In the restoration process, someone other than the creator of an artwork becomes involved after the work has been completed, sometimes leading to questions about authenticity. In other situations, multiple artists are involved while the work is being created, making it a collaborative effort, although typically the resulting product carries only one name. As with restoration, a concern sometimes arises as to whether adding the participation of another person challenges the claim that a work is an original by a single named artist. Does coproduction undermine authenticity? Is there an amount of participation or type of participation by someone other than the named artist that, without formal recognition, renders a work inauthentic? History provides various examples from the Renaissance to the present where collaboration has been an accepted practice, yet at times the matter becomes thorny in philosophical and legal terms as well as public opinion.
In some instances of collaboration, multiple names are given as the artist of record. The coproduced paintings of Rubens and Jan Brueghel (the Elder) in the seventeenth century are a classic example. Over a period of nearly three decades, they jointly completed two dozen paintings of various religious and mythological themes, with Rubens rendering the figures and Brueghel the landscape background and various details. Each artist contributed his own specialty while adhering to his own style to complete a product that offered the best of both. As the two most renowned southern Netherlandish artists of their day, they held equal prestige among the public and respect between themselves as well as being close personal friends. Often without signatures to name the artists, these paintings were still prized, and because of the joint attribution by two masters rather than one, they carried an inflated value. The combination of major talents was perceived as an all-star team. In other instances, each artist collaborated with other artists who were respected professionally but of lesser renown (Brueghel with Hendrick de Clerck, for instance, and Rubens with Frans Snyders).55
While Rubens’s collaboration with recognized names occurred on an occasional basis, he worked daily in a combined effort with underlings in his studio. The system he developed for joint production is sometimes cited for efficiency and business acumen among artists of his day. His output was prodigious, including many works of monumental size. Some paintings were fully autograph works, but for many others, various assistants were employed to produce part or most of the painting, often with a division of labor in which specialists concentrated on animals, backgrounds, or other features. The master first made a drawing, then a small oil painting on panel as a model, and perhaps a chalk sketch on the main panel or canvas. Later, he put on final touches and oversaw quality control. For engravings, assistants typically made sketches copied from his paintings and also executed the printing process.56 All of these works carried Rubens’s name alone, although on some occasions buyers were informed about the contributions of assistants, and it was understood that products exclusively of the master’s hand carried greater value. Important clients were treated with care, as with English nobleman Dudley Carleton, who inquired about purchasing a dozen paintings from Rubens’s inventory. The artist provided a list that noted some as retouched, one as a collaboration with Snyders, and another as worked on by his best student, with only five works as fully original. When Carleton balked, Rubens submitted another list specifying paintings that were exclusively his along with others worked on by assistants that he guaranteed to be of top quality and offered at bargain prices.57
In the late nineteenth and early twentieth centuries, Rodin developed a notable studio system of production that followed that of his Renaissance predecessors. The first stage, after preparing a set of drawings from various angles, was to fashion a model figure from clay or wax that was then cast in plaster, often with several copies made. With this much accomplished by the named sculptor, the remaining work was done by assistants who carved from stone or made casts in metal. Carving was carried out with a pointing machine, which ensured faithfulness to the model being followed and allowed for scaling up or down in size. In sum, Rodin himself made the models for his works, and his studio artists completed the process of transferring them to other mediums. His plaster casts were prized, and the artist often gave them as gifts to friends, and toward the end of his career, he experimented with assemblages of plaster and bronze.58
In the twentieth and twenty-first centuries, collaboration between artists moved beyond previous practices. Not only have coequal relationships occurred occasionally, but in some cases the artists have engaged in them for all of their works or at least frequently. The results are promoted as joint productions. The posters of the Stenberg brothers, from early in the twentieth century, are signed “2 Stenberg 2”; Gilbert & George have collaborated since the 1970s, working in various mediums and signing together; Komar and Melamid signed jointly for several decades. Other examples include the Starn brothers (Doug and Mike), Jane and Louise Wilson, the Zhou brothers (ShanZuo and DaHuang), and the Boyle family.59 Collaboration among equals has led to the building of team reputations in which multiple artists are recognized as single entities. In an extension of this principle, the logo for “The Art Guys” (Michael Galbreth and Jack Massing) features their professional moniker more prominently than their surnames.60
Studio collaboration of artists with unequals also has reached a new level in recent decades. Andy Warhol’s naming of his studio as the “Factory” demonstrated not only his employment of a large number of assistants but also an attitude about the contribution needed by an artist to designate the products sold under a single name as originals. In the 1960s, he assigned the entirety of the painting process for some of his canvases to an assistant and, by the 1970s, left craftsmanship to others for many works in what had become mass production. One assistant said that he and Warhol communicated by phone rather than working together in person, and that even the security guard became a painter on busy days.61 Another assistant attested that his employer’s primary role in making numerous works was to sign them when a sale was made.62 Other artists followed Warhol’s approach with even more boldness. Jeff Koons, Damien Hirst, and Dale Chihuly, in particular, are known for large outputs of artworks carrying their name that involved little or none of their workmanship. In some cases, the images as well as the workmanship have been challenged as not being theirs. Discussion of that factor and how it relates to authenticity will come in the section of part II on appropriation.
