What legal rules govern how artists live and create artworks and sell those works to collectors and others? This chapter first addresses how artists live and work. It then turns to legal and ethical issues of the primary market for artists’ works, including: how artists sell their works, particularly through dealers; the legal rules that govern consignments, the predominant way artists sell works through dealers; the artist/dealer relationship (for example, what happens when the artist or dealer terminates the relationship, and who bears the loss when works not yet sold by the dealer are damaged or destroyed); statutory protection for artists’ consignments; and the commissioning of an artist to create a work of art.

For centuries, art has been one of the spoils of war, often taken by the victor--and often destroyed in combat. What rules govern how art is treated in and after times of armed conflict? This chapter considers practical and ethical challenges of protecting art and antiquities in times of war and how attitudes toward protection of cultural property have evolved, leading to the Hague Convention of 1954; how art has been treated as part of war reparations; legal and ethical issues applicable to the recovery of art in the aftermath of World War II, particularly in light of the Holocaust and the Third Reich’s historically unprecedented, large-scale dispossession of art; and international efforts to coordinate the return of art wrongfully taken in the years prior to and during World War II

This chapter considers legal and ethical issues affecting art museums. These issues include considering the legal and working definitions of a museum and how museums are legally organized in the United States; the tax status of museums; legal and ethical standards of museum governance,; the rules, practices, and ethical considerations pertaining to museums’ management of their collections; museums acquisitions and deaccessions of collections items; managing donor-imposed restrictions on gifts to museums; legal issues related to museum loans and exhibitions; and how museums address issues concerning access to their collections.

This chapter focuses on the legal and ethical rules applicable to the international trade in antiquities and other forms of cultural property. Over centuries, many countries have been primarily the source of antiquities; others have been primarily collectors of those antiquities . What rules govern the movement of antiquities and determine whether they should be returned to their country of origin? How does the United States deal with antiquities that are imported illegally or imported after being stolen or illicitly exported from other countries? This chapter also considers how museums can ethically collect antiquities and when antiquities can or should be returned to their country or place of origin.

This chapter examines issues concerning the secondary market for visual art--when artworks are resold after their initial sale by the artists. After considering the tension between art as creative expression and art as a commodity, bought and sold for profit, the chapter looks at how art dealers work with collectors; issues that can arise when works of art are entrusted to dealers; conflicts of interest that may arise for dealers; potential issues with appraisals of artworks in connection with resale; the legal rules governing art auctions; and some of the legal and ethical issues that can arise when art auctions go awry, such as the discovery after the auction that a work of art is not authentic.

Chapter 1 introduces the reader to the wide range of issues at the intersection of law, ethics, and the world of visual arts. The chapter then considers two threshold legal and philosophical issues that repeatedly arise throughout the book: how can and should the law define what is art and who is an artist?

Works of art, in addition to being treated at law as tangible personal property, also contain creative expression generally treated as intellectual property. This chapter considers the rules governing art as intellectual property. The chapter first presents copyright law as applied to visual art and how copyright infringement is established and defenses to infringement actions, including the fair use defense, especially as it applies to appropriation art and art that parodies other works. It then addresses how trademark law and the right of publicity (the right of individuals to control the use of their name, image, or likeness for commercial purposes) impact visual art. The chapter next examines resale royalties for art--where artists receive some portion of the price when their works resell in the secondary market--and the limited application of resale royalties in the U.S. Finally, the chapter explains artists’ moral rights,which allow artists to prevent the alteration or destruction of their works after they are sold and to control the use of their name in association with an artwork they did not create or that they created but that has been altered.