All about Art Law
Art or visual art is the product of one’s artistic abilities which has been used over the course of history for the purpose of either expressing oneself or delivering to society a piece of work for aesthetic pleasure. Art, once a form of expression and leisure is now a lucrative business from the standpoint of creative individuals.
Expression of art ranges from mediums like painting, architectural designing, sculpturing, filming and photography to murals, modern art, graffiti etc. In the recent times, production of art has not been restricted to manual efforts but Artificial Intelligence has also contributed to the same. In 2018, a portrait made by an AI program was sold for $432,000 in New York. “The painting, called Portrait of Edmond Belamy, was created by a Paris-based art collective called Obvious. The artwork was produced using an algorithm and a data set of 15,000 portraits painted between the 14th and 20th Centuries.”
Art Law is an emerging branch of law which overlaps with Intellectual Property laws, where Copyright laws protect the original works of artists. Additionally, it also touches upon contracts, constitutional laws, torts, commercial law, international law etc. Art law also extends to deal with the issues of civil and criminal liability like theft, counterfeiting art, damage to property etc. Some artistic works are also considered to be antiques and the sale and purchase of the same is also considered to be governed broadly under the art laws. This branch neither includes a separate jurisprudence nor a follows any specific legal doctrine. The multidisciplinary approach is followed in art law as it overlaps other laws in order to govern aspects like producing the art, marketing the art, regulating the open market (sale and purchase) and use of the art.
Beside their artistic and historic value, art works are also goods: material objects that can be valued in money. This dual character of artworks combining their economic value with a higher or aesthetic value is what makes artworks particularly interesting to study from a legal perspective. It is more challenging and interesting to discuss the possible claims and limitation periods concerning a fabulous painting stolen or looted more than 50 years ago than the restitution of a bike, which has been stolen perhaps only 10 years ago.
Another challenge for the law is the fact that the art trade (legal and illicit) is a truly international market. Since artworks are relatively easy to take across borders, stolen or looted art objects can show up all over the globe. To add to the difficulties, laws affecting the art trade differ from country to country. This is especially true for export regulations, the rules on the bona fide purchase and limitation periods. The position of the bona fide purchaser is a delicate issue. Who should be protected and for how long? Must a bona fide purchaser return a stolen painting to the original owner? Which law applies if more than one jurisdiction is involved? Which international obligations exit? What happens to former colonial cultural goods? Do they have to be returned to the country of origin or can they still be admired in the museums of the former colonial powers? Are there just and fair solutions for these types of disputes?
These examples show that this course deals with many different areas of law: International and European law, Human Rights, Private and Private International Law, Public as well as Criminal Law. However, you can easily widen the legal fields having a relation to the art market, such as for example Intellectual Property Law or Tax Law, which will not be addressed during the lectures and tutorials.
The laws which have governed all facets of antiquities and art treasures in India for close to fifty years are the Antiquities and Art Treasures Act of 1972 (the “1972 Act”) and the Antiquities and Art Treasures Rules of 1973 (the “Rules”). The 1972 Act and the Rules are rooted in the Indian Treasure Trove Act of 1878 and the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transport of Ownership of Cultural Property of 1970.
The 1972 Act falls within the purview of the Archaeological Survey of India (“ASI”), the Indian government agency attached to the Ministry of Culture responsible for archaeological research and the conservation and preservation of cultural monuments, and aims at effective regulation of trade and export of antiquities in India. Its objective is to provide a structured and robust mechanism for the preservation of antiquities in public places. However, since 1976, there have been no reforms or amendments to the Act despite numerous attempts and various contemporary issues that have arisen globally in the world of art.
It also enlists the requirements for the movement of antiquities. In the historical backdrop, the act was firstly formulated to prevent the smuggling and fraudulent dealings in Indian antiquities. Later, it also extended to the compulsory acquisition and preservation of objects perceived as important to the nation situated in public places.
The Delhi High Court in Amar Nath Sehgal v. Union of India, (2005) marked a beginning to ensure the moral rights of artist’s vis-à-vis the Copyright Act, 1957 where court held that, “the author has a right to preserve, protect and nurture his creations through his moral rights. A creative individual is uniquely invested with the power and mystique of original genius, creating a privileged relationship between a creative author and his work.”
