To those who are unfamiliar about the mechanisms of the contemporary art world and the international art market, the whole prospect of working “in art” may seem frivolous and unimportant. And, while working within the arena of visual arts has many attractions, it is by no means a lightweight career option. Involvement in the organisation of exhibitions and selling artwork on both a national and international scale involves navigating import and export taxes, shipping fees, logistics and even legal issues. The question of legality recurs across the arts sector, not just in the offices of curators, dealers and gallerists, but also in the studios of artists themselves when they are faced with issues concerning copyright and Intellectual Property.
In fact legal concerns are commonplace in the art world. Reproduction rights, copyright, repatriation and inheritance are just some of the instances when legal knowledge can help to make or break a project. Yet, the legal dimension is very rarely touched on when reporting about movements within the art world. In light of this, Gallery Girl spoke with Intellectual Property lawyer – and co-founder of the Art and Artifice blog – Rosie Burbidge at gunnercooke llp about the legal issues that those working in the art world should be wary of.
“Intellectual Property (IP) is one of the most important issues facing the art world”, explains Rosie. “IP is important, both in terms of ensuring that galleries have the right to use the artistic copyright to advertise the work, and in ensuring that new works do not infringe older works.”
It may come as a surprise to find that an artwork does not need to include an exact copy of the original work in order to be an infringing copy. “A fairly controversial example of this is a case about a photograph of a red bus on a black and white background. The subject matter was the same in the ‘copy’ but the angle, exposure etc were all different”, says Rosie. There is an important division in copyright law between the idea (e.g. a photo of a black and white bridge with a red bus travelling over it) and the expression of the idea (i.e. the particular photograph which includes many artistic decisions about the composition etc). This case was very borderline and was considered by many in the legal community as an attempt to protect an idea rather than the expression of that idea. “Nevertheless copyright infringement was found because there was clear evidence that the defendant had intended to copy the original work.”
Rosie went on to explain that “the copyright infringement line can vary significantly between jurisdictions. For example, Europe tends to be more restrictive regarding the sorts of copying that are acceptable whereas the US has a much more flexible approach – if there is a ‘transformative use’, the defence of fair use should apply.”
Intellectual property law has some nuances that only affect the art world, such as artist resale rights. This right means that an artist is entitled to receive a percentage of the moneys made on the resale of one of their artworks. Though an optional right, the artist resale right has been adopted by around 80 territories worldwide. It was designed to help artists whose careers and price tags significantly increased later in their careers. It follows that works that once sold for a modest price tag, might later sell for multiple times this amount. This resale right allows artists to still get a cut from the resale of an artwork whose value changed from that of a work made by an unknown early-career artist, evolving to become a major work several years later.
Moral rights are also very important to the art world but can often get eclipsed by (or confused with) copyright law. “In addition to copyright, artists have various moral rights including the right to be attributed as the artist of a copyright work and the right to object to derogatory treatment of that work”, adds Rosie. “The success of moral rights claims varies between territories. These claims tend to be more successful in civil law jurisdictions like France. Success stories from the UK or US are a little thin on the ground. An interesting example of moral rights in action concerns Chapman Kelley’s wildflower works. He tried to prevent the modification of two gardens he created in Chicago based on the integrity right. This attempt failed as the Court was not persuaded that a landscape design could be a copyright work.” (More information here)
Rosie also cites a host of other issues, which include the concerns around artworks that were seized from Jewish families during the Holocaust. Auction houses now run due diligence checks in order to recover such works, and checking the provenance of where art comes from is of huge importance to museums. Rosie recommends watching Woman in Gold – a biographical film about the fight for restoration of a Gustav Klimt painting – to get a better understanding of this issue.
Other issues to be mindful of include attempted art work bans, allegations of defamation from art dealers, and the issue of tracking down the owner of older artworks (particularly photographs) known as orphans.
Tax and customs are particular concerns for the art world. “This can be a big problem when arranging exhibitions as the amount of duty depends on how the artwork is categorised”, says Rosie, commenting on Dan Flavin’s art installations, “It can be very important as far as VAT is concerned.” And, when it comes to shipping work internationally, an export license may be required, without which the goods may be seized by customs. This is particularly important to note in regards to artworks of cultural significance. In the past the government has put a ban on the movement of artworks, as was the case with J.M.W. Turner’s Modern Rome – Campo Vaccino (1839), when the J P Getty Museum in Los Angeles had to wait two years to transport the work after buying it at auction in 2010.
Increasingly, authenticating artwork is becoming another major issue; this is of particular concern in the Middle East. In an article published in March 2018 in Harper’s Bazaar Arabia, Rebecca Anne Proctor and Tim Cornwell reported on the problem of forgeries within the Middle East and North Africa art sphere. The region is now tightening up on documentation and academic works to minimise the rise of the presence of fakes within the market, as well as producing certificates of authenticity. Rosie agrees, explaining that the two main issues are around forgeries and works that were wrongly obtained. “The seller of a painting does not necessarily know it is a forgery”, she explains, adding, “Indeed, just because all of the paperwork is not in order does not necessarily mean that it is a forgery.” In 2011, there was a long running battle over a series of Ansell Adams prints, while a year earlier 30 forgeries made by a German forger were discovered in one go!
So, while the art world may seem all glitz and glamour on the surface, there are many complicated issues that artists and art world professionals need to be aware of. And, what can those in the business do to educate themselves about potential legal issues? There’s a great which explains the basics of art and copyright law by Simon Stokes called Art and Copyright (second edition, Hart Publishing, 2012). If you are looking for “a book which combines tax law and artistic beauty is Taxing Art: When Objects Travel (Die Gestalten Verlag, 2011)”, says Rosie, “It is well worth a read for anyone even remotely interested in the complex world of art and tax.”
Rosie’s forthcoming book European Fashion Law: A Practical Guide from Start-up to Global Success (Elgar, 2019) is out now. It takes the reader on a journey from being an up and coming designer to running a fashion empire, you can find more information here
Finally, anyone interested in the more technical issues surrounding thorny issues such as cultural heritage should check out the Institute of Art Law