MSCHF, the outlandish New York art collective, have done it again. And if – by ‘it’ – you guessed ‘severing’ a limited edition Damien Hirst ‘Spot Painting’ print and reselling its collective 88 pieces for nearly twice the total amount – you wouldn’t be far off. Because they’ve sold what’s left of the painting too.
Hirst’s ‘L-Isoleucine T-Butyl Ester’ (2018) from the ‘Spot Prints’ Edition series – acquired by the $11.5 million+ venture-backed creative studio for $30, 485 (£22,850) – was sliced into 88 dots and auctioned individually for $480-a-piece as MSCHF’s own creation, ‘88 Spots‘ (2020). The painting’s skeleton – a frame with 88 holes – was named exactly that – ‘88 Holes‘ (2020) – and sold with a minimum bid of $126,500 (£94.8K).
The auction results were a media sensation. CNN reports that all coloured dots sold within 38 seconds. ‘88 Holes‘ sold for $261,600 (£196.1K.) while the sale of ‘88 Spots‘ totalled $42, 240 (£31.6K.) (a profit of $11,755, not including labor, shipping and supplies).
Unlike some of MSCHF’s random projects however – which previously include a “Times Newer Roman” font that claims to be 5-10% wider than its predecessor, or “The Persistence of Chaos” which auctioned a malware infected laptop containing six viruses responsible for $95B. worth of damage – Drop #20 from the Brooklyn based collective has an underlying message. A manifesto published on the company’s website for the project criticizes the fine art industry as a “vehicle for the affluent to store their wealth” where works of art are mistreated as “value sink[s]” only to be stashed in tax-free storages waiting to see the light of day, then “flipped like a giant bill in a colorful currency arbitrage”.
So what are they going to do about it? Supposedly, “a slice here and a slice there” of Damien Hirst’s spot print painting will enable them to simultaneously dispose of “zombie wall works” while affording the non-elite a fractionalized ownership in blue chip art.
Given the satirical nature of the project’s aim, it’s uncertain whether MSCHF’s potentially transformative use of Hirst’s print qualifies as fair use under U.S. Copyright Law. This is where a defendant’s follow-on work transforms the original by “add[ing] something new, with a further purpose or different character, altering the first with new expression, meaning or message”.
But, Hirst is yet to file a legal complaint or take up issue with MSCHF’s treatment of the work. In fact, a few days after the April 28 auction, Hirst could be found casually posting a very spot print reminiscent work – except they were pills. In any case, the real question here pertains to Hirst’s moral rights. What exactly is the legal view on “creative destruction” whereby others create art from existing art?
Though copyright and physical ownership are ‘economic rights’ which can freely be transferred once the work is sold, moral rights refer to a set of non-transferable personal rights which prevent the use or reproduction of the work in ways that the artist disproves of. Under the Visual Artists Rights Act of 1990 (“VARA”) – a U.S. law frequently criticized by art lawyers for being narrow in scope – certain artists are given the right “to prevent the intentional distortion, mutilation, or other modification” of their work. Albeit, this is limited to single copy or limited-edition paintings, drawings, prints, photographs, or sculptures (“works of art”) that would prejudice their “honour or reputation”. In addition, to be protected from unauthorized destruction the work must be “of recognized stature” – a term which VARA hasn’t explicitly defined.
So, while rightsholders of trademarked products and copyright-protected works virtually extinguish their rights to sue on grounds of infringement once the work is sold, VARA continually provides artists with a moral right of integrity to sue if their work is being distorted or destroyed.
How might this apply to Hirst? Well, in the event that Hirst decides to sue, he would need to establish that his painting is of “recognized stature” – a relatively low bar for a renowned artist – and that MSCHF’s mutilation of the work is “prejudicial to his honor or reputation”. If he could prove that, the UK’s richest artist (indeed, a £315 million ($384M.) net worth) would be looking at actual damages or statutory damages under VARA ranging from $300 to $30,000 per work (£225K. – £22.5K) up to $150,000 (£112.5K.) per work for wilful violations, per The Fashion Law.
Even though transformative uses of original artworks are far from novel in the art world – think Robert Rauschenberg’s erasure of Willem de Kooning’s drawing, which he subsequently titled ‘Erased De Kooning Drawing‘ (1953) or Banksy’s infamous ‘Love is in the Bin‘ (2018) which self-destructed the moment it sold for over £1M. at a Sotheby’s auction in London, arguably infringing the collector’s property rights – it remains to be seen how the U.S. courts might balance an artist’s moral rights with the public’s rights to expression.
As Cathay Y.N. Smith explains in a 2019 paper, ‘Creative Destruction: Copyright’s Fair Use Destruction and the Moral Right of Integrity‘, moral rights under VARA are subject to the fair use doctrine. But we have yet to see how this might be applied. Why? “There have been no court decisions involving a fair use defense to a right of integrity claim, and no direction on how fair use would interact with a violation of integrity rights” Smith says.
Across the pond in other civil or common law jurisdictions however – think: Europe, Australia, Canada – judicial precedent is established. Authors’ moral rights are also significantly broader than under VARA. France in particular have long recognised droit moral in their copyright laws — in 1960 the Paris Court of Appeals upheld an action brought by French artist Jean Bernard Buffet against an owner-consignor, in which the latter treated one of the six panels of Buffet’s refrigerator painting as a separate work, which distorted and misrepresented the artists intention.
Last year, two Faroese luxury watchmakers had a similar idea to MSCHF where “slices [of an artwork]” would adorn their watch faces to “create a new, unique narrative” – except it didn’t quite go as planned. The difference is that the watchmakers went a step further by trying to reproduce a work that they didn’t own the copyright to. When they were sued by the underlying artist, the defendant watchmakers tried to argue that they weren’t modifying the work – which is prohibited by Danish copyright law – but rather freely destroying the work in their capacity as owners and creating a new work from it. Denmark’s Maritime and Commercial Court disagreed. The Court equally found the defendants in violation of the artist’s moral rights, and issued an injunction preventing them from making the watch (plus a cool 31,550 DKK (about £3,520) in legal fees).
With such examples to compare to, it really begs the question: in what circumstance can the mutilation of a well-known work really be considered fair use under U.S. Copyright Law? As lawyer Amelia Brankov points out, given that transformative uses of original works are norm in the industry, artists will have to keep a look out for VARA developments to see what rights and obligations they have in this respect.
Meanwhile, green spot #57 is being sold for ten times its purchase price on Ebay.
