Saturday, April 20, 2024

Renegades of Art & Law

artlawAs many of you know I teach law school and art school courses in art law and art & Law. I also give quite a few lectures and seminars on art & law. During my classes and talks, I often refer to the scholarly and artist work of some of my peers, and after these classes or talks I am always asked for their names or the names of other thinkers or writings in these fields.

I’ve finally gotten around to writing this brief blog post to make this information more public. But I also want to use this opportunity to pay homage to the creative individuals who are working in this great field of art & law to make it more complex and engaging. These artists and scholars are also producing material that is complicating our understanding of art, its history and its criticism, which is one aspect I frequently insist on when I teach and lecture: that we must allow ourselves to be influenced by those “outside” of our immediate circle and comfort zone. To quote architect Richard Rogers, “You have to absorb and analyze influences. That begins in my opinion by having other people around you, and not just architects. There are still architects who think that architecture is about architecture. There’s much more to architecture than architecture.”

With that in mind, when it comes to the practice of law as well as sharp insights on the hot debates concerning copyright, deaccessioning and authenticity, Donn Zaretsky is definitely at the top of this field. Not only does he represent major artists, he also co-teaches art law at NYU’s School of Law and pens his thoughts on his Art Law Blog as well other online and print venues.

Recently I’ve had the pleasure of discussing the legal doctrines of contracts and property vis-a-vis art with Joan Kee, art historian at the University of Michigan who holds degrees in law (Harvard) and art history (NYU). Joan also has some writings online and is currently finishing up a book on art and law from the 1970s to the 1980s. Can’t wait to read this book!

Dan Brooks is another great thinker and practitioner. Not only did Dan represent Patrick Cariou in the now infamous copyright and appropriation case of this century, Cariou v. Prince, he also contributes strong observations as to how courts have gone off the rails when it comes to statutory interpretation and its impact on artistic production. For a good example, take a look at his Rectifying Fair Use after Cariou v. Prince: Reviving the Forgotten Statutory Text and Requiring that Unauthorized Copying.

If you’re into lawbreakers and heart breakers, then U.C. Berkeley School of Law scholar Sonia Katyal is the art law scholar for you. Primarily an intellectual property, art law, civil rights (including gender, race and sexuality), property theory, and technology/new media thinker, Sonia has a particular interest in how artists break and challenge the law in order to bring attention to law’s own fiction and oppression. Of notable interest is her law review article, Property Outlaws, c0-authored with formidable property scholar, Eduardo M. Peñalver.

If you’re of the appropriation should know no boundaries or borders, then NYU’s art law guru Amy Adler is for you. I’ve had the pleasure of visiting Amy’s art law class and debate the pros, cons and relevancy of current appropriation practices and moral rights, and Amy can certainly pose interesting, unique and non-Marxist challenges to current copyright and moral rights law.

This post would certainly be out of whack if Martha Buskirk was not in the mix. After all, Martha gave us the seminal texts on Tilted Arc and artistic authorship and ownership. One key aspect I appreciate much about Martha is that she’s not afraid to dive right into the complexity of legal texts without ejecting the artistic and aesthetic. A true gift indeed.

Earlier this year I had the pleasure of being on a panel at RISD on aesthetics and law. This is where I met Brian Soucek, law prof over at UC Davis School of Law. A scholar on antidiscrimination law and civil procedure, Brian is also generating interesting material on how U.S. Courts have defined “art” and, more importantly, on why the law should have a say on what is and isn’t art. Controversial, indeed!

These are some heavy-hitters, and they’re being joined by up-and-coming thinkers such as Nate Harrison (PhD, UCSD), who focuses on digital media and appropriation practices. I’ve had Nate lead seminars for the Art & Law Program and it’s been a real treat seeing him develop his arguments to include the ethics of cultural appropriation. Nate’s the guy that made a video on the history of the most appropriated riff of all time, which you can watch here, along with millions of other viewers. And here’s an interesting online article on The Pictures Generation and the U.S. Copyright Act. I look forward to seeing more of his work.

If you’re interested in a fresh approach to copyright and artistic practices, look no further than Colby Chamberlain (PhD, Columbia University), who approaches intellectual property via the artistic movement known as Fluxus and the artist-provocateur, George Maciunas. If you think, as I do, that copyright/appropriation conversations are generally tired and predictable, take a look at Colby’s recent work for guidance on how bureaucratic and legal procedures are used to inform aesthetic practices.

A more controversial approach to appropriation and copyright is voiced by artist and arts lawyer, Alfred Steiner. Alfred is one of those rare artist-lawyer types who does not shy away from controversy or thoughts on art and copyright.

One last note. I may not agree with all of their positions or viewpoints regarding art and art & law, but it is precisely the availability of multiple positions that makes this growing field of art & law that much more interesting to me than traditional art history and art criticism. When we are forced to think about art in relation to the vast philosophical discourses of law, I think you can clearly see why so many artists, students, lawyers and scholars are interested in engaging with art & law. I trust you agree.

In no way is this “list” exclusive, so if I’ve managed to exclude anyone it is only because of my ignorance and not intentional.


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