Art Market
How Much Control Do Artists Have over a Work after It’s Sold?
By Isaac Kaplan
Jun 21, 2016 1:22 pm

One day in early November of 2011, artist Cady Noland walked into Sotheby’s New York, there to inspect three of her works slated to hit the auction block in a matter of days. Though among the art market’s most commercially coveted artists, she had long distanced herself from the art world. Noland isn’t represented by a gallery and her picture eludes even Google’s grasp. So the fact that she would set foot in an auction house may seem surprising. Yet while she evades personal attention (a cold shoulder some over-eagerly read as a dismissal of the art market in totum), she keeps a watchful eye on how her own work is sold and marketed.

A series of emails later revealed in court filings show a cordial exchange in the leadup to Noland’s visit between members of the Sotheby’s staff and her lawyer, Jonathan Halpern, who also surveyed the works. In the course of her inspection, Noland looked over Oozewald (1989)—a metallic sculpture of John F. Kennedy’s assassin riddled with holes, discovering that the stand needed to be replaced. One was provided to the eventual buyer who snapped up the piece for $6.6 million, setting a new record for the most expensive living woman artist at auction.

But if Noland’s pre-sale visit proved auspicious, it also proved costly. Another work she inspected, Cowboys Milking (1990), went on to make headlines—not for breaking records or missing estimates but because the work never saw the light of the Sotheby’s salesroom. During her visit, Noland reportedly noticed that all four of the work’s corners were damaged, likely permanently. Though a Sotheby’s intake report had deemed the piece “in very good condition overall,” Noland was of a different opinion.

Cady Noland, Cowboys Milking, 1990.

Cady Noland, Cowboys Milking, 1990.

On November 9th, the day before the auction in which Cowboys Milking was to appear, Halpern sent Sotheby’s an email. In it, he reiterated information already conferred to the auction house: “To repeat and re-emphasize her position, Ms. Noland fully expects that, irrespective of the consignor’s wishes, Sotheby’s will withdraw ‘Cowboys Milking’ from auction. The current condition of the work materially differs from that at the time of its creation.” Though the catalogue was printed and the pre-sale estimates tabulated ($250,000 to $350,000), Sotheby’s yanked the piece from the sale. How could they not? With one simple diktat, Cady Noland had disavowed Cowboys Milking.

Following the Sotheby’s decision, lawsuits went flying. The consigner’s suit against Sotheby’s and Noland was dismissed; Noland’s countersuit was dropped and a Sotheby’s countersuit settled, though not before some tantalizing email exchanges hit the public record. Legally, it is established that the auction house has the right to revoke a work before an auction if doubts are raised about its authenticity.

What is less clear are answers to the whole host of questions raised by Noland’s disavowal of Cowboys Milking. Is authorship something that can be revoked at will? Under what authority can an artist disavow one of his or her works? How do artists exert control over their work long after it ceases to be their property?


Moral Rights


“This is not serious! Why does an auction house ask the advise [sic] of an artist that has no gallery representation and has a biased and radical approach to the art market?” an irate-sounding Marc Jancou wrote in an email to Sotheby’s after the house informed him they would pull his work, Cowboys Milking, from the sale. His feelings are understandable—Noland’s act had left him with an unauthored and likely unsellable 48-by-72-inch slab of aluminum. His wallet was lighter to the tune of hundreds of thousands of dollars. And given Noland’s behavior, it is tempting (albeit simplistic) to see her disavowal as a statement against commodification, though she never explicitly declared it as such.

Her disavowal is empowered by the United States’s Visual Artists Rights Act (VARA). Passed by the House and then a reluctant Senate in 1990 (its sponsor, Ted Kennedy, tucked it into a larger bill), VARA provides visual artists control over the attribution and integrity of their work. One key provision states that an artist “shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation.” This section is what Noland’s lawyer invoked in his letter to Sotheby’s, citing the state of Cowboys Milking.

Though a tiny statute in the tome of U.S. copyright law, VARA stands out. In the United States, property rights generally reign supreme. Once you own an object, you can do almost anything you want to it. Buy a book, toss it into the fire—the author can’t stop you. “Our entire concept of private property precludes any sort of continued interest,” says Lauren van Haaften-Schick, who is studying the intersection of law and art for her Ph.D. at Cornell University. VARA, however, grants visual artists working in a select set of mediums a set of powers over the material work that can trump the economic interests of owner. 

Similar statutes have existed on the state level. But if VARA doesn’t seem like a natural-born part of U.S. federal law, that’s because it’s something of a European immigrant. VARA stems from a foreign conception of ownership known as moral rights. “A moral right is premised on the idea that art transcends commerce,” says Amy Adler, a law professor at NYU. “It’s based on the European vision of art as connected to personhood, to dignity, to something that can’t be commodified.”


Law vs. Market


And yet it was art market conventions—not a court order—that prompted the withdrawal of Cowboys Milking from Sotheby’s. An artist disavowing a work makes the market jittery. And that Noland’s claims would meet the burden under VARA is far from certain. Is the damage to the four corners of Cowboys Milking a product of gross negligence? Another conservator, Christian Scheidemann, looked at the work in 2011 and deemed it in “very good” condition while also noting the deformed corners. What standard would be used to determine if something is prejudicial to an artist’s honor or reputation?

