People across the legal industry will argue over whether there is any specific type of law called “art law.” Despite the arguments for and against, it is clear that art law is used as a descriptor for legal disputes and tasks that require a variety of different areas of law to resolve or complete, yet all have to do with fine art. Art law encompasses many legal practices, from contract law to civil litigation. Considering that art is often passed down from generation to generation or endowed to museums and galleries, trusts and estates law is often important, too.
What art law covers
Sheppard Mullin, the art law firm that runs the Art Law Blog, lists the following fields in its practice:
- Estate planning for artists and collectors
- Loans secured by fine art
- Museum, foundation and gallery advisory services
- Museum “franchising”
- Exhibition sponsorships
- Private and public commissions
- Private sales, consignments, and auctions
- Licensing and merchandising agreements related to fine art prints, posters, and consumer products
- Charitable gifts
- Provenance review and research
- Restitution claims
Hughes Hubbard & Reed also includes dealers’ duties and rights, joint ownership of work, and misappropriation in the scope of its art law practice.
Art law attorneys have specialized backgrounds and knowledge
Art law often requires a particular skill set or knowledge of art in order for lawyers to fully understand the parties’ perspectives, needs, and concerns. Attorneys who lack an understanding of fine art issues may be ill-equipped to handle particular transactions or disputes.
For instance, authenticity disputes often come down to minute details, including the types of pigments, binding material, painting technique, and other characteristics of the painting. Individuals and organizations may hire experts who utilize scientific testing, such as gas chromatography, mass spectrometry, scanning electron microscopy, thermoluminescence, radiocarbon analysis, and optical microscopy in reflected light, UV fluorescence, and transmitted light to verify the physical characteristics of the painting while preserving it. A client who disputes whether a work of art is authentic or not, and who has a financial interest in the outcome of the case, needs an attorney who understands how particular types of art are authenticated.
“An authenticator’s determinations can have a tremendous impact on the value of artwork, and for this reason, these individuals and institutions wield a great deal of power in the art market,” writes art law attorney Lena Saltos of Hughes Hubbard & Reed. “An authenticated work by a well-known artist might have a high retail value, while a work purportedly by the same artist which a recognized authenticator declines to include in a catalogue raisonné, is rendered essentially worthless.”
Additionally, the value of a piece of art can vary dramatically based on many factors, including the artist, age of the piece, history, and provenance of the piece, the subject of the piece, its condition, its size, the technique used, and the market at the time of sale. It’s rarely a straightforward calculation. A client looking to sell or purchase artwork for a particular price needs a lawyer who understands these factors and can appropriately negotiate on their behalf.
Authentication and ownership disputes have a new legal venue
Art lawyers are often involved in ownership disputes, which can go back generations. This is a particularly contentious and emotional issue in many European countries, where a great deal of art was stolen from the original owners during WWII, often referred to as the Nazi plunder. To enable a more efficient resolution to these cases and other modern disputes, the Court of Arbitration for Art opened in June 2018 at The Hague in the Netherlands.
In the United States, Barack Obama signed the Holocaust Expropriated Art Recovery Act into law in 2016, which was designed to “help facilitate the return of artwork stolen by Nazis during the Holocaust to their rightful owners or heirs.”
Who needs an art lawyer?
Individuals and organizations that are regularly part of the fine art community (or occasionally dip in a toe) need attorneys who practice art law. Artists, buyers, collectors, dealers, galleries, museums, and many others need lawyers who have a deep understanding of fine art and how art transactions work, whether it is a sale from a gallery or a significant gift to a museum. All of these parties have various rights and responsibilities, and lawyers are there to clarify them (such as in contracts) or argue over them in court.
Also, art lawyers are there to give proactive advice. Many organizations work with attorneys to ensure that they do not violate anyone else’s rights, such as an artist or benefactor. For example, a museum that has an art piece on loan from the owner is likely restricted in what it can do with the piece. It may have to display it a certain way, maintain a certain level of security, and not loan it out or use it in other exhibitions. Another common provision that may be violated is a confidentiality provision. Some art sales require the confidentiality of the buyer or seller, and if the other party gives away the party’s identity, they may be in trouble for breach of contract.
If you find yourself in a dispute over art, interested in buying fine art, or helping an elderly loved one decide what to do with valuable pieces, it is time to look for an attorney who practices in art law.