Why Art and Law?

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No potential conflict of interest was reported by the author(s).

Notes

1 For the full text and close reading of the transfer agreement see Rebecca Johnson, “Implementing Indigenous Law in Agreements – Learning from ‘An Agreement Concerning the Stewardship of the Witness Blanket’,” Reconciliation Syllabus, January 31, 2020. https://reconciliationsyllabus.wordpress.com/2020/01/31/implementing-indigenous-law-in-agreements-learning-from-an-agreement-concerning-the-stewardship-of-the-witness-blanket/ (accessed October 25, 2020).

2 Interestingly, the agreement appears to explicitly acknowledge Newman’s moral rights to Witness Blanket in mentioning “the Newman family’s inherent connection to the Witness Blanket.” “An Agreement Concerning the Stewardship of the Witness Blanket – A National Monument to Recognize the Atrocities of Indian Residential Schools,” https://reconciliationsyllabus.files.wordpress.com/2020/01/witness-blanket-stewardship-agreement-v04.4.pdf (accessed March 11, 2021). I speculate whether the agreement would be even more effective if it included a fiduciary duty clause obligating both Newman and the museum to act in the best interests of the work.

3 James Boyd White, Justice as Translation: An Essay in Cultural and Legal Criticism (Chicago, IL: University of Chicago Press, 1994), 91.

4 The editorial work of Daniel McClean, a practicing lawyer specializing in art-specific transactions, has provided much valuable primary and secondary source material for tracking this history in an Anglo-American context. See, for example, Dear Images: Art, Copyright and Culture, co-edited with Karsten Schubert, (London: ICA and Ridinghouse, 2002); The Trials of Art (London: Ridinghouse, 2007); and Artist, Authorship & Legacy: A Reader (London: Ridinghouse, 2018).

5 Peter Goodrich, “Law by Other Means,” Cardozo Studies in Law and Literature 10, no. 2 (Winter 1998): 116.

6 I thank Marco Wan for opening my eyes to the dense and exciting array of scholarship in this area, including Martha Nussbaum, Poetic Justice: The Literary Imagination and Public Life (Boston, MA: Beacon Press, 1995); Ian Ward, Law and Literature: Possibilities and Perspectives, (Cambridge: Cambridge University Press, 2008); and Peter Goodrich, “Screening Law,” Law and Literature 21, no. 1 (Spring 2009): 1–23.

7 Goodrich, 116.

8 Relatively recent examples of such inquiry include Law and Art: Justice, Ethics and Aethetics, ed. Oren Ben-Dor, (Abindgon and New York: Routledge, 2011); Thomas Dreier, “Law and Images,” Brill Research Perspectives in Art and Law 3, no. 1 (2019), Joan Kee, Models of Integrity: Art and Law in Sixties America (Oakland: University of California Press, 2019); and Research Handbook on Art and Law, ed. Jani McCutcheon and Fiona McGaughey (Cheltenham and Northampton: Edward Elgar, 2020).

9 See, for instance, Jonathan Eburne, Surrealism and the Art of Crime (Ithaca, NY: Cornell University Press, 2008); Frederic J. Schwartz, “Brecht’s ‘Threepenny Lawsuit’ and the Culture of the Case,” Oxford Art Journal 41, no. 2 (August 2018): 219–47; T’ai Smith, Bauhaus Weaving Theory: From Feminine Craft to Mode of Design (Minneapolis and London: University of Minnesota Press, 2014), 111–40; Reiko Tomii, “State v. (Anti-)Art: Model 1,000-Yen Note Incident by Akasegawa Genpei and Company, Positions: East Asia Cultures Critique 10, no. 1 (2002): 141–72.

10 A welcome addition to this body of literature that takes into account artistic and legal viewpoints is Martha Buskirk’s forthcoming study Is It Ours? Art, Copyright, and Public Interest (Oakland: University of California Press, 2021). Among the most widely cited historians of contemporary art in legal scholarship, Buskirk known for her writings on copies, appropriation, and conceptual art. Scholars of intellectual property will find it especially edifying to read Buskirk’s book together with Winnie Wong, Van Gogh on Demand: China and the Readymade (Chicago, IL: Univeresity of Chicago Press, 2013).

