Defining Art: a legal perspective by Jasonpet

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									Law and the Visual Arts
Professor Alexandra Roosa 8/30

“Defining Art: A Legal Perspective”- P. Karlen
• Many artists, dealers and collectors don’t fully realize the implications of legally categorizing and defining art • Definitions are important because they establish the boundaries for protecting an artist’s works and reputation

Defining Art: A Legal Perspective - P.Karlen
• The legal definition for any art-related term can be different depending on which state’s law is used. • Definition may vary depending upon the branch of law from which a particular legal statute is applied. • Definition under the same statute may also change over time. • Legal definition may clash with the art world’s perception

“Defining Art: A Legal Perspective” - P. Karlen
• Copyright Law provides broadest definition includes almost every kind of work in visual artstraditional, non-traditional, multi-media • Works of artistic craftsmanship qualify insofar as their form, but not their mechanical or utilitarian aspects • Useful articles qualify, but only to extent their design incorporates pictorial, graphic, or sculptural features that are separately identifiable • Caveats- notion of limited edition, work must also be fixed in tangible medium of expression

“Defining Art: A Legal Perspective” - P. Karlen
• VARA- Visual Artists’ Rights Act of 1990 a “work of visual art’ is restricted, confined to most prominent traditional art forms • California Art Preservation Act - protects fine art in terms of “an original painting, sculpture, or drawing, or work of art in glass of recognized quality”.

“Defining Art: A Legal Perspective - P.Karlen
• California Artists Dealer Relations Act, which protects artists who consign their works to art dealers, defines art slightly more broadly • California resale royalties legislation defines fine art as paintings, sculptures, drawings, or orig. works of art in glass but no recognized quality requirement or that the work not have been created for commercial use. • CA Rev. & Tax code- identifies “free fine arts” in terms of various media

“Defining Art: A Legal Perspective” - P. Karlen
• There is often confusion surrounding a particular medium • “painting”- issue may not concern painting materials-but the surface upon which the paint or other coloring is applied • “drawing”- how does one differentiate utilitarian drawings from artistic ones? • “sculpture” - difficult to distinguish between sculpture and landscape and architectural works

“Defining Art: A Legal Perspective” - P. Karlen
• Conclusion - definitions vary from jurisdiction to jurisdiction and even within the same jurisdiction • Definitions change over time by legislative enactment or court decision • Artists who work in nontraditional media will often find their works unprotected • Artists professional organizations must lobby for continuity

Poe v. Missing Persons 745 F.2d 1238 (9th Cir.1984)
• To prove copyright infringement, TT must show 1) that copied article was an original sculptural work under 17.U.S.C.102(5); 2) article was not useful; 3)sculptural features can be identified separately from and are capable of existing independently of the utilitarian aspects of the article

Poe v. Missing Persons 745 F.2d 1238 (9th Cir. 1984)
• Issue before both the appellate Court and district court is whether a genuine issue of fact exists as to whether TT designed a functional swimsuit or work of art • Because district court erred in concluding there was no genuine issue, appellate court reverses summary judgment

Artist’s Working Environment
• Artists frequently find it difficult to procure reasonably priced work and living accommodations, particularly in areas with high cost of living • Some cities have responded by designating certain districts as suitable for permitting artists to work and live in the same place

Matter of Marhoffer N.Y.L.J., Jan 14,1985, at 13 (Sup. Ct. 1985)
• Petitioner seeks order reversing decision of the respondent which denied artist certification pursuant to Multiple Dwelling Law 275 and Zoning Resolution of City of NY 1210 & 42-01 • Respondent denied certification on grounds application: 1) failed to demonstrate clear commitment to photography as fine art; 2) insufficient history of prof. exper. in fine art

Matter of Marhoffer N.Y.L.J., Jan 14, 1985 at 13 (Sup. Ct 1985)
• Petitioner is a professional photographer, whether he was in fact an “artist” within the definition is a determination left to respondent. • Problem is that it is unclear what criteria the department used to determine whether certification should be granted. • Ct states that “the need for more definite, objective guidelines is esp. pronounced…as consequence of denial will be… eviction”

Matter of Marhoffer N.Y.L.J. Jan 14, 1985 at 13 (Sup. Ct. 1985)
• Ct held that petitioner’s application is granted to the extent of remanding the matter for reconsideration under guidelines adopted by the agency. • On remand- Dpt of Cultural Affairs adopted formal regulations implementing Multiple Dwelling Law • Marhoffer resubmitted, agency denied certification, NY Supreme Court Upheld

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