The Art Law & Business Connection

Our relationships with art and artists are changing.

Art connoisseurs, collectors and general members of the public alike have better access to the art they love and want through online sales and licensed merchandise. Gallery owners and artists have grown away from paternal relationships, and now work together as partners. Even museum curators must now rely on a more formal approach to ensure such things as rights, authenticity and insurance.

Glaser Weil art law attorney Joshua Roth, speaking on a panel hosted by the Firm on Thursday night and moderated by Entertainment Chair, Barbara M. Rubin, said these changes have come as a result of shifts in both the art dealing industry and in popular culture.

For example, Mr. Roth said there was once a perception by the art world that artists whose works appeared on such things as handbags and shirts were “selling out.”

“Now, it’s a way to make a piece of art connect with broader audiences,” Mr. Roth said. In this way, he added, the artists has opened his or her options to profit and become better known.

However, Mr. Roth warned, this is where it is imperative that the artist is protected. Having a trusted advisor on such issues as copyright ownership and royalties is part of the fabric of these deals, he added.

Ms. Rubin opened up the discussion by making a comparison between the  protection of “artists” in the entertainment  field to that of the traditional artists. “The ‘artist’ in the entertainment industry is the writer, director and actor. They are heavily protected by their agents, lawyers and managers, as well as the army of union members who are willing to shut the industry down, if necessary, to protect their financial interests,” Ms. Rubin said. “Who is protecting the real artist in the art arena?”

Mr. Roth was joined on the panel by a prestigious and diverse mix of experts: Jeffrey Deitch, an art dealer, writer and curator and former director of the Museum of Contemporary Art; Deborah McCleod, director of the Gagosian Gallery’s Beverly Hills gallery and former senior vice president and senior specialist for post war and contemporary art at Christie’s and Peter Kloman, the senior vice president and senior fine art specialist at Christie’s Los Angeles. Ms. Rubin is also assistant professor and executive director of the Entertainment Law Practicum at Loyola Law School.

The experts agreed that the art dealing climate is very different now than it was even just a decade or two ago. Mr. Deitch said the days of sealing a deal on “a handshake” are long gone, as the necessities for regulation and professionalism take over. “There is very much a need for solid legal structure and there continues to be issues with transactions,” Mr. Deitch said, citing recent examples of unauthorized sales or artists not getting paid. “It’s no longer the Wild West.”

The panelists also discussed the many diverse ways there are to buy art, including online and live auctions and art fairs, and the legal implications that arise with each. Mr. Kloman said Christie’s and other auction houses were slow to join the online auction world because even the slightest technical glitch or delay could prove costly. “There’s a great ease to buying art online,” Mr. Kloman said. “But, at the same time, there’s great danger.”

Ms. McCleod said the art fairs satisfy the consumers’ needs for transparency and connection to the artist or the galleries. “The contemporary and modern art world are very event oriented,” she said, adding that 15 percent of the gallery’s business comes from these events.

Art transactions in a mostly unregulated business can be risky. Mr. Roth said he advises the artists and galleries and museums to memorialize their relationships, as an agent representing an entertainer might. “There is a very definite body of law in terms of fiduciary duty,” he added.

It’s a fine balance, though, Mr. Roth said. “Regulation is good,” he said, “but too much can kill a market.”

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  • Barbara M. Rubin
    Senior Counsel

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