11 See, for example, The Image and the Witness: Trauma, Memory, and Visual Culture, ed. Frances Guerin and Roger Hallas (New York and London: Wallflower Press, 2007); Ariella Azoulay, The Civil Contract of Photography (New York: Zone, 2008); and Jane Blocker, Seeing Witness: Visuality and the Ethics of Testimony (Minneapolis: University of Minnesota Press, 2009).

12 A recent illustration in point is Lee Anne Fennell, Slices and Lumps: Division and Aggregation in Law and Life (Chicago, IL: University of Chicago Press, 2019).

13 Luis Gómez Romero and Ian Dahlmann, “Justice Framed: Law in Comics and Graphic Novels,” Law Text Culture 16 (2012): 6.

14 Ibid., 6.

15 Jonathan Kramnick and Anahid Nersessian, “Form and Explanation,” Critical Inquiry 42, no. 3 (Spring 2017): 661.

16 Pak Sheung Chuen, untitled text exhibited in “Chris Evans and Pak Sheung Chuen: Two Exhibitions, Para Site, Hong Kong,” c. 2017.

17 Ibid. My thinking on politics here is drawn from Sheldon Wolin’s description of the “legitimized and public contestation, primarily by organized and unequal social powers.” Sheldon Wolin, “Fugitive Democracy,” Constellations 1, no. 1 (1994): 12.

18 Desmond Manderson, Danse Macabre: Temporalities of Law in the Visual Arts (Cambridge: Cambridge University Press, 2019), 183.

19 Ibid., 162.

20 Among the most notable responses or engagements with Harris’s article have been the works of Cameron Rowland which often involve various legal concepts and financial instruments such as Disgorgement (2016). The work displays the full contents of a “Reparations Purpose Trust” that promises to liquidate shares in Aetna when the U.S. government pays reparations for slavery. Aetna is a major insurance company that profited from slave insurance policies.

21 Cheryl I. Harris, “Whiteness as Property,” Harvard Law Review 106, no. 8 (June 1993): 1725–36.

22 Gordon Bennett quoted by Kelly Gellatly, “Citizen in the Making: The Art of Gordon Bennett,” in Gordon Bennett (Melbourne: National Gallery of Victoria, 2007), 14.

23 Sarah Lewis, “Vision and Justice: Guest Editor’s Note,” Aperture, February 23, 2016. https://aperture.org/editorial/vision-justice/ (accessed October 1, 2020).

24 Phillip Areeda, “Comment: Always a Borrower: Law and Other Disciplines,” Duke Law Journal 37, no. 5 (1988): 1043.

25 Ibid., 1043.

26 Peter Goodrich, “Screening Law,” Law and Literature 21, no. 1 (Spring 2009): 15.

27 Judith Butler, Notes Toward a Performative Theory of Assembly, (Cambridge, MA: Harvard University Press, 2015), 40–1.

28 The most law-specific application of performativity theory may be Butler’s Excitable Speech: A Politics of the Performative (New York and London: Routledge, 1997).

29 The prison was shuttered in January 2013.

30 Bryant’s observations were made during the course of filming Flag Wars, which she produced with Laura Poitras, well known for her documentaries about Edward Snowden and Julian Assange. Linda Goode Bryant, “‘Law is Life!’: Flag Wars, Local Government Law, and the Gentrification of Olde Towne East,” Fordham Intellectual Property, Media and Entertainment Law Journal 16, no. 3 (2006): 720–3.

31 Eyal Weizman, “Introduction: Forensis,” Forensis: The Architecture of Public Truth (Berlin: Sternberg Press, 2014), 29-30.

32 Shame has been a powerful enforcement mechanism in other realms of cultural activity as well. Amy Adler and Jeanne C. Fromer’s article “Taking Intellectual Property into Their Own Hands” explores how individuals, including artists, have sought relief for intellectual property infringement turn to shaming on social media as a more effective alternative to litigation. California Law Review 107 (2019): 1455–530.

