Agency, duty, property, scandal

July 21, 2009Duke Law News

When Brandeis University announced early this year that it would close its art museum and sell off its collection to offset dramatic endowment losses, it caused a minor tempest in the art world — and provided Professor Deborah DeMott’s class of Art Law students a terrific case study. What are a museum’s ethical and legal obligations to its donors? What limits are or should be placed on a museum’s use of revenue generated from the sale of artwork? And who has standing to challenge such a sale?

Such questions animated discussion among students in DeMott’s course this spring, offering new insight into the business of art as well as the interplay of bodies of law that many students previously encountered as discrete fields. The David F. Cavers Professor of Law, DeMott covers a broad range of topics in the course — understanding the aesthetic experience, characterizing artwork for legal purposes, art markets, moral rights and copyright, free expression, forgery, the structural organization of museums, ownership, and looting and repatriation of stolen art.

“What I loved about Art Law,” says Jillian Harrison ’10, whose undergraduate degree in archaeology and interest in ancient artifacts led her to take the course, “is that it pulled together so many areas of law that I didn’t expect — property, criminal law, constitutional law, contracts, international law.”

“I learned that ‘art law’ is a catchall term for a wide variety of legal problems applied to a group of similar clients with specialized needs,” says Katherine de Vos ’10, who is simultaneously pursuing a JD and MA in Art History and hopes one day to teach art history and law.

“These clients are not necessarily interested in lawyers who are art aficionados. They are interested in lawyers who understand their situations and can resolve their legal problems.”

For DeMott, the course is an opportunity to synthesize her passion for art with her scholarly interest in issues of agency, business organizations, and fiduciary duty. “I long have been interested in many aspects of visual art and market cultures,” she says. Her interest grew during her work as the reporter for the American Law Institute’s Restatement (Third) of Agency, the definitive summation of the law relating to legal relationships between agents and those they represent. The field, she found, was rife with cases involving art.

“When [former Associate Dean for Academic Affairs] Theresa Newman affirmatively suggested that I teach this course, I resisted because I’m not an intellectual property scholar,” she says. “But when I looked at the issues of agency — the material on art dealers, auction houses, intermediary relationships — it piqued my scholarly interests.”

In fact, DeMott was granted a research leave for the coming year to work on a book about relationships of agency and influence in art markets. “I’m a fan of biographies of artists, but I have always noticed how the legal perspective is missing,” DeMott says.

“It’s common for artists to have grievance after grievance with their agents or collectors, and because biographers are not lawyers they aren’t sensitive to the legal issues. Sometimes I read these books and think, ‘That’s a breach of fiduciary duty!’”

Sparking student scholarship
DeMott has inspired a similar passion in Sue Chen ’09, who took Art Law as a 2L. Chen developed her course paper into an article — published in Art, Antiquity and Law in June — arguing that museums should be held to the more rigorous “trust” standard of fiduciary care, rather than the corporate standard as some have suggested, in order to properly fulfill their roles as institutions as well as custodians of artistic treasures.

The trust standard assesses whether a board’s decision-making procedure is sufficient to satisfy its fiduciary duty. For museums, that standard is usually met through observance of the profession’s code of ethics, which requires certain steps to be taken during deaccessioning processes and prohibits the use of deaccession proceeds for non-acquisition purposes, such as paying for general operations. Violators face sanctions from peer museums, which may refuse to trade or loan artwork, as well as the potential loss of accreditation.

A corporate standard of care, Chen explains, would be far less specific, and might simply require boards to act in the best interest of the institution with little regard to the cultural value of the work they steward or the inherent responsibility of a museum to its public patrons.

“There is a good set of safeguards already in place,” says Chen, who will begin a clerkship with Judge Harris Hartz of the U.S. Court of Appeals for the 10th Circuit in the fall. She notes that for most museums, the threat of professional ostracism is enough to prevent violations. Sparked by questions surrounding the Brandeis University situation and aided by a student scholarship grant from Duke Law, Chen is now working on a scholarly paper exploring governance in the university art museum, a relationship complicated by the board’s fiduciary duty to the broader institution.

Pictures of a case
Assigning value to a piece of art is perhaps the course’s most difficult topic for law students, most of whom are well-versed in the basics of law but can be intimidated, at least initially, by DeMott’s inquiries into the definition of art, the aesthetic and stylistic properties of an art object, or the value of a disputed piece. That’s where the slideshows come in.

Session after session, DeMott clicks through a series of slides, showing artworks, museums, and even images of artists and art agents whose occasionally sordid stories she tells with delight. “One of my favorite parts of the class was seeing the slides and hearing Professor DeMott talk about the unscrupulous behavior of agents,” says Chen. “She has a very wry way of describing the skullduggery of these people.”

In one session, DeMott clicked through a series of paintings as she discussed controversy surrounding the Archibald Prize for portraiture, one of Australia’s most prestigious art awards. Since the generous cash prize was first awarded in 1921, it has sparked litigation over issues such as whether caricature constitutes portraiture and how to properly interpret the requirement that the winning portrait be “painted from life.”

In the 1970s, artist John Bloomfield received the Archibald Prize for his photorealistic portrait of a man he had never met, painted large-scale from a magazine photograph.

The trustees who administer the prize revoked it following criticism from other artists who argued that Bloomfield had not painted his subject from life. Six years later, another artist was widely thought to have used a photograph in painting a portrait of a friend. Bloomfield sued the Archibald trustees for reinstatement of his prize — and lost. The distinction: the winning artist’s photograph was used as an aid in painting someone he knew in life, and Bloomfield used a photograph as the sole basis for a portrait of someone he did not know.

DeMott says questions surrounding the determination of artistic value are challenging for students, but that “trying to understand why these questions matter so deeply is important to understanding what the law contributes,” she says. She likes to discuss the Archibald Prize in particular because it “helps us see how aesthetic tastes can shape how the law might be applied.”

Cultivating appreciation
While she knows that few of her students will ever litigate an art law case, DeMott hopes they develop a new appreciation for works of art and the variety of actors involved in sustaining the art world.

“I hope this course helps these prospective lawyers think about their social role,” she says. “Many lawyers are collectors or consumers of art or fiduciaries or counselors of cultural institutions. I hope they can see art as a complement to what they do or a refuge.”

At the least, DeMott’s students come away with a deep appreciation for their professor’s enthusiasm for and knowledge of a unique and complex topic.

“I greatly enjoyed Professor DeMott’s passion for the subject,” says de Vos, who is spending her summer studying the history and regulation of art markets in Italy. “She is incredibly learned in multiple fields, and I find her ability to merge law and art in coherent, fluid discourse very inspiring. I hope to teach similar material in the future, so I consider her a ‘teacher’ in more ways than one, since I am not only learning the material, but also how to convey it.”
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