The following letter was written, signed and sent to us by the Guggenheim Museum’s Panza Collection Initiative team, who are Francesca Esmay, Jeffrey Weiss, and Ted Mann. The foregoing have penned the essay as a response to Peter Karol’s article “Why Did the Guggenheim Decommission a Donald Judd?” published in Hyperallergic’s Sunday Edition on May 31. It has been edited only for stylistic concerns and grammatical consistency.

Below this letter is a response to it penned by Peter Karol.

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The Panza Collection Initiative team:

We welcome Peter Karol’s extended reflection on topics at stake in the Panza Collection Initiative, a project organized by the Guggenheim Museum with support from the Andrew W. Mellon Foundation. Mr. Karol’s chosen focus, the act of decommission, is especially significant in that it directly addresses the status of the object and the rights of artist and collector alike in art of the 1960s and ’70s. To be sure, conclusions drawn by the museum with respect to the fate of compromised and/or contested works acquired from Giuseppe Panza (in 1991–1992) should be open to vigorous debate — something to which our project has been devoted. This includes the most notorious case of compromise: 16 works by Donald Judd that were either fabricated by Panza with little or no supervision by Judd or his studio, or acquired with the understanding that they were to be realized at a later date. Mr. Karol’s carefully reasoned article contains many important points. However, it also contains several errors and misstatements, which we are writing to correct.

The first, and most significant, is his repeated reference to “certificate-based” art. The work of Donald Judd is not, and never was, “certificate-based.” The term might loosely apply to the work of his conceptualist contemporaries and some others, but it is anathema to Judd. Judd did, indeed, agree to sell a number of as-yet realized works, through gallerist Leo Castelli, to Panza “on paper,” in the form of sales contracts. The practice was instigated by Panza, not Judd, and was one that, given his experience with Panza, Judd would deeply regret. It is true, as Mr. Karol says, that Judd did not fetishize an “original” or first version of a work. Objects were not made by him and were not understood to be intrinsically unique; they could be replaced if necessary, with no loss of authenticity. But the authority to do so was his. Judd cared deeply about the materials and methods of fabrication. He did not sell Panza works in the form of “certificates” that supersede the necessity or the right of the artist to control the production of the object in the future. Rather, he sold Panza works to be realized in the near future with the participation of the artist and according to his strict standards of fabrication.

Lest we appear to be splitting hairs, we want to emphasize that the difference between Judd’s practice and one that is “certificate-based” means that the owner must respect Judd’s authority over his own work with regard to its making. That, in any case, was absolutely Judd’s understanding of the document he was asked to sign.

Mr. Karol does not challenge our determination, in agreement with Judd, that Panza’s fabrications were fatally flawed. He does, however, overstate the admittedly convoluted implications for ownership. The contracts in question (drawn up by lawyer Jerald Ordover) were new to the art world at the time. They strongly favor the collector and mean to award Panza a startling degree of latitude over the making of works. But they also make clear that production, even if not pursued firsthand by Judd’s assistants, was to be subject to a set of plans and specifications submitted to the collector by his fabricators — in the case of the plywood works, Peter Ballantine. These plans were actually submitted in several cases but were not adhered to by Panza.

Unlike the role of the certificate in the case of some other artists, the sales contract does not represent the right to build the work without the close participation of the artist. Panza presumed to have such a right, but that was a misunderstanding on his part — one that Judd, in exchanges with the collector, tried to rectify. To be sure, Judd and his studio were, at times, inconsistent in their expectations; these conditions of ownership and fabrication were unfamiliar, and they bred miscommunication on both sides. Nonetheless, some good faith between Judd and Panza was apparent, at first. Finally, however, after Panza repeatedly ignored Judd’s entreaties and demands, the artist came publicly to denounce Panza’s actions.

The fact that Judd’s work is not “certificate-based” means that the Guggenheim does not possess the right (never mind the responsibility) to make the work on its own. Were Judd still alive, it might be possible to convince him to authorize the fabrication of new, correct versions of the works. In fact, the museum made efforts of this kind during the early 1990s, but Judd died in 1994, before any such agreement with the museum could be reached. Posthumous refabrication is, then, technically speaking, possible, but it would directly violate Judd’s wishes. Further, it is a practice that, in general, has been rejected by Judd’s heirs and the Judd Foundation. We agree with that choice and believe that jurisdiction over the production of his work began and ended with Judd.

