Hot off the Presses! On Art Attacks: At the Confluence of Shock, Appropriation, and the Law

As some of our readers may recall, after a museum patron wrote on a Mark Rothko painting at the Tate Modern, I published an entry on A&A about the incident, idly musing on the broader intellectual property implications of such acts.  I presented more in depth research on this very challenging form of appropriation art at the John Marshall Review of Intellectual Property Law symposium last fall and the journal's symposium issue, which is devoted entirely to art law topics has just become available online.  My article explores broader legal issues associated with making artwork on top of other original works of art, including legal and ethical issues such as copyright, moral rights, freedom of expression, and preservation of cultural heritage.  With an entire journal issue devoted to art law topics, I hope our readers will find some enjoyable weekend reading.

Abstract

Does the law adequately recognize the expansive nature of art, especially in scenarios involving controversial acts of appropriation art? Of particular curiosity is just how the law should treat acts of artistic appropriation involving the creation of artwork on top of other original works of art, or art attacks. This is an issue that has been largely unaddressed by the courts outside the realm of criminal proceedings. However, the legal implications of such acts reach far beyond crimes and property torts, involving copyright, moral rights, freedom of expression, and the preservation of cultural heritage. Indeed, the issues are not just far reaching, but complex as well. Art attacks yield double-hinged questions as to intellectual property rights and moral rights. Whether art attacks are protected by the First Amendment largely splits along the lines of property ownership, while international treaties concerning the preservation of cultural heritage weigh heavily and numerously against the lawfulness, or acceptability, of any art attacks. In 1903 the Supreme Court admonished that those trained only in the law should not “constitute themselves final judges” of the worth of artistic creations—with this in mind, it is crucial to consider all the legal dimensions presented by these challenging acts of appropriation art.