Fishman, James J.

English

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Pace University DigitalCommons@Pace Pace Law Faculty Publications School of Law 1-1-1978 Review of "The Desk Book of Art Law" and "Law, Ethics, and the Visual Arts: Cases and Materials" James J. Fishman Elisabeth Haub School of Law at Pace University Follow this and additional works at: https://digitalcommons.pace.edu/lawfaculty  Part of the Entertainment, Arts, and Sports Law Commons Recommended Citation James J. Fishman, Review of "The Desk Book of Art Law" and "Law, Ethics, and the Visual Arts: Cases and Materials", 10 Conn. L. Rev. 742 (1978) (book review), http://digitalcommons.pace.edu/lawfaculty/266/. This Book Review is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law Faculty Publications by an authorized administrator of DigitalCommons@Pace. For more information, please contact dheller2@law.pace.edu. 742 CONNECTICUT LAtV REVIEW [Vol. 10:737 The Desk Book of Art Law, by Leonard D. DuBoE Federal Publica- tions, Washington, D.C., 1978, 1373 pages. Law, Ethics and the Visual Arts: Cases and Materials, by John H. Merryman and Albert Elsen: Matthew Bender, New York, 1978, two volumes, 1300 pages (approx.). Reviewed by Jatnes J .  Fishman* There have been several publications on law and the visual arts,' but with one exception there has been no synthesizing treatise or ~asebook.~  Happily, with the publication of Leonard D. DuBoKs Tllc Desk Book of Art Law and Law, Ethics and the Vistrcrl Arts: Cases and Materials, by John Henry Merryman and Albert Elsen, this situ- ation has been remedied. Certainly, the appearance of these two works is timely. As the authors of one of the first reference books on law and the visual arts have noted: A generation ago, most legal problems involving art works were resolved by recourse to some generalized body of law. The rules regulating the sale of an etching by Picasso were largely the same as those covering a sack of potatoes by a farmer. A museum might dispose of a painting from its collection with as little question as a hospital selling a used bed.3 However, the post-World War I1 cultural explosion-evidenced by the public's growing awareness of art, by the emergence of govern- ment assistance to the arts, and by an increase in the number of artists and collectors-has led to more complex relationships between the law and the visual arts. Both books have done much to define the parameters of these relationships and to persuasively argue for the recognition of art law as a distinct legal specialty. Leonard D. DuBoff is a Professor of Law at Northwestern School * A.B., A.M., University of Pennsylvania; J.D., New York University; Executive Direc- tor, New York Volunteer Lawyers for the Arts. 1. See T. CRAJVFORD, LAW AND THE VISUAL ARTIST (1977); S. HODES, WHAT E V E I ~ Y  ARTIST AND COLLECTOR SHOULD KNOW ABOUT THE LAW (1974); VOLUNTEEII LAWYERS FOR THE ARTS, THE VISUAL ARTIST AND THE LAW (1971). 2. F. FELD~IAN & S. \VEIL, ART WORKS: LAW, POLICY, PRACTICE at v. (1974). 3. Id. Heinonline - -  10 Conn. L. Rev. 742 1977-1978 19781 BOOK RE\'IE\i7S 743 of Law of Lewis and Clark College, and President of Oregon Volun- teer Lawyers for the Arts. His 1300-page treatise, The Desk Book of Art Law, is an eshaustive study of the field. The book is estremely well-organized throughout. DuBoff seems to have read every case or statute that relates in any way to the visual arts. Besides a brief in- troductory section, the book is divided into five major sections: The work of art, governmental and other assistance; art purchases; the ar- tist; and special problems of museums. There is an appendis contain- ing forty-three forms, treaties, sample contracts, legal briefs, and documents. Chapters which are particularly well done concern copyright, income taxation, and the Customs Bureau's difficulties in defhing "art" for tariff  purpose^.^ Professor DuBoff is quite opinion- ated and, because this reviewer often disagrees with him, some chap- ,, ters, such as "Art as Investment," "Auctions, and 'The International Movement of Art," were found to be less successful. Law, Et12ics and the Visual Arts is the result of a collaboration between an art historian and a law professor. Albert Elsen is a Profes- sor of Art History at Stanford University, a Rodin scholar, and former president of the College Art Association. John Henry hlerryman, Pro- fessor of Law at Stanford University, is an espert on civil law. Together they have produced a most interesting casebook which is organized around the perception that there is a set of functionally related people and institutions (artists, dealers, auctioneers, collectors, museums, critics, historians, and press) that constitute a "visual arts world." The intersection of this world with the legal system is the focus of the book. Law, Ethics and the Visual Arts is divided into seven major sections: Plunder, Destruction and Reparations; The National hlove- ment of Stolen and Smuggled Works; Defining Art and the Limits of Artistic Freedom; The Artists' Rights in a Work of Art; The Artist and The Legal World; The Collector; and The hiuseum. There are some forms and sample contracts throughout the test although not as many as in Tlze Desk Book of Art Law. Considering the scope and length of Law, Ethics ( ~ n d  the lFisud Arts, it contains relatively few cases. Instead, there are escerpts from periodicals, books, and other art sources which fmme the legal and ethical problems. These descriptive materials senre as an interesting introduction to the cases and provide a pleasant change &om the or- dinary casebook. 