By Irina Tarsis, Esq.
What isn’t Art Law? Before The Encyclopedia Britannica went out of book printing business, and long before the field of “art law” crystallized, scholars in different discipline wrote about “the art of [you fill in the blank].” Until New York Public Library on the 42nd Street implements its ambitious yet shortsighted Central Library Plan, you should easily access such titles as The Art of Family Law (Edinburgh, 2011), The Art of War at Sea (London, 1788), The Art of Cookery (Boston, 1798), The Art of Swimming (London, 1699), and hundreds others titles on the subject of specializations that rise to level of art when perfected. Granted, there is no book on the art of art law, yet.
Law and the arts (fine, performing, graphic and everything in between) are ubiquitous, you just have to look and listen. Those who pay attention realize that issues such as copyright of works in public domain that were pulled back under the copyright act in the Supreme Court Decision of Golan v. Holder, 132 S.Ct. 873 (2012)are art law relevant. Those who attended the Cariou v. Prince, 784 F.Supp.2d 337 (2011) appeal hearing at the 2nd Circuit on Monday, May 21, 2012 realized it was a manifestation of art law. There, three presiding judges, having heard cases on sexual abuse, maritime law and arbitration moments earlier, conceded that the decision regarding multi-million dollar art works of Richard Prince derived from photographs of the little-known Patrick Cariou was “very important” and granted as much time to the counsel as was necessary to argue transformative use and the effect of Prince’s work on the potential market of Cariou’s works. The Order Granting Joint Motion to Dismiss allegations of artists and their heirs against auction houses for failing to comply with California Resale Royalties Act issued on May 17, 2012 fell squarely under the art law umbrella. The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act proposing smooth sailing in borrowing art of dubious provenance from foreign sovereigns currently in review at the Judiciary Committee is … well you get the picture.
That’s four recent examples, of so many more. And yet, somebody is sure to ask about all the examples of cases and transaction that have nothing to do with the arts, a multitude that has nothing may touch on the interests and needs of artists, collectors, dealers, museums, galleries, etc. Well if it is not art law, then clients better hope their counsel is representing their interests at the highest level of artistry.