Book Review: “Art Law: A Concise Guide for Artists, Curators, and Art Educators”(2016)

 

By Wylie Rechler*

Screen Shot 2017-07-27 at 11.38.45 AMEver wonder about the processes, complexities, and challenges revolving around an artist’s journey from studio to international renown? Or a collector’s campaign from inheritance to resale of an artwork with questionable title? Or a museum’s interactions with an artist’s intricate and controversial body of work so as to make it comprehensible for visitors? Michael E. Jones’ new book Art Law: A Concise Guide for Artists, Curators, and Art Educators (2016), provides a comprehensive overview of the loopholes and technicalities of the art market, including their historical transformations from it’s origin to the present day. Rich with examples and applications, Art Law compartmentalizes the often perplexing and convoluted legal concepts surrounding the art world into a digestible package of approaches. As a lawyer raised by an artist, Jones demonstrates a comprehension of the business and legal challenges artists face daily. Additionally, the author’s experiences as a “visual fine artist, art collector, consultant to museums, advisor to artists rights societies and individual artists, board trustee for an art college, author of an intellectual property rights book for artists, judge, university professor,” and more greatly contribute to his straightforward and intelligible explanations of complex and intricate notions (Preface, xi). 

 

Jones’ first chapter starts at the very beginning with “The Professional Artist’s Life”—an outlined examination chronicling the technical components of the contemporary visual artist’s career. From the importance of workspace and materials and marketing techniques, to taxes and estate planning, this chapter contains all the relevant legal concepts that apply to artists’ creative processes.  

The second chapter explores what the author terms “the gallery-auction-house-collector-major museum-complex” using examples of artists who have achieved entry into the exclusive bubble of the art market and those who have not, including … . This chapter offers an in-depth synopsis of the historical evolution of Western art through each major, instrumental artistic movement and school beginning with the Middle Ages’ concept of artist guilds. Jones then takes us to the Renaissance period—distinguished by the Medici patronage, innovations in oil painting techniques, and the importance of apprenticeships—followed by Neoclassical era’s emphasis on the academies and salons as the taste-makers of this time. Following this, we are informed about the impact of the invention of photography and innovations in printmaking. Subsequently, we are introduced to the first man to bring “financial leverage into the art market,” Paul Durand-Ruel (1831-1922) (P. 30) and the American ex-pat siblings who operated an artist salon out of their living room, Gertrude and Leo Stein. The Steins are highlighted as an example of how collectors, academics, and patrons can also serve as mentors and, thus, further impact the market for a particular artist. Jones moves on to discuss both the domestic and international impact of the 1913 Armory Show in New York City as a forum for the exchange of ideas. Here, Jones profiles collector, gallerist, and patron Peggy Guggenheim in her role as patron and taste-maker of the 20th century art world. The author notes that, after and around this time, art historians and writers—Clement Greenberg and Meyer Schapiro—also affected the market, in their capacity as artist promoters. Greenberg’s 1969 book Art and Culture grappled with the substance, significance, and historical context of Modernism in an unprecedented way. Jones concludes this chapter by discussing the emergence of photography and the Pop Art movement alongside developments within the art market, particularly the New York gallery scene. This section thoroughly details how the development of the art market paralleled each era’s art process—the medium used, the style in vogue, the training required, and the dialogue that revolved around the movement, the audience or the consumers of each new creative wave—and leans more toward being an art historical chapter as it closely examines the context of an art movement’s conception and how this shaped the art market as we know it today.

The third chapter chronicles the history of the American museum and its varying organizational structures, including incidents involving public disapproval of museum leadership. Museums appear to be a house of scholarship, exposure, and exhibition for all interested in diving deeper into cultural history of their society and that of others. Quoting the International Council of Museums (ICOM), Jones cites that museums are “in the service of society and its development… for the purposes of education, study, and enjoyment.” (47).  Quite often these instances of conflict and disapproval revolve around intolerant and disrespectful actions of the cultures of the museum’s visitors. Jones highlights the 2015 controversy concerning the Museum of Fine Arts Boston’s inviting visitors to come to the museum and dress up in a replica of the kimono worn by Camille Monet in Claude Monet’s La Japonaise. After protests and accusations of cultural appropriation and insensitivity, the museum cancelled this program and released an apology statement to those offended. Jones also discusses the broader issue of offensive objects on curated display, such as the Confederate flag. The Virginia Museum of Fine Art owned an adjacent parcel of land next door to the museum on it that it rented to the Sons of the Confederate Veterans. As it turns out the land housed a chapel which had served as the site for treating wounded Confederate soldiers during the Civil War. During their lease, the Sons of the Confederate Veterans flew a Confederate flag at the front of the building to symbolically commemorate their ancestors. The museum’s board criticized this gesture as a reversion to the promotion of the discriminatory and unjust Civil War-era ideologies of the Confederacy. The board reasoned that the front yard was the improper context for the exercising of this particular viewpoint and forced its removal. These two instances in American museum history grapple with the fiduciary responsibilities owed by a cultural institution to the public. There exists much ongoing debate over how broadly and narrowly the responsibilities of a museum should be interpreted. In addition to fiduciary duty to educate the public, Jones discusses the organizational structure of museum operations, which includes a board of directors, the adherence to the museum’s own code of ethics, and the necessity of holding onto a highly valuable art collection as a public trust.

