Art Law & Art and the Law: A Dialogue Across Disciplines

When I am asked to define art law, I am often at a loss. As a specialist area in legal practice, art law reflects an amalgamation of subject matters that encompass transactions across the art world, including commercial contracts, intellectual property, import and export controls, real property, data privacy, and tax, as well as niche areas, including artist resale royalties, consignments, and rules related to online sales. Art law thus establishes the frameworks and structures by which the art world operates across the globe—the scaffolding for a community with its own unique practices and behaviors.

Beyond such technical domains, however, there lies an expanse of art law that often appears antithetical to rigid structures and strict definitions. Those who are honored to call ourselves art lawyers have the incredible opportunity to be adjacent to creation—the spark of originality that reminds us why we are human. For many of us, this is the reason why we toil in our legal practice. Working with artists has helped us to realize, time and time again, that something unnecessary to survival can elevate life.

The practice of art law has continued to develop rapidly in recent years, as stakeholders in the art world have come to realize that the innovative practice of law can support and protect artistic creativity. In developing the Critics Page for this issue, I wanted to highlight the importance of, and the challenges posed by, legal structures and frameworks in artistic practice. This Critics Page highlights many of these innovative art law issues that sustain (or contest) contemporary art practice today, bringing together several of the leading lawyers in the field alongside groundbreaking artists who use legal frameworks as their medium.

In seeking to bring together contributions from across the world, we recognize at the outset that art law differs by jurisdiction, reflecting divergent conceptions of both art and law. These distinctions perhaps help us better understand that norms and legal rules are socially constructed—the law is not a monolith—and we seek to embrace this legal diversity across the Critics Page. Ryan Su provides insight into the state of art law in Singapore, a region that has developed “uniquely and differently from that of the West” in terms of its political climate and cultural policy landscape. These differences are extended by artist collective Alchemyverse, who share their experience of working in the Atacama region of Chile, learning how the local community is guided by rules of nature while seeking to honor those rules as visitors. Alana Kushnir informs us about Australian Indigenous Cultural and Intellectual Property, examining how these Indigenous concepts might help to expand legal definitions of intellectual property.

In the United States, we continue to see legal precedent and public policy interact with art—in ways that have reshaped both legal and artistic practice. Melissa Passman discusses how the intricacies of nonprofit entity formation are becoming parameters for exploration, rather than inflexible obstacles, to individuals and entities that are attempting to effect progressive change. In looking to law to empower artists, Sarah Conley Odenkirk argues that contractual restrictions on the resale of artwork, including resale royalties, allow artists to retain control of artwork as it is used as a form of intergenerational wealth transfer. Reminding us that public art is integral to how a community is defined or galvanized, Megan Noh contemplates a recently settled dispute about public art in New York City, recognizing that legal protections for site-specific works could be better strengthened to support the artists who create these defining artworks.

The artists included in this Critics Page explore aspects of the law as a source material, and often a medium, for their practice. Through our conversation, Jill Magid frames the law as “a system and a manifestation of the (dominant) culture,” and while it appears to be concrete, it is opened to interpretation in their artistic practice. Roopa Vasudevan asks us to reflect on the sheer volume of data we leave behind in our everyday actions on the internet, exposing through their practice how our online identities are flattened (but usable) versions of our lived experiences. Contributing images of their artwork to this Critics Page, Jonas Lund plays with the idea of a contract as art, with their artwork exploring the commitment embodied by ownership of an artwork and the relationship established between the artist and the collector.

The field of art law has grown through the tireless efforts of many legal practitioners over the years, laying a legal foundation to support artistic creation. The Rail has been significant to this evolution of the field, including Professor Joan Kee’s Critics Page from March 2016, and this Critics Page seeks to extend the necessary dialogue between artistic practice and legal practice. As art law continues its growth in the years to come, it is my hope that the intricate connections between art and the law remain as fertile a space for interdisciplinary dialogue as these contributions reveal.