Visual Arts and the Law: A Handbook for Professionals

VISUAL ARTS AND THE LAW

A HANDBOOK FOR PROFESSIONALS

HANDBOOKS IN INTERNATIONAL ART BUSINESS

Series Editors: Derrick Chong and Iain Robertson

Advisory Editor: Jos Hackforth-Jones

The art market is now a multi-billion-dollar industry employing hundreds of thousands of professionals worldwide. Working within the art market brings a specific set of challenges, which are distinct from those of the conventional business world. Aimed at art world professionals and those working within the many sectors of art business, as well as those preparing for careers in the commercial art world, the Handbooks in International Art Business provide a series of authoritative reference guides to the structure and working of the international art market, incorporating core topics such as Art Law and Ethics as well as guides to different market sectors.

The Handbooks are written by experts in their field, many of whom teach at, or are graduates of, the MA in Art Business at Sotheby’s Institute of Art at its London and New York campuses. Sotheby’s Institute of Art has pioneered the field of art business as both a professional and an academic discipline. Its MA in Art Business was established in 1999.

VISUAL ARTS AND THE LAW

A HANDBOOK FOR PROFESSIONALS

Judith B. Prowda

Lund Humphries

in association with Sotheby’s Institute of Art

This publication is designed to provide accurate and authoritative information in regard to the subject matter covered in it. It is sold with the understanding that neither the publisher nor the author is engaged in rendering legal, accounting, or other professional opinions. If legal advice or other expert assistance is required, the services of a competent professional should be sought. (From a Declaration of Principles adopted jointly by a Committee of the American Bar Association and a Committee of Publishers and Associations.)

First published in 2013 by Lund Humphries in association with Sotheby’s Institute of Art

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© Judith B. Prowda 2013

British Library Cataloguing in Publication Data. A catalogue record for this book is available from the British Library.

Library of Congress Number: 2013935927

ISBN: 978-1-84822-086-7

ISBN: 978-1-84822-133-8 (ebk-PDF)

ISBN: 978-1-84822-132-1 (ebk-ePub)

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electrical, mechanical or otherwise, without first seeking the permission of the copyright owners and the publishers.

Judith B. Prowda has asserted her right under the Copyright, Design and Patents Act, 1988, to be identified as the Author of this work.

Every effort has been made to contact the image copyright holders. Any errors or omissions to the photographic credits are entirely unintentional and the publisher would be grateful if notified of any corrections that should be incorporated into future editions or reprints of this book.

Designed by Andrew Shoolbred

Set in ITC Charter

Printed in the United Kingdom

To my mother and father

CONTENTS

Acknowledgments

Foreword

Preface

Introduction: What is Art in a Legal Context?

Part One    Artists’ Rights

Chapter 1    Freedom of Expression and Controversial Art

Chapter 2    Limitations on Freedom of Expression: Personality Rights of Privacy and Publicity

Chapter 3    Principles of Copyright

Chapter 4    Copyright Infringement and Defenses

Chapter 5    Moral Rights

Chapter 6    The Artist’s Resale Right

Part Two    Artists’ Relationships

Chapter 7    The Artist–Dealer Relationship

Chapter 8    Artist Commissions

Part Three   Commercial Aspects of Art

Chapter 9    Private Disposition of Art

Chapter 10   Auctions

Chapter 11   Expert Opinions

Chapter 12   Title Problems and Stolen Art

Conclusion

Notes

Bibliography

Glossary of Legal Terms

Index

ACKNOWLEDGMENTS

I am grateful to many colleagues and friends for their help in writing this book. Particular thanks go to readers of earlier drafts of chapters: Amy M. Adler, Judith B. Bass, David J. Bederman, Tom Christopherson, Jonathan Clancy, Simon J. Frankel, Heather Gray, Benjamin West Janke, Kibum Kim, Richard Lehun, Megan Laurel Maxwell, Tom McNulty, Dean R. Nicyper, Van Kirk Reeves, Edward H. Rosenthal, Ronald D. Spencer, Howard N. Spiegler, Barbara Strongin, András Szántó, Amy Whitaker and Judith Vuillez. Their insightful comments greatly improved the text, though the usual disclaimer applies.

