Fifteen Eighty Four

The “art world” comprises a complex, diverse set of people and institutions – an international, interdependent complex of artists, collectors, museum professionals, dealers, and auctioneers, with a large supporting cast of art historians, archaeologists, critics, experts, bronze founders, fine art printers, suppliers of artists’ materials, city planning commissions, corporate sponsors, governmental sources of funding, tax authorities, insurers, art nappers, thieves, counterfeiters, law enforcement, lawyers, and many others. Law and ethics establish the boundaries for licit conduct and the parameters for acceptable conduct by which art is created, sold, transported, and displayed.

It is easy to suppose that art is incompatible with law and ethics. In art, we value the creative act: the gesture that transcends boundaries, defies conventions, and breaks rules, leading to new perceptions, insights, and understandings. In contrast, law and ethics work within a system of boundaries, conventions, and rules, maintained by an established order, albeit one that is ever-evolving. How can they coexist? Is there an inexorable equation: the more law and ethics, the less art (and vice versa)?

Clearly not. Law establishes the conditions of social peace and stability that liberate artists to make art and protects artists against repression or censorship. Law provides artists with enforceable rights in their works and in their relationships with dealers, collectors, and the art market. Law protects works of art against theft and destruction and against adulteration and misrepresentation through fakes and forgeries. Law makes possible the assembly and display of art collections and exhibitions, and the formation and operation of museums. It supports and regulates the art market, providing an orderly process for the distribution (and redistribution) of works of art. Law and ethics define and protect the competing interests of parties in transactions among artists, dealers, auction houses, collectors, and museums. They ensure the freedom of historians, experts, and critics to study art and to express their opinions. Without a legal system and codes of ethics, there could be nothing comparable to the sophistication, diversity, and aesthetic accomplishment art bestows – not to mention the popularity and prosperity that some artists and arts institutions enjoy.

That said, law is often a blunt instrument to draw lines and resolve disputes involving works of visual art. In most judicial proceedings, only one party – the plaintiff or the defendant – will prevail: there can be no Solomonic judgment with a work of art. Repeatedly, we see outcomes demanded by law or precedent that leave us feeling queasy. Indeed, many (if not most) art and cultural property disputes might be served better by alternative dispute resolutions such as mediation or by creative settlements. To paraphrase an early scholar in this field, Marie Malaro, the law makes us only bearable, not honorable. Avoiding legal liability falls short of achieving the ethical behavior characteristic of admirable civil societies. So, in considering art-related legal cases, we need to ask not only whether a court’s decision was a proper application of the law to the facts, but also whether the result accords with what is ethically acceptable. Put another way, was the prevailing party merely bearable or, instead, honorable? It is not surprising that many actors in the art world rely on codes of ethics, not just law, to guide their decision-making.

Of course, many legal issues encountered in the art world are similar to those in other arenas of human endeavor – real estate, employment, and the like. But there are numerous issues particular to the visual arts, ranging from censorship to income taxes, copyright to fiduciary duties, contracts to international treaties, and much more. While the legal issues implicated in the art world are wide-ranging, certain themes recur. For example, how do (and should) the law decide what is “art” and who is an “artist”? Do the distinct characteristics of art justify (or require) different legal treatment from that accorded other tangible personal property? How does and should the fact that art is a form of expression affect how it is regulated, protected, and funded? What special fiduciary or other duties should be imposed on those who buy, sell, or exhibit works of art? What is and should be the role of judges (or juries) in deciding disputes involving aesthetic determinations, such as whether a work is obscene or authentic? Should cultural property be treated as property that is owned, or the heritage stewarded for all humankind?

The factual contexts in which these issues arise make them particularly fascinating. The art world is filled with stunning creations, beautiful images, and true treasures—as well as vast wealth and fascinating intrigue. It is populated by a range of colorful characters – genuine geniuses and true charlatans – who display tremendous ambition, deep appreciation for beauty, and, sometimes, breathtaking dishonesty. A valuable painting is consigned for sale to someone who appears to be an art dealer but turns out to be a delicatessen employee (Porter v. Wertz). An impressionist painting is lost by Jews in Germany under the Nazis and, years later, sold to a good faith buyer in New York – and then, more years later, the heir of the original owner seeks its return (Deweerth v. Baldinger). A famous painter is irked that his ex-wife has sold one of his works, so he disavows authorship of the painting (Arnold Herstand & Co. v. Gallery Gertrude Stein Inc.). A wealthy art collecting couple seeks to deduct from their other income all the annual costs of managing, displaying, and insuring their collection, as expenses incurred on investment properties (Wrightsman v. United States). The government of Peru seeks to recover Pre-Columbian artifacts held by a collector in the United States, invoking a Peruvian statute purporting to vest in the government ownership of all antiquities found after a certain date (Peru v. Johnson).

This new, sixth edition of Law, Ethics, and the Visual Arts provides a guide to these and many other aspects of the art world. It covers how law governs artists’ relationship with the art market; the rights artists retain in works they create even after the works are sold (such as copyright and moral rights); the legal and ethical rules concerning collectors and the art markets; how title and authenticity apply to works of art; particular rules for taxes, death, and divorce applicable to the art world; the treatment of art in times of armed conflict; the international trade in antiquities and other forms of cultural property; legal and ethical rules governing art museums; and how freedom of expression applies to the visual arts. The book is adaptable for multiple uses and audiences: a text for courses in law schools and graduate programs, a reference work for lawyers and museum professionals, and a lively read – filled with engaging legal stories and colorful anecdotes featuring the art world’s broad cast of characters. Complementing their own observations, the authors include excerpts from judicial opinions, scholarly and popular articles, international treaties, and statutory law. Law, Ethics, and the Visual Arts offers a cornucopia of examples, questions, issues, and lessons for students, artists, dealers, collectors, attorneys, and readers curious about today’s remarkable world of the visual arts.