Public Art and the Rights of Artists

Public art is a fascinating topic. On the one hand there is the individual artist’s unique perspective and expertise. On the other hand there is the challenge of engaging a large and diverse audience, many of whom will not have a choice about whether to encounter the work in question. In the best public art the artist channels his or her personal vision and skill to meet these challenges, and the resulting work enriches public life. Together with the aesthetic challenges and opportunities, public art poses a series of practical difficulties for artists and commissioning bodies alike. When an artwork passes into collective ownership, it may not be treated very well. Works of public art have been moved from their intended sites to places where they do not fit; they have been left to deteriorate; and some have even been destroyed.

In an earlier post I asked, should artists give away their work, even for a good cause? In the case of public art the answer may be, not without some extended legal consultation. That was certainly my reaction after reading about the current controversy in Germany over the “East Side Gallery,” an outdoor art exhibit. Back in 1989 after the Berlin Wall fell, over 100 artists from the east and the west worked together to create large outdoor murals on a 1.3 km section of the wall. The free gallery became a must-see for visitors to Berlin and millions have visited it. Two years ago, in preparation for a celebration of the wall’s fall, the site was overhauled. At that time artists were offered 3000 euros (about $4154 Cdn.) to recreate their original murals. Many artists felt that the proposed compensation was too low – especially since the city had set aside 2.2 million euros for the renovation. Those artists who refused to cooperate were told that their work would be painted over and then re-created by someone else.

The city of Berlin is now being sued by 21 artists. They charge that the city has improperly destroyed some of the works and reproduced others without permission. One artist, Thierry Noir, has already been awarded 250, 000 euros by the courts after a section of the wall that he painted was sold to a private collector.

It is both sad and ironic that a project that began as an expression of freedom and good will has become a source of enmity and conflict. The case will not be heard for three months, and I’m not familiar with the relevant German laws. Two different kinds of rights seem to be at issue. First is copyright – this is the right to reproduce the murals. Typically, when an artist sells a painting, he or she sells a physical object only, and the right to make copies of the image (say, as a book cover or a Christmas card) must be negotiated separately. The second issue is the artist’s moral rights over his or her creation. Depending on the jurisdiction, artists who sell their works have the right to expect that these works not be destroyed or interfered with in significant ways.

I will be interested to hear the German courts’ verdict on both of these issues. It will also be interesting to see if, in the future, artists are a bit more cautious in their dealings with the state.