Posthumous Art, Law and the Art Market

The Afterlife of Art

Sharon Hecker, Peter J. Karol, Sharon Hecker, Peter J. Karol

• Publisher: Routledge
• Year: 2022
• ISBN:
  9781000575101
• Edition: 1
• Topic: Kunst
• Subtopic: Kunst & Wirtschaft

This book takes an interdisciplinary, transnational and cross-cultural approach to reflect on, critically examine and challenge the surprisingly robust practice of making art after death in an artist's name, through the lenses of scholars from the fields of art history, economics and law, as well as practicing artists.

Works of art conceived as multiples, such as sculptures, etchings, prints, photographs and conceptual art, can be—and often are—remade from original models and plans long after the artist has passed. Recent sales have suggested a growing market embrace of posthumous works, contemporaneous with questioning on the part of art history. Legal norms seem unready for this surge in posthumous production and are beset by conflict across jurisdictions. Non-Western approaches to posthumous art, from Chinese emulations of non-living artists to Native American performances, take into account rituals of generational passage at odds with contemporary, market-driven approaches.

The book will be of interest to scholars working in art history, the art market, art law, art management, museum studies and economics.

Part One Stage Setting

1 Posthumous Casts in the Twentieth Century An Overview of the Wide Range of Situations

Élisabeth Lebon, Ève Turbat and Cole Swensen

DOI: 10.4324/9781003185697-3

I Introduction

The value of a posthumous art cast is based on three essential criteria: the way sculptors handled the diffusion of their cast works during their lifetimes, the intentions they expressed regarding the posthumous handling of their works, and, finally, the behavior of their rightsholders in relation to their works after their death. In each of these cases, choices are made that result in a wide range of possibilities. Citing numerous examples, this chapter shows that there are many possible approaches and combinations, which means that any suggested legislative solutions encounter the complexity of reality, and that individual analyses of each case are indispensable.

In twentieth-century France, sculptures editioned in bronze were deliberately kept rare, whereas abundance had been the goal in the previous century. New limitations raised market prices and demanded greater involvement on the part of the sculptor. The new rules instituted by France have spread to other countries with various adaptations that changed over time.

A variety of forms of inconsistent numbering were replaced by a legal framework introduced in 1968 limiting the number of authorized original proofs to eight.¹ Later, an additional four artists’ proofs were allowed.² This restrictive framework raised the question of the differences between casts made during the artist’s lifetime and posthumous ones, both legally and aesthetically. An art bronze is not the product of reproductive technique alone, nor just that of the artist’s hand, but requires a balance of the two. Creating an art bronze involves a series of steps that require several decisions, and connoisseurs are often not aware of how much flexibility sculptors and their rightsholders have in making them. Based on actual cases, we have established three criteria; each one involves a series of choices and knowing them is essential for judging a posthumous cast. They are the attitude of the sculptor and the degree of their involvement in the editioning of their works during their lifetime; the expression of their intentions for their works after their death; and the way in which their rightsholders carry out their responsibilities. The possible variations on these three emphasize the complexity of this question: there is no single answer.

II Approaches Taken by the Sculptors While Alive

A Sculptors Involved in the Casting Process

Some sculptors are personally involved in the casting process, which adds value, as they inevitably add irreproducible details to each cast made under their control. They know how to choose the procedure most appropriate for the given model (sand or lost wax casting), and they select competent founders, who are not necessarily the best known. They personally touch up the foundry waxes and judge each rough cast as it comes out of the mold, rejecting those that are not of the highest quality. They know exactly what they want from the chaser and the patinater, sometimes completing those final steps themselves. Such close control takes considerable time. Therefore, sculptors who take this approach often produce fewer works. François Pompon, Charles Despiau, Constantin Brancusi, Edouard-Marcel Sandoz, and Jacques Lipchitz, among others, followed this approach.

When sculptors with such skills become successful and the demand for their works increases, they often find that they participate less in the process because of time restrictions. In such cases, they sometimes hire competent people to do the work. For instance, Auguste Rodin worked with the patinater Jean Limet after 1900, and Brancusi employed Julio Gonzalez as an assistant in the mid-1920s to prepare for a large exhibition in the United States.³

B Sculptors Not Involved in the Casting Process

1 Voluntary Lack of Involvement

The extreme case of Salvador Dali is well known: he sold his models to the highest bidder and cared little about what happened to them afterward. Sometimes he sold only the design, leaving the creation of the sculpture to an unknown modeler.⁴ Another example is the sculptor Arman, who tried to make a profit on large editions, which meant that he could not verify the quality of each proof.⁵

