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O rder N um ber 1356869 A m oral dilem m a: E ducating undergraduate fine arts students about th eir legal rights and professional issues Seltzer, Jerri Lynne, M. The American University, 1993 UMI 300 N. Ann Arbor, MI 48106 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. A MORAL DILEMMA: EDUCATING UNDERGRADUATE FINE ARTS STUDENTS ABOUT THEIR LEGAL RIGHTS AND PROFESSIONAL ISSUES by Jerri Lynne Seltzer submitted to the Faculty of the College of Arts and Sciences of The American University in Partial Fulfillment of the Requirements for the Degree of Master of Arts in Performing Arts: Arts Management Signatures of Committee: iir: 'KJ'zJLqs— I- Chai] cK Dean of *the College Date 7-J1-93 1993 The American University Washington, D. 20016 THE UEBICiS m H V E B S m IIBE4EY Reproduced with permission o f the copyright owner.
Further reproduction prohibited without permission. © COPYRIGHT by JERRI LYNNE SELTZER 1993 ALL RIGHTS RESERVED Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. A MORAL DILEMMA: EDUCATING UNDERGRADUATE FINE ARTS STUDENTS ABOUT THEIR LEGAL RIGHTS AND PROFESSIONAL ISSUES BY Jerri Lynne Seltzer ABSTRACT In the United States, visual artists have begun to possess more complete legal protections for their moral rights.
But although the legal protections governing visual artists have significantly changed, visual art students may not be taught enough about them to receive the full benefit when they begin their careers as artists. Through a brief description of the history and scope of artist's moral rights laws, their importance and possible inadequacies are explained. Cases are presented which illustrate the problems encountered when visual artists have not been fully aware of the scope of art law. A survey of undergraduate fine art schools examines how fine arts students are educated about their legal rights and other professional issues.
Finally, a sample curriculum including art law is suggested, as well as legal references. ii Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. TABLE OF CONTENTS A B S T R A C T.
A BRIEF HISTORY OF ARTIST'S RIGHTS. THE EDUCATION OF VISUAL ART STUDENTS IN THE UNITED STATES. A COURSE PROPOSAL:FILLING THE GAP INARTIST'S T R A I N I N G. LIST OF ASSOCIATION OF INDEPENDENT COLLEGES OF ART AND DESIGN MEMBERSHIP SCHOOLS 1992-93.
49 iii Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. CHAPTER ONE INTRODUCTION In the past, artists in the United States have possessed little protection under the law for themselves or their art works, as sculptor David Smith bitterly discovered. In early 1960, one of his works had been altered by its owner without his knowledge or consent.
Smith considered the alteration mutilation. He tried to regain ownership of the work, but no laws protected against alteration or mutilation, and no signed contract gave him the authority to recover the work from its owner. He had no recourse in the situation, and thus felt forced to renounce the work, stating, "There seems to be little legal protection for an artist in our country against vandalism or even destruction. I ask other artists to beware.”1 At the time, he was correct.
However, since 1980, various state and Federal laws have been enacted, allowing visual artists greater protection for their moral rights. The international Berne Convention for the Protection of •Rosalind Krauss, "Changing the Works of David Smith,” Art in America 30 (September/October 1974): 31. 1 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Literary and Artistic Works,2 and the Visual Artist's Rights Act of 19903 inherently protect artists and their works. Coupled with state statutes, a comprehensive contract and knowledge of common business practices, visual artists now can be legally protected in most situations where their rights have been infringed. Despite this, schools that educate undergraduate art students may not be teaching enough about legal protection governing artist's rights and common practices within the art business. Although visual artists today have many legal rights, without the proper education about such rights, they may not be completely protected.
Only when visual artists are alerted to the myriad of issues that may affect them and their careers, can it be insured that they can make informed decisions about selling works and contracting with dealers. Artists should be educated about legal and professional issues. Visual artists now have the advantage of improved legal protection, and the knowledge of past injustices and plus access to numerous professional resources. Studying them might result in further advantages.
As they more fully understand the protection 2Berne Convention for the Protection of Literary and Artistic Works, reprinted in World Intellectual Property Organization. Guide to the Berne Convention for the Protection of Literary and Artistic Works (Paris Act, 1971), 1978. 3Visual Artist's Rights Act of 1990, Pub. Reproduced with permission of the copyright owner.