I am indebted to a superb team of law students for their outstanding research assistance: Shauna T. Aaron (New York University School of Law), Yelena Ambartsumian (Fordham University School of Law), M. Elisabeth Conroy (Syracuse University College of Law and Sotheby’s Institute of Art Masters in Art Business 2009), Katie Pauline Gerlach (Fordham University School of Law), Jamie L. Kringstein (Fordham University School of Law), Jane M. Pakenham (Fordham University School of Law), Meredith Pryce (Rutgers University School of Law—Newark), Stefan K. E. Rinas (Columbia Law School), Dana Rowland Arnold (SMU Dedman School of Law and Sotheby’s Institute of Art Masters in Art Business 2010), and Anna Wang (New York University School of Law).

Particular thanks go to Jos Hackforth-Jones, Director, Sotheby’s Institute of Art—London, for inviting me to write this book; Lucy Myers, Managing Director and Commissioning Editor at Lund Humphries, who encouraged this project at every stage and helped to shape it; and Iain Robertson and Derrick Chong, Handbook Series Editors, for contributing an important international perspective. I appreciate the fine work of Lucie Ewin, Project Manager at Lund Humphries who saw this book to completion, the copy-editor Caroline Ellerby and the designer Andrew Shoolbred.

For ongoing conversations about art, I thank my art historian colleagues at Sotheby’s Institute of Art: Kathy Battista, Morgan Falconer, Melanie Mariño, Jonathan T. D. Neil, Stephan Pascher, and Elizabeth A. Pergam. I am appreciative of the encouragement and kindness of my extraordinary colleagues at Sotheby’s Institute of Art in New York and London, and for the support of Lesley A. Cadman, Director, Sotheby’s Institute of Art—New York. Very special thanks to Mary Rozell, Director of Art Business and fellow Piscean, for her support and friendship throughout the project. I express appreciation to Erin Elliott, Head Librarian at Sotheby’s Institute of Art—New York and the Library staff, for their valuable assistance. A special mention goes to Kathy Battista, Jonathan Clancy, Andrea Crane, Richard Lehun and Serra Pradhan for their imaginative cover design ideas. I thank Richard Serra and Anne Chauvet for their kind permission to use the striking photograph of Serra’s Tilted Arc (1981) on the cover.

I express gratitude to my students at Sotheby’s Institute of Art, who constantly enrich my thinking about art business and law.

I thank my sisters Joan and Karen for their unending support and encouragement.

I am grateful to professor David J. Bederman (1961–2011), Emory University School of Law, whose unsurpassed intellect, professionalism, dedication and wit continue to inspire. Quam fluctus diversi, quam mare conjuncti (though the waves are many, the sea is one).

FOREWORD

To write a book examining visual arts and the law is a wide and expanding brief, as Judith Prowda intimates in the Preface. Moreover, unpacking the relationship between law and ethics in a market sector noted for its relatively low levels of regulation, in the exchange of thinly traded commodities, adds to the complexity of the task Prowda sets for herself. However, Prowda is ably qualified. She draws on her practice as an attorney, mediator, arbitrator and educator focusing on art law. The book is also informed by Prowda’s academic scholarship which includes articles in law reviews and journals and is set within a historical perspective. Finally, judicious self-editing reflects Prowda’s experience of teaching art and law courses to art market professionals at Sotheby’s Institute of Art and elsewhere. It is laudable that Prowda starts with reference to art and artists.

