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In recent weeks I have stopped kind of just posting links, but I have discovered some really interesting commentary lately. This comes from a recent addition to my Google Reader, The Guardian’s Art & architecture blog, a post written by Simon Goddard about Masaccio, the greatest and youngest “old master” I never knew about!

If the world of art was stricken by the same incurable, anniversary-fixated old rope disease as the UK music press then, round about now, there’d be brainstorming editorial meetings on how best to commemorate the imminent 580th anniversary of the untimely death of Masaccio – Renaissance Italy’s hippest young gunslinger who more or less invented painting as we know it. […]

For while enough major works have survived to earn him a rightful place in the pantheon of Renaissance masters, his biography is the palest of sketches. We know, or rather we think we know, that he was born near Florence on December 21, 1401 and that he died, aged 26, in Rome some time in the latter half of 1428 (we don’t even have an exact date). And that’s it. […]

In rock’n’roll terms, his bequest to art was the equivalent of Elvis Presley’s Sun recordings, a year zero foundation stone for future generations to develop and perfect. Masaccio was the first to fully master depth and perspective on a two-dimensional surface. Before his arrival, paintings were flat, ornamental images beholden to staid Gothic tradition. After him, they became windows on walls, peering into another universe of similar spatial dimensions to our own. Significantly, his frescoes were a vital influence on Michelangelo. The latter’s close friend, the great Florentine biographer Vasari, was still swooning over Masaccio’s legacy 140 years after his inexplicable death. “Everything done before him can be described as artificial,” frothed Vasari, “whereas he produced work that is living, realistic and natural.”

Wow, I encourage others who may be ignorant of this artist to learn of him by reading more from the blog post. The author of the post reserves special praise for the work Masaccio is apparently best known for, the Holy Trinity fresco, pictured right.

Actually, humans have done quite well for themselves when given the liberty to look after their own lives. We use laptops, digital cameras, advanced healthcare, and enjoy much of our consumption due to the ability of humans to freely contract with other humans and to trade as they deem fit. To the extent that they are disallowed from doing so, then, they suffer from unnatural interventions. And artist moral rights, like unions, are a relatively new innovation in the world, for they require a conception of property rights that is far from natural.

In the case of unions, companies are prevented from firing whole groups of workers who traditionally simply worked at the pleasure of the employer. Due to some perceptions of unfairness, government interfered with the natural relations of humans, chaining the entrepreneur and the shareholder to the whims of the union. Artists have always held the ability to negotiate sales of their works based on certain conditions and many enterprising ones have retained various rights upon sale of a work. However, artists realize that if they put conditions restricting the alienability or future sales of their works, that purchasers would be all too happy to purchase other art works with no such conditions. In order to avoid this, artists have blatantly engaged in rent-seeking: obtaining legislation that prevents purchasers from acquiring full ownership of works despite a lack of retention of rights by the artist in the contract or sale.

In the European Union, home to the most advanced and disturbing artist moral rights, one such right is the artist’s right to receive royalties from each subsequent sale of the work. Last week The Economist highlighted this right:

For the past two years 4% of the price of a work by a living artist sold through an auction house or by a dealer has been payable to the artist. Sales of less than €1,000 (£796) are exempt, and the tax is capped for anything worth €500,000 or more. Throughout the European Union the tax is payable on sales of works by living artists or those who have died within 70 years; in Britain it is only works by living artists that qualify. The EU allowed Britain this exemption until 2012. Mr Hirst and his colleagues would like to make sure it is not extended.

Consequences? Yes, please! Among them, we would expect that since the rate of return on investment is lower for certain of these investments, that in certain price ranges, investors will simply not invest in art works and instead invest in other areas. May I have another? Yes, please! Artworks within a certain price range (about €1,000 – €500,000) will be more likely to be sold in the United States and Asia than would otherwise be the case. ( This is probably not a serious consequence, since it would not be terribly substantial and other art work can always fill the void, but it is certainly an unintended consequence. ) The list goes on, but for some reason the European elites can never seem to stop punishing their people enough. As The Economist also mentions:

A study sponsored by the Antiques Trade Gazette showed that, in the 18 months to August 2007, 10% of the 1,104 artists benefiting from ARR in Britain (around half of whom are British) got 80% of the pot; the bottom 30% received less than £100 each. The royalty has also proved cumbersome and costly to collect.

In the United States, it has been estimated that regulations cost more lives than they save when they cost about $8.4 million to implement. The reason why is because the money that goes toward implementing the regulation would be better off in the hands of the people who paid that money in taxes to increase their own welfare or that of others by charity. In this case, considering the results of moral rights legislation in Britain, it’s hard to see how the benefit would outweigh the cost of millions of pounds going to enforce it — especially when artists could take care of this themselves in their own contracting. The need for this artificial intervention is, at best, lacking.

