Is Beauty in the Eye of the Fee Holder?

-- By AnaCorrea - 28 Mar 2008

Introduction

I want to examine the tension between owner's rights and artist's rights where the two disagree on the ultimate fate of the artwork. The Visual Arts Rights Act of 1990 (VARA) seemed to address this tension by attempting to protect rights of the creators over those of the acquirers, favoring the David artists over the Goliath property owners. Despite, and sometimes because of, VARA, however, recent court decisions have returned the power of destruction back to the fee holders. Of course, decisions such as these could reflect the greater political strength of property owners versus those of artists. As the plaintiff artist in Phillips v. Pembrooke Real Estate later observed: “It was probably very naive […] to think that artist rights would prevail over real estate and power." Perhaps, however, a more productive inquiry is dependent less on this discussion of power and more on one of the aesthetics, audience, and aim of the artwork.

Objective and Subjective Aesthetic Theory

If beauty is in the eye of the beholder what happens when the beholder changes her mind about the beautiful object in question? Does it cease to be beautiful? A subjective theory of beauty demands the input of the audience. Beauty is indeed determined by the opinion of the beholder. An objective aesthetic theory, however, would dictate that an object's beauty is independent of its audience. Human perception plays no part in whether something is beautiful or not

An objective aesthetic theory would seemingly strengthen the artist’s stake against the property owner’s in an artwork destruction dispute; if the artwork has independent artistic value the property would have little incentive or right to have it destroyed. On the other hand, what happens when the artist is the one seeking destruction? The question has arisen numerous times in the literary context. Tradition says that on his deathbed, the Roman author Vergil ordered the manuscript of his masterpiece the Aeneid to be burned. To the dismay of Latin students everywhere, the request was not fulfilled. More recently, the son of Vladimir Nabokov faces the dilemma of whether or not to destroy his father’s last unpublished work as per the literary giant’s instructions before his death. An objective theory would quash both the fee holder’s and the artist’s rights while elevating the interests of society at large.

A discussion of aesthetic theory seems out of place in reference to a statute like VARA that purports to protect artwork whether “beautiful” or “ugly.” On the other hand, value judgments are certainly present in the statute. First, the Act only protects works of “visual art” and excludes audiovisual and other mixed-media works. Additionally, the Courts have also excluded works for hire no matter the media and site-specific art. By privileging the protection of traditional forms of art over more modern expressions, the Courts and drafters of the Act are inherently making value judgments about what is and is not worthy of protection. Second, the Act protects works of “recognized stature” from destruction and mutilation. This is seemingly an objective standard that seeks to protect art for art’s sake, but what constitutes recognized stature is undoubtedly a subjective judgment. Thus, these provisions suggest that VARA adopts a subjective aesthetic theory over an objective one. A subjective theory would be more amenable to the property owner’s stakes.

Conclusion

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Hey Ana, this looks like a really neat topic. I would comment, but I know nothing about VARA. I found a link that you might want to embed in your essay
[[http://darkwing.uoregon.edu/~csundt/copyweb/CunardCAA2002.htm][ This nice link ]

-- AndrewGradman - 29 Mar 2008