STATEMENT ON STANDARDS FOR THE PRODUCTION AND REPRODUCTION OF SCULPTURE
Adopted by the Board of Directors on February 17, 2013.
The history and practice of sculpture has a complexity and variety that differs from other visual-art forms. Within the practice of sculpture, while it is certainly possible to create a single and unique object, it is common to produce a single sculpture in a limited, numbered edition of identical multiples. The production and editioning of sculpture can involve bronze casting but can also utilize other materials and methods of fabrication beyond various kinds of mold-making and casting, including more recent computer-based output processes such as rapid prototyping and three-dimensional printing.
Sculpture, whether an object or an edition, may entail creation by a single artist, an artist collaborating with expert technicians and craftspeople, or an artist conceiving of a sculpture and then realizing it without direct involvement in the physicality of the production, similar to the way in which an architect designs a building but does not build it alone. All of these conditions create a context that must be understood when determining whether or not a sculpture is authorized and endorsed by the artist, and whether or not the work is authentic. In some cases originality and authenticity may not be relevant to the particular object in question.
Objects created in antiquity differ from modern and contemporary sculpture in that the maker’s identity may not be known or knowable. Concerns with regard to authenticity, however, underscore the need to assert standards for how and when a sculpture may or may not be restored or reproduced, either in the era of its making or later by heirs, owners, and institutions. The reader may find accepted standards, such as those published by the European Fine Art Fair (TEFAF), useful in addressing historical objects.
For both classical and postclassical objects, it may be advantageous to have the ability to assert that a work of art is authentic as such an assertion defines value, both aesthetic and economic. In light of these issues, College Art Association’s A Statement on Standards for Sculptural Reproduction and Preventive Measures to Combat Unethical Casting in Bronze (the “1974 Statement”) has largely remained intact since its adoption in 1974. The practice of creating form through computer-based technology, an important development since 1974, is addressed below. As the 1974 Statement, when adopted, pre-dated the enactment of the Copyright Act of 1976 of the United States Code (which became effective October 1, 1978), it was revised in 2012 to reflect current United States copyright law and practice. The Statement continues as a point reference for certain issues and terminology surrounding the production and reproduction of sculpture.
At the time of this writing, there are no firmly established standards for digitally reproducible sculpture. For sculpture that is created digitally by the artist and then transferred to another for output, a file is usually sent to the producer. Often there is only a verbal or email agreement that the file will be printed on a particular machine and at an approximate size. Exhibition agreements for this form of sculpture are in the same format as exhibition agreements for other types of art. Typically, once an exhibition is finished, the printed file (the sculpture) is returned to the artist.
A difference between digitally created sculpture and more traditional forms of sculpture is that like many digital art mediums, artists commonly share source code with other artists so that the work is open source—reproducible and modifiable by anyone who cares to do so. When this is the case, authenticity and originality may no longer be relevant and, in fact, may be antithetical to the point of the art.
Artists, curators, and estates concerned with asserting the authenticity of digitally created sculpture could maintain a system similar to that used for two-dimensional digital prints or the editioning of traditional prints, photographs, and sculptures whereby works are numbered with an accompanying certificate of authenticity. In this way, the 1974 recommendations listed in the section “Measures to Inhibit International Traffic in Unethical Sculptural Reproduction” should be applied to all forms of sculpture production and reproduction, regardless of whether or not the art consists of cast bronze or other processes and materials, unless the artist intends for the work to be open source and, therefore, without restriction.
A STATEMENT ON STANDARDS FOR SCULPTURAL REPRODUCTION AND PREVENTIVE MEASURES TO COMBAT UNETHICAL CASTING IN BRONZE
Approved by the CAA Board of Directors on April 27, 1974. Endorsed by the Association of Art Museum Directors and the Art Dealers Association of America. Edited in 2012 by a sub-committee of the CAA Professional Practices Committee.
Part I: Background
The art world is concerned with the past, present, and future abuse of sculptors’ rights as a result of unethical reproduction of their work. In the past, the demand for casts of sculpture by important artists either living or dead far exceeded the supply. Such issues remain notwithstanding the enactment of the Copyright Act of 1976, which prohibits the unauthorized reproduction of sculpture in the United States.
Before the Copyright Act, responses to this demand may have included recasting or unauthorized new casting of works. Under the Copyright Act, an unauthorized reproduction, including a new casting of a work, whether by the owner of an original or a copy and whether plaster or bronze, is an infringement of the artist’s copyright. Beyond noting these legal protections for artist, this Statement is intended to promote the rights of the artists and their heirs, deter those with well-intentioned or base motives who contravene their rights, and maintain public confidence in the legitimate reproduction of sculptors’ works, by providing standards for sculptural reproduction.
