This article is taken from Paul Howcroft’s blog Art Law London.
There was an interesting article in The Telegraph last week about a work called Bombay Mix, by Damien Hirst, and the dispute between his certification company, Science Ltd, and a Mr and Mrs Simpson who possess the work.
According to the article, in 1988, Hirst was commissioned to paint Bombay Mix, an early spot painting, on some wallpaper in a house owned by Mr and Mrs Ritblat. Science claims that, before the house was sold, it was agreed with the Ritblats that in return for the painting being destroyed they would be given an alternative portable painting. The wall painting was not destroyed and was still on the wall when the house was bought by the Simpsons in 2005. In 2007, the Simpsons employed specialists to have the painting removed from the wall and mounted on backing board. The Simpsons now want to sell it.
In the circumstances, Science has refused to issue a certificate of authentication, has claimed ownership and demanded the painting’s return for destruction.
This case raises several issues but, before commenting, I must make two assumptions: that the facts in the article are correct and there are no other relevant facts. As a lawyer who has had cases reported in the press, I know just how big those assumptions are.
The first issue is whether the painting became part of the building, which is part of the land. If so, it lost its separate identity and any possible separate ownership. The first consideration is how easily the item could be removed, for example compare a light shade that could be detached and the light fitting fastened to the ceiling. For art, one can also consider whether it is decoration or enhancement of the building, for example compare a hung tapestry to a plaster frieze. Wallpaper forms part of the building, and the fact that specialists were required to remove it intact proves the point. If Science’s agreement with the Ritblats gave it some right over part of the house, it could have protected its interest by registering it at the Land Registry, which would warn any purchasers of the house. Failing to do that would result in house purchasers acquiring ownership of the painting. So I think the Simpsons must now own the painting. They were free to take the painting from the wall and create a separate item capable of future separate ownership.
Can Science refuse to issue a certificate of authentication, when it knows that the work was by Hirst? Yes it can, because it is under no duty to the Simpsons.
However, I do not agree with the suggestion in the article that the Simpsons cannot say that the painting is by Hirst, cannot own it and cannot sell it without a certificate from Science. It is typical of artists and their foundations or estates to try to impose a regime to give them control over the marketing of the artist’s works. However, they can only base such restrictions on agreements, and cannot bind strangers. In this case, with all the publicity, and the claims made by Science, no one can question the authenticity and provenance of the work. That said, whilst there remains a dispute as to ownership, whatever the merits, buyers will be discouraged, and that might be the only advantage Science has, until the matter is settled or comes to court.
Paul Howcroft, Partner, Fladgate LLP (firstname.lastname@example.org)