黑料不打烊

Founder Irina Tarsis (second from right) with Center for Art Law staff. Courtesy of Center for Art Law

黑料不打烊: How do you think art law can influence or contribute to the broader cultural landscape?

Irina Tarsis: The study of art law serves as a reminder that the value of art and cultural heritage is not just economic, but it is sentimental, cultural, historical, and even political. As a society, we should aim to balance competing interests surrounding the economic rights of visual artists against other property rights in the broader community. Think about street art, for example. On one hand, murals and other graffiti constitute a veritable art form – acceptable and ubiquitous, copyrightable, commercially desirable, at times even collectable. On the other hand, there are legitimate concerns about vandalism, trespass, violation of personal property. Thinking about creative endeavors and industries makes it clear that art law plays an important role in shaping our cultural landscape, defining boundaries of permissible.

MA: How has the digital age impacted art law? What unique challenges or opportunities has it created? Has it redefined or reshaped the laws of copyright or other laws that apply to art (intellectual property) in any way? 

IT: The digital age certainly plays a role, and we are seeing new art law developments, but they do not affect everyone equally. Some attorneys have never heard about art law, and some artists or collectors could care less about the digital imprint on their work and habits. Collecting digital art is perhaps easier than sculptures or other sizable works, but there are challenges such as remembering wallet passwords for NFTs or updating specific hardware to keep files accessible. 

The U.S. Copyright Office, for example, has spent a lot of time thinking about digital innovations and looking to suggest how to regulate and protect digital art. In 2024, Center for Art Law submitted a comment to the Copyright Office asserting our position that works produced solely by AI should not be eligible for copyright protection.

MA: What about conceptual and ephemeral works? How does the legal system adapt to address these complexities? 

IT: Great question. These works are hard to protect under existing copyright law. Lawyers and judges do like opining about creativity and whether existing laws can protect novation, or we need new laws to keep up with the times. Copyright protection in is a great example of the complexities involved in protecting something natural and ephemeral. 

Conceptual artworks like these usually sell with a certificate from an artist to protect their value and facilitate transfer to third parties. A law that came into force in 1990, the (“VARA”) has been used to argue for greater protections for visual artists in the US who have only limited artists rights. 

MA: Is there a recent case that’s garnered a lot of public or legal attention? If so, why do you think it resonated so strongly?

IT: One such case is Accent Delight Int’l Ltd. v. Sotheby’s, 18-CV-9011 (S.D.N.Y., Jan. 30, 2024), where the NY Federal court cleared Sotheby’s of charges of aiding and abetting in defrauding a Russian oligarch residing in Europe by his Swiss art advisor. Colloquially known as Rybolovlev v. Bouvier, this case is a saga that involves a businessman who privately purchased Salvator Mundi believing his art advisor was helping him get the best price for the painting of Jesus, attributed to Renaissance artist Leondardo da Vinci. It turned out that the advisor was acting as a dealer in his own interest, selling Salvator Mundi to the collector at a great personal profit. Later, the painting was auctioned publicly through Christie’s in a record-setting sale; it was the most expensive work of art sold at auction. 

When Rybolovlev learned that he was sold the painting with a hefty premium, he sued his advisor for violation of fiduciary duties and named Sotheby’s as a co-conspirator. The case generated litigation and legal decisions spanning across the globe, from Singapore to Monaco, Switzerland and the U.S. The story attracted a lot of attention due to its trans-national nature, the artist in question – Leonardo da Vinci, and the astronomical prices that each subsequent transaction garnered. This and other cases can be found in the Center’s . Incidentally, we have collected nearly one thousand cases there already.

MA:  How do you approach cases where art law intersects with other fields, like environmental law or technology?

IT: With great curiosity. We have done programs about space law and environmental law as well as many “Some like it digital” conversations. If there is a connection between visual art and law, we want to know about it.

MA: Beyond protecting artists, galleries and collectors, I’m curious if there are ways in which art law protects the public’s interest too, such as in cases of accessing and interacting with it? 

IT: There are certainly ways for the law to protect public interest in the preservation and conservation of art. Legal regulations and rights in connection with public art are one such example. Making large works of public art accessible to the public is definitely a public good, but the law requires responsible construction-related regulations to protect members of the community – namely children – from being harmed when interacting with public art projects. Other applications of law that protect the public's interest include anti-fraud regulations and anti-money laundering regulations.

Additionally, cultural heritage laws are aimed to preserve works of art for the benefit of the communities who generated them. The Native American Graves Protection and Repatriation Act (“NAGPRA”), for example, provides that museums who possess Native American cultural patrimony must maintain an open dialogue with the Indigenous Communities whose cultural patrimony they possess. If the community requests the return of their cultural patrimony, NAGPRA requires that the museum return the objects back to that community. NAGPRA serves as an example of how art law extends beyond property disputes, affecting culture and community. 

MA: In what ways do you think the field of art law will evolve in the next decade? 

IT: Art law is both a global and a domestic phenomenon. We can expect more countries to continue developing their legislations and application of art law rules. And we can also expect new commissions and courts to be set up to help resolve disputes that are either time-barred yet ongoing or that deal with sensitive issues such as family disputes and human rights. I also expect art law to continue growing and reaching into outer space (we have done a program on celestial art law) as well as dwell in the evolving digital devices.

MA: Are there any emerging trends or issues you the team at CFAL are prepared to address this year? 

IT: A predictable answer is the role of AI in copyright law. Many artists seek to protect their intellectual property from the unauthorized copying of AI models, but they also test the boundaries of copyright protection by employing new technologies to create art. There is a clear tension between interests of tech companies and holders of copyrights, and there are even more possibilities for the responsible application of the models for artists.

Center for Art Law Workshop. Courtesy of Center for Art Law

MA: Talk about the future of CFAL. What exciting things do you have coming up in the next few months? Any big changes to look forward to in general? 

IT: In the next few months, we are looking to offer our first art law summer school (in person in NYC!) and to host two boot camps to help train attorneys for our clinics. 

In the future, the Center aims to have a freestanding building (or at least an entire floor) to accommodate our ambitious projects: clinics, in-person events, a physical library, and offices for consultations and research. Fundraising is a perennial challenge and with the new administration in office, we expect public funding to dry up, thus our reliance on private funds and events will only grow. 

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