The Problem of Definitions
In evaluating sculptural reproduction we face such difficulties as historical and customary usage challenging dictionary definitions. The word “replica,” for example, is often used to signify an anonymously made commercial imitation or reduction of sculpture in a museum or other public place, but it is sometimes also used to indicate a casting made by the sculptor. Another example of confusion over definitions occurs in response to the question of what constitutes an original bronze sculpture or an original print; the crux of the problem is that casting and printing are reproductive methods, and the word “reproduction” does not convey in the public’s mind the values associated with the word “original.” Even when used with a contemporaneous cast by Rodin or etching by Rembrandt, the word “reproduction” suggests to many people that they are not looking at the real thing. Uniqueness or rarity are so prized by the public that many individuals are dismayed to see the same works by Rodin and Rembrandt in several museums.
Some argue that the impermanent clay or wax sculpture first made by the artist, or the actual plate or stone on which the printmaker drew, are the true and only originals. (In the case of prints made by transfer paper or a technician redrawing the artist’s work onto the block or stone, one could challenge even this narrow definition.) These examples define “original” as the first of its kind, or as an object that is a representation or a reproduction of the original. Hence the plaster and bronze casts and the print on paper would be termed reproductions. Such a definition honors chronology and satisfies logic, but it does not take into account other historical uses of the term and the attitudes of many artists. As he or she models in clay or wax, the experienced sculptor has in mind what the work will look like in bronze or some other medium in which the artistic vision will be realized. The printmaker, when working on stone or plate is also thinking of the image as it will look on the paper that will receive the final impression. In the foregoing circumstance, the wax, clay, and plaster sculptures may be viewed as preliminary versions of the bronze that then becomes the finished work of art and is considered the original. Similarly, the print rather than the plate or stone may be viewed as the original in graphics.
Unless a sculptor casts only one bronze, multiple casts of the same subject are not considered unique. Specialists, however, believe that two bronze casts that are finished by hand cannot be exact duplicates of each other. Thus, the word “unique” has different meanings to individuals who have varying knowledge of, and involvement in, sculpture.
Some individuals consider only the first bronze cast as the original and all other casts as reproductions. (For purposes of determining whether a work of art is an original and, therefore, eligible for duty-free import into the United States, US customs laws now recognize as “original” up to twelve castings, reproductions or replicas, in any medium and any scale, and whether made by the sculptor or by another artist, and regardless of whether the artist was alive at the time of their making.) No hierarchical value was placed upon the order of casting. Many argue that as long as a bronze or a print is made from the plaster, plate, or stone on which the artist worked, the resulting works are originals. By this definition of original we do not know whether a bronze or print was made in the artist’s lifetime. Posthumous castings taken from the artist’s plasters may be called originals by this definition. Whether bronze castings or prints, lifetime editions are preferred by scholars, collectors, curators, and critics. In both media, however, as seen in the work of Rodin and Goya, there are works that were never bronze cast or printed in the artist’s lifetime. For the most part, posthumous editions have achieved market and qualified critical acceptance. (Favorable judgment has not been unanimous, however.)
Although the term “original” may be important to the public and to some professionals, many artists and individuals who are knowledgeable about casting place little value or only relative importance on the term. The specific information about when, by whom, how many, and how well a cast was made, and whether or not it compares favorably with the artist’s best work is more important to sculptors and those in the position to acquire, advise on acquisition, or write about casting. One cannot say that all sculptors believe that plasters are more important in esthetic value than their bronzes.
Undue emphasis seems to have been placed upon the word “original” as applied to sculptural and print reproduction in determining their desirability. Rather than try to substitute another term, we recommend that those concerned with the problem consider the specific circumstances under which each sculptor’s work has been reproduced.
Unethical Bronze Casting is an Infringement of Copyright
Sculpture, if an original work of art, is fully protected from unauthorized reproduction or the creation of derivative works under the Copyright Act of 1976. (Federal copyright protected sculptures created under the prior (1909) Copyright Act if they were published with a copyright notice.) When a sculptor sells or otherwise parts with ownership of a sculpture, the sculptor retains all copyright rights in the work unless the bill of sale specifies that the artist has transferred copyright rights (e.g., to create reproductions) to the purchaser.
