Two things above all should apply whenever legal ideas are applied to and in fields other than pure law – first, the extent to which the legal ideas are transparently and demonstrably applied to (and selected for) the other field (in this case art), and second, the extent to which relevant and current examples (with apt legal analysis) are included. In focusing on art law, Michael Jones (a law professor at the University of Massachusetts Lowell) offers a good introduction to the subject in a work aimed at art educators, students, gallery owners, curators, museum trustees and professional staff and professional artists themselves. The emphasis is mainly on practice in the USA, although comparisons are made (in areas like moral rights and free expression) with European practice. Jones has applied legal ideas to sport in another work from the same publisher (Jones, 2016), and Rowman and Littlefield have published numerous works on art gallery and museum work.
Jones is an artist as well as an academic, and so, helpfully, starts with legal and cultural issues likely to impact on the professional artist – business or hobby, premises, income, health and safety and what to donate and leave in a will. The art world is where artists and merchants deal with each other – where commissions take place, exhibitions are organized, popular fashion shapes what is displayed and sold (e.g. the pop art of Lichtenstein or Warhol) and where versions, authorized or not, can occur readily in a digital environment. For these reasons, people involved in the art world need to know something of the law. The gallery or dealer or museum, in addition to the ways in which it is managed, needs to consider their fiduciary role (responsibility for collections of value, handling conflicts of interests say between commercial and cultural roles, serving the community and providing education). As well as that, when non-profit, there will be a civic role and pressure to be neutral when controversial issues arise. Trustees in particular need to take care.
Drilling down into the subject takes Jones into “good title” and “authentication” – having a work does not necessarily mean owning it. Provenance needs checking and curators can be deceived (hence research on stroke patterns, signatures, the pigments used by Pollock or Rembrandt). Jones cites and examines well-known forgery scams such as Myatt, fake Caravaggio paintings involving auction house Sotheby, failure to appraise allegations in the Cassatt Case and implications for gallery/museum and artist of defamation. Nazi-era art and Holocaust cases have attracted special interest, and Jones discusses Price and Menzel, Solomon and Guggenheim, referring to times when works were returned and withheld (some involved too long a delay, others like Wally and Altmann show a trend to return to identified owners). Wider issues like the Elgin Marbles and cultural artefacts harmed in war, and the Native American graves are mentioned too.
With buying and selling and consigning, we move into the area of legal contract, where performance and warranty, breaches and remedies apply. Artists may consign work to a gallery which itself may experience trouble (as in the Salander bankruptcy). From contract to copyright or intellectual property, where Jones discusses appropriate federal law (on originality, tangibility, creativity), creator rights and assignment, and derivative and adapted works. The Bridgeman case (photographs of art works) is relevant. Of interest too are examples of fair use and parody, and where the criterion of transformative use and originality legitimately apply – the “puppies” Koons case, the Vanity Fair cover are both good examples. Artists have moral rights, too, although they vary around the world: these deal with attribution and integrity, and apply say if an artist believes his/her work has been defaced or reputation harmed. Particular difficulties arise with graffiti such as that of Banksy, and with forms of installation art (including one involving ever-changing flower beds).
Free expression and privacy are areas – in art as elsewhere – where a tension may be found between what to say/show and what its effect may be. Hate speech and Muhammad cartoons and Charlie Hebdo have made satire and censorship urgent issues for our time. Mapplethorpe reminded the art world of the controversies associated with photographic images and their display in public. Postmodern art forms often draw on a bricolage of ideas and artefacts from contemporary culture, and present copyright, trademark and designs challenges. These areas are less well covered that earlier ones. The work concludes with useful (to US readers) coverage of grants and foundations, returning to the fiduciary issues raised at the start that involve art and museum professionals and trustees. A useful work, then, with application above all in the USA. There are hardback and e-book versions in addition to the paperback here reviewed. For readers in the UK, Visual Arts and the Law (Prowda, 2013) and Artists’ Rights: A Guide to Copyright, Moral Rights, and other Legal Issues in the Visual Arts (Stech, 2015) are relevant.
