Comparing Legal Issues for Art Business Professionals

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Table of Contents

Introduction
Legal issues on modern and contemporary art
Legal issues on old art and antiquities
Conclusion
References

Introduction

Art employs thousands of professionals in the contemporary world. There are both small and medium-sized as well as big businesses dealing with art today. It is also evident that the art profession is getting into the global financial market. Banks are especially taking a specific interest in the same. With the passing of time, contemporary art continues to grow. Controversy however always keeps pace with this. There have been many professionals since the beginning of art who have contributed to great dimensions in the art world.

The link between contemporary art and fashion has been observable on the fashion market and catwalks. Art inspires fashion designers who try to integrate art into their events to make the events memorable. This also works in turning the fashions into an art in themselves. The law has to come in where the designers use works of art for inspiration. Works of art are often protected by copyright laws. The law therefore provides that designers get into a license agreement with the people owning the works of art. Depending on the law to be followed, the artist’s permission is necessary in connection with the moral privileges on the work of art.

If a designer copies artwork and uses them for business without the consent of the owner, this is considered an act of infringement of the art professional’s copyright. The consequence can therefore be legal punishment.

Legal issues on modern and contemporary art

Depending on the country, any person that engages in the art business whether it is renting, leasing or compromising to a license for the use of any piece of art is said to be exercising a privilege that should be taxed. A percentage is set for the exercise of any such privilege on the person that is involved. In addition, when one is awarded space for the exhibition of a piece of artwork in an exhibition hall that is either private or public, the sponsor is also taxed for the space.

The implication is that the use of any work of art is subject to taxation (Bostron 1984). The exhibition of any work of art is business as new business opportunities are opened for the exhibitors in the show. Exhibitors may be galleries who are acting as agents for the artists and they exchange works of art to open new geographical markets for their artists. The law therefore treats this as business and the legal procedures of business are applicable.

The Visual Artists Rights Act or VARA identifies the moral rights of an artist in his works of art. The approval of VARA was an important exit from the previously existing law on property. The granted rights to artists include the attribution and integrity rights. The former is concerned with the right of the professional to have a claim on the authorship of a piece of art work. He can also deny the making of an art that does not belong to him. The second right deals with the artist’s ability to recover or prevent damages for deliberate alteration, disfigurement or the destruction of a piece of art. The rights are kept by the artist even after the original work has changed ownership (Visual Artists Rights Act).

The European law recognizes moral rights centering on the right of the artist to protect the creative work for the sake of his reputation. VARA however recognizes that moral rights belong to the artist. The artist owns his creative work and the value of the work is based on the object itself and not a duplication. Damage to the original work is discriminatory by the artist in his ability to maintain honor and a good reputation. In addition, VARA also recognizes that the public is interested in encouraging the artist to preserve the work they have created. It is the public therefore that enabled the invocation of a copyright act in the attempt to preserve culture and art.

In the United States of America, the law that protects art professionals was inexistent until 1979. This is when the Californian state first passed the law on artists’ moral rights. Other states followed after this. The VARA was enacted much later in 1990. This new law overlaps the coverage of artist rights. State laws are nevertheless still in application in USA.

In Europe, the copyright law states that the right to resell is not assignable and therefore if a person acquires a piece of art from the owner or the artist, that person is in no way allowed to sell the piece again to another to make profit as it would be against the copyright laws. The right to resell is only given to the person that made the original work of graphic or plastic art. The interest is economic in the sales that follow the first sale of the particular artwork concerned.

The right to sell falls under a right of production which mainly allows the artist to get consideration for the following reassignment of art. The right covers the physical work owned by the artist which is the medium that incorporates the protected work. The right to resell that the artist enjoys has the main aim to make certain that the artist share in the financial benefits of the original works which they have created. This checks that the economic benefits that the artist enjoys for the original work are fair in relation to the benefits which the people who exploit the original piece get. It is an attempt to be fair to the original artist and limits exploitation and copying of original pieces to some degree.

Treaties also have to take into account the cultural aspects involved in particular pieces of modern and contemporary art. The Berne Convention for the Protection of Literary and Artistic Work in Europe grants the right to resell. However this is only on condition that the legislation in the artist’s country allows for the same. This right therefore becomes an option and under the rule of reciprocity. This means that members of other countries can not be denied the right to resell if the nationals are being allowed the same rights on the grounds of the treaty. The relevance of the treaty and by extension the right is therefore non-discriminatory on the grounds of the nationality of a person.

Globalization of trade has seen to the process of internationalizing the market for modern and contemporary art. The impacts of the new economy have seen to the speeding of this process. Not many countries in this case have been very keen on the resale right outside the European Union. The European Union therefore attempts to open negotiations to make the resale right as spelt out by the Berne Convention obligatory for countries requiring to sell art. This ignorance to the right to resell prompts the EU to lay down regulations that will protect the competition present in the art market.