Chapter Four, “Acquisitions: Good Title, Theft, Forgery, and Authentication,” delves into the issues regarding the transaction of an artwork, including provenance and appraisal. Jones begins by discussing the importance of a sound provenance prior to purchasing art by providing the logical first example of clouded title—a stolen work of art. In addition to database resources, such as the UK-based for-profit Art Loss Registry, the U.S. government is constantly trying to remedy the plight of those suffering from art crimes. In response to the Isabella Stewart Gardner Museum heist (in 1990), legislation passed in the mid-1990s made it a federal crime to steal art objects both older than 100 years and worth more than $5,000 or simply worth more than $100,000. Jones explains that a theft could be made by someone close to the artist, such as a gallery assistant.  Jones moves on to discuss how each state’s statute of limitations could impact an individual bringing a claim on account of a wrongly possessed artwork. He references O’Keefe v. Snyder—a case in which artist Georgia O’Keefe sought the return of paintings she’d made years prior from an adverse possessor who had acquired it as a bona fide purchaser. Jones also highlights the 1970 UNESCO Convention, as it circulated a code of ethics with respect to participating countries’ acquisitions of art objects. Under this code, U.S. museums run by federal agencies are not to acquire art objects illicitly removed from their country of origin (61).

In addition, this chapter examines the challenges and methodologies behind art authentication. When the scholarly evidence of art experts has contradicting results or proves uncertain, those seeking to authenticate a work of art can now turn to scientific analysis. From analyzing strokes and mark-making from high resolution images of Pieter Bruegel’s drawings to testing the chemical components of Jackson Pollock’s “Matter” paintings, scientists have made great strides in developing authentication techniques. Due to innovations in authentication, there has been a rising trend in lawsuits brought against art institutions for denial or neglect of authenticity. For example, Mr. Lancelot William Thawytes brought suit against Sotheby’s London for under-estimating the value of a painting he consigned that Sotheby’s sold as attributed to a student of Caravaggio’s. Sir Denis Mahon, the buyer of the work, took several measures to restore and authenticate the painting. He ultimately found it to be a genuine Caravaggio and priced somewhere between £10 and £15 million. He paid only £42,000 for it at auction. Jones reminds his readers that the underlying risk behind all authentications is that “there is no absolutely undeniably objective nor infallible test to determine authenticity” (66).

The author appropriately dedicates the entire fifth chapter to the examination of the “ethical and legal challenges of Nazi-era art and cultural property,” organized as an overview of the evolution of confronting the impact of the Nazi regime on the highly valuable personal property of its victims (77). Jones aptly begins with the 2012 discovery of Cornelius Gurlitt’s hoard of over 1,300 artworks passed down from his grandfather, the Nazi art dealer Hildebrand Gurlitt. (Cite Vanity Fair article). Jones explains that discoveries, such as this one, reveal the great amount of work that is being done and that will need to be implemented in the  future. Two statutes enacted in 1998 by Congress were intended to help these efforts: the Holocaust Victims Redress Act promoting the return of stolen property and the Nazi War Crimes Disclosure Act ordering the declassification of Nazi records pertaining to war crimes. In addition to discussing forward-thinking legislation, Jones chronologically walks his readers through six landmark cases that demonstrate the challenges of the Nazi-era art restitution cases—Price v. United States, Menzel v. List, Solomon R. Guggenheim v. Lubell, Bakalar v. Vavra, the Portrait of Wally, and the Republic of Austria v. Altmann. Additionally, Jones highlights other instances of the repatriation of cultural property not involving Nazi-era claims. These include the Elgin Marbles from Greece, the head of King Sargon II from Iraq, a Cambodian mythical statute auctioned at Sotheby’s New York, and Native American religious and art objects on display in American institutions. Jones has managed to package a dense amount of case law and legislative information in a digestible format.

