Bench & Bar

MAR 2018

The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.

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See Page 22 for Convention Details THE WAIT IS OVER! 7 BENCH & BAR | W hile precious little law is specific to art, a rich and complex body of social norms and customs effec- tively governs artworld transactions and informs the resolution of artworld disputes. In any case, a smattering of scholars study art law and a similar number of lawyers practice it. In this essay, I will provide a brief overview of art law from three differ- ent perspectives: the artist, the art market, and the art museum. THE LAW OF THE ARTIST Art is as art does. Artists make art, and the public determines whether it matters and what it means. But the law shapes what artists can do, how they can do it, and what they can do with it. And in turn, art challenges the law to explain and justify its assumptions about meaning and aesthetic value. 1 A. COPYRIGHT Copyright is indifferent to art. For better or worse, it automatically protects every "original work of authorship" as soon as it is "fixed in a tan- gible medium of expression." 2 "Original" just means "not copied" and "minimally creative," resulting in a comically low stan- dard for copyright protection. 3 When an artist creates a painting, every brushstroke is protected by copyright the moment brush touches canvas. But likewise, when a teenager composes a tweet, each word is protected by copyright as soon as it is written. Nevertheless, some things are cat- egorically unprotected by copyright, such as white-page telephone directories and shovels. 4 Moreover, copyright explicitly ignores the aesthetic value of the works it protects. 5 is "aesthetic nondiscrimination" princi- ple was intended to ensure that courts don't discriminate against either avant-garde or commercial works. But it also requires courts to treat all works identically, even though the scope of copyright protec- tion has gradually become immeasurably broader, granting ever more protection to an ever increasing range of works, and even as technology has transformed the ways in which we use those works. e purpose of copyright is to encourage authors to create new works by giving them an economic incentive. Without copyright, authors couldn't recover the costs associated with creating and marketing their works. Copyright is supposed to solve this market failure by giving them the exclusive right to make and distribute copies. Writers get the exclusive right to sell copies of their books, and musicians get the exclusive right to sell copies of their songs. In theory, copyright should be largely irrelevant to artists. Copyright protects intangible "works," not the tangible "copies" in which a work is reproduced. According to copyright, a painting is just a unique "copy" of the intangible work it embodies. But artists typically sell unique objects, not copies. e art market relies on scarcity, not volume. Leonardo Da Vinci's Salvator Mundi is worth $450 million, but a repro- duction is worth essentially nothing. But in practice, many artists sell both unique objects and reproductions, and copyright enables them to do so. When artists sell paintings, they keep the copy- right, and can sell as many reproductions as they like. For many commercial artists, their reproduction rights can be far more valuable than their actual paintings. And the same is true for some popular fine art- ists, like Andy Warhol. In other words, copyright seemingly gives artists the best of both worlds. It's either irrelevant or beneficial. But in some cir- cumstances, it can actually work to their disadvantage. For example, many countries have created "resale royalty rights" that give artists the right to claim a percentage of the resale price of art they created. 6 And in 1976, California tried to create a similar right. 7 But courts have held that the Cal- ifornia law is preempted by the "first sale" doctrine, which provides that transferring a copy of a work terminates the distribution right in that copy. 8 As a consequence, when an artist sells a painting, the artist cannot control its resale or demand a cut of the profits. 9 B. MORAL RIGHTS In theory, copyright does give artists some special protections. e Berne Convention © © provides that member states must give authors certain moral rights, including rights to attribution and integrity. 10 Soon after the United States joined the Berne Convention in 1989, Congress passed the Visual Artists Rights Act ("VARA"), which gives the "author" of a "work of visual art" certain rights of attribution and integrity. 11 e right of attribution gives artists the right to claim authorship of their works, and disclaim authorship of works they didn't create. 12 e right of integrity gives artists the right to prevent the "inten- tional distortion, mutilation, or other modification" of their work, if it would be "prejudicial" to their "honor or reputation," and the right "to prevent any destruction of a work of recognized stature." 13 VARA rights cannot be transferred, but can be waived in writing, and terminate at death. 14 In practice, VARA is largely irrelevant, because the interests of artists and owners are usually aligned. After all, art is valu- able only if it is attributed to the artist and kept in good condition. But some- times, the interests of artists and owners diverge. Occasionally, artists have asserted the VARA right of attribution to disavow a work, typically claiming that the owner misrepresented or failed to maintain it. For example, Cady Noland has asserted the VARA attribution right to disavow res- torations of her works Log Cabin (1990) and Cowboys Milking (1990). 15 But more commonly, artists have asserted the VARA right of integrity to prevent the alteration or destruction of their work. Cady Noland, Log Cabin (1990)

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