The right to resell is one among the many legal issues that face modern and contemporary art. This is besides the rights which encourage the creation and dissemination of visual art where two major rights are in application. The two are attribution which refers to claiming work as one’s own and denying work that an artist does not own or one he owns but which has been damaged or altered so that it discriminates the artist’s honor and reputation. The other is integrity which is protection or recovering damage for deliberate alteration, mutilation or improvement of a piece of art which also puts at stake the reputation of the original artist.

An example of a case in which the VARA rights applied is that in the works of David Smith in 1960. One of the collectors who had acquired a piece of art by Smith had modified the sculpture by stripping its surface of Red paint. Once he attempted and failed to persuade the owner of the sculpture to restore the original work, Smith disowned the artwork and suggested laws to protect artists from such actions. Artists after that enjoyed the protection offered by VARA from violations of their work like that on Smith’s (Visual Artists Rights Act).

On the sale of any piece of art by the owner, the government is entitled to a percentage of the sale profits which are made in the form of taxes. A system of taxes that suits the countries involved in the sale of any piece is established.

However, the terms of taxation are not enough to guarantee that the art market will function harmoniously. The present differences between laws in various countries ought to be rid of if the laws have a disfiguring effect on the performance of the internal and external art market. To achieve this, there has to be some sort of harmonization of the rights for reselling. The surfacing of such laws with a distorting effect should also be prevented by all means (Art 0 Resale directive 2001).

For a market to function smoothly, there have to be laws in existence. However, these laws should not be distorted. Distortion of laws results in the unequal treatment of artists that depends on the place where the works of art are sold and the nationality of that artist. The issues affecting artists can therefore be solved and harmonized if the member states work together to ensure the same. The issue can nevertheless not be addressed to satisfaction by the members because of the terms of the treaties and the requirement to correct any distortion.

Copyright laws run a whole generation after the death of the original artist and owner of a piece of art. The same period for which the copyright act runs should also be applicable for the right to resell. For this reason, the only works of contemporary and modern art that can fall within the range of the rights to resell are the original works. With this directive by law though, there are member states that may not have it in application. These countries are allowed to adjust to the right and incorporate it into the state’s legal system so that the economic operators can adapt to the right. It is upon the member states though to choose whether to apply or not to apply the right into their system of law to the advantage of the beneficiaries of the person after his death.

Legal issues on old art and antiquities

In recent examination of antiquities, it was found that looting of antiquities in Africa and Latin America had escalated and this was an issue of concern (Walter 1983). European countries argue though that the African continent deserves looting for the reason that it is not able to protect its antiquities. There have been educational campaigns among local folks to protect the archaeological sites against looters. Mali is one of the examples of countries in Africa which have had missions that were successful in reducing the rate of looting. The efforts are however hampered by lack of enough personnel and other resources.

Questions on how museums can combat the looting of antiquities have also been raised. One of the suggestions was that purchasers of antiquities should take it upon themselves to ensure that the works they buy are legitimate. Walter asserts that they are also obliged to check that the items they plan to acquire have not been stolen or exported or imported illegally from the original country (1983). The law therefore had to come in at this.

On the old art and antiquities, it has been suggested that the law and specifically general treaties should be followed like the Optional Protocol. These treaties treat serious offences against cultural heritage as criminal cases and should therefore enforce the law on the same. The law provides for the regulation of export trade in old art pieces and antiquities. This ensures there is prevention of smuggling of antiques. To some extent, it also prevents the fraudulent dealings in antiques of a particular country. To ensure that these antiques are protected and maintained, the law also provides for the compulsory acquisition of the old antiques and treasures of art which are then preserved in public places where they are accessible by the public and yet protected from theft and general loss.

It would seem that old art and antiquities enjoy more protection than modern art. They are treated as valuable treasures in whichever countries that claim their ownership. In Bosnia, ethnic conflict had destroyed cultural and religious monuments that belonged to certain ethnic groups. To curb this, a law was implemented which spelt the destruction of cultural heritage in a deliberate motive to be a crime against humanity. Museums suggested that the procedure for loans should be altered so that western museums could get long-term loans of antiquities from countries that were rich in them. Illegal traffic would be taken care of by having agreements between the countries that were interested in trading antiquities.

Countries believe that the acquirement of old art and antiquities that meets the ethical and legal requirements is for the benefit of the institutions and private collectors involved. They act as agents of cultural heritage and are beneficial to the education of the public as well as the international cooperation.

They have therefore come up with some resolutions concerning antiquities. The standards of the International Council of Museums should be followed by all museums, collectors and people dealing old art. The procedures of acquiring antiquities should hence not be taken for granted at any one time under any circumstance. This will put in check the illegal acquisition of the material and antiquities by frauds.

The law also points out the deprivation of history by looting of old treasures. Archeological sites are destroyed in the process. It therefore provides that museums that conspire in the acquisition of looted material should not benefit from lending of this art and ancient material. In addition, it is noted that the exchange of cultural material between nations is important to motivate appreciation and honor for foreign culture. It is important too for the academic gains of generations to come.

In this case, the legal issues surrounding this are concerned with encouraging governments of the nations that own antiquities to support long-term loans for cultural material to international museums and institutions as long the standards agreed on internationally are met. There is a need to also revise national acts that limit the period on loans for the sake of exhibitions (Art 0 Resale directive 2001).

