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Carlo Eligio Mezzetti
Foro Buonaparte, Milan
CMezzetti@nunziante.it
Gloria Gatti
Studio Legale, Milan
gg@studiolegalegatti.mi.it
Picasso said: ‘Good artists copy; great artists steal’, and the German artist Joseph Beuys thought that ‘every man is an artist’. We hope so, because creativity is not the prerogative of a few and everyone has something to express, to tell, even when the discovery of hidden talents can emerge thanks to a tutorial, a copy or a theft.
The news about Ai Weiwei dates from a few months ago: the artist put on sale the work Safety Jackets Zipped the Other Way on a popular German do-it-yourself website. You only need a few clicks and a credit card to put it into the shopping cart and create ‘a work of art by the artist’, the same artist whose auction proceeds often exceed $1m.
‘I made this work for the public, for the people who are not necessarily art collectors or museums’: these are the words of the artist who, at minimum expense and the good will to follow his instructions, promises both great results to buyers and a democratic piece of art that is available to everyone.
Yet Ai Weiwei’s idea is not new. In 1989, Rudolf Stingel signed Instructions, a book that guides readers on how to rework his paintings; the designer and artist Enzo Mari, in 1974, offered visitors to the Galleria Milano both drawings and instructions to recreate a series of furniture. And, recently, Autoprogettazione, a book published during the lockdown, allowed people at home to create the works of more than 70 contemporary artists following their instructions.
If, physically, it is not the artist who gives life to the work, can we still refer to him as a ‘true’ author? And, consequently, will he always hold the rights to the work?
Cattelan’s bananas, which he taped to a wall at an art fair last year, had already put these questions before us and our conclusion was that authorship could be invoked with the application by analogy of the precedents that had recognised protection as a copyrightable work to cookbooks (as to Italian case law, see Corte App Milan, 17/03/2000, Trib Milano, 10/07/2013 No 9763 and Trib Casale Monferrato 11/11/2013).
Yet, while Cattelan’s instructions for reassembling Comedian are secret and the prerogative of only the three privileged buyers (this exclusivity justifies the cost of $120,000), the instructions for Safety Jackets are instead available to everyone and can be downloaded from the Hornbach website. The certificate of authenticity is also available to everyone: even those who do not buy the life jackets can have a free copy of them.
We do not know whether this is a brilliant marketing stunt or a questioning of the entire contemporary art system (‘I could do it too’), the market for which is often based solely and exclusively on the transfer of ownership of the certificate as a guarantee of authenticity and exclusivity – even if Cattelan and his secret manual for attaching a banana to the wall is the object of satire.
What is certain is that whoever buys Horbach’s material even elsewhere (the artist has not put any constraints on it) and follows Ai Weiwei’s instructions will be able to create an original work that can be resold as such, because the only thing the artist has reserved for himself is the paternity of the idea, which pertains to the genius of a real artist, but is hardly copyrightable.
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