Areas of Practice - Art Law
There has never been a legal definition of art. In fact, the best cases on the subject express the court's duty to not define what art is. It is not the purview of a judge to say what is and isn't art. That is for the artist, the critics, dealers and the audience to decide. The law's duty is to make sure that the dealings between these groups.
However prudent the judicial shyness from defining art in the courts, it does make it difficult to define what Art Law entails. Suffice to say, just like in all the other areas of practice described here so far, Art Law is a combination of laws created for other legal areas as well as specific statutes dealing with unique complexities of the subject.
Art Law touches greatly on Copyright law, as one could imagine for creative works, but, there is also a great deal of other areas involved as well. There are work made for hire vs. independent contractor concerns, property laws of chattel, personal services contract concerns, as well as many others. And if you consider that Art is a commodity that traditionally knows no national borders there are international trade and property right concerns as well. There are quite a number of specific statutes created strictly to deal with art related issues unique in law, some of which are discussed below.
Art law is nearly as illusive when trying to define it as much as its subject matter is.
To give a hint at the complexities involved in art law, here are a couple of scenarios where the legal concerns encounter unique difficulties.
Performance artists have an inherent difficulty in protecting their work in that their performances, unless carefully prepared, will not be protected by Copyright. Copyright requires that the expression be "fixed" in a medium. A performance artist's work is often spur of the moment, interaction. Unless a recording or some legitimate notation of the work is being made, it cannot be protected by copyright. So another artist copying the first's performance exactly is not infringing on the copyright of the first. In fact, it would be difficult to establish that the "theft" has broken any law. Interestingly, in some other countries extemporaneous speech is protectable under the relevant Copyright laws in those states.
A sculptor is commissioned to create a work for a public space, based on her reputation in the art community and past works. The commission is dutifully performed by the artist, working months in her foundry and workshop. Days before the building is completed and ready for its grand opening the sculpture is delivered, on time and on budget. The government official in charge of the whole project comes down to get a sneak peak of the work and its fitness within the space. Unfortunately the official utterly hates the work, thinks it is disgusting and argues vehemently that the piece ruins the aesthetics and purpose for which the building was constructed. If we assume the contract for the creative work is sound and valid, the artist met all of the criteria stipulated and the government met all of its conditions in the contract, there are a whole lot of questions that remain that are difficult to decide upon.
Does the official have the right to NOT show the work in the space as contracted? Does the artist have the right to object and force the work to have to be displayed as planned? Can the artwork be destroyed by the people who paid for it or does the artist have a say and a stake in the preservation of the creation? Does the artist have a right to be paid for all the months of work put into the project or is the payment for an "acceptable" finished piece? If cooler heads can agree to alter the work to better fit expectations, who pays for the alterations? If it is decided the piece must be removed, who is required to pay for that? There are precedents, statutory dictates and public policy that can guide one through some of these questions, but, to the unprepared such hiccups can be daunting and frustrating.
These examples show that even the most prudent and forthright attempts at handling artistic endeavors will run into legal bumps in the road that are unique to the the practice of law and the Arts.
Unique Legal Issues
Some of the specifically "arty" legal issues an Art lawyer should be familiar with include:
Although not a large consideration in the United States in most jurisdictions, the concept of Moral Rights is still a strong concern where art is concerned, especially where international sale and transport may be an issue. Moral rights are often described as a parallel right to copyright in a work. It is where the creator vests some part of themselves into the work and therefore should have some way of protecting their efforts and reputation so invested. Moral rights are not granted in all countries and those that do grant them do not always grant the same ones. There are common concepts amongst the offerings that can be identified as potential moral rights.
Rights of Appellation (aka Paternity)
As I like to call it, the right of appellation is basically the artist's rights to be named, to not be named and to not be misnamed as the creator of a work. This right speaks directly to the reputation of the artist by association to works created by that artist.
Rights of Integrity
Some states grant rights of integrity which allow the creator of a work to protect the work against destruction or against distortion (by addition, alteration, amendment, deletion) even by the rightful owner of the work. This right to keep the work whole and as originally intended touches on the reputation of the artist.
Other Moral Rights
Other moral rights granted by some foreign states include: the Right of Disclosure – the artist's right to decide when a work can be published or presented to the public, the Right of Withdrawal – the right of the creator to remove the work from the public view even to the point of taking back the work from a rightful owner (with proper compensation), the Right to Access, Amendment, and/or Alteration – where the artist is granted a right to see his or her work, and even alter a work even after it has been sold. These are some of the strongest moral rights and exist in countries where the idea of a work containing the soul of the artist is paramount.
Although there are no Federal laws particularly granting moral rights and the nation's courts have taken dim views towards trying to establish claims by common law, some states have a few statutes in the moral rights vein.. For example, New York has a statute that grants a form of a right of appellation. (N.Y. Arts & Cult. Aff. Article 14 - 14.03. Artists authorship rights.) This law allows a New York artist to complain if a work attributed to her has been altered from its original. It is a limited law applicable in a small number of circumstances, but, it is a consideration for those creating and purchasing art in the state of which they should be aware.
The one area where the Federal government has tried to provide a limited amount of what could be considered moral rights is within the Visual Artists' Rights Act or VARA. Signed into law in 1990 VARA provides a limited protection for appellation and integrity rights for a defined class of fine artists. Because of the limitations of applicability as long as a state's legislation doesn't directly conflict with the dictates of VARA, then the state's protections can still be applied, otherwise VARA preempts conflicting state rules.
Droit de Suite or Artists Resale Right
This is an artist's right to participate in further profits on the subsequent sales of their works of art. Unfortunately, the United States is not as far along in establishing this right as, say, the European Union is. There are some states who have a form of this right for their citizens or acts performed within their borders. For example, California has a version of this right (Cal. Civil Code Section 986) that allows an original artist to participate to a degree in subsequent resale of her works under certain conditions. Knowing when and to what extent these rights are available could lead to significant income for a creator of popular pieces.
Architecture has rather recently been recognized as an independently protectable subject matter under United States Copyright laws. Instead of just being able to protect architecture through the original blueprints and designs, now the buildings themselves are actually protectable by copyright. There are limitations to this right peculiar to the medium, such as, photography (a form of replication) of the protected architecture is allowed if taken from a public space for non-commercial purposes.
The descriptions in these sections may be a bit overwhelming to readers, but, they are just a sampling of the types of legal concerns that are involved in protecting the actors involved in the creative process. My interests are to help facilitate the artists in manners that allow them the most creative freedoms while protecting their legal and possessory interests. The history of art is rife with examples of the intermix of legal and artistic concerns. I hope to smooth the paths the artists wish to walk in their endeavors.