Being An Artist’s Lawyer

In April 2020 a unique event will take place in Los Angeles at Southwestern Law School’s Donald E Biederman Entertainment and Media Law Institute. As part of the Institute’s programme of Continuing Legal Education for California State Bar attorneys, a niche field of professional legal practice will be explored: Being An Artist’s Lawyer.

In recent years Los Angeles has become a location for significant public-facing art collections and other art events, and is fast establishing itself as a significant contemporary art hub to which artists are increasingly attracted to locate their practices. The Los Angeles Bar Association currently records around 25,000 lawyers practising in the area, of which number few if any profess specialism as an artist’s lawyer. And so, Being An Artist’s Lawyer is an event offering lawyers interested in developing this niche field the opportunity to explore and consider ways and means to become and sustain a professional practice as an attorney on whom visual artists can rely for experienced and knowledgeable advice and help.

Lawyers have traditionally developed and offered many fields of specialist practice including, for example, in law relating to crime, children, finance, sports, music, film or antiquities – and art. But the area of visual art practice by living artists is perhaps more specialised and demanding than most. This is because of the unusual, challenging, changing and unique nature of contemporary fine art practice. Visual art, as a creative activity, invariably focuses on the self-funded generation of the work, and the dissemination follows afterwards: the activity is almost entirely ‘product-led’ rather than ‘market-led’ – conventional business wisdom turned on its head. An excellent insight into this way of working was given by the most influential artist of the second half of the 20th century, Marcel Duchamp, in his 1957 lecture on ‘the creative act’ delivered in Houston, Texas and illustrated by the following extract:

‘Let us consider two important factors, the two poles of the creation of art: the artist on the one hand, and on the other the spectator who later becomes the posterity … All in all, the creative act is not performed by the artist alone; the spectator brings the work in contact with the external world by deciphering and interpreting its inner qualification and thus adds his contribution to the creative act.’

A widely accepted principle of good legal practice is that lawyers should ideally stand inside the shoes of their clients, to try to see and understand from their perspective. This principle requires the lawyer first to step out of their own shoes – their own legal comfort zone: an approach that many find hard to do. And if the client is an artist, it can be especially challenging to understand and empathise with the nature of their practice and processes and intentions in order to assess whether (and, if so, what) legal advice and help is needed or desirable. An artist’s lawyer will have an in-depth understanding of what artists do, why they do it, who they do it for, where, when and how. In other words, an artist’s ‘go-to’ lawyer should ideally be able to demonstrate a sound grasp not only of conventional art practices producing unique or limited-edition works for exhibition and sale, but also of unconventional art practices that sometimes create work for exposition only, with no material for sale.

It is axiomatic that every practice is unique, but there are dimensions of most visual artist’s practices and processes and intentions with which an artist’s lawyer should ideally be familiar. Let us consider examples.

Artists usually expect their ‘go-to’ lawyer to demonstrate not only knowledge of art’s developmental journey through the ages to date, but also understanding of any resonances with their client’s particular contemporary art practices, processes and intentions. Artists invariably pursue the creation of work that is self-evidently original, in the sense that it does not mindlessly appropriate earlier work of other artists. It is therefore almost always the case that artists have a deep knowledge and understanding of visual art’s history – from antiquity to date – not only to avoid conscious or unconscious plagiarism of specific images, compositions, shapes, forms, configurations and so on, but also to be stimulated by the content of such past works and the lives and practices of their authors to originate something new and different. Perhaps even to shock spectators with work the like of which they have never seen before, but which in time they may come to revisit and eventually value.

Art history is full of works of artists who challenged conventional artistic norms, but which over time came to be viewed and widely accepted as being ground-breaking and influential on subsequent generations of artists and spectators. For example: Andrea Mantegna’s Dead Christ, c1480; Michelangelo’s The Last Judgement, 1536/41; Caravaggio’s St Matthew and the Angel, 1602; Édouard Manet’s Le Déjeuner sur l’herbe, 1862/63; Gustave Courbet’s The Origin of the World, 1866; Duchamp’s Fountain, 1917; Pablo Picasso’s Guernica, 1937; Robert Rauschenberg’s Erased De Kooning, 1953; Andy Warhol’s Campbell’s Soup Cans, 1962; Yoko Ono’s Cut Piece, 1964; Christo and Jeanne-Claude’s Running Fence, 1976; Ai Weiwei’s Dropping a Han Dynasty Urn, 1995. Such examples effectively ‘move the goal posts’ and establish new concepts, principles and propositions. Today’s artist’s lawyer will have an understanding that ‘twas ever thus’, so as to be ready, willing and able to understand and empathise with artists needing legal help and support for realisation and dissemination of artwork that is experimental, under-recognised or challenging in nature.