Koons is on record in an interview as saying, “I’m basically the idea person. I’m not physically involved in the production. I don’t have the necessary abilities.”63 Hirst, too, has noted his incapability to produce works put out under his name. Regarding the spot paintings that gained him fame, he stated, “I only painted the first five. I was like ‘f--- this, I hate it.’ As soon as I sold one, I used the money to pay people to make them. They were better at it than me.”64 On another occasion, referring to Rachel Howard, a recognized artist in her own right, he remarked that “the spots I painted are shite. The best person who ever painted spots for me was Rachel. She’s brilliant. The best spot painting you can have by me is one painted by Rachel.”65 Chihuly, known especially for his sculptures in glass, has not blown glass since 1979 due to a physical disability incurred in a surfing accident. His studio continues to produce glass creations in his name as well as works in other mediums where he employs assistants.
What differentiates these present-day artists from Rubens, Rodin, and other predecessors who made regular use of studio workers while promoting their finished products under a single name? A key is their admission that none of the workmanship, rather than at least some of it, is theirs. They make no allowance, as Rubens did, for differences in price—a proxy for difference in authenticity—according to how much their own participation was involved. The value lies simply in the name attached to their work, and not in how much or what sort of workmanship was accomplished by whom. But in what sense, then, are these artists masters? Rubens was a gifted painter whose autograph works demonstrate his ability with a brush. Rodin’s remarkable talent was in sculpting with pliant material to create completed images that were later reproduced in other mediums. Koons and Hirst have acknowledged their own lack of capability, and Chihuly was at one time an accomplished glassblower but long ago lost his dexterity. Not only do these contemporary famous figures not perform workmanship but they do not possess the capability for it, a factor many art aficionados would say is crucial in assessing an artist’s stature.
