ALSW Book Review: Book Review: Art Law: Cases and Controversies

Several times each month, we are pleased to republish a recent book review from the Canadian Law Library Review (CLLR). CLLR is the official journal of the Canadian Association of Law Libraries (CALL/ACBD), and its reviews cover both practice-oriented and academic publications related to the law.

Art Law: Cases and Controversies. By Paul Bain. Toronto: LexisNexis Canada, 2022. xxii, 362 p. Includes illustrations, table of cases, and index. ISBN 9780433509653 (softcover) $170.00.

Reviewed by Susan Barker
Librarian Emeritus,
University of Toronto

As author Paul Bain writes in his introduction to Art Law: Cases and Controversies, the last time a new book on Canadian art law was published was 1980. At the time, Aaron Milrad and Ella Agnew’s The Art World: Law Business and Practice in Canada identified the “photocopy machine” as the next big threat to copyright protection. How the art world has changed! Forty years after the publication of Milrad and Agnew’s book, the law has—in addition to the classic legal issues of copyright and moral rights—newer matters like NFTs (non-fungible tokens), rapidly advancing technology, social media, and changing social mores to contend with. Looking at this assortment of issues, it is clear that art law is not one cohesive body but is woven through several areas of law, including intellectual property, taxation, copyright, fraud, and censorship, as well as being a reflection of the current social environment. This text provides a modern look at these issues and how they affect artists, collectors, and cultural institutions.

The author is a lawyer who specializes in entertainment, media, and intellectual property law, and is also active in the visual arts community, having served on the boards of several arts organizations and galleries. Eleven other experts, comprised of experienced practitioners and academics, each with a particular knowledge and enthusiasm for the subject, have also contributed chapters. Each contributor’s biography also mentions their own favourite work of art.

Despite this text being entitled Art Law: Cases and Controversies, its scope is limited to the visual arts—painting, sculpture, and photography—and does not include issues specific to the performing or literary arts. The text focuses on the Canadian and American experience, although there are some references to British and European perspectives for history, context, and comparison.

Each chapter begins with a vignette from popular culture or a leading case that draws the reader into that chapter’s topic. These include the question of who owns the copyright in a photograph of Eddie Van Halen’s guitar, whether the Eaton Centre had the right to install Christmas ribbons on Michael Snow’s Canada geese installation (called Flight Stop), and whether Naruto, the “selfie” macaque, has the right to copyright in his own image. Banksy’s failed attempts to copyright his work and Gustav Klimt’s stolen Portrait of Adele Bloch-Bauer I also make an appearance. These examples and their accompanying images are very effective in illustrating, both figuratively and literally, the unique legal issues being discussed, creating a narrative thread that makes the text engaging, accessible, entertaining, and, to some extent, gossipy. However, this does not mean the text is frivolous. On the contrary, historical context, case law, and legislation provide a serious, practical, and academic examination of the issues at hand.

The text begins with a clear and comprehensive overview of the two traditional aspects of art law in Canada and the United States. The first is copyright. In the Canadian chapter, Bain traces the history of copyright, from its origins in 18th century England to the modern-day Copyright Act, and looks at how to establish copyright, how it is protected, and how it has been applied by Canadian courts. The American chapter follows the same pattern, including the history of the protection of copyright in the U.S. Constitution and the current Digital Millennium Copyright Act. Of particular interest to academic librarians are the sections on fair dealing and fair use that appear in each respective chapter.

The second traditional aspect is the concept of moral rights. Moral rights enable artists to preserve the “unique expression of [their] work” (p. 37), meaning that works of art cannot be distorted, modified, or mutilated (p. 35) without the permission of the artist. The artist retains their moral rights even after the sale of a work, which is why Michael Snow was successful in getting the festive ribbons removed from Flight Stop at the Eaton Centre.

Woven throughout each chapter is an awareness of the current social considerations that affect art and art law. Chapter 12, “Censorship and the Visual Arts,” provides a comprehensive overview of censorship in Canada, including state censorship on the grounds of obscenity, child pornography, and hate speech, as well as curatorial censorship, which occurs when art organizations attempt to manage public outrage and political sensitivities with a form of pre-emptive self-censorship by withdrawing potentially controversial pieces of art from display. Curatorial censorship is a specific response to the way in which obscenity charges were used as a weapon in the culture wars of the 1980s and ’90s. As the author notes, “artists, particularly those from historically-marginalized communities—LGBT, people of colour, and/or women” (p. 293) were disproportionately challenged on the grounds of obscenity.

Chapter 11, “’Tis Mine and I Will Have It … Provenance and Restitution Under Quebec Civil Law,” looks at how, according to Québec’s civil law, the ownership of a work of art vests in the possessor after a certain period of time, even if that work of art is stolen property. This model of ownership contrasts with the common law, where the rights of the original owner are favoured and is particularly problematic when looking at “cultural objects stolen from First Nations, family heirlooms confiscated during World War II, and historical treasures from cultural institutions” (p. 276).

Chapter 13, “Resale Payment Rights for Artists,” proposes that legislation be enacted to ensure that artists receive payment whenever a work is resold. As a justification for this proposed legislation, the author uses the example of several female artists whose work was undervalued for most of their lifetimes. One of the artists in question, Carmen Herrera, had her first solo exhibit at the age of 101, vastly increasing the value of her work, and yet has “no legally enforceable right to a share in resale proceeds when current owners resell [her] works” (p. 307) at a much higher price than that of the original purchase. The author notes that female artists and artists of colour were often dismissed by critics and galleries in their early careers and that resale payment rights would address some of these inequities.

Further chapters examine trademarks (including NFTs), taxation of cultural property, art fraud, the restitution of Nazi-looted art, and particular legal issues around photography that include privacy, ownership of images, and the male gaze and exploitation of women.

Art Law: Cases and Controversies is accessible to a broad audience. Its writing makes it a valuable resource for artists, collectors, and art institutions looking to understand their rights and responsibilities. Legal practitioners will benefit from the real-world aspects of this examination of art law, and academics will benefit from the additional social and cultural commentary.