Prowda’s book helps us frame developing issues that are currently emerging. The evolving dynamics between visual arts and the law pose very interesting commercial and intellectual problems. Technological advances, which present opportunities for artists, dealers, auctioneers and other art market entrepreneurs, can have legal ramifications. For example, immateriality in the creative process, say digital platforms in the production and reception of artworks, requires the development of an intellectual property rights regime through contracts (or certificates of authenticity). A non-technological innovation such as the financial engineering of art as an alternative asset class raises a separate set of legal issues. Advantages of economic globalization of the art market, including the gradual eastward expansion during the last decade, also come with challenges as newer legal jurisdictions need to be considered. International treaties and conventions also help to frame the movement and trade of cultural property. Yet longstanding issues of fine art and law remain. The commercial trade in art includes a need to vet for authenticity, and to root out forgeries and stolen or looted works of art. Relationships between artists and dealers are fundamental to the contemporary art market.

We are pleased that Prowda has produced an insightful and concise text on visual arts and the law of value to lawyers and non-lawyers. Detailed references are provided by Prowda to enable engaged readers to pursue particular topics of interest.

Derrick Chong

Iain Robertson

PREFACE

The 21st century has ushered in fundamental shifts in the modes of production and the nature of commerce in artworks. These changes profoundly challenge many established conventions in the art world, and call for an evolution of legal regimes and jurisprudence. In the marketplace, traditional paradigms of private sales and public auctions are testing new partnership models. As this book was going to press, Sotheby’s and The European Fine Art Fair (TEFAF) announced their plans to collaborate with China’s state-owned Beijing Gehua Cultural Development Group on the first ever joint venture between an art fair and an auction house, and also the first Western-organized fair in mainland China.¹ About the same time, Christie’s became the first international fine art auction company to obtain a license to operate in mainland China.² Both premier auction houses reported strong private treaty sales in 2012.³

Meanwhile, the art market has also gravitated to the online sphere, with developments in auctions and as well as online art fairs. The creation of art has also migrated online, as artworks are digitized, disseminated, copied, and manipulated with ease, expanding the boundaries of copyright to the far reaches of the law. It is the job of lawmakers and courts to keep apace with the rapidly changing dimensions of the art world.

This volume undertakes to give the reader necessary context and insights into the most salient legal issues of the day affecting art. Since the art world is increasingly global, the book examines the law in different regions of the world, focusing primarily on the US, UK, and major commercial art centers in Western Europe, such as France and Germany. I begin with a chapter addressing the age-old question, What is art? The context here is not philosophy and aesthetics, but law. Courts and legislatures inevitably encounter this ineffable question, and while art is difficult enough to define, judges and lawmakers are sometimes forced to consider whether an object is art. If it is art, then it will be subject to different import laws and regulations than other objects. It will enjoy copyright protection and freedom of speech. It may also be appraised, authenticated, forged, stolen, and traded privately or at public auction, often for astronomic sums, as art.

The book then unfolds in three general areas that progress somewhat chronologically in terms of the life cycle of a work of art. Part One addresses Artists’ Rights at the creation of art, beginning with freedom of expression and limitations on that freedom. Copyright, perhaps an artist’s most valuable right, is examined in depth. Finally the section contrasts common law and civil law approaches to moral rights, and the artist’s resale right, which emanate from the different legal and cultural traditions.

After a work of art is created, it may enter the stream of commerce. Part Two delves into Artists’ Relationships, concentrating on the primary market of a work of art. The artist–dealer relationship is based on trust, both in the vernacular and legal sense of the word. Due to the fiduciary nature of the artist–dealer relationship, a dealer is by law an agent of the artist, and is legally required to act solely in the best interests of the artist principal. In a culture where handshake agreements are the norm, it is nevertheless highly advisable to commit the terms of the agreement between an artist and dealer to writing, so as to avoid any misunderstanding later on. Private and public commissions are also covered in this section.

