Acknowledgments 12 results (showing 5 best matches)
- West Academic has been an active participant in the field of Art Law. Beginning with its
- I valued my mother-in-law Cumi Elena Crawford’s faith, trust, and inspiration, which helped me create this project. Finally, I would like to express my sincere gratitude and acknowledge the contribution to this project by my partner in law and in life, Mary Ann Crawford DuBoff. Without her, this fifth edition of Art Law in a Nutshell would never have become a reality.
- Law schools, too, have become involved with Art Law. Not long ago, it was unusual to find a school that offered a class on Art Law. Today, there are over fifty schools which offer the course on a regular basis, and others are coming online at a rapid pace. In fact, a law school casebook,
- When, more than four and a half decades ago, I combined my art background with my professional training as a lawyer, I had no idea how dynamic the field would become. As the melding of art and law continued and more professionals became involved with the arts, it became clear to the academic community, as well as to the legal profession, that Art Law had arrived. Today, there is an Art Law section of the Association of American Law Schools, a committee within the American Bar Association, which, among other things, is involved with Art Law, approximately 28 states have Volunteer Lawyers for the Arts programs, and there are several law reviews that are devoted entirely to this field.
- Not too long ago, Art Law conferences were rare. Today, conferences and symposia devoted to this field have become quite common. Publications have also proliferated, and most law libraries contain a respectable collection of Art Law material. Indeed, there have been several bibliographies published for the field.
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Introduction 7 results (showing 5 best matches)
- I feel inherent in this book that constant eye toward a better and wiser future, and a call for action wherever needed. In addition to providing an illuminating analysis of present-day conditions,
- Art Law in a Nutshell
- Since the Endowment’s establishment less than twenty years ago, we have witnessed an extraordinary growth in the wide variety of all the arts, and in the importance we as a nation place on them as such technicalities of estate planning for all involved in the arts. We learn the legal protections for artists and works of art.
- As one who has worked in the arts for many years as a novelist, and many more as developer of legislation to create a National Endowment for the Arts (NEA) in the early 1960’s, and subsequently as its Chairman, I find Professor DuBoff’s work uniquely absorbing.
- It was once said about my own work in designing the legislation for the National Endowment that a novelist’s experience with broad concepts was not out of place. I wish I had enjoyed the pleasure of Professor DuBoff’s collaboration then. I know his intelligent views and articulate voice will continue to be welcomed by the arts community and those who share in its myriad of benefits and potentials.
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Introduction to the Fifth Edition 2 results
- The Fifth Edition of Art Law in a Nutshell continues to address a wide scope of national and international issues concerning law and the arts. Professor Michael D. Murray of the University of Kentucky College of Law has joined the author team of Leonard DuBoff and Christy King. The text continues to focus on the world of art law for artists, dealers, collectors, lawyers, and members of the public. Each chapter of the book has been updated, and material up to and including June 2016 is featured and discussed. We welcome you to the study of this fascinating area of the law.
- Christy A. King
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Introduction to the Fourth Edition 3 results
- Art law is complex and obscure. Leonard DuBoff and his collaborator Christy King’s well written
- For more than 40 years my life has focused on copyright law, a law that protects artists and their works. My focus, therefore, was narrow. This book has increased my appreciation of artists and others who work in the art world. It certainly enriched my understanding of the breadth of issues and the challenges that artists, institutions, dealers, and even governments face. It also made me aware of important issues that remain unresolved and that need to be addressed.
- DuBoff cares deeply about his subject. He is an expert, having written important works in this area for more than 30 years. Here he and King take the reader through numerous complex issues. They discuss applicable laws and regulations, as well as actual cases. Their explanations are clear and understandable and at the same time legally and technically accurate. Additionally, this work is full of practical advice, insights, and perceptive observations. It is a book for those who want to be informed, and they will want it on their desks or in their workspaces.
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Chapter 4. Art as an Investment 24 results (showing 5 best matches)
- Courts have interpreted Rule 10(b)(5) as requiring a standard of conduct far more exacting than the minimum standard required to avoid being guilty of common law fraud, which standard may loosely be thought of as fairness under the circumstances, but thus far there have not been any reported cases considering whether Rule 10(b)(5) should be applied to the purchase or sale of art itself. Art investment funds are subject to the anti-fraud provisions of the securities laws, though many art investment funds avoid increased SEC regulation by meeting the definition of private investment vehicles. A fund qualifies as a private investment vehicle if it limits its offerings to fewer than 100 “accredited” investors or to fewer than 500 “qualified” investors. Art fund managers themselves must register as investment advisors with the SEC if either they engage in significant leveraging and securities trading strategies, or the art fund exceeds the $150,000,000 threshold for “assets under...
- The art market is largely unregulated. Unlike more traditional forms of investment, which are regulated by statute and policed by administrative agencies, there is no comprehensive body of statutes specifically designed to prohibit manipulative or deceptive practices in the art market. Some states have enacted consumer-oriented statutes that are applied to a limited extent in the art market (see Chapter 6, ), but none are as comprehensive as the federal and state securities laws. The question arises, therefore, whether these laws, designed to regulate the trading of securities, can be applied to art.