[Warning: statements of law in this post may or may not be completely incorrect.]

Moral rights in art are amongst the most controversial of all rights because they carve out a portion of property rights and constitute a redistribution of wealth to artists. The concept behind them is that there are some rights that cannot be contracted away or alienated. No price could ever be fairly assessed for these rights. Clearly, this concept is anathema to the system of property rights long developed through common law that is being steadily statutorily eroded.

One such erosion in the United States is the Visual Artists Rights Act of 1990, which is the implementation of the Berne Convention. The text of the Act is contained here. Let us look at them piece by piece. First, 17 U.S.C. 106A(a)(1)(A) and (B):

…the author of a work of visual art shall have the right to claim authorship of that work, and to prevent the use of his or her name as the author of any work of visual art which he or she did not create…

This section of the code means that, for example, an artist making something for hire will be able to claim authorship of the work. In decades past, many artists felt that they received a pittance for their artistic efforts when the corporations that they worked for were able to reap an inordinate amount of profit. To an artist, this means that the artist does not have enough bargaining power and requires legislation to intervene. To a property rights purist (i.e. almost all libertarians, most Republicans, a few Democrats), this means that if the artist wants more bargaining power the artist should start her or his own firm and contract directly with whomever wants her or his work. To the purists, legislation is wholly unnecessary for this problem and may even represent an infringement on the liberty to contract. Now let us look at the next moral right, 17 U.S.C. 106A(a)(2):

…the author of a work of visual art 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 just means that the artist need not be tied to an art work that has been changed in some way that would be “prejudicial to his or her honor or reputation.” It is not really clear what evidentiary standard the legislature intended here for prejudicial or what an artist’s honor or reputation really means — but it is closely related with the next rights, both contained in 17 U.S.C. 106A(a)(3):

…the author of a work of visual art shall have the right to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and [the right] to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

This section contains perhaps the greatest departure from common law property rights. In it, VARA confers on artists the ability to stop owners of a work from changing it, perhaps modifying it in any way, including changing its location if it is, say, a mural. It also confers on the artist an ability to conceivably prevent the destruction of a work. There have been cases litigated on this matter, and they often turn on extremely narrow interpretation of state statutes that are similar to VARA. Artists have argued that their personality is bound up in these works, they are extensions of themselves, and that it is unfair for record property owners to be able to just do as they place. Obviously, property rights purists think that if they own the property with an artwork or the artwork itself that they should be able to dispose of it (or deface it) as they might wish, however grotesque an act it seems to be — though, of course, the result might be a work of art (derivative?!) in and of itself.

First, let me say that I would love to work for the Metropolitan Museum of Art, whose stores I also enjoy as a lowly peon unable to hang out at the museum, but they won’t return my calls. My thrice-daily calls. I wonder why. In any event, they’ve had a recent… problem… which I am loathe to share and speak about since I like the museum, but let us discuss it. As usual, reported from The New York Times Arts section (article by Randy Kennedy):

A glazed terra-cotta relief by the Renaissance sculptor Andrea della Robbia came loose overnight from its perch above a doorway at the Metropolitan Museum of Art and crashed to the stone floor below, suffering serious damage, museum officials said on Tuesday. The fractured 15th-century sculpture, a 62-inch-by-32-inch blue-and-white lunette depicting St. Michael the archangel in a traditional pose, holding a sword and scales, was found early on Tuesday by a guard on regular rounds.

Should we feel horror? Yes. But surprise? Not really. Look, a museum like The Met is as massive as its reputation. It employs an army of people to represent the museum and to keep it afloat. No doubt, several people will feel and have a lot of responsibility for this debacle, but when one considers the magnitude of the operations necessary to maintain so many antiquities and works, it is bound to happen once in a while. For example, when I worked in the Harn, some rather expensive works were damaged in transport, in a far less negligent fashion — bad packing. So long as humans are involved with a system, be it of maintenance, judging, or security, there will be mistakes. It’s just a part of our make-up as members of homo economicus.

The worst part for the museum is the set of likely consequences, none good. This is very bad PR, and since the market is so competitive, one can expect museums that compete in the same markets as The Met to highlight this episode at the same time that others have second thoughts about giving works to it or loaning antiquities. It’s a short road to perdition from this point, so The Met will likely have to expend a not insignificant amount of maintenance, which means less money for other operations. As a similar point, its insurance will go up — probably a lot. I suppose that’s good for art insurers though, since this type of an episode is very unlikely to recur at The Met.