account thereof, we acknowledge that contracts that pertain to regulate aspects of copyright law that have been left unregulated, cannot be overly restrictive on the rights of buyers or commissioners, as it would produce unjust outcomes that then may be unenforceable (van Haaften Schick 2018, p. 17).Footnote 4 In addition, contracts regarding the treatment of works will inherently be limited to the parties that have consented to them. If future owners or inheritors do not wish to accept the contract’s terms, they will not be bound by the rules set out (van Haaften Schick 2018, p. 18).

3.1 Safeguarding a Work’s Integrity

The conservation of contemporary artworks often raises questions about authority—whether the artist or the owner of the artwork can determine how it is conserved or displayed. Examples concern the question as to whether artists must be consulted before each installation of their work, or about the context in which the work should be displayed. In 2021, for instance, the estate of Cy Twombly objected to the renovation of the Salle de Bronzes, a gallery in the Louvre, in which the artist created a 350 square metre ceiling painting. The estate claims the recent renovation of the gallery—which includes painting the walls dark red instead of white and changing the works displayed from antique bronzes to Etruscan artefacts—has altered the work without prior consultation or authorisation (Noce 2021).

When an artwork is acquired by a museum, this is generally accompanied with a license of some of the economic rights associated with the work. As such, the museum may have the right to display the work to the public, to reproduce it in catalogues, and to document the work. In addition to these economic rights, copyright grants artists moral rights over their work which cannot be licensed or transferred. Where two parties share rights to the same object, drawing the line between where the rights of one and the other stop can create conflicts. This is particularly so for moral rights, which among other things concern the integrity of a work—a rather open norm.

Moral rights constitute a set of rights recognized under copyright law that are meant to specifically protect the relationship between the author and her work. These rights differ substantially between jurisdictions, especially between common law countries, such as the UK, the US, and Canada and civil law jurisdictions such as the Netherlands, France, and Germany. Civil law countries generally confer strong protection to authors; their systems are known as “authors’ rights systems” (Auteurswet, droit d’auteur, Urheberrecht). On the other hand, common law countries tend to protect moral rights to a more limited extent, as the reason for protecting copyright in their system lies more in the utilitarian idea of benefit to society rather than protecting the personality rights of the author.

A common definition of moral rights can be found in Article 6bis of the Berne Convention, the primary international treaty on copyright, which stipulates two moral rights: the right to be attributed as the author, and the right of integrity. The latter is what is most important to our assessment of the treatment of contemporary artworks. It entails the right:

to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation. (Berne Convention, Article 6bis(1))

In other words, where a certain treatment such as modification or distortion, or any other derogatory action is prejudicial to the honour or reputation of the author, she can object to such treatment. The emphasis lies on prejudice to the author’s honour or reputation—only in the case of such effect on an author’s honour or reputation can the right be invoked. This is markedly different from the meaning of integrity in the field of conservation discussed above, which views integrity as a combination of physical, aesthetic, historical and conceptual integrity, with the artist’s intent at its core (Clavir 1998, p. 2).

The national transpositions of the integrity right and case law that interprets this right are leading when an artist wants to rely on such a right in a particular conflict with a collector, conservator or exhibitor. This scope for national variation is illustrated by the different positions of courts in the UK and the Netherlands on the relevance of the context of a work to the work’s integrity.

For example, in the UK as a typical common law country, the right of integrity is expressed as the right of authors to not have their work subjected to “derogatory treatment” (CDPA s80(1)). The term ‘treatment’ in the Act is limited to “any addition to, deletion from, or alteration to or adaptation of the work.” The “treatment” of a work is considered derogatory only if it “amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author” (CDPA s80(2)(b)). Courts have confirmed that the clause “prejudicial to the honour or reputation of the author” applied to “distortion or mutilation” as well as other treatments. This notably excludes situations where a work is placed in an inappropriate and damaging context, the physical relocation of a work, or the destruction of a work. This interpretation of integrity focusses on the persistence of the work as a contained material object, rather than the work’s conceptual, historical, or aesthetic qualities. As a consequence, the scope of the integrity right in the UK is significantly limited (Confetti Records v. Warner).

The integrity right is interpreted more broadly under Dutch law. Pursuant to Article 25(1)(c) of the DCA, the author of a work has the right to oppose any alteration to the work, unless the nature of the alteration is such that opposition would be unreasonable. In fact, any adaptation of or alteration to the work is covered. In addition, under Article 25(1)(d) of the DCA, the author has the right to oppose any distortion, mutilation or other impairment of the work that could be prejudicial to the honour or reputation of the author or to her dignity as an author. Significantly for works of contemporary art, interfering with conceptual elements of an artwork has been held to infringe the Dutch integrity right if the objection is not unreasonable (Devens v Eijsden, Chiffrun v Foundation Rotary Projects Veendam). An artist’s objection to the alteration of the height at which his painting was installed, was found to be reasonable, on the basis that it had a material impact on the way it was viewed (Van Soest v De Meerpal). In determining reasonableness, contractual agreements to the placement of the work have been taken into consideration.