This leads to the next stage in the life cycle of a work of art. Part Three is devoted to the Commercial Aspects of Art as a work of art is sold in the secondary market. The disposition of art through a private dealer requires compliance with a number of provisions of the Uniform Commercial Code (UCC) concerning legal title, security interest, compliance with express and implied warranties, disclaimers, and entrustment. Auctions, perhaps the most regulated industry in the art market, are governed by a combination of auction house rules, practices, and standards of conduct, as well as the UCC and other laws promulgated in certain key jurisdictions such as New York.

A chapter is devoted to expert opinions, which occupy a central role in the art market. Understandably, appraisers and authenticators exercise caution when rendering an opinion for fear of liability on a number of legal theories. The chapter also discusses precautions experts can take to manage their risk. The section ends with problems concerning title and stolen art. As illicit sales of art cross borders, disputes over ownership may (and often do) hinge on laws that differ—sometimes markedly—from one jurisdiction to another.

Fortunately, for life, art does not end. But the book concludes here. A single volume requires that much material be omitted. I have included a selection of topics that partially define the field of art law, and even these are covered through the lens of a US-trained lawyer. While immersing myself in these topics from the perspectives of other countries, I hope that I have provided a tour d’horizon of the complex questions raised in the field of art law.

INTRODUCTION: WHAT IS ART IN A LEGAL CONTEXT?

In 1943, Picasso created the sculpture Bull’s Head out of a bicycle seat and handlebars. These mundane objects, which could not be claimed as art by the manufacturer, were transformed into art because of Picasso’s leap of imagination in recognizing a bull’s head in the juxtaposition of everyday objects.¹

In the legal context, too, whether or not an object is defined as a work of art can have far-reaching consequences. Do special rules apply if the subject of controversy is a work of art or cultural object? What is the legal framework for courts to resolve interpretations of art?

Perhaps the most oft-quoted statement addressing this issue was penned in 1903 by Justice Oliver Wendell Holmes, Jr., when he simultaneously admonished and spoke of the copyrightability of a circus poster:

It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge. Yet if they command the interest of any public, they have a commercial value,—it would be bold to say that they have not an aesthetic and educational value,—and the taste of any public is not to be treated with contempt.²

Only a generation earlier, the Supreme Court, in Burrow-Giles Lithographic Company v. Sarony, ruled on whether a photograph of Oscar Wilde contained enough creativity and intellectual invention to constitute copyrightable subject matter. In Burrow-Giles, the court found creative elements in the photographer’s own original mental conception … posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories … arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, [and] suggesting and evoking the desired expression … .³ The same Supreme Court had denied copyright to protect symbols or devices used to identify goods in commerce—covered under trademark—because they were not founded in the creative powers of the mind as compared to original designs for engravings, prints, etc.⁴

In some cases, a judge will find it irresistible to expound on art and art historical references. For example, in Leibovitz v. Paramount Pictures Corporation,⁵ a copyright infringement case, Judge Jon O. Newman provided a lengthy footnote on the iconography of the Venus Pudica pose from antiquity through the 15th century, when he compared Annie Leibovitz’s photograph of a pregnant Demi Moore, published on the August 1991 cover of Vanity Fair, to Botticelli’s Birth of Venus (1486). This was a momentary scholarly diversion from Judge Newman’s otherwise pointed opinion on the parodic value of an image of Leslie Nielsen’s head superimposed on a pregnant woman’s naked body to advertise the film Naked Gun 33 1/3: The Final Insult (1994). (Philosophers on high and low art, take note.)

LEGAL SOURCES OF THE DEFINITION OF ART

The question, What is art? as it pertains to law, generally falls into two categories: statutory law and common (judge-made) law.⁶ Courts often decide cases that necessarily involve aesthetic judgment (although not necessarily whether the art is good, which, fortunately, is outside the domain of the law). Are there objective rules by which to judge art, or is the inquiry a subjective one, with legislators and courts making a determination on what qualifies as art?

