Law, Visual Art, and Money

Abstract

This Essay explores explore areas where law and art interact, and where, it seems, money changes things. It discusses three areas of the law that encourage the creation of visual art, starting with the basic combination of property and contract, and moving to the more targeted law of copyright and, finally, the law specifically targeting the visual arts: the Visual Artists Rights Act (VARA). The essay then takes up the task of exploring the ways in which both the rights and protections offered by VARA and by copyright law are affected by commercial exploitation of visual artworks. It also examines the effect that commercial exploitation of works of art have in the context of rights of publicity. In the case of VARA, copyright’s fair use factors, and many states’ approaches to the limits on the rights of publicity, the taint of money or commercial exploitation is a cause for suspicion, inconsistent with romanticized notions of the pursuits of a true artist, and thus leads to less or no protection for the creation or the creator. In these contexts, visual art created for overt monetary gain, especially through pieces reproduced in multiple copies or used in promotions or advertisements, are just like any other commodity; no special solicitude or protection is to be given to those artworks or those artists. And, at the other end of the commercial spectrum, wild commercial success of an artist permits a court to assume a true artist, because the external art world has bestowed that judgment already and judges are relieved of having to make the determination. While judging what is art and who is a real artist is a task the law may be ill-equipped to handle, the proxy of money is only superficially appealing because it is based on an outdated and romanticized notion of who is an artist and, ultimately, what is art.

Keywords: Copyright, Art Law, Right of Publicity, Moral Rights, Visual Artists Rights Act

JEL Classification: K39