Last month, a Miami-based artist, Maximo Caminero, smashed one of the ancient vases dipped in modern paint which form the “Colored Vases” installation by Chinese artist Ai Weiwei. They were shown at the “Ai Weiwei: According to What?” exhibition currently on view at the Pérez Art Museum in Miami. The exhibition will be presented at the Brooklyn Museum in New York later this year.

Mr. Caminero has since told the press that he did it to protest the fact that the work of local artists are not shown in Miami museums. He has been charged with criminal mischief. I will not focus in this post about the legal actions Mr. Caminero is likely to face, but rather about the injuried party, the artist who created the work.

Ai Weiwei

This is not the first time that a work of art is being defaced as a sign of protest. Mr. Ai himself did so to create his Dropping a Han Dynasty Urn work in 1995, a photographic triptych showing him dropping a 2,000 year old Chinese Han Dynasty urn to the ground and breaking it.

Mr. Ai, probably one of the most famous contemporary artists, helped design the ’Bird’s Nest’ national stadium in Beijing, built for the 2008 Olympic Games. The same year, on May 12^th, an earthquake devastated the Sichuan province, killing more than 70,0000 people. Mr. Ai started collecting the names of the children who had been killed when their schools, built using shoddy material, collapsed. He launched a citizen’s investigation on his blog and also asked his Twitter followers to forward him names, a move which did not fare well with Chinese authorities, who had tried to keep the death toll a secret. He was beaten up by the police in 2009 and had to undergo emergency brain surgery.

Mr. Ai nevertheless created a series of art works to commemorate the tragedy, such as a wall of backpacks to commemorate the children who lost their lives in the tragedy.

In 2011, Mr. Ai was arrested and was secretly detained for 81 days. He was released later that year and he is currently living in China, albeit not completely free as he is still denied a passport.

Is it Legal to Destroy a Piece of Art that we own?

Coming back to Mr. Ai dropping ancient vases to create new art…  In the documentary, Ai Weiwei Never Sorry, his younger brother said during an interview: “Things of our past often influence our future.”

Mr. Ai owned the vase he dropped, which he had bought in an antique market. This point is made by the Hirshhorn museum’s interim director Kerry Brougher in an interview with the Washington Post, noting there that the fact that Mr. Ai owned the vase he smashed, while Mr. Caminero did not own the piece of art he destroyed, made a huge difference, as Mr. Ai had the authority to destroy the urn while Mr. Caminero did not have that authority.

British artists Jake and Dinos Chapman were also the owners of one of the last remaining sets of the 80 etchings of Goya’s Disasters of War printed from the artist’s plates. They drew clowns and puppies heads on them, and named their work ‘Insult to Injury.’ Is it insulting to Goya? Does it injure the public?

In these two cases, the original work destroyed to create a derivative work of art had been created several centuries ago, and thus nobody owned a copyright anymore.

However, owning a piece of art does not necessary give the ownership in the copyright of the work we own. Therefore,  t would be illegal, under Section 106 of the U.S. Copyright Act, to buy a piece of art still protected by copyright, while not owning the copyright, and destroy it .

Destroying Art and Ethics

Even if one has, in some cases, the right to destroy a work of art we own, destroying or defacing art nevertheless raises ethical issues.

Did Mr. Ai have the right to destroy a remnant of ancient China to protest the contemporary Chinese regime? Shouldn’t it be preserved for future generations? Do we have the right to balance our own assessment of the artistic, or, more crassly, of the market value of an original work of work, against the value of the derivative work created by destroying/defacing the original work?

Is it unethical to make a unilateral decision that the general public will not have the right to see a particular piece ever again?

That argument was made by the British judge who sentenced the man who had defaced a Mark Rothko painting on view at the Tate Modern gallery in London to two years in jail. This man had written “A potential piece of yellowism” with a marker on the painting to promote a rather obscure art movement called ‘yellowism.’’ The judge who sentenced him noted that because such act would lead to a need for increased security in museums,  “the effects of such security reviews is to distance the public from the works of art they come to enjoy.”

However, in that case, the art defaced did not belong to the protester.

Destroying Art and Droit Moral

The man who had defaced the Rothko painting compared himself to Marcel Duchamp. Mr. Ai has also referenced the French artist as one of his sources of inspiration.

One of Marcel Duchamp’s (in)famous pieces, Fountain, is a ‘readymade’ work of art. Originally a mundane urinal, Marcel Duchamp stripped it from its original function, and presented as a work of art.

The original piece has been lost. They are however several versions later created by Marcel Duchamp. One of these has been defaced in France, not once, but twice, and by the same person to boot.

In 1993, Pierre Pinoncely, a performance artist, urinated in Fountain, and then destroyed the piece using a hammer. He stated that he wanted to finish Duchamp’s work by giving the urinal its primary function back. However, this does not explain why he also broke it with a hammer, as noted by the French court which sentenced him to a suspended one-month prison sentence and a hefty fine:  “if urinating in a urinal can render the work back to its first use, no one can claim that a urinal is used with a hammer.”

Fountain is quite a  provocative piece…  In 2000, Chinese artists Cai Yuan and JJ Xi also urinated on Marcel Duchamp’s Fountain on view at the Tate Modern in London. They were arrested, but no charges were filed against them.

Mr. Pinoncely reiterated his act in 2006, when he once again destroyed Fountain using a hammer, this time during a Dada exhibition in Paris, and was again sentenced to a suspended prison sentence and a fine.

The French courts did not address the droit moral issues raised if someone willingly destroys a work of art. This right, which cannot be sold and is perpetual, is detailed by article L. 121-1 of the French Intellectual Property Code, under which

“[t]he author has the right to respect for his name, his nature/talent and his work. This right is attached to his person. It is perpetual, inalienable and imprescriptible. It is transferable upon death to the heirs of the author. The right to exercise it can be given to a third party by a will.”

While the U.S. does not have such a comprehensive droit moral, a section 106(A) was added to the Copyright Ac t in 1990 by the Visual Artists Rights Act (VARA). Authors of works of visual art 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.”

As works of visual art are defined  by 17 U.S.C. § 101 as single copy drawing, print or sculpture, or a limited edition of 200 copies or fewer signed and numbered by the author, Mr. Ai’s  works would be protected by VARA, although it is doubtful that Mr. Ai, a Chinese citizen, could asses any rights under VARA. However, China acceded in 1992 to the Berne Convention, which article 6bis provides for moral rights.

While Mr. Ai did not find Mr. Caminero’s gesture particularly amusing, he does plan any legal actions. His admirers are left with the regret of not being able to see the complete Colored Vases again.

Image is Vandalism on Hans Kloepfer courtesy of Flickr user Mathias, pursuant to a  CC BY 2.0 license.

by