Prior to the effective date of the Copyright Act, if a sculpture was published without copyright notice, it was in the public domain. In such case, the owners of plasters and bronzes may have been able to make new castings without being concerned that they were infringing the copyright of the sculptor. Frequently, owners justified this practice by stating that they wanted casts for their children, friends, or the local museum, and that they did not intend to sell them. It is clear that such casts are unethical and, since the Copyright Act came into effect, they infringe the artist’s rights. Should this practice be allowed the casts would invariably come to museums and the art market without full documentation and, due to ignorance, be accepted, bought, and resold as authentic artist-approved casts. In addition copyright law prohibits a foundry from making bronze casts from a plaster or bronze. Even if a customer provides proof of ownership of the physical sculpture, that does not mean that the customer owns the copyright in the sculpture and, therefore, absent ownership of the copyright, the customer would have no right to authorize the foundry to make a cast.
The Problems of Posthumous Casting
When an artist dies and leaves in his or her estate plaster sculptures intended for casting in bronze (whether or not this casting has been done before), and his or her heirs or executors, acting under the artist’s authority, cast the plasters into bronze, the posthumous casts may or may not be considered originals. These works are unquestionably less desirable than if made during the artist’s lifetime. One reason for the reduced desirability is that the artist was not alive to evaluate or guide the reproduction of the work. Bronze casting involves complex reworking, refinement, and patination or coloring of the new cast after it comes out of the mold in its brute state. This work must be done by highly skilled artisans who have access not only to the plaster model, but also to the artist’s standards of quality. If done under circumstances that clearly betray the artist’s intentions and compromise or differ from his or her standards, an original, posthumous cast is undesirable. If a sculptor finished his or her bronze casts or made drastic changes from the plasters, there cannot be a genuine posthumous equivalent of his or her lifetime standards.
Is all work done by an artist in his or her lifetime acceptable, and is all work done to the work after his or her death unacceptable? In the first case one can think of such undesirable practices such as an artist faking dates of work, permitting inferior reproductions of his or her art, and making bronze casts from other finished bronze casts without so identifying them. For example, an artist may make a surmoulage (casting from a cast) of a work if a bronze cast directly from a wax sculpture is lost, and only one bronze was made. (That would be a unique bronze.) Later, to obtain an edition, the artist would recast from the bronze. Failure to indicate that the work is a new cast, either on the new casts or in writing, could constitute misrepresentation of the new edition to its buyers. Artists have also reconstituted lost or destroyed works without identifying them as second versions. Another practice open to question occurs when artists carve sculptures and agree to their casting in order to have marketable editions and to keep the carvings for themselves. Here again, the artist and dealer have an obligation to the buyer to make this information known.
Under the Copyright Act, copyright in a work, such as a sculpture, endures for the life of the artist plus seventy years. When we recognize the rights of the artists to control the use of their work after death, and they give specific instructions to cast in bronze from approved plasters, the posthumous casts are authorized, valid, and legal. Posthumous casts made without the authorization of the artist’s heirs (assuming that they hold the copyright) would be infringing copies. Many experts or those knowledgeable in the field of sculpture tend to judge the case of each artist’s posthumous casting on its own merits. Important facts for their determinations include the degree to which the artist was involved in the casting process and the number of bronzes the artist habitually cast for each work. There is agreement among experts that the artist’s standards must be realized, and that heirs and executors should restrict posthumous reproduction to only one limited and numbered edition. (A limited edition would not exceed twelve casts, for example.)
Often a sculptor leaves his or her plasters to his or her heirs so that they may benefit from the income that results from sales of future casting and the artist’s increased reputation. Assuming that the heirs cast from the plaster in the manner prescribed or practiced by the artist (and that they have the legal right to do so because, along with the plasters, they have inherited the associated copyrights in the works), and that there is no diminution of quality in the posthumous casts, should they be rejected as morally undesirable? In this instance, moral viewpoints may have changed from the artist’s day to our own. Should the artist and his or her heirs be penalized for this change? Should we be bound by the tastes or standards of another era? These are philosophical questions that cannot here be resolved.
Often during his or her lifetime, a sculptor could not afford to cast some works in bronze, or there was no market to justify the expense of a bronze edition. Sculptors may have only made a few bronze casts for clients, but intended for additional casts to be made available or editions to be completed after their deaths so that museums and collectors could make their art more accessible to the public. Such motives should be condemned out of hand and the resulting casts be rejected on moral grounds. In many cases artists die before making their intentions known, or do so only verbally instead of in writing, or decide to say nothing. Posthumous casting is then a matter of judgment by their heirs or executors. In past practice, evaluation of the results seems to have been on a case-by-case basis. It is unfortunate that prospective buyers of posthumous casts made under these circumstances do not always know the facts.
What Are the Interests to Be Protected?
