Is it art or can it go?

For an untrained eye, this question can often be difficult to answer. Works by Joseph Beuys have repeatedly fallen victim to over-zealous cleaning staff. In most cases, the parties came to an agreement. In a comparable case, the Regional Court (LG) Heilbronn now had to decide.

A artist created a floor installation and exhibited it in a church. The floor installation consisted of 64 square tiles in black and white on which a poem by the artist was attached. The artwork was secured to the church floor using double-sided adhesive tape. It was part of a 6-week exhibition in the neighbouring castle.

When the artist wanted to collect his work two months after the exhibition began, he was unable to find it. As it turned out, an over-zealous verger of the church had in the meantime removed and disposed of the work with the aid of solvents and a scraper. Both the church and its insurance company refused to accept liability and declined to reimburse the damage claimed by the artist at €5,000. The church and the verger also showed little understanding for the artist's action. It was incorrectly argued, among other things, that the artist had never intended to use the work again. This would not have been possible anyway, since the artwork could not have been removed from the floor without damage. Furthermore, the artist had suffered no damage, as he could restore the work at any time.

Court decision

After the court had first obtained an expert's report on the removability of the work and another on its value, it decided by judgment of 13.03.2014 (2 O 72/12 Le) that the defendants, jointly and severally, must reimburse the plaintiff's damages in the amount of €4,500 as well as the out-of-court legal costs arising therefrom.

The court was also unclear as to the grounds on which the verger unilaterally removed the work without informing the artist beforehand.

The artwork had not passed into the ownership of the church either by virtue of its connection to the church floor or by virtue of an agreement between the parties, so that the artist remained the owner of his installation.

The damage also did not fall away due to the possibility of the artist creating a copy of the work. The disposed installation was an original, which could at best have been copied but could not have been recreated as an original.

With regard to the amount of the damage, the court oriented itself to the price range identified by the art expert of between €3,500 and €5,500. In doing so, the court noted that the determination of a price range was virtually imperative given the expert's finding that the price of a work of art is determined not only by quality criteria, significance, format, marketability and innovative power but also by many irrational factors and the respective demand, and in no way would it render the expert report unusable. The plaintiff was by no means to be awarded only the lowest amount of €3,500 as a kind of 'minimum damages'.

The court ultimately estimated the damage at the compromised amount of €4,500.

Conclusion

Works of art are always unique items, whose destruction always results in a claim for damages by the owner, whether it is the artist himself or another person. The fact that the artist is in the special position of being able to copy the artwork without thereby infringing copyright does not preclude the claim for damages.