Statutory Law

The law defines art by enumerating categories of art. For example, in the US (unlike in Europe), the moral rights doctrine, covered under the Visual Artists Rights Act (VARA),⁷ applies only to a work of visual art. A work of visual art is defined in the US Copyright statute as a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author… .⁸ Also included in the definition of a work of visual art is a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.⁹ Art is defined more broadly in the UK and in civil law countries (see Chapter 5 on Moral Rights).

The question What is art? also comes up in areas such as customs and tax. Works of art are subject to lower taxes than other objects, and in some countries art is exempt from customs duties by statute.¹⁰ If the object is a work of art, it can enter the US duty-free. In a famous 1928 case, Brancusi v. United States,¹¹ the court had to decide whether modernist master Constantin Brancusi’s (1876–1957) Bird in Flight (1923), a four-and-a-half-feet (1.4 meters) tall polished bronze non-representational sculpture, was a work of art. The piece had been shipped from France to New York for exhibition at New York’s Brummer Gallery, escorted by Brancusi’s friend and fellow avant-garde artist Marcel Duchamp (1887–1968). Since until that time art was largely representational, customs officials, unfamiliar with abstract art, released Bird in Flight and other sculptures on bond under the classification of Kitchen Utensils and Hospital Supplies. If classified as a work of art, Bird in Flight would be duty-free, but if considered a manufacture of metal, it would be taxed at 40 per cent of the declared value. Since the sculpture’s value was determined by the declaration of the importer, who valued Bird in Flight as a work of art at $600, the duty would have been $240. The question before the court, which may seem simple, and even quaint, today, was not obvious in 1928. Only 12 years earlier, a court decision had narrowly defined sculpture as imitations of natural objects … in their true proportions.¹²

In Brancusi, the court recognized that the representational test for art was inappropriate, and sided with Brancusi, stating: There has been developing a so-called new school of art whose exponents attempt to portray abstract ideas rather than to imitate natural objects. Whether or not we are in sympathy with these newer ideas and the schools which represent them, we think the fact of their existence and their influence upon the art world as recognized by the courts must be considered.¹³ The decision was considered a major victory for the avant-garde.

Clearly, the court was swayed by the testimony of leading art professionals. Brancusi’s witnesses included Edward Steichen, a noted American photographer. At trial, the court emphasized the work’s title, Bird in Flight, and questioned Steichen ironically: If you saw it in the forest you would not take a shot at it?¹⁴ Aesthetic debate—rare in art trials—was at the center of Brancusi, and the opinions of experts were crucial.

However, it took many years for US customs law to relax limitations on legal categories of art if the works were not executed in one of the media specifically enumerated in the statutes. In 1931, the court found that wool embroidered linen bands that were reproductions of the Queen Mathilda Tapestries on display at the Art Library in Bayeux, France, were properly assessed as manufactures of wool.¹⁵ Under the restrictions of the Tariff Act of 1922, not even the original tapestries would have been considered works of art,¹⁶ effectively determining artistic merit on the merit of fabrication. Similarly, vases by French sculptor Henri Navarre were treated as decorative or ornamental glassware, and therefore dutiable.¹⁷ In 1971, six carved-oak door panels destined for a church were subject to duty because, as parts of doors, they served a utilitarian purpose.¹⁸ It was only in 1989 that US customs law allowed duty-free entry to works that were both artistic and functional under the Harmonized Tariff Schedule.¹⁹

A scenario similar to Brancusi arose precisely 80 years later, in 2008, when the London VAT and Duties Tribunal had to decide whether Bill Viola’s six disassembled video installations and Dan Flavin’s light sculpture, which were being imported by the blue-chip gallery Haunch of Venison, could be categorized as sculptures for import purposes under European Union (EU) customs law.²⁰ If so, they would be subject to import VAT at the rate of only 5 per cent and exempt from customs duty.²¹ Otherwise, they were subject to import VAT at the standard rate (15 per cent) as well as customs duty.²²

