Art and culture law refers to legal aspects of the visual arts, antiquities, cultural heritage, and the art market and encompasses the safeguarding, regulation, and facilitation of artistic creation, utilization, and promotion.^[1] Practitioners of art law navigate various legal areas, including intellectual property, contract, constitutional, tort, tax, commercial, immigration law, estates and wills, cultural property law, and international law to protect the interests of their clients.^[2]

While the term "art" can encompass a wide range of creative forms, art law typically concentrates on the realm of fine art or visual arts.^[3]

Key terms

• Antiquities - objects from antiquity. Christie's characterizes antiquities "from the dawn of civilization to the Dark Ages, ranging from Western Europe to the Caspian Sea, embracing the cultures of Egypt, Greece, Rome and the Near East."
• Conservation - involves protection and restoration using "any methods that prove effective in keeping that property in as close to its original condition as possible for as long as possible."
• Fake/forgery - a non-authentic, imitation or counterfeit artwork.^[4]
• Intellectual property - the expression or creation of ideas (rather than the ideas themselves), such as art and literary works, designs, symbols, names, images, and inventions. The ownership of intellectual property can be legally protected by copyright, patents, trademarks, design rights, and database rights. See also moral rights and orphan works.
• Restitution - the return of artworks, including those that were looted, stolen, or subject to Holocaust spoliation claims.
• Provenance - the full record of ownership, custody, and location of an artwork.

History

Art law has evolved significantly over the course of the 20th century, with its influence evident in municipal, state, and federal courts. In the United States, although the intersection of art and law is rooted in the U.S. Constitution and the Copyright Clause, which encourages "the progress of science and useful arts" by securing exclusive rights for authors and inventors, little headway was made in the realm of art law until William Howard Taft, convinced Congress to establish the National Commission of Fine Arts.^[5]

Following World War II, there was a notable cultural boom, shifting the focal point of the art market from Europe to the United States. This change brought increased attention to American culture, and the American artist was no longer an outsider. Instead, they entered a new era, becoming integrated into the business environment. This newfound prominence highlighted the necessity for legal professionals with a specific focus on matters related to the arts.

Some of the leading art attorneys who have made a deep mark on the field include Judith Bresler, Norman Palmer, and John Henry Merryman.

See:

• Lerner, Ralph; Bresler, Judith; and Wierbicki, Diana, Art Law: The Guide for Collectors, Investors, Dealers & Artists, PLI Press (5th Ed., August 2020).
• Merryman, John Henry, Urice, Stephen K. &Elsen, Albert E., Law, Ethics and the Visual Arts (January 2007).
• Palmer, Norman (ed.), Museums and the Holocaust, Institute of Art and Law (2nd Ed., Jan. 2021).

Importance

Art law is important because it provides the ability to protect the rights of artists, collectors, galleries, and museums. Art law does not only protect individuals but it promotes the creation, preservation, and distribution of art.^[6]