4. For an analysis of the history and development of tariff classificxatiol~s of art. bee Derenberg & Baum, Congress Rehabilitates .\lodcrr~ .art. 34 S.Y.V.L. RE\.. 1228 116591. Heinonline - -  10 Conn. L. Rev. 743 1977-1978 744 CONNECTICUT LAW REVIEW [Vol. 10:737 Both volumes contain all of the major cases. While they overlap in subject matter, the books are very different. DuBoffs approach is that of the traditional legal treatise writer. He offers many related cases and discusses legal issues in the notes, whereas Merryman and Elsen ask questions of a legal and ethical nature and approach their subject more philosophically. For example, Merryman and Elsen open their museum section with a substantial discussion of the history and purpose of museums. They then move into an examination of the legal obligations of a museum, using the Barnes Foundation case6 for illustrative analysis. DuBoff begins the first of two museum chapters with a discussion of the general legal principles relating to trusts, corporations, and tax-exempt status that concern the formal structure of museums. DuBoff also tends to cut a broader swath. For instance, in his chapter "Art as Investment," he ranges from maintenance costs to investment factors to be considered. Merryman and Elsen present a general discussion of the art market but say little about investment factors. (Although DuBoff devotes a whole chapter to insurance, it is a general introduction to the subject and insufficiently focused. I-Ie does not discuss in adequate detail the liabilities and responsibilities of directors of museums in insuring  collection^.^ Unfortunately neither book gives adequate consideration to the most common task for an attorney with an art law problem--estate planning for the col- lector.' The Tax Reform Act of 1976 has created new problems in estate planning and recordkeeping for collectors and  artist^,^ 'and neither book offers a discussion of the rules of carryover basis and how they affect the col le~tor .~  5. Commonwealth v. Barnes Foundation, 398 Pa. 458, 159 A.2d 500 (1960). 6. DuBoff reprints Petition In re George I. Davis as Trustee of the Heye Collection Trust, No. 41416175 (N.Y. Sup. Ct. 1975) in which trustees petitioned the court for n construction of the trust agreement and for permission to discontinue ins~irancc covcr- age because operating expenses had risen to the point where the continued pnymcnt of insurance premiums would jeopardize their ability to provide for proper security to tlic collection. The court allowed the trustees to discontinue insurance. The cnse of Harris v. Attorney Gen. (the Hill-Stead case), 31 Conn. Supp. 93, 324 A.2d 279 (1974), which is omitted, is perhaps more important in determining trustees' linbility. In the Hill-Stccrcl case, the court found that the failure to insure the collection wns not rnismanngcmcnt. But what is the liability of trustees if the museum, unlike the Hill-Stead, does not linve its origin in a trust instrument? One case cannot establish guidelines for every fact sittin- tion. See ALI-ABA, LEGAL PROBLE~IS OF MUSEUM ADXIINISTRATION, vol. Ill ,  at 94-97 (1975). 7. See generally COLLECTORS AND ARTISTS: PLANNING AND PROBATING THE ES- TATE (Lemer ed. 1978). 8. As a result of the carryover provisions of the Tnx Reform Act of 1976, I.R.C. Q 1023, it has become necessary to determine the cost of the item at the date of purchnsc-. 9. For a discussion of these issues, see Lowin, The Rrrles of Corryouer B ~ s l s  c~t~t l  Heinonline - -  10 Conn. L. Rev. 744 1977-1978 19781 BOOR REirIE\I'S 745 Because art law is rapidly changing, instant obsolescence is a problem. The introduction of arts legislation is at flood level. Federal legislation, particularly in the tax area, will have important effects on artists, collectors, and art institutions. hioreover, litigation in the area continues to increase. In several sections The Desk Book of Art h t c  is already outdated. The same will happen to Larc, Ethics and the Visual Arts. The two texts are more complementary than competitive. DuBoffs book is, as its title suggests, a "deskbook" and nil1 prove a valuable resource for the arts lawyer or the general practitioner who has infrequent problems in this area. h,lerryrnan and Elsen is the bet- ter choice for classroom use. Although some may say that an interest- ing casebook is a contradiction in terms, the introductor). notes and questions at the end of each section of Law, Ethics ancl the Vistral Arts are superior. Moreover, the book is so interesting that it can be recommended for a broader audience. Both books are invaluable additions to the development of art law and should be on the shelves of anyone interested in the legal problems of the visual arts. How They Affect the Col!ector, in COLLEC~OR~ ASD ARnsrs: P ~ ~ ; S I S G  ASD PROBAT- ING THE ESTATE, supra note 7, at 207. Heinonline - -  10 Conn. L. Rev. 745 1977-1978 

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