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| Fidelio Programme 1982 featuring Tony Fomison as designer |
In March 1982 I had the good fortune to be introduced to Tony Fomison (1939-1990), now considered one of New Zealand's major fine artists of his time. Fomison was already a well known fine artist in Auckland and Hamish Keith CNZM, OBE the then Director of the NZ QE II Arts Council suggested he would be the artist of choice to commission for the mise en scene for my production of Beethoven's opera Fidelio to be given in the newly decorated and upgraded Concert Chamber of Auckland Town Hall. Keith introduced me to him.
The way I came to involved in this venture which saved this attractive and historic Concert Chamber is another story but against all odds, I saved it from being destroyed and being turned into a bar but in return, I received an opera/ballet company. The strangest opera/ballet company ever as it was made up of all the brilliant but under-employed professional Auckland Artists of 1982 and there were a lot of them, on the wonderful Project Employment Scheme. TEP. (Project Employment Scheme).
I meant to start with the best opera ever written and that for me meant Beethoven's Fidelio perhaps the greatest cry for freedom ever composed and hence my collaboration with Fomison who had a reputation to be eccentric and difficult. Nobody gave me a hope in hell of getting him to work for me, a seemingly middle-class woman.
On Keith's suggestion, I rang Fomison. I had a memorable first meeting with Fomison one night in mid-March 1982 in his tiny villa in Ponsonby. We both just clicked. It was a meeting of equals. Fomison knew where I was coming from and I him. To most people, I come across as the usual middle-class woman but any true artist recognises another artist immediately that I am a bit special. The other genius that saw a quality in me was Benjamin Britten who opened up to me about his music on one or two occasions when I was employed in his operas at Aldeburgh. Although I was a girl of 19. Britten and Fomison were very similar and both let me in as it were to their special worlds.
Fomison was living in a very humble manner and I was too at the time. We were financially poor. Both of us had restricted incomes but Fomison was definitely worse off than I. In my case my husband Dr Miles Heffernan, though a GP for many years had been attacked violently in his surgery and nearly killed just before this period and could no longer face medical practice. Fomison was in very ill health in early 1982 although at the time I was unaware of this. A trip to Samoa had been cancelled. He was an alcoholic and a drug addict. I did not know this either. Fomison's house, humble as it was, was perfectly organised, better than mine. He made me tea served out of blue china cups at the kitchen table and talked and talked.
That night I explained what I needed. I would commission him as the scene designer o. I needed two original designs, preferably in oils but they could be on paper. I could only afford two, that I could use as slide projections for my production as I could not afford a painted backcloth this time. We would make the scenery around them and I would show them in the foyer of the theatre and slowly build up a collection of NZ fine art for posterity that I could sell if times got difficult. I was pioneering theatrical projections, as seen at the 2014 Olympics, much to Auckland's horror as Auckland audiences preferred painted canvas scenery for opera. Fomison had never encountered Beethoven's Fidelio before but when he heard the plot of the plan of a wife to rescue her husband from imprisonment he became immediately emotionally involved.
For the rest of the night, Fomison recounted his extraordinary life as a student in Paris where he had gone to study. How he had been destitute and had sat down with his chalks and drawn on the pavement only to be arrested for vagrancy as he had no license to do this. Having no money to pay the fine Fomsion found himself in a Paris jail for three months and he said this was the worst months of his life.
Fomison described in detail the horrors of the Paris prison system. The lack of food and warmth. According to Fomison the management deliberately starves the inmates to avoid revolts. Fomison said the prisoners were so weak they could hardly stand and the only thing they wanted was to sit down. Consequently, in my production, the prisoners crawled out of the dungeons into the light and sat down. I said insisted that one of the paintings had to have a hopeful and radiant outlook. Fomison said he would do his best. Hopeful was not is his artistic vocabulary. Fomison did not do optimistic!
Since about 1962 all Fomison's paintings had been with dark backgrounds but I had changed the usual dungeon into a Soviet-style medical mental ward where the Soviet's kept their political prisoners so I needed a hospital ward which is usually light in colour. For the first time in many years in 1982, Fomison rediscovered a white background and I am told went doing so. It was the beginning of his greatest period of work.
The scenery had to be original as I wished to feature this in my advertising. Fomison said he would paint the two pictures. He was hopeful that the Queen Elizabeth Arts Council II (QEII) would give me a grant. I said this was unlikely as this body never funded small organisations but a few days later out of the blue I received a phone call saying the QEII had just heard I had commissioned Fomison and the QEII might be able to help with expenses for my production. I had approached the QEII about my PEP project and told them I wished to use fine artists but I never told the QEII I had done so. I was about to give up on the PEP scheme as the Labour Department had brought the scheme forward about three months and had not left me enough time to plan but both the QEII and Labour Department we so enthusiastic and offered help with production expenses that I was almost forced to go ahead which I did. Sometimes one has to take a risk and I knew that the artists were worth the effort.