Areas of art and culture law

• • Moral Rights/Droit Morales
    • In the United States, artists’ rights were typically protected under copyright law or the law of contracts. Increasingly, the moral rights of artists, those of ‘a spiritual, non-economic and personal nature that exists independently of an artist’s copyright in’ their work have been coming to the fore, both on the federal and state level. Statutorily, the moral rights of artists in the United States are poorly protected and narrowly enforced; some seemingly substantive claims are dismissed on procedure failure to state a claim, as res judicata or on industrial design grounds. As soon as U.S. artists die, their moral rights vanish. Despite numerous attempts to introduce resale royalty rights in the United States, artists' resale royalty is for the most part collected through self-negotiated contracts (similar to the Siegelaub/Projansky (1971) Contract LINK https://primaryinformation.org/the-artists-reserved-rights-transfer-and-sale-agreement-1971/
    • See the 1992 and 2013 reports from the Copyright Office that address the subject of resale royalties in general and make reference to private agreements: https://www.copyright.gov/docs/resaleroyalty/usco-resaleroyalty.pdf (see page 70).
  • Intellectual Property
    • Copyright is the protection of individuals' creations. A creator is given the exclusive right to reproduce, distribute, and display the work. Trademark protects the use of distinctive logos, symbols and other identifying marks in art. Trademarks protect the owner from unauthorized use by others. They also ensure that the public can easily identify an artwork's source.
  • Contract Law
    • Contracts typically govern the terms and transfer of ownership of artworks. They set up the obligations between the artist, gallery and the collector.^[7]
  • Constitutional Law
    • The Supreme Court's jurisdiction extends to the First Amendment, freedom of expression, oversight of Congressional power under Article 1 Section 8, conflicting lower court rulings on copyrightable subject matter, and the Foreign Sovereign Immunity Act (“FSIA”). Art law cases in the Supreme Court occupy unique socio-political dimensions—as art law impacts a range of legal topics from free speech to art restitution.
  • Tort Law
    • Tort law comes into play in cases of fraud or negligence in the art market. For example, if an auction house were to sell a work of art knowing it was inauthentic or without authenticating the piece, it turns out to be a forgery.
  • Tax Law
    • The US tax code provides incentives for collectors, galleries, and museums. These include tax deductions for charitable contributions of artworks. There are special tax codes related to the import and export of art.
  • Commercial Law
    • Commercial art law encompasses a specialized area of legal practice tailored to the unique needs of artists and collectors in the realm of business and creative assets. Artists and collectors often require tailored legal support in managing their estates, which may comprise valuable works of art. Within the purview of commercial art law, individuals can appoint art executors through their Last Will and Testament, empowering experts with the knowledge to effectively handle and maintain their artistic assets according to their wishes. Furthermore, commercial art law addresses the intricate aspects of copyright, treating it as a distinct property interest that can be conveyed independently from the artwork itself, ensuring that the creative and financial rights of artists and collectors are safeguarded. This legal domain plays a crucial role in preserving and protecting the interests of those engaged in the art world, bridging the gap between artistic expression and commerce.
  • Immigration Law
    • The O-1A visa is a temporary work visa for individuals with exceptional abilities or achievements in fields like sciences, arts, education, business, or athletics, supported by sustained national or international recognition. For those in the motion picture or TV production industry (O-1B), a proven history of remarkable accomplishments is required. Additionally, the visa applicant must be entering the United States to engage in work or performances related to their exceptional talents. These visas are initially granted for up to three years and can be extended in one-year increments if the same work continues.^[8]
  • Estates, Trusts, and Wills
    • There are art lawyers who work on preparing estates for artists and estates for art collectors. In this domain, artists often have unique requirements. For instance, an artist or collector may designate an art executor in their Last Will and Testament, with a specific focus on overseeing the portion of their estate comprising artworks. This art executor would ideally possess the specialized expertise necessary to effectively preserve or handle the artwork as stipulated in the will. Additionally, copyright, as a distinct property interest, may be addressed in a will and transferred similarly to any other property right, separate from the actual artwork.^[9]
  • Cultural Property Law
    • Cultural property protection encompasses a set of rules and regulations designed to safeguard cultural heritage in its various forms, ensuring its preservation and preventing damage, destruction, theft, embezzlement, or any illicit handling. This protection extends to a range of cultural assets, including "monument protection" for immovable cultural property such as historical monuments, notable architecture, and similar structures. These protections are granted to constructions, buildings, ruins, fortresses, gardens, and more. The rules and regulations governing cultural property protection cover multiple aspects, including access to protection, measures for preventing and legally addressing theft, archaeological site excavation, and the looting or destruction of both natural and man-made cultural sites worldwide. Concurrently, cultural property protection also involves addressing questions related to equitable access to our shared cultural heritage.
      • See for example, the UNESCO, Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, No. 11806, 823 U.N.T.S. 231 (Nov. 14, 1970).
  • International Law
    • International art law is a specialized legal field that pertains to the intricate and distinctive requirements within the global art community. It addresses the legal needs of artists, collectors, and cultural institutions operating on an international scale. Much like in commercial art law, practitioners in international art law help individuals navigate the complexities of managing estates containing valuable artworks. Additionally, international art law delves into the complexities of cross-border art transactions, ensuring that legal frameworks and agreements are in place to facilitate the international movement of artworks, while also preserving the cultural and financial interests of those involved.^[10] This legal discipline serves as a vital bridge between artistic expression and the complex, multifaceted world of international art trade and preservation.^[11]