The practice of artists declaring works as their own when they have contributed nothing to the workmanship has been successful for certain ones who have achieved fame, high prices, and inclusion in museum collections. But the practice is controversial. There is public skepticism, and gallerists are sensitive about it. In Australia, noted Aboriginal painters have drawn attention for producing works that relied on the labor of other artists. Turkey Tolson Tjupurrula declared that he had signed paintings done by his relatives, Kathleen Petyarre’s husband was a collaborator on her paintings, and Clifford Possum Tjapaltjarri was investigated for fraud for signing paintings he did not create.66 At the White Cube Gallery in London, when an art writer approached sales assistants to ask if Hirst had any physical input in making the works on display there carrying his name, the responses were cagey, with one changing the subject, and another saying, “the gallery told us that if asked, we should say: Yes, but how much we’re not sure.”67 Art experts, too, may be critical, as with the Andy Warhol Foundation, which was sued in 2007 after its authentication board decided that a Red Self-Portrait silkscreen, one in a series of the artist’s best-known works, was inauthentic because Warhol was not present when it was printed. The plaintiff accused the Warhol organization of manipulating the art market to benefit the value of its considerable holdings of the artist’s works.68
Given that the practice of collaboration is subject to dispute, where does it stand legally? The matter of who among collaborators gets credit for an artwork is intertwined with economic rights as supported by copyright law, and is tied to the statutes of individual countries. In some countries, the tradition of “moral rights” speaks to legal claims of authorship, but even so, precedence often is given to physical ownership and property rights.69 Under Title 17 of the US Code, copyright goes to a person who creates a work. However, with “works made for hire,” “the employer or other person for whom the work was prepared is considered the author . . . and unless the parties have expressly agreed otherwise in a written statement signed by them, owns all of the rights addressed in the copyright.”70 When the United States passed the Visual Artists Rights Act of 1990, which provides protections for the makers of paintings, drawings, prints, sculptures, and still photographs, it retained the “works made for hire” clause. In a US Supreme Court decision (Community for Non-Violence v. Reid, 1989), a test involving several factors was established to determine who qualifies as an employee for hire, as distinguished from an independent contractor who might claim to be a coauthor rather than a hired worker. The factors include, among others, the right to control the manner and means of production, the skill required, whether the hiring party has the right to assign additional projects to the hired, and whether employee benefits are provided.71 Not all of the factors may be relevant in any given case, and which ones and how much they are weighted vary on a case-by-case basis.
Because of the dominance of copyright law, artists in the United States who are hired to make artworks for other artists face a high bar to clear if they wish to claim a legal right of coauthorship. On the other hand, because the list of factors defining “for hire” that may be considered in any given case is variable and complex, establishing coauthorship is not ruled out. Taking legal action may be beyond the means of most studio workers involved in creating pieces for established artists, but it occurs occasionally. Chihuly has been involved in two key cases of this sort, the first of which, Chihuly v. Kaindl in 2005, drew countercharges from the defendants. Chihuly alleged that former employee Bryan Rubino was producing glassworks based on his images, which were being sold by Robert Kaindl, whose name was put on them.72 Chihuly declared that his glassblowing technique was unique and that the copied works were in categories he was well known for such as baskets, chandeliers, sea forms, and cylinders. The defendants responded that their glassblowing methods were centuries old and that design categories taken from the surrounding world are in the public domain and not protected. They countered Chihuly’s claim to be the creator of works sold under his name by attesting that his employees not only produced them but in some instances conceived and signed them for the artist as well. Evidence included a fax from Chihuly to Rubino saying, “Here’s a little sketch but make whatever you want.”73 At issue were both the source of the images Chihuly held to be his own and the workmanship involved in executing the images. The suit was settled out of court, which left no precedent to influence further legal actions, but it drew considerable attention to the contributions of assistants in making items sold as Chihuly originals. One focus was on Chihuly’s prints, which, it was said, the public and gallery owners had been misled to think Chihuly had enhanced with hand painting when in fact the painting was done by someone else.74
Another suit challenging Chihuly’s claim of sole authorship was filed in 2017 and decided in 2019. Michael Moi alleged that for fifteen years he worked with Chihuly in conceiving and executing paintings and drawings, and he asked for redress under the Copyright Act and the Visual Artists Rights Act, which includes recognition of coauthorship and sharing in the proceeds for the artworks in question consistent with that status.75 Chihuly countered that Moi was trying to take advantage of his mental illness by demanding payment in exchange for silence about his condition.76 Moi’s claim included numerous instances over fifteen years of working in a group with Chihuly and several other artists in clandestine painting sessions, while sometimes conceiving of designs for Chihuly’s paintings and sometimes signing Chihuly’s name on finished works. Moi asserted that he was told the process involving him must be kept secret or the value of Chihuly’s works would suffer, and that he never signed documents of employment, was never paid, and was promised on several occasions that records of his participation were being kept and he would be paid eventually. As with the previous case, in this one both the design of Chihuly’s works and their execution were at issue, with various details pointing to Moi’s frequent and extensive contribution. Also significant is that the party claiming coauthorship, and compensation at that level, did not enter into a written employee agreement. The case was settled in a summary judgment for Chihuly in which the judge determined that the plaintiff’s contribution to the paintings in question merely mimicked Chihuly’s style, and he failed to provide evidence of mutual intent to be coauthors as well as of the market appeal of his contribution to the paintings (said to come mainly from Chihuly’s name and iconic style).77
Artists who hire out the process of making their autograph works have copyright law behind them. Additionally, they can look to philosophical support, particularly from postmodern thought. When Koons, Hirst, and Chihuly assert that they come up with ideas that others embody physically, and that their ideas alone are the key to their being artists, they are appealing to the doctrine of “conceptualism.” The main point of the conceptualist approach is that art identifies more closely with the concept from which an object is born than with the physical manifestation of that concept. The true work of art is not the material piece viewers see but the mental activity that precedes its embodiment. When art is thought of in this way, questions about its authenticity focus on concepts rather than objects. The matter of who made an artwork is of little concern, and its ideational model becomes paramount.
