ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Monday, September 25, 2023

The Art of the Steal and the Art of (Not) Paying Damages

Two years ago, Sid DeLong (below left) posted on The Art of the Steal.  The facts of the case are as follows (lifted from Sid's post)

DelongA Danish artist, Jens Haaning, was famous for imaginative art works intended as social commentary. Two of his previous works consisted of real currency pasted into a picture frame, each containing the average annual incomes of Danes and Austrians. The Kunsten Museum of Modern Art commissioned him to recreate these two pieces as part of an exhibition about the labor market entitled “Work It Out.”  Its contract with Haaning provided that he was to receive the equivalent of around $7,000 in expenses plus a government-determined viewing fee. In addition, the Museum gave him the equivalent of $84,000, (534,000 kroner), which he was to attach to the art works as he had previously done. 

Shortly afterward, he delivered two empty picture frames, entitled “Take the Money and Run.” As he later explained, he thereby fulfilled his promise of artwork: “The work is that I have taken their money…It’s not theft. It is a breach of contract, and breach of contract is part of the work.” 

In my own follow-up post, I opened as follows:

However, it appears that he never contracted for the right to keep the 530,000 Danish kroner he was supposed to use to make the art.  The title of his blank canvases could be construed as an admission of liability.  Not having seen the documents relating to the deal between artist and museum one cannot be certain, but it is hard to imagine a legal argument for why Mr. Haaning should get to keep the money.

Meredith MillerNow it's time for the rest of the story, care of our former co-blogger Meredith Miller (right), who now just drops us little jewels from time to time.

Meredith shared with us Doha Madani's story for NBC News, which tells us that the art of the steal is not as profitable as you might think.  A court found that Mr. Haaning had breached his agreement with museum and ordered him to repay the money he was given to attach to the canvases of his works of art (currently valued at about $70,000).  He was permitted to keep his fee.  Mr. Haaning brought a counterclaim, alleging breach of copyright.  The reporting does not explain the legal reasoning underlying that claim, but the court ruled against Mr. Haaning.

True to the take-the-money-and-run spirit of his art, Mr. Haaning does not intend to appeal the ruling, but he also does not intend to pay damages.  He claims that he doesn't have the money. , reporting in The Guardian provides the following quotation from Mr. Haaning at the time he created "Take the Money and Run":

“I encourage other people who have working conditions as miserable as mine to do the same. If they’re sitting in some shitty job and not getting paid, and are actually being asked to pay money to go to work, then grab what you can and beat it.” 

Seen from this perspective, it really would be hypocritical of Mr. Haaning to return the money.  He wouldn't be following his own advice.  Perhaps.  But it is not clear whether he is "sitting in some shitty job," and he definitely was paid.  Unfortunately, his pay may not cover his court fees.

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