Not just a lot of balls; a licence to chill.

Here’s an extraordinary thing. This article in the Telegraph the other day is about a bust-up that Damien Hirst is having with the current owner of one of his spot-paintings.


Damien Hirst (c) Science Ltd, reproduced from the Daily Telegraph.

From the article it seems that in 1989, Damien Hirst painted a spot-painting Bombay Mix onto the wall of one Jamie Ritblat as a present from Mr Ritblat’s parents.

This is an early work, painted only a year after Hirst staged the famous Freeze exhibition, which catapulted him into the public eye and made him a household name. Even at this stage Hirst has complete control not only of the appearance of his painting – the size, position and colour of the spots – but also of the work’s lifetime: ‘This piece must be painted out before it is re-made for anywhere else.’

And Hirst fulfilled his part of this clause when Mr Ritblat moved house by providing him with another version of the painting, on canvas, and – I presume – a second certificate authenticating the new painting.

But Mr Ritblat did not fulfil his part of the bargain, and left the spot-painting on the wall, without painting it out. At this point the painting ceased to be covered by the original authentication certificate, whose ownership reverted to Hirst’s company Science Ltd.

Fast forward to 2005 and the new owners of the house Jess and Roger Simpson had the painting taken off the wall and mounted on board. They decided to sell it, but were stymied when Hirst’s company Science Ltd told them that they had no ownership of the work, since they did not own the authentication certificate. Without a certificate it could not be sold as an authentic Hirst. Instead of being worth many millions – as a defining early work, painted by the artist’s own hand rather than by his assistants – it is centre of a long-running dispute. The Simpsons are unable to sell something that they do not have legal title to, and Science Ltd want them to return it to Hirst so it can be destroyed.

This seems rather barmy at first. Refusing to authenticate a work of art is one thing. A painting can still be by Andy Warhol, for example – someone who was there at the Factory might remember him having a hand in it – but if the Andy Warhol Foundation does not officially acknowledge it, then it cannot be sold as such. But this is rather different; no one here is denying that Hirst himself painted the spots. In any other context, the dispute is its own authentication.

If this was an Old Master that you were trying to authenticate and sell, then discovering that it had been involved in a legal dispute between the artist and its owners would be one of the Holy Grails of attribution. Hooray – a paper-trail. No doubt at all that the named painter was the artist. Perhaps the Simpsons should just sit on the painting for a century or so. Turn it into an heirloom to be redeemed long after all the legal restraints have expired. Hirst himself might appreciate this option, since it presumes he will still be as famous, and his work will necessarily be even more valuable in the 22nd Century art market.

Hirst might appreciate this. Because as I looked at this, something which I’d first thought of as proof of the craziness of the modern art world suddenly made me warm to Damien Hirst. Ever since William Hogarth and his fellow engravers got Parliament to pass the first Engraving Copyright Act 1734 (known as ‘the Hogarth Act’), artists can expect to have control over the copying and commercial exploitation of their work after they’ve created it. These days, all reproductions of a painting are copyright for the artist’s lifetime, and for 70 years after their death. And through Droite de Suite artists are entitled to a share of the proceeds when their work is sold on the commercial market. This practice was started in France in the 1880s in order to support starving artists. The spur is said to have been the sale in of The Angelus by Jean-Francois Millet (1814 – 1875), showing two peasants hearing the Angelus bell at the end of their day in the field. Millet had sold the painting in 1865 for 1,000 Francs, but it resold at auction in 1889 for 553,000 Francs. Meanwhile Millet’s family were on the breadline.


Musee d’Orsay.

Incidentally, the site I took this image of The Angelus from says that the image is now in the public domain. Possibly. But even when the copyright on a painting has expired, the photograph of the painting might be copyright. Perhaps the photographer donated it. But as a photographer’s fiancé I’m reminded that photographers own the right to their work just like any other artist.

But back to Hirst, and this is why I admire him in this instance. Hirst has done something slightly different here. Instead of giving the patrons straightforward ownership, Hirst – if I’m getting my law right – has given them a licence to enjoy his work subject to particular conditions. If the conditions aren’t followed, the licence is withdrawn. The certificate shows it was never his intention to allow the patron to remove the work from their wall – it was to be obliterated and replaced by a further, certificated painting. It’s all very clever, and why not? It isn’t the artist’s job to make money for future owners. It’s his job to safeguard his own income and protect the value of his work.

When he writes about William Shakespeare’s property portfolio, Schoenbaum quotes JO Halliwell’s remark that ‘Habits of business are not incompatible with the highest genius’ (William Shakespeare: A Compact Documentary Life p.220). Whatever you think of Hirst’s work he is a genius, and he is responsible – almost singlehandedly, because he is the best-known of the YBA – for making art something you can actually argue about with strangers as if this was Nineteenth Century Paris or Renaissance Florence. The way he keeps it working for him after he’s finished it is all part of the process, and good luck to him!

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