USA Law and Practice Contributed by: Jana Slavina Farmer, Adam Buchwalter and Dara Elpren, Wilson Elser Moskowitz Edelman & Dicker LLP
Wilson Elser Moskowitz Edelman & Dicker LLP
Tel: +1 914 872 7247 Fax: +1 914 323 7001 Email: jana.farmer@wilsonelser.com Web: www.wilsonelser.com
1. Art Law Framework 1.1 Relevant Authorities and Legislation United States’ Laws and Authorities in the Field of Art Law In the United States, art law draws from multiple legal areas, including intellectual property, contracts, torts, and property law, among others. It is shaped by a mix of federal and state statutes, court decisions, and agreements created by art market participants to address gaps in existing legal frameworks. Copyright and other artists’ rights Under Title 17 of the US Code, authors of “original works of authorship”, “fixed in a tangible form of expression” are granted exclusive rights to reproduce, distribute, display and create derivative works from their original creations. These rights arise automati - cally upon the creation of a qualifying work, but reg - istration with the US Copyright Office is necessary to bring a lawsuit for infringement and to access certain remedies. However, many contemporary artworks may fall outside this protection, such as those made from found objects, not physically realised by an artist (but instead, by the artist’s assistants or even by a col - lector, as is the case with Sol LeWitt’s Wall Drawings), or fixed in a non-traditional, ephemeral medium. For such contemporary artworks, artists and their repre - sentatives often rely on contract-based protections of authorship and authenticity. The Visual Artists Rights Act of 1990 (VARA) adds “moral rights” for artists. It allows them to:
• stop intentional damage or destruction of certain works. Art transactions The Uniform Commercial Code (UCC) is a model leg - islation that is enacted in whole or in part in all 50 US states and the District of Columbia. The UCC governs commercial transactions involving personal property, including artworks, in the context of sales, lending, secured transactions, passing of title, representations and warranties, and other commercial issues. Article 2 governs the sale of goods, including artworks sold by galleries, dealers, or private parties. Article 9 governs secured transactions, often relevant in consignment of works to galleries, meaning the art - ist retains ownership while the gallery takes posses - sion of an artwork and tries to sell it, or when engag - ing in art finance transactions and using art as the collateral. Article 12 governs the ownership, transfer and con - trol of certain digital assets that are not governed by existing articles such as Article 2 or Article 9. Article 12 is relevant to transactions with non-fungible tokens (NFTs) and other digital assets. State laws (spotlight on New York) New York, as a global centre for the art market, has enacted the New York Arts and Cultural Affairs Law (ACA), a legal framework that addresses certain recur - ring risks of art transactions. For example, Article 12 establishes that when an artist consigns their artwork to a gallery, the artwork and the proceeds from its sale are held in trust for the artist, offering protection
• claim authorship of their work; • prevent false attribution; and
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