One example of an allegation of gross negligence occurred in the 2001 Southern District of New York case Flack v. Friends of Queen Catherine, Inc. (discussed in Brothers in Law, March 2005). The artist Audrey Flack claimed that the non-profit organization Friends of Queen Catherine, Inc., which had commissioned her to create a statue of the 17th-century Queen Catherine of Braganza, and the foundry involved had been grossly negligent when they hired Flack’s assistant David Simon to restore the face on her sculpture. (The face had been damaged when the defendants placed it in what Flack termed a "garbage dump.") Flack alleged that Simon was "a mere assistant who was not trained in conservation, [and] was not competent to perform work without supervision." Flack further claimed that Simon had sculpted a "distorted, mutilated" work in which the nose, nostrils, eyes and lips were uneven and the wrong size.

Flack sued in part under the Visual Artists Rights Act of 1990 (VARA), a federal law which grants the authors of visual art of "recognized stature" the right to prevent any intentional distortion, mutilation or other modification of an author’s work of visual art that would be prejudicial to the artist’s honor or reputation. vara specifically states that "modification of a work of visual art" resulting from conservation does not constitute "destruction, distortion... [or] mutilation" unless the conservation was done with gross negligence. But Flack alleged that hiring the restorer rose to the level of gross negligence, and the Court found the allegation sufficient to deny defendants’ motion to dismiss. The case was ultimately settled.

We believed that vara was of little help to Stuart, however, since it protects the rights of the work’s artist, not its owner.

Stuart was still incensed, and wanted to denounce Cromwell in the press, but he was worried about inviting a costly defamation suit. Such cases do arise, as with the restorer Goldreyer’s 1995 libel action in New York State court against Time, International. Time had written that the Barnett Newman painting which Goldreyer had restored should be re-hung with a warning sign: "Newman according to Goldreyer." Goldreyer lost that case. Similarly, the Columbia University art history professor James Beck was sued by an Italian restorer for "aggravated slander," a crime carrying a three-year prison term in Italy, after Italian journalists had quoted Beck as remarking in 1991 that the restoration of a 15th-century sculpture by Quercia in Lucca looked "as if it had been treated with acid, cleaned with Spic and Span and polished with Johnson’s Wax." Beck was acquitted.

We tried to console Stuart that his situation could be worse. For instance, in 1992 Paolo Veronese’s Renaissance masterpiece Marriage at Cana was not only spattered by water from a leaky air vent at the Louvre during a storm but during a restoration two days later was also dropped by workers and gashed in five places. Furthermore, in 2001 Leonardo da Vinci’s drawing of Orpheus being attacked by the Furies, a privately owned work that had been discovered by the Leonardo expert Carlos Pedretti in 1998, was reportedly destroyed when restorers tried to clean it by submerging it in alcohol and water but ended up washing away the ink. Pedretti was later quoted as saying that he was amazed that restorers had submerged the piece without conducting tests in advance. In addition, in 1999, after the restorer Pinin Brambilla spent 20 years working on Leonardo’s masterpiece The Last Supper, she was criticized for depriving the painting of its own history by removing the work of previous restorers, thereby creating The Lost Supper.

Stuart, however, was definitely not amused. After all, his was no Restoration Comedy.

Thomas and Charles Danziger are the lead partners in the New York firm Danziger, Danziger & Muro, specializing in art law. "Restoration Drama" originally appeared in the April 2009 issue of Art+Auction. For a complete list of articles from this issue available on ARTINFO, see Art+Auction's April 2009 Table of Contents.