Friday, March 31, 2006

The Right to Destroy

Via Will Baude, fascinating article in the Yale Law Journal by Chicago law professor Lior Strahilevitz offering what he calls a "qualified defense" of an owner's right to destroy valuable property -- e.g., artwork. One question he takes up is whether a creator of an artwork should have more leeway to destroy it than someone who acquires it through purchase, inheritance, or gift. One example he mentions is Jasper Johns, who, at the age of 24, decided to destroy all his previous paintings, as a way of "beginning afresh with a blank canvas." The most famous example, which he also discusses, is Franz Kafka, who asked his friend and executor, Max Brod, to burn all of his unpublished writings. (Brod, of course, did not do so.) Suppose the Kafka case were litigated today. Suppose the executor were to approach the probate court for direction. What would the result be? Most courts would strike the direction to destroy on grounds of public policy. Strahilevitz says that's wrong, that we'll get more rather than less great artwork if artists know that their wishes will be respected. In addition to this economic argument, there is also the very strong argument from personal/artistic autonomy: quite simply, as Joseph Sax put it in his 1999 book "Playing Darts with Rembrandt," an "artist should be entitled to decide how the world will remember him or her."