Without much case law teasing out the finer points of VARA, the answer to all these legally salient questions is uncertain. “What is certain is that the art market protects that right for her,” says Adler of Noland’s ability to disavow her work. “The legal niceties are in some ways besides the point,” she adds. “The market has been structured through contracts and through convention to defer to the wishes of the artist.”

With VARA’s scope not entirely defined, one begins to wonder if it doesn’t allow artists who are interested in resisting the commodification of art to enshrine conceptual artistic gestures in cold hard legalities (giving them “teeth,” as artist and lawyer Sergio Muñoz Sarmiento put it.) Does VARA provide room for an artist to declare that, conceptually, a work can never be auctioned because such an act would would amount to a mutilation? “What we should start out with is separating an artistic answer from a legal answer,” says Sarmiento. “Artistically, an artist can say anything. And whether or not the artistic establishment respects that utterance is one thing; whether the legal establishment respects it is another.”

Ultimately, the answer is uncertain if not unknowable, depending on numerous factors including the judge hearing the case. Sarmiento reads VARA strictly. So did the court in Phillips v. Pembroke Real Estate, Inc when it ruled that moving a site-specific work of art from its original location, invoking a “public presentation,” isn’t a distortion of the piece—a legal interpretation that if handed in as visual analysis would cause an art history professor to raise an eyebrow into the stratosphere. Adler sees more potential flexibility. “I think that the statute would protect us,” she says of this hypothetical un-auctionable work of art. “I think it would enforce our artwork’s terms,” adds Adler, quipping, “I think we should make it.”

An artist disavowing an artwork is an act riddled with complexities, from the legal foundation, to the broader conceptual ramifications, to the role of the art market. Though the three components impact each other, ultimately a work can be disavowed in the eyes of the law and the market but not in that of the beholder (or the reverse). If art is purely an investment, then a disavowal in the eyes of the market or the law is of primary concern. If a work of art gives satisfaction as an aesthetic object hanging on the wall, then it may not matter if the work has been disavowed, assuming it appears materially the same.

Sarmiento points out that previous efforts by conceptual artists widely read as an attempt to resist the commodification of the art object (by working with mass-produced objects that anyone could buy, for example) didn’t exactly succeed. The price of such art isn’t tumbling. You can’t buy a urinal, call it Fountain, and donate it to the MoMA. “Conceptual art tried to eviscerate the commodification of the art object,” he says. “In fact what it did was the opposite. It really heightened and incentivized speculation.” If history is any guide, it’s possible that a work of art legally barred from being sold at auction would become an expensive item on the private sale market.


The Siegelaub Agreement


Unintended consequences are but one reason artists looking to control how their work is sold and marketed should employ other options than overly creative readings of VARA. Instead, they can use a good old-fashioned contract: The Artist’s Reserved Rights Transfer And Sale Agreement (ARRTSA). Drafted in 1971 by Seth Siegelaub and lawyer Robert Projansky and utilized by artists like Hans Haacke and Sol LeWitt, the document is much more expansive than VARA. Among other powers, ARRTSA grants an artist control over where a work can be shown, information on who owns the piece, and provides them with 15% of the proceeds of any resale. “Now you have a contract—forget about VARA,” says Sarmiento.

Though the contract is a private document and not public law, in both ARRTSA and VARA one finds traces of moral rights. In fact, the contract “was discussed in every stage of pre-VARA versions of moral rights legislation that were brought to congress,” says Haaften-Schick. The goal of the document is not to end the commodification of art, but rather to tip the scales of art market in favor of the artists. As Siegelaub put it in an interview with Hans Ulrich Obrist: “In no way was it intended to be a radical act; it was intended to be a practical real-life, hands-on, easy to-use, no-bullshit solution to a series of problems concerning artists’ control over their work.”

The terms of the document deters buyers who see art solely as a financial commodity. The artist Hans Haacke began using the contract around the time of its creation, and today remains staunchly committed to the agreement though it has widely fallen out of use. “I still believe, the contract is reasonable and fair. But I do know, it does not promote sales. To a degree, it serves me as a litmus test of the person who is interested in buying my work. It is likely to weed out investors, ” Haacke told me. “If there is a sale and the new owner does not sign the contract, I have the legal means to say that this is not a work of mine.”

ARRTSA is a product of a historical moment in the United States. The contentious political climate of the era and a focus on the links between corporations and museums made artists skeptical of institutions, both artistic and governmental. Though the contract remains useful (but untested in court), the art market has changed drastically since the 1970s. Just see the contract’s rosy estimates that 75% of people buying an artist’s work are friends. But though the way art is bought and sold is different, to a large extent the inequities felt by artists in the 1970s remain embedded in the art market of today.

The law, the market, and the work of art itself are all deeply and inextricably entwined—from Noland’s disavowal, to the Siegelaub contract, to the struggle over moral rights. Works of art—their formal qualities and their very authorship—cannot be separated from the systems that regulate and distribute them. That much is clear. Whether Cowboys Milking is by Cady Noland? Well, that depends on who you ask.


Isaac Kaplan is an Associate Editor at Artsy.

Illustration by Jan Buchczik for Artsy.