Standards and Guidelines

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.

Part I: Background

Introduction
The art world is confronted with the past, present, and future abuse of sculptors’ rights as a result of widespread unethical reproduction of their work. These dubious practices have been going on since before this century, and while we come late to the problem, indications are that it will get worse if action is not taken to inhibit, if not prevent, its continuation. The demand for casts of sculpture by important artists living and dead far exceeds the supply and has multiplied dramatically in recent years. This has led to increased recasting or unauthorized new casting of works. Often there are no laws to prevent this activity. Laws protecting property rights have made it possible for owners of plasters and bronzes to make new castings to the detriment of art, artists, and the art market. Our problem is to respect the rights of the artists and their heirs, deter those with well intentioned or base motives who contravene those rights, and maintain public confidence in the legitimate reproduction of sculptors’ works. The most obvious course of action is the establishment by the appropriate professional societies of standards for sculptural reproduction and preventative measures to combat unethical casting in bronze. This should be accompanied by a campaign of public and professional education in the problem.

The Problem of Definitions
In evaluating sculptural reproduction we are confronted with such difficulties as historical and customary usage challenging dictionary definitions. The word replica, for example, historically has more honorable connotations than at present. Today “replica” is often used to signify an anonymously made commercial imitation or reduction of sculpture in a museum or other public place. But it is also sometimes used in legal terminology to indicate a casting made by the sculptor himself. 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 lifetime 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 are dismayed to see the same works by Rodin and Rembrandt in several museums.

It has been argued 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 would be defining “original” as the first of its kind, or as anything in relation to that which is a representation or a reproduction of it. Hence the plaster and bronze casts and the print on paper would be termed reproductions. Such a definition honors chronology, may satisfy logic and have currency, but it does not take into account other historical usages of the term and the attitudes of many artists. As he models in clay or wax the experienced sculptor has in mind what the work will look like in bronze, if that is to be the ultimate medium in which his vision will be realized. So, too, the printmaker as he works on the stone or plate is 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 which then becomes the finished work of art and hence 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, his several casts of the same subject are not considered as “unique.” To specialists, however, no two bronze casts that are finished by hand can be exact duplicates of each other. Thus, the word “unique” has different meanings to those who have varying knowledge of, and involvement in, sculpture.

There are those who look upon only the first bronze cast as the original and view all other casts as “reproductions.” In 1959, the US Customs laws were amended, influenced in part by the recommendations of a museum committee, to recognize up to ten bronze casts as originals and hence duty-free for import into this country. (Previously the number had been restricted to three.) No hierarchical value was placed upon the order of casting. There are many who argue that as long as a bronze or a print is made from the plaster, or plate, or stone on which the artist worked, their 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 their posthumous editions have achieved market and qualified critical acceptance. (Favorable judgment has not been unanimous, however.)

While the term “original” may be important to the public and to some professionals, to many artists and those knowledgeable about casting it is either of little value or only relative importance. More important to sculptors and those in the position to acquire, advise on acquisition, or write about casting is 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. One cannot say that for all sculptors their plasters are more important to them in esthetic value than their bronzes.

In fine, undue emphasis seems to have been placed upon the word “original” as applied to sculptural and print reproduction in determining their desirability. Rather then trying 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 Protected by Property Rights Laws
An uncopyrighted sculpture exhibited or sold by a living artist comes into the public domain. When a sculptor gives or sells a sculpture to another person in this country, unless on the bill of sale he specifically retains all rights to its reproduction by casting, these rights pass to the new owner. In Europe, after an artist has been dead for a certain period of time, his work passes into the public domain. Increasingly the owners of plasters and bronzes, obtained under the above conditions, are making new castings. Frequently the justifications advanced by the owners for this questionable practice is that they just want casts for their children, friends, or the local museum, and they do not intend to sell them. These unethical casts invariably come into museums and the art market without full documentation and are accepted, bought, and resold out of ignorance as authentic artist-approved casts. Sometimes the owners frankly admit that they bought a plaster or bronze as an investment and seek to profit from it, as is legal under American property rights laws. What all of these owners do not know or choose to ignore are the sculptor’s standards for the intricate casting process and the fact that owners of authentic casts paid for them on the basis of their relative rarity and quality. There are no laws in the United States to prevent a foundry from making bronze casts from a plaster or bronze for which the client has provided proof of ownership. It is up to the foundries themselves to voluntarily refrain from abetting a practice detrimental to art and artists.