33 Yxta Maya Murray, “Rape, Trauma, the State, and the Art of Tracey Emin,” California Law Review 100 (2012): 1680.

34 Charles R. Lawrence III, “Passing and Trespassing in the Academy: On Whiteness as Property and Racial Performance as Political Speech,” Harvard Journal on Racial and Ethnic Justice 31 (2015): 14–15.

35 Although a lawyer prepares or otherwise facilitates the negotiation of a purchase contract with Sehgal, the terms of the contract are orally repeated to the buyer and a wire transfer made to the artist. For an account of how Sehgal developed his transactional model, see Hans Ulrich Obrist interviews Tino Sehgal,” Kunsthalle Bremen (Bremen: Kunstpreis der Böttcherstrasse, 2003), 50–5. For an example of a Sehgal agreement see Elizabeth Singer, “Be the Work: Intersubjectivity of Tino Sehgal’s This objective of that object,” in On Performativity, ed. Elizabeth Carpenter, vol. 1 of Living Collections Catalogue (Minneapolis: Walker Art Center, 2014), footnote 23. http://www.walkerart.org/collections/publications/performativity/be-the-work/ (accessed July 12, 2016).

36 Representatives from both the Walker Art Center and the Museum of Modern Art in New York have characterized the purchase of Seghal works as especially difficult, provoking debate among otherwise consensus-prone acquisitions committees. Arthur Lubow, “Making Art Out of an Encounter,” The New York Times Magazine, January 15, 2010, 24.

37 For a theoretically informed discussion of examples of this kind of collaboration see Lucy Finchett-Maddock, “Forming the Legal Avant-Garde: A Theory of Art/Law,” Law, Culture and the Humanities, September 13, 2019. https://journals.sagepub.com/doi/full/10.1177/1743872119871832 (accessed September 4, 2020).

38 Nicole Fleetwood, Marking Time: Art in the Age of Mass Incarceration (Cambridge, MA: Harvard University Press, 2020), 18.

39 The famous quote has been attributed to U.S. Supreme Court Justice Potter Stewart who contended that a particular film was not obscene even as he demurred from offering a definition of what he considered to be “hard-core pornography.” Jacobellis v. Ohio, 378 U.S. 184 (1964).

40 “ICE Acting Deputy Director Sets the Record Straight on Fraud Investigations Involving Undercover Schools,” News Release, U.S. Immigration and Customs Enforcement, 20 December 2019. https://www.ice.gov/news/releases/ice-acting-deputy-director-sets-record-straight-fraud-investigations-involving (accessed August 19, 2020).

41 Nicolas Michel, “African artefacts: Repatriation activists on trial for attempted theft at Paris Museum,” The Africa Report, 9 October 2020, https://www.theafricareport.com/45048/african-artefacts-repatriation-activists-on-trial-for-attempted-theft-at-paris-museum/ (accessed August 11, 2020).

42 Some examples of this vein of inquiry include Alison Young, Street Art, Public City: Law, Crime and the Urban Imagination (Routledge: Abingdon and New York, 2014); Peter Karol, “The Threat of Termination in a Dematerialized Art Market,” Journal of the Copyright Society of the U.S.A. 64 (Spring 2017): 187–233; Katherine Biber, In Crime’s Archive: The Cultural Afterlife of Evidence (Abingdon and New York: Routledge, 2018); Art, Law, Power: Perspectives on Legality and Resistance in Contemporary Aesthetics, ed. Lucy Finchett-Maddock and Eleftheria Lekakis (Oxford: Counterpress, 2020).

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Joan Kee

Joan Kee is Professor in the History of Art at the University of Michigan and the Robert Sterling Clark Visiting Professor at Williams College. A public interest attorney based in Detroit, she has written extensively on the intersection of contemporary art and law, including an edited forum on the subject for the Brooklyn Rail, and articles in Artforum, Law and Humanities, American Art, and Law, Culture and the Humanities. Kee’s most recent book is Models of Integrity: Art and Law in Post-Sixties America (University of California Press, 2019).