The first interests to be protected from abuse are those of the artist and his or her work. At stake is respect for the artist’s intentions and standards of quality and, ultimately, reputation. Linked with this is the protection of the sculpture itself so that it is not used for unethical or illegal purposes. We must also safeguard the public’s interest in knowledge ofartistic values and the enjoyment of the highest quality of art. The legitimate rights and interests of heirs or executors who are responsible for the artist’s work should be defended. We must also protect the interests of those who own legitimate casts against these objects’ aesthetic and financial devaluation.
Part II: Standards for Sculptural Reproduction and Preventative Measures against Unethical Casting
The Problems of Modern Sculptural Reproduction in Bronze: The Surmoulage By Means of a Bronze Cast from a Finished Bronze
One past abuse in the United States and abroad is that of casting bronzes not from the artist’s approved master plaster or waxes but from bronzes either made by the sculptor in his or her lifetime or by his or her estate. For many reasons this form of surmoulage is harmful:
- It violates the artist’s right of restricting bronze casting to his or her plasters, waxes, or terra cottas
- The integrity of the original bronze used to make a second edition is violated because the resulting surmoulage is smaller in scale and of demonstrably diminished definition and, hence, is of lesser quality
- Owners of the original bronze edition have seen their work devalued;
- The public becomes confused about which were the bronzes made from the plasters, waxes, and terra cottas
- There is no limit to future recasting from bronzes, which results in even further loss of quality.
In our opinion, a bronze made from a finished bronze, unless under the direct supervision of the artist, even when not prohibited by law and authorized by the artist’s heirs or executors, is inauthentic as it imitates, resembles, has the appearance or is a copy of the original, with or without implying deceit. The argument that this form of replication increases the audience for an artist’s work must be rejected on the grounds that the new work is not an authentic work by the sculptor.
A second unethical practice of sculptural reproduction is the enlargement of a sculptor’s work by his or her heirs or executors or the owners of the work. Even if an artist enlarged works during his or her life, to enlarge works after the artist’s death is presumptuous and unethical on the part of those responsible. When the artist was alive, he or she decided which works would or would not be enlarged, and to what scale, in which medium, and whether or not proportions and details would be changed. The sculptor often knew to whom he or she could entrust the process of enlargement, and he or she alone could judge whether or not the results were successful. Crucial to the incentive for and success of the enlargements are the sites which the artist alone should determine or consent to and which might influence his or her decisions about the final scale of his or her sculpture. The only exception to the foregoing occurs if the artist left specific and verifiable instructions about the future enlargement of his or her sculpture and its location, and that these wishes were scrupulously adhered to.
Unauthorized Translation into New Materials
A more complex problem of sculptural reproduction exists when the artist’s heirs or executors cast the work in a new medium other than that clearly intended by the artist as the final version of the work. For example, if a work that was originally carved in wood or stone was posthumously cast in bronze. In the absence of authorization from the artist, this form of moulage should also be considered as unethical. In some cases a sculpture made in fragile materials has been reconstituted in bronze or steel by heirs or owners. A less frequent but equally disturbing practice is that of heirs making sculptures from drawings or paintings by artists who had little, if any, knowledge of such transfer. In all cases those responsible for this new form of reproduction have the serious responsibility of proving without doubt that they are carrying out the explicit intentions of the artist at the time of his or her death rather than acting on their own initiatives.
Authorized Posthumous but New Castings from Plasters, Waxes, and Terra Cottas
The most difficult practice of sculptural reproduction on which to determine validity is that of authorized posthumous castings from plasters, waxes, and terra cottas that were not transferred into bronze during the artist’s life. Those responsible for the new casts in bronze have the clear and crucial responsibility of making known the source of their authority and basis for their judgment as to which works should be cast, the size of the edition, and defense of the quality of the new castings. The date of the new casts should always be inscribed on or affixed to the bronzes. Some heirs and executors are confronted with the critical responsibility of preserving from deterioration fragile sculptures in clay, wax, or plaster; in such cases, bronze casting might be construed as an appropriate discharge of trust if the above conditions were met.
Where the verifiable intentions of the artist specifically allow posthumous new bronze casts and they are of good quality according to expert judgment, it is a matter of the buyer’s philosophical attitude toward the propriety of acquiring such works. There have been instances when posthumous castings have been superior to some produced by the sculptor. This has occurred when the artist was a painter and unfamiliar with the sculptural reproductive process, or when a sculptor did not have access to a good foundry. Some experts reject even legalized posthumous casting as inauthentic and unethical because the artist could not supervise or check the foundry work in the new edition. In this view the purity and dignity of the artist’s work cannot be maintained after death. Other experts accept bronzes made posthumously under controlled conditions and specific authorization as authentic, even if these are less desirable than lifetime casts. They credit the artist with taking into account the perils of posthumous casting as well as his or her trust in heirs and executors. While recognizing that a case-by-case study may be preferable to generalized approval or condemnation, it is our view that both sides share merit. The public should know of this disagreement, however.
