The legal position of the artist

  • commissioning and public space

Works of art in public spaces are sometimes removed, moved, or stored, and in such cases there is usually little in the way of regulation for artists. They can appeal to copyright (see also page 10) or personality rights, but when working in public space both usually fall short. Esther Didden spoke about this with artist Peter Struycken and his good friend and Emeritus Professor of Modern Art Carel Blotkamp. Below is the full article.

The state of a work of art

Since a few years I have a new occupation, I photograph art in public spaces. Regardless of the weather, I photograph works of art throughout the Netherlands and place them on my insta. By now I have a nice collection and many works of art are in great shape. However, every now and then I come across a work of art in very poor condition. Not maintained, downright neglected and a shadow of what it once was. Some of these artworks belong to the so-called key works; the hundred best artworks in public space after 1945 (and up to and including 2019). These works of art have been selected as part of the fortieth anniversary of BK Information chosen by a working group as key work because of what they once were, and still can be, not because of what they look like now. The working group included people who, because of their profession, know a great deal about the realization of art in public space but who also have a good idea of what works of art are or were in the Netherlands.

You can jump high and low as an artist, if the owner doesn't want to maintain the artwork, it won't be maintained.

When I have found a key work in deplorable condition, I always inform the artist concerned. Their reactions do not lie, often they have been fighting for years with the client of the time (usually a municipality) to maintain the work properly, to show good ownership. But at a certain point the artist, understandably, gets tired of fighting because it leads nowhere. As an artist, you can jump high and low, but if the owner does not want to maintain the work of art, it will not be maintained.

I had been thinking for some time what I could do with these stories, when we received an email on the editorial board from artist Peter Struycken and his good friend and emeritus professor of modern art Carel Blotkamp, in which they asked for attention to the legal position of artists regarding this matter. As a professional journal, we paid a lot of attention to art in public space in our anniversary project in 2020, and they appreciated that. But works of art in public space are sometimes removed, moved or stored they wrote. In such cases, there is usually little regulated for artists. They can invoke copyright or personality rights, but when working in public space, both usually fall short. I wanted to know more about this, and I went to visit them.

Peter Struycken

Peter Struycken (1939) is considered one of the most well-known and respected Dutch visual artists of his generation. He has been active as an artist since the early 1960s. He has never lacked interest in his work. He is the first artist in the Netherlands to allow the computer to play an important role in the creation of his work. In addition to his free work, he has also made over two hundred large and small bound works in architecture and public spaces. In addition, sets and lighting for the theater, works in textiles and the Beatrix Queen stamp with the dots. An impressive number. Of the works in architecture and public spaces, however, some eighty percent have now been destroyed. Nowadays, far too much time is spent by Struycken on the remaining works; on restoration, adaptation and relocation and, above all, on the consultation that goes with it. Although there are parties who care about the fate of his remaining works, he still has to make all the decisions himself about the content of the design, the testing of new materials and the organization of the execution. Usually he finds out by accident that something is wrong with one of his artworks.

Recent practices

Together with Struycken and Blotkamp, I discuss various situations from recent practice. For example, the one about an artwork by Struycken that is seriously damaged after large-scale renovation of the environment and whose restoration must be enforced politically (Arnhem). Or an artwork that, because an architect is going to expand the building, ninety percent of it is removed and Struycken does not succeed in getting the last ten percent removed as well (Utrecht). Or a work of light art in a parking garage that is transferred to the Traffic Department for maintenance, and which is conveniently falsified and replaced by a commercial program from Philips (Groningen). Or a work of light art where a computer-controlled lighting installation for the ceiling of a theater auditorium is replaced by an algorithm created by the son of the theater technician himself which is then no longer used (Amsterdam). Or a work for the facade of a museum that, under the guise of a major renovation, forces the artist to cancel the work, which then turns out not to be a renovation at all, even though the work has been demolished (Utrecht). Or a large illuminated work for a hospital whose board believes it should be possible to use it now and then for a publicity campaign for a good cause (Leeuwarden). This is just a small selection from many.

For an artist, initiating a lawsuit to expedite removal is a cost issue that he will not readily enter into

Struycken: "Removal / destruction of a work of art by the owner is legally permitted. Perhaps in some cases displacement can be considered 'damage to reputation'. In that case, only an extremely expensive, long-running lawsuit will help. Storage by the owner is allowed. The effect is the same as destruction. In my practice I experience partial destruction. In principle, that is damage that qualifies for an appeal to the right of personality. But the owner in such a case can state that he is willing to remove the entire work, but wants to do it in phases. For an artist, initiating a lawsuit to expedite removal is a cost issue that he will not readily enter into."

Red-white-blue-orange signal

Let me concretize a situation. The artwork Red-white-blue-orange signal was made by Struycken in 1985, commissioned by the national government for the former Customs Emplacement at the border crossing in Hazeldonk. The work consists of four steel arches of twelve meters in diameter on a base of 24 x 48 meters. The customs building was designed by Benthem Crouwel Architects. In 2014, Customs announced that it would close its office in Hazeldonk in 2015. The customs building was sold and got a new owner. The latter indicated that the artwork did not fit with the future use of the site and Struycken could come and collect it. Nothing was arranged from the former client, the national government; after realizing a work of art, it belongs to the owner of the building and the government withdraws.