- As an investment vehicle, art appears to perform well in inflationary times. This seems to be the result of a belief among some that art is more valuable than money or stocks. The devaluation of currency in the United States and Europe in the early 1970s, for example, resulted in panic buying in the art market and substantial increases in the value of many works of art. analyzed price trends in 1975 and concluded that the best hedge against inflation was French Impressionist paintings. They rose an astonishing 230 percent, whereas the Dow Jones averaged a mere 38 percent increase. In periods of deflation, on the other hand, investors seek a return in terms of money rather than in property held for appreciation. More recent research by wealth management companies has shown these trends remain true. As a result, some investment advisors counsel their clients to put no more than 10 percent of their assets, exclusive of real estate, into tangible investments, including art. Although...
- As art prices continue to set records, new art funds and investment companies continue to appear. There are also indexes to help investors track the fluctuating art prices, such as the Mei/Moses Fine Art Index. According to the Mei/Moses Index, over the past half century, art has kept pace with stocks measured on the Standard and Poor’s Index, and during the last decade, art has outperformed stocks. Despite fears that the attacks of September 11, 2001, would cause the art market to crash, prices on the art market have soared. In 2004, Picasso’s
- Throughout the centuries, the wealthy have always collected works of art, not only for their own enjoyment but also with the underlying knowledge that art can be exchanged or upgraded as the buyer’s wealth increases. Although the concept of purchasing art purely for investment purposes was originally greeted with horror, today it is safe to say that investing in art has achieved the status of respectability. Some investment advisors encourage their clients to purchase art as a hedge against inflation and as a complement to a traditional investment portfolio. In addition, art also provides intangible dividends, such as the aesthetic enjoyment of the piece and an opportunity for personal contact with the artist and with others knowledgeable about art.
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Chapter 6. Authentication 71 results (showing 5 best matches)
- Recognizing the difficulties of interpreting and applying the U.C.C.’s warranty and disclaimer provisions to art fraud, some states have enacted laws dealing specifically with art warranties. The New York legislature approved a bill in 1966 which provides that any art merchant who sells a work to a nonmerchant buyer creates an express warranty if, in describing the work, he or she identifies it with an author or authorship.
- Since art forgeries are so prevalent in today’s market, most buyers know or should know that there are risks in purchasing a work of art. Thus, absent some fraud or wrongdoing on the part of the seller or some special relationship of trust and confidence, it will be extremely difficult for the purchaser to hold an innocent seller liable under the common law theories of mistake or misrepresentation.
- Much more work needs to be done. Until the federal legislature recognizes the scope of the problem by appropriating funds for a complete up-to-date registry and enacting federal art warranty laws with substantial penalties for their breach, (“let the buyer beware”) must be the byword for the art purchaser in most circumstances.
- Michigan enacted a similar statute in 1970, Mich. Comp. Laws § 19.410 , as did Florida in 1990,
- In addition to relying on personal knowledge, the prospective purchaser may consult an art expert. Art experts fall into two general categories: stylistic and scientific. Stylistic authentication results from a subjective evaluation of the work by an art historian based on knowledge, intuition, and experience. Scientific authentication, on the other hand, results from an objective evaluation of the work based on the results of assorted scientific tests performed on the work.
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Chapter 11. The Working Artist 32 results (showing 5 best matches)
- Unfortunately, these mandates are often ignored by art supply manufacturers, and many feel that the law’s criteria for toxicity are not stringent enough. In addition, art supply manufacturers can avoid these requirements simply by selling their products through hardware stores rather than art supply stores, as only materials marketed as art supplies are required to be labeled under LHAMA. Many products regularly used by artists, such as ammonia, are not classified as art supplies and thus do not carry labels warning against hazardous uses in a studio setting. Even warnings on those supplies which do carry the mandated labels may be inadequate. While most government health warnings are based on exposure to a substance on an occasional basis or, at most, during an eight-hour workday, artists often live and work in the same place and thus have a potential exposure of up to 24 hours.
- More recently, in Private Letter Ruling 201516066 (Jan. 21, 2015), an artist co-operative that operated an art gallery was found not to qualify as a tax exempt organization, though the gallery also engaged in educational and charitable activities, including providing one-day art workshops, hosting an annual 5K and fun run, awarding scholarships and providing community art/artist talks and school/youth tours of the gallery.
- environment surrounding the studio or factory may also be at risk. In 2016, art-glass facilities, which use metal oxides to create different colors of glass, came under fire after the discovery that Bullseye Glass in Portland, Oregon, was emitting heavy metals, including cadmium and arsenic, into the air. Residents near Bullseye Glass have filed a class action law suit seeking a billion dollars in damages, and the EPA is reevaluating requirements for these types of businesses. Faced with the expense of complying with new regulations, Spectrum Glass, one of the leading makers of art glass in the Pacific Northwest, chose to shut down.
- The Internet is another venue for art sales, whether an artist sells his or her work directly or through an online gallery or auction house, such as eBay. While online sales still make up less than 10 percent of the art market, many lower priced works are sold through Amazon, art.com, Artsy, 1stDibs and other online venues.
- Later, in
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Copyright Page 5 results
- Nutshell Series, In a Nutshell
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- Printed in the United States of America
- © West, a Thomson business, 2000
- © 2017 LEG, Inc. d/b/a West Academic
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Chapter 8. Tax Problems: Collectors and Dealers 44 results (showing 5 best matches)
- An individual about to engage in the purchase, sale, or other disposition of art should consider the potential tax consequences. Transactions involving works of art may be taxed under the income tax, gift tax, or estate tax laws. Since different rates and methods of reducing tax liability are available depending on how a particular transaction is structured, these different forms of tax should be analyzed before deciding on a particular method of acquiring or disposing of art. With a basic understanding of effective tax planning, a careful collector or dealer may be able to save a good deal of money.
