Helping artists to navigate legal waters
January 21, 2020
Where does one start when they want to help artists in legal matters, and where does one start as an artist to find legal help? These are the questions that moved Irina Tarsis to initiate a center focusing on legal issues that serves artists and students, academics and legal practitioners, collectors and dealers, government officials and professionals in related fields around the world, called today the Center for Art Law.
As described by Tarsis, the Center for Art Law was founded in response to the void in the United States for a centralized resource, accessible to all members of the general public with questions and interest in legal aspects of the art world. The readers and members of the center include attorneys and artists, collectors and gallerists, auction houses and museum staffers, art historians, art movers and many others who care about legal issues in the art world.
Specific as it is, Tarsis’s decision to attend law school was motivated by a specific goal to train and practice art law. Unlike many colleagues, who accidentally “fell into” this line of work, she wanted to go directly into this area and help members of the arts community.
“At the time of graduation, I realized there were many people like me sharing interests in questions of authenticity, ownership and restitution and no guidance or map on how to break into the field. Where does one start if they want to help artists navigate the legal waters? Today, the Center receives students with that same yearning and we are proud to be guiding them to the path of becoming art lawyers” explains Tarsis.
Since then, the center has developed and is acting as a nonprofit, dedicated to all that is art law. It is a unique and valuable place bridging a gap between law and the arts, and bringing together legal experts and members of the art world. Not only does the center collect resources but also organizes educational and cultural events. Its team members, committed to the center’s mission, follow developments in the field, amalgamate valuable resources and develop workshops on a variety of topics, all intended to provide guidance to the art world.
With 10 years of being active and having had a broad view into the main legal challenges, Tarsis sees as a recurring problem the lack of contracts between artists and galleries. This one issue can effect largely the artists’ careers as well as their personal and artistic growth.
“Other regular legal challenges include production and sale of forgeries by those who seek to capitalize on the demand for certain artists in the art market. Also, frequently artists forget or do not realize that they can protect their works through copyright registration. We are working on workshops to bring awareness to artists about their legal rights” describes further Tarsis.
Since technology as a tool is used more and more in the art world, for example by artists just as by museums, it serves well to know how the legal part related to it has changed too. According to Tarsis, the emerging technologies are both helping and complicating the artistic process. On one hand, digital art is easier to disseminate and artists can sell licenses instead of selling physical copies of their work in the primary market. On the other hand, the likelihood of copyright infringement is on the rise.
Again Tarsis strengthens the point of how important it is, more than ever, to seek clarity in the relationship between artists and their gallerists, as well as collectors, especially in relation with contracts.
“Contracts offer a protection to artists, whether they are operating in the traditional realm or in digital art, using new technologies such as AI. Artists need to keep track of the art they produce, which circulate in the market. One way to ensure this, is to use blockchain technology to record ownership of a work. Another is to prepare contemporaneous records, in anticipation of writing a catalogue raisonné, cataloging the oeuvre of any particular artist” advices Tarsis.
An interesting example is Ed Rusha, who is working on a catalogue raisonné of his works, even though he continues to create new art. His website lists dozens of work, which he is unable to locate and have been sold from his studio or via his dealers without good business records. Working on a contemporaneous catalogue raisonné or fingerprinting of art will go a long way to help protect the integrity of the living artists in the future.
When it comes to legal matters and systems, there is a huge difference between the US and the European one. It is the same when it comes to the arts.
Thinking about the differences and what frameworks of protection exist in the two continents, Tarsis holds the opinion that the European legal system offers more protections to artists and to the integrity of artworks. What she sees as a big difference between the two legal systems is the treatment of resale royalty rights.
“In Europe, most countries have laws in place, which allow living artists or estates to benefit from the rising prices of artworks circulating in the secondary market. Such a resale royalty right has been discussed and considered in the US for decades, but it never reached the federal level and the only state law to this effect was found unconstitutional” describes Tarsis the difference.
There is a new step that is going to take effect from January 2020 onwards within the European Union. This step is going to bring about changes for art collectors, being advantageous mostly to the issue of transparency.
The European legal system will be integrating a recent European Union Directive, the so called 5th Directive, that will obligate art dealers to conduct investigation into their clients’ financial sources and identity, before selling works of art for more than 10,000 euros.
“The duties imposed by the 5th Directive, while criticized for being unduly onerous on the art trade, should offer more transparency into the operations of the art market” clarifies Tarsis.
Artists of today, who come out from their schools and are just starting to build their careers are more conscious than those just 10 years ago, in terms of getting to know more their rights as artists and being more informed.
“Law has become an integral part of art creation as well as for emerging artists, and today art students are more likely to think about their copyrights than those who came before. Artists should not hesitate to consult attorneys and accountants when starting their careers” points out Tarsis.
There are more places, sources, organizations and people than in the past, who provide help and offer a wide range of informations. The Center for Art Law, and many other nonprofit organizations, brings together different players of the art world offering workshops, trainings, guest lectures to members of the artistic communities to explain legal basics for artists. In the United States many states have organizations like the Volunteer Lawyers for the Arts, which attempt to introduce attorneys and artists and offer pro bono or reduced rate representation to painters, dancers, film makers and other creatives with legal needs.
Beyond that, the Center aims to aggregate these resources and preserve the knowledge that is available in different locations, an aim that goes beyond pure information and advice giving.
“We began by hosting ‘art law mixers’ in galleries in NY, Boston, Washington DC and even in London to encourage a friendly dialogue between members of the legal and members of the artistic communities.
Under the leadership of our Executive Director, Louise Carron, in 2019, the Center offered multiple modules on business law and the arts, hosted by organizations such as the Pratt Institute and UrbanGlass Studio. We are looking to expand this training program in 2020 and to reach students in different studio arts programs as well as in artists’ communities” reveals further plans Tarsis.
Graduate programs are increasingly paying attention to law and the arts. For example, Columbia University's Teachers College includes two mandatory classes on law and the arts for its graduate program students. This and many other non-law schools realize the value added of educating their students on relevant legislation and best practices.
Having been in contact with many types of players in the art world, and having had deeper understanding of their needs for growth, Tarsis does not see the role of art and artists as changing drastically in the future.
In her opinion, there will always be human creative minds and hearts behind the creating of art, even though “computer created” art is not unusual anymore.
“What I do anticipate seeing more in the future, is the freedom emerging technologies will offer to people to express themselves. In addition to work in traditional media, artists increasingly seek expression in the digital and the experiential realm.
Museums, fairs and collectors are becoming increasingly interested in innovation in the arts, and many artists are inspired to find new ways or to put new spins on old ways of expressing themselves. Some artists are actually inspired by laws and make art which integrates or comments on different regulations in place” envisages Tarsis.
Although in the past, art and law might have seemed very far apart, whereby artists had no opportunities or even awareness of the legal aspects their work process had, today this approach is changing into a much more accepted notion of freedom of information and knowing.
What art lawyers can do is to continue protecting artists’ rights and encourage transparent and fair interaction between the different players in the art world.
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