The Problems of Posthumous Casting
When an artist dies and leaves in his estate plaster sculptures intended for casting in bronze, whether or not this casting has been done before, and when his heirs or executors, acting under the artist’s authority cast the plasters into bronze, the resulting edition may or may not be considered “originals.” It is 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 his 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 must be done by highly skilled artisans who have access not only to the plaster model but to the artist’s standards of quality. If done under circumstances that clearly betray the artist’s intentions and compromise or differ from his standards, an original but posthumous cast is undesirable. When a sculptor personally finished his bronze casts or the artist made drastic changes from the plasters, there cannot be a genuine posthumous equivalent of his lifetime standards.

Is everything done by an artist in his lifetime acceptable, and everything done to his work after his death unacceptable? In the first case one can think of such undesirable practices by a sculptor as faking dates for his work, permitting inferior reproductions of his art, [or] making bronze casts from other finished bronze casts without so identifying them. An instance of an artist making a surmoulage (casting from a cast) of his own work would be when as a result of casting a bronze directly from a wax sculpture, the latter was lost and only one bronze was made. (That would be a “unique” bronze.) Later to obtain an edition, the artist recast from the bronze. Failure to so indicate 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 is when artists have carved sculptures and then agreed 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.

If we recognize the right of the artist to control the use of his work after his death and he specifically instructs his heirs to cast in bronze from his approved plasters, should these authorized, posthumous casts be dismissed as “fakes” or “replicas”? As indicated previously by current US Customs law and convention, they are entitled to be considered as “originals” and authentic. The response of many experts or those knowledgeable in the field of sculpture seems to be to judge the case of each artist’s posthumous casting on its own merits. Important in their determination are such questions as to what degree was the artist personally involved in the casting process and what were the number of bronzes he habitually cast for each work. Where there is agreement among experts is that the artist’s standards must be lived up to, 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 plasters to his heirs so that they may benefit from the income resulting from sales of future casting and his own increased reputation. Assuming that the heirs cast from the plaster in the manner prescribed or practiced by the artist, and there is no diminution of quality in the posthumous casts, should they be rejected as morally undesirable? This is an instance in which moral viewpoints may have changed from the artist’s day to our own. Should the artist and his 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 lifetime a sculptor could not afford to cast some or many of his works in bronze, or there was no market to justify the expense of a bronze edition. Sculptors have also made a few bronze casts for clients, but were concerned that after their deaths more casts be made available or an edition completed so that museums and collectors would make their art more accessible to the public. It is not felt that such motives should be condemned out of hand and the resulting casts be rejected on moral grounds. US Customs law does recognize works made under these conditions as “originals.” In many cases artists die before making their intentions known, or make their intentions known verbally instead of in writing, or decide to say nothing. Posthumous casting is then a matter of judgment by their heirs or executors. In practice evaluation of the results seems to have been on a case-by-case basis. What is unfortunate is 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 work. At stake is respect for his intentions and standards of quality and, ultimately, his reputation. Linked with this is the protection of the artist’s sculpture itself so that it is not used for unethical or illegal purposes. We must also safeguard the public’s interest in being educated in artistic values and enjoying the highest quality of art. To be defended are the legitimate rights and interests of heirs or executors who are responsible for the artist’s work. We must also protect the interests of those who own legitimate casts against their devaluation esthetically and financially.

