Art Law in The Supreme Court

By Talia Berniker and Sabrina Soffer.

Few art law cases have made their way to the United States Supreme Court. Those that did get accepted for review by the highest court of the land hold significance as they determine how historic artifacts are managed, how art is created and funded, and to what extent art can be censored. The Supreme Court’s jurisdiction extends to the First Amendment, freedom of expression, oversight of Congressional power under Article 1 Section 8, conflicting lower court rulings on copyrightable subject matter, and the Foreign Sovereign Immunity Act (“FSIA”), just to name a few key issues. In examining the cases the Court has heard, it is clear that most of the rulings deal with intangible intellectual property rights. Art law cases in the Supreme Court occupy unique socio-political dimensions—as art law impacts a range of legal topics from free speech to art restitution.

Seeing that art law can be complicated, and at times abstract, the Supreme Court usually steps in only when a bright line rule is formulated in the lower courts that hinders creativity, or when lower courts cannot agree on the standards for an intellectual property test. In light of recent changes in the composition of the Supreme Court, the following inquiry will examine the art law cases the Supreme Court has heard, declined to hear, and agreed to hear to uncover the impact of the Supreme Court on art law.

Historical Origins