Law: Selected Problems - Seminar
4:10 - 6:10 pm
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This seminar will selectively explore how the law shapes and constrains the
visual arts. The course will examine a broad spectrum of problems involving the
interaction of art and the law, both historically and in contemporary society.
Emphasis will be given to issues such as moral right and droit de suite
statutes; legal issues that arise in the art market: stolen art, forgeries,
authentication, agreements for the transfer and commission of works of art;
valuation problems related to authentication and artist estates and the aspects
of purchase, sale, and charitable contribution of works of art; repatriation of cultural objects and the illicit international trade
in art; and ethics and
legality in museum policies. The class will frequently consider contemporary art
controversies as a means of examining these broader issues.
Requirements for all students include: regular attendance, active
participation in discussion, preparation of weekly discussion questions (not
answers), a newspaper editorial on an assigned topic to be debated in class
[examples here], and a research paper.
The seminar requirement can be met with a paper of twenty to twenty-five pages but
students are encouraged to write a more substantial paper for an additional
credit that can be used to satisfy the School's Written Work Requirement.
In researching for and writing your paper, be ambitious. In principle, you
should try to write something worth publishing. Papers written in satisfaction
of the Written Work Requirement should be written for a professional journal
like the Harvard Law Review, the Copyright Law Symposium, or the International
Journal of Cultural Property.
As an alternative to a research paper, students may prepare two shorter
papers. One should be a book
review from a list of titles selected by the instructor. The second could be a report on one of the classic cases in the history of art
law or an
investigative report prepared from interviewing people in the art world about
contemporary problems. This report should be written but might also be presented
orally to the class. Examples of such reports could include the following:
- With the proliferation of art images on line and in museum shop
merchandise (t- shirts, coffee mugs, etc,), dependence on access to the
original work declines. Does this make the quality of the reproduction more
important? Does a poor reproduction pose a moral right problem? Talk to art
historians, museum curators, museum shop directors, on-line companies,
- Why return objects to foreign nations when there is no legal obligation to
do so? If it is valuable and belongs to the museum (or the collector), why
give it away? In the case of a museum, does it have a duty to retain such
objects? Talk to people at the Getty Museum; Penny Pittman Cobey, Acting
General Counsel and Secretary of the J. Paul Getty Trust, is an HLS grad.
Were the returns in fact gratuitous, or were they parts of deals and/or
investments in good will? Get facts and opinions of those directly involved.
- The Art Loss Register. This recently established (about ten years ago)
register of stolen/lost art is intended to provide an information base that
will bring security to art transactions. But it is not the only such
listing. Talk to people in the art trade--dealers and auction houses--and to
people at the ALR and IFAR to get their views on how well it is working. Do
they see a problem with this important function being in the hands of a
- Invent a work of public art (a sculpture or a mural, for example) and
explore the possibility of installing it in some prominent public place (a
park, a plaza, a public building) in Cambridge or Boston. Identify and
explore the practical, political and legal considerations, the key people
and institutions, etc. Once installed, what will be the status of the work?
Who owns it? Who has responsibility for its maintenance? Who is liable for
injuries it causes? Suppose it is poorly maintained; can you, the artist, do
anything about it? Suppose it needs repair; do you, the artist, have a right
to repair it? Should you? Suppose the city wants to move the work to a less
prominent site or put it in storage. Can you do anything to stop it? Suppose
the city decides to dispose of the work. What can you do? Prepare an account
of your adventures and encounters in seeking answers to these questions.
- The worldıs great museums all contain art acquired in ways that might be
prohibited by international law today, although at the time the acquisitions
were not illegal. Now these museums face demands from source nations for
return of these objects. How should they respond? Talk to people either the
Boston MFA, the Fogg, or the Peabody and get their views. Do they see
conflicts with their professional codes and with their legal obligations. Do
they ever initiate deaccession of other items? How concerned are they about
Other topics may be
selected with permission of the instructor.
There is no text for this course. The course web page (http://courses.law.harvard.edu/spring_01/art_martin/)
will contain the list of readings, most of which will be available on the web.
Where documents are not available on the web, I will distribute them in class.
Since the course covers a wide range of doctrinal areas, there are other
information sources that you should know. A fairly substantial introduction to
these can be found in Sources for Researching Art Law prepared by Deanna
Barmakian, Reference Librarian, February 2000, which is on the course web site.
I want to highlight a few of these:
- Leonard D. DuBoff & Christy O. King. Art Law in a Nutshell (3rd ed.
2000). LOCATION Law School: Reserve KF4288.Z9 D8 2000. Amazon.com lists this
at $21.45. DuBoff is an Oregon lawyer who became blind at an early age but
has become a leading practitioner in this field. A good, introductory
- Ralph E. Lerner & Judith Bresler. Art Law: the Guide for Collectors,
Investors, Dealers, and Artists (2nd ed. 1998). LOCATION Law School:
Reference KF4288.Z9 L47x 1998. 2 vols. $145.00. Lerner and Bresler are still
married after producing the absolute last word on the topic; coverage is
very complete though largely limited to US law. Would make a good birthday
present for anyone hoping to specialize in this field.
- John Henry Merryman & Albert E. Elsen. Law, Ethics, and the Visual
Arts (3rd ed. 1998). LOCATION Law School: ILS KF4288.A7 M47 1998. $270.
Student paperback edition $85.00. This would be a great textbook but the
price is simply too steep for a seminar. However, it can also function very
well as a resource, both for understanding particular issues and for
selecting paper topics. If you want to purchase a student edition, I will
try to arrange.
- Art News LOCATION Fine Arts: FA 1.516 (partially on the web at
www.artnewsonline.com/). A monthly magazine for the art community that
always includes several pieces on current legal issues in the field.
- Art Newspaper LOCATION Fine Arts: FA7.75.5 (on the web at
www.theartnewspaper.com/). A monthly journal published in London that is
even more comprehensive on current controversies. The web site, while not
comprehensive, is more extensive than Art News.
Arts Journal (www.artsjournal.com/) is a weekday online digest of some of the
best arts and cultural journalism in the English-speaking world. Each day Arts
Journal combs through more than 200 English-language newspapers, magazines and
publications featuring writing about arts and culture. Direct links to the most
interesting or important stories are posted every weekday beginning at 5 AM PDT
on the Arts Journal news pages. Stories from sites that charge for access are
excluded as are sites which require visitors to register, with the exception of
the New York Times.
Arts Journal's editor is Douglas McLennan, formerly an arts columnist and
arts reporter with the Seattle Post-Intelligencer and the Seattle Weekly.
Arts Journal also publishes the weekly Arts Beat column every Monday morning,
a weekly annotated summary of what is being written about in the arts the
previous week. Arts Beat is available free by e-mail subscription delivered to
you every weekend. To subscribe, send an e-mail to Artsbeat@ArtsJournal.com
and write "Subscribe" in the Subject line.
Unless otherwise noted, all material is Copyright İ
2001 by the President and Fellows of Harvard College. All rights reserved.
Last updated on 02/08/01 by Terry Martin.