- Under current law, a charitable deduction for income tax purposes generally is not allowed for the transfer of an original work of art to charity if the copyright is retained by the donor or transferred to a member of the donor’s family. This is because when the donor transfers some specific rights and retains other rights, the transfer is not considered a contribution of an undivided interest. Yet, for the purposes of estate and gift tax charitable deductions, a work of art and its copyright are considered separate properties. Estates of decedents may take a charitable deduction for the transfer to charity of a work of art even if the copyright is retained by the estate or transferred to a noncharitable recipient.
- While not technically a deduction, another way collectors can save taxes is through laws exempting artwork from taxes in certain circumstances. Nevada passed a law in 2003 exempting “fine art for public display” from personal property taxes (
- There are many other ways to structure tax shelters and to reduce one’s tax liability. New schemes are constantly being devised by creative lawyers and accountants. As indicated above, not all of these schemes produce the effects intended; when they do, the tax laws frequently are changed. Collectors, dealers, and investors in art, therefore, should plan their transactions carefully. With a proper awareness of the tax laws, significant amounts of money can be saved.
- Some courts have considered the nature of the enterprise and its financial success, such as in , where the court stated the test was that “the gross receipts must have substantial relation to the expenses of the operation, and the facts as a whole must exclude a finding that the enterprise was only a scheme for tax evasion.” In , the expenses of maintaining and operating a museum were held deductible as trade or business expenses. On the other hand, in , the court held that expenses related to acquiring and maintaining a sizeable art collection were not deductible. Although there was evidence that the taxpayers invested in art because they were wary of other investment vehicles, that they kept meticulous records of their activities, and that much of their time was spent away from their residences in which most of the art was stored, the court focused on the facts that a great deal of the taxpayers’ personal lives revolved around their art collection and collecting activities and...
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Chapter 1. Art: The Customs Definition 11 results (showing 5 best matches)
- The term art has many meanings, depending on the context in which it is used. In the law, some of the most important and well developed definitions are articulated in the customs cases. This is because most works of art may enter the United States duty free. In deciding what qualifies as art for the purposes of determining tariff rates or exemptions on imports, the courts have focused on the appearance of the object, the occupation of the person producing it, the purpose for which the object is made, and, if the object is editioned or serialized (like prints or bronze sculptures), the method of execution or number of pieces in the edition or series. The definitions that emerge reflect not only the policies underlying the tariff laws, but also the changing nature of art and the emergence of new art forms and media.
- Thus, the technical definition of art adopted by Congress and interpreted by the courts for customs’ purposes reflects political and economic concerns that are divorced from aesthetics. There are other legal contexts in which art is defined using more aesthetic considerations, such as in copyright law (See Chapter 12 ). It, therefore, is important to determine the context in which the term “art” is used when attempting to develop a definition.
- Another requirement for duty-free entry is that the work must be the product of an artist, rather than an artisan. Under the 1958 amendments, a sculpture could be admitted duty free only if it was the work of a “professional” sculptor. In determining whether a person was a professional sculptor, the courts tended to place great emphasis on the individual’s credentials; thus, a graduate of a course in sculpture from a recognized school of art or an artist with works exhibited in public at an exhibition limited to the fine arts likely would have been considered a professional sculptor. Similarly, one who was recognized by his or her peers or by art critics also would have been considered an artist for customs purposes. See CLA–2: R.R.V.C.S.C. 061949 TL, May 19, 1980. Under the Harmonized System, the professional status requirement now applies only to sculptors working in ceramics. However, the customs service continues to differentiate between an artist who creates an original work and
- Even if the work is otherwise a work of art because of its purely aesthetic characteristics, it still may not be eligible for duty-free entry if it is imported for a commercial or industrial use, such as reproduction on the cover of a magazine, use as a prop in an advertisement, or if the work is commonly produced in mass quantities for a large market. This disqualification probably results from the belief that the commercial art market is limited and that the imported piece might displace one created by an American artist; thus, a customs duty is imposed on art imported for commercial purposes to make it less economically desirable. In determining what is a commercial purpose, courts focus on the reason the items were imported rather than on the intent of the artist in creating them and, where the reason for importation is ambiguous, on the chief use in the hands of the ultimate recipient.
- Early customs cases restricted the definition of art to the fine arts, as distinguished from the useful mechanical and industrial arts. In , the United States Supreme Court held that stained glass windows containing effigies of saints and other representations of biblical subjects for use in a church could not be admitted duty free as fine art. While the court noted that the stained glass windows were artistic in the sense of being beautiful and that the windows required a high degree of artistic merit for their production, they, nevertheless, were classified as decorative and industrial. The court stated that Congress extended its special favor to the fine arts alone, which the court defined as works “intended solely for ornamental purposes, and including paintings in oil and water, upon canvas, plaster, or other material, and original statuary of marble, stone or bronze.” Excluded from the definition were “[m]inor objects of art, intended also for ornamental purposes, [which] are...
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Chapter 2. Art: International Movement 43 results (showing 5 best matches)
- Another means of regulation is through the use of local conversion laws and theft statutes, usually part of a country’s general scheme of property and criminal law, to control the procurement and disposition of domestic and foreign art. The determination of who owns property that is stolen, however, frequently depends on the construction of foreign laws. In ,  1 ER (Ch) 496,  1 All ER 1121, for example, it was held that where the plaintiff’s art was stolen from him in England, taken to Italy, and subsequently sold to the defendant, Italian law should be applied to determine who had title to the art. The court relied on the rule, which provides that the validity of a transfer of movable property is governed by the laws of the country where the property is situated at the time of the transfer. Similarly, in , the court held that defendants who conspired to procure pre-Columbian artifacts in Guatemala and to sell them in this country violated the National Stolen Property...in
- Many concerned nations have attempted to solve the problems presented by the international movement of art by adopting laws to control the flow of cultural property in and out of their geographical boundaries. Most nations encourage the export of contemporary art by living artists, but the vast majority of countries have enacted some form of export restrictions for other cultural property. A few countries have no restrictions on art exports.
