In rechtReeKs, the Kunstenbond, the union for artists and everyone who works in the cultural and creative sector, takes a close look at a legal topic that is essential to the artist's professional practice. Lawyer Jet Hootsmans provides insight and practical tips. This time: may an artwork be removed just like that?
Once I took a sculpting course during a vacation in France. Full of enthusiasm, I chose the largest stone and began to carve. After five days of hard work, it became especially clear that my vacation should have lasted longer. For years the stone stood like a silent reproach half-worked in my garden, until slowly something changed. Moss settled in the grooves, the color became deeper, and each year it became more beautiful without me having to give it a single blow.
And then suddenly there is a letter on the mat. The municipality is going to remove the artwork
Whereas my stone only got more beautiful, sometimes vandalism, faulty repairs or lack of maintenance can cause a work of art in public spaces to deteriorate so much that one day it is decided that it can no longer be this way. And then suddenly there is a letter on the mat. The municipality is going to remove the artwork and asks if the artist would like to document it first.
Well, who do you call?
During our phone conversation, the artist went from disbelief to a fighting spirit that you could say hello to. He went for it. And so did I, for it soon became apparent that the artwork, a mosaic wall in a tunnel, had been barely maintained for years. Bicycles had been thrown against it, graffiti had been removed with far too aggressive means and frost damage had been dealt with half-heartedly. Over the years, tiles had fallen out and grouting had come loose that appeared to have been repaired with cheap materials. In short, the work had taken on a patchwork look that no one had ever intended.
It soon became apparent that the artwork, a mosaic wall in a tunnel, had been barely maintained for years
Earlier I wrote that an overdue work of art is not exactly a calling card and can affect the essence or appearance of a work, for example, when parts have been destroyed or removed. This affects not only the work, but also the artist. It can therefore clash with personality rights. These stipulate, among other things, that a work of art may not be altered just like that, and that it may not be mutilated or affected in such a way that it may damage the honor or name of the creator.
The removal of an artwork is in principle not a violation of personality rights. Therefore, it cannot always be stopped. However, this does not mean that an owner has free rein. Again, the interests of the artist must be taken into account. Destruction may be an abuse of authority or otherwise unlawful. The more unique the work, the more quickly this will be the case. Especially with unique works, the owner may be required to proceed to destruction only if there is a good reason.
What helps is creating awareness and guidance by including a maintenance obligation in the agreements
In this situation, the removal could be seen as an abuse of authority. The owner should have maintained the mosaic carefully, and we confronted her about that. By failing to maintain it for years, she herself had created the situation where removal was seen as the only reasonable option. That, of course, is the world upside down. The stakes: restoration.
Could the artist have done anything more himself? What helps is creating awareness and footing by including in the agreements a maintenance obligation that indicates that the client must carefully manage the work according to the maintenance plan that comes with delivery. Make that plan as specific as possible. Not only with a description of the materials used and how the work should be maintained, but also with the permitted repair and cleaning methods. The protection of the work of art is thus not only in the proper maintenance, but also (yes, I am here again): in clear agreements at the beginning
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