I am very cautious, I am not really an entrepreneur. I knew I was responsible for the Fomison commission and Fomison had already started, in fact, he finished well in the time allotted which was a week for each, so I knew I had to pay him but at that stage I was not responsible for 20 PEP clients, many other artists I should have to employ and hiring the Town Hall for 6 months at least. I should only have had to hire The Concert Chamber for two weeks!
Then it all went wrong as things in the arts have a way of doing. A fortnight later The QEII withdrew the offer in writing. This unfortunate letter exists somewhere in the QEII archives. Perhaps this offer should never have been made? When I objected the reply was that it was my problem and as I commissioned the paintings and I would have to pay for them. They were my responsibility, not the QEIIs. Although I protested I never heard from the QEII again and I never had one QEII grant. Not one! Eventually, the Northern Regional Arts Council (NRAC) came up with a tiny grant for loss which did help....a bit. The NRAC's excuse for no funding being I was getting help from the Labour Department and no applicant could be funded by the government twice.
In 2019 the documents from the NRAC and the QEII turned up in discovery for my copyright case against the Auckland Art Gallery and they prove that what I said in 2014 was absolutely true.
Fomison at first refused to deliver the painting to me saying they were wet and there were problems. I said I had commissioned them and I had to have them for the production staff for costumes and to get the set built. I was very firm and he delivered them. For a period in May 1982, I had them in my house and had them photographed by Graham Creamer, the official photographer for Television New Zealand and of course they were used by the production staff for costume, scenery and lighting. These paintings were after my designs for my production.
Strangely just before the production, Fomison begged me to return them for technical reasons so he could supervise and control the drying. Fomison made his own oil paints using an egg tempera method of long ago and he was afraid they would flake. This he said could take months and they would be safer with him. My house with a young child was unsuitable. I had plenty of other oil paintings that came to no harm! I believed him and I trusted him. Like an owner returning faulty goods, this did not alarm me. I did not want to do this as Fomison knew I was to exhibit them in the Foyer of the Concert Chamber. I was most put out. I never saw them again until years later.
At the time I was very naive. Had I known what I know today both of these paintings would be back on my walls for under the unique NZ Law Commissioning Rule, the commissioning party owns both work and copyright. The Copyright Work belongs to the commissioner and the artist becomes what is known in law as the author. I have never sold or given the rights away but both of these painting have found their way illegally into major institutions as can be seen above where I encountered Fidelio Act I & II again on the walls of the Auckland Art Gallery after searching for it for 33 years It had been on the disappeared list even in 1990's the book listing all his works.
Nemo dat quod non habet. Latin for You cannot sell that which you do not own
Fidelio Act I also known as Leonora has been in the possession of the Bank of New Zealand since it was bought in 1983 where it has been on show in Wellington and exhibited around New Zealand. Fidelio Act II also known as Beethoven is now in the possession of The Auckland Art Gallery as a gift from the Chartwell Trust in 2009. Both institutions are reluctant to recognise that I commissioned Fomison but I did. These are not Fomison originals. I had plenty of input. In 2018 I found had my pre-production notes that everyone worked from and they are quite clear.
Fomison left his archives to the Auckland Art Gallery. Being intrigued in 2014, just after discovering my Fidelio Act II on its walls, I searched the Fomison archives and in file 14 I found the reference to myself and my production. Fomison had kept everything, a letter in my handwriting, thanking him and sending him a cheque, I always pay my artists and bills. The letter ended with the words that I looked forward to showing one of the works the foyer. I meant to keep the other at my house, just in case because I found out that theft of my property at the Town Hall was a constant losing battle.
A scrap of paper in his own hand which said:
There was the programme designed by Ross Fraser poet and artist, and friend of William Dart, editor of Art New Zealand where Fomison is credited as being the scene designer for the production."Painters are like composers, they are one man bands but that's no reason why compatible talent shouldn't get it together occasionally as it happened."
Fomison was and hands-on as he and my husband had overseen the projection of the many of slides that were used which had been given to us by Amnesty International for this production as well as Fomisons. Government import restrictions had meant that instead of having two Kodak Carousel projectors with fader we were reduced to one Kodak Carousel and one 1939 project with fades done by hand. Fomsion and my husband became great pals and Miles knew Fomison much better than I.
In 2014 in the Fomison Archives which are held by the Auckland Art Gallery there was also some very strange notes and correspondence of events of 1982 for which I knew nothing at all except that I was only to be allowed to have the pictures for 3 days! For a Sale of Good Act Sale 1908 (1) the Artist, if First Owner, must never deliver the goods! Was I being set up for this type of perfectly legal sale where an artist can get two fees for one painting? I wonder. Eventually, Fomison got two fees. In a 1991 Thesis on Fomison by Lara Strongman for her MA1983 Fomison's financial position and had deteriorated. He had had to sell his Ponsonby house and my pictures. He failed to get me to sign a certificate of transfer for the painting or the copyright. Did he know of The NZ Commissioning rule? I wonder.