At trial, Her Majesty’s Commissioners of Revenue and Customs (HMRC) sought to persuade the court that the works were not art when disassembled into their various electrical components and crated for shipping. Hence, the Viola piece should be categorized as electrical devices (which covers image projectors) and the Flavin work as lamps and light fittings.²³ In particular, the HMRC reasoned that the Viola piece lacked the three-dimensional qualities necessary to be regarded as sculpture because it was limited to the digital video data or the flat image projected onto the video screen.²⁴

For its part, Haunch of Venison argued that the installations should be treated as sculpture upon importation, based on EU customs law and prior favorable rulings, including the classification by the European Court of Justice of a Claes Oldenburg work imported into Germany as a work of sculpture.²⁵ US tax authorities had also confirmed that they would treat the works of Viola and Flavin as sculpture upon importation into the US in light of Brancusi.²⁶

The tribunal observed that the scope of sculpture had expanded considerably during the 20th and 21st centuries, and now encompassed novel art forms such as video installations. Accordingly, it held that the Flavin and Viola works qualified as sculpture at the time of importation, rejecting HMRC’s assertion as absurd that the works somehow lost their status as works of art when unassembled or disassembled and packed into crates at the time of importation.²⁷

Then, on August 10, 2010, the European Commission (EC) overturned the UK VAT tribunal decision, classifying the Flavin piece as light fixtures and the Viola piece as DVD players and projectors when disassembled, having been modified by [the] artist with a view to appear as a work of ‘modern art.’²⁸ It is uncertain as of now what the impact of the EC decision will be. Is the decision limited to the works in question? Would VAT be assessed on the value of underlying components or the value of the artwork (as in this case)? The art world was swift in its near-universal condemnation of the ruling.²⁹

Other arts-related statutes apply only to works of fine art, works that do not have a utilitarian function and are distinguished from applied arts—a distinction that comes to the US from the Enlightenment era. For example, many European countries, including the UK, have enacted resale royalty laws³⁰—see Chapter 6 on The Artist’s Resale Right. In 2006, the UK implemented the Artist’s Resale Right Regulations as a consequence of the European Directive 2001/84/EC.³¹ Until 2012, California, which was the only state in the US with a resale royalty statute, directed a percentage of profits of subsequent sales of fine art back to the artist.³² In May 2012, a California District Court struck down the California Resale Royalty statute, holding that it violated the Commerce Clause of the US Constitution, which states that The Congress shall have Power … To regulate Commerce … among the several States … .³³ At the time of writing the case is on appeal in the Ninth Circuit.

Common Law

Courts determine the legal status of art, which ultimately requires judges to make aesthetic decisions about the works. One example is a copyright case, Mazer v. Stein,³⁴ in which the US Supreme Court addressed the issue of whether statuettes used as bases for lamps were eligible for copyright protection. The statuettes were male and female dancers, made from semi-vitreous china and intended to be manufactured and sold in quantity. Could mass-produced works for average consumers be considered art? Would these works be protected under copyright if they were utilitarian? The Court found neither mass production nor utilitarian function an impediment to their characterization as art, noting that [i]ndividual perception of beauty is too varied a power to permit a narrow or rigid concept of art.³⁵ The Court also rejected the argument that a work must be a cultural treasure in order to be eligible for copyright protection.³⁶

Since Mazer, courts have varied in their interpretation of the statutory term useful article. Some courts have given useful article a broad reading, holding that functional objects such as belt buckles are conceptually separable from their subsidiary utilitarian function.³⁷ Other courts have required that copyrightable elements in the useful article be physically separable from it.³⁸ In other words, the elements must be able to be physically separated from the article without impairing the article’s utility and have the ability to stand alone as an artwork.³⁹

This narrow reading was applied in the case of lighting design, in which the District of Columbia Circuit held that the overall shape of certain outdoor lighting fixtures was not copyrightable as a work of art.⁴⁰ One can only imagine how today’s courts would consider the work of artists such as Dan Flavin, whose highly prized fluorescent sculptures — similar to the one treated as light fixtures by the EC in 2010 — are found in museums and private collections around the world. How would a court analyze the work of Bruce Nauman, whose neon light sculptures are more figurative and word-based?