Struycken contacted Erfgoedvereniging Heemschut to see if they could do anything for him in this matter. They could. On behalf of this association, Gerard van den Berg and Erik Luermans are committed to works of art in public spaces dating from after 1965.
They contacted the new owner of the customs building, and therefore of the artwork, and entered into discussions with him. The new owner cooperated in dismantling the artwork. They arranged for temporary storage and are now committed to finding a new destination and looking for funding. Struycken largely paid for the removal of the artworks himself, the deficit was supplemented by Erfgoedvereniging Heemschut, and the transport was provided free of charge by Damsteegt Waterwerken.

Struycken and Blotkamp are very positive about the work done by the Heritage Association Heemschut. It has also mediated in Arnhem politics for years, in order to Blue Waves from 1979; the blue and white corrugated parking lot under the Mandela Bridge in Arnhem. I call Gerard van den Berg of Heemschut and he tells me that much of his activity for the association has to do with money. "We are constantly conducting a charm offensive," he says "because every case we have under our care is funded separately." Van den Berg and Luermans currently have several works of art in their portfolio including most of the painted fence of about four hundred meters around De Nederlandse Bank in Amsterdam from 1979 by Peter Struycken. They have found a new destination for the fence, the Mien Ruy garden near the former De Ploeg factory in Bergeijk, which was designed by Gerrit Rietveld.

It should be clear that works of art connected to a building, commissioned by the national government, will have a difficult time if the building is given to another owner. The art becomes part of the building and that makes the art vulnerable. That is the first problem.

Blue Waves

Problem two is the (deliberate) lack of maintenance. Blue Waves by Struycken, a key work, is another example of this (as well as all sorts of other political games). Blue Waves is perhaps the most famous and, in any case, the largest environmental artwork in the Netherlands. The work has been published internationally and is regularly in the (regional and local) news: what to do with this artwork? The work had not been cleaned for several years, the parking department had applied patches of orange paint to it, replenishment with blue bricks had been carried out indiscriminately in the wrong color and the then alderman seized on this spoilage to be able to have the work demolished without much resistance. However, after years of political wrangling, the tide turned and in December 2020 it was decided to renovate the work based on a modified design by veenenbos and bosch landscape architects in close consultation with Struycken.

The assignment at the time, in the early 1970s, was to improve a deficient urban planning situation. Between the buildings and the Rhine, a fragmented area of about 40 thousand square meters had been created after the war. The construction of a new bridge over the Rhine with portals under the exits that were totally out of scale with the buildings would further increase the dreariness. Struycken was commissioned to increase the internal cohesion between the bridge, exits and the built environment and to bring back the human scale at this location by designing a parking lot. Struycken chose to create 'waves' in order to visually unify the fragmented terrain. The size of the 'waves' bridged the scale of the bridge to that of the built environment. It functioned as an adventure parking lot for over forty years.

In early 2022, the renovation of the 23 thousand square meters of pavement began. In a year and a half it should be finished and parking will be possible again. Recall that in 2017 the artwork was still nominated for demolition; the municipality wanted to sow grass there and plant a number of trees. In a solo action, Arnhem historian Peter Nijenhuis had opposed the municipal plans and informed Struycken. In time, a majority of the political parties in the municipal council joined in: Arnhem Centraal, the VVD, the PvdA, GroenLinks, the Party for the Animals and Denk. However, the race was far from over. Artist and teacher Hans van Houwelingen also threw himself into the fray. What began as a workshop for students grew into a two-year investigation by an independently operating team of young artists, the ArteZTeam. From several hundred hours of interviews with politicians, historians, local residents, schools, companies, lawyers, heritage institutions, architects, art institutes, art lovers and art haters, they drew one conclusion: no one knows exactly the rules and codes of conduct by which public art as cultural heritage in the Netherlands should be handled. These interviews have been processed into a fascinating and disconcerting documentary, the link is below the article.

Facade Artwork

Incidentally, people often stand up when Struycken's works of art are at stake, as did Claas Hille. In the late 1980s, Struycken created a work for the façade of the stables of the Centraal Museum. When the stables were then completed as an exhibition space, Struycken had provided a facade design, on three sides of the large complex. When a major renovation was announced in 2014, in which essential parts of the work would have to be sacrificed, Struycken indicated, he was living in Curaçao at the time, that then the entire work would have to do. The then director then informed the ABKV (Advisory Committee for Visual Arts and Design) in Utrecht that he did not like the color and therefore wanted to remove the work of art, with Struycken's approval. The announced renovation did not take place, but the work of art was demolished. Claas Hille investigated how the decision was made and made a film for Kunstforum Utrecht, a reconstruction in which various protagonists are given a chance to speak. The film is also about the integrity of the decision making process for art in public space. This link can also be found below the article.