The Draft Antiquities and Art Treasures Regulation, Export and Import Bill, 2017
The draft Bill envisions free mobility of antiquities within the country through the removal of the system that mandates a government issued license to trade in antiquities. However, the bill allows for “no-questions-asked” sales where illegally acquired antiquities can be traded freely without declaring the source of an acquisition or provenance, making the source perpetually untraceable. It is exceptionally risky to rely on the good faith of the seller to declare the source without an external vetting process.
The proposed amendment would remain a positive force only if there is stronger action taken on the part of the state. The government must intervene in order to effectively implement the laws to bring about a change in the handling of stolen artifacts. Evidenced by the number of cases that have not been investigated and the low rate of recovery of artifacts, the government should move forward with the aid of technology and digital repositories. This approach must be supplemented by lectures and seminars to increase awareness of the on goings in the art world and about stolen artifacts.
Private initiatives are currently taking on the role of tracking and recovering stolen objects. For example, the Indian Pride Project is an initiative of art enthusiasts who employ social media to identify stolen religious artifacts from Indian temples and secure their return. Vijay Kumar, the co-founder of the project, was able to track a six-and-a-half inch bronze Buddha statue stolen almost 60 years ago from Nalanda, Bihar to a London-based dealer of Indian objects. He is currently attempting to pursue India’s claim on another Buddha statue, suspected to be from a 1961 theft, currently at the Los Angeles County Museum of Art. The support of the government and use of data collected could help in tracking artifacts and assisting in a speedier return.
Art has been the same around the world. The dynamism of art comes up when the nature of the object changes. This change is either due to an added local flavor or because of the vast culture of a particular nation. Art has been an indispensable part of global historical development. From ancient Greece to French Renaissance or Indian independence, expressions of ideas have been revolutionary and impactful. However, with the changing definition of art in the contemporary scenario, new legal issues have emerged at the international level.
Fraud in cross-boundary transaction in art has emerged as a frequent problem. The Bouvier Affair which began in the year 2015 is a series of cases which allege that a dealer Yves Bouvier defrauded his clients by misrepresenting the original cost of art works and subsequently overcharging them. The list of defrauded clients also included Monaco-based Russian oligarch Dmitry Rybolovlev.
In February 2018 a new case was filed in the same series of events in Geneva. Additionally, there are still active criminal charges in France, Monaco and Switzerland. To tackle such problems and other allied issues the Court of Arbitration for Art (CAfA) was established.
Court of Arbitration for Art (CAfA)
The Court of Arbitration for Art (CAfA) was established in the year 2018 as a specialized body for arbitration and mediation dedicated exclusively to for the disputes related to art. The primary purpose of CAfA was to address the disadvantages of resolving art related disputes through litigation, such as expertise, impartiality, and market legitimacy. CAfA was a result of collaboration between the Netherlands Arbitration Institute (NAI) and the Authentication in Art Foundation where the CAfA Arbitration Rules are based on the NAI Arbitration Rules, which have been supplemented and modified to better accommodate disputes of the above-mentioned subject matter. The arbitral tribunal at CAfA comprises of three arbitrators unless the value of the claim is lower than EUR 1,500,000.
Philip Righter case - In Miami, a 43-year-old Philip Righter was sentenced to 5 years for running a scheme in which he tried to fraud prominent art businesses into spending millions of dollars on forgeries of works by renowned contemporary artists like Keith Haring and Jean-Michel Basquiat. FBI’s Art Crime Team uncovered Righter’s scheme, which resulted in the filing of two federal cases against him. One, as the “Miami case” and the other as the “Los Angeles case”. The latter was transferred to Miami, where the two prosecutions were consolidated for plea and sentencing proceedings. Righter pled guilty in Miami federal court to three counts in the LA case (wire fraud, aggravated identity theft, and tax fraud). A consolidated restitution hearing is set for 30th September 2020.
At the outset, there is a gross lack of awareness of laws surrounding antiquities, and the value of antiquities remains underappreciated in the country. However, the abundance of antiquities in India has made the country a breeding ground for looting and smuggling which the law has not been able to inhibit. The poor implementation of the 1972 Act has led to an increase in the illicit trade of antiquities, to which must be added the lack of an integrated database of stolen or returned artifacts, which complicates the monitoring of illicit activities. Inefficient bureaucracy and delays in the timely return of objects have also led to poor conservation of antiquities. Before articles are received by museums, they are often already beyond repair and restoration, making preservation difficult. Inadequate communication between the central administration, government, and archaeologists, as well as with customs officers, police, and local officials add to the problem with the current law.