Benjamin Feiner
In 2018, the famous street artist Banksy shocked the art world by partially shredding his own painting, Girl with Balloon.[1] The painting was put up for auction at Sotheby’s London and sold for over $1.3 million. However, unbeknownst to Sotheby’s, the buyer, and onlookers, the frame of the painting was rigged with a paper shredder. Seconds after the drop of the gavel to announce the winning bid, the painting began to slide downwards, out of the frame, as part of the painting was sliced into vertical strips. Nevertheless, the buyer confirmed the sale, and the new, partially-destroyed work became known as Love is in the Bin. Since the incident, there has been some speculation about the legal effect of the shredding if the buyer had decided not to purchase the work.[2] However, perhaps an even more interesting (and slightly less hypothetical) legal question arises if a future owner of the work attempts to restore it to its original condition.
Intuitively, one might suspect that art owners can modify or even destroy their own artistic property with impunity, but this is not the case. Instead, “moral rights” guard the personal interests of artists in many countries, even after their artwork has been sold. In the United States, moral rights are not robustly protected but the Visual Artists Rights Act of 1990 does grant authors of works of visual art certain limited rights.[3] Importantly, artists have the right to prevent 1) “intentional distortion, mutilation, or other modification of [the artwork] . . . which would be prejudicial to [their] honor or reputation” and 2) “destruction of a work of recognized stature.”[4]
Thus, the question arises: when artists like Banksy mutilate their own work to create something entirely new, would restoring that work to its original condition violate the moral rights of those artists? The answer is unclear. The Visual Artists Rights Act has rarely been applied and much of its language is rather vague. For instance, the meaning of the term “recognized stature” is relatively flexible and the statute offers little guidance to courts in drawing a clear line.
Under the first part of the statute, the legality of a restoration of Love is in the Bin to its appearance as Girl with Balloon would likely turn on whether that restoration would prejudice Banksy’s reputation. Modifications of works of art for conservation or presentation purposes are explicitly not barred by the statute.[5] However, this sort of restoration — one that returns the art to a condition unintended by the artist — seemingly does more than merely conserve the painting. Even so, it is unclear if this type of modification would prejudice Banksy’s honor or reputation as, in writing the statute, Congress only intended to protect the professional reputational harms of modification.[6]
The second part of the statute is both more and less broad than the first. It only protects pieces of art from destruction, not modification, but does not require any harm to the author, only that the work be “of recognized stature.” Love is in the Bin is quite famous and valuable, so a legal dispute under this part of the statute would likely turn on the question of whether this modification amounts to a “destruction” of the work of art. In answering this question, it is helpful to remember that the piece of art changed names when it was shredded — if the shredding effectively “destroyed” Girl with Balloon, then restoration would seemingly “destroy” Love is in the Bin.
Regardless of the ultimate legal answer, the application of the Visual Artists Rights Act poses a number of these interesting dilemmas. This is particularly true for pieces of art like Love is in the Bin that have undergone successive iterations. Perhaps the best answer for a would-be modifier is to simply wait — unlike in many countries, the moral rights of artists in the U.S. end at their deaths.[7]
[1] Oscar Holland, Banksy’s Self-Shredding Painting Goes on Display, CNN (Feb. 4, 2019), https://www.cnn.com/style/article/banksy-shredded-work-love-is-in-the-bin-germany/index.html.
[2] See, e.g., Agnes Foy, ‘Love in the Bin’ does not Amount to a Broken Heart, Glob. Legal Post (Nov. 13, 2018), http://www.globallegalpost.com/big-stories/love-in-the-bin-does-not-amount-to-a-broken-heart-35297817/.
[3] 17 U.S.C. § 106A.
[4] Id. at § 106A(a)(3).
[5] See id. at § 106A(c)(2).
[6] See Dana L. Burton, Artists’ Moral Rights: Controversy and the Visual Artists Rights Act, 48 SMU L. Rev. 639, 648 (1995).
[7] See 17 U.S.C. § 106A(d)(1).