Mastering Art Law is a useful path to understanding the connections between art and law.
Joe Nalven: Since I am a visual artist, I feel compelled to ask: Are there any photographs in the book? Not only for the eye-candy, but also to see the way in which artists infringe on the works of others - or get away with it by successfully claiming 'fair use.' There was that surprise when Shepard Fairey finally admitted his copyright infringement of an AP photographer's image of Barack Obama in his Hope poster. Or maybe the 1998 case raised by Annie Leibovitz; her Vanity Fair image of the nude and pregnant Demi Moore was satirized by Paramount Pictures in its movie Naked Gun 33 1/3 with Leslie Nielsen posing. By the way, Leibovitz lost her case. (Read the Court's Opinion.)
Is Shepard Fairey's use of an AP photograph copyright infringement? Answer: Yes.
 |
| Artist Admits Using Other Photo for ‘Hope’ Poster by Liz Robbins, New York Times, 2009 Original AP photo (left); Shepard Fairey's Hope poster (right) |
Is the Paramount Poster advertisement a copyright infringement? Answer: No.
 |
| Annie Leibovitz photograph of Demi Moore (left) / Paramount Pictures ad with Leslie Nielsen The Court (right): A Parody of a Pregnant Actress Stands Up in Court, New York Times, Linda Richardson, 1996 |
Joe Nalven: As an aside, the Annie Leibovitz Opinion has an interesting footnote (fn. 1) in which the Court weighs in on the art history of pregnant women.
Not many would venture a definition of art, especially a lawyer. But maybe we need one in order to determine if there has been any unlawful copying?
Herbert Lazerow: The book begins with definitions of art and the artist, some serious, some humorous. Marcel Duchamp defined art as “anything used or produced by the artist.” The Italian artist Piero Manzoni produced 90 small sealed cans, signed and dated, labeled “Merda d’Artista”, supposedly containing his own excrement, which he sold by weight at the then price of gold. Examining the legal definitions of art and artist for purposes of tariff, copyright, first amendment, housing and income tax law, one concludes that a level of creativity is required, but the rest of the definition depends on the underlying purpose for which the term is defined, so the definition varies considerably.
Joe Nalven: Copyright and patent are important; after all, they are mentioned specifically in the U.S. Constitution. (Article I, Section 8, Clause 8) Why?
Herbert Lazerow: Patents are generally not important in art law even though the artist who wants to use a particular process may be bound by them and tied to a single supplier. Copyright is usually not important for the artist who creates unique works, but crucial for the artist who creates multiples. Most of the copyright disputes related to art concern photographs, and they are very difficult cases. The subject matter cannot be copyrighted, nor can an idea. What copyright protects would be a pose, the lighting, or the angle of the shot. Trademarks can also be useful. The Keith Haring Foundation owns the trademark and copyright for Haring’s work. It recently sued a person who was offering both actual and forged work of Haring for sale, and printed a catalogue of the items offered. The allegation was that the forged work was a violation of Haring’s trademark because they had not in fact been produced by Haring, and the printing of pictures of the genuine work in the catalogue violated the Foundation’s right to reproduce the work under its copyright.
Joe Nalven: What was the most intriguing case for you? I am fascinated by the IRS case against Illeana Sonnebend: She couldn't sell a Rauschenberg - Canyon - because it had a dead bald eagle as part of the art object. A $65 million art object that couldn't be sold to pay a $29 million tax bill.
Herbert Lazerow: I also liked that case because IRS was contending that even though the work could not legally be sold, it had an enormous value in the illegal market. I was sorry that it settled because I wanted to see what the court would do with it. From a societal viewpoint, the settlement was good, as the work will belong to a museum, enabling the public to see it regularly. The case resulted from a terrible failure of estate planning. Few people realize how important it is for artists and collectors to have excellent estate planners, both because of the high value of much art and because of the limited amount of art by a single artist that the market can absorb in any period of time.
Joe Nalven: How will Mastering Art Law be helpful?
Herbert Lazerow: The book is an introduction to art law. It should be useful for law students and lawyers trying to orient themselves in a very large and diverse field. I tried to write it so that a person without any legal training, such as an artist, collector or gallery owner, would be able to get a grounding. Even someone with no professional artistic connection should be fascinated by the machinations of the Mark Rothko estate, the peculiarities of the law relating to underwater artifacts, or the efforts of countries to prevent the looting and export of their artistic heritage.
Joe Nalven: Many artists are appropriators. They like to collage or otherwise borrow the works of others. Musicians often sample and expand upon the music of others. Any cautionary tales or lessons you would mention?
Herbert Lazerow: No one creates art in a vacuum. Everyone builds on what earlier artists had done, even if that building constitutes complete rejection. It is said that no one looked harder at the work of Henri Matisse than Pablo Picasso. He may have borrowed ideas, but he did not borrow art. Today there are a number of appropriation artists, probably the most famous of whom is Jeff Koons. Koons has won some and lost some in the courts. At the moment, the field is shifting toward allowing more appropriation in the visual arts because of the minor changes that Richard Prince made in Patrick Cariou’s photographs that were still held to be fair use because he transformed the mood of them. I am not sure that applies to music appropriation because that is mostly copying one piece of music and juxtaposing it with another so they are perceived sequentially, whereas the new art piece is perceived all at once.