The need for such specialist artist-client understanding by a lawyer can be instructively exemplified by the landmark law suit brought by James Whistler in 1878, which went awry. Whistler’s Nocturne in Black and Gold: The Falling Rocket, 1872–1875, painted in oils on canvas, stimulated by a night-time firework display over Battersea Bridge in London, was executed in an impressionistic, rather than the (then) orthodox representational, style. The work was first exhibited at the Grosvenor Gallery in London, in a group show that included paintings by Pre-Raphaelite artists. The then leading art critic, John Ruskin, published a review of the show in which he lambasted Whistler: ‘For Mr Whistler’s own sake, no less than for the protection of the purchaser, the gallery ought not to have admitted works in which the ill-educated conceit of the artist so nearly approached the aspect of willful imposture. I have seen, and heard, much of Cockney impudence before now; but never expected to hear a coxcomb ask two hundred guineas for flinging a pot of paint in the public’s face.’

Whistler’s sales took a sharp downturn after Ruskin’s widely published attack. Whistler sued for libel, seeking £1,000 for damage to his artistic reputation. To do so, he and his lawyer needed to convince the jury of his artistic abilities and standing. The jury’s task was invidious: whether to recognise artistic merit in the (then) unorthodox ‘modern’ painting style; and, if so, to place a monetary value on Ruskin’s damage to Whistler’s professional reputation. The jury found Ruskin guilty, but ordered him to pay Whistler a mere one farthing in damages. Costs were borne by each party. Such derisory awards were commonplace at the time whenever juries in civil trials were faced with ‘a delicate and ultimately insoluble legal dilemma’. It has often been said over the intervening century that Whistler’s lawyer would have been wiser to claim (if at all) damage to Whistler’s sales of work (of which there was ample hard evidence of substantial loss following Ruskin’s public attack), rather than damage to his artistic competence. This is almost certainly the last time an artist sued a critic for defamation. The courtroom is clearly the wrong place for a forensic fight over aesthetic merit.

However, such a fight over art became the heart of another celebrated case 50 years later, when Constantin Brâncuşi sued the US Customs Agency. In 1923 Brâncuşi carved a work in marble intended to capture ‘the essence of flight’, from which nine sculptures were cast in bronze. In 1926 a consignment of 20 Brâncuşi sculptures arrived at New York by steamship from his studio in France, including a bronze edition of Bird In Space. US Customs demanded payment of import duty of 40% of the market value of its bronze material as ‘merely a manufacture of metal’. Works of art could be imported duty free into the US under Federal law. Brâncuşi filed suit claiming that his work was in law an ‘original sculpture’ and therefore exempt from import duty. At the heart of the case lay a vexed question for the court: what is art?

In 1928, after hearing evidence and legal argument, a US Customs Court ruled that Brâncuşi’s sculpture was a work of art, not an ‘article of utility’ as US Customs had claimed. This enlightened judgment has been cited by artists’ lawyers worldwide ever since. The court’s reasoning relied strongly on the intentions of the originating artist and the opinions of eminent art experts, saying: ‘There has been developing a so-called new school of art, whose exponents attempt to portray abstract ideas rather than to imitate natural objects. Whether or not we are in sympathy with these newer ideas and the schools which represent them, we think the fact of their existence and their influence upon the art world as recognised by the courts must be considered.’ The court concluded: ‘The object now under consideration … is the original production of a professional sculptor and is in fact a piece of sculpture and a work of art according to the authorities above referred to … we sustain the protest and find that it is entitled to free entry.’ Brancusi’s lawyers have been widely praised for having the insight and understanding of Brancusi’s then challenging artistic practice and intentions, and for deploying them to persuade a court to recognise that something made by a professional visual artist is art – whether the spectator judges it to be good, bad or indifferent.

In recent decades many artists have intentionally embraced the law as a medium within their practices and processes. Christo & Jeanne-Claude have used the environment as a gallery, since their first ‘wrapping’ project in 1968–69 covering a section of coast in Australia. Realisation of their works lasted decades, and they intentionally set themselves huge challenges: technical, financial, managerial, bureaucratic – and legal. Each work was effectively a legal and business obstacle course: artwork that intentionally embraced the law as a tool or even medium for its creation.

Banksy has used the built environment as both his canvas and his gallery, intentionally ‘vandalising’ the property of others and risking arrest, criminal prosecution – and public unmasking of his identity. Street art has become an established art form and practice, now widely recognised by respected art institutions and the art market.

Carey Young’s work (Interview AM424) often involves subverting the law, legal concepts and language, as in Terms and Conditions, 2004, or Consideration, 2004–05. Mutual Release, 2008, is perhaps one of her most ambitious ‘artlaw’ works to date: it poses the question ‘can the legal contract be a form of art?’ through a series of six works ‘which invite the viewer to enter into, or be privy to contractual relationships based on viewing, owning and collecting art’. In these works, Young uses the law as an artistic medium, inviting the spectator to experience ‘the otherwise abstract space of the contract … and further develops her interest in both the performative and the conceptual dimension of the law to explore its limits and to destabilise its language’. Young’s work aptly exemplifies the interface between – and reconciliation of – two almost diametrically opposed practices: art and law.

Southwestern Law School’s recognition of such issues and associated practice requirements for an artist’s lawyer is both encouraging and praiseworthy.


© Henry Lydiate 2020

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.