Contrary to Mr. Karol’s claim, to decommission the works in question is not to erase them as works per se — something that no one has the power to do. Rather, the act of decommission assures that faulty objects — misrepresentations of Judd’s work — are kept from being shown as authentic examples. The work still belongs to the history of Judd’s practice (and, in fact, to the exhibition history of some of Panza’s faulty fabrications), but a viable, artist-authorized version of it does not exist, and never has. Therefore, in the context of museum ownership, to decommission the work is to remove the object from circulation rather than allow it to be wrongly remade or shown. This loss is a hard one. Yet works of art can be lost to time for many reasons, something we all find difficult to accept but must admit is inevitable.

We want to add that, over the course of some nine years, the work of the Panza Collection Initiative was conducted with full transparency before our advisory committee, noted by Mr. Karol, as well as other members of the museum staff, including the director, and, crucially, the museum’s board of trustees. These deliberations were lengthy and painstaking. While we benefited greatly from the opinion of the members of the advisory committee, most of whom supported our formulation of the category of decommission, the decision regarding the contested works by Judd was the museum’s to make, not theirs.

Other works acquired by Panza are, indeed, understood by the artists in question (for example, Lawrence Weiner and Bruce Nauman) to be subject to posthumous refabrication, always according to standards that have been discussed with the artists and their studio assistants. The Judd case is complicated because of the vexed question of the significance of the sales contract, which Panza took to grant him permission unintended by Judd. That means that, contrary to Mr. Karol’s recommendation, our determinations regarding his work must not be made through a generic or categorical recourse to “certificate-based” art.

Finally, while, as Mr. Karol states, Judd may not have possessed “few if any legally enforceable moral rights” in the US during his lifetime and “fewer after his death,” our reference (at the museum’s public conference) to moral rights was not a mistaken appeal to an imaginary law. It was, instead, intended to posit that such rights pertain regardless, and that they should always be given consideration in deliberations of this kind. They are hardly moot just because they don’t exist as law. In this regard, the category of decommission represents an effort to treat Judd and his work responsibly and with respect.

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Peter Karol:

I appreciate the respectful attention the museum authors have given to my critique and their openness to debate on decommissioning. They seem, however, to suggest that our divergent views result from factual disputes (or, more ominously, “errors”). But that is not the case. We agree on the material points. Clearly, there should be no one-size-fits-all approach to certificate-based art. Every artist’s practice was (and is) different. I certainly did not and would not advocate for a categorical approach to decommissioning — in fact, that is my core argument. The category itself — the very notion of decommissioning works in the abstract — is superfluous and limiting.

Judd, to focus on his case, was a sophisticated and successful artist who outsourced much of his fabrication process. He chose to sell certain works in the form of documents, for a substantial sum, prior to fabrication. Did the contracts permit Panza to instantiate the works without Judd’s express approval?  Yes, on a fair reading. Panza required that. Did Judd later regret granting that power, deny its authority, and disavow works created pursuant to it? Yes, without a doubt.

The meaningful question is not whether these documents, literally entitled “Certificate,” manifest a form of “certificate-based art.”  Rather, it is what to do with the discrepancy between the objective terms of the certificates and Judd’s later-stated intent. Or, more to the point, whether to do anything with it at all. To claim certainty about how to proceed in the face of that gap is to oversimplify the case and the aesthetic. Yet to decommission is to speak in absolutes.

Most problematically, it is a false choice created by the institution itself: Why make any formal decision in these cases when nobody (except, maybe, an estate or artist-endowed foundation) is asking for one? When the Guggenheim decommissions a work, it renders a final judgment and denies others the ability to come to their own conclusions. It is, in other words, a needlessly narrow approach to art stewardship.

Seph Rodney, PhD, is a senior critic for Hyperallergic and has written for the New York Times, CNN, MSNBC, and other publications. He is featured on the podcast The...

One reply on “Guggenheim’s Panza Collection Team Responds to “Why Did the Guggenheim Decommission a Donald Judd?””

  1. ‘The meaningful question is … what to do with the discrepancy between the objective terms of the certificates and Judd’s later-stated intent. Or, more to the point, whether to do anything with it at all.’ Nice sidestep. There’s nothing objective or neutral about the language in a contract though.

    I don’t think Karol sees the beauty in how the certificates and the fabrication, exhibition, and (sometimes) disposal of these works plays with ideas of intent, authorship, ownership, and the art object, all at the expense of the art market and academia. He seems to be more on the side of preserving works by artists-as-brand names for the sake of the “public”, all while ignoring the ethical ramifications of dismissing moral-rights arguments because of the discrepancy between them and how U.S. law functions (and that without questioning IF it functions, and for whom). That he chooses to further validate Panza’s reading of the certificates is troubling, but not surprising.

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