I. INTRODUCTION 2 II. THE STORY OF WALL DRAWING #679 4 III. COPYRIGHT (AND PROPERTY) OR IS IT PROPERTY (AND COPYRIGHT)? 10 A. OWNERSHIP PATTERNS 10 B. REFINING AUTHORSHIP OF CONCEPTUAL ART 21 C. DECIDING AUTHORSHIP 26 D. OWNERSHIP PATTERNS IN WALL DRAWING #679 AFTER THE DEATH OF STERN 30 IV. INTERESTS IN THE DESTRUCTION, MUTILATION, AND RESTORATION OF TEMPORARY WORK 34 A. CONCEPTUAL ART, OWNERSHIP INTERESTS, TEMPORALITY, AND RESTORATION 35 B. MORAL RIGHTS: ATTRIBUTION, MUTILATION, DESTRUCTION, AND RESTORATION 47 1. ATTRIBUTION 50 2. MUTILATION AND ATTRIBUTION OF RESURRECTED TEMPORARY WORK 59 3. WORKS IN OR ON BUILDINGS: MUTILATION AND DESTRUCTION 61 V. CONCLUSION 64

I. INTRODUCTION

This meditation on transitory art begins with Sol LeWitt. His conceptual art is representative of a large strain of creative endeavors that emerged after 1950. To this day it engages artists, gallerists, collectors, and museum curators worldwide. "Ownership" of his art was not always evidenced by possession of a physical object like a painting or a sculpture, but by possession of documents--a certificate of authenticity and a diagram in the case of LeWitt. Together these documents contained (typically partial) instructions on how to fabricate or install his work. Possession of a certificate and diagram gave their owner a guarantee of provenance and the authority to arrange for installation of the work with the artist or the artist's successors in interest--nothing more. (1) In addition, the actual installations of such works typically were not accomplished by the artists who made the certificates and diagrams; these installations were usually completed by others. Whether the installed work was a wall drawing by LeWitt, a construction by Donald Judd, (2) or a lighting work by Dan Flavin, (3) the pieces were often described by the artists as temporary, movable, or destructible after their installation. Such projects were distinctly different from routine art sales by galleries or auction houses. Rather than obtaining a painting or sculpture, a buyer obtained only the right to seek its creation and installation. It was the creative plan that was the artistic product, not an extant creative work.

The unusual structure of conceptual art endeavors raises a set of conundrums governing a great deal of contemporary artistic work. First, what are the property and copyright ownership structures of a work of conceptual art? Those structures are controlled in various ways by pulling apart ownership of the certificate and diagram on the one hand and control over installation of a work on the other. Second, given the divided ownership patterns of much conceptual art, who might be designated as author of a copyrighted work? That issue also is complicated by the splitting apart of control over the certificate and diagram from installation of a work. Additional problems are raised by the fact that such works typically were and still are installed by persons other man the artist who devised the creation. Does that mean authorship of a copyrighted work might be split between well-known personages like Sol LeWitt and those who actually fabricated their...