Further reproduction prohibited without permission. they possess under United States law, and deficiencies in the law, they will be better able to protect their own interests. With improved knowledge of common legal practices, artists may be able to spend less time hassling with disagreements and lawsuits, and thus spend more of their time creating art. For a study conducted in 1986 by the Research Center for Arts and Culture at Columbia University, statistics were collected.
A survey was taken of artists from New York State who had applied for a 1985 fellowship from the New York Foundation for the Arts. The survey discovered that 93 percent of the respondents believed themselves to be professional artists. Yet 42 percent of them earned only between $0 and $2,000 gross income in 1985 from their artistic endeavors, with only 7 percent earning more than $20,000. Between 82 and 85 percent indicated that one of the most important reasons they were considered professional artists was that they, ".
spend a substantial amount of time creating art."4 What can be done to reduce the disparity between what artists believe their profession to be, and how artists earn their living at this profession? One way is to ensure that they are properly educated about how to run and market their 4Joan Jeffri, Joseph Hosie, and Robert Greenblatt, "The Artists Alone: Work Related, Human and Social Service Needs - Selected Findings," The Journal of Arts Management and Law 17 no. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. business, so they are as productive and efficient as possible.
This thesis provides a background about laws affecting artists, presents cases illustrating problems past artists have encountered, surveys art schools to discover what legal education they are providing, and ultimately suggests a broader fine arts curriculum that includes not only creative theory, but legal theory and practice as well. The stereotype of artists unwilling or unable to successfully conduct business in a professional manner can be changed by providing visual artists with a more complete legal and business education. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
CHAPTER TWO A BRIEF HISTORY OF ARTIST'S RIGHTS Educating artists about their rights and common business practices can possibly prevent costly, time- consuming litigation. Knowledge of the history and scope of artist's moral rights can help current visual artists recognize their relevance, and can help them realize the loopholes and problems existing in the United States legislation. This knowledge can help them protect themselves and their work. An artist's creative output is protected under the same laws as personal property.
Works of art, however, can be understood as unique extensions of the artist's personality and, therefore, deserve rights to protect them.1 According to Franklin Feldman, Stephen E. Weil and Susan Duke Biederman in their 1986, book Art Law: Rights and Liabilities of Creators and Collectors. "The author has, in a sense, made a gift of his creative genius to the world; in return, he has a right - a moral right - to expect that •Martha Buskirk, "Moral Rights: First Step or False Start?" Art in America 79 (July 1991): 37. 5 Reproduced with permission of the copyright owner.
Further reproduction prohibited without permission. society respect his creative genius."2 Specific rules should govern how objects of art are treated. In John Henry Merryman and Albert E. Elsen's volumes, Law.
Ethics, and the Visual Arts. the work of art is an expression of the artist's personality. Distortion, dismemberment or misrepresentation of the work mistreats an expression of the artist's identity, personality, and honor, and thus imparts a legally protected personality interest.3 Artist's rights have become known as moral rights, not referencing the actual morality of the work but rather the ethics of protecting the artist's interest in the work as an extension of his personality and character. "Moral rights are generally considered to be perpetual, inalienable, and imperscriptable because they remain vested with the creator even after the work is sold or transferred."4 Through the years, moral rights have been recognized around the world and codified into law.
Art always has existed as a part of ritual daily life. Works created as religious pieces were associated with their function, as well as with any artistic merit. The first known cases of artists claiming moral rights occurred in 2Franklin Feldman, Steven E. Weil and Susan Duke Biederman, Art Law: Rights and Liabilities of Creators and Collectors.
3John Henry Merryman and Albert E. Ethics, and the Visual Arts. 1 Philadelphia: University of Pennsylvania Press, 1987, 142. van den Heuvel, "Moral Rights for Artists: the Development of a Federal Policy," The Journal of Arts Management and Law 19, no.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Greece in the seventh century, B. By signing their works, these early Greek artists asserted their right of authorship.5 The right of authorship was the main artists' right from the Middle Ages through the Renaissance.
Artists were commissioned by patrons or worked collectively in guilds, with the patrons receiving any prestige or honor accorded to the work.6 Moral rights gained recognition in Italy and other European nations during the Renaissance, and the 19th Century French courts codified these authorship concepts as droit moral. Droit moral, "is by nature non-pecuniary. It is a collection of prerogatives, all of which proceed from the necessity of preserving the integrity of intellectual works and the personality of the author.