What rights do artists have when their work is exhibited without their permission? Eleni Polycarpou considers the controversy surrounding the Anselm Kiefer exhibition in China.
From November to January the Art Museum of the Central Academy of Fine Arts in Beijing (CAFA) hosted a successful exhibition of 87 of Anselm Kiefer’s paintings, sculptures, installations and photographic works. Entitled ‘Kiefer in China’, it was to be the Beijing stop of the Anselm Kiefer Coagulation exhibition, and it was advertised as the first large-scale retrospective of Kiefer’s work in China.
Kiefer is one of the most important representatives of German neo-expressionism and his work has had an important influence on Chinese contemporary art, so the exhibition was eagerly awaited and keenly attended.
Museums and galleries are best advised to consult with living artists when putting on exhibitions of their works
However, a few days before it opened, it was surrounded by controversy when Kiefer announced that the exhibition had been planned without his involvement or permission and that he had no intention to travel to China for it.
Furthermore, he took strong objection to the part of the statement on the exhibition website made by CAFA President Fan Di’an, which read: “For many years, German friends and I have been exploring ways to bring a large-scale exhibition of Kiefer’s work to China, and we had particularly hoped that, with his personal participation, we could present the key elements in his thinking.”
The artist said that this statement misrepresented the position by suggesting that he had endorsed the project when he had not been consulted at all.
He called for the cancellation of the exhibition, but his request was refused by the organisers who said that legally they had broken no rules. Furthermore, the statement was not removed and can still be found, unchanged, on the CAFA website. The show’s Chief Curator, Beate Reifenscheid, has recently defended her freedom to assemble the show as she sees fit, and supporters have accused Kiefer of simply trying to protect his own commercial prospects in China.
Rights of the artist
What rights (if any) do living artists have when their work is exhibited without their permission or approval? How much control does an artist have over their works after they are sold?
The German organisers clearly had a contract with the Chinese museums, by which the current owners of the works gave permission for the exhibition on terms agreed between those parties. But in many jurisdictions around the world, artists also have rights that can in certain circumstances override the terms of such a contract. Those rights are called ‘moral rights’ and come from the French ‘le droit moral’.
There are two types of moral rights, set out in article 6bis of the Berne Convention: (a) the right of attribution, which is the right to be identified as the author of a copyright work; and (b) the right of integrity, which is the artist’s right to object to derogatory treatment of a copyright work, where it would be prejudicial to their honour or reputation.
The rights vary from country to country. At one end of the spectrum, there is France, where they are essentially inalienable and last forever, because they are considered to protect the emotional involvement between artists and their creation (something that cannot be valued in an economic sense).
At the other end of the spectrum there is the UK, where they are considered to be predominantly economic rights and can be found in copyright legislation (CDPA ss80 and 205J), designed to control the copying of works. In the UK the artist can only complain where the derogatory treatment of their work “amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author”.
It was used in a 1982 case called Snow v Eaton, in which a sculptor was allowed to invoke the right to integrity to stop a shopping centre from hanging Christmas decorations from his sculptures.
Most other EU countries, including Germany, are close to the French position. China is also a member of the Berne Convention and has passed copyright legislation protecting artists’ moral rights as above.
Anselm Kiefer may have felt that those works should not be presented as a representation of his works as a whole. We don’t have any information as to the nature of his complaint, but in the UK he would have had to show that the exhibition was prejudicial to his reputation and that is generally a high bar.
Even in other Berne Convention countries, such as China or Germany, moral rights in legislation do not permit the artist to control the form or manner of an exhibition, if no deforming changes are made to the works or if the exhibition does not reflect on the artist’s professional standing.
The organisers felt they could not cancel the exhibition because otherwise proceedings could have been brought under the relevant contracts.
In China, the art world has experienced a real transformation from the times when, for example in the 1960s, artists were treated badly and individualism was not permitted. This was done to such a degree that paintings were marked as collectively created. Although China now recognises artists’ moral rights, it is perhaps unsurprising that the Chinese organisers went ahead regardless, given that not long ago such an exhibition would not have been possible in China at all.
The best way for artists to protect against situations such as this is to work closely with museums and galleries to ensure that there is accurate representation of the artists' work. In the 1970s there was an 'artist contract' commonly referred to as the ‘Siegelaub Agreement’, but it didn't catch on because it had too many restrictions on both artist and collector.
But the art world still operates on art market conventions rather than legal positions. Museums and galleries are best advised to consult with living artists when putting on exhibitions of their works, not so much because they need to avoid falling foul of moral rights legislation, but because they should show respect for the artist and their work in order to gain credibility with the public and with the artists themselves.
Eleni Polycarpou is a Special Counsel at Withers Worldwide.