Important art law cases

• Armory v. Delamirie, 1 Strange 505, 93 Eng. Rep. 664 (1722)
  • Facts: Paul Delamirie, the defendant, was a producer of silverworks in the eighteenth century. Armory was a window sweeper's child. Armory found a jewel and took the jewel to Delamirie's shop. An apprentice at the shop offered to pay Armory money for the jewel, but then removed the stones without Armory's authority.
  • Issue: whether either party had any property rights to the jewel.
  • Holding: The true owner of the jewel was not relevant, the Court was only concerned with who had a better right to possession. The priority of rights to possession say that a finder has better title to property that he or she finds over everyone except the true owner, thus Armory had full title to the jewel.
  • The Court ruled in favour of Armory. Since the jewel was not produced at the trial, Armory was awarded the maximum value that a jewel of that form could have.
• Tutton v. Viti (1833), 108 U.S. 312 (1883)
  • Facts: A case between an artist and the U.S. government in 1928. The bronze was titled “Bird in Space” and was being shipped for an exhibition. The customs official classified it as a piece of metal, not an artwork, so there was a 40% Duty.
  • Issue: The United States Customs Court had to determine whether a bronze sculpture by Constantin Brancusi was a work of art or an ordinary piece of polished bronze.
  • Holding: The sculpture was not strictly representational. The court reasoned the object was used only for ornamental purposes.
• Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884)
  • Holding: the Supreme Court upheld Congressional expansion of Copyright protection to photography
• Rogers v. Koons, 960 F.2d 301 (1992)
  • Facts: The case involves an artist, Jeff Koons, who created a sculpture titled "String of Puppies." Koons based his sculpture on a photograph taken by Art Rogers, who took a black-and-white photo of a man and a woman with their arms full of puppies. Koons replicated the photograph's composition, including the arrangement of the puppies and the pose of the man and woman. Koons stated that the sculpture "must be just like [the] photo."
  • Issue: The central question was whether Koons' replication of Rogers' photograph constituted copyright infringement, considering that Koons claimed his work was a parody.
  • Judgment: The court ruled in favor of Art Rogers, stating that Koons' use of the photograph did not qualify as a protected parody- a kind of fair use-, and was therefore copyright infringement. The court distinguished between permissible parody, which comments on or criticizes the original work, and mere commercial replication for profit. Since Koons didn't transform the original work for a different purpose but rather reproduced it for commercial gain, the court found him liable for copyright infringement. The case highlights the importance of distinguishing between permissible parody and unauthorized replication when it comes to copyright infringement in the realm of artistic works. The court writes “the case turns upon Rogers' past conduct or present intention as much as it does upon the existence of a recognized market for new versions or new uses of the photograph, which unauthorized use clearly undermines.”  
• Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)
  • Facts: The case involved the hip-hop group 2 Live Crew, which created a parody of the song "Oh, Pretty Woman" by Roy Orbison. 2 Live Crew's version, titled "Pretty Woman," transformed the original romantic ballad into a humorous commentary on the fair use of copyrighted material.
  • Issue: The main question was whether 2 Live Crew's parody qualified as fair use under copyright law, exempting it from copyright infringement.
  • Judgment: The Supreme Court ruled in favor of 2 Live Crew, holding that their parody was a transformative work and constituted fair use. The decision emphasized the importance of transformative use in determining fair use and stated that a work can be transformative even if it merely comments on or criticizes the original. The ruling had a significant impact on the understanding of fair use in the context of parody, providing greater protection for artists engaging in transformative and creative works. It clarified and expanded the concept of fair use, particularly in the context of parody, contributing to the legal framework for balancing copyright protection and freedom of expression.
• Republic of Austria v. Altmann, 541 U.S. 677 (2004)
  • Holding: Maria Altman was able to conduct a civil action against Austria in a U.S. federal district court for recovery of five paintings stolen  by the Nazis from her relatives and then housed in an Austrian government museum.
• Blanch v. Koons, 467 F.3d 244 (2006)
  • Facts: In the case of Andrea Blanch v. Jeff Koons, photographer Andrea Blanch sued artist Jeff Koons for copyright infringement. Koons had used one of Blanch's photographs as the basis for a painting, but he made several alterations to it, including removing background elements, changing the orientation of the legs, and adding details. Koons argued that his use of the photograph was a commentary on how mass media represents basic human desires. The district court ruled in Koons's favor, finding that his appropriation of Blanch's photograph was fair use. Blanch appealed the decision to a higher court.
