Art and Law

Art and Law

  • Posted on: February 5, 2016
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As much as purists and true connoisseurs of art may cringe at the thought of putting values and figures to the volatility of the art bazaar, in the year 2014, the art market was valued at €51bn in 2014, according to Clare McAndrew’s 2014 Tefaf Report, driven predominantly by demand at the top end. It is the “pyramid effect” of the world’s topmost billionaires eyeing the coveted Picassos, Giacomettis, Rothkos, Freuds and Warhols.

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Pablo Picasso’s Dryad, painted in 1908

Portrait-of-Andy-Warhol-
By the beginning of the 1960s, Warhol was a very successful commercial illustrator. His detailed and elegant drawings for I. Miller shoes were particularly popular. These illustrations consisted mainly of “blotted ink” drawings (or monoprints), a technique which he applied in much of his early art. Although many artists of this period worked in commercial art, most did so discreetly. Warhol was so successful, however, that his profile as an illustrator seemed to undermine his efforts to be taken seriously as an artist.

When Chinese billionaire Liu Yiqian bought the sensuous and erotic Nu couché (1917-18) at the second-highest auction price ever in New York for $170.4m at the Christie’s 9th November sale, the news hit headlines worldwide. Despite adverse reports of a “cooling down” in the ‘art bazaars’ of the world, fall and autumn 2015 witnessed robust business in the London auctions, and some $2.3bn of art was sold in the New York sessions. However, it is pertinent to note that with multiple world issues affecting socio-economic scenarios namely conflict in the Middle East, global terrorism and a lukewarm Chinese economy, the art bazaars have also started on a tepid note in 2016.

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Nu couché (1917-18)

Till very recently, the business of art was mostly unregulated, at least in generic terms despite the existence of art laws and lawyers who specialized in crime and litigations associated with works of art. However, the fact that very few players dominate high-end sales in art bazaars globally and keep auctions as state secrets, stories of misdoings, plagiarism and fakes continue to appear regularly. In a very positive development, European art regulators particularly in Belgium and Switzerland, took a keen interest in the art trade to avoid instances of money laundering and tax evasion, as is the bane of the richie-rich collectors.

The much publicised case of Yves Bouvier and his former client, Dmitry Rybolovlev, who are believed to have traded in some cool $2bn of art through offshore entities and trusts, over the last eight years, with no public knowledge of the transactions generated ripples amongst the art fraternity and rightfully so.

Another case that gained much news realms was that of Guy Wildenstein, who had bought the painting Les Bords de Seine à Argenteuil (dated 1875 on frame), privately for €50,000 in 1993. But his father Daniel Wildenstein, declared it a fake in 1982 resulting in the artwork’s exclusion from the catalogue raisonné of Monet’s works, prepared by the Wildenstein Institute, the non-profit arm of the art-dealing Wildenstein dynasty. The painting received much public attention upon being featured in the BBC programme Fake or Fortune in June 2011, wherein the hapless David Joel sought validity to prove its authenticity.
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The controversial Les Bords de Seine à Argenteuil

Despite the best persuasion of the TV presenters who backed up their claims of proving the work to be a Monet original backed by considerable evidence, David lost the case in 2015. Myriad voices raised their concerns about the work in question. In The Guardian, Waldemar Januszczak wrote: “What no one seems prepared to countenance is that the Wildenstein Institute is right…I completely agree with their view that the picture featured in the programme was not painted by Monet. Plenty of fake Monets were already in circulation while Monet was alive. And, unfortunately, his unscrupulous dealer, Georges Petit, was perfectly capable of selling pretend Monets.” Others, including inevitably, Bendor Grosvenor, who worked on the programme, are still convinced it is “right”.

Melanie Gerlis, a market editors of ‘The Art’ newspaper stated that “If the market wants to grow with ever higher volumes and values, and art transformed into an asset class with dedicated investment funds, then it will have to accept that better regulation is a necessity. How that can be achieved is another matter entirely.”

Which brings us to the burning definition of Art law, which happens to be multidisciplinary and encompasses numerous areas of law encompassing music, film, theater, literature, et cetera but a useful definition is found in Robert C. Lind, Robert M. Jarvis & Marilyn E. Phelan, Art and Museum Law (2002), which states that “Art law, simply put, is the body of law, involving numerous disciplines, that protects, regulates and facilitates the creation, use and marketing of art. Art law is not a separate jurisprudence or unified legal doctrine that applies to all of the issues confronting those in the art world.”

Steve Thomas
Irell & Manella LLP states that “Art intersects with law in a multitude of forums and disciplines. The broad classification of “art law” encompasses the body of law applied to fine art and artists, and also often extends to cultural property, collectibles, multiples and memorabilia. 

Art attorneys advise on the various art specific laws that exist at the state and federal level and affect the relationships and transactions among collectors, artists, dealers and other art world participants…Attorneys in this field advise regularly on artists’ legal rights and protections (including artist-dealer relationship, First Amendment rights, copyright and trademark (including fair use), moral rights, resale royalty rights, and statutory artist protections).

 An art lawyer’s clients include private collectors, private art foundations, artists, artist foundations, museums, galleries, and or art dealers, who seek legal counsel relating to the creation, destruction, purchase, sale, consignment, auction, movement, ownership, financing, loan, authentication, export/import, display, reproduction, insurance, taxation, storage, charitable gifting, and or theft, restitution and recovery, of fine art. Attorneys in this field also structure, review, negotiate and draft a wide range of agreements specific to the unique environs of the art world, including art purchase and sale agreements; bills of sale; escrow agreements; agreements for the conservation, restoration or repair of art; appraisal agreements; collector and exhibition insurance policies and unique art endorsements; licensing agreements; agency agreements; art advisor and consulting agreements; review on approval agreements; auction consignment agreements including auction guarantees and advances; private sale consignment agreements; artist/dealer agreements; loan agreements with museums and galleries for exhibition of art; deeds of gifts and promised gift agreements with museums for donation of art and or funds; and agreements for commissions of public and private art.”

 

First Rothko ..no glaze

Mark Rothko’s colour abstract

To an art aficionado or a student who get completely mesmerized by a look at one of the masterpieces in a posh museum nestled in the heart of Europe, the terminology and definition may seem excessive but in the contemporary world plagued with realities of sluggish economies and dwindling infrastructures, the business of art with an eye on future investments needs to be studied and analysed with a clear mind and sharp eye considering the staggering volumes of fortunes at stake.

Monica Arora