In view of the difficulty of ascertaining the exact scope of moral rights protection in the relevant country, and in order to provide more clarity about the intentions of the parties involved, contracts provide a tool that can specify conditions for the work’s conservation and display. This can be especially valuable for safeguarding crucial conceptual or contextual aspects of a work’s identity. For example, the contract used by Bruguera for Tatlin’s Whisper #5 includes the following stipulation of the right to integrity:

The artist has the right to the integrity of the work. The work cannot be modified or changed without the authorization from the artist. (Certificate of Authenticity and Ownership Conditions)

This is an expansive articulation of the right to integrity; it extends to any modification of or change to the work and requires authorization for such modification. There is no requirement of prejudice or harm to the honour or reputation of the artist, unlike in Article 6bis(1) of the Berne Convention. The range of situations covered is therefore considerably broader. It should be noted, however, that it is not clear whether such a provision might be deemed to impose an unreasonable burden on the purchaser of the work. This would be a matter for a national court to determine.

As well as this statement of the artist’s right to the work’s integrity, Article 3.1a) of Bruguera’s contract further specifies:

The work is shown in places where abrupt social and political events have happened, either in recent history of the place or at the moment when such events are overwhelming presence in the media. (Conditions for Showing Tatlin’s Whisper #5 2008 by Tania Bruguera)

This requirement speaks to the complexity and importance of political context for Tatlin’s Whisper #5, which depends on the decontextualization of familiar images from the news into the space of the museum. According to Bruguera, the contracts she enters into with museums are not only about listing a set of conditions, but they are also designed to be a provocation and invitation to the institution to ensure her works retain their political potency. Discussing Tatlin’s Whisper #5 in an interview with art historian Claire Bishop, she explains that while the contract requires the work only be shown in certain social and political contexts, it is up to the museum to decide when those contextual requirements are met (2020, p. 74).

Bruguera’s focus on the social and political context of the work, rather than its material form, reveals an understanding of the artist’s right of integrity that is quite different to its enactment in law. This demonstrates the capacity of contracts to clarify the existing expectations of the parties—that the museum will work alongside the artist to safeguard the conceptual and contextual integrity of the work.

3.2 The Role of Executants as (Co-)Authors in the Realisation or Installation of a Conceptual Artwork

Philosopher Sherri Irvin observes that “[in] the museum context, conservators and curators often play a role in the shaping of works of contemporary art” (2006, p. 143). This idea has been explored by various scholars, including Albena Yaneva, discussing the collective work underpinning installations (2003), by Vivian van Saaze, through the concept of “doing” artworks (2013), and by Sanneke Stigter, in applying the notion of autoethnography to contemporary art conservation practice (2015).

In the field of copyright law, there is a considerable grey area when it comes to authorship of a conceptual artwork that is installed by executants or participants. This is due to the primacy of the idea in conceptual art, as well as the delegated realisation often entailed by these works. LeWitt’s well-known writing on conceptual art sets out the role of the idea in relation to the work:

In conceptual art the idea or concept is the most important aspect of the work. When an artist uses a conceptual form of art, it means that all of the planning and decisions are made beforehand and the execution is a perfunctory affair. (LeWitt 1967)

In other words, the idea or concept behind a work is more important than the actual artwork. This very notion already poses a challenge to copyright law because the subject of copyright protection is the expression of a creative idea, rather than the idea itself (Article 2, WIPO Copyright Treaty). If the value of the artwork lies in the idea, however, it becomes difficult to protect it under copyright (Clarida 2016; Said 2016; Burke 2017). Only when the artwork is expressed in either a set of written instructions, diagrams or the execution or instantiation itself, it will be protected.

Copyright protection is contingent upon the expressed form of the artwork. This prompts the question of who should be acknowledged as the author of the artwork when the execution is left to others. Is the artist who conceptualised the work the single legal author, or are the executants in the museum or gallery who install the artwork according to the guidelines of the artist considered single authors or co-authors together with the artist?

The legal answer to these questions is not straightforward, and, as Bently and Biron explain, it may significantly diverge from social understandings and practices of authorship. When looking at copyright law in various jurisdictions, three elements seem to be important for determining co-authorship: (1) the relationship between the artist and participants, (2) the level and kind of participation, and (3) the degree of integration of the different contributions (Bently and Biron 2014, pp. 237–238).

In the UK, joint authorship requires “the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors” (Copyright Designs and Patents Act, s10). Collaboration in this sense requires coordination or cooperation in the realisation of a common plan or design. The Dutch rules on joint authorship similarly require that the contributions of each author are not distinct (Spoor et al. 2005, p. 32).

A key factor that determines whether executants of the artwork should be attributed co-authorship or even sole authorship over the artwork, is the level of detail of the instructions given by the artist, and the level of involvement in the execution thereof. When looking at the input of the artist on a continuum, a strong involvement is reflected by a high degree of detail in the instruction and close control and supervision over the expression of the ideas.

