Model Intercourse

Even for artist-prankster Martin Kippenberger (1953–1997), his Modell Interconti (1987) is a high point in the subversion of art and its institutions. Kippenberger bought a 1972, all-gray abstract painting by Gerhard Richter, added a frame and screwed legs onto it. Having transformed a picture into a table-like sculpture, Kippenberger—an avid Richter fan—sold the piece at a price far lower than the cost of the Richter. Modell Interconti is, in artist Mike Kelley’s words, a product of Kippenberger’s “simultaneous transgression and respect” for the older German artist.

Artists have both moral rights—non-monetary claims to authorship and to the protection of their work’s integrity—and economic rights, which protect the physical transformation of their art by other artists. What then are Richter’s moral rights, if any, in Modell Interconti?

The work is considered a masterpiece of contemporary art precisely because it incorporates a Richter. Despite this, according to the laws of Germany, which govern Kippenberger and Richter as German artists, Kippenberger is regarded under the law as Modell Interconti’s sole author, and enjoys the rights of sole authorship. Under Article 10 of Germany’s copyright law, authorship resides in “a person designated in the customary manner” as the creator of “the original of a work of fine art.” When a work involves the transformation of another artist’s creation, Article 23 provides that artists whose works are transformed must consent to the publication of the new work—something that Richter has not objected to in the case of Modell Interconti.

German copyright law makes it clear that Richter and Kippenberger are not “joint authors” of the work. Article 8 states: “If several persons have created a work jointly, and their respective contributions cannot be separately exploited, they shall be deemed the joint authors of the work.” This usually applies to artists who are collaborating simultaneously on a mutually conceived project, and not to the rarer incidents of Kippenberger-esque hijinks. Moreover, since the very success of Modell Interconti turns on its conceptual subsuming of the Richter into a new entity with Kippenberger as the sole legitimate creator, it is likely that neither Kippenberger nor Richter would sanction the idea of joint authorship.

However, imagine if another artist—say, Mike Kelley—were now to purchase Modell Interconti and recontextualize it as his own artwork. If the Kippenberger estate does not object to Kelley’s new work but an outraged Richter claims that his moral rights have been violated by Kelley’s alteration, it is unclear how this delicate situation would play out. Kelley might have a legitimate case, claiming that he is transforming Kippenberger’s work, not Richter’s, in which event the legal case would turn on whether Kelley’s transformation disturbs the “Kippenberger-ness” or the “Richter-ness” of the work. However, a strong counter-argument posits that Richter retains, despite Kippenberger’s sole authorship, the original moral right to “prohibit any distortion or any other mutilation of his work which would jeopardize his legitimate intellectual or personal interests in the work” under Article 14. Even though Richter is not considered a “joint author,” the traditionally powerful connection between an artist and his work in Continental legal philosophy could be important enough for Richter to legitimately object to Kelley’s work.

Richter’s economic rights over Modell Interconti raise different issues. Article 23 provides that transformations of a work may only be exploited with the consent of the artist whose work is being transformed. Richter has granted certain exploitation rights in his painting to Kippenberger: namely, the right to resell the Richter painting incorporated in Modell Interconti at a “Kippenberger price.” However, the scope and extent of such a grant remains unclear: has Richter effectively relinquished all economic interests in the work? For example, under the droit de suite or artists’ resale right, artists whose works are resold on the secondary market through an art dealer or auctioneer stand to receive five percent of the resale price as royalties. In the absence of express agreement between Richter and Kippenberger, it would appear that any royalties from the resale of Modell Interconti as a work of sole authorship by Kippenberger would accrue solely to Kippenberger’s estate. From a policy perspective, Richter is unfairly disadvantaged given his critical contribution to the work.

A delightfully bizarre situation could arise if Richter, having granted exploitation rights in his painting to Kippenberger, has a change of heart and decides to revoke this grant. Article 42 provides that an artist with “changed conviction” about the work in question may revoke previously granted rights and “equitably indemnify the holder of the exploitation right.” First, it is unclear how Richter could practically exercise such revocation since Modell Interconti is already a famous and now physically indivisible artwork; however, it would also be unjust to deny Richter such right of revocation. Barring this, as Richter is clearly the economically compromised party who has seen his painting “disappear” into Modell Interconti, the result would indeed be ironic if he were required to indemnify the Kippenberger estate for lost future earnings from the revocation. These legal tangles would, no doubt, have Kippenberger, the eternal prankster, chuckling from under his own gray slab.