Collecting art is closely linked to legal issues such as fundamental rights, copyrights, rights of use, and raises complex questions. For Artquisite`s reader, Dr. Pacal Decker explains the most important terms of the german art law. Dr. Pascal Decker is a lawyer and founder of dtb rechtsanwälte – one of Germany’s leading law firms for arts and cultural counseling.
WHAT IS ART FROM LEGAL PERSPECTIVE?
Until this day, the question of defining art has not been answered clearly by the science of art. Contrary to the science of art, the German legislator has a very exact definition of art. Could you please explain to our readers, how the legislator defines art, and what differentiating factors are being applied?
Dr. Pascal Decker: The legal definition of what art is, is ever changing – just like art in itself. One could say that the legal understanding of what art is grows with the contemporary development of the art scene – art is therefore a reference frame for the legal understanding of art. Previously, a more traditional, formal canon in regards to works, which were considered as legally protected art, had been assumed, however, the Federal Constitutional Court has contributed towards a more open, dynamic definition of art due to its art-oriented jurisprudence.
Accordingly, an artistic expression is characterised by the fact that, due to the plurality of meaning, it is always possible to “draw more and more meaning from a respective presentation by means of continued interpretation,” as quoted in the landmark decision by the Federal Constitutional Court.
WHAT IS ART LAW ?
Does such a thing as uniform art legislation exist?
Dr. Pascal Decker: No. Art legislation, as we understand it, is a classic cross-sectional discipline. Therefore, numerous legal areas are touched upon. Naturally, there are many copyright-related question with a reference to art. But I would also regard contractual relationships between dealers, artists, collectors and museums as being related to art legislation. Public law questions, such as art in construction and authorisation processes in regards to the erection of art, but also questions in regards to social security funds for artists, also fall into the terrain of art legislation. And – last but not least – great art scandals have often had penal connotations. And lastly, all art legislation questions fall under the constitutional protection of the principle of unrestricted, protected artistic freedom as per article 5, paragraph 3 of the constitution.
Could everything, which is regarded as “art” in a constitutional sense, be protected by copyright?
Dr. Pascal Decker: Copyright protection depends on a central requirement, namely the question of whether the “works” were created in the sense of copyright law. Only works, which are a personal, mental creation, shall be protected as per paragraph 2 of the copyright act. One requirement in this respect is a minimum threshold of “originality”. The definition and existence shall depend on the responsible court – and of course on the convincing arguments brought forward by the respective lawyers. For decades, everyday items, such as toys, company logos and glasses, which were considered as industrial designs, but today would be considered as designs, were excluded from copyright protection as per the Federal Constitutional Court’s jurisprudence, even though they clearly could have been classed as art in accordance with the constitution. Some years ago, my joint practice contributed towards an amendment of such unfair jurisprudence by means of a landmark decision. Another example in regards to visual arts would be the Appropriation Art, namely works by artists, such as Jeff Koons or Elaine Sturtevant, where works by other artists are being adopted. From a copyright point of view, this phenomenon represents an infringement of previously existing works of art, even though this is based on a complex art history approach, which clearly recognises the constitutional definition of art.
Taking into account the twofold nature of art (material and intellectual property), who owns artworks? Can the ownership of artworks be transferred completely?
Dr. Pascal Decker: Naturally, the material ownership of an artwork is transferred to the purchasing party in full following the purchase or transfer of an artwork. But I believe your question is more geared towards so-called intellectual ownership. It is true that intellectual property rights are always held by the artist themselves, and these are not typically transferred when selling so-called works. To be clear, collectors do not normally hold any patent rights in regards to the respective artworks acquired. Even if an artist grants extensive and exclusive utilisation rights to someone by means of a license agreement, our legal system foresees inalienable rights, namely moral rights, which cannot be transferred.
May an artwork be changed, deformed or destroyed? And if so, by whom?
Dr. Pascal Decker: According to German law, these questions are very much based on the above-mentioned moral rights. First, we have to establish, as part of a judicial evaluation, whether copyright applies, meaning whether a work exists in the sense of paragraph 2. Should that be the case, this “personal, intellectual creation” would then be subject to the protection of the law. Any changes to the works – which are not carried out by the artist, but by another party – shall be an infringement in regards to the artist’s moral rights and may be prohibited. The second example you mention – deformation or destruction – could be evaluated in the same way, however, the artist may provide their consent, in which case this would be fine. In 1953, at 27 years old, the then completely unknown artist Robert Rauschenberg knocked on the gallery doors of his idol Willem de Kooning, a star amongst abstract expressionists, excited and a bottle of Jack Daniels in his hand. Would he, Rauschenberg, be allowed to blot out one of de Kooning’s pictures – a sort of art from art? After a few uncomfortable minutes, the old master handed over a picture, which would have been very difficult to blot out – the rest is art history!
