Outline of International art and cultural heritage law

POLICY IS VERY IMPORTANT:
– What is at stake?
– What is the big picture?
– How will this affect the artist? The public?
– What are the ramifications?

I. What is Art?
A. Difficult question to answer – There must be an original expression art does not exist unless it is expressed! Determinants of art:
1. Renown of the artist
2. intent of the artist
3. expression of idea
4. originality
5. usefulness
6. monetary value
7. opinions of experts, dealers, museums, etc.
8. subjective view of courts, et al.
B. Not the same question as what is good art? This is subject to opinion and can change over time.
C. Types of art:
1. Fine art mostly aesthetic
2. Applied art combination of aesthetic and functional
3. Utilitarian art mostly functional
4. Architecture – buildings
D. Mazer v. Stein:
1. Ps sued for copyright violation when Ds used their statue of dancing figures to make lamp bases.
2. Issue: Can a lamp manufacturer copyright his lamp bases?
3. HELD: Yes – the lamp bases are copyrightable, even though they are utilitarian.
a. Congress intended for the work to be copyrightable they did not expressly state that a lamp base is copyrightable, but it fit into the category of “works of art.”
b. Encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors.
4. Douglas, Concurring: Asks whether the statues satisfied the constitutional criterion of being a “writing” in order for copyright protection to be granted.
E. An Odd Bird Giry
1. Brancusi’s Golden Bird statue arrived in NY from France for an exhibit but was stopped by Customs officials who refused to exempt it from customs duties as a work of art. Brancusi v. U.S. was filed to appeal the custom’s decision. The issue of abstract art was on trial.
2. HELD: it is the original production of a professional sculptor and is in fact a piece of sculpture and a work of art that is entitled to free entry.
a. heavy reliance on the Judge’s personal taste talks about its beauty a lot
b. however, the law still does not know how to define art
3. POLICY:
a. Government does not want it to be considered art so they can make money on it (40%)
b. Incentive for artists if they are charged at customs, they would not want to expand into other countries.
c. May also mean consumer would have to pay more to purchase the item. If they have to pay for the customs, they may not want to purchase it.
II. What is Cultural Heritage? Cultural Property?
A. A culture is the external manifestation of a particular group or segment of population. It may be predominately defined by its ethnicity, language, religion, or particular history.
B. Examples of cultural heritage:
1. Gustave Klimt’s Portrait of Adele Bloch-Bauer
2. The Partheon (Elgin) Marbles
3. The Bamiyan Buddhas
4. The Euphronius Krater
5. Fred and Ginger, Prague, Czech Republic
C. Coombe’s philosophy:
1. Art, culture, and Culture:
a. Culture: the universal heritage of humankind
b. culture: in the plural anthropological sense in which different cultures lay claim to different properties
2. “Decontextualization” v. “value:
a. when ethnographic and archaeological objects, for example, become viewed as art when they are placed in museums and private collections outside of their origin
b. we need to view objects within their cultural contexts and not merely as objects to be admired and divorced from that context
3. “cultural property” dichotomy:
a. “culture” describes the relationship between a group and the objects it holds important.
b. “property” in its traditional sense of focusing on Legal Rights of individuals with respect to an object is foreign to this notion
i. degree of ownership for private property?
ii. limitation or elimination of the market?
c. instead, the internationally accepted term is “cultural heritage”
D. Cultural Heritage or Cultural Property Prott and O’Keefe
1. Cultural property belongs to the country ; negative connotation associates cultural objects with ownership, rights of the possessor to exploit, alienate, or exclude
2. Cultural heritage protection of the heritage for the enjoyment of present and later generations the possibility of access for persons other than the owner
3. This terminology is politically sensitive
E. Two Ways of Thinking About Cultural Heritage Merryman (more on Merryman below)
1. What are the “two ways of looking at cultural property?”
a. “components of a common human culture” should be protected as cultural property
i. advocates a cosmopolitan theory of cultural property same as cultural internationalism
b. “part of a national cultural heritage”
2. International law two goals:
a. Protection of art from destruction
b. Protection of art from illegal trafficking
3. There are two types of markets throughout the world:
a. source nations the countries that HAVE the cultural property
i. Mexico, Egypt
b. market nations the countries that have the money and want the cultural property
i. US, Canada, UK
III.Government Support of the Arts
A. In many other countries, the government provides direct support both to artists and to arts institutions. In the US, government support is much more limited.