- However, the court intimated that the conviction would have been affirmed if the government had relied on either of two other theories in the case. First, in 1934 and 1972, Mexico declared its ownership in all monumental works of art and all movable works of art found in or on such monuments. Individuals were given an opportunity to register pieces in their private collections in order to establish their individual ownership. Items not registered were presumed to belong to the state. Thus, the court suggested, proving that the works in question were not registered and were removed from Mexico after 1934 would have resulted in a conviction. Second, in 1972, the Mexican government unambiguously declared itself to be the owner of all pre-Columbian art “whether known or unknown” within its geographic borders. Hence, establishing the fact that the defendants removed the works from Mexico after this date would likewise have resulted in a conviction. The government chose to rely instead on...
- Art acts as a goodwill ambassador, creating an understanding of, interest in and admiration for the people of the country of its origin. Movement of art internationally also broadens tastes and sensibilities, eliminates parochialism, and promotes international understanding; yet, countries also have an interest in retaining and protecting their national treasures. The availability of cultural property within any country enhances the national conscience, fosters community pride, and contributes to local scholarship. The prevention of looting, theft, and destruction of art and archaeological evidence is also important in order to preserve individual works of art and to maintain the association of art and cultural property within its historical and geographical milieu.
- The problem of possible destruction upon the return of native art poses difficult conflicts for museums and collectors. One especially acute situation occurred in 1978 when the Zuni Indian tribe requested the return of a Zuni War God acquired by the Denver Art Museum in 1953. Under Zuni law, no person can own gods such as these, since they are tribal property, and only tribal members are permitted to see them. After much deliberation, the museum trustees issued a release, stating:
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Chapter 10. Aid to the Arts 34 results (showing 5 best matches)
- In 1965, the first statute supporting the arts since the Depression was passed and signed into law. The National Foundation on the Arts and the Humanities Act of 1965, ), established the National Foundation for the Arts and the Humanities. The legislation was unique. For the first time in the history of the United States, an agency was created that was devoted to the arts and humanities. The legislation established the National Endowment for the Arts (NEA) and the National Endowment for the Humanities. In addition, a Federal Council on the Arts and Humanities was created to consist of agency heads in the federal government whose work related, or could relate, to cultural development and to prevent duplication of effort in a new area of governmental activity. Unlike the WPA’s goal, the NEA’s goal is not to provide employment but, rather, to make the arts more widely available to Americans, to preserve our rich cultural heritage, and to encourage the creative development of our nation...
- Indirect aid is also an important form of governmental support for the arts. While this type of legislation does not provide direct funding for professional artists and art institutions, it creates heightened public awareness of art and provides artists with new outlets for their work. There are several methods that are used. Governmental entities may require a percentage allocation for art in new construction projects, or they may enact regulations concerning the public display of art or the preservation of historic landmarks, thus providing outright support or tax incentives.
- One of the most effective means of indirect governmental aid to the arts is the percentage allocation regulation, which has been adopted by 26 states, Washington, D.C. and Guam, as well as numerous municipalities. These regulations require a percentage of the building cost of new governmental structures, usually one percent, to be spent on art. The implementation of such legislation does not merely enhance the specific buildings involved; the entire art community is benefited. Supporters are relieved from the task of lobbying and applying for grants in each instance, and artists commissioned to work on public art projects may also teach and exhibit their works locally. Disputes can arise, however, as to how the percentage allocations should be spent. For example, when the Metropolitan Arts Commission in Portland, Oregon, approved the purchase of a cedar hawk sculpted by 19th-century Pacific Northwest Indians for a new building under construction, the purpose of the art acquisition...
- governmental aid, the public’s perception and awareness of art is heightened, and new markets for art are created. In addition, through direct aid, funding over and above revenues from sales and royalties are made available to artists to pursue their work. While such funding—both public and private—is extremely sensitive to changes in economic conditions, it provides an important resource for artists and contributes to the arts in America.
- The first federal effort to become involved with the arts was initiated in the 1850s when President Buchanan attempted to establish the National Commission of Fine Arts. This project was aborted within a year because Congress failed to appropriate funds. The same fate befell the Council of Fine Arts proposed in 1909 by Theodore Roosevelt. In 1910, President Taft was successful in enacting the National Commission for Fine Arts Act of May 17, 1910, c. 243 § 1, 36 Stat. 371 (codified at to the government and determined the appropriate location for each donation. These early half-hearted efforts suggest that the United States government apparently desired an active art program, though it was unwilling to make any meaningful sacrifice for such projects. Several municipal programs attempted to fill the void created by federal inaction, most notably the Civil Works Administration (CWA) of New York City. The CWA sponsored paintings, murals, and art education, but its primary goal was to...
