Volume 33, Number 2, Winter 2017
by Pamela D. Bass
At first glance Alexandra Darraby’s Art, Artifact, Architecture & Museum Law is intimidating: two volumes totaling over 2500 pages. However, it soon becomes very comforting and confidence building. The treatise is a “must have” for attorneys, lawmakers, judges, agencies, insurance companies, artists, appraisers, museum curators, and art enthusiasts across the globe. It would also be a great “hornbook” for law students looking to study or research a large variety of topics in the legal and cultural aspects of art.
The treatise rightfully considers the law of the arts as its own discipline. The 15th Edition captures the key legal issues of creation, ownership, distribution, culture, access and display, preservation, and control. Each rule and regulation is considered through the lens of policy considerations, economics, and culture.
Although the focus of the treatise is on state and federal law in the United States, it includes most of the international conventions and treaties to which the United States is a party. In addition, the treatise shares relevant international perspectives and laws.
The amount of information, expertise, and authority on the pages is tremendous. Delving into the work best illustrates its value. Consider, for example, the issue of Art Fraud. Art Fraud is important to nearly every participant in the business of art and in the consumption of art.
Chapter 11 of volume I covers Art Fraud in great detail.
The Chapter begins with a table of contents of 60 major issues. The introduction (§11:1) outlines the major issues involved with Art Fraud: Publications and Sales; Value, Authenticity; Theft, Conversion; Forgery, Counterfeiting; and Federal Sentencing Guidelines. Section §11:2 details what the courts have determined to Constitute art fraud, but also includes a hidden gem—a checklist of nine typical features of the fraudulent art deal. The checklists that Darraby adds throughout the treatise can help practitioners develop best practices and preventative habits in resolving problems after the fact.
Sections 11:3, 11:4, and 11:5 investigate authenticity, forgery, and fakery respectively. Key to the discussion is the vague, yet subtle differences of defining these terms. This is a major point since legal definitions attach and impact means of filing a claim and the remedy sought: what should be filed under state law or federal law, and what should be a civil or criminal claim? Helpful to the reader are the various examples of what constitutes each category. A discussion of fitting the definition of a statute is key in determining if a remedy is available. This is where Darraby’s work shines: her insight and experience is invaluable and will save lawyers and other time and money as they advocate for their clients.
The treatise continues by discussing the role of attribution as a disclaimer about authenticity. It then goes into detail on the Federal Trade Commission (FTC) (§§11:7-11:14) and the Racketeer Influenced and Corruption Organizations Act (RICO) (§§ 11:15-11:21). Two items that assist comprehension throughout the treatise and supply additional research avenues are the referenced cases and the West Key Numbers. Although the information supplied is more than sufficient, the two additions allow those who need additional information several quick resources.
The chapter then distinguishes the separate statutory and regulatory scheme that addresses “cultural property” like the state tort of conversion. The discussion then turns to the art trade and fraud claims that have been made at several stages: authentication, valuation, delivery, sales, appraisals, and agreements (§§11:25-11:31).
The next major topic centers on the art applications of the National Stolen Property Act (§§ 11:35-11:45). After a thorough analysis of the act and key cases, Darraby analyzes the government’s burden of proof and how the minimum value of $5,000 can be determined and proven. The Chapter closes with a review of mail and wire fraud, federal laws, state laws, rules of evidence, and fourth amendment rights.
After studying the chapter several things became clear. First, a large of amount of information was both synthesized and simplified in an organized and easy to understand manner. Second, a variety of sources of law were brought together to show their relationship and interplay. Third, the reader is reminded that in applying the law each case is fact and circumstance specific and that the value added to any analysis will be substantial by understanding the background and particulars of the issues addressed.
I would be remiss if I did not point out the detailed attention given to Intellectual Property throughout the book but particularly Copyright law in chapter 7. The treatise goes beyond the history of visual art and copyright law to detail art specific issues like the idea/expression dichotomy and imagery. It covers registration for various types of work and looks at originality for a variety of types of art including functional objects.
Any artist, lawyer, or entity looking to enter into a work for hire situation will benefit greatly from this resource. It reviews the display of art by the owner and commissioned art. It adds an important discussion of the display of art on the Internet and whether it infringes on the display right of the owner. The detailed discussion of 17 U.S.C.A. § 107 (Fair Use) is invaluable. The treatise summarizes the statute, references key case law, and supplies key insight into each of the four factors: purpose and character of use; the nature of the work; the amount and substantiality; and the effect on the market.
The discussion on architecture captures an aspect of copyright law that is often neglected. It also shares the perspective of the author in protecting artists and the value of their work. Darraby states: “Copyright is a portfolio investment and should be managed like other work product and certificates of registration should be maintained like other important business and legal records. Copyright is an important part of architectural practice, its recurrence as common as its expanding range is broad….Best practices are for architects to manage copyright as an economic asset with clients, partners, employers and others, and to incorporate it as creative asset in the architectural portfolio.” (§ 7:128).
Darraby’s work will not sit on a bookshelf. All of those involved with the business of art and dealing with the art world will want it at their fingertips as they make daily and long-term decisions. Art, Artifact, Architecture, & Museum Law will help each professional bring a “value-added” componentto the field.
About the Book Review Author
Pamela D. Bass is an associate at Thomas, Drohan, Waxman, Petigrow & Mayle, LLP in New York where she is involved in collective bargaining in both the public and private sector, employee discipline matters, litigation matters, and assisting clients with policy formulation and concerns, including polices on gender equity. Ms. Bass is also involved in sports law as it relates to educational institutions. Ms. Bass, prior to receiving her J.D. degree, has nineteen years of experience in higher education and intercollegiate athletics, serving as a NCAA Division I Head and Assistant Women’s Basketball Coach. She has extensive experience in NCAA compliance, and served on university and athletic conference committees on leadership, gender equity, and diversity.
Author: Alexandra Darraby
Published in Entertainment & Sports Lawyer, Volume 33, Number 2, Winter 2017. © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.