Articles on law serving specific factions of society? Example of art.
November 25, 2009 7:56 AM   Subscribe

Hi all, I am looking for articles or books on how the law serves specific factions of society at the expense of others. I am specifically interested in the issue of art fraud and forgery, but I would be happy to learn about more general overviews on this issue as well. Is there a "classic" book on how law is socially constructed to serve specific factions of society at the expense of others? Or maybe an overview on the sociology or anthropology of law that you highly recommend? Or some key terms I should be aware of? My intuitive understanding of the art forgery example is that laws to prevent fraud serve the interests of people involved in the art market (dealers, galleries, museums, auction houses) but hinder artists that work in historical traditions because the border between a "copy" and a "pastiche" and a "forgery" and a "fraud" is blurry. Thanks in advance for your thoughts!
posted by tnygard to Law & Government (13 answers total) 2 users marked this as a favorite
 
One classic book on how the law is constructed to serve some interests at the expense of others is Rousseau's Origins of Inequality. But that has little to do with art and everything to do with proto-Romantic responses to Locke. There's also Michel Foucault, all of whose work is primarily concerned with the construction of power in society, and who limned important concepts like the sub-altern. Structuralism is that branch of philosophy, which includes anthropology like Claude Levi-Strauss (who just died) and semiotics, as well as political philosophy like Chantal Mouffe.
posted by klangklangston at 8:12 AM on November 25, 2009


I took a "politics of law" course once that dealt with some of the issues you seem to be getting at, although it didn't deal with art law at all (it went for more classic examples of the law screwing one group of people but not another, e.g. powder/crack). I'll see if I can turn up any of the reading materials.
posted by Kadin2048 at 8:17 AM on November 25, 2009


"Law and economics" is a key term, referring to those who analyze the law in economic terms. One of the best known such commentators, and a very lucid/enaging writer, is Richard Posner. He has a more conservative tilt than you seem to be looking for, though. He does analyze the law as a system designed to benefit specific economic interests -- but he tends to describe this as a pretty good (or at least inevitable) thing that broadly benefits society. I don't know how much he's specifically commented on the niche topic of art law; however, there's a good chance Posner has commented on any given legal topic since he's a prolific author (in addition to being a judge and professor). You could try this book about intellectual property law, which he co-wrote. You can use Amazon's search function on that book to find references to, say, "forgery" (3 results -- I haven't looked at them closely).
posted by Jaltcoh at 8:19 AM on November 25, 2009


the border between a "copy" and a "pastiche" and a "forgery" and a "fraud" is blurry.

Surely it is only a question of representation when selling. (At least, as far as the law is concerned.) This is a Rembrandt, this is a copy of a Rembrandt. One costs more than the other, and you the artist/dealer had best not fudge your claims

It was this distinction that got Van Meegeren off the hook when he was hauled into Dutch court for selling "Vermeers" to Goering.
posted by IndigoJones at 8:33 AM on November 25, 2009


My intuitive understanding of the art forgery example is that laws to prevent fraud serve the interests of people involved in the art market (dealers, galleries, museums, auction houses) but hinder artists that work in historical traditions because the border between a "copy" and a "pastiche" and a "forgery" and a "fraud" is blurry.

Your understanding is false, and thus your research is irrelevant. I can paint a copy of the Mona Lisa--what I can't do is sell it as a Leonardo. That's the bright line between "copy" and "forgery" right there.

There are no laws in any country against copying paintings or imitating an artist's style, even in France, where the whole droit moral legal apparatus is far more complex than in any other country. If you go into an art museum, you can ask for a schedule of copying days, in which artists get permission to paint in the galleries.

What's against the law is misrepresenting a painting you made as a painting someone else made for the purposes of sale. Do you have one example of a painter who "works in historical traditions" being prosecuted for selling a painting that he or she had signed and acknowledged as his or her own work?
posted by Sidhedevil at 8:36 AM on November 25, 2009


Regarding Van Meegeren, he was actually convicted for fraud but found innocent of selling cultural patrimony to the Nazis--so saying he got off the hook is not entirely accurate. But another famous example of an artist that went to trial and who was aquitted is Alceo Dossena--he made sculpture in the style of ancient through renaissance masters.

In response to Sidhedevil's note that my question is irrelevant, I should point out that I am interested in the full range of art fraud and forgery issues and how they benefit specific groups of people along the chain in the art market and how people's lives are affected by such laws. While such a dichotomy between legal copy and illegal forgery may seem clear at first blush, the fact that deception can come in at any stage in an art transaction has resulted in numerous court cases. In some cases the artist was deceptive, in some cases the initial dealer, in some cases an owner re-selling. There is also the issue of altered paintings. For example, buyers often believe that a heavily restored painting is in good shape when in reality it is covered in new paint. There is also the issue of cultural perspective. In many parts of Asia, for example, it has been historically acceptable to sign copies of famous paintings with the original artist's name. In short, there is much to ponder on an anthropological level. But I am unsure how to go about tackling the legal implications.
posted by tnygard at 9:00 AM on November 25, 2009


the fact that deception can come in at any stage in an art transaction has resulted in numerous court cases

Absolutely. But those haven't resulted in groundless prosecution of artists who were "working in historical traditions"--they have resulted in the prosecution of the people who committed forgery and fraud by ascribing those paintings to a different artist than the person who actually painted them.