Joe Nalven: What moved you to write this book? I've always known the tax side of your work.
Herbert Lazerow: It is all my wife’s fault. Jane is a painter. That convinced me some years ago to take up art law. While there are several detailed treatises in the field and a brief nutshell, I thought a work of in-between depth was needed.
Joe Nalven: Is there another kind of art law book that should be written for international law and what we hear of piracy?
Herbert Lazerow: This book covers the subject. Art is small and portable, so many art controversies are international. The book has two chapters on international art movement problems - one on the safeguarding of art in time of war or occupation, and another on its movement in peacetime. The book also discusses the international in the context of stolen art. Typically, the art is stolen in one country, kept for a while in a second country, sold in a third country, then resold in a fourth country. Whose law applies to determine whether the art was originally stolen, or whether it continues to have the status of stolen art when it is sold to a good faith purchaser? An artwork can be forfeited to the federal government if the importer falsifies customs forms, or if the art is stolen. Sometimes it is necessary to take artwork to a foreign country to be authenticated because the world’s most respected expert on an artist lives there. In the last chapter I provide a primer on international litigation for the art lawyer. That chapter would not be easy reading for someone who has never attended law school.
Joe Nalven: We hear of archaeological artifacts being brought into the U.S. in violation of various countries' laws about their patrimony. Is there an art side to this issue as well? Or has the archaeological category subsumed any other concerns?
Herbert Lazerow: Archaeology is treated as though it were art for certain purposes, even though it may be an uncomfortable fit. This is one area that has changed in recent years. It used to be that people in the art world did not pose indiscreet questions about provenance. In 1970, UNESCO drafted a treaty to help reduce art looting and illegal export. More than a hundred countries, including most of the major art importing countries, have ratified that treaty. Today, artwork whose provenance cannot be traced back to 1970 and who do not have an export permit from the country of origin would be difficult to sell in the legitimate market, and museum accreditation standards call for museums to turn them down as gifts.
I would also like to add that one of the most interesting areas is the difficulty of restoring art taken during the Holocaust to the heirs of its original owners. Because U.S. law is clear on this point, one might wonder why there need be litigation. Today’s cases involve whether the art was stolen or sold, whether the owner’s heirs have slept on their rights too long, or whether some technical procedural doctrine interferes with the restoration.
Another area concerns whether collectors must pay the artist a portion of the sale price of a work. Currently, only California has such a statute, but the Copyright Register’s position has changed on the advisability of such a law. The United States may join 79 foreign countries in awarding the artist a resale royalty.
Herbert Lazerow is a professor of law at the University of San Diego and can be reached at lazer@sandiego.edu
Mastering Art Law (Carolina Academic Press 2015)
Joe Nalven: Copyright and patent are important; after all, they are mentioned specifically in the U.S. Constitution. (Article I, Section 8, Clause 8) Why?
Herbert Lazerow: Patents are generally not important in art law even though the artist who wants to use a particular process may be bound by them and tied to a single supplier. Copyright is usually not important for the artist who creates unique works, but crucial for the artist who creates multiples. Most of the copyright disputes related to art concern photographs, and they are very difficult cases. The subject matter cannot be copyrighted, nor can an idea. What copyright protects would be a pose, the lighting, or the angle of the shot. Trademarks can also be useful. The Keith Haring Foundation owns the trademark and copyright for Haring’s work. It recently sued a person who was offering both actual and forged work of Haring for sale, and printed a catalogue of the items offered. The allegation was that the forged work was a violation of Haring’s trademark because they had not in fact been produced by Haring, and the printing of pictures of the genuine work in the catalogue violated the Foundation’s right to reproduce the work under its copyright.
Joe Nalven: What was the most intriguing case for you? I am fascinated by the IRS case against Illeana Sonnebend: She couldn't sell a Rauschenberg - Canyon - because it had a dead bald eagle as part of the art object. A $65 million art object that couldn't be sold to pay a $29 million tax bill.
Herbert Lazerow: I also liked that case because IRS was contending that even though the work could not legally be sold, it had an enormous value in the illegal market. I was sorry that it settled because I wanted to see what the court would do with it. From a societal viewpoint, the settlement was good, as the work will belong to a museum, enabling the public to see it regularly. The case resulted from a terrible failure of estate planning. Few people realize how important it is for artists and collectors to have excellent estate planners, both because of the high value of much art and because of the limited amount of art by a single artist that the market can absorb in any period of time.
Joe Nalven: How will Mastering Art Law be helpful?