Sculptors who pay so little attention are rare, but during the twentieth century, the field of sculpture opened to many untrained artists, some coming from the world of painting. Often, they did not have the background necessary for checking a foundry’s work and focused only on the patina, depending on the founder’s talent for the quality of the casts. Henri Matisse wrote to the C. Valsuani foundry in 1954: “My son Jean (who was bringing the models to the foundry) will talk to you about the seams. I think that, as usual, you will erase them on the waxes.”⁶ Another letter to the foundry said, “I wanted to let you know that M. Matisse’s current client is very demanding about patinas. He puts great store in beautiful patinas.”⁷ The decline in classical modes of training encouraged amateurism in the highly technical domain of bronzes.

Some artists, often those gifted in direct carving and assembly, chose not to edition their works on principle, instead creating unique pieces. The choice rarely lasted an entire career; the increased demand that accompanies success often made artists change their minds, particularly as it is difficult to make a living from unique works. Although Gonzalez used his foundry skills on others’ works (Pablo Picasso and Pablo Gargallo), his own pieces were unique works in metal, soldered, carved, or worked in repoussé, which only brought him recognition later. To support his family, he worked as a solderer in an automobile factory.⁸ Georges Lacombe could afford to refuse editioning because he had a private fortune. Finally—though rarely—an artist might deem their work unworthy of casting in bronze, as did Edgar Degas.

2 Involuntary Lack of Involvement

At times, an edition is made during an artist’s lifetime without their control and for reasons beyond their control. When the full ownership (the model along with all rights over it) is ceded, the artist no longer has the right to oversee its editioning. For example, Rembrandt Bugatti sold almost all his work to the founder Adrien-Aurélien Hébrard, and Aristide Maillol ceded a group of his earliest sculptures to the dealer Ambroise Vollard. Finally, many artists, such as Raymond Duchamp-Villon and Amedeo Modigliani, did not edition their works because they could not afford to do so. Others, such as Henri Gaudier-Brzeska, had limited means. While posthumous editions do not violate their wishes, their rightsholders do not know what those wishes would have been.

3 Intermediary Situations

Artists rarely take the same approach throughout their careers. Rather than look for a single attitude or approach, we must understand an artist’s life as it developed. Often at the beginning of their career, artists transfer works to an éditeur.⁹ An artist may be involved intermittently. For instance, Alberto Giacometti, when shown a proof that the foundry did not like, was occasionally pleased with accidental results and accepted them,¹⁰ though usually he left all matters regarding his bronzes to his brother Diego.¹¹ Some artists’ personal involvement grew with time; Henri Laurens knew nothing about bronzes when he began, and his dealer Léonce Rosenberg questioned the quality of some early editions: “I just received the bronzes from [the foundry Alexis] Rudier. I would like you to come and see them, as I do not like the patina at all,”¹² he wrote to the sculptor, who clearly had not noticed the problem. Later Laurens learned about bronzes, buying a house near the C. Valsuani foundry and developing a particular patina with the head of the workshop, Antoine Tamburro.¹³

Sometimes it is hard to know why an artist’s attitude changed: the Italian Medardo Rosso’s reputation was partly based on his personal involvement in his sculptures’ production. He possibly molded part of his plasters and cast some of his bronzes himself in Paris from the mid-1890s.¹⁴ However, in these early Parisian years he still sent some of his plasters to Italy, where they were cast without his physical involvement.¹⁵ Finally, there is Jean Arp, who loved technique and experimentation, and yet increasingly delegated the editioning of his bronzes as his overseas success grew.¹⁶ Every artist and every lifetime cast have their unique history. A detailed reconstruction of the choices made at each step can determine the actual degree of the sculptor’s involvement in the creation of a bronze, which in turn helps determine the intrinsic value of a lifetime cast.

III Intentions for Posthumous Casts

Throughout the nineteenth century, sculptors always wanted their works to be diffused as broadly as possible after their death. That changed at the beginning of the twentieth century when, for the first time in the history of sculpture, due to the deliberate limitation of editions, sculptors could consider imposing conditions on or prohibiting the posthumous editioning of their works. This unleashed a wide range of new approaches. The limit indicated at the beginning of an edition must be respected by later éditeurs (after the law of 1968, however, the upper limit of eight originals plus four artists’ proofs may no longer be exceeded, but the lower limit remains valid) to respect the terms of the original contract. These new regulations mean that éditeurs now must review a sculpture’s history and count the number of proofs. The owners of the editioning rights can finish casting an edition or¹⁷ edition a not-yet-editioned model.¹⁸

A Dying Intestate

In France, for scul...