The Egress Art Law Resource Center

 (Draft Outline)

The Egress Art Law Resource Center is a project produced by Daniel McClean in association with the Stichting Egress Foundation whose purpose is to present an ongoing overview and forum for current legal issues affecting the contemporary art world from four main perspectives:

I. Artists

1. Contracts

2. The "Artists' Reserved Rights Transfer and Sale Agreement" (click here to download)

3. Copyright

4. Moral Rights (Click here to go to section)

5. Resale Royalty Rights

6. Artistic Freedom of Expression

 

II. Private Art Galleries and Dealers

1. The sale of art

2. Advising on Art

3. Other issues (Taxation; Duties; etc.)

 

III. Private and Public Collectors

1. Property Rights and the Recovery of Stolen Artworks

2. Acquisition and Disposal Issues

3. Cultural Property

 

IV. Museums and Public Arts Organisations

1. Acquisition and Collection Management

2. Commissioning Art

 

The project is now in the process of development and this temporary draft is entended to provide a general outline for the project. To receive free information and updates about this project just click on Register on the top of this page and leave your name and email address (check "Contemporary Art"). Or you can send us an email at: artlaw@egressfoundation.net

 

The resource center will provide a summary and commentary of key laws and legal issues in light of the concrete needs and problems of the modern-day art world. It will refer to international law, but especially to the laws of England, the United States and France. (The art laws of other countries will be only treated later in the near future.)

 

The project will be addressed to the non-specialist general public as well as the art professional and lawyer, and will present changing legal issues within the context of broader discussions in contemporary art, legal, social and cultural theory. The site will contain numerous links to a wide range of art legal websites, volunteer legal associations, academic law institutions and law firms, as well as a reading references (with links) to contemporary art law literature.

 

Each section will provide a detailed overview of the subject and treat a wide range of art law issues including the following:

I. Artists

- The evolution of artists’ contracts from the Renaissance to the present, including the "The Artist’s Reserved Rights Transfer and Sale Agreement" (1971), and issues relating to artists’ control of their work after sale;

 - The 3 main types of artists’ contracts (commissioned works; sales contract; and the artist’s agency agreements with a gallery);

 - The complex relationship between "high" art (based upon the production of unique objects) and copyright law (regulating reproduction) and how copyright both protects and threatens artists' codes of copying;

 - The copyright criteria for protecting artworks, including categories of artistic work, tests of "originality" and the scope of protection, including the "idea-expression" dichotomy;

 - The key copyrights, including reproduction and distribution and public performance, and the issue of copyright infringement, in particular, the notion of "substantiality", as well as the main remedies including damages, injunctions and seizure and destruction of infringing copies. In addition it will discuss the main defences; in particular, the so-called "fair dealing" provisions;

- The exploitation of copyright by artists and artists’ estates as a property right which can be licensed and assigned;

- The evolution of artists’ moral rights from the 19th century as enshrined in Article 6bis of the Berne Convention to their recent incorporation into UK and US law. It will examine the basis of protection and the attribution right, the integrity right and the right to object to false attribution;

- The resale royalty right or "droit de suite" and the structure of the artists’ resale royalty, primarily as it applies across the EU; it will discuss royalty thresholds as well as the mechanics for collecting the royalty;

- The conflict between public morality laws (e.g. obscenity, indecency, blasphemy, flag desecration) and freedom of artistic expression. It will consider "artistic merit" defences, and the balancing of freedom of artistic expression with other "human rights", including the right to privacy;

 

II.   Private Art Galleries and Dealers

- The issues relevant to private galleries, dealers and advisors concerning the sale of art, including sellers’ liability concerning title, authenticity and condition, and how contractual terms are regulated through legislation and by the courts and the different approach to sellers’ liability found in common law and civil law systems;

- The duty of care owed by professional agents, including auctioneers, dealers and consultants when advising the buyers and sellers of artworks, e.g. when providing valuations;

- The taxation issues arising for galleries when importing artworks, in particular, concerning their classification (as seen in the trials of Brancusi v. United States (1928) and Haunch of Venison v. HMRC (UK)(2008);

 

III. Private and Public Collectors

 - The collecting of art, including issues relating to the acquisition and ownership of artworks, rights of title, recovering stolen art, establishing provenance and authentication, cultural property issues and export laws;

- The rights of owners to prevent wrongful interference with their artworks as well as criminal remedies; including a discussion of the "nemo dat quod non habet" rule (a person cannot transfer title to goods they do not have). It will look at time limitations and the applicability of the "good faith" defence in common law and civil law jurisdictions, and practical steps owners can take to recover stolen art including registering theft with the Art Loss Register;

- The problems collectors face in establishing the provenance of artworks, where paper trails are often missing and many types of artworks can be easily faked. It will outline the legal risks collectors face if they do not conduct due diligence and consider some new and original systems for registering title to artworks, as developed by artists such as Carl Andre;

- The problems involved in the authentication of contemporary artworks, for example, in relation to Conceptual Art and the execution of "new media" artworks. It will consider the role of certificates and contracts in helping to verify authenticity, and the (often) controversial role of artists’ estates and deceased artists’ authentication committees in determining authenticity;

 

IV.  Museums and Public Arts Organisations

- The question of cultural property, including the main legal restrictions placed upon the export of artworks defined as "cultural property" as result of national heritage laws; international conventions such as UNESCO (1970) and UNIDROIT (1995) and the rights of foreign states to recover cultural property in other national forums; and holocaust-related claims;

- The specific issues related to public arts organisations and museums when collecting artworks, including the commissioning, acquisition, maintenance, exhibition and loan of artworks;

- The legal and ethical responsibilities of public arts organisation when commissioning artworks and their right to recoup public funds invested in artists’ commissions following sale;

- The issues of acquisition and collection management including the risks and potential liability of museums and their staff when engaged in acquisitions and the "acquisition due diligence guidelines" adopted by museums and international ethical guidelines, such as ICOM (2005), and the restrictions preventing the de-accessioning of museum objects and when the return of cultural objects is or should be permitted; and lastly,

- The legal issues that can arise when public arts organisations exhibit and receive loans of artworks and steps taken to minimize these risks.

 

The project is now in the process of development and this temporary draft is entended to provide a general outline for the project . To receive free information and updates about this project just leave your name and email address on the register (check "Art Law") on the top of this page (This information will be kept strictly private). Or you can send us an email at: artlaw@egressfoundation.net

 

Daniel McClean is an art lawyer and independent curator. He studied philosophy, politics and economics at Oxford University; holds an LLM in intellectual property law from London University; and an MA in Art History at Courtauld Institute of Art. He was formerly a solicitor in the Art and Cultural Assets Group at Withers LLP. He has edited two pioneering publications on the relationship between art and law, Dear Images: Art, Copyright and Culture (ICA/Ridinghouse, 2002), and The Trials of Art (Ridinghouse, 2007), and is currently involved in co-writing with Louisa Buck, Commissioning Art (Hugh Merrell/Arts Council of England, forthcoming in 2012). His work as an independent curator includes an exhibition with Superflex at the Van Abbemuseum, Eindhoven (April–September 2010), and he has also co-curated of a series of projects with artists using contractual frameworks to produce artworks entitled Offer and Exchange: Sites of Negotiation in Contemporary Art (2008-2010). He can be contacted at artlaw@egressfoundation.net