Is there a law against destroying works of art of historic importance when you are the owner?

Question

At work we recently had a bit of a debate about whether or not it would be legal to destroy a work of art if you are the owner of said work.

A few years ago, Banksy destroyed his own painting by shredding it, and recently there have been several instances where people have vandalized paintings by throwing paint, or by gluing themselves to a work of art.

Suppose I was the legal owner of (for example) a Van Gogh, or Michelangelo's David, would it be legal for me (for whatever reason) to destroy it, even though it is a work of art which is of both great financial and historical value?

For the sake of simplicity, let's assume that the work of art is not insured, so there's no insurance fraud to deal with.

Basically I'm just curious to learn if it would be legal or not. Obviously laws differ from country to country, but I'd still like to know if there's some sort of worldwide consensus, and if there are countries who have very different laws on this subject.

Answer 1

In general, ownership of a thing includes the property right to dispose of or destroy the thing. However, there may be statutory prohibitions for special categories of property.

Many countries have entered into treaties that obligate them to identify, protect, and conserve for future generations the cultural heritage in its territory. This includes "architectural works, works of monumental sculpture and painting." See e.g. Convention Concerning the Protection of the World Cultural and Natural Heritage. How this protection is realized is dependent on the nation's domestic implementation.

For one example of a protection regime, see british-columbia. When a work has been designated as a "Provincial heritage object" on the Provincial heritage register (Heritage Conservation Act, s. 3(1)), the owner is prohibited from damaging, desecrating, or altering that work without a permit (s. 12.1(2)(a)).

There is also a complex web of import and export restrictions relating to objects that a country has identified as cultural heritage. Many countries make it an offence to import an item from another country that has identified the object as cultural heritage without an export permit from that other country. That export permit will often not be provided to an entity without demonstrated capacity to preserve the cultural property. The permit can also subject to conditions (presumably, at least to not destroy the thing). See generally "Guide to Exporting Cultural Property from Canada," "Cultural property export permits."

I am not familiar with the United States' implementation, but it is a party to the World Heritage Convention and has passed various statutes dealing relating to the protection of cultural moveable property.

Answer 2

In japan a (nonliving) national treasure must be preserved

The moment an item is declared a (physical) national treasure, exporting it becomes illegal, and you also must preserve it in good condition. In return, you can apply for governmental help in preserving the item. If you don't repair the item after it incurred damage, the state can order you to repair it, or repair it on government mandate and then bill you - or confiscate the item in lieu of payment. If you want to sell it to anyone inside Japan, the government can veto the sale and buy it instead. You can't sell a national treasure to anyone not in Japan or take it with you outside of the country.

This does not apply to the living national treasures, which are (at most 116) artisans and performers of rare specialization and skill. They are not forced to live, though they are encouraged to train another generation of their art and gain a stipend for their excellence.

Answer 3

In germany, there is the concept of nationales Kulturgut ("national heritage asset") - these are objects considered to have a special artistic, historical or archeological value. However, it only covers objects that are explicitly listed as such, or are owned by the state. Interestingly, works may only be listed with the approval of the author (if they are still alive).

These objects are protected by the Kulturgutschutzgesetz, which among other things outlaws destroying or damaging them (§18). The punishment is up to 3 years in prison (§83).

So destroying a painting would be illegal, provided the painting is listed as a Kulturgut. The list of protected works is available online - Datenbank geschützter Kulturgüter.

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In addition to that, there is StGB § 304 Gemeinschädliche Sachbeschädigung, which punishes the destruction of cultural objects which are on public display - however that would not apply to a privately owned work which is not on public display.

Finally, the Kulturgutschutzgesetz only applies to movable objects. For immovable objects, such as buildings and archeological sites, there is the concept of Denkmalschutz ("monument protection"), which regulates the modification and destruction of these objects. Like the protection of Kulturgut, it only applies to buildings or sites listed explicitly.

Answer 4

france

Most other answers have dealt with heritage / culture preservation criminal laws. However, there is another aspect from the artist’s rights in a civil trial.

It (probably) goes against moral rights

"Moral rights" allows an author or their heirs to ensure that her or his work of art is not denaturated. Moral rights are eternal (no fixed duration as for copyright or other intellectual property). For instance:

• At a charity auction, some well-known artist paints something on a fridge. You buy the fridge and decide to cut it to sell separate parts of the work of art. The artist can sue you and successfully prevent you from making that sale, because the work of art had been "mutilated" (here for the procedural history)
• You are the mayor of a mid-size town. The town square has a sculpture of an egg, in stone grey. You paint it blue to give more color to the town square (blue is also the color of your political party, which makes it a juicy newspaper item, but that’s legally irrelevant). The artist can sue you and win.
• You are the director of an hospital. In the courtyard, there is a statue. Medicine students have taken up a tradition of disguising and applying makeup to the statue twice a year. You clean the statue each time afterwards and ask the students to stop. If it keeps going on, the sculptor’s son can still sue and force you to take effective measures to put an end to this (and get some small amount of damages, too). Some of the evidence in that case were social media screenshots, offered as proof that the disguising of the statue was well-publicized and hence there was a significant prejudice against the artist’s original intent.