  • Issue: Can a work be considered transformative if it introduces novel elements and serves an additional purpose or has a distinct nature, thereby modifying the original work to convey fresh expression, significance, or communication?
  • Judgment: In determining fair use, the court considers four factors. The most important is transformation, meaning the extent to which the work adds new meaning or purpose to the original. Jeff Koons's use of Andrea Blanch's photo is transformative as it satirizes fashion magazines, offering a fresh perspective. Other factors, like the nature of the original work and the amount used, support Koons. Blanch testified that Koons's use had no negative impact on her career. Consequently, the court affirms the fair use of Blanch's photo by Koons.
• US. v. Portrait of Wally, 663 F. Supp. 2d 232 (S.D.N.Y. 2009)
  • In the case of "Wally," the dispute revolved around the rightful ownership of a painting known as "the Wally." This artwork had initially belonged to a Jewish art collector but was forcibly acquired by a Nazi dealer named Friedrich Welz.
  • Issue: whether Dr. Leopold knew Wally was stolen when the Museum imported it into the United States for exhibition at the MOMA.
• Cariou v. Prince, 714 F.3d 694 (2013)
  • Facts: Photographer Patrick Cariou published a book of Jamaican photographs. Artist Richard Prince used Cariou's photos in his own art, leading to a copyright infringement lawsuit. The court initially ruled against Prince, stating his use didn't qualify as fair use and harmed Cariou's market. Prince appealed the decision.
  • Judgment: Non-infringing fair uses involve transformative works that introduce fresh elements and alter the character, purpose, and message of the original copyrighted work.
• Castillo et al. v. G&M Realty, L.P. 950 F.3d 155 (2020)
  • Facts: The case involves the 5Pointz site in Queens, New York, known for its aerosol art on the facades of several buildings. Gerald Wolkoff, the site's owner, decided to demolish it to build an apartment complex and ordered the whitewashing of the art, destroying it. Artists sued Wolkoff under the Visual Artists' Rights Act (VARA), claiming he violated their rights by destroying works of "recognized stature."
  • Issue: The main question was whether even temporary works of aerosol art could be protected under VARA and if Wolkoff willfully violated VARA by destroying them. The court also considered the argument that the temporary nature of the art should exempt it from VARA protection.
  • Judgment: The United States District Court for the Eastern District of New York ruled that some works on 5Pointz were of "recognized stature," and Wolkoff willfully violated VARA by destroying them. The court declined actual damages but awarded the maximum statutory damages of $6.75 million to sanction Wolkoff's conduct and uphold VARA's policies. The Second Circuit Court of Appeals upheld the judgment, emphasizing that the temporary nature of aerosol art did not exempt it from VARA protection. The court highlighted examples of temporary works that achieved recognized stature, rejecting the argument that such works should be excluded from VARA. The case reinforced that even temporary works of art, like aerosol art at 5Pointz, can enjoy protection under VARA. The court upheld the finding that Wolkoff willfully violated VARA by destroying works of recognized stature, affirming the lower court's decision and award of damages.
• Andy Warhol Foundation for the Visual Arts, Inc v. Goldsmith, 598 U.S. 508 (2023)
  • Holding: The “purpose and character” of the Andy Warhol Foundation's (AWF) particular commercial use of Lynn Goldsmith's photograph — 17 U.S.C. § 107(1) — does not favor AWF's “fair use” defense to copyright infringement.
  • Issue: What is the proper test for whether a work is “transformative” under the first factor of the Copyright Act's fair use doctrine?
  • Facts: Artist Andy Warhol produced a collection of silkscreen prints and pencil drawings known as the "Prince Series," which were based on a copyrighted 1981 photo of musician Prince taken by Lynn Goldsmith. While Warhol made some artistic alterations to Goldsmith's original photo, they were still clearly connected to the original image. Goldsmith filed a copyright infringement lawsuit against the Andy Warhol Foundation, which inherited Warhol's copyright in the Prince Series. The Foundation defended itself by claiming fair use. The district court ruled in favor of the Foundation, stating that Warhol had "transformed" the original photo by giving it a new "meaning and message." However, the U.S. Court of Appeals for the Second Circuit disagreed, arguing that because the Prince Series retained a recognizable connection to the original, it did not undergo a transformative change and, therefore, did not qualify as fair use.