Measures to Inhibit International Traffic in Unethical Sculptural Reproduction
We strongly recommend the following:
- All sculptors should affix to the sculpture a copyright notice, which would include their name and the year of the cast
- Sculptors should leave clear and complete written instructions or put into their wills their desires with respect to the future of their works after their deaths or in the event of their incapacity to continue work
- All heirs and executors of the sculptor’s estate should be scrupulous in discharging their responsibilities and when necessary should consult with experts on such questions as those of new castings
- All posthumous casting or reproduction of an artist’s work must be clearly identified by information supplied on the work of art itself, when possible, as well as on all invoices, bills of sale, catalogues, and advertising. This information should include the date of the new cast, the name of the foundry, the size of the edition, and whether or not the work is a surmoulage or of a different scale than the original
- All bronze casting from finished bronzes, all unauthorized enlargements, all transfers into new materials, unless specifically condoned by the artist, and all works cast as a result of being in the public domain should be considered as inauthentic. Unauthorized casts of works in the public domain cannot be looked upon as accurate presentations of the artist’s achievement. Accordingly, for moral reasons, such works should:
- Not be sold by art dealers or auctioneers
- Not be acquired by museums or exhibited as works of art
- Not be cast by foundries
- Be clearly identified for what they are by the art historians and critics who may write about them
- Artists, scholars, critics, and dealers should give all possible assistance in exposing the described abuses
- Museums and galleries should clearly and fully label works in their collections by providing information on the original date of the sculpture’s creation, the actual date of the cast if known, or an indication that the date is not known. If, for example, an artist never cast a bronze from a plaster, the posthumous bronze sculpture should be so identified on the label and so noted in the museum gallery or auction catalogue. The authority for the posthumous casting should also be credited.
There must be full disclosure of pertinent information by those responsible for casting bronzes. Each cast must have information as to date, foundry, size of the edition, and whether it is an enlargement, surmoulage, or change in the final medium used by the artist in his or her lifetime. Additional information called for above should be part of the documentation that accompanies the sculpture. In accordance with the foregoing, lifetime casts of good quality made by the artist or under his or her supervision and with his or her approval of the resulting edition are desirable.
To be considered as less desirable are posthumous castings authorized by the sculptor to be cast from his or her plaster, wax, or terra cotta sculptures under controlled conditions and of good quality compared to that which the artist achieved.
Posthumous castings from finished bronzes, unauthorized casts such as those made as a result of work being in the public domain, enlargements unsupported by verifiable instructions from the artist, posthumous translating of a carving into bronze, or work in any material other than wax, terra cotta, and plaster that is bronze cast for the first time, are undesirable.
Authors and Contributors
The initial draft of this statement was prepared by Albert Elsen, President, College Art Association.
At a meeting on April 12, 1974, the statement was amended and amplified by the following: Gilbert Edelson, Honorary Counsel, College Art Association; Domenico Facci, sculptor, representing the Artists Equity Association; Sidney Geist, sculptor; Robert Kashey, Shepherd Gallery Associates; H. C. L. Merillat, attorney; George Sadek, Vice President, College Art Association; John Tancock, Sotheby Parke-Bernet; Joshua C. Taylor, Director, National Collection of Fine Arts, representing the Association of Art Museum Directors; Max Wasserman, Fogg Art Museum; Edward Wilson, sculptor, Artists Committee, College Art Association; Virginia Zabriskie, Zabriskie Gallery, representing the Art Dealers Association.
Additional commentators on the initial draft were Jacques de Caso, University of California, Berkeley; Edward Fry, University of Toronto; Lanier Graham, M. H. De Young Memorial Museum; Sherman Lee, Director, Cleveland Museum of Art; John Merryman, Stanford University School of Law; Athena Spear, Oberlin College.
An ad-hoc committee co-chaired by CAA Professional Practice Committee Members John J. Richardson, Wayne State University, and Charles Wright, Western Illinois University, wrote the introductory STATEMENT ON STANDARDS FOR THE PRODUCTION AND REPRODUCTION OF SCULPTURE in the spring of 2012. The ad-hoc committee included Antonia Boström, J. Paul Getty Museum; Alan Darr, Detroit Institute of Arts; Bob Emser, independent artist; John Steele, Detroit Institute of Arts; and Elona Van Gent, University of Michigan. The ad-hoc committee also edited the 1974 statement.