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.