When Is Art, Art?

No one really has a clear definition of what art is. That is because it changes all the time.

You may have noticed that sculpture downtown in the middle of the rotunda at your local city hall. At least you “think” it’s a sculpture, but then again, it might also be a bike rack. That’s the prevailing problem with art – what is it? This is actually a question that has been argued in many courts across the nation, and frankly, no one is even close to being able to define what art really is and they may never be.

The reason for that? It changes all the time. One year the “in” thing may be pictures of soda cans in a back alley depicting the angst of modern society and their throwaway habits – and this will be considered to be art. The next year, and honestly sometimes even the next month, those same soda cans become passé and the newest hot item is something that passes for finger painting done on steel panels. Go figure. Nonetheless, someone somewhere may find their “art” being knocked off and the battle may be on in the form of a lawsuit.

When defending the rights of the creator of the “art,” the main issue is what belongs to whom, and let’s also not forget who actually owns the “art.” While most would say the creator of the art is the owner, are they really? They don’t have anything appropriated to their work once it’s not in the studio.

Then, there is the often contentious issue of the relationship the artist has with the gallery. The artist is the worker who produces the work, but the gallery also has ownership rights to the work because they represent the artist. Often they get a whopping 50% cut of the final sale price for the work because they promoted it, showed it and raved about it and that got the artist and the work noticed.

Ownership changes hands through sale of the work, or does it? That’s the multi-million dollar question and one that poses an endless conundrum for those with a philosophical bent. It also poses some interesting questions in legal cases as well.

Here is an example of the problem of legality and ownership issues. Have you heard about Associated Press (AP) suing Shephard Fairey? They sued him over the Obama Hope posters that he artistically interpreted. Problem is that AP says his posters amount to copyright infringement because he mass produced a photo originally owned by AP without their permission. Fairey didn’t use the exact photo, he artistically interpreted it.

Fairey’s portrait version of the original image was based on a photo taken in April 2006 by AP photographer Mannie Garcia. AP kicked up a stink and in reply Fairey sued for a declaratory judgment that his poster, despite its origin, was “fair use” of the original photo. This is just one example of the kinds of issues that are floating around in the world of art law with the underlying confusion threaded into the mixture of what happens when you give art a primary holder. Is its meaning, which only the artist seems to know and understand, affected by giving it an owner?

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

Tagged with: , ,