How long does copyright protection apply?
Dr. Pascal Decker: Those countries subject to the revised Berne convention, which is most countries, are party to copyright, which expires 70 years after the death of the creator. Should a creator reach old age, their works would therefore be protected for longer than those of an artist, who died young.
WHAT DOES ARTISTIC FREEDOM MEAN ?
“Art is the daughter of freedom,” wrote Friedrich Schiller. “Art is free – the law sets thresholds”, states the legal expert Prof. Haimo Schack, and therefore refers to the tense relationship between art and law. Art is a challenge for the legal system, and especially the concept of artistic freedom. What does artistic freedom mean from a legal point of view? Are there legal restrictions?
Dr. Pascal Decker: The constitution guarantees artistic freedom without restraint– this is the strongest form of guaranteed freedom in the sense of one’s basic rights, as many other basic rights are subject to explicit limitations. The constitutional legislator has therefore made clear, that they believe art to be extremely important in regards to our free democratic basic order, and they have made it difficult to implement restrictions in this respect. Artistic freedom may very well be restricted – however, the reasons in this regard must be extremely significant. From a judicial point of view, one speaks of “inherent constitutional restrictions”, meaning legal rights, which are also protected by the constitution, such as other people’s basic rights. In case of a conflict, these legal rights and the right of artistic freedom must be evaluated, so as to establish, which is to be treated with a higher priority in specific cases. If you look at constitutional case law in the last decades, typical cases have been insults, where the rights of the respectively insulted party were taken into consideration, cases with pornographic implications, where the protection of minors and ethical concerns were of relevance, and cases regarding animal rights – such as the “blood art” created by Hermann Nitsch.
Recently, this question became relevant in the Böhmermann case. Here, it was considered, whether Böhmermann’s “poem” should be subject to artistic freedom as satire, or whether it should be treated as punishable abusive criticism, and therefore as an insult. So far, this case seems to lean towards artistic freedom in case of doubt, i.e. in dubio pro libertate.
Are you able to name cases, where copyright (or ancillary copyright) was restricted in favour of artistic freedom?
Dr. Pascal Decker: The discussions surrounding copyright and its limits are some of the most thrilling, legal and political discussions of our time, and will continue for some time. Digitalisation has led to an unfathomable number of cases, where copyright has been ignored, or even cancelled. The argument for at least trying to establish a judicial argument tends to lean towards the argument that artistic freedom should mean that art may be utilised freely – meaning without restriction as a result of the rights of other copyright holders. But it is not that simple. We have rightfully developed a system of intellectual ownership, which is trying to balance the interests of the artists, namely to live off their art, against the interests of the public, namely the free utilisation of their art – especially in regards to master copiers. If this were ignored, then this would have serious implications in regards to the creative scene.
THE RISK OF DISPROPORTIONATE KNOWLEDGE
How should the risk of disproportionate knowledge in regards to the value-generating identity of art be handled from a legal point of view? An example would be the famous case of the Augsburg auction house, which sold a Persian rug for €20,000 as a “bedside carpet”, which was then acquired by Christie’s – the London auction house had identified it as a valuable vase carpet from the 17th century – for 7 million Euros, which led to the original owner suing the Augsburg auction house. Are there legal regulations in regards to the risk of informational imbalances in regards to dealing in art?
Dr. Pascal Decker: Some market actors have better knowledge than others and utilise this to gain own economic advantages. From a market-based point of view, this is not objectionable, as long as the competitive advantage was acquired in a fair manner and was not based on dishonest means. Examples would be insider dealings, which should be treated similarly to the financial industry, or market manipulations, such as agreements between sellers and bidders, in order to achieve particularly high prices for certain artworks – here, anti-trust laws may apply. For some years now, our law offices have been actively pushing for a discussion of compliance regulations for the art market, as we believe that fair rules would be advantageous for all market actors.
I believe that the example of the rug touches upon a different area – not the person, who benefited from competitive knowledge was sued, but a local auction house, which, in the opinion of the seller, should have been privy to the same knowledge, and which should have prevented an auction below value.
