Kenny Schachter read about Richard Prince’s renunciation of the New Portrait work he did for Ivanka Trump. It raised some alarm for the collector dealer about the ramifications for the art market if living artists can arbitrarily de-authentic works owned by others at whim.
The post has been very popular with art lawyers. Here’s what Kenny wrote:
The repercussions to the market if artists had the right to impugn the authenticity of their works after the fact would turn the art economy topsy-turvy, destabilizing what many already judge to be a thinly traded, tenuous ecosystem to begin with. The whole enterprise cannot be pegged to the capriciousness of artists, fickle at best: the laissez-faire markets with their (quasi) built-in checks and balances would lose confidence in art. And Richard would be robbed of his private-plane-fueled, St. Barts lifestyle; that, I am sure, he can appreciate. And besides, you don’t kill the (market) animal to remove a splinter from its foot.
Judd Grossman, one of the aforementioned art lawyers, had some thoughts on the limits of Prince’s VARA rights:
The Visual Artists Rights Act of 1990, which is part of federal copyright law, codifies certain “moral rights” regarding an artists’ creations, including, among other things, the right to prevent the use of his or her name as the author of an artwork “which he or she did not create,” as well as “in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation.” See 17 U.S.C. § 106A. But neither of those circumstances seems to apply here, at least not literally. It’s difficult to see any colorable argument that Prince didn’t actually create the piece, given that Prince himself has explained how and why it came into existence. And there is no serious charge that there has been any distortion, mutilation, or modification “of the work” itself, physically speaking; what has changed is Prince’s feelings about the work residing in the collection of its current owner.
Nicholas O’Donnell adds on the VARA issue:
Having thought about it, I think Prince’s VARA rights in this instances are limited. VARA’s right of attribution states that the artist has 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.” Famously, Cady Noland successfully enjoined the sale of a work as a “Cady Noland” after it had been damaged to her dissatisfaction. I do not think it would apply here. First, the Prince work has not been “disort[ed], mutilate[ed], or other[wise]  modif[ied].” Instead, it has been purchased by someone whom the artist wishes to criticize, which is certainly his right. Second, given that the statutory construction would be a stretch as applied to Prince, it must also be remembered that judges have strained to avoid strict applications of VARA, and it is hard to imagine that a politically-charged claim would be the instance in which that changes. One never knows, however.
One final thought informed by no legal credentials, education or experience. The judge in Thome v. Alexander and Louisa Calder Foundation dismissed a complaint against the Calder Foundation for declining to include some works the foundation’s catalogue raisonné even after the director of the foundation had previously verbally committed to including the works.
In that case, the judge made this point which seems to apply if we substitute Richard Prince for the Foundation:
If buyers will not buy works without the Foundation’s listing them in its catalogue raisonné, then the problem lies in the art world’s voluntary surrender of that ultimate authority to a single entity. If it is immaterial to the art world that plaintiff has proof that the sets were built to Calder’s specifications, and that Calder approved of their construction, then it will be immaterial to the art world that a court has pronounced the work “authentic.” Plaintiff’s problem can be solved only when buyers are willing to make their decisions based upon the Work and the unassailable facts about its creation, rather than allowing the Foundation’s decisions as to what merits inclusion in its catalogue raisonné to dictate what is worthy of purchase.
Fake News, Fake Art? Richard Prince Disavows Work Depicting Ivanka Trump (The Art Law Report)