By Ralph E. Lerner and Judith Bresler, Practising Law Institute, N.Y. 2,074 pages (two volumes), $295
Art law practitioners rightly celebrate the fourth edition of “Art Law: The Guide for Collectors, Investors, Dealers, & Artists” by veteran art law attorneys Ralph E. Lerner and Judith Bresler. As any lawyer knows, a little knowledge is dangerous, but when it comes to the field of art law, a little knowledge is treacherous; there could never be an “Art Law for Dummies.” Previous editions of the Guide are regularly cited in law reviews and judicial decisions going back to the first edition in 1989. Lerner and Bresler’s two-volume Guide has been and continues to be required reading for fledgling and seasoned art lawyers alike. The authors discuss not only the most recent and cutting edge developments in a complex and dynamic art market, but furnish a historical perspective informing laws that develop too slowly for the fast-paced art world.
Dedicated to all visual artists “from dawn of workmanship with artistic objective from 40,000 years ago and continuing through the ages to the Present,” the Guide reflects Lerner and Bresler’s humanistic approach. Their tone is reverent yet practical as they cogently explain a vast variety of legal issues, the only proviso being that they concern visual art: its creation, possession, ownership, display, placement, reproduction, appropriation, forgery, expression, censorship, control, sale, resale, lending, donation, consignment, insuring, title, provenance, provenience, inheritance, taxation, restoration, destruction, dismantling, looting, and theft. Art may be the cherished issue of the artist, the subject of elaborate estate planning and painstaking contracts, a fundraising tool of the government, a fixture on real estate, or an item of cultural heritage that galvanizes nations and inflames emotions. In short, art finds its way into a miscellany of laws.
The authors provide much of the law as enacted along with useful forms in handy addenda to each well-organized chapter. The text is accessible to the non-professional and the endnotes to each chapter will greatly assist the professional, which brings to mind the only problem with the Guide: its literary value. It is difficult to use as a research tool when one is compelled to read on. Happily, it does not presume too much knowledge by the average reader, and it provides fundamental definitions and talking points comprehensibly and without legalese or pomposity. Whereas some prefer treatises that address the law without elaboration, history or context, favoring case annotations over text, Lerner and Bresler discuss the law within informative contexts, promoting a needed understanding of its underpinnings. Although not a typical law school text, one may comfortably teach from it.
The Guide is divided into six Parts: Artists and Dealers, Artwork Transactions, Artists’ Rights, Collectors, Taxes and Estate Planning, and Museums and Multimedia. Part One is devoted to a single chapter, Artist-Dealer Relations. Its focus is, naturally, on the importance of written contracts.
Part Two commences with Chapter 2 on Private Sales, which is divided into sales by dealers and sales by collectors, and ambitiously addresses, among other things, all variants of warranties. The authors discuss art theft in Chapter 3 (Statute of Limitations for Theft and Breach of Warranty). As my former employer in the antiques business would tell me, “you can never have too much insurance,” but as the authors make clear, new insurance options complicate the field. (See Title Insurance in Chapter 3). In Chapter 4 on Auctions, essential information is offered on how auctions work, the laws that govern them, and pitfalls to be avoided.
Chapter 5, devoted to Prints and Sculpture Multiples, is in Part Two along with Chapter 6 on Commissioned Works. As new technologies reveal the authorship of unsigned and undocumented art, experts are no longer exalted but are increasingly subject to all kinds of liability, per Chapter 7 (Expert Opinions and Liabilities).
Chapter 8, on International Trade, and Chapter 9 on Holocaust-Looted Art, also in Part Two, present hot issues for the art lawyer, touching upon national and international legislation and treaties, and providing clear explanations of judicial opinions pertaining to cultural property and looted art and antiquities. Some will appreciate the authors’ advocacy for mediation in lieu of litigation for squabbles over title and the recovery of looted art.
Part Three commences with First Amendment Rights (Chapter 10), and offers a broad but comprehensive commentary of perhaps the most American portion of the U.S. Constitution. While the authors warn that their chapter on Copyrights (Chapter 11), is not a treatise, they furnish an excellent discourse on copyrights as it pertains to the visual arts. Chapter 12 follows with an enlightening discussion of the “moral rights” of artists, consisting mainly of the rights of attribution and integrity.
Resale Rights, a European import like moral rights, are addressed in Chapter 13, as is the recently stricken California Resale Royalties Act. The authors recount an amusing anecdote, one of many they provide, which according to some, introduced the concept of resale rights here. Reportedly, at an auction held at Sotheby’s in 1973, Robert Rauschenberg, after witnessing two of his paintings sell for many times their original purchase prices, hollered at the seller, a taxi mogul, “I’ve been working my ass off just for you to make that profit,” and took a swing at him.
In Part Four, Lerner and Bresler focus on collectors. No longer may one casually purchase a nineteenth century painting or antique and expect to sell it without a hitch. As the authors make clear, one must ensure that the purchase is not the product of looting and that legal title is secure. See Chapter 14 on Collections as Investment Property, addressing tax issues and insurance. Taxes are further addressed in Part Five wherein Tax and Estate Planning for Collectors, and Tax and Estate Planning for Artists, respectively, are treated in Chapters 15 and 16, aptly demonstrating that art law is an essential component of the law of trusts and estates.
In the final part, Chapter 17 includes a comprehensive discussion of museums, their structure and operation, how they accession and de-accession, and other activities. Finally, in Chapter 18 (Art Law Online and Digital Art), everything comes together in a new medium, encompassing copyrights, trademark protections, first amendment issues, moral rights, and commercial issues. Volume II ends with a statutory appendix, table of authorities, and index.
The volumes are artfully packaged. On the back flap of Volume II are photographs of the authors, posed with special reference to Edvard Munch’s “The Scream.”
Barbara Jaffe is an acting Supreme Court Justice in Manhattan. Before going to law school, she worked at an antiques dealership for several years. She is a founding member of the New York County Lawyers’ Association art litigation and dispute resolution institute.