Art as a Market
Largest unregulated market in the world and one of top illicit trades
Not heavily regulated overall
Not a lot of collectivization- buying a bunch of art and having it owned by shareholders- very rare
Transnational- happening across country lines but can involve individuals
International- issues between sovereigns- not very common in art law
Cultural Property- protected by culture that created it
Cultural Heritage- protected by another because they don’t believe the culture that created it can properly protect it and display it for the most people to enjoy
Ie. Art Institute example and argument for protecting Egyptian items due to their political upheaval
Museums are only able to display a small amount of the art that they have at any 1 time
Should they sell off the rest or hold onto it? They usually operate on a non-profit basis
Definition of Art
Expression
Experience
Who are artists?
In the 1400s, they started distinguishing between artists and artisans- Michaelangelo v. average stonecutter
Did you get training? If so, where?
Is self-identification enough?
What art buyers and art community declare as art
Very objective but is it still to self-serving?
Is this legally binding?
Banksy video
Silberman v. Innovation Luggage
US v. Perry
Tiffany v. US
Burrows-Giles
US v. Olivotti
Brancusi v. US
Consmiller v. US
US v. Oberlaender
Mayers, Osterwald and Muhlfeld v. Bendler
Reproductions and Replicas
Work of artist or assistant?
Rodin bronze mold and statue example
Rembrandt overseeing studio of artists
How many can qualify as art?
How much artistic originality must be present?
Gregory v. US
Customs Reform 1958
Artworks in other media took away most restrictions on art and allowed
(SEE SLIDE FOR MORE)
Continuing Problems with…
Tapestries
Can have functional purpose, made from cloth- difficult to prove purely ornamental
Made by seamstresses, not artists
Mosaics
Arrives in pieces
Put in place by artisan, not artist
Often a copy of other works of art- not original
Screens and Wall Hangings
Often made out of paper
Can have a functional purpose
Not built by an artist
Does it have paint on it? Who painted it?
Might change categories- furniture, paper screens and blinds or painting
Beer Steins
Does it hold beer? Some might not be functional
Size and overall design indicate if functional or ornamental
Could come from factory or be hand-made
Harmonized System 1988
Match international standards
Import and export documents should match
Fine art is duty free with limits on originality
Up to 12 castings for sculpture
Other types of art get low duty rates too
Letter Rulings
Might work but strictly held as non-binding on customs service
Get answer on hypothetical situation before the shipment
They have the ability to change policy over time
Elder v. US (contrasts with US v. Colombo)
US v. Colombo (contrasts with Elder v. US)
2-Dimensional Works
Copies can’t come from mechanical processes
Rules out stenciling, masking, engraving and most printing
Can fall under other categories- ie. paper products
Category Confusion
Chair made of coins (pg. 24) and other chairs
Argue that primary value isn’t in sitting on it
Who designed and made it?
Are they unique?
Are they highly valuable?
Silk constructions
Don’t call clothing, garment or dress
How is it displayed?
Can it be worn?
Copyrights
How do you get one?
Just write, paint, do something
Why no other requirements?
Doesn’t have to be registered or published and show to the world
Don’t
by the author meets the standard
Limits to Copyright Subject Matter
Pornography and obscenity is fine
False and fraudulent material is ok
Derivative works
Reinterpretation, translations
Are they separately copyrightable? Yes but only the new or altered material
Satava v. Lowry
Scenes a faire
American concept
No way to avoid using similar concepts to get point across- scenes that must be done
Merger Doctrine
Is the artist’s outcome dictated by the way you did the material?
An idea is inseparable from its expression
Thin copyright
Method of depiction- stuffed animals, real animals
Mattel v. Goldberger Doll
Chihuly
Public Domain Works
Alfred Bell v. Catalda Fine Arts
Bridgeman Art Library v. Corel
Fixed and Tangible Medium
Speeches, lectures or choreography not written down or recorded is not copyrightable- unique and creative but not fixed
Actual performance of a play or other live event or reenactment is not copyrightable unless filmed, recorded or fixed
Improv is not copyrightable unless recorded
Esquire v. Ringer
Utilitarian Rule- Policies
Preserve competition and progress in production of useful articles
Art is supposed to be ornamental
Useful, Functional Works
Can you copyright a dress?
Not exactly- it has a useful function
Can you copyright a dress pattern
Yes
Can you protect the style, cut and any distinctive features that tell the buyer it is the maker’s dress?
Trademark, but not copyright