The sixth chapter details the complexities of contract formation within the context of buying, consigning, and selling art in today’s global market. From Article 2 of the Uniform Commercial Code, to the requirements of a valid contract—including offer and acceptance, consideration, etc.—Jones covers every principle of contract law that applies to the exchange of artworks. He introduces the components of Visual Artists’ Rights Act (VARA), discusses what happens when a party breaches or fails to perform their end of the bargain, and explains which remedies are available to the victim of a breach or nonperformance. The author even goes as far as to provide templates of two different kinds of commonly formed art contracts—a sample consignment agreement and a sample exhibit contract (104-116).

The following three chapters tackle the significance of artists’ rights in today’s cultural climate. First, Jones outlines the benefits and challenges of those artists seeking to enforce the reproduction rights of their artworks. The seventh chapter presents an overview of the dynamics of the circulation of “the tangible expression of an idea, not the idea itself” (119). Jones provides a brief history of the Copyright Act, including its compliance to the Berne Convention—in which American artists receive copyright protection from the approximately one hundred participating countries—and the Universal Copyright Convention—where American artists receive an additional twenty-five years of copyright protection. Jones also explains the requirements for a work to be eligible for copyright protection. For example, the creativity criterion demands that the work must be produced by “an exercise of human element” (123). The topic of copyright infringement is demonstrated through three well-known art law cases—Rogers v. Koons, Cariou v. Prince, and Leibovitz v. Paramount Pictures Corp. The eighth chapter explores artists’ rights independent of copyright laws—these moral rights “protect an artist’s non-economic interests” and apply “after the art is sold or transferred” (143). In addition to discussing how American moral rights laws for artists relate to European ones, Jones gives examples of case law within this body of law operates. See Mass. MoCA v. Buchel. The ninth chapter reviews first amendment concerns with respect to artistic expression, starting with censorship practices dating back to the sixteenth century when Pope Pius ordered artists to paint fig leaves to conceal the nudity of the figures depicted in Michelangelo’s Sistine Chapel frescoes. A more recent example that illustrates this controversy occurred when John D. Rockefeller Jr. commissioned Diego Rivera to paint a mural at Rockefeller Center. Rivera effectively breached his contract to paint a man at a crossroads by instead depicting Vladimir Lenin. Rivera was fired and the mural destroyed. The chapter also discusses the intersections of freedom of expression with defamation, obscenity, privacy violations, and trademark infringement, illustrated by the challenges faced by Robert Mapplethorpe, Arne Svenson, Robert Indiana, and more.

In the tenth and final chapter Jones concludes by reviewing the different avenues through which artists can receive funding: federal agencies, state councils promoting the arts, crowdfunding, and foundations established either by private collectors or artists. In addition to listing examples of grant sources, Jones provides a thorough examination of the ways through which an artist could go about applying and receiving such funds. Furthermore, Jones relates back to his first chapter by including applications of the law to various disputes regarding such private foundations supporting the arts. These foundations—the Robert Rauschenberg Foundation and the Barnes Foundation, for example—have faced lawsuits ranging from fiduciary responsibilities and compensation, to partnerships with other successful foundations.

While the cases Jones makes references to cases that might not have the freshest shelf life, this is case law that should be known and understood by every individual who is considering a career in or involving art law. Jones’s constant references to historical events and the evolution of ideas provides a wonderful insight for his readers. Not only has the author successfully penned a crash course in contract law, copyright law, property law, and Western art history in one extensive yet concise two hundred-page book—but he also applies each and every important legal concept to the ever-changing, always exciting art market.

About the Author: Michael C. Jones is a professor emeritus in the University of Massachusetts Lowell College of Fine Arts, Humanities, and Social Sciences. He conducts research in areas including intellectual property law for artists, international applications of copyright law, and sports law. Art Law is his fourth publication on the topic.  

Disclaimer: Book reviews are no substitute for reading and interacting with the book reviewed.

*About the reviewer: Wylie Rechler is a Summer 2017 Legal Intern with the Center for Art Law. She is a rising 2L, J.D. Candidate at the Benjamin N. Cardozo School of Law and graduated in 2016 from Cornell University with a B.A. in art history. While at Cornell, she studied art and business abroad at the Sotheby’s Institute of Art in London. She can be reached at rechler@law.cardozo.yu.edu.

Spotlight on Art Law Instruction

By Lesley Sotolongo

Art law is taught to different types of students in different forums – law school, undergraduate, graduate, continuing education, and now, even by prominent auction houses. Two popular auction houses that offer art law programs are Christie’s and Sotheby’s. In collaboration with the University of Glasgow in London, Christie’s offers an intensive fifteen-month Master’s program designed to provide their students insights and access to the art market. It is a program that explores the important ethical and legal aspects of working in the commercial art world while also teaching students about the history of art, including the arts of China, the arts of Europe, art style and design or modern and contemporary art.