International cooperation is important if the word’s cultural patrimony is to be guarded. The law therefore implores the nations to support the agreements that help protect culture. Such agreements include the Hague Convention for the protection of cultural property in the case that there is armed conflict between nations. UNESCO also has a regulation on the importation and exportation of cultural material while the unidroit is concerned about theft and illegal acquisition of old art and cultural antiquities.

The law that protects old art and antiquities therefore provides for regulation of export and import trade in the materials and treasures so that smuggling is prevented. It also prevents counterfeit dealings in antiquities while at the same time granting the compulsory acquisition of antiquities to be preserved in public places besides providing for other issues.

In the provision by law, there is need to define antiquities and old art treasures. Antiquities are treated as any sculpture, coins, painting or craftsmanship, articles and objects that are got from old buildings and caves and educational material of ancient times or historical interest. The government may also put a label on any material to be considered as an antiquity. On the other hand, art treasures are human works of art or any other material which the government defines as such (Art 0 Resale directive 2001).

Governments may give authority to persons to conduct transactions of antiquities on its behalf. The law should in this case provide for the same and only the designated persons are allowed to perform such business. In addition, when a government intends to export any treasures or pieces of art, that government is bound by the terms and conditions of permit as spelt out by law and issued for the reason of that transaction as approved. The selling of antiquities is also bound by the acts and persons are not allowed to sell or offer to sell any old cultural objects unless it is in accordance with the terms and conditions of the license given for the same (Art 0 Resale directive 2001).

Licensing of a person to sell an antique or treasure is only allowed under certain conditions. On the one hand, that person should have experience with the sale of antiquities. Licenses are therefore not given haphazardly. This measure checks on the maintenance of the value of the piece of work for the sake conservation and preservation. In addition to this, the place where the person intends to sell is put into consideration.

This goes hand in hand with the number of people that might have offered to sell or are already involved in the business of selling antiquities in that particular region, city or otherwise. The distribution of antiquities is minded as well as the competition on the sale of old art. The license may be revoked if the person to whom it has been issued fails to comply with the terms and conditions spelt therein. It may also be amended depending on the terms of issue.

The government might demand that antiquities be registered. This will be based on the necessity to conserve the pieces of art or the need to preserve the objects. The registration of antiquities is often accompanied by photographs of the same. This however depends on the demands of the law. To add to the registration procedure, if the owner of any antiquity intends to transfer ownership, then the same procedure has to be followed with registration. The same rule does not apply to those antiquities or treasures that are stored in offices, museums, archives or educational and cultural institutions.

Whenever a government deems it fit to preserve a piece of old art or treasure, the person in ownership of the piece is given notice for the government’s intention to compulsorily acquire that artwork. The collector appointed by the government can then lawfully collect that piece from the owner. In this case, if it is necessary to use force, the owner is under no obligation to resist. However, the owner of the antiquity is compensated for the loss of the piece under the law.

An agreement has to be reached on the compensation value of the piece and this may require the intervention of a court of law. The government holds the right to appoint a person who has knowledge on valuing of treasures and the nature of the antiquity to help the arbitrator. The person from whom the piece is being acquired may also be allowed to get an assessor of his own to confirm the valuing as it will be done by the government’s valuer.

Conclusion

In the protection of works of art, the legal issues concerned for the modern and contemporary art differ on some grounds while they tend to be similar on some. Some of the similarities involve the right to sell works of art. Old art and antiquities are protected by the government and only licensed sellers are given the right to dispose of these pieces under the applicable terms of sale as agreed upon by the nation involved.

This ensures that the pieces are not smuggled and that the frauds are catered for in terms of limitation on sale. In the same way, the professionals dealing with modern and contemporary art are protected by sale rights in that the works can not be sold unless the owner has permitted the same. However, the modern pieces of art are in the domain of the owners unlike the old pieces and therefore the owner is free to sell their works as they consider appropriate.

In addition, the modern works are taxed according to the terms of rights of sale. This differs with the old art and antiquities in the aspect that sale of the latter is only legal if the transaction is carried out through the concerned governments as explained in the paper. In addition to these facts, there is also a similarity in the copyright laws where both categories of work are protected by the same. The modern artist can sue for the duplication or mutilation and modification of his works or even disown it while in the case of antiquities, duplication or modification is treated like any criminal offence.

The sale of counterfeit goods can in no way be condoned by the government. In addition, the government has the right to compulsory acquisition of antiquities from their owners for the sake of preservation and conservation but it has no such right with modern art. The exhibition of old art is not taxed where a modern artist has to pay or space given in an exhibition hall. Old antiquities are the responsibility of the governments and therefore enjoy more protection from the law than modern art does.

References

Art 0 Resale Directive. Official Journal L 272, 2001, p.32-36.

Bostron, Catherine, “The moral right s of artists: Museums and the law,” Museum News, 1984.

Robinson, Walter, “Art and the Law: Moral rights come to New York.” Art in America, 1983.

“Visual Artists Rights Act”, 2009. Web.

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