When I entered this field, it was somewhat surprising for me to find out
that many artists do not know the existence of many legal issues.
Consequently, when they run into legal problems, they are ill-prepared
and often forced to let go of their rights. It is especially true since the
amount involved often do not warrant formal legal actions. The purpose
of this article is to provide a partial list of legal issues to the
artist friends. Comparatively, gallery owners and art collectors are
more familiar with legal issues.
First, art is an intellectual product, covered by intellectual property
laws, including copyright (e.g., what constitute infringement of other
people's rights), trademark (as artists and galleries rely heavily on
their reputations, it is important how they label, i.e., trademark,
themselves and protect their trademarks), and moral rights (a series of
rights, such as right of disclosure, or droit de divulgation, are
covered in this category). Many states, such as California, have special
statutes on moral rights.
As art is a product of thought, it could easily offend people. As often
the case in the art field, such legal issues often affect not only
artists, but galleries (as galleries can also be sued) and collectors
(as these issues affect the price) also.
Secondly, contracts are involved in selling artworks, e.g., direct
sales, consignment, and sales via galleries. Other contracts are needed for
representation. Ignoring this field often increases the business risks.
Third, the sale of artworks often contains various guarantees and
insurances, covering issues from the risks of shipping damages to counterfeits. It is
necessary to be clear who would bear such risks. Auctions bring their
own legal issues.
Third-party guarantee is one of the hot topics in today¡¯s art market. It
may be helpful in certain circumstances.
Fourth, as art, in effect, is an investment, taxation planning and
inheritance are frequently issues. Trust is often a legal tool in this
Fifth, when an art piece crosses national borders, international law is
Sixth, special issues, such as whether the art has been stolen
previously, may impact the rights of the buyers.
Seventh, many states, such as California, have additional statutory laws
regulating the art market.
As the first step of protecting the rights of artists, galleries, and
collectors, they, at least, need to be aware of the existent of legal issues involving the art field. Certainly, properly
handling those legal issues is another matter.
As the author, Attorney Pujie Zheng, specializes in intellectual
property and commercial law, and is himself a painter, he is uniquely
suitable in the art field.