How Law Defines Art

Is this a museum?  "Prada Marfa" by Michael Elmgreen and Ingar Dragset
Is this a museum? “Prada Marfa” by Michael Elmgreen and Ingar Dragset
PlayboyMarfa2
Is this advertising? “Playboy Marfa” by Richard Phillips

Last month the John Marshall Review of Intellectual Property Law held its annual symposium. This year the topic was the intersection of art and law. There were a number of great papers examining how art and law overlap. I contributed a short talk on how the law ends up defining art, arguing the legal and the arts community need to recognize the important role law plays in defining the limits of conceptual art when legal disputes arise. I’ve posted the short draft online here: (How Law Defines Art), and I’d love to hear any reactions.

Defining art is both hard and subjective. But in lots of contexts the law must arrive at a just solution to hard and subjective questions. The art world (which includes artists, buyers, art lovers, art historians, and art writers generally) has largely neglected the task of defining artworks. This neglect has crept into legal disputes as contemporary art has become more conceptual. It has loosened the limits of aesthetics, form, function, and composition. This makes crafting a definition even more challenging. Yet the Law has an important part to play in resolving art disputes. In doing so courts end up defining art. They do not set out to do so, and in fact they do all they can to avoid acting as art critics. But paradoxically this creates inconsistent judicial reasoning and leads to under-reasoned opinions. The solution offered here, is to acknowledge this critical function, and encourage courts to engage with the visual arts community, and for the arts community to engage back.

And as always, if you have a draft or an article related to art law, antiquities law, or cultural heritage generally, please consider posting a draft on SSRN or another open access site. I’m very happy to post links to articles, essays, or any other suitable writing.

Leave a Reply

Your email address will not be published. Required fields are marked *