In Brandir International, Inc. v. Cascade Pacific Lumber Co., the Second Circuit found that RIBBON Rack, a minimalist bicycle rack made of bent tubing and based on an undulating wire sculpture, was not physically separable into its two distinct properties—utilitarian bicycle rack and sculpture.⁴¹ Was the RIBBON Rack intended as art, perceived as art, and therefore copyrightable? Or did its visually pleasing proportions and symmetricality,⁴² made in response to merely utilitarian concerns, merge aesthetic and functional considerations? While the court found the bicycle rack worthy of admiration for its aesthetic qualities alone, it nonetheless held that it was a product of industrial design, and therefore not copyrightable.⁴³ If, however, the work had been created as a sculpture first and then later adopted as a bicycle rack, neither the application to a utilitarian end nor commercialization of that use would have caused the object to forfeit its copyrighted status.⁴⁴

It is interesting to ponder how the Brandir court would have decided the copyrightability of Duchamp’s ready-mades. At what point does a urinal become a work of art and therefore become eligible for copyright protection? When the artist affixes his signature? When a museum exhibits the object? When a critic or expert has written about it qua art? Such questions belong in a philosophy or sociology seminar, but the law must provide categorical answers to them—answers that may shift or transform the value of the object manifold.

***

As these cases and many others in this book illustrate, the question, What is art? remains as fundamental as it is mystifying to lawmakers and judges, as well as to art experts and artists.

PART ONE

ARTISTS’ RIGHTS

Chapter 1

FREEDOM OF EXPRESSION AND CONTROVERSIAL ART

People have intense emotional responses to images.¹ They are sexually aroused by pictures and sculptures; they break pictures and sculptures; they mutilate them, kiss them, cry before them, and go on journeys to them; they are claimed by them, stirred by them, and incited to revolt.²

Perhaps the greatest act of cultural vandalism so far this century—and the most visually memorable—was the carefully staged destruction by the Taliban of the great rock sculptures of the ancient Buddhas of Bamiyan in March 2001.³ During peacetime as well, artworks have been subject to destruction, banned and censored because of their social, political, or religious viewpoints, or sexually explicit content. Like other forms of speech, art can express controversial ideas in ways that some may find objectionable. Thus, there can be an innate conflict between freedom of expression and a given society’s restrictions that may incite violence, hate speech, and obscenity.

For many, there is great social value in artists having freedom to express their thoughts without restriction. It is an aspect of liberty and is often necessary for an artist’s search for truth. As Professor John Henry Merryman states, [a]rt is often the vehicle for expression of the artist’s thought, and if we believe that the truth emerges from the free play of ideas we must express artistic expression.⁴ How then does the law deal with governmental regulation of artistic freedom of expression?⁵

LIMITATIONS ON FREEDOM OF EXPRESSION FOR ARTWORK

Early Obscenity Law

Obscenity is a category of expression that is not legally protected in the US or the UK. It is therefore incumbent on artists and anyone working with artists to understand the risks involved in creating, selling, or exhibiting art containing provocative or controversial material that the public may find objectionable. As the term obscenity has evolved over the centuries and cannot be finally determined, it can be very difficult to know what is or will be prohibited.

In 17th-century England, the law was mainly concerned with suppressing political and religious views, and occasionally with prosecuting public obscenity that constituted a breach of the peace. In comparison, laws prohibiting obscenity in the US were not enacted until the 19th century.⁶ The experience in the US was nonetheless greatly influenced by Victorian era legal standards in England.⁷

