Art Law Outline

ART LAW
PROFESSOR LAZEROW
FALL 2012
 
 
Art Law-Intro
·         Should there be special rules for art?
Tariff Act of 1922- Duty upon entry for art
·         Brancusi v. US [1928]- Judge Waite
o   Issue: should this ‘bird in flight’ sculpture by Brancusi be allowed into the US tax-free?
§  Yes.
o   Reasoning:
§  Looks at Paragraph 1704 of the tariff act of 1922
·         The terms “sculpture” and “statuary” as used in this paragraph shall be understood to include professional productions of sculptors only”
§  What is a professional production?
·         Waite takes a shortcut
o   describes Brancusi as a professional sculptor à everything he does is a professional production à the sculpture qualifies under Par. 1704 to come into US tax-free
·         if he decides Brancusi isn’t a professional sculptor, then he has to decide whether this piece meets the criteria of a professional production, whatever that might be
o   Discussion
§  What is a sculpture? [Judge Waite’s criteria] ·         Highly ornamental [observe it] –NOT USEFUL
·         Pleasing to look at
·         Not mass produced
§  There is an existing Olivotti rule that describes a sculpture as “imitations of natural objects, chiefly the human form, and true proportions of length…”
·         However, Judge Wait said that was an old rule, and does not apply now because of a new emerging school of art
§  What is wrong with the proposition that the law can deal with art that is ‘changing’? [referencing Waite’s opinion that courts should consider emerging new school of art] ·         Someone makes those rules!
§  Par. 1704
·         “professional production of sculptors only”
o   what is a professional? Is it the quality that is produced of professional quality?
o   Tries to earn living by creating sculptors?
·         “unbound”    
o   non mass production kind of art
o   if its an object of utility, then you would have industry producing it
 
 
Copyright of Art
·         Mazer v. Stein
·         Issue: whether statuettes can be copyrighted even if the statuettes are intended to be used as lamp bases?
o   Yes.
·         Reasoning:
o   There is no reason why you cant copyright them. Copyright is protecting original works of art
§  However, just because you have a copyright of a woman in a certain pose doesn’t mean you someone else cant have some other woman in the same pose
o   Judge makes clear that he is making a judgment on legal grounds [not how pretty the object is] §  Asks 2 questions:
·         1. Does this qualify for copyright?
·         2. What parts of it is protected by copyright [never gets answered bc the issue was only if it was copyrightable] o   Concurring opinion by Justice Douglas
§  Article 1, Section 8 of the Constitution grants congress the power “to promote the progress of science and useful arts, by securing for limited times to authors…the exclusive right to their respective writings…”
§  Justice Douglas asks if a sculptor an ‘author’ and is his statue a ‘writing’ within the meaning of the Constitution? He says that the Court has never answered that question and should do so to decide whether sculptors and their sculptures are allowed to hold a copyright.
·         Discussion
o   Does the statuette come into the US tax free? NO!
§  Par. 1704: you can bring in original + 2 replicas
§  Govt. would have to argue that it was handmade in order to get the tax
§  Most of the sculptures made are cast by professionals… which makes them more professional than we think in the traditional sense
o   Cellini’s Saliera
§  What should new directors do to avoid embarrassment?
·         Insurance?
o   The company will be on the art museum to implement security measures according to what the company thinks is good
o   Art museum would have to think what type of insurance to buy [flood, theft, earthquake, fire?] o   Artists and people will think twice of putting art in the museum and when there isn’t art in the museum worthwhile, there aren’t going to be patrons or donors
·         In this case, the guard was incompetent, and turned off the security camera when he heard the alarm
o   Maybe train better personnel? This costs money too!
o   Coat + Hat tree [question based off of Janson’s History of Art reading] §  This would be a craft because it is useful
§  This will not be duty free because this is an object of utility. Objects of utility are excluded in Par. 1704
§  Under Mazer, does the artist of this coat and hat tree have a copyright?
·         The artist can get the copyright of the design of the coat and hat tree if its sufficiently original. In addition, in Mazer, was that just because you have that copyright on your design of the thing you made, doesn’t mean you can prevent others from making/using a coat/hat tree rack. Copyright does not apply to the functional aspects of an object.
o   Christo’s work
§  This would be possibly be considered fine art because its not really utilitarian, or applied, just that they are structures you can walk though and are super bright colored. It is a spectacle. It isn’t useful
§  Duty free?
·         Well this depends on how you ship the items into the country.
o   If it is all a single item and is described as an art piece to be placed in central park, then yes, duty free
o   If the panels are shipped separately [7500 vinyl] this could be considered individual sculptures. Only the original sculpture and 2 copies will