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D onna and S tephen T oulmin Harris Bank Facelift Raises Legal Questions October 1981 The mutilation of portraits is an old story. It has been done both by owners and by painters themselves. Whistler defaced his own portrait of Lady Eden in a quarrel over the fee. It is rumored that, in the basement of Emerson Hall, there is a group picture of the pre-World War II Harvard philosophy department in which the likeness of George Santayana has been replaced by a row of bookshelves. So, the recent scandal over the transformation of Martyl’s portrait of former Harris Bank president, Paul Russell, from a human being to a harlequin, is nothing new. The story broke on the front of the Chicago Tribune Business Section for July 6, 1981. It had been the bank’s tradition to commission portraits of its chief executive officers, and Martyl was invited to produce this painting without any particular limitations on her treatment of the subject. At first, all went well between artist and patron. On its completion, the painting was warmly praised by the chairman of the board, and by Russell’s family and friends. However, problems arose when the bank decided to hang the portraits of all the bank’s presidents in chronological sequence. Given this “rogues’ gallery” treatment, Martyl’s painting put all the others in the shade; and the bank asked the artist to “make the background more mellow.” She demurred on painterly grounds, arguing that any problem had been created by “an unsatisfactory grouping” of the portraits, and that darkening the background would not improve matters, since her technique on the entire canvas was so different from that used in the other paintings. “Any change,” she warned in a letter answering 122   T h e E s s e n t i a l N ew A rt E xaminer the bank’s request, would affect the whole picture “and almost certainly ruin the portrait.” A better solution would be to hang the Russell portrait separately. Nothing more was heard from the bank, until rumors began to circulate that it had arranged for someone else to make the changes it had requested; and, as matters turned out, the portrait had indeed been ruined. Not only had the background been sanded down and repainted a “patent leather” black, but all marks of maturity and character in the face and hands had been crudely over painted. In recent years, there has been much discussion among artists and lawyers about legal protections aimed at securing for artists two distinct interests: a share in the proceeds from lucrative resales, and some kind of control over the attribution, publication, conservation and restoration of their works. (For cases and materials, see J.H. Merryman and A.E. Elsen, Law, Ethics and the Visual Arts, 1979.) In the present episode, only issues of the latter kind are involved. What kind of interest, then, do artists have in protecting the integrity of their own works? What is to happen when this interest comes up against the right of patrons to do as they please with “goods” that they have ordered and paid for? The Harris Bank story clearly illustrates how such conflicts can arise, and how little the law can help in resolving the disputes that result. The problem of preservation affects artists working in different media in quite different ways. Architecture is one extreme case. There, the scale of the patron’s financial stake is usually so large that it can outweigh the architect’s hope of seeing his conception scrupulously executed, let alone preserved. This can lead to very rough justice—e.g., in cases where the architect is replaced at a late stage in a major construction project, as happened with the Syndey Opera House. However, there is probably no country in which an architect has an enforceable “right” to carry through a brand new building at the owner’s expense, once the patron has decided to withdraw the commission. So, as a general rule, the owner’s right to use, and change, a building as he pleases can be restricted only once that building has been accorded landmark status. At the other end of the spectrum, copyright and the use of guild contracts give the work of writers and musicians a measure of protection that is not available to architects. Painting and sculpture fall between these two extremes; and it is there that the hardest cases arise. French law has traditionally...


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