Book Review: “Art Law and the Business of Art” (2019)

January 7, 2020

By Angela Dimery

Having practiced in multinational law firms in London, before crossing over into the art business as General Counsel at Christie’s London for two decades, Martin Wilson, the now Chief General Counsel at Phillips auction house in London, saw art law go from an unknown concept to a recognized legal field.* A handshake would no longer do and art transactions are increasingly high stakes. According to Wilson, the growth of art law coincided with complex financial transactions underpinning art purchases, publicity of prices renowned artworks commanded, and shifts in public sentiment on the ethics of art dealings. This occurred against an increasingly complex compliance framework. Drawing on his experience with art transactions, observing market and regulatory changes first hand, Wilson has compiled a concise reference text which was published last year by Edward Elgar Publishing under the title of “Art Law and the Business of Art.”Artists, gallerists, dealers, art professionals, and market participants might enjoy its clear and to the point style. Wilson’s publication is poised to become indispensable for students and practical for lawyers. Simply put, Wilson is a natural guide in the art law and art business space.

The book is divided into 18 chapters. Beginning with artists, artworks, and copyright, topics range from auctions, private sales, and ethics, to art institutions, art funds, and investment, taxation, global export, insurance, and transportation of art. Each chapter is helpfully parsed into subheadings, numbered and arranged like a law textbook. This makes it easy to navigate. It can be consulted on a need-or-want to know basis. Read in its entirety, it provides a compelling and clearly written overview of the business of art from a legal perspective. An effective manual, it includes a glossary of art terms, a table of cases, and a table of legislation. There is also compelling history, social, and cultural context. The author uses illustrative examples throughout.

It is important to note that the author focuses on law and practice in the United Kingdom (UK). However, readers from other common law jurisdictions will comfortably follow the doctrines in the UK cases cited. Transactional lawyers and non-lawyers alike should find the notes on drafting and negotiating contracts a useful starting point. Lawyers across common law jurisdictions, will need to factor in the local context, and statutory and case law framework. For non-lawyers, it will inform their negotiating positions.

Chapter Summary

Chapter 1, The Artist and the Artwork, explains why legal protection of artistic works is necessary, what copyright is, and how it applies to the various visual art forms. The author cuts to the enforceability chase, when discussing the internet and social media. As such, this guide is a pragmatic one. It even answers the question, how the UK law deals with artwork by artificial intelligence, illustrating the issue with Christie’s 2018 sale of Portrait of Edmond De Belamy. Fetching $432,500, the AI-created portrait was signed using the algorithm that created it.

In addition, the first chapter offers a discussion of artists’ moral rights, highlighting that this civil law concept has been adopted into common law countries. However, UK differs in its approach to civil law jurisdictions such as France, Italy, and Germany. The author covers artists’ resale rights and royalties extensively, fundamental in France and Germany, and which were eventually incorporated into UK law following an EU Directive. The author points out that the US and Hong Kong, by contrast, have not introduced such resale rights or royalties. The chapter concludes with a discussion of graffiti art.

Chapters 2 through 8 cover auction houses, their historic origins and laws governing auctions. In 2018, auctions represented a $29.1 billion market. The author explains why the chips fall as they do, along with the psychology and theater of auction sales. This rationale lends clarity as Wilson explains the main legal issues, which include fiduciary duties, the duty of skill and care, consumer law and the actors’ respective rights, liabilities, and parties’ ability to contract out of obligations, and/or to pursue claims in tort. Essentially, these chapters clarify where actual loyalties are owed and to whom. Ultimately, sellers and buyers must each realistically understand their commercial and legal positions, irrespective of what the customer experience indicates. The author skillfully highlights the risks that an auction house legal department typically helps manage.

The chapter dedicated to finance and guarantees discusses authenticity and ownership of title in light of auction house responsibilities. It explains why these issues arise in the art market, how risk and responsibility are generally allocated between auction houses, sellers, and bidders, and touches on the role of forensics and science, both in negotiations and in litigation.

Chapter 9 outlines key terms that private sale agreements require. It discusses the role of agents, and the importance of transparency and clarity where subagents are involved. The UK case of Accidia Foundation v. Simon C. Dickinson Ltd^[1] highlights the courts’ ability to order the reversal of payments where a subagent is found to have secretly profited in a private sale. Wilson also discusses the allegations against Swiss art dealer Yves Bouvier by Russion billionaire Dmitry Rybolovlev. (See our review of the book dedicated to the Bouvier/Rybolovlev Affair.) Wilson uses this example to show the importance of clarifying the extent of an agency, advisor, dealer or arms-length relationship where a profit is made. The chapter concludes with a guide to key terms in agreements between dealers and artists.

