The "Moral Rights" of Artists

By Richard Lacayo

Twelve feet high and 120 ft. long, Richard Serra's Tilted Arc stretches like a rampart across the plaza of a federal office building in New York City. It seems only fitting that, as the centerpiece in a drawn-out battle over artists' rights, the steel wall sculpture even looks like a barricade. In % 1985, after workers in the area complained that it inhibited use of the site, the U.S. General Services Administration, which had commissioned the $175,000 piece, recommended its removal. That galvanized the art world and provoked Serra to fight in federal court against any attempt to move it. He lost the first round, but, undaunted, he was there again last week to appeal. "The Government has to learn that art is not property," he says. "You can't move it like paper clips."

Governments may be starting to agree. Since 1979 a handful of states, including California and New York, have adopted laws that give artists a degree of control over their work after they are paid for it. Now Congress is considering bills that would do likewise. Because one result might be to give film artists a say in whether their work is "colorized" or similarly fiddled with, Producer George Lucas and Director Steven Spielberg showed up last week at Senate hearings to speak in favor of such legislation. If unchecked, said Lucas, "current and future technologies will alter, mutilate and destroy . . . subtle human truths."

One of the proposals, the Visual Artists Rights Bill, would also provide a 7% resale royalty on some art works fetching $1,000 or more. In this age of the $53.9 million Van Gogh, that would allow artists whose works increase in value -- always just a fraction of the profession -- to get a piece of the collector's profits. Critics counter that a similar provision in California's law has merely driven the sale of art off the books or out of state.

Current American law generally gives control over most kinds of property to its owner -- an auto manufacturer, for instance, cannot tell buyers what to do with their cars. Yet every instinct says that art is no ordinary property. The proposals before Congress place it in a separate category by turning to "moral rights," a legal concept dating back to the French Revolution. It permits artists to block the public display of their work in a defaced or modified form. Moral rights are also embodied in the Berne Convention, the international copyright agreement adopted by 76 countries, but the provision is one reason why the U.S. has never signed it.

The issue of artists' rights has intensified in the U.S. with the spread of public art since the 1970s, spurred by a 1963 federal policy that one-half of 1% of the construction budget for Government buildings must go for the purchase of art. At a time when the aims of modernism and the tastes of a broad public are not always in accord, some of that art, like Tilted Arc, has met with hostility or indifference. One federal judge in Baltimore even organized his judicial colleagues in a bid to block a George Sugarman sculpture planned for the plaza of the courthouse where he worked, insisting that the piece could be a launching pad for terrorist attacks.

Sugarman's spirited confection was installed anyway, and still stands. Other works have not been so lucky. Last year the Washington State legislature voted to remove from its chambers murals it had commissioned in 1980. Artists Alden Mason and Michael Spafford went to court. In a novel ruling, State Superior Court Judge Terrence Carroll held that the works themselves had rights that prohibited their destruction, though not their removal. But Mason, like Serra, says his work is site specific and that moving it is tantamount to destroying it.

If Congress enacts some form of moral-rights legislation, the U.S. could be in for a long period of testing to find the new limits. Can artists dictate how their work must be hung? Can they object to temporary embellishments? Canadian Artist Michael Snow successfully sued a Toronto shopping center that owned his sculpture Flight Stop because they had decked it with red Christmas ribbons. And once a work is in public, may its creator require that it remain there? "Should one generation of artists impose its taste on history?" asks Stephen Weil, deputy director of the Hirshhorn Museum in Washington.

One indication of how American courts might deal with problems like those will be found in the outcome of a battle now being waged under California's law. Because one of his murals was destroyed during the remodeling of a building, Painter Tom Van Sant has filed a $5.5 million lawsuit against the bank that commissioned the work, the building's new owners and the present tenant, AT&T. Meanwhile, its future still in the balance, Tilted Arc remains in lower Manhattan after seven years, more than ever the symbol of a divisiveness that the artist could not have imagined during its creation.

With reporting by Michael Cannell/New York and Jerome Cramer/Washington