Let me first mention that I'm not an attorney and you really should seek the advice of one knowledgeable in artistic copyrights and VARA about this issue.
One of the most basic questions is whether there exists any written documentation of an agreement (e.g. a loan agreement) between the foundation and the Center that stipulates the terms of this work being exhibited at the Center. If such documentation exists, it might variously document, transfer to the Center, or even waive some or all of the Foundation's ownership rights. If there is documentation of the Foundation's ownership of the work, but this documentation is silent on other rights, then the Foundation probably has the right to demand the return of their Turrell work (i.e. the physical structure).
Ownership of an artwork without explicit ownership of other associated rights, would mean that the foundation owns the physical artwork, which undoubtedly includes its structure. To conclude otherwise would essentially be the same as acknowledging that a 1988 painting by a contemporary artist is owned by someone other than the Center, but then turn around and insist that the Center actually owns the physical stretchers and canvas on which the "painting" resides. Essentially the foundation has had this work on long-term loan to your Center since 1988. Thinking of this work as having been on long-term loan to your Center also highlights why the foundation wishes its return and is reluctant to allow the Center to restore the work. The Center has over a period of almost three decades failed to provide the necessary care of this loaned artwork to maintain it in good condition. Would the Center's Board be meekly understanding and forgiving if the Center placed a work on long term loan with another institution that treated the Center's work so cavalierly?
As the work was created in 1988, it is technically pre-VARA, which means that the Foundation may not legally need to seek Turrell's approval to relocate and restore the work elsewhere. Even for works covered by VARA, the United States Court of Appeals for the First Circuit ruled in 2006 that VARA does not protect location as a component of site-specific work. VARA covered works can be moved as long as the move does not constitute "destruction, distortion, or mutilation." However, I agree with you that it would be best if any restoration of this work - either in the Center or in another location - would include Turrell's participation and approval. To do otherwise would be disrespectful to the artist and would potentially jeopardize the value of the restored work.
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John E. Coraor, PhD
Director of Cultural Affairs
Town of Huntington
Huntington, NY
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Original Message:
Sent: 11-18-2017 09:54 AM
From: Stuart Ashman
Subject: NEED ADVICE
In 1988 artist James Turrell built his first "skyspace" on our campus. Some years later the piece fell into disrepair and the work is now listed as "non-extant". However, the structure is intact and with some cosmetic work could become a major attraction for our Center. The piece is owned by a foundation that wants to relocate the piece to a different museum - one that could guarantee its future maintenance and restoration.
Our Center has raised the funds to restore it, but the owner refuses to allow us to move forward. My Board feels that the structure, and perhaps not the actual license to call it a Turrell, belongs to the Center and wants to move forward with, at least, some stabilization and cosmetic repairs.
My feeling is that we cannot until both the owner and the artist agree to this move.
Any thoughts or advice on this? from AAM or colleagues?
All would be appreciated and confidentiality is important.
Thank you,
Stuart A.Ashman
Executive Director & Chief Curator
Center for Contemporary Arts
1050 Old Pecos Trail
Santa Fe, NM 87505
505 982 1338