Artist Sol LeWitt is often cited as an early proponent of the doctrine of conceptualism. As stated in a 1967 essay,
In conceptual art the idea or concept is the most important aspect of the work. When an artist uses a conceptual form of art, it means that all of the planning and decisions are made beforehand and execution is a perfunctory affair. The idea becomes a machine that makes the art.78
LeWitt reinforces this idea through dictums that depreciate the worth of workmanship in the process of making art, saying, “banal ideas cannot be rescued by beautiful execution” and “when an artist learns his craft too well he makes slick art.”79 What is most worthwhile, then—what counts—in art are mental constructs without their physical expression, a view that has been taken to uphold the hiring of assistants to perform whatever workmanship is required as not only acceptable but even desirable. LeWitt did not claim that conceptualism should apply to all artworks and all types of art, but other theorists have expanded the idea in that direction.
A more recent statement comes from philosopher Alva Noë. He suggests that when we think about paintings, it should be not on the autographic model (valuable for the signature) but on what he calls an “architectural” model:
Le Corbusier doesn’t have to have built the structure first for it to be an expression of his artistic accomplishment. And so with painters. It isn’t the dubious magic of the artist’s touch that is significant. What matters, rather, is the distinct achievement of the artist’s conception, a conception that can be realized in different ways.80
Noë goes on to mention Titian, Rembrandt, Rubens, and Koons as artists known for delegating the workmanship on their originals to surrogates, and then raises the prospect of Vermeer’s daughter having made a number of his paintings. Such works, he says, if considered according to an architectural model, “quite possibly (not necessarily)” could be authentic Vermeers, asserting that “maybe Vermeer found a new way to make paintings, a new method? He used his daughter!”81 This notion corresponds with statements like Hirst’s that “I don’t think the hand of the artist is important on any level, because you’re trying to communicate an idea.”82
Paisley Livingston adds another philosopher’s insight that supports conceptualism and aligns it with determining what persons and types of action should be given credit for the creation of an original artwork. An artwork is attributed to the person or persons holding creative control. This control can be exercised without participating in the physical activity of making an object, in which case it can be likened to a film director’s role of supervising the actors who appear on screen.83 Livingston provides examples for clarification. One (hypothetical) cites a series of silkscreen prints designed by Andy, who gives detailed instructions to artists he hires to produce the images.