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Chapter 14. Moral and Economic Rights 54 results (showing 5 best matches)
- Fine art is defined as “an original painting, sculpture, or drawing, or an original work of art in glass,” but the Act does not apply to the initial sale of a work of fine art where the legal title to the work is vested in the artist, to the resale of a work of fine art for a gross sales price (or fair market value of property, including art taken in trade) of less than $1,000, or to the resale of the work for a gross price less than the purchase price paid by the seller. Also excluded from the Act are sales that occur more than 20 years after the artist’s death, resales of works by an art dealer to a purchaser within 10 years of the initial sale of the work by the artist to the dealer, provided all intervening sales are between dealers, and to sales of works of stained glass artistry where the work has been permanently attached to real property and is sold as part of the sale of the real property to which it is attached. For purposes of the statute, an artist is defined as the...
- By contrast, an artist ordinarily may not object to the use of his or her name in a truthful statement that the artist created the work or that the work is based on or derived from the artist’s work, in the absence of contractual provisions to the contrary. Similarly, the omission of an artist’s name from a work ordinarily is not actionable unless the omission amounts to a breach of contract or the work is covered by VARA or a state law. California provides that an artist who creates an original painting, sculpture, or drawing retains “the right to claim authorship,” even after the work is sold ( ). Similarly, New York law provides that “the artist shall retain at all times the right to claim authorship or, for just and valid reason, to disclaim authorship of” a work of fine art.
- In addition to the , or economic rights. Droit de suite laws (also known as resale royalty laws) give an artist a right to participate in the proceeds realized from the resale of his or her work. While the copyright laws give the creator of a work the right to control reproduction, artists do not benefit as directly as authors do from this aspect of copyright protection. Unlike authors, who derive their primary economic return on a literary work through the sale of multiple copies, artists receive most of their economic returns from the sale of the original works they create. Royalties paid to an artist upon the resale of his or her work put an artist on a more equal footing with an author by giving an artist the right to participate in any exploitive use of his or her creation and by recognizing that increases in the value of art are based on the artist’s earlier labors.
- Generally, the responsibility for paying the artist is with the seller, but when a work of fine art is sold at an auction or by a gallery, dealer, broker, museum, or other person acting as the seller’s agent, the agent must withhold the five percent, locate the artist, and pay him or her. If the artist cannot be located within 90 days, the royalty must be transferred to the California State Arts Council. The Arts Council then must attempt to locate the artist. If the artist still cannot be located and if the artist does not file a written claim for the money within seven years from the date of the sale, the money becomes the property of the Arts Council for use in acquiring fine art for its Art in Public Places Program.
- Where state legislation and VARA are unavailable, common law theories and federal statutes may provide some protection, but they are by no means as comprehensive as the New York or California laws. There have been cases that found that VARA preempts state art preservation claims to the extent that the state laws provide equivalent rights of integrity and attribution as those provided under VARA. See, e.g.,
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Chapter 16. Museums 87 results (showing 5 best matches)
- There is no better case study of the problems raised by a settlor’s intent that is extremely detailed and restrictive than that of the Barnes Foundation and its creator, Dr. Albert C. Barnes. The Barnes Foundation was founded in Lower Merion, Pennsylvania in 1922 with the purpose of promoting the advancement of education and appreciation of fine arts. See
- , Art in Am., July/Aug. 1973, at 6; Paul Gardner, , ARTnews, Apr. 1989 (discussing situations in which several museums found themselves in receipt of stolen art or art previously acquired through fraud); Alexander Stille,
- Yet another divisive issue is whether funds obtained through deaccessioning can be used for purposes other than art acquisition. The Guggenheim sold nearly $15 million worth of artwork in 1999 and 2000, depositing most of the proceeds in a restricted art fund in its endowment. The AAMD investigated the museum to determine whether this violated the AAMD’s code of ethics. At issue was whether the fund was created to serve as collateral for a $54 million bond issue and whether the art collection was placed at risk. The Guggenheim eventually approved an amendment to its written collection management policy to prohibit using proceeds from deaccessioned art for any purpose other than art acquisitions (the Guggenheim’s previous policy had reflected the less stringent standards of the AAM, which allows such
- Still other restrictions are based on the responsibilities of the museum within the domestic and international art communities. Museums are the most active buyers in the international art market and have served as major repositories of illicitly acquired art and antiquities. As noted in Chapter 2, , there are many restrictions based on national treasure laws, criminal statutes, private suits, and import and export regulations; yet, only when there is no market for illicitly obtained objects will the trafficking cease. To this end, many museums have formulated ethical guidelines for the acquisition of art, though in 2003, the collecting policies of several major American museums were criticized at an international conference entitled
- Museums occupy a unique position in the art world. Like any institution, museums must grapple with the nuts and bolts of managing their investments, personnel and day-to-day activities; yet, due to their sheer size and notoriety, they must do so under scrutiny from donors, their local communities, and the world of art in general. As the largest group of art collectors and the most visible participants in the market, museums influence trends and the behavior of other collectors. As repositories of art and cultural artifacts, they also serve as an important resource for the public. These attributes make museums subject to many legal, ethical, and policy forces that other collectors do not face.
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Chapter 3. Art: The Victim of War 24 results (showing 5 best matches)
- One of the earliest attempts at setting limits on the destruction of art and other cultural property in wartime was the Lieber Code, General Orders No. 100: The Lieber Code—Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Orders No. 100 by President Lincoln, 24 April 1863, available at
- Art and the owners of art have suffered for centuries at the hands of countries at war. The loss of private and cultural property is not likely ever to be completely prevented, and thus the task of adjudicating those losses will necessarily fall on the courts. To the extent that countries can agree on the conduct of armies and the disposition of art during war, then so much the better. In the meantime, courts will have to decide questions of ownership and loss within the confines of existing international policy and law. In addition, political pressures will have to be used where possible to inhibit pillage and destruction of cultural property or to aid in the return of works of art to individuals or nations that are victims of expropriation.
