Art Market

If You Buy an Artwork, Can You Legally Eat It?

Isaac Kaplan
Dec 11, 2017 10:17PM

If you own a work of art, are you allowed to eat it? It’s unlikely that any serious collectors have pondered this rather Seussian question—but it did pop up on Reddit last month, and we decided to get to the bottom of it.

The answer, as with most things, is: It depends. In the United States, whether or not you are legally allowed to eat (or burn, slash, or destroy) an artwork depends on whether said work falls under the protection of the 1990 Visual Artists Rights Act (VARA). In America, property rights generally reign supreme—meaning that, if you own something, you can pretty much do whatever you like with it. But VARA carves out slight exceptions, affording visual artists certain rights over their art long after it has been sold or otherwise ceases to be their property. In this case, they have the ability to prevent their work from being eaten or otherwise destroyed.

As we’ll see, however, VARA doesn’t protect every masterpiece from ingestion. We’ve cooked up four different scenarios to test the law—time to dig in.

Scenario 1:

I somehow legally acquired the 1851 masterpiece Washington Crossing the Delaware by Emanuel Gottlieb Leutze. I’d like to eat it.

From a health perspective, we’d recommend you abstain from consuming all 264 square feet of this priceless piece of American history. But from a legal perspective, it’s absolutely fine. That’s because VARA’s protections only apply to a) work created on or after December 1, 1990, or b) work that is still under copyright, which generally lasts for 70 years after the artist’s death. Since Leutze painted Washington Crossing the Delaware in 1851 and died in 1868, it has since entered the public domain.

Public domain works are not protected by VARA, and once a work has entered the public domain, “you can chop it to bits, you can eat it, you can burn it,” said Betsy Rosenblatt, an associate professor at Whittier Law School. And this freedom extends to any work in the public domain. If you somehow legally acquired the Mona Lisa and got it into the U.S., you’d have a good case for eating it as well.

I haven’t found an instance where someone actually consumed an artwork. But in 2015, a Picasso drawing was almost chopped up into bite-sized pieces. The makers of party game Cards Against Humanity let the public vote on the fate of Tête de Faune, a 1962 Linocut print by the Spanish master. Their options were either to donate it to a museum or carve it up into 150,000 pieces to distribute amongst an equal amount of people. After the public elected not to chop it up, the cardmaker ultimately decided to gift the print to the Art Institute of Chicago. Much of Picasso’s work is still under copyright (he died in 1973), so cutting it up could well have elicited a lawsuit.

Scenario 2:

I own a photograph taken by Richard Prince in 2016. I’d like to eat it.

This is where we really have to crack open the VARA textbook. We know it only covers work created on or after December 1, 1990, or work that is still under copyright. But the statue doesn’t apply to everything that you might see in a museum. It only covers works of visual art, a term defined as “a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer.” For photographs, the definition is a still image “produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.” Is that signed Prince photo a print in an edition of 201? If yes, then VARA doesn’t apply and you may eat the work.

But remember, just because a work isn’t covered by VARA, doesn’t mean you won’t get sued if you try to eat it, as art lawyer Sergio Muñoz Sarmiento pointed out. “I would think about other possible claims to bring,” he said, while adding the caveat that it’s not helpful to speak in generalities about what those claims would look like given that each case is different.

Scenario 3:

I own a photograph taken by Richard Prince in 2016. It’s an edition of one. I’d like to eat it.

Here, VARA does apply. The statue allows artists to prevent the “destruction of a work of recognized stature” and also stop “intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation.”

“The eating of [an artwork] would seem to be a pretty classic case of destroying it completely,” said Michael D. Murray, a law professor at University of Massachusetts School of Law. “So would you be free to do it? No.” An artist can sue to stop you from eating their work if they learn about it before the deed. If they only discover the destruction after the fact, the artist can sue you for damages.

(PSA—you can, without fear of a lawsuit, eat work that asks to be eaten. Taking a candy from a Felix Gonzalez-Torres work is not the destruction of the piece and it is certainly not prejudicial to the artist’s reputation since the work invites you to eat it.)

Scenario 4:

I own a photograph taken by Richard Prince in 2016. It’s an edition of one. I’d like to eat it—as a piece of performance art.

This is perhaps the most interesting question. Eating a work of art as part of an artistic performance could lend itself to a fair use argument, Rosenblatt noted, which offers a defense against a VARA claim. While the success of such a claim is far from certain, you could argue that eating the work is transformative and makes a comment on the original piece (two reasons to qualify as fair use). Knowing how such a case would shake out is a “tough one,” Murray said, although the legal argument would be stronger if the eating itself is part of the comment (he conjured a hypothetical scenario in which someone was eating a work they saw as sexist or offensive).

Sarmiento is skeptical that a fair use argument would carry the day as defense against a VARA claim in a courtroom. He also notes that someone shouldn’t be able to get away with destroying a piece just because they call that destruction artistic or a work of art itself. Either way, like so much about VARA, a fair use defense argument hasn’t been tested in court to the knowledge of the experts I spoke with. But you don’t need to wait for the Supreme Court to weigh in to know that eating art probably isn’t a great idea, both legally and for your health.

Isaac Kaplan