At no point does Andy draw anything or lay a finger on any of the materials, and at no point do his apprentices introduce any artistically significant innovations or changes. Andy is the sole “author” here, as control and credit are his throughout.84
In another example (real life), Vanessa assembles a group of women in a gallery space for a performance. Their appearance is dictated (naked except for black high-heeled boots), while their movements are of their own choosing although they must not move abruptly, speak, or contact the audience. Vanessa is designated as the “primary artist” here even though she has ceded control of substantial artistic affect to the performers, and credit for the result as a whole is hers.85
Livingston allows for coauthorship of a work, requiring that there be “meshing sub-plans,” meaning individual conceptions of what the finished product is to be. The plans must involve “shared control and decision-making authority over the results.”86 What counts, then, as authorship in making art has to do with planning. Execution, if it figures in, is a minor partner, which is why Vanessa still gets credit for the performance she stages even though she engages people for essential tasks, and Andy’s assistants are thought of as little more than programmed devices. This position that disregards or debases workmanship in artistic production runs into difficulty, as counterexamples demonstrate. Just who is Andy, said to be the sole author of what he has conceived but not executed? Is he an artist? What if he is not, but instead is a collector? Suppose the collector commissions Jeanette, a professional artist, to make a portrait of his father that is to be copied directly from a photograph he provides. The portrait is intended to look as much like the photo as possible. When Jeanette completes the painting, whose signature should go on it? Is it the work of the person who made it according to specifications or of the person who hired her to do that? Or perhaps the photographer? To move from the hypothetical to the real, consider John Myatt’s career before he became an infamous forger. To earn money as an artist, he ran a magazine ad seeking commissions to make “genuine fakes,” and had requests for a wide variety of paintings. Among them were copies of known works such as a landscape by Monet, along with idiosyncratic visions, including a client’s uncle dodging bombs amid an aerial attack on London in World War II, a puppy chewing on a bone during the Battle of Agincourt, and a skeleton having intercourse with a nun in the ruins of a Gothic abbey.87 The concepts for these paintings clearly did not come from Myatt, but who would question that he should be the named artist?
Next, consider a modified version of Jeanette’s commission. A gallery owner has been in discussion with a client who has described an image but does not want to commission it as a painting for fear of being disappointed with the result. The gallery decides to take a chance, and the owner presents his understanding of what is to be done to a sales representative, who engages Jeanette to be the painter and gives her his interpretation. Who should be the designated artist for the work Jeanette paints? Jeanette? The gallery owner? The sales representative? The client it was made for? Is it a collaborative work with multiple authors deserving recognition? Relying on the principle of creative control in determining who is and who is not a legitimate author of an artwork so that it carries authenticity under that person’s name, leads to confusion. Without allowing workmanship into the equation, the resulting answer confronts common sense and ordinary language.
These counterexamples expose the liability of conceptualism to being applied equally across art forms. The theory fits some forms better than others. The completion of a monumental sculpture requires more people than the one who conceived it. The same goes for a building made from an architect’s plan. Performance art often needs multiple participants, along with other innovations involving unconventional materials and procedures. A LeWitt wall drawing, for instance, was made to be re-created with new materials each time it was exhibited (with instructions by the artist that remained constant).88 A Koons sculpture, Puppy, stood several stories high and was made of stainless steel, soil, geotextile fabric, live flowering plants, and an internal irrigation system. Works like these, along with buildings and traditional large sculptures, are explained comfortably from a conceptualist perspective. Their designs cannot be executed without surrogates such as actors in a performance or workers to assemble a large structure. Here, Noë’s reference to architecture is appropriate, along with Livingston’s comparison of an artist with a film director. Limitations on artistic production require employing other people. This necessity is understood and respected.
The same point does not hold when Koons and Hirst hire out the workmanship on paintings. Their reasons for engaging assistants are different, which, by their own admission, are impatience and a lack of skill. With performance art and large structural creations, workmanship by the originator of the idea for a particular work lies in orchestrating others to do what it is not humanly possible for the originator to do individually. With a painting, the exercise of workmanship can go further without appealing for help: not only is it humanly possible to go further, but there is a popular expectation for an artist to execute a work to the extent that artists typically are capable of with that art form. If they do not and involve surrogates, authenticity comes into question. This is why, compared with an autograph painting by Rubens, a painting bearing Rubens’s name but known to be done in collaboration with his assistants carried a lower value, both culturally and monetarily, in his own day as well as today. Conceptualism applied to the making of paintings is an uncomfortable fit. The idea of privileging this type of artwork, with execution not only diminished but excluded from significance, sets up a division that is both false and incomplete. Even if LeWitt and others are right in pairing conception against execution such that conception is a higher process, that point fails to recognize that the combination of conception plus execution is higher yet.