A dispute has recently arisen involving a work by famed spot-painter Damien Hirst. The series of multi-coloured spots had been painted directly on the wall of a home in Fulham, London in 1988. Hirst then issued the owners with a certificate of authenticity dated April 1989.

The house was then sold (twice) and the current owners removed the spot painting from the wall in 2007 and had it mounted on to an aluminium backing, all of which was done by experts. Now the current owners want to sell the spot painting.

Hirst, through his company Science Ltd, is demanding that the painting be returned to him and destroyed. This claim is based on a provision in the 1989 certificate which provides that the ‘piece must be painted out before it is re-made for anywhere else’. The argument put forth is that, when the original owners sold the house, they should have had the painting covered over.

There are several interesting legal issues that arise out of this dispute. First, is the question of ownership of the spot painting. According to the report, Hirst is alleging that the work belongs to the owner of the signed certificate which accompanies the work. Because the current owners do not have this certificate, it is claimed they are no longer owners of the work.

But is this so? If they bought the house and the spots were painted directly on one of the walls, are they not the veritable owners of that piece? Does anything change by the fact that the piece has been removed from the wall and mounted onto a different backing?

The second issue relates to the potential moral rights claims that an artist can raise in the UK. In France, where the moral rights regime is very strong, an artist would be able to assert his or her right to withdraw (droit de retrait), which could potentially allow a dissatisfied creator to bar any further public display or dealing with the work.

However, in common law countries, like the UK, where moral rights are afforded much weaker protection, no such right exists. Someone in Hirst’s position would have to rely on the right ‘to object to derogatory treatment’, which would involve demonstrating that there had been a distortion or mutilation of the work or that it is otherwise prejudicial to the honour or reputation of the artist. Can it really be alleged that Hirst’s honour or reputation are affected by the change in mounting? On the other hand, the current owners’ interest in selling a work which was never meant to leave its house of origin, could perhaps constitute such a prejudice. But is this enough to have the painting ‘returned’ to Hirst, or indeed for him to seek its destruction? That would be another story entirely…

Finally, there is the issue of the certificate of authenticity. It is being reported that Hirst is claiming that the certificate ‘certifies ownership‘. A spokesman then said: “Someone being in possession of the painted wall surface without the certificate does not have any entitlement to the work.” One must wonder if this is indeed true. Can the absence of such a certificate automatically nullify one’s ownership in a work?

Of course, the art market may see things differently. If there is a Hirst collector interested in purchasing the spot painting from the owners, it would be difficult for anyone to demonstrate that this particular piece was not by Hirst, even without the certificate.

The devil may be in the details. Or, more aptly, in the spots.