Many would say that the fields of art and law are about as far apart as any jobs or disciplines can be but art of course is a business, worth many billions of pounds a year as well as a passion and pastime. There are a surprising number of areas of law that impact on the art world.
Below is a brief introduction to some of the legal principles and problems that may be relevant to art and artists.
Starting point – is there such a thing as Art law?
In simple terms no, there is no separate classification or category of law for art, in contrast to other types of law such as Consumer law. What I really mean here is that the art market is lightly regulated by Government made law (statutory law), except perhaps when it comes to art fraud or copyright (see more on this below). Consequently, common law principles and Judge made case precedents mainly apply to the art market under English law.
Contracts are vital
In the absence of statutory protection, it is imperative that any organisation or individual operating commercially (or even quasi-commercially such as Museums or public art galleries) in the art market remain aware and vigilant of the need to have the right contracts. Examples of types of contract that may apply include :-
- Gift or loan agreements – such as where a piece of art is loaned or gifted to a Museum or Art Gallery.
- IP licensing – modern art may include music or digital art.
- Agent contracts – such as where an artist appoints an agent or a Gallery to market his or her creations. Both artist and agent ought to be very clear about what is permitted or not permitted in terms of marketing, sale price, agent authority and so on.
- Jurisdiction – the high value end of the art market is very international. In the event of a dispute, which country’s laws should apply?
- Contracts with auctioneers – the agency law principles described above will apply and there will be other vital aspects to cover such as the authenticity or provenance of valuable pieces of art.
- Insurance contracts – for example where a gallery exhibits a priceless artwork, specialist insurance is vital against damage or theft.
- Freight or transport – expensive art items need to be transported with great care – normal courier contract terms and conditions are probably not sufficient and a specialist couriers terms and conditions may be heavily drafted in their favour.
- Partnerships – there are many famous art partnerships. Disputes do arise, as evidenced by this recent well publicised situation. A clear business partnership agreement should be in place in the same way as any other form of business.
- Ebay and the impact of the internet – A lot of art, including expensive art and antiques, are sold on Ebay and other online auction websites. With many of these sites, sellers must comply with the contractual terms of the site. With Ebay, in order to make the system work, more often than not, where a buyer contests the authenticity of an item received, normally the seller must accept the item back and return funds. It is important for sellers to be aware of this and of the possibility that a buyer might adopt this tactic where there really is no justification for it, having concluded that they overpaid or they cannot quickly sell on the item for a profit as expected.
The whole area of provenance of an item can be problematic and art disputes, such as this one, will commonly be heavily reliant on expert evidence which can be unpredictable and expensive.
Other areas of law possibly relevant to art
Negligence – whether or not a relationship exists giving rise to a duty of care, which is the foundation for a claim for negligence, depends on the relationship between the parties. For example, an Auctioneer will almost certainly owe a duty of care to a client to accurately describe an item for sale whereas a private seller may not owe the same duty of care. This is why in many cases auctioneers will be very careful and cautious when describing an item if they are not 100% sure about it. Negligence could also apply if, for example, a classic piece of art is loaned to a gallery and gets damaged.
Intellectual Property – art, especially popular art, is very vulnerable to being counterfeited and this may involve breach of copyright, design rights or image rights amongst other Intellectual Property rights of an artist. There are many examples, such as t-shirts being produced with the famous Andy Warhol prints, reproductions of Banksy art and so on.
Fraud – bearing in mind how lucrative the art market can be, it is no surprise that fraudsters see opportunities. Fraud can manifest in forged art and in other ways.
Legal and/or beneficial ownership – this isn’t always clear or straightforward. In some cases, disputes over ownership even arise between Governments, such as the dispute over the Elgin marbles. Street art is another example, such as Banksy murals.
For advice on any of the issues raised in this post, get in touch with me.
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