- Conquering armies have plundered defeated countries from the earliest times. Homer, in the , catalogues many of the treasures collected from the sack of Troy, though it was the Romans who first glorified the plunder of art. Art of an invaded country is taken not only for its pecuniary value, but also as a talisman of wartime prowess. In Rome, masterpieces from Greece, Egypt, and Asia Minor were acquired, not for their intrinsic worth, but as symbols of Roman strength. Similarly, in the pre-World War II period and in the war itself, the Germans seized the art of other countries in order to make these priceless items available to the superior race; at the same time, countless pieces of post-Impressionistic works were destroyed as “degenerate.”
- As these situations suggest, the best medicine for the problems of art lost or stolen during war is prevention, and aside from doing away with wars altogether, the only means of preventing the damage or looting of art during war is by treaty. Thus, in 1954, the Convention of The Hague reconvened for the purpose of reestablishing the principles that had been neglected during the two World Wars. The provisions agreed to by the contracting parties allow for total protection of the cultural properties of any nation, either from the ravages of war or from the pillages that occur during times of peace. The Convention for the Protection of Cultural Property in the Event of Armed Conflict, done at The Hague (May 14, 1954), available at any work of art, regardless of ownership, mobility, or location. The destruction of a work of art to obtain war materials is expressly forbidden. More importantly, the Convention also establishes the means of protection by calling for a limited number of...
- Because of these questions of jurisdiction, standing, and conflicts of laws, the courts are not always able to resolve adequately the problems of lost, stolen, and confiscated property that arise in the aftermath of war. Sometimes nonjudicial solutions are more effective. For example, after World War II, catalogues of lost or stolen art were prepared by various countries and circulated among dealers and collectors in an endeavor to locate the works and have them returned to their rightful owners. It was expected that political pressure would prove to be as effective as the threat of litigation in persuading individuals who realized they possessed looted or stolen works to return them.
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Chapter 7. Insurance 28 results (showing 5 best matches)
- The question of whether to insure can be most important to the owner or guardian of a collection. While premiums on fine arts policies are generally lower than those fixed for many other types of insurance, they can still be substantial. Premiums for large collections may be particularly high since insurance companies will usually add a loading factor reflecting a potential increase in the risk of theft. Premiums have risen as the number of art thefts has risen. According to the FBI, each year, $5 billion to $8 billion worth of artwork is stolen worldwide. Trafficking in stolen art is as lucrative and pervasive as trafficking in drugs, weapons and counterfeit goods. At best, only 10 percent of stolen works are ever recovered (some experts put the figure as low as two percent). In many cases, insuring against these risks is simply not worth the cost. Art collectors thus rarely insure for the full value of their collections, since losses due to theft and fire rarely wipe out an entire...
- If the loss is only partial, such as where a painting is damaged but not destroyed, the insurance company may apply a standard formula under which a flat percentage of the value of the property is offered for repairs and depreciation. Such a formula may not adequately compensate the owner of works of art, however, since the same amount of damage may affect the value of each piece in an art collection quite differently. A unique object may be repaired without diminishing its value, but damaged objects that are not original or unique may be virtually worthless. A better method of determining the amount of damage to a work of art is to have an expert evaluate each item individually.
- If a loss occurs, the amount of recovery will be primarily dependent upon the terms of the insurance contract. In a “valued” policy, the amount of recovery will be predetermined and, absent fraud or mistake, is conclusive upon the parties. In
- While this chapter has focused on insuring the physical work of art, there is another insurance issue of importance to those in the art field. In many intellectual property infringement cases, defense is being tendered to the insurance company pursuant to the “advertising injury” clause of a general liability policy. Trademark infringement cases are often specifically identified in the insurance policy, but in some instances courts have ruled that patent and copyright infringements are covered by the advertising injury provisions as well. The insurance company in such a situation is thus required to defend the claim of infringement at its expense.
- Obtaining an insurance policy that accurately reflects the circumstances and meets the needs of the party contracting for insurance is vital. When art is insured, it is especially important that the policy cover all the contingencies that may cause the work to be damaged, destroyed, or lost. Where a collector does not elect to self-insure, care in selecting and periodically updating the insurance policy is a vital aspect of protecting an investment in art.
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Chapter 13. Trademark 52 results (showing 5 best matches)
- The trademark law is an important item in the art lawyer’s arsenal. Knowledge of this form of intellectual property is essential when working with artists, galleries, collectors, and museums.
- In addition to copyright protection, discussed in the preceding chapter, another form of intellectual property important to the arts community is trademark law. On the federal level, the following laws define the trademark law of the United States, codified in the United States Code at
- Other facts and circumstances can also establish that the infringement was willful. In
- , for example, has been held to be a trademark and was afforded protection under Section 43(a) in
- An artist’s style was held to be a protectable trade dress in
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Chapter 12. Copyright 107 results (showing 5 best matches)
- Prior to the effective date of the 1976 Act, protection of a work before its publication was governed by common law copyright. With regard to one-of-a-kind works like a painting or a sculpture, some state courts held that all rights in the work passed automatically to the purchaser unless those rights were explicitly retained by the creator in a written agreement. . The 1976 Act federalized prepublication protection for such works and, in a reversal of the rule, provides that unless there is a written agreement that specifically transfers rights to the purchaser, the creator retains all rights in the work sold. Ownership of the tangible embodiment of the work in the art form is now recognized under federal law as separate and distinct from ownership of the intangible rights in the work.