An interesting component of the program is the opportunity for a work placement at Christie’s. For the 2013 – 2014 academic term, Christie’s admitted eleven students of nine different nationalities out of sixty-four applicants. The program is administered by two distinguished faculty members, The cost of attendance is approximately $53,000 and is offered in the course of three terms: Fall, September 29, 2014 – December 5, 2014, Winter, January 12, 2015 – March 20, 2015, and Spring April 20, 2015 – June 26, 2015. This program is designed for the student who is dedicated to developing a professional career working in the art market.

For those interested in studying in New York, Sotheby’s Institute of Art offers a Master’s in Art Business designed for students with a visual arts or art history background seeking an alternative to the traditional academic model and desire advanced study in arts administration. The program is a combination of rigorous academic instruction and experiential learning. Some of the core courses offered are business, law, marketing and finance. The core curriculum is supplemented with specialized modules such as appraisal techniques, gallery and auction operations, and art collection management. Travel to vital art world destinations and events is also a crucial component of the program providing a platform for students to directly learn from and interact with a broad spectrum of leaders in the art field.

Judith Prowda, Esq. is a full-time faculty member and this will be her seventh year teaching at Sotheby¹s Institute of Art. Prowda recently spoke with Center for Art Law about the Sotheby’s program. She noted that art law is one of the core, year-long courses in the Masters of Art Business program. Students from the two other programs (Masters in Contemporary Art and Masters in American Fine and Decorative Arts) may also take the course as an elective. The first semester focuses on commercial aspects of art and the second semester on ethics and policy. Prowda’s course generally follows the outline of her book, “Visual Arts and the Law: A Handbook for Professionals (Lund Humphries 2013).” She remarks, “our students learn not only legal principles essential to art professionals, but also their applications to current issues in the context of the evolving global art market.” Furthermore, each year the course follows the very latest emerging legal issues. For example, in the past few years the course has been following the most important developments in appropriation fair use cases, museum cases, Nazi-era art restitution, authenticity, artist foundations, and cultural property, to name a few. Prowda also includes a debate component on current policy issues, such as Artist’s Resale Rights, which is ripe for discussion with two bills pending in Congress and the recent New York State Art Authentication bill pending before the New York State Assembly. Prominent speakers from all corners of the legal sphere are also invited to speak, including artists, gallerists, auction counsel, museum counsel, government officials, lawyers focused on art restitution, estate planning, tax and fiduciary law, to name a few. Another wonderful aspect of Sotheby’s legal training is mock negotiations during the first semester. Within the first few weeks of class, in which the students are negotiating artist-dealer agreements, collector-dealer agreements, auction house consignment agreements, artist commission agreements.

In addition to the course itself, the students attend art law conferences, where they learn about the newest developments in the field and have the opportunity to meet lawyers, judges, State Department Officials, academics and other members of the legal community. Finally, a number of the students have published their Art Law paper in the New York State Bar Association¹s Entertainment, Arts and Sports Law Journal and other journals. The growing list of publications as well as examples of Master’s thesis on the library website at: http://nylibrary.sothebysinstitute.com/BibliographyOfSIANYAlumniPublishedWorks.pdf. If you are interested in the Sotheby’s Institute of Art program, it is offered in a combination of three semesters: September – December, January – May, June – October, or alternatively, September – December. Each semester’s tuition is approximately $21,981.

Other options include select art law courses and certificate programs for appraiser, law students, foreign students interested in earning their LLMs and even artists. Schools nationwide that offer art law programs such as Cardozo School of Law, Duke University, University of Pittsburgh, University of California, DePaul University, Miami University, and Tufts University. For example, the New York University School of Continued Education (NYU) offers a certificate in art business. Just to highlight the program, three required courses are: “Today’s American and International Art, Law and Ethics in the Art Markets and The Art Auction.” All three are offered at $450 per course. Alternatively, Fordham University offers The Art & Law Program, which is a semester-long seminar series with a theoretical and philosophical focus on the effects of law and jurisprudence on cultural production and reception. Other training opportunities are offered by practicing attorneys. such as the Art & Law Program founded by a former Volunteer Lawyer’s for the Arts Director of Education and Associate Director, Sergio Sarmiento. This program is now offered in collaboration with Fordham Law School. The Art & Law Program takes place in New York from mid-January to early May.

For those who claim that there is no such thing as art law, there is a wide range of training and learning opportunities happening on the subject. The programs highlighted above are just a few great educational resources for those interested in expanding their knowledge base related to law and the arts.

Sources:

Christie’s Education website

The Art Law office website.

Sotheby’s Art Institute’s website

About the Author: Lesley Sotolongo, is a third year law student at Benjamin N. Cardozo School of Law. She may be reached at Lesley.Sotolongo@law.cardozo.yu.edu.

Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.