The repair of damaged works of art is not just an issue for the conservator. Many art collectors are unaware that the artist may deem the repair to have changed the nature of the work so much that they no longer consider it a piece of their work.
The impact on the value of the work can be devastating. Even if the artist is no longer alive, there can be problems with getting the repairs approved. Valarie Jonas, a partner at Meckler Bulger Tilson Marick & Pearson LLP, focuses her practice in the areas of first and third party insurance coverage, bad faith and complex commercial litigation. She has extensive experience in the field of Fine Art and was first plunged into this arena in 1992 when she handled a claim relating to a painting by a twentieth century French artist, which had been damaged when a gallery visitor fell onto it.
The artist had died in 1962 so his widow was called upon to authenticate the repaired work. Instead of giving it her seal of approval, she declared it a total loss.
“It was my very first fine art claim and it was so interesting. I’ve never looked back since then,” says Jonas. “It highlights the dilemma a collector can face if a piece of work needs to be repaired.” “There’s a whole panoply of issues related to this, especially with respect to living artists. Does a collector who has suffered damage to a piece have an obligation to involve the artist with any repairs? And what happens if the artist says they want the work destroyed?”
Depending on the country in which all this takes place, there are different pieces of legislation that come into play – for instance, VARA (the Visual Artists Rights Act) in the US, and the Berne Convention in Europe. VARA applies to the work of living artists. The Berne Convention’s protections are greater than VARA and extend to works by a deceased artist.
Both give artists the right to disown work affected by any alterations that may be deemed injurious to their reputation. Artists have repeatedly exercised this right, but litigation is extremely rare.
“There are very few cases interpreting the scope of VARA generally and, at least as of the New Year, no published decisions which have addressed the overlay of VARA and insurance contract law. I also think that privacy concerns by dealers and collectors have kept these issues out of the spotlightof public litigation,” says Jonas.
With many collectors still unaware of the financial loss that can occur if an artist disapproves of conservation work, the issue looks set to cause more unpleasant surprises in the future.
In the light of this, Jonas believes that it is advisable to consider an artist’s attitude towards repairs to his or her work when considering buying a work of art.
“The collector might want to consider looking into how this artist treats damaged pieces: does this artist work with the collector? There are many artists that do, and who look at it as all part of the process of a piece changing over time. There are artists that will work with the collectors and conservators and who will want to do the repainting or re-sculpting or whatever it requires. I think that’s something that a collector might want to know about before investing in art: how has the artist handled conservation of works in the past?
“There is a strong emotional element involved in buying art and if a certain artist’s work draws you, you are probably not going to be looking down the road as to what happens if the piece is damaged one day. But, like any investment, I think it is wise to be informed, and these are all issues that that you definitely may want to think about. “