Chapter 10 embarks on a narrative tour through history to explain Holocaust restitution claims. It discusses the concomitant 1998 Washington Principles and why Holocaust claims are so rarely litigated in the UK. The author summarizes decisions by the UK’s Spoliation Advisory Panel, established in the year 2000 to consider World War II-era cultural property claims. A full range of ethical questions the art world is grappling with follow. The author discusses patterns of looting in times of conflict, colonial times, and recent restitution efforts. The questions and arguments around the roles, obligations, and rights of cultural institutions, and countries holding cultural objects are given a light touch, covering International UNESCO and UNIDROIT Conventions and frameworks, along with explanations of relevant EU Directives and Regulations, and how these are incorporated (or not) into UK domestic law.

The author comprehensively covers Codes of Practice for the Control of International Trading in Works of Art and the Antiquities Dealers Association Code. After discussion and opinion, the author points out what collectors need to bear in mind in this thorny area. Listed or historic buildings and endangered species are discussed so far as they relate to removable objects and components of cultural works. The chapter concludes with a discussion of freedom of expression and obscenity laws, bearing in mind ever-important context and some cultural analysis, which will interest artists, exhibitors, and lawyers alike. These seemingly unrelated subjects all fall under the art law umbrella and Wilson acknowledges the gamut of subjects.

Chapter 11 lays out UK tax laws in detail. Chapter 12 covers shipping, transport, export licenses, and insurance of art. Chapter 13 is an introductory guide to museums, which as the author notes, warrants a separate book. Ethics arise again here, since Museums which err risk losing accreditation status and all-important access to public funds. The importance of donors and associated tax rules are discussed. The Tate’s annual acquisition budget of £1,000,000 is noted to highlight the importance to museums of loans of artworks and collections. Key loan agreement terms are outlined. Wilson points out the practical implications that museums and collectors are acutely aware of – the marketing value and exposure gained by works on loan at high profile museums.

Chapter 14 unpacks what is meant by the term of ‘art fund.’ Wilson explains other secondary market elements such as liquidity, returns and fee structures. He details how fund managers are selected and underscores the importance of valuation, audit and an appreciation of the investor’s risk profile. Considering the unique nature of art as an asset class, the author appraises the perceived returns and associated research in a balanced way.

Chapter 15 demonstrates how the topics from earlier chapters play out in disputes. These can be over title, condition, price, payment, and saleroom or bidding sequences. Legal proceedings are discussed. The author notes that alternative dispute resolution may work well for art clients who value relationships and are used to commercial negotiation. Further, it permits art specialists familiar with custom and practice to assist in resolving a dispute.

Chapters 16 to 18 cover anti-money laundering, the Bribery Act, privacy and data protection. The majority of the final chapter is devoted to discussion of the 2016 General Data Protection Regulation (GDPR) requirements as they have affected the art trade.

Impressions

Wilson’s “Art Law and the Business of Art” guide (456 pages) is a 360-guide that extensively unpacks the legal framework of the art business. It is written simply and clearly, and includes compelling case illustrations. Perhaps the most beneficial aspect of this book is the author’s neat rationale for various outcomes. Wilson draws on his vast and unique experience to make sense of how legal doctrines are applied in the peculiar commercial context of the art business. In addition to helping readers clarify the roles and relationships of primary and secondary participants in the art world transactions, it provides a solid foundation to get readers thinking about commercial problems and solutions.

About the Book Author: Martin Wilson is an art and cultural property lawyer. Following 10 years of experience as a litigator in leading London firms, he has worked in-house in the legal departments of global auction houses for more than 20 years. Wilson headed the legal and compliance departments at Christie’s in London before coming to lead the legal department at Phillips. As one of the first lawyers to specialize in the global art business from the 1990s, he has participated in the development of art and cultural property law as a discipline, and worked with stakeholder organizations. Wilson’s experience in the legal aspects of art transactions and disputes complements his interest in ethical, political, and cultural questions surrounding the creation and ownership of art.

The eBook version is priced from £22/$31 from Google Play, ebooks.com and other eBook vendors, while in print the book can be ordered from the Edward Elgar Publishing website.

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Select References:

1. Accidia Foundation v. Simon C. Dickinson Ltd [2010] EWHC 3058 (Ch). ↑

About the Author: Angela Dimery is the Center’s 2019-2020 Fellow. An attorney from New Zealand where she practiced in-house and at private firms, Angela holds a Bachelor’s Degree in Contemporary Dance and an Honor’s Degree in Law from the University of Auckland, New Zealand. Angela was admitted to practice in New York in December 2019.

*Acknowledgement: The author would like to thank Mr. Martin Wilson, for his valuable interview about his professional experience, and research and writing of this book, which informed this review.