- If the “sole” intrinsic function of an article is its utility, the fact that it is unique and attractively shaped will not qualify it as a work of art [for copyright purposes]. However, if the shape of a utilitarian object incorporates features . . . which can be identified separately and are capable of independent existence as a work of art, such features will be eligible for [copyright] protection.
- Artists who use a tangible object, such as book pages, postcards, and the like, as part of their art, have argued that they have the right to do so under the “first sale doctrine,”
- Determining when publication had occurred was not easy. Cases involving art that was exhibited for display purposes and not in contemplation of a sale were particularly troublesome. In
- In adopting the language of the new Act, Congress changed “sole intrinsic function” to “an intrinsic function” in order to draw as clear a line as possible between copyrightable works of applied art and uncopyrightable works of industrial design. Thus, under the present law, although the shape of an industrial product may be aesthetically satisfying, copyright protection will be denied unless that shape is physically or conceptually separable from the product. When the copyrightable aspects are
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Index 114 results (showing 5 best matches)
Chapter 9. Tax Problems: Artists 32 results (showing 5 best matches)
- Of course, the best way of managing payment of one’s estate taxes is to owe a smaller amount of tax or no tax at all. This can be done by reducing the size of the estate. One fairly obvious way of doing this is by making gifts of property. However, several provisions of the tax laws make this a less attractive solution for artists. As noted in Section C to this chapter, , artists do not get the tax advantages that collectors do when they donate works of art to charity.
- Unlike the deduction for charitable contributions by collectors and dealers, the law of charitable deductions for artists is not very advantageous. Individuals who donate items they have created may deduct only the cost of materials used to create the items. This provision has had unfortunate effects on libraries and museums which, since the law’s passage in 1969, have experienced enormous decreases in charitable contributions from authors and artists. The Museum of Modern Art, for example, received 52 paintings and sculptures from artists from 1967 to 1969; between 1972 and 1975, only one work was donated.
- A professional artist may deduct his or her business expenses and thereby lower taxable income. The cost of rent or depreciation on a studio is a typical deduction. However, as with collectors and dealers, the artist must be able to establish that he or she is engaged in a trade or business and not merely a personal hobby. A dilettante is not entitled to trade or business deductions except to the extent of any income received. See , discussed in Chapter 8, . While an artist is not presumed to be engaged in an activity for profit until he or she earns a profit for three of five years, artists have been allowed deductions even when they do not meet this test. In , the tax court decided that even though the taxpayer artist had a history of losses, she did not depend on this activity for her livelihood and there was a significant recreational element in her activities, the taxpayer did, nevertheless, paint for profit. Churchman proved this by her training and teaching activities, her...
- There are several unique problems confronted by the artist’s estate planner. One of these is the impact of the estate tax laws that tax the estate at its fair market value on the date of the artist’s death or, at his or her executor’s election under , within six months of his or her death. Since artists’ estates may contain large amounts of appreciated artwork, federal estate and state inheritance taxes can be substantial. Even when an artist sells the majority of his or her marketable works before death, previously worthless artwork in the artist’s possession can suddenly become quite valuable when the artist dies. In anticipation of these problems, some artists have taken drastic measures. It is rumored that Thomas Hart Benton destroyed a million dollars’ worth of his art because his wife could not afford to pay the estate taxes. The late Ted de Grazia also decided to resolve his estate problems by destroying his creations during his lifetime, beginning by burning 100 paintings...
- If an artist incorporates as a C corporation in order to postpone a significant portion of income, the IRS may impose an accumulated earnings tax. However, the IRC allows a maximum accumulation of $250,000 that is not subject to the accumulated earnings tax, although for “personal service corporations” (including those whose principal work is in the performing arts), the maximum is $150,000. Accumulated earnings beyond these maximums must be justified as reasonable for the needs of the business. Otherwise, they will be subject to a tax of 20 percent in addition to the regular corporate tax (currently 35% for personal service corporations, versus the regular corporate graduated rates, ranging from 15% to 35%).
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Title Page 6 results (showing 5 best matches)
Chapter 15. Freedom of Expression 71 results (showing 5 best matches)
- The atmosphere in which an artist creates should, ideally, be free of external constraints, but art, like any other form of communication, can express ideas in ways that are politically and socially controversial. A fundamental conflict thus arises between the government’s legitimate interest in regulating political subversion and obscenity and the guarantee of freedom of speech.
- For instance, the Seattle Art Museum canceled a show called , a traveling exhibit that featured a piece of art by someone who murdered people in each community where the exhibit was to be shown. Similarly, Eric Fischl’s sculpture , designed to memorialize those who fell to their deaths from the World Trade Center towers, was removed from Rockefeller Center after numerous complaints from a public still sensitive to such memories.
- Official attempts to curtail artists’ freedom of expression have occurred since early times. During the Middle Ages and the early Renaissance, the Roman Catholic Church was the dominant influence on European society, and naturally enough, the satirical art of the day attacked the organized Church in general and the clergy in particular. Artists such as Hieronymus Bosch and Hans Holbein lashed out at the preoccupation with sin, at the hypocrisy of the priesthood, and even at the papacy. The Church powers were intolerant of such criticism and attempted, through their own laws, to eliminate this anti-Church sentiment. Art produced for Church purposes was placed under the supervision of theologians, and the artists had to adhere strictly to the instructions of their spiritual advisors.