An example of detailed instructions is contained in the contract regarding the acquisition of Tania Bruguera’s Tatlin’s Whisper #5. The detailed instructions stipulated in Article 3.1 discussed above, as well as her involvement in the performance at Tate Modern in 2008, suggest a strong engagement of the artist. This is further underscored by the inclusion in the same provision, of the right to veto the work’s performance:

The artist has the right to veto in case she considers that the (political, social and artistic) context and conditions of the project where the performance would be included contradicts or devaluates the original intention of the work. (Conditions for Showing Tatlin’s Whisper #5 2008 by Tania Bruguera, Article 3.1)

A looser involvement can be found where only general guidelines are provided by the artist, and it is left up to the gallerist, exhibitor, collector, assistants or other participants to execute the work. This is the case for works by the American artist Sol LeWitt, who in some cases only provided general guidelines in the form of diagrams, instructions and/or a sketch for how the work is to be executed by his assistants (Bently and Biron 2014, p. 245; van Haaften Schick 2018, p. 9). Similarly, conceptual artist Lawrence Weiner was not always closely involved in the exhibition of his work, leaving it up to the collector or exhibitor to follow his aesthetic specifications (van Haaften Schick 2018, p. 9).

In light of the rather uncertain assessment as to whether a participant in the execution of the artwork will be considered as author or co-author in copyright law, contracts can help to agree upon the role of the artist and executants, in order to determine authorship of the work. The contract can set out detailed instructions on how the artwork is to be installed and under which conditions. It could include pictures, diagrams or other documentation that clearly illustrate the idea behind the artwork.

In addition, the role of the artist in the execution of the artwork can be specified in the contract. Artists could reserve for themselves a leading role in the execution of the artwork, similar to Bruguera’s contract for Tatlin’s Whisper #5 cited above. Another example is the agreement used by Daniel Buren, which specified in Article 7 that he has a right to be notified in a timely manner when his work is displayed by the collector. The artist furthermore reserved a right to advise and veto the exhibition of the work (Eichhorn 2009, p. 14; van Haaften Schick 2018, p. 15). As an alternative to Bruguera’s and Buren’s right to veto, a right to be consulted on the exhibition of the work could be agreed upon, with a best effort intention on behalf of the collector to respect the advice of the artist.

Contracts between the artist and the museum or gallery that will install the artwork could also stipulate that the artist should be declared as author, while the collaborators who participate in the installation and execution of the artwork should be attributed as “contributors.” An attribution right for contributors, as an alternative of trying to establish co-authorship, is not foreseen in copyright law but has been suggested by Bently and Biron (2014, p. 267). Moral rights protection already recognizes the right of attribution for authors, but not yet for other participants. Such rights—independent of authors’ rights—could help to acknowledge and correctly represent the actual collaboration in the creation of conceptual artworks. Contracts present an opportunity for providing this acknowledgement and making these contributions visible, even though copyright law does not yet require it.

4 Conclusions

This chapter has explored the role of contracts in conservation, and in particular in relation to the work’s integrity and the role of executants. Relying on a socio-legal perspective, we acknowledge that contracts cannot be seen outside of the social structures inherent to the art world. They are defined by the legal and ethical guidelines, and customary norms that actors share and abide by. How much actors will rely on trust depends on the extent of their shared social structures. Strong social structures will require less trust, as more options, such as ethical and professional norms of conservation and acquisition of works of art, are already pre-defined; conversely, weak social structures require more trust that the other will act benevolently within the defined structures.

The art world has been traditionally resistant to using contracts, based on the perception that contracts are limiting for artists and indicate a compromised relationship. In this chapter, we approach contracts as a way of making social structures more explicit and as a tool for clarifying shared norms and expectations. At the same time, the relationship still requires an amount of trust that actors will act benevolently towards each other within these structures. We therefore argue that contracts are no substitute for trust, but a way to manage expectations better.

The field of copyright law opens up several options for clarifications through contracts. We relied on the limited number of contracts publicly available, legal and sociological literature, focusing in particular on the practice of Cuban artist Tania Bruguera. We discussed how the role of participants in the execution of a conceptual artwork could be specified in contracts, and whether any rights can be attributed to them. This would create legal certainty and reduce the need to rely on different approaches to co-authorship in various jurisdictions.

The differences are even more substantial regarding moral rights protection, which is relevant in relation to the treatment of an artwork, and its possible impact on the integrity of the work. Defining the exact boundaries of what the right of integrity entails is complex and difficult. Based on examples from several contracts between artists and institutions, we discussed possible ways of defining the right of the artist to be consulted or to veto a modification or repair to her work. We also showed that principles like reasonableness or equivalent limit the burden that contracts can place on the buyer. If such a burden is unproportionable, the contractual provision can become unenforceable.

While this chapter provides a first discussion of how contracts can be used to formalize the role of actors involved in the exhibition and conservation of a contemporary artwork, it does not do so extensively in the context of national contract law. Actors interested in exploring the option of clarifying expectations through contracts should seek legal advice from a professional in copyright and contract law.