So there's a big flaw right in the center of the argument you seem to be making here, that laws against forgery "hinder artists that work in historical traditions." They don't.

In many parts of Asia, for example, it has been historically acceptable to sign copies of famous paintings with the original artist's name.

But that still doesn't result in the artist being prosecuted for forgery unless he or she represents that painting as being by the original artist.
posted by Sidhedevil at 9:14 AM on November 25, 2009


But that still doesn't result in the artist being prosecuted for forgery unless he or she represents that painting as being by the original artist.

Sometimes an artist who copies or makes a pastiche, truthfully signs their own name, and sells the art object is prosecuted for infringement of intellectual property rights--a form of art fraud. In other cases artists who make copies, sign them with the name of the original artist, and then sell them as the original work of that artist (intuitively a forgery) do so entirely legally. For example, "authentic" signed bronzes by Frederic Remington and Auguste Rodin were cast for years after the death of each artist. These sculptures were often made in sizes and colors that the original artist never intended, so they cannot be understood as simply continuing the intent of the dead artist. They were nonetheless sold as Remington's and Rodin's with the signatures of said artists. The key here is whether the work benefits people that the law favors. In the case of Remington and Rodin the law seems to favor the artists' estates. The law thus restricts artistic production, respresentation, and sales--all key parts of any professional artist's livelihood--in ways that favor some people over others.
posted by tnygard at 9:59 AM on November 25, 2009


But those haven't resulted in groundless prosecution of artists who were "working in historical traditions"

I'm not so sure of this. At least, the question did not seem to be about specifically criminal aspects of the question (forgery) but more generally about "the law", public and private. Specifically, what came to my mind was not fraud/forgery but copyright infringement.

But that still doesn't result in the artist being prosecuted for forgery unless he or she represents that painting as being by the original artist

No, but it may result in a civil suit for copyright infringement.

An enormous amount has been written about the intersection between copyright and artistic inspiration. I'm not all that familiar with the literature, but I do know of a couple law review articles. You may need to go to a university or law school library to find these. Also, I get the feeling that these are not precisely what you asked for, since these deal specifically with copyright and not with the broader question you asked, but they do address the tradeoffs between creativity and the marketplace within the copyright realm.
  • Michael Murray, Copyright, Originality, and the End of the Scenes a Faire and Merger Doctrines for Visual Works, 58 Baylor L. Rev. 779 (2006)
  • Jeffrey Malkan, What is a Copy?, 23 Cardozo Arts & Ent. L.J. 419 (2005)
  • Diane Leenheer Zimmerman, It's an Original! (?): In Pursuit of Copyright's Elusive Essence, 28 Colum. J.L. & Arts 187 (2005)
  • Julie E. Cohen, Copyright, Creativity, Catalogs: Creativity and Culture in Copyright Theory, 40 U.C. Davis L. Rev. 1151 (2007)
These are papers by legal scholars, and so assume a certain level of familiarity with the background, but I think they're readable by anyone. Cases are more technical, but might be worth investigating also. A particularly interesting case is Kim Taylor Reece v. Island Treasures Art Gallery, Inc., 468 F. Supp. 2d 1197. A photographer in Hawaii (well known for stylized and some would say kitschy poses of hula dancers) sued an art gallery for selling a stained glass piece which he claimed had been copied from his work. The pose in the glass piece was really quite similar to the pose in one of his photograph, but was also apparently a standard pose in the hula tradition. Was Reece trying to appropriate that entire tradition to himself?

The Reece case has citations to lots of other similar cases, including one featuring a photograph of Keving Garnett, if memory serves.
posted by lex mercatoria at 10:25 AM on November 25, 2009


Interesting question. I'm actually taking Copyright Law and Art Law this semester.

Your broader question is not one I am an expert in, but my general sense is you're looking for critical scholarship like that of Catharine MacKinnon.

As for issues in art law specifically, I bet you will be interested in the litigation in progress right now over the organization that authenticates Warhols. It is being sued for basically attempting to control the market in Warhols by marking authentic works as fraudulent.

A few other things you might find interesting:
This article
This case
This article

I am madly studying for exams, so I apologize for not coming up with more.
posted by prefpara at 10:40 AM on November 25, 2009 [1 favorite]


The discussion of the law helping one interest at the expense of others is at the crux of legal study in general. You will find such discussion in a survey of pretty much any legal topic. For art-related issues, the hot topic right now is copyright infringement. The big example I can think of right now is Shepard Fairey and the Obama image (an example of a debate in which there are great arguments on both sides, regardless of the fact that Fairey is a jerk/hypocrite).
posted by ishotjr at 12:09 PM on November 25, 2009


look up critical legal studies, folks like Morton Horowitz and Duncan Kennedy
posted by paultopia at 12:28 PM on November 25, 2009


Oh! I was just doing my reading (unusual but not unprecedented) and came across something that might fit your question. You want to research "trade-dress" infringement, a state law cause of action under which one artist can sue another claiming the defendant copied his style and pictorial themes so as to lead the public to believe the work was that of the plaintiff. Check out this case, for a start.
posted by prefpara at 6:45 PM on November 27, 2009


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