The ARCO trade fair closes this Sunday after five exhibition days. It’s time to dismantle the works of art, some of which are treasured, and carefully pack them up for the journey to their new destination. This can be another temporary exhibition, a gallery, a warehouse and, if the artist is lucky, a buyer’s home. Anyone who decides to take home one of the creations of the more than a thousand authors participating in the fair this year should know that a work of art is not a washing machine: the owner of one entails a series of obligations, neglected can end up in a mess.
To understand why it is necessary to stop at the following paradox: if you pay for art, you are not buying art. What ARCO buyers get for a price is not the concept, which is the inseparable property of the creator, but the physical support it contains. In other words, when we pay for a Dalí painting we receive material ownership of the canvas, but its authorship, which includes the moral right and the right to keep it intact, remains linked to Salvador and his heirs.
This has corresponding legal ramifications, which you’d better consider before purchasing a part. In one chapter of the animated series Futurama, the protagonist, who travels back in time to the year 3,000, buys the Mona Lisa and destroys it by playing skeet shooting with her; Well, with the law in hand, this is forbidden. Unlike anything bought on the market, an art object cannot be destroyed or altered (at least not without the express permission of the artist).
Far from being a legal anecdote, there is precedent for creators getting into (judicial) pies with their buyers for altering their inheritance without permission. The Spanish sculptor Martín Chirino went to court against the Municipality of Santa Cruz de Tenerife for cutting his sculptural work “The Dream of the Continents” in two and storing the remains in a warehouse, claiming that they had changed due to the strong wind. Justice agreed with the creator because the administration garbled the play without his permission. The court ruled that this was an attack on his moral integrity, for which he was compensated.
You also need to know that over the years the artist or his heirs may request access to the work to document its status or to ensure its existence. Something in common when it comes to developing an art catalogue.
Creators can also request that their work be removed from a public space because their beliefs have changed and they feel their work no longer represents them. “Let’s imagine an author creates a work with political content and over the years his ideas change. You can request that your creation be withdrawn because of your changed beliefs,” explains Marta Suárez-Mansilla, director of the law firm Artworld and vice president of the Art Law Association. The expert recalls the case of artist Tracey Emin, a British creator, who called for the removal of one of her neon compositions called More Passion from the walls of 10 Downing Street. “I want them to be deprived of what they need [los políticos] it’s compassion, not passion,” he told the BBC after the Boris Johnson Partygate scandal broke. “Artists can exercise this right, but it must not be forgotten that rights can be acquired from third parties,” adds Suárez-Mansilla. This implies that if the work has been sold, it is normal for “buyers to be compensated financially” in these cases.
Another power of performers is to demand that the work be exhibited in one place (and only in that one) because another would distort the message. Belén Álvarez, partner lawyer at Gabeiras & Asociados, explains it with a different background: “There can be conditions. A far-reaching conflict was the case of the Basque Andrés Nagel and the sculpture known as La Patata. It was created to be placed in a roundabout in Amorebieta-Etxano (Bizkaia). But the city council announced that the sculpture would be handed over on the occasion of a change in the urban planning plan. And Nagel brought an action against the consistory because he felt his moral rights had been violated. The Supreme Court agreed.” However, the judiciary allowed the change of venue on the grounds that the moral right is not absolute and must be balanced against the interests of the community.
Picasso on the run
The question of whether the transferred work is a Property of Cultural Interest (BIC), a legal entity created to protect items of particular value due to their age, value or a combination of both, is complicated.
In these cases, the law further limits the powers of non-creative owners. “You can’t sell the play or take it out of the country without permission from the Ministry of Culture,” says Álvarez. If you try this, you can be convicted of smuggling. Like former banker Jaime Botín in 2021 after a frustrated attempt to get a portrait of a young woman, a Picasso over 100 years old, out of the country and to sell it under unrepeatable conditions. For this reason, he was sentenced to 18 months in prison and a fine of 91 million euros for smuggling cultural assets.
Better with contract and insurance
Despite all the legal limits on the transmission of an artistic work, there is no ad hoc law in Spain that regulates these transactions. There is not even an obligation to translate the process into a written contract. Although experts advise it. “Although it is highly recommended, especially to avoid disputes over authorship, it is not always done,” says Belén Álvarez, a lawyer at Gabeiras & Asociados. In addition, in order to do everything correctly, the expert recommends hiring a company specializing in factory transport. And he adds: “It’s important to have insurance that covers damage en route, and sometimes the specialized transport company offers this service themselves.”
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