Response to “Posthumous Art Law: What Happens to a Dead Artist’s Art?”
Professor Peter Karol and Doctor Sharon Hecker joined the On Remand, the New England Law Review Podcast, in 2020 to discuss their co-authored book, Posthumous Art, Law, and the Art Market: The Afterlife of Art. Professor Karol is a legal expert in intellectual property law, and Dr. Hecker is an internationally recognized art historian; yet their discussion elicits debate that can be considered by anyone who has stepped foot in a public museum or purchased a work of art themselves. Dr. Hecker defines posthumous art as a work created after the artist's death from the artist's original molds, negatives, or plans. Sometimes, this is done according to detailed instructions left by the artists themselves; other times, the artists are silent about what or how their work could be recreated, sparking moral and legal dilemmas as the new works enter the art market. The discussion impresses on listeners the complex legal and historical implications of producing art after the artist's life,
Dr. Hecker calls into question our common use of the word “original” to describe a work of art because it carries a host of implications. Original may have a different legal meaning from state to state and from the legal to the art world. How much transformation of an artist's original work is required for the new work to become…original? Does it matter if the posthumous artist followed the deceased artist’s instructions precisely or ignored them completely? What if the deceased artist never contemplated the recreation of their work? Professor Karol and Dr. Hecker recognize that these questions cannot be answered by some broad, sweeping paradigm or legal framework, and their book does not profess to create one. Instead, they set out to tell the complex stories that arise from art derived from and created beyond the artist's lifetime and underscore an artist's legal and moral rights to control their work beyond the grave.
Professor Karol and Dr. Hecker’s podcast episode makes clear their book merely scratches the surface of what they duly term “the unruly afterlife of art.” Listening to this episode, I thought back to when I stood in the New York Museum of Modern Art in front of Andy Warhol’s Campbell’s Soup Cans. Was I looking at an “original”? Warhol made a career out of replication and transformation in acknowledging that there is something intrinsic in art that begs recreation. Art students often begin their journey by sketching and painting great works of art. Is imitation of an artist’s work after death the sincerest form of flattery? Does the living artist’s desire to recreate a work honor or snub the deceased artist’s intent? As Professor Karol and Dr. Hecker might agree, when each case is as unique as a work of art itself, we are likely left with more questions than answers.