Consequences

As an artist, you can't command decent maintenance. Was this always the case or has it gotten worse since the tough financial years for the cultural sector about ten years ago? After all, the focus on art in public spaces has changed. Important institutions that (helped) realize art in public space have been disbanded - think of SKOR and several CBKs (such as those in Utrecht, Drenthe, Gelderland and Den Bosch) - and the percentage regulations are being applied less. In short, the existing structures through which commissions were realized have disappeared. This has consequences. Making art for the public space is hardly reserved for a young generation of artists. The result is a gap in the perspective on a substantively motivated and visual quality of public space. It also means that hardly any new mediators or advisors are taking office. And that a whole generation of young policy officials and aldermen, potential clients, are not acquiring this knowledge.

Existing structures through which assignments came about have disappeared

When we placed a call in late 2019 in BK Information to nominate motivated artworks worthy of the title key work, a number of artists nominated their own work that was poorly cared for or had even been removed without notice. The title key work could change the odds for the particular artwork for the better. It was painful to read that artists are sometimes not informed when their work is removed, that they struggle for years to enforce decent maintenance of their artwork. That municipalities do not maintain works of art for years and then under the guise of "the work of art no longer looks" remove the work. That's a bad thing. Which is not to say that once an artwork is there, it has to be for eternity. There may be valid reasons why an artwork should be considered for removal at any given time. Convenience on the part of successive municipal and private managers and a lack of cultural awareness, however, all too often appear to play a major role in this.

Back to Struycken and Blotkamp. They too believe that a work of art is not for eternity, but then it must be possible to remove the entire work of art and not just part of it. According to them, there are three main reasons why people or institutions no longer want a work of art; because one does not like it, because it requires maintenance (thus incurring costs) or because the work is in the way.

A work of art is not experienced as something of value

Struycken says that in works of art that meet their demise for these reasons, he invariably encounters irresponsibility, laxity, indifference, double agendas, mischievousness, guile, ill will, arrogance of power, and stupidity. And all these different attitudes can only be traced to one thing: there is no interest in the work of art. It therefore ultimately comes down to disinterest, Struycken and Blotkamp conclude, and that applies to both problem one, a new owner, and problem two, no or little maintenance. An artwork is not experienced as something valuable.

Arcade

"If a lack of maintenance has reached a stage where the reputation of the artist is at stake, then the only thing that will help is a very expensive lawyer (easily more than 10 thousand euros), costs that the artist cannot recover, and an often lengthy lawsuit invoking the right to personality," Struycken knows from experience. He went to court once in his long career, about twenty-five years ago. In 1992-1993 he made the work Arcade lighting for the NAI in Rotterdam (now Het Nieuwe Instituut). It is a work of light that functions in the evening and at night and adds a sophisticated spectacle of color changes to the two hundred and twenty meters long arcade, divided into twenty-two portals. For the work to work, it was crucial that the pillars in the arcade be clean. However, the NAI had commissioned artists from Johannesburg and Rotterdam to paint the concrete pillars as part of an event. Struycken had not been informed in advance and considered it an affront to his work. He asked the NAI to remove the paintings, but received the response that an occasional temporary painting was acceptable. He then felt compelled to initiate summary proceedings. The judge ruled in Struycken's favor and ordered the NAI to restore the pillars to their original condition. And although Struycken was proven right, the lawsuit cost him dearly. A lawsuit is an extreme remedy and also seems to be the only remedy. That is a disconcerting and not very hopeful conclusion.

Is it a justified conclusion I ask Blotkamp and Struycken?
"There is a clear task here for interest groups and for unions. Look at how things are with architects. They too face disinterest but their legal position is stronger when it comes to demolishing or rebuilding one of their designs. In many cases, a buyout is offered."
In addition, the laws surrounding copyright do not comply. "The law says that an owner has control over a work of art and can destroy it without accountability. There is something to be said for that, but it makes the situation prior to that, where an owner treats the work badly, too non-committal. By not taking good care of a work of art at first, the owner gives himself a free pass to destroy the work at a later stage because the work does not look good or has become too expensive to maintain."

Besides the fact that trade unions and interest groups can learn from other creative practices and how things are arranged there, such as in architecture, perhaps a fund could also pick up the gauntlet and make an annual sum available for litigation costs. It will help many an artist because the threshold for taking legal action against reputational damage is now too high, even if there is every reason to do so due to dilapidation, abuse or partial removal of the work. If the number of lawsuits increases, especially if they are in favor of the artist, perhaps there will finally be some movement in the regulations in this area. There is plenty of room for improvement.

Thanks to Peter Struycken and Carel Blotkamp who shared their views on the legal position of artists with me on the basis of recent practical examples. Would you like to respond to this topic? You can mail to esther@bk-info.nl

Also check out the film by ArteZ Team about The Blue Waves  and the documentary by Claas Hille Away with Peter Struycken

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