Whose Art Is It?

defacement, destruction, defamation


If I sell a painting to a person who then somehow mutilates or destroys my work, or in some other manner alters the work of art in a way that could harm my reputation, do I have any recourse in Massachusetts ?


Yes. Buried amongst the legislation of Massachusetts exists an act commonly referred to as the Art Preservation Act (APA). The effect of the APA is to create a certain defined bundle of rights for artists, enforceable in the Superior Court Department, in order to protect the integrity of the artist’s creation and the reputation of the artist. The preamble to this act specifically states this intent and purpose as follows:

The general court hereby finds that the physical alteration or destruction of fine art, which is an expression of the artist’s personality, is detrimental to the artist’s reputation, and artists therefore have an interest in protecting their works of fine art against such alteration or destruction; and that there is also a public interest in preserving the integrity of cultural and artistic creations. [Massachusetts General Laws c.231, §85S(a)]

Clearly, the act intends to aid in the protection of “fine art.” But the question arises, what is “fine art”? Being conscious of the fact that the meaning of fine art is not established by a bright line definition, the legislature has put forth the guidelines for identifying fine art. Fine art, according to the statute, is defined as any original work of visual graphic art of any media which shall include, but not be limited to, any painting, print, drawing, sculpture, craft object, photograph, audio or video tape, film, hologram, or any combination thereof of recognized quality [Massachusetts General Laws c.231, §85S(b)]. The recognized quality standard, the legislation continues, is to be determined through the use of the opinions of artists, art dealers, collectors, curators of art museums, restorers and conservators of fine art or other persons involved in the creation or marketing of fine art. It is through this definition that the court filters works seeking the protection of the APA.

In addition to establishing a definition of “fine art” for statutory purposes, Massachusetts has created a new set of safeguards for artists that will remain intact even after the painting leaves the possession of the artist. These safeguards created by the APA provide the artist with essentially two categories of protected rights often referred to as the Right of Integrity and the Right of Paternity. The first of the newly-created rights, the Right of Integrity, is probably the most useful piece of the legislation for the artist. The provisions offer protection against the intentional or grossly negligent physical alteration, mutilation, destruction, and defacement of the work for the lifetime of the artist, plus fifty years thereafter [Massachusetts General Laws c.231, §85S(c),(d),(g)]. So rest assured, for a half a century following the death of the artist, these rights live on and remain inextricably bound to the work of art, subject to the enforcement by the artist’s heirs, legatees, or personal duly authorized representative.

The second established right, the Right of Paternity, allows the artist to claim and receive credit under his or her own name (or under a reasonable pseudonym), or disclaim for just and valid reason the authorship of any fine work of art [Massachusetts General Laws c.231, §85S(d)]. This bundle of rights helps to protect the artist from a modification to the work which is in any way prejudicial to the reputation and honor of the artist. This safeguards against the intentional sabotage of an artist’s reputation by manipulating a work of art to create the impression that an artist created the fine art to express beliefs and ideas staunchly rebuked by the artist.

Once an artist establishes that his or her work is in fact “fine art” under the APA, and the artist has established which of the two bundles of rights have been violated, damages need to be assessed. Guidance is provided by the statute as to what damages may be claimed. Under the statute, an artist can attempt to collect damages already incurred by the violation, special damages, general monetary damages, injunctive relief, reasonable attorney’s fees, and expert witness fees. As a result, a successful claimant can retrieve monetary compensation and an order from the court enjoining the violator from continuing any violation of the statute in regard to the fine art.

The final item that requires attention in the APA has garnered attention in recent court cases. This section deals with artwork that is incorporated as a part of publicly-owned real estate. In general terms, if a work of fine art attached to a publicly-owned property cannot be removed from the building without substantial physical defacement, mutilation, alteration, or destruction of the work, then unless a signed instrument was executed specifically reserving the rights of the artist under the APA, all rights under the Act will be deemed waived by the artist [Massachusetts General Laws c.231, §85S(h)]. If the artwork can in fact be removed without substantial harm to it, then the rights under the APA shall apply, unless the owner has diligently attempted, without success, to notify the artist in writing of the intended action affecting the fine art and to remove the work within ninety days. The basic foundation for this section resides in the property rights of landowners to renovate or remove structures from their property.

As you can see, the Art Preservation Act of Massachusetts provides artists with numerous rights, some of which are very personal. Hopefully, as more artists become aware of the protections that exist by statute to safeguard their reputation and artistic integrity, the APA will become a more prevalent addition to our artistic vocabulary.