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Kapoor’s moral right to keep hateful graffiti in place: a legal perspective

7 October 2015

From June until November this year, the Palace of Versailles is hosting an exhibition of works by Anish Kapoor. Previous single artist exhibitions held at Versailles have not been without controversy. In 2008, 17 works by Jeff Koons were installed both in the grounds and the Château. Koons – not one to shy from controversy – installed Large Vase of Flowers in Marie Antoinette’s bedroom, causing more than a few eyebrows to be raised.

Since the current exhibition opened, Kapoor’s work Dirty Corner (referred to in the mainstream media as the ‘Queen’s Vagina’) has been subject to vandalism. The steel installation, constructed in 2011, is located in the grounds on the ‘green carpet’ that occupies a long sweeping perspective running directly from the palace to the Grand Canal. It is hard to miss, measuring 8.9×6.55×60m.

Kapoor has recognised that ‘works of art are sometimes a focus for the larger discomforts in society’. In June, Dirty Corner was subject to what the artist has referred to as ‘political vandalism [which] uses an “art material” to make actual violence’. The art material in question was yellow paint, which was thrown over the interior surface of the work. Kapoor considered what his response should be and decided that the paint should be removed.

In early September, Dirty Corner was once again targeted. This time, anti-Semitic graffiti was daubed across the sculpture and on the landscaped rockery surrounding it. Kapoor issued a statement to say that the scars of this attack would now remain on the work as he would ‘not allow [the] act of violence and intolerance to be erased’. Dirty Corner will now be marked with hate […]’. President Francois Hollande issued a statement in support of the artist, condemning the act and restating support for freedom of expression and creation. Fabien Bouglé, a local Versailles councillor was not impressed by Kapoor’s decision to leave the graffiti on the work, claiming that doing so incited racial hatred, and demanded that the work be cleaned or removed from public exhibition. The complaint was heard by a local court which ordered the removal of the graffiti. Under French law, artists are granted some of the most generous rights of authorship in the world. Droit moral (moral rights) in France supplement the standard rights of paternity/attribution and integrity prescribed by the Berne Convention. French rights include the right to insist on completion if an artwork is being made on the artist’s instruction, the right to decide first publication (disclosure), and the right to withdraw a work of which the author no longer approves. The law also goes beyond the basic right of integrity set out in the Berne Convention and potentially leaves an artist with room to object to the removal or even outright destruction of a work.

Theoretically, droit moral can therefore assist an artist to resist potential censorship and unlike under English law, cannot be waived. It seems apparent why Bouglé’s legal attack focussing on incitement of racial hatred, a criminal offence in the UK under the Public Order Act 1986, was filed against Catherine Pégard, President of the Chateau de Versailles, rather than the artist himself. Kapoor remains committed to leaving the graffiti on the work but Versailles has had to pay some regard to the court’s order, with sources reporting that Dirty Corner has been covered with black tarpaulin, and that the artist has begun to add gold leaf to vandalised areas.

#GoldAgainstViolence #DirtyCorner #Versailles #AnishKapoor @dirty_corner

A photo posted by Anish Kapoor (@dirty_corner) on