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.
Daniel Klerman, of the University of Southern California Law School, has a new paper titled “Jurisdiction, Choice of Law and Property” up on SSRN. The piece looks at international choice of law generally, but he argues that the situs rule produces bad outcomes with respect to stolen art disputes. Instead, he argues the lex originis rule produces better outcomes. From the abstract:
Jurisdiction and choice of law in property disputes has been remarkably stable. The situs rule, which requires adjudication where the property is located and application of that state’s law, remains the norm in most of the world. This article is the first to apply modern economic analysis to choice of law and jurisdiction in property disputes. It largely confirms the wisdom of the situs rule, but suggests some situations where other rules may be superior. For example, in disputes about stolen art, the state where the work was last undisputedly owned may be both the most efficient forum and the best source of applicable law.
Dr. Christa Roodt has written a piece for the International Law Journal of Southern Africa titled “Restitution of art and cultural objects and its limits”. She is a Research Lecturer at the University of Glasgow. Her piece is available from Trafficking Culture.
Art and cultural objects have a complex nature and status. A legal approach cannot escape having to state which objects come within the scope of the definition, but an objective legal definition in abstracto is difficult to provide. Because the flows of licit and illicit objects are so intermixed, both the legitimate and underground art markets are implicated in the trade involving these objects. Global legal diversity further complicates the distinction between the licit and the illicit trade. This article takes stock of restitution and suitable dispute settlement mechanisms against this backdrop. Restitution processes have become more openly policy-oriented, and the meaning of ‘restitution’ now extends to overcoming the legal obstacles in the way of return. Law can provide the framework for negotiation and dispute settlement in many cases, but the ethical dimension is a particularly powerful agent for restitution of Nazi spoliated art and human remains.