B. Big question: whether the government violates the First Amendment through its selection of which artistic speech to subsidize?
C. National Endowment for the Arts v. Finley
1. NEA was created to provide government funding for the arts and artists. Artists filed applications to receive the funding this case is about controversial pieces that were denied government funding
2. Issue: whether the government/NEA was violating the constitution by discriminating against these artists for the content of their pieces
a. Section 954(d)(1) of the National Foundation on the Arts and Humanities Act, 20 U.S.C. § 954(d)(1) requires that the chairperson “must take into consideration general standards of decency and respect for the diverse beliefs and values of the American public.”
b. Ps challenged the statute on the basis of the First Amendment (freedom of expression) and vagueness.
3. HELD: the statute is constitutional and has been constitutionally applied just because artists are not getting government money does not mean that the government is preventing them from freedom of expression
4. POLICY:
a. government:
i. selective funding
ii. taxpayer’s funding difficult question
b. artists:
i. viewpoint discrimination
ii. ability to express themselves/censorship
D. Brooklyn Inst. of Arts & Sciences v. New York & Rudolph Guiliani
1. The Mayor and the City of NY decided that a number of works in the Brooklyn Museum exhibit were sick, disgusting, and offensive to Catholics as an attack on religion. The City withheld funds already appropriated to the Museum for operating expenses and maintenance (operating budget). The Museum filed suit seeking injunctive relief due the City barring their exercise of their First Amendment rights.
2. HELD: The City’s motion to dismiss the Museum’s claims is denied the Museum established irreparable harm and a likelihood of success on its First Amendment claim its motion for a preliminary injunction is granted.
3. POLICY:
a. burden on museum
b. chilling effect/inhibiting effect on museums and artists
c. economic effect on NYC
d. funding it was for operations/general funding, not exhibits
IV.Moral Rights Doctrine
A. Moral Rights before the Enactment of the Visual Artists Rights Act
1. Introduction:
a. Authors also have rights in the artistic work that are not pecuniary or based on copyright law such rights are integral to the work itself and come from the notion that an author’s own personality is bound up in the work.
b. These rights remain with the author, even after the work itself and copyright in the work have been conveyed.
c. These rights include:
i. the right to demand that the work be attributed to the artist
ii. the right to maintain the integrity of the work
iii. the right to have the artist’s name removed if the work becomes mutilated and no longer represents the author’s original creation
d. Common law countries reluctant to recognize due to the interference with the property rights of the purchaser.
e. Many European countries, however, recognize moral rights.
2. Moral Rights in the Absence of Statute
a. Before Congress enacted VARA in 1990, most attempts by artists to gain recognition of moral rights were dealt with as a matter of contract law.
b. Any additional recognition of an artist’s continuing rights in a work after its conveyance were considered to violate the owner’s property rights.
3. State Statutes Protecting Moral Rights
a. These statues vary in their purpose, the rights granted, the types of art works protected, and the remedies provided.
b. Wojnarowicz v. American Family Association
i. (case occurred BEFORE VARA enacted)
ii. Artist created sexually explicit art to raise AIDS awareness. AFA sent out pamphlets including reproduced small portions of his works. P claimed his rights were violated under the NY Authorship Rights Act. He argued that this is not how his work was supposed to be displayed, and that it was misinterpreted.
iii. HELD: by attributing the modified images contained in the pamphlet to P as his works of art, Ds have created a likelihood of damage to his reputation as a serious artist and to his earning potential, and have violated the NY Artists; Authorship Rights Act.
B. The Visual Artists Rights Act of 1990
1. Introduction
a. In 1988, the US joined the Berne Convention protects the rights of integrity and attribution and requires that the rights must last at least as long as an artist’s economic rights.
b. Congress enacted VARA in 1990 to come into compliance with the Berne Convention .
c. The rights protected under VARA include the artist’s right to claim authorship and to disclaim authorship in appropriate circumstances, including mutilation or modification of the work “which would be prejudicial to the artist’s honor or reputation” and the “destruction of a work of recognized stature.”
d. VARA applies to:
only works of visual art – defined as “a painting, drawing, print, or sculpture” that exists in a single copy or in a signed and numbered limited edition of no more than 200 copies, or “a still photographic image produced for exhibition purposes only” also existing in a single copy or signed and numbered

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Berne Convention, Common law, Legal Rights, country.