Volume 3, Number 3, Sept. 1981, pp.1-2

The Question of Copyrighting Art Restorations

by Leslie Kruth and Hal Kruth

One of the more unusual presentations at the AIC meeting in Philadelphia this year was given by Reid Mandel, currently a law clerk to a Justice of the Supreme Court of Minnesota. He explored the use of copyright laws to address one of conservation's more troubling problems--the protection of a work of art after it leaves the conservator's hands. By copyrighting an original work of art, an artist can control the commercial exploitation and display of his or her endeavor even when it is held by subsequent holders with whom the artist has had no previous contact. The "c- in-a-circle" puts the world on notice that a copyright holder may restrict the duplication and display of the art work. Mr. Mandel would like to see conservators affix a copyright to a work of art following its treatment and thereafter control its display and reproduction by future owners. His article flows from a concern for the welfare of art, a great deal of faith in the work of conservators, and unfortunately, a misunderstanding of the ethics of art conservation.

The essential premise of Mr. Mandel's theory is that when a conservator treats a work of art, the conservator's work "constitutes an original contribution by the conservator to the work itself" (Mandel, "Copyrighting Art Restorations," Bulletin, Copyright Society of the U.S.A., Vol. 28, No. 3, Feb. 1981). The premise is essential to his theory because only an original image can be copyrighted.

A good deal of legal analysis is devoted to proving that originality is inevitable in the conservation work. Mr. Mandel relies extensively on comments in articles by Ruskin, Brealey, Keck, and others to support his position that a conservator's work creates an original image which can be copyrighted. He has misconstrued the meaning of the author's comments. While an original contribution may be made in the course of conservation treatment, it is not the authors' intent to encourage this but rather to describe it as one of the shortcomings of the field. It is not a desirable characteristic. In conservation, extensive inpainting or replacement of losses is something unavoidable. However, to recognize inpainting or replacement of losses as original artwork in itself and thereby encourage such practices in order to satisfy the requirements of copyright law, is dangerous and contrary to the interests of the profession and art.

In any event, it is doubtful that Mr. Mandel could convince a court of law that this is the proper use of copyright law. It is hard to believe that a court would be willing to treat a repaired Rembrandt as a conservator's original given the relative creative contributions of the conservator and the artist. It is particularly doubtful that a court would support a conservator's claim in the face of a contrary claim by the artist or the owner of a work of art. After all, it was the artist or the owner who had the "original" piece before the treatment occurred. Presumably subsequent owners of a piece would acquire all of the rights in a piece held by previous owners. It is highly unlikely that judges would be anxious to act as curators and arbiters in such matters.

Finally, Mr. Mandel's theory even if it is accepted by the courts, would not address the vast number of treatments which do not result in a significant change in the treated image. A tear repair or a surface cleaning would not necessarily give rise to copyright protection. Even if the damage is the result of neglect and improper display, if the conservator has not made a recognizable alteration of the image, Mr. Mandel's application of copyright law would give a conservator no means of preventing its future mistreatment.

Mr. Mandel's motives are laudable. There is little that is more distressing for a conservator than to see art work mistreated through improper handling, environmental control, or display, particularly when the art work has been subject to extensive, difficult conservation treatment. Yet the use of copyright laws to stop such abuses is not the answer. Owners of fine art work can protect its subsequent treatment through the careful use of simple contracts if they feel that they must have the law involved in order to enforce their wishes. The protection afforded by contract can be supplemented, if necessary, by a system of national registration which directly addresses the control and treatment of the art in the hands of subsequent owners. There is little reason to force this problem into the analytical framework of copyright laws.

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