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
Abuses in reproductions unauthorized by the artist of modern sculptures not protected by copyright have resulted both in violation of artists’ rights and the integrity of their work, and [have] caused confusion in the mind of the public. One of the most flagrant abuses that is increasing here 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 lifetime or by his estate. For many reasons this form of surmoulage is pernicious:

It violates the artist’s right of restricting bronze casting to his 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 and even further loss of quality will be the result

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 a counterfeit 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 what is made available is not an authentic work by the sculptor.

Enlargements
A second unethical and pernicious practice of sculptural reproduction is the enlargement of a sculptor’s work by his heirs or executors or the owners of his work. Even when an artist had enlarged certain of his own works during his life, to have this done after his death to works he himself had not enlarged is presumptuous and unethical on the part of those responsible. When the artist was alive it was he who decided which works would or would not be enlarged, to what specific scale, in what medium, and whether or not proportions and details had to be changed. The sculptor often knew to whom he could entrust the process of enlargement, and he 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 decisions about the final scale of his sculpture. The only exception to the foregoing would be in the event that the artist left specific and verifiable instructions about the future enlargement of his sculpture and its location, and that these wishes were scrupulously adhered to.

Unauthorized Translation into New Materials
A more complex problem of sculptural reproduction occurs when the artist’s heirs or executors cast his work in a new medium other than that clearly intended by the artist for the final version of his work. This would be the case when an artist’s work was originally carved in wood or stone and then posthumously cast in bronze. In the absence of authorization from the artist, this form of moulage should also be rejected 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 causing sculptures to be made from drawings or paintings made by painters who had little if any history of such transfer in their own lifetime. 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 death rather than acting on their own initiative.

Authorized Posthumous but New Castings from Plasters, Waxes, and Terra Cottas
The most difficult practice of sculptural reproduction on which to pass judgment is that of authorized posthumous castings from plasters waxes and terra cottas that in the artist’s life were never transferred into bronze. Those responsible for the new casts in bronze have the clear and serious 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 on the bronzes. Some heirs and executors are confronted with the serious responsibility of preserving from deterioration fragile sculptures in clay or wax or plaster and in such cases bronze casting might be construed as an appropriate discharge of that 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 himself. 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 his death. Other experts do accept as authentic, even if not as desirable as lifetime casts, bronzes made posthumously under controlled conditions and specific authorization. They credit the artist with taking into account the perils of posthumous casting as well as his trust in his 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 dissent, however.

Measures to Inhibit International Traffic in Unethical Sculptural Reproduction
In the absence of laws, or until such time as the appropriate laws may be passed to discourage the continued practice of undesirable sculptural reproduction and to protect [the] artist and the public, we strongly recommend the following:

All sculptors should copyright their work by affixing to the sculpture the international copyright symbol, 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
Consideration should be given to the possibility of legislation in this country which would give artists rights comparable to those under European moral rights laws (the “Droit Morale”)
The copyright period should be lengthened
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 when possible on the work of art itself, as well as on all invoices, bills of sale, catalogues, and advertising. This information should include the actual 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 or counterfeit. Unauthorized casts of works in the public domain cannot be looked upon as accurate presentations of the artist’s achievement. Accordingly, in the absence of relevant laws and 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 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 if not known so indicate it. If, for example, an artist never cast a bronze from a plaster, the posthumous bronze sculpture should be so identified on the label affixed to the pedestal and so noted in the museum gallery or auction catalogue. The authority for the posthumous casting should also be credited

Summary

There must be full disclosure of pertinent information by those responsible for casting bronzes. Each cast must have on it 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 lifetime. Additional information called for above should be part of the documentation that accompanies the sculpture. If necessary, legislation should be passed to insure this full disclosure.

In accordance with the foregoing, lifetime casts of good quality made by the artist or under his supervision and with his 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 plaster, wax, or terra cotta sculptures under controlled conditions and of good quality compared to that which the artist himself 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.