Cultural heritage cases

• Menzel v. List 49, Misc. 2d 300 (N.Y. Sup. Ct. 1966)
  • Facts: Erna Menzel and her husband fled Belgium in 1940 during the German invasion, leaving behind a Marc Chagall painting. The painting was later sold to Klaus Perls and his wife by a Parisian gallery in 1955, who then sold it to Albert List the same year. In 1962, Menzel discovered the painting's location, demanded its return from List, and brought a replevin action when he refused. List impleaded the Perlses, claiming breach of implied warranty of title. The jury ruled in Menzel's favor, ordering the painting's return. List was awarded damages, initially set at $22,500. The Perlses appealed, arguing for a reduction in damages.
  • Issue: The central question is whether the general rule of contract damages, aiming to place the injured party in the position they would be if the contract were performed, applies.
  • Judgement: Yes, the general rule stands. In cases of breach of contract, the injured party is typically entitled to expectation damages, restoring them to the position they would be in if the contract were fulfilled. New York statutes imply a warranty of title in a sale contract, ensuring the seller's right to sell and the buyer's right to possess the goods against lawful claims. The measure of damages for breach of warranty is the loss resulting directly and naturally from the breach. The Perlses argue that damages should be limited to the purchase price paid by List, but the court rejects this. Such a limitation would only result in rescission and restitution, leaving List in a position as if the contract never happened. The court asserts that the proper measure is expectation damages, putting List in the position he would be if the contract were performed. If the warranty had been fulfilled, List would still have the painting and could sell it for its present value. The Perlses' argument about potential liability for innocent sellers is dismissed, as they could have investigated the painting's title before the sale. The appellate division's order on damages is reversed, reinstating the judgment awarding List the present value of the painting.
• United States v. An Antique Platter of Gold, known as a Gold Phiale Mesomphalos, 991 F. Supp. 222 (1997)
  • Facts: William Veres, a European art dealer, sold an ancient gold plate (phiale) to New York-based art dealer Robert Haber on behalf of ultimate purchaser Michael Steinhardt. Haber represented the phiale as being from Switzerland with a value of $250,000 on customs entry forms when, in reality, it was from Italy and valued at $1 million. The Italian government sought U.S. assistance in locating the phiale, leading to its seizure and forfeiture under a U.S. statute prohibiting importation through false statements. Steinhardt, claiming ownership, contested the forfeiture. The district court granted summary judgment in favor of the U.S., and Steinhardt appealed, arguing that the false statements were not material.
  • Issue: Is a false statement made to customs officials material if it would naturally tend to influence the officials?
  • Judgement: The rule establishes that a false statement made to customs officials is material if it would naturally tend to influence them. Importation through a false statement is not the same as importation because of a false statement. Forfeiture of the imported item under the relevant statute requires the false statement to be integral to the importation process, though not necessarily the deciding factor. If it can be demonstrated that a false statement would be significant to a reasonable customs official, materiality is established.
• United States v. Schultz, 178 F. Supp. 2d 445 (S.D.N.Y. 2002)
  • Facts: This case involves Schultz, who was charged with conspiracy to possess stolen foreign goods in the United States, specifically ancient Egyptian artifacts. The charge was based on violating 18 U.S.C. § 2315. Schultz moved to dismiss, arguing that the indictment assumed guilt under Egyptian Law 117, asserting that Law 117 was merely a regulation and not a criminal offense. Law 117 declared all Egyptian historical artifacts as state property.
  • Issue: whether the U.S. charge presupposed a crime under Egyptian law.
  • Judgement: The court held that the U.S. charge did not improperly presuppose a crime under Egyptian law. Contrary to Schultz's claim, Law 117 was more than a regulation; it granted the state extensive property rights, including title, possession, and the right to transfer. The court determined that violating Law 117 amounted to stealing Egyptian artifacts, aligning with the U.S. law under section 2315. Essentially, the violation of Law 117 constituted theft, and the U.S. indictment did not assume an underlying crime. Therefore, Schultz's motion to dismiss was denied.

Theories

John Henry Merryman is a pioneer of cultural and artistic property law academia. He has drawn distinctions between two paradigms through which art and cultural law can be defined. The first is the subject being independent of its national ties and attracting significance and meaning from the historical or archaeological interest that is generated by human culture.^[12] This is idea is legally bolstered by the UNESCO definition of cultural objects which is a close definition of significant objects which attract interest.^[13] The second inextricably ties cultural objects to their national heritage which in turn legitimises efforts for their re-patriation (see Elgin marbles, Gweagal shield, Easter island).