It appears that in 1982 Fomison had planned an exhibition of his work and asked all his clients including me if we would allow our artwork to be exhibited. When asked if I would I said I would think about it. This was to be a retrospective vision of his work, not a sale but there was no exhibition in 1982.
The second typed letter supposedly sent to Fomison by myself is a forgery! This typed letter was not signed or written by me although it is very convincing and Fomison must have believed that it was from me as he kept it. I was shocked when I first discovered this forgery 34 years and immediately informed the curator. It did puzzle me for years. I expect it has a very innocent explanation. I could speculate but I have no evidence that could prove it so it will remain a mystery.
A year in 1983 later Fomsion had added a newspaper cutting about myself as I had been made a Plunket Auckland Woman of the Year 1983 for my work in the arts. I found this so moving that he kept it.
One vital piece of evidence is missing. The transfer of the Copyright Title from me to Fomison. This is needed by law if the author of the copyright work is to claim Title himself. Like a photographer who is commissioned to take a portrait for a customer has to ask for a transfer of copyright from the customer to the photographer at the time of commissioning Fomison should have done this on that night in March 1982. It is The Commissioning Author's responsibility to do this. Fomison didn't. Fomsion was a squirrel, if there had been such a transfer it would have been kept in these archives. The transfer is conspicuous by its absence.
For 33 years our joint achievement has been airbrushed out of history. LCM Saunders music critic of The NZ Herald did not even mention him although the critic had the PR handouts and programme where Fomison is credited. The only recognition we had was from William Dart and his then partner Ross Fraser who designed our advert in an article in Art New Zealand a few year's later. As Fraser was a friend of Dart, Dart quite rightly kept his distance as a critic. Even Lara Strongman left me out of her Thesis in 1990 but that is not surprising as everyone else in the media had done so and at that time she would not have had access to the archives which were only on show since 2014.
Even the name on the painting and its meaning have been lost but thanks to the internet at least a bit of its history can be corrected. The painting is the plea and hope of a prisoner for freedom. The prisoner is Fomison. Fomison had been there and done that! It should be titled Fidelio Act II! One day it will. It is one of his most beautiful paintings and perhaps the easiest to live with.
Today if we mounted this production it would receive major funding, The Aotea Theatre and the NZ Symphony Orchestra with a guest list of opera stars. It would cost millions but we did it in a small theatre, with simple staging and a collection of slides on a shoestring. I was not allowed to import a suitable projector because of import restrictions at the time. It was magnificent, Tony said it was Strong Stuff we never argued, we trusted each other artistically but I never saw him or his paintings again until now. He died 8 years later in 1990. To say I admire him is an understatement and I am sure he admired me too. Maybe he knew what happened to the paintings was murky. I like to think that Tony Fomison just did not grasp the implications of being a commissioned artist although I feel sure whoever was his agent did and new well the rules for Bought in Good Faith, or how to get two fees for the same painting, selling on!
The paintings were sold on through RKS Galleries in 1983 but without a legal title. Under the Copyright Act of 1962, I am, as commissioner, the First Owner of the Copyright and copyright works. The paintings are still my legal property and to make the sale legal the buyers have to have a transfer of title from me in writing to make the sale legal even if the buyers Bought in Good Faith which I am sure they did.
I don't think Fomison ever collaborated again but I hope now our project will be recognised as a brave attempt to give artists the freedom to express themselves in new and original ways.
One day soon I hope to get my Fomison paintings back from The Auckland Art Gallery and The Bank of New Zealand but the going is going to be tough. Both considered these paintings, which only came to be through me to be among both galleries treasured possessions and both appear to have copyright arrangements in place. Discovery has shown that the Auckland Art Gallery does not have one and the BNZ has acquired one from Mary Fomison, Fomison 93-year-old mother in the full knowledge of both parties that this was disputed copyright. Both are powerful corporations with vast pockets and determination not to give the paintings back to the First Owner so that she and enjoy and benefit from them.
Sadly I have seen my commissioned artwork just a handful of times and now both are locked away. in a vault. Both could be sold on internationally and I shall never see them again but the Berne Convention for Art Theft to which NZ is a signatory, that came into force because of this type of Bought in Good Faith sale, The Third Reich was very good at it, all paintings sold in this manner have to be returned to The First Owner me! I have never transferred the titles in writing.
In 2019 I am now nearing the end of my life, so it is important that the world knows and understands my side of the story. All I have said can be referenced. I have tried and will try to the end of my life to have at least one of my paintings restored to me as they have cost me so much and I want to leave on public record what has happened. Maybe I shall have a happy ending in my lifetime maybe not but
Fidelio Act I & II will live on.
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