Earlier this year, Apple Inc. agreed to pay Proview Technology Shenzhen—a China-based subsidiary of Taiwan’s Proview Electronics—USD 60 million to avoid a protracted legal dispute over the iPad trademark in China. This past May, the United States Court of Appeals for the Second Circuit heard oral arguments regarding Richard Prince’s appeal on the standing Cariou v. Prince (2011) copyright infringement decision, which held that Prince’s unauthorized use of French photographer Patrick Cariou’s photographs was not fair use under US law.
Intellectual property issues aside, it would seem that these two cases have little in common. Yet although they are different in medium and industry, they signal the kinds of forthcoming legal battles between Asian and American artistic communities over cultural and aesthetic property rights.
Although issues regarding the repatriation of cultural artifacts and art theft have been prominent in both the American and Asian legal and art communities for some time now, it is only a matter of time before disputes over artists’ rights pit Asian artists and art institutions against their American counterparts, particularly given the growth in arts infrastructure across Asia. Complicating these forthcoming disagreements will be the “differing” factors of culture, language, history and art history, as well as the legal issues regarding jurisdiction, applicable laws and enforcement. Indeed, it is a challenging and exciting time to be making contemporary art. This will only be heightened as different legal spheres merge.
Law plays a large role in the art world, but here I will briefly outline the field described as “art law,” concerning legal issues arising around the production, reproduction, exhibition, expression, dissemination, access and the sale and collecting of artworks and cultural objects. This includes the business aspect of these activities: management and administration, as well as intellectual-property rights, free speech, gallery and museum exhibitions and loans, condition reports, insurance, as well as customs and tax issues. On a different but related register are the civil and criminal laws affecting illegal importing and exporting of artworks, art theft,
art crime and forgeries.
Although art law has existed in various forms for a while now, the acceptance of juridical norms and legal regulations by the international art world has not. This disjunction is commonsensical if one accepts the traditional role of art as one that contests and subverts rules, regulations, codes and laws. However, this “Wild West” scenario is one that favored—and to a large extent still favors—those with power and wealth within the art world.
However, the emergence of and growing global access to the internet has given most everyone immediate access to vast and historically obtuse types of information. Individual artists and independent operators have benefited from this digital immediacy. They have begun to immerse themselves in economic theories, business transactions, legal theories and doctrines. What was once only available in the physical tundra known as law school is now available to paint-covered fingertips. This autodidact model has led to a more democratic approach to obtaining legal knowledge and one that may, through its enforcement, create a more just, regulated art world, but one that is also more controversial and embattled.
Increasingly, if one wants to play within the art world, one must have a certain understanding and grasp of the rules of the game. Let me be precise: by this I mean the growing need to understand the increasing legal norms that affect the production and reception of culture. Gaining a general understanding of the legal regulations affecting one’s practice in one’s own country is intimidating indeed. Even more daunting is the overwhelming complexity of laws in the international arena.
Nevertheless, some issues that affect any contemporary artist include intellectual property and moral-rights, oral and written agreements, the formation of business entities, as well as censorship and free speech. Most producers and owners of contemporary artwork will encounter intellectual property issues, which might include copyright and trademark laws, as well as moral rights and rights of privacy and publicity.
The production, exhibition, dissemination and ownership of artworks may also include oral and written contracts that encompass artist/gallery consignment agreements, work-for-hire agreements, studio assistant agreements and public/private commission agreements. At some point, and for liability protection, certain artists will want to create a legal business entity. For-profit galleries and nonprofit art spaces and organizations may also want to do the same. Contemporary art practices complicate the application of these legal rules to the game of art. As indicated above, the diversity and independence of cultural, ethnic, linguistic, historical and art historical factors further confound this matter.
One such scenario would posit a Chinese artist whose practice consists of photographing sculptural pieces located in public spaces and for public use. The artist also sells these photographs for profit. All of these activities—the photographing, exhibition and sale of the photographs—would be perfectly legal under Chinese copyright law so long as the photographs were used in a reasonable manner and scope. However, if the same Chinese artist were commissioned by a US institution or gallery to photograph sculptures in public space, within the US, and then exhibit these same photographs, the Chinese artist would most likely infringe the sculpture’s copyright owners’ derivative and reproduction rights under US copyright law. The artist would most certainly raise a fair use defense, but without being able to prove a “transformative” use—criticism, commentary or parody, for example—the Chinese artist would likely be found liable of copyright infringement under US law. If there was infringement, that artist would also be barred from selling any of these photographs and may be ordered to release any and all materials used to produce the images, and the photographs themselves, to the lawful copyright owners. In this scenario, it is quite clear that the Chinese artist’s practice would be altered drastically, if not completely eviscerated.
The increased presence of the law in artistic production, dissemination and reception can also mute and censor the rawness and creative energy of art. We must continue to depend on art as a viable form of “outlaw” behavior, which differs from illegal acts. Artistic practice will continue to test the legal doctrines of obscenity laws and the flexibility of contemporary fair-use standards under copyright law. However, there are certain issues, such as the current strength of moral-rights laws in the US, which law cannot address, much less remedy or make visible. In this regard, we must not allow art—either its discourse or its practice—to become subservient to law. We must continually seek ways in which art can address those issues that law cannot access or change. We must ask what the creative process can do to challenge and change regulations, bureaucracy, stagnation and corporate mindlessness. We must champion a creative process that furthers this kind of art.
The game of chess has for some time been a motif for art-making and a recurring theme in art-world praxis. If we want to imagine another simulated space and prepare ourselves for the upcoming negotiations, communications and battles, we would be well-advised to expand our board game repertoire to include Go (weiqi in Chinese), the strategic adversarial game that originated in China more than 2,500 years ago.