40 Years On
From the inaugural issue of Art Monthly in October 1976 to date, this column has been published regularly. Its original raison d’être was driven by the then marked absence of available resources on art law, in particular published empirical or academic research; education in art schools on what are now called professional practice studies; books, magazines, articles and other publications; specialist lawyers advising and assisting the art community for fees they could afford. This landscape spoke of unmet needs for awareness and understanding of the law relating to the visual arts in the UK – contemporary art especially – that this column sought to address. But such unmet needs were not confined to the UK.
Research beyond the barren art law landscape in the UK at that time revealed the same unmet needs in countries that had long-established art schools, artists’ practices, art businesses and institutions. Only in the USA had such unmet needs been addressed by then recently launched non-profit organisations such as Volunteer Lawyers for the Arts in New York City, Lawyers for the Creative Arts in Chicago, and Bay Area Lawyers for the Arts in San Francisco. It is significant that these three bodies delivered specialist legal services across all art forms that were flourishing in three major cultural conurbations.
During the next decades the visual art eco-system grew exponentially worldwide. New economies emerged and developed, fuelled by the fall of the Berlin Wall in 1989, the dissolution of the USSR in 1991, the Peoples’ Republic of China entering the global market place by joining the World Trade Organisation in 2001, and the substantial expansion of European Union Member States from 2004. Economic growth invariably leads to a general rise in prosperity. With increased disposable income, people and organisations had the wherewithal to acquire non-essential goods, which for many included artworks. Martin Irvine, Professor of Media Theory and Visual Culture at Georgetown University, recently commented: ‘Over the past five years, the international art market and all related cultural institutions have been expanding at an accelerated pace… What was once an economy limited to loosely linked clusters in major cities in Europe and the US is now a globally distributed, highly networked economy that lives on real-time information and freely flowing capital. While the art economy follows the laws of asset concentration in global cities, it also follows the flow of capital, goods, and services across national boundaries.’
Such developments were stimulated and facilitated by the rapid growth of digital technology, principally the Internet and World Wide Web from the mid-1990s onwards. McLuhan’s ‘global village’ would be an apt description of today’s international art landscape. Artists’ practices, art businesses and institutions now operate via a myriad of worldwide networks continually and instantly exchanging information, news, views, opinions, warnings, statistics, images, codes, rules, regulations, and laws. This activity has triggered the development and establishment of law relating to visual art, and of lawyers specialising in the academic discipline and professional practice of art law.
Forty years ago there were a mere handful of specialist art lawyers, most practising in the USA. Now there are numerous art lawyers, usually based in countries where they are able to sustain practices in conurbations that support a substantial art market economy and a high concentration of practising artists (such as New York City and London). Today’s art lawyers have carved out niches in which they are expert, and for which they have become widely known as the go-to practitioner.
Areas of expertise include, for example, advising and assisting with: drafting and negotiating high value art transaction agreements; researching provenance and authenticity; dealings at international public art auctions and art fairs; legal and business dimensions of artists’ practices; cross-border sales, customs and import taxes; artists’ estate planning, and estate management after death; recovery and restitution of art lost through theft or war looting or illegal export; museum and gallery institutions and foundations; artist’s intellectual property rights. Some lawyers specialise in advocacy before courts where art or art-related issues are being litigated. Whether advising or litigating, relevant art law may be confined to national laws; but because art transactions or projects or litigation increasingly transcend national jurisdictional boundaries, they frequently require additional consideration of international art law. Significant developments over the past four decades have transformed the art law landscape, including the following examples.
In the 1980s intellectual property rights were improved throughout most countries in the world through major enhancements to the worldwide Berne Convention for the Protection of Literary and Artistic Works. These were implemented across the EU’s Member States and enacted into UK law via the Copyright Designs and Patents Act 1988. Copyright ownership was reformed so that it is automatically acquired by authors of original artworks, and artist’s moral rights (to claim/deny authorship and prevent mal-treatment of their works) were introduced; all such rights lasted for the artist’s life plus 50 then (through international agreement from 1996) for 70 years after death.
Also implemented across the EU’s Member States, and enacted into UK law in 2006, is the Artist’s Resale Right: this automatically gives EU-citizen artists a legal right to a small percentage of the resale price whenever one of their artworks is sold in the secondary market by an EU-based art-market professional. The right lasts for the artist’s life plus 70 years after death.
The Washington Conference on Holocaust-Era Assets held in Washington DC in 1998 achieved consensus among many countries that committed to principles ‘to assist in resolving issues relating to Nazi-confiscated art.’ Among signatories was Austria, which that year enacted a new law facilitating recovery and restitution of Nazi-era war loot, including making publicly available records of such art. This new openness helped Maria Altmann successfully to pursue lawsuits against the Austrian Government to achieve return of five Klimt paintings that had been looted from her Vienna-based family by the occupying Nazi regime in 1939. The highpoint of Altmann’s legal success was the landmark judgment against the Austrian Government given by the US Supreme Court in 2004. The whole saga became the subject of a feature film Woman in Gold, 2015 (Origin Pictures & BBC Films).
Numerous publications on aspects of international and national art law have emerged, increasingly in recent years. Although there is no single book covering international art law comprehensively, there are many respected and useful works addressing niche art law subjects, for example: the world’s first Professor in Art Law, Leonard D. DuBoff’s Art Law: Cases and Materials, 2010; Antoine Cadio de Iturbide’s L’Art Et La Fiscalité Du Collectionneur Dans Le Monde (Art and Taxation for the Global Collector) 2015; Jeanette Greenfield’s The Return of Cultural Treasures, 2013; Barbara Hoffman’s A Visual Artist’s Guide to Estate Planning, 2008; John Merryman’s Law, Ethics and the Visual Arts, 2007; Daniel McClean and Louisa Buck’s Commissioning Contemporary Art: A Handbook for Curators, Collectors and Artists, 2012.
Many online sites now offer current art law news and information. Since 2003 all articles published in this column have been freely available online via Artquest; this Artlaw Archive is updated regularly by adding each new column after its original publication in this journal. Forty years has delivered substantial progress and multifarious new opportunities for the law relating to visual art.
© Henry Lydiate 2016