- approach to the world of art became apparent in . Mr. Radich, a New York gallery owner, was convicted for displaying artworks, one of which employed a United States flag in the form of a phallic symbol, erect and protruding from a cross. The New York Court of Appeals refused to convert what it felt to be a willful act of flag desecration into protected artistic expression and upheld the conviction. An equally divided Supreme Court meant that the lower court’s conviction would stand, but Radich was not finished. On a writ of , the case was heard again, and this time he was successful. The federal district court, in the decision and held that under the circumstances of the context in which the works had been displayed, the display was protected by the First Amendment. Moreover, no imminent unlawful conduct or probability of public disorder had been shown by the state, so regulation on the grounds of a breach of the peace was not warranted. In addition, since the exhibit was on the
- Across the Atlantic, the United States was not immune from social satire expressed in art. The libertarian goals of the founding fathers would
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Chapter 5. Auctions 23 results (showing 5 best matches)
- When several buyers are attracted at the same time and compete with each other for a desired piece, the transaction is an auction, which is the third form of conveyance and the largest single secondary art market. Like private negotiation, auctions also have fairly high transaction costs since it is necessary to attract numerous competitors to the proposed sale. Most auction houses recover their costs by requiring the seller to pay a commission, and some require the buyer to pay a surcharge as well. The system of gathering all interested buyers together to set the price by competitive bidding is especially useful for art transactions since each art object is subject to radical fluctuations in its market price. These fluctuations occur because the value of art stems not
- As the problems discussed above indicate, novices should be cautious when participating in auctions. Although licensing requirements and the practices of reputable auction houses provide some protection, the complexities of auctioning tactics and procedures make auctions potential traps for the unwary. Auctions do, however, provide important information to nonparticipants about prices and demand for art. Thus, a basic understanding of how auctions work and their potential pitfalls is important to anyone involved in the art market.
- Many states require auction houses and auctioneers to be licensed. The licensing requirement is intended not only to protect against fraudulent auctioning techniques, but also to raise revenue and prevent the use of an auction for the disposal of stolen goods. Problems occasionally arise, however, in determining what constitutes an auction for licensing purposes. In
- It is common practice that when an auction house acts as a disinterested third party agent for a seller, the identity of the seller is not disclosed. The New York Court of Appeals held in is sufficient for statute of frauds purposes, and that the seller’s name may be kept anonymous. However, the fact that the seller is not disclosed raises the problem of whether the auctioneer warrants the authenticity and title of the property sold in such cases. In ...trial court held that buyers of a forged painting reasonably relied on the gallery’s representation that the named artist created the work. The trial court suggested that auction houses could protect themselves by conspicuously disclaiming such warranties. The appellate division reversed. The court noted that one of the factors entering into competition among bidders is the variable value of paintings depending upon the degree of certainty with which they can be authenticated and stated that “[The purchasers] will not now be heard...
- The seller may also seek damages from the auction house. In
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Chapter 17. Right of Publicity 50 results (showing 5 best matches)
- Artists and people working in the arts field are as likely as anyone to become entangled in a dispute over the use of another person’s name, likeness, or persona. Artists often communicate through symbolic speech (images or names and the meanings connoted by the images or names), and celebrities have an instrumental purpose of “standing for something.” If symbols are a shortcut from mind to mind, , celebrities and sports figures can be a shorthand expression for bravery, hubris, debauchery, sophistication, or many other aspects of the human condition. A few artists achieve celebrity-status of their own and will seek to protect it, but most artists and those working with them or in partnership with them, will face the law from the perspective of an alleged infringer of personality rights.
- Kanye West, Vincent Desiderio, and other commentators have described the video as a provocative, voyeuristic commentary on celebrity
- continues to be cited and discussed, but it has not been followed in making the ultimate determination of whether a use is fair or not in many years.
- California court evaluated whether the artist adds value to the depiction of a celebrity beyond the value of the celebrity image either through artistic additions or because of the status of the artist (e.g., a famous artist, such as Warhol). The test asks if people would sooner buy the work for the art/artist or for the celebrity image.
- More recently, collegiate athletes have sued video game manufacturers for publicity rights allegedly exploited in digital football simulation games. In a pair of cases,
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Outline 33 results (showing 5 best matches)
Table of Cases 40 results (showing 5 best matches)
- Art Masters Associates, Ltd. v. United Parcel Service, 120
- Balog v. Center Art Gallery-Hawaii, Inc., 54
- Board of Managers of Soho International Arts Condominium v. City of New York, 281
- Brooklyn Institute of Arts and Sciences v. City of New York, 323
- Carol Wilson Fine Arts, Inc. v. Qian, 207
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WEST ACADEMIC PUBLISHING’S LAW SCHOOL ADVISORY BOARD 11 results (showing 5 best matches)
- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
- Robert A. Sullivan Professor of Law Emeritus,
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law, Yale Law School
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Dedication 2 results
- Publication Date: November 7th, 2016
- ISBN: 9781634599252
- Subject: Art Law
- Series: Nutshells
- Type: Overviews
- Description: Art Law in a Nutshell (5th ed.) presents an overview of the legal issues concerning art. It covers the definition of art, and the theft and movement of art in wartime and peacetime. It examines the business of art for artists, museums, and collectors, including art as an investment, auctions, authentication, insurance, tax issues for artists and collectors, working artist issues, and aid to the arts. It also explains the intellectual property issues of copyright, trademark, moral rights and economic rights, right of publicity, and First Amendment freedom of expression rights.