I could not find a court case specifically on ''destruction'' of a work of art. If that destruction was in any way publicized/spectacular/a piece of performance art itself (as in Banksy’s "going, going, gone" stunt), that would definitely count as denaturating the artist’s intentions (of course, the shredding was done here by the artist or on his bidding). One could certainly argue that just putting it in the bin (without fanfare) would already be a serious attack on the artist’s moral rights.

Answer 5

Not in the US.

The closest I can think of is the preservation of historic buildings. Many cities have rules about changing the external appearance of a building you own without a permit.

Answer 6

In germany (like in France),

The author has the right to prohibit the distortion or any other derogatory treatment of his or her work which is capable of prejudicing the author’s legitimate intellectual or personal interests in the work.

(UrhG §14)

Since this is copyright, it applies only to rather recent historical art (author died at most 70 years ago).

In 2019, there was a BGH ruling saying that the interests of the owner to do as they like - including destruction - has to be weighted against the artists rights according to §14 UrhG. (Before that, there was a ruling from 1912 that held that the owner can do as they like)

specifically:

a) Die Vernichtung eines urheberrechtlich geschützten Werks stellt eine "andere Beeinträchtigung" im Sinne des § 14 UrhG dar. Bei der Prüfung, ob die Vernichtung geeignet ist, die berechtigten persönlichen und geistigen Interessen des Urhebers am Werk zu gefährden, ist eine umfassende Abwägung der Interessen des Urhebers und des Eigentümers des Werks vorzunehmen.

b) Bei der Interessenabwägung ist auf Seiten des Urhebers zu berücksichtigen, ob es sich bei dem vernichteten Werk um das einzige Vervielfältigungsstück des Werks handelte, oder ob von dem Werk weitere Vervielfältigungsstücke existieren. Ferner ist zu berücksichtigen, welche Gestaltungshöhe das Werk aufweist und ob es ein Gegenstand der zweckfreien Kunst ist oder als angewandte Kunst einem Gebrauchszweck dient.

c) Auf Seiten des Eigentümers können, wenn ein Bauwerk oder Kunst in oder an einem solchen betroffen ist, bautechnische Gründe oder das Interesse an einer Nutzungsänderung von Bedeutung sein. Bei Werken der Baukunst oder mit Bauwerken unlösbar verbundenen Kunstwerken werden die Interessen des Eigentümers an einer anderweitigen Nutzung oder Bebauung des Grundstücks oder Gebäudes den Interessen des Urhebers am Erhalt des Werks in der Regel vorgehen, sofern sich aus den Umständen des Einzelfalls nichts anderes ergibt.

d) Im Rahmen der Interessenabwägung kann sich auswirken, ob der Eigentümer dem Urheber Gelegenheit gegeben hat, das Werk zurückzunehmen oder - wenn dies aufgrund der Beschaffenheit des Werks nicht möglich ist - Vervielfältigungsstücke hiervon anzufertigen.

deepl translation with my help:

a) The destruction of a copyrighted work constitutes an "other derogatory treatment" within the meaning of Section 14 UrhG. When examining whether the destruction is sufficient to endanger the author's legitimate personal and intellectual interests in the work, a comprehensive weighing of the interests of the author and the owner of the work must be carried out.

b) When weighing the interests of the author, it must be taken into account whether the destroyed work was the original/only copy of the work or whether other copies of the work exist. Furthermore, it must be taken into account what level of originality the work has and whether it is an object of non-purposeful art or, as applied art, serves a utilitarian purpose.

c) On the part of the owner, if a building or art in or on a building is involved, constructional reasons or the interest in a change of use may be of importance. In the case of works of architecture or works of art inextricably linked to buildings, the interests of the owner in a different use or development of the land or building will generally take precedence over the interests of the author in the preservation of the work, unless the circumstances of the individual case indicate otherwise.

d) Within the framework of the weighing of interests, it may have an effect whether the owner has given the author the opportunity to take back the work or - if this is not possible due to the nature of the work - to make copies thereof.

Answer 7

While this is, technically, not an answer to your question it may be interesting in the context because it expands the scope of the legal discussion.

In some jurisdictions, especially those in nations with religious governments, the (religious) law may not only not protect but actually demand or suggest the destruction of some art, even invaluable art. Examples are the Buddhas of Bamiyan, and in some Muslim places probably depictions of the prophet Muhammad or of God.

Some secular governments legally targeted certain art, for example the Nazis with the Gesetz über Einziehung von Erzeugnissen entarteter Kunst in 1938. Most of the "degenerated art" was probably sold and not destroyed though. This law is remarkable because it was nominally in force until 1968.

It is likely that most ideologically driven governments targeted art in one way or the other. Another prominent example is communist China. While there may not have been an explicit law concerning undesirably art, the law, as far as it was codified at all in times of turmoil, certainly didn't protect it.

The "socialist" regime in East Germany destroyed what was left of the Berlin Castle after the war, at least partly for ideological reasons, an act that was lamented by many in the West.