Permissive Certificates: Collectors of Art as Collectors of Permissions

By Karol, Peter J. | Washington Law Review, September 1, 2019 | Go to article overview

Permissive Certificates: Collectors of Art as Collectors of Permissions


Karol, Peter J., Washington Law Review


Introduction

He intended to invest in paper.

- Donald Judd on Count Giuseppe Panza1

In 1990, renowned conceptual and minimalist artist Donald Judd authored an unrelenting four-part polemic against Giuseppe Panza, one of the world's foremost collectors of such art. The essay, Una stanza per Panza, opened with a short, declarative first sentence: "Giuseppe Panza makes my work himself, contrary to the original agreement that it be made only under my supervision."2

Given the thirty-plus pages of invective that follow (Judd launched into an extended comparison of Panza to Richard Nixon just one paragraph later),3 a reader could be excused for breezing by this sober opening statement of the case. Judd, it seems, was establishing some factual context to motivate the argument to come. A celebrated artist, Judd was angry at a collector of his works because the collector did not follow an agreement to make Judd's art in a certain way.

Judd's statement, however, is stranger and far more provocative than it may at first appear. At a minimum, it raises a range of questions centering around its passing reference to an "original agreement." How could a collector (that is, an art buyer) ever make an artist's work in the artist's name? What "original agreement" is Judd alluding to that could delegate such a power? Did Judd consent to this arrangement? If not, how could it be enforceable? If so, what motivated the artist to cede the right to create artwork in his name in the first place? Perhaps most perplexing of all to a lawyer: if Panza's fabrication of Judd's works was indeed "contrary" to an agreement, why didn't Judd sue to enforce its terms rather than attack Panza through hostile essays?

Adding to these mysteries was Judd's decision, a year earlier, to take out a paid advertisement in Art in America, a leading art publication, renouncing authorship of an "installation wrongly attributed" to Judd at the Ace Gallery in Los Angeles.4 "Fabrication of the piece," the advertisement read, "was authorized by Giuseppe Panza without the approval or permission of Donald Judd."5 Under what set of circumstances would a living artist think it necessary to advertise that he did not permit the creation of certain sculptures in his name?

As it happens, Judd, along with many other leading figures in post1960s American art, did execute agreements-often labeled Certificate or Certificate of Authenticity-with Panza and other collectors.6 This Article refers to those agreements and the documents that memorialized them as "Permissive Certificates."7 Such documents generally served a dual function quite different from the traditional art warranties, or promises of authenticity, from which they took their name. On the one hand, they resembled plans or blueprints instructing the collector how to fabricate and install the subject artwork. Indeed, at the time of Panza's purchase, many of these artworks had never been fabricated and only existed in the form of such plans.8 On the other hand, these documents also purported to authenticate or warrant the subject works as genuine, much like traditional certificates of authenticity which are familiar to collectors of high-value objects of any kind.9

Perhaps unsurprisingly, this nascent practice of creating, authorizing, and prospectively authenticating artworks solely though legal documents led to a near-immediate parade of disputes that continues to this day. The Guggenheim Museum, for instance, purportedly "knew" that it was attaining a "mare's nest of problems" when it acquired hundreds of works from the Panza collection in the 1990's, including many unfabricated Judd artworks memorialized only in certificates and diagrams.10 The extent of these problems eventually forced it to create its "Panza Collection Initiative." Tasked with studying ethical, legal, and conservational questions concerning conceptual and minimalist artworks, the initiative has since received over $3 million in grant funding to reckon with art that exists as much on paper as it does in object form. …

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