The Legal Canvas, Summer 2012

Summer 2012 Already?

In this issue of the Legal Canvas, we have chosen to cover some basics – or at least things that are basic for lawyers but may be matters of mystery for others.

In the course of our practice we find that many of our clients have (happily) never been involved in litigation. That’s the good news. The bad news is that when a dispute arises, inexperience with the realities of litigation may affect the ability to make good decisions. We therefore offer a primer on litigation – what it is, how it works, its risks and its benefits, and why it is so expensive.

We also find that although many people in the art world owe fiduciary responsibilities to their employers, institutions, or clients, they may not understand the nature of those responsibilities or the potential consequences when they are breached. We discuss the concept of fiduciary duty and look at two cases – one that is currently pending in New York and one that was decided in London in 2010 – that illustrate the sorts of facts that may elicit claims (or findings) of fiduciary breaches.

On other matters, we review a decision by the European Union about the imposition of VAT and customs duty on works that are imported into the EU in component parts. We also report on a federal court decision holding the California Resale Royalties Act to be unconstitutional and a proposal in Congress to institute a national resale royalty scheme. And, we provide updates on new regulations governing deaccessioning by certain museums in New York, and on two restitution cases.

Finally, we look at three different situations that have occurred over the last couple of years in which artists or their work have been suppressed – Ai Weiwei in China, Mustapha Benfodil in Sharjah, and David Wojnarowicz in the United States. We examine the roles of both technology and the law in shaping the art community’s responses to these sorts of incidents.

Which again brings us back to basics, and for lawyers in the United States the basics lie in the Constitution. One can argue that the United States is behind the curve in terms of artists’ rights. We recognize only a very restricted form of moral rights; only one state has ever provided for resale royalties – a statute that is now in jeopardy. But we have the First Amendment. And that is an artists’ right that should be dearly cherished and protected.

Please click here to read the Summer 2012 issue of The Legal Canvas.