Art And The Eight Foot Hole

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Art And The Eight Foot Hole


Today, I want to talk about a recent story that has a dash of all the drama that we encounter in “art law”. This event includes artists, installations, museums, liability, injury, and a good amount of interesting commentary. Read on…

I must confess that I have a special affinity for Anish Kapoor. The British artist who created Cloud Gate (2006) — which is commonly known as “The Bean” in Chicago’s Millennium Park — and other large-scale sculptures and creations, has been in the news recently (h/t to for an incident involving his new exhibit called Descent into Limbo which is currently installed at the Fundação de Serralves Museum of Contemporary Art in Porto, Portugal.

Here are some pictures of Descent into Limbo:

[Photo: Courtesy of Filipe Braga/Serralves]

[Photo: Courtesy of Filipe Braga/Serralves]

[Photo: Courtesy of Filipe Braga/Serralves]

In case you can’t tell, Descent into Limbo is a very black 8-foot deep hole set into the floor. The absence of detail due to the deep black lends a feeling that this might just be a painted circle on the floor. But, it’s not. It is, in fact, a deep hole… a hole a patron at the museum in Portugal fell into on August 13, resulting in his hospitalization!

This is not a new installation. In fact, it was created in 1992 as part of the “documenta IX” contemporary art exhibition. But the event of a few weeks ago is new, and brings up multiple interesting legal questions. (We will, for the moment, set aside the heated dispute about Kapoor’s acquisition of the exclusive rights to the “Vantablack” pigment, which I will cover in another post.)

First, you have the issue of liability. Often, no matter the safety precautions (which the museum had in place) or the warnings, bad things happen. And just as often, lawsuits result. In the United States, it is relatively common practice to sue everyone involved — even if they have reasonable “defenses.” In this case, that would include the museum, and possibly even the artist. It is unclear at this time if a lawsuit is in the offing, and, to be candid, I am not well versed in the nature of injury lawsuits in Spain, but I will be watching the results of this matter closely. In general, let this be a cautionary tale for museums, galleries, and artists… all parties need to have proper insurance helping to defray the significant costs of litigation.

Second, in the law we often think of injuries that would occur without the forethought of the artist, i.e. a painting falls on a patron’s foot. But what about when the work is of the type that might be considered an “unreasonably dangerous” condition? I am sure an argument would be made that a 8-foot hole in the ground could fall into this category.

Finally, stories like this remind me of the fact that once a work is “given” over to the public, there is no telling what will happen. While this story is rather unique, all attorneys have heard stories about the craziest things happening to works once they have left the hands of the artist.


[Cover Photo: By Paola Martinez Fiterre, courtesy of Galeria Continua]


About the Author

Thomas Maddrey is the founder and managing partner of Maddrey PLLC. Prior to attending law school, Tom was a commercial photographer, entrepreneur, and gallery owner. His work in both the arts and as a business owner has given him a unique perspective on the needs of owners and creatives, as well as an understanding of the obstacles they face.

Learn more about Thomas Maddrey HERE.

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