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 the aesthetic theory applied to the artwork.

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. The application of objective versus subjective aesthetic theory has some bearing on whose rights should be privileged in the destruction dispute. Take, for example, the case of graffiti and other art created without the property owner’s knowledge and permission. An objective aesthetic theory would privilege the artist’s rights over those of the property owner’s while a subjective theory would be more amenable to the property owner’s stakes. The property owner’s rights are secondary in the objective application because the art is judged for its objective aesthetic value regardless of the property owner’s subjective views.

• Pardon me? This would be true only if the work were "objectively beautiful." Your "objective aesthetic theory" does not mean artists win who produce objectively unbeautiful art.

Objective Aesthetic Theory, Artist’s Rights, and Societal Interests

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 aesthetic value the property owner 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.

• This is an unbeautiful and unwise joke. If the Aeneid is not objectively beautiful, it remains for you to explain why. If either it is objectively beautiful, or your claim that there exists a theory of objective aesthetics is total rubbish, then the attitudes of those who don't read Latin or cannot find an adequate translation of the Aeneid into their own language (which is hard in English because, given the work's immense appeal to 100 generations of human beings, there are unsurprisingly at least six wonderful and different translations) would go no further than to show that burning books is almost as foolish as burning people for not reading them. Had you ever read the Aeneid, I suspect, you probably wouldn't forget how to spell the author's name.

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.

• Not before inquiring whether Nabokov's The Original of Laura is or is not beautiful. Of course, the real debate, as opposed to the phony one you are trying to start, is not over whether that fragment is too beautiful to be destroyed, but rather whether, for its value in understanding the life and work of V.V. Nabokov, it should be preserved regardless of either its aesthetic value or the wishes of its creator. Similarly, the decision whether to throw Titled Arc in the sea has nothing to do with whether it is beautiful: it has to do with whether, regardless of whether Titled Arc is beautiful, it was acceptable to ruin a large number of people's daily lives in order to keep it in a destructively impractical and socially harmful place.

Subjective Aesthetic Theory and Property Owner’s Rights

A subjective theory is seemingly more amenable to the property owner’s stakes. Arguably, when an artist sells his artwork he is giving the power of subjective judgment to its new owner. Thus, if the owner sees the art in a subjectively negative light, he has the right to destroy it. This is too easy, however, for why should the artist’s subjective opinion be of lesser value then the property owners? In the case of graffiti, the answer is more clear-cut because the artist has squelched any moral rights he might have by violating the owner’s property rights. Other cases, however, are not so clear and the application of a subjective theory is informed by other considerations such as the audience and aim of the artwork.

VARA and Aesthetic Theory

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.”

• Correct. This was the objection that should have motivated a change in front. What follows is an unconvincing attempt to resuscitate a theory that should have been abandoned.

On the other hand, its [justifications allude to the protection of societal interests warranted by an application of objective theory.

• That's outright smuggling. Neither the text of the statute nor the particular extra-legislative gloss that happens to be put on it by the remarks Andrew located for you gives you any warrant for the intrusion of the ignis fatuus of objective aesthetic theory. With respect to the integrity right to prevent destruction, the statute speaks in terms of works of "recognized stature," which while undefined certainly does not call upon a court to find whether a work is beautiful, but only whether it is famous. With respect to the other "moral rights" established under the statute, as with "moral rights" under Roman(t)ic European copyright law, no aesthetic judgment of any kind is implied, because the right rests in a supposed moral entitlement in the creator, not in a collectivity brought vis-a-vis with the eternal in the guise of the objectively beautiful.

Additionally, subjective 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. 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.

• Nonsense. They are making a legislators' distinction between works which necessarily exist in a single copy or small number of physical embodiments, and works which, while "fixed in a tangible medium of expression" as required by the law of copyright, can be refixed in an infinite number of identical copies if any one survives. Works of literary art as well as audiovisual works are distinguished from the subject matter of the statute for reasons that have nothing to do with either tradition or a ranking of art forms. You are grasping at straws.

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. Finally, the Act’s exclusion of site-specific and commissioned artwork also suggest a rejection of objective aesthetic theory, for society’s interest in the objective aesthetic value of such pieces of art should seemingly trump the fee holder’s right to destruction. Yet the Court has held otherwise: an artist has little right over a commissioned piece of artwork and much can be legally done to site-specific which the artist would liken to destruction. These provisions when taken together reject a purely objective aesthetic theory of art.

• This is a false confusion borne of the attempt to make the statute speak on aesthetic questions that it does not concern. You smuggled the entity into the discussion, responded ineffectively to the perceived objection that it shouldn't be there, and are now confusing yourself and the reader with a conclusion that has no basis in the material you invoked. Leaving only....

Conclusion

In an objective aesthetic theory, where the value of the art is independent of human perception, and art is preserved for art’s sake, artist’s rights and societal interests are relevant. When VARA applies a subjective aesthetic theory to artwork, however, the right of destruction more often than not lies with the property owners.

• That you have not established that there is such a thing as an objective aesthetic theory, only that the conception of an objective aesthetic theory is not (to you) an impossibility. You don't confront the usual reasons given for the impossibility of an objective theory of aesthetic merit, and (of course) you don't have such a theory available with which to confound objectors, so you leave us with an entire argument constructed at its best on the basis of the potential importance of an entity that you have given us no reason to believe exists.

---