Herbert Lazerow: The book is an introduction to art law. It should be useful for law students and lawyers trying to orient themselves in a very large and diverse field. I tried to write it so that a person without any legal training, such as an artist, collector or gallery owner, would be able to get a grounding. Even someone with no professional artistic connection should be fascinated by the machinations of the Mark Rothko estate, the peculiarities of the law relating to underwater artifacts, or the efforts of countries to prevent the looting and export of their artistic heritage.
Joe Nalven: Many artists are appropriators. They like to collage or otherwise borrow the works of others. Musicians often sample and expand upon the music of others. Any cautionary tales or lessons you would mention?
Herbert Lazerow: No one creates art in a vacuum. Everyone builds on what earlier artists had done, even if that building constitutes complete rejection. It is said that no one looked harder at the work of Henri Matisse than Pablo Picasso. He may have borrowed ideas, but he did not borrow art. Today there are a number of appropriation artists, probably the most famous of whom is Jeff Koons. Koons has won some and lost some in the courts. At the moment, the field is shifting toward allowing more appropriation in the visual arts because of the minor changes that Richard Prince made in Patrick Cariou’s photographs that were still held to be fair use because he transformed the mood of them. I am not sure that applies to music appropriation because that is mostly copying one piece of music and juxtaposing it with another so they are perceived sequentially, whereas the new art piece is perceived all at once.
Joe Nalven: What moved you to write this book? I've always known the tax side of your work.
Herbert Lazerow: It is all my wife’s fault. Jane is a painter. That convinced me some years ago to take up art law. While there are several detailed treatises in the field and a brief nutshell, I thought a work of in-between depth was needed.
Joe Nalven: Is there another kind of art law book that should be written for international law and what we hear of piracy?
Herbert Lazerow: This book covers the subject. Art is small and portable, so many art controversies are international. The book has two chapters on international art movement problems - one on the safeguarding of art in time of war or occupation, and another on its movement in peacetime. The book also discusses the international in the context of stolen art. Typically, the art is stolen in one country, kept for a while in a second country, sold in a third country, then resold in a fourth country. Whose law applies to determine whether the art was originally stolen, or whether it continues to have the status of stolen art when it is sold to a good faith purchaser? An artwork can be forfeited to the federal government if the importer falsifies customs forms, or if the art is stolen. Sometimes it is necessary to take artwork to a foreign country to be authenticated because the world’s most respected expert on an artist lives there. In the last chapter I provide a primer on international litigation for the art lawyer. That chapter would not be easy reading for someone who has never attended law school.
Joe Nalven: We hear of archaeological artifacts being brought into the U.S. in violation of various countries' laws about their patrimony. Is there an art side to this issue as well? Or has the archaeological category subsumed any other concerns?
Herbert Lazerow: Archaeology is treated as though it were art for certain purposes, even though it may be an uncomfortable fit. This is one area that has changed in recent years. It used to be that people in the art world did not pose indiscreet questions about provenance. In 1970, UNESCO drafted a treaty to help reduce art looting and illegal export. More than a hundred countries, including most of the major art importing countries, have ratified that treaty. Today, artwork whose provenance cannot be traced back to 1970 and who do not have an export permit from the country of origin would be difficult to sell in the legitimate market, and museum accreditation standards call for museums to turn them down as gifts.
I would also like to add that one of the most interesting areas is the difficulty of restoring art taken during the Holocaust to the heirs of its original owners. Because U.S. law is clear on this point, one might wonder why there need be litigation. Today’s cases involve whether the art was stolen or sold, whether the owner’s heirs have slept on their rights too long, or whether some technical procedural doctrine interferes with the restoration.
Another area concerns whether collectors must pay the artist a portion of the sale price of a work. Currently, only California has such a statute, but the Copyright Register’s position has changed on the advisability of such a law. The United States may join 79 foreign countries in awarding the artist a resale royalty.
Herbert Lazerow is a professor of law at the University of San Diego and can be reached at lazer@sandiego.edu
Mastering Art Law (Carolina Academic Press 2015)
This book tracks all published Art Law casebooks. It
begins by asking what art is, and why there should be special rules for
it.
There follows a section on the rights and
responsibilities of artists and collectors in areas such as freedom of
expression, defamation, the right of publicity, the rights of privacy,
copyright, trademark, moral rights, resale royalties, and the tax consequences
of common art-related transactions. The book then treats commercial
dealings in art, such as problems of authentication or ownership of the work,
and commercial relationships between artists, collectors, dealers, auction
houses and financers of the art world. It deals with the law governing the
organization and operation of museums, including employment law. The
international treatment of art is discussed in terms of special rules for art
in times of hostilities and occupation, as well as peacetime law governing the
movement of art or artifacts across national boundaries, and national control
of its artistic patrimony. A series of chapters detail the law on
preservation of U.S. artistic heritage, such as historic preservation law, the
ownership of artifacts found on land or under water, and special rules
applicable to Native American remains and artifacts.
The book concludes with a discussion of rules of international litigation frequently encountered in art law controversies, such as jurisdiction, foreign sovereign immunity, Act of State, forum non conveniens, choice of law, enforcing foreign law, and proving foreign law.
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