Perhaps the earliest case to define obscenity was the English Victorian era case Regina v. Hicklin, which involved a pamphlet entitled The Confessional Unmasked; shewing the depravity of the Romish priesthood, the iniquity of the Confessional, and the questions put to females in confession.⁸ The pamphlet dealt mainly with the author’s perceived views of the dangers of the confessional, illustrated by the types of questions that Roman Catholic priests allegedly asked young women.⁹ The English court stated that the test for obscenity was whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.¹⁰ In other words, if the work falls into the hands of particularly susceptible persons and has a tendency to corrupt those minds toward impure and libidinous thought, then it is to be suppressed as obscene.¹¹ Certain exceptions were made for classical literature,¹² but several were declared obscene under this standard, including Theodore Dreiser’s An American Tragedy (1925) and D.H. Lawrence’s Lady Chatterley’s Lover (1928).¹³

The importance of Hicklin, which remains the test for publications in the UK and was subsequently adopted by US courts at the turn of the century, was twofold. First, the intent of the pamphlet was held to be irrelevant, which implied that a work was not considered as a whole, but page by page. Second, since the pamphlet was considered obscene per se, the burden was on the defendant to prove his innocence, not for the prosecution to prove his guilt.¹⁴

Modern-Day Obscenity Law in the UK

The law in the UK today is governed by the Obscene Publications Act, enacted in 1959.¹⁵ Under the Act obscenity is defined as content whose effect, if taken as a whole, will tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.¹⁶ There is a defense in support of the public good if the defendant can produce expert evidence to prove that publication was in the interest of, for example, science, literature, art or learning, or of other objects of general concern.¹⁷

One of the most celebrated obscenity cases in the UK was brought in 1960 against Penguin Books for the posthumous publication of Lawrence’s infamous Lady Chatterley’s Lover.¹⁸ Penguin Books defended the novel’s literary merit under Section 4’s public good defence, relying on the expert testimony of luminaries such as E.M. Forster during a six-day trial at the Old Bailey.¹⁹ The case became a flash point for the ongoing duel between the conservative establishment and the increasingly liberal publishing industry. The ruling granted more freedom to publish explicit material²⁰ and was seen as heralding a new wave of sexual ‘morality’ for which the 1960s is now famous.²¹ This case paralleled a case in the US, with the same result, although the process was different. The American case was based, for constitutional reasons, on freedom, not morality.²²

In the 1970s, there were two seminal obscenity cases, both of which resulted in no finding of obscenity. One case concerned the Schoolkids OZ issue 28 of May 1970, and in the first instance resulted in the convictions of three editors in 1971 for conspiracy to corrupt and debauch the morals of the young of the Realm. This case concerned the publication of a cartoon montage of a highly sexualized Rupert Bear. On appeal, the convictions were overturned and sentences quashed.²³ In the second case, a jury returned a verdict of not guilty for the publishers of Inside Linda Lovelace (1974), on the ground that the novel would not corrupt or deprave those who were likely to buy the book.²⁴ Purely textual material has not been prosecuted in the UK since then, except for a case that was dropped in 2009 where an author of a violent rape fantasy was charged for posting obscenity on the Internet.²⁵

Evolution of Obscenity Law in the US

Freedom of speech is among the most fundamental and cherished rights protected by the US Constitution. While the language in the First Amendment is expansive (Congress shall make no law … abridging the freedom of speech),²⁶ it does not protect all forms of expression. The framers of the Constitution intentionally left the boundaries between protected and unprotected speech up to the courts to interpret as society evolved. To this day, the US Supreme Court has not given a clear definition of obscenity, although it has attempted on many occasions to analyze the problem. As a result, this area of First Amendment law is probably the most difficult to navigate.

There are many different forms of speech and expressive conduct that are protected under the First Amendment, but the law varies as to the level of protection for each. Verbal speech and written speech are generally the most protected. The law has recognized that speech may be non-verbal as well, beginning with the 1931 Supreme Court decision Stromberg v. California, which struck down a California statute banning the display of a red flag as a symbol of protest.²⁷ The Court found that the statute, which prohibited the display of the flag as a sign of opposition to organized government, was unconstitutional because it could be construed to prohibit peaceful and orderly opposition to government by