As demonstrated in the case of the Augsburg auction house, art experts play an important role within the art market, as they have “appreciation authority” by certifying the authenticity of works, which is a contributing factor towards an according monetary appreciation. How does the legislator regulate the liability of art experts, seeing that the term “art expert” is not a protected term, at least not in Germany? Are there certain requirements, in order to lessen the risk in regards to the valuation of art?
Dr. Pascal Decker: I believe that the significance of art experts is being discussed even more prominently as a result of the Beltracchi forgeries, more so than the Augsburg carpet case. It was recognised experts, which lent a certain authenticity to the sham by means of their expertise, which therefore made it possible. The liability of experts is based on general civil law, whereby we have to differentiate between cases, where the client is an expert and is objecting mal-performance, and cases, where a third party relies on a requested valuation in regards to an according appreciation. Third party liability in regards to expert evaluations cannot be constructed very easily, as it has to be demonstrated that the expert committed mistakes in regards to the evaluation, and that they also acted in the knowledge, that their evaluation would be used by third parties – this is not impossible, but complex.
I believe that current developments are going in a different direction. I believe it likely that there will be a legal requirement in regards to the standard of due diligence in the coming years regarding auctions and public sales, and that material expert opinions shall need to be obtained as of a certain value – this would mean that the importance of art history expert opinions would decrease as a result.
When may an artwork be referred to as an antique?
Dr. Pascal Decker: The term “antique” has neither been defined nor protected by law. However, antiques have become a common term within the industry when referring to items with an age of more than 100 years. There is a definition for antiques in the customs tariff, which refers to the tax applicable when importing art objects. Here, 100 years have been stated. It may be possible that modern practices are based on this.
What are the criteria upon which an object is defined as “especially significant and therefore identity-generating” as per the new cultural assets protection act?
Dr. Pascal Decker: This classification is the responsibility of the respective states. Whether works are “especially significant” in terms of cultural heritage, is regularly decided upon on an individual basis. Here, each Federal state is to appoint an expert committee as per the cultural assets protection act, which is to evaluate the respective works. I believe that they are therefore touching upon a criticisable aspect. Apart from insufficient determinants, such as age and market value, it is very difficult to say why an artwork is significant, or why it should have identity-generating powers.
The Act to Protect German Cultural Property against Removal has been in force in Germany for just under a year, and it has led to much criticism and outrage. Is it possible to say today, whether the law has met or missed the respective project definitions?
Dr. Pascal Decker: Monika Grütters has struck a relatively positive balance in regards to the feared administrative expenses in regards to the new law. From talking with our clients, but also based on public trade statements, I have my doubts.
We still believe that the authorisation process is too complicated and bureaucratic. If the feared “flood of applications” for works to be registered has not yet occurred, this could also be a problematic indication in that the law, and its requirements, is simply being ignored by many. From a constitutional point of view, this scenario is the worst: if the legislator increases the requirements in regards to a certain area to such an extent, that no one really adheres to them, the credibility of the system itself will suffer.
Furthermore, the law has caused significant collateral damage merely as a result of the turbulent way, in which it was created. The art market is a decentralised market, which places great importance on freedom and discretion. This law ignores the logic of the market, and is therefore damaging to the market merely by existing.
The respective development now depends on the intended evaluation of the law in 2018 – one should not give up hope.
CRITERIA FOR AN ACQUISITION OF ART
Please could you name three basic rules in regards to the acquisition of art, which you believe are important?
Dr. Pascal Decker: I will name you one, as I believe it to be the most important one: buy with your eyes, not with your ears. This means that you should not listen to utterings in regards to the value and recoverability of an artwork, and that you should only trust what you see. And do make the most of any opportunity to train your eyes. You will then be able to develop an own and sustainable understanding of quality, which will enable you to acquire art whilst relying on your heart and your head.
Dr. Pascal Decker, Art lawyer and collector
Pascal Decker is founding partner at dtb rechtsanwälte – a boutique law firm especially designed for middle-sized businesses and clients in the art sector. He represents German and international clients such as art market professionals, art collectors, artists as well as public art institutions. Pascal Decker is familiar with all legal issues arising when trading, investing and collecting in art. He is a lecturer of the certificate course on ‘Curating’ at the University of Art in Berlin and a regular contributor to the Art Market section of the “Handelsblatt” newspaper, “Frankfurter Allgemeine Zeitung” and artnet.
Pascal Decker is director of the Brandenburger Tor Foundation and the Rolf Horn Foundation, as well as chairman of the board of TOKUGAWA company. He also serves as Chairman of the Friends of KunstWerke (KW – Institute for Contemporary Art) and is a member of various other arts-funding and cultural organizations.