Judith B. Prowda is Senior Lecturer at Sotheby’s Institute of Art-New York and an internationally acclaimed attorney-at-law in New York City focussed on intellectual property, art law, as well as mediation and arbitration. She has contributed articles and chapters to many legal publications.

Visual Arts and the Law

A Handbook for Professionals

By Judith B. Prowda

Lund Humphries

Copyright © 2013 Judith B. Prowda
All rights reserved.
ISBN: 978-1-84822-086-7

Contents

Acknowledgments,
Foreword,
Preface,
Introduction: What is Art in a Legal Context?,
Part One Artists’ Rights,
Chapter 1 Freedom of Expression and Controversial Art,
Chapter 2 Limitations on Freedom of Expression: Personality Rights of Privacy and Publicity,
Chapter 3 Principles of Copyright,
Chapter 4 Copyright Infringement and Defenses,
Chapter 5 Moral Rights,
Chapter 6 The Artist’s Resale Right,
Part Two Artists’ Relationships,
Chapter 7 The Artist–Dealer Relationship,
Chapter 8 Artist Commissions,
Part Three Commercial Aspects of Art,
Chapter 9 Private Disposition of Art,
Chapter 10 Auctions,
Chapter 11 Expert Opinions,
Chapter 12 Title Problems and Stolen Art,
Conclusion,
Notes,
Bibliography,
Glossary of Legal Terms,
Index,

CHAPTER 1

FREEDOM OF EXPRESSION AND CONTROVERSIAL ART

People have intense emotional responses to images. They are “sexually aroused by pictures and sculptures; they break pictures and sculptures; they mutilate them, kiss them, cry before them, and go on journeys to them; they are claimed by them, stirred by them, and incited to revolt.”

Perhaps the greatest act of cultural vandalism so far this century — and the most visually memorable — was the carefully staged destruction by the Taliban of the great rock sculptures of the ancient Buddhas of Bamiyan in March 2001. During peacetime as well, artworks have been subject to destruction, banned and censored because of their social, political, or religious viewpoints, or sexually explicit content. Like other forms of speech, art can express controversial ideas in ways that some may find objectionable. Thus, there can be an innate conflict between freedom of expression and a given society’s restrictions that may incite violence, hate speech, and obscenity.

For many, there is great social value in artists having freedom to express their thoughts without restriction. It is an aspect of liberty and is often necessary for an artist’s search for truth. As Professor John Henry Merryman states, “[a]rt is often the vehicle for expression of the artist’s thought, and if we believe that the truth emerges from the free play of ideas we must express artistic expression.” How then does the law deal with governmental regulation of artistic freedom of expression?

LIMITATIONS ON FREEDOM OF EXPRESSION FOR ARTWORK

Early Obscenity Law

Obscenity is a category of expression that is not legally protected in the US or the UK. It is therefore incumbent on artists and anyone working with artists to understand the risks involved in creating, selling, or exhibiting art containing provocative or controversial material that the public may find objectionable. As the term “obscenity” has evolved over the centuries and cannot be finally determined, it can be very difficult to know what is or will be prohibited.

In 17th-century England, the law was mainly concerned with suppressing political and religious views, and occasionally with prosecuting public obscenity that constituted a breach of the peace. In comparison, laws prohibiting obscenity in the US were not enacted until the 19th century. The experience in the US was nonetheless greatly influenced by Victorian era legal standards in England.

Perhaps the earliest case to define obscenity was the English Victorian era case Regina v. Hicklin, which involved a pamphlet entitled The Confessional Unmasked; shewing the depravity of the Romish priesthood, the iniquity of the Confessional, and the questions put to females in confession. The pamphlet dealt mainly with the author’s perceived views of the dangers of the confessional, illustrated by the types of questions that Roman Catholic priests allegedly asked young women. The English court stated that the test for obscenity was “whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.” In other words, if the work falls into the hands of particularly susceptible persons and has a tendency to corrupt those minds toward “impure and libidinous” thought, then it is to be suppressed as obscene. Certain exceptions were made for classical literature, but several were declared obscene under this standard, including Theodore Dreiser’s An American Tragedy (1925) and D.H. Lawrence’s Lady Chatterley’s Lover (1928).

The importance of Hicklin, which remains the test for publications in the UK and was subsequently adopted by US courts at the turn of the century, was twofold. First, the intent of the pamphlet was held to be irrelevant, which implied that a work was not considered as a whole, but page by page. Second, since the pamphlet was considered obscene per se, the burden was on the defendant to prove his innocence, not for the prosecution to prove his guilt.

Modern-Day Obscenity Law in the UK

The law in the UK today is governed by the Obscene Publications Act, enacted in 1959. Under the Act obscenity is defined as content whose effect, if taken as a whole, will “tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.” There is a defense in support of the “public good” if the defendant can produce expert evidence to prove that publication was in the interest of, for example, “science, literature, art or learning, or of other objects of general concern.”

One of the most celebrated obscenity cases in the UK was brought in 1960 against Penguin Books for the posthumous publication of Lawrence’s infamous Lady Chatterley’s Lover. Penguin Books defended the novel’s literary merit under Section 4’s “public good defence,” relying on the expert testimony of luminaries such as E.M. Forster during a six-day trial at the Old Bailey. The case became a flash point for the ongoing duel between the conservative establishment and the increasingly liberal publishing industry. The ruling granted more freedom to publish explicit material and was seen as heralding “a new wave of sexual ‘morality’ for which the 1960s is now famous.” This case paralleled a case in the US, with the same result, although the process was different. The American case was based, for constitutional reasons, on freedom, not morality.

In the 1970s, there were two seminal obscenity cases, both of which resulted in no finding of obscenity. One case concerned the Schoolkids OZ issue 28 of May 1970, and in the first instance resulted in the convictions of three editors in 1971 for “conspiracy to corrupt and debauch the morals of the young of the Realm.” This case concerned the publication of a cartoon montage of a highly sexualized Rupert Bear. On appeal, the convictions were overturned and sentences quashed. In the second case, a jury returned a verdict of not guilty for the publishers of Inside Linda Lovelace (1974), on the ground that the novel would not corrupt or deprave those who were likely to buy the book. Purely textual material has not been prosecuted in the UK since then, except for a case that was dropped in 2009 where an author of a violent rape fantasy was charged for posting obscenity on the Internet.

Evolution of Obscenity Law in the US

Freedom of speech is among the most fundamental and cherished rights protected by the US Constitution. While the language in the First Amendment is expansive (“Congress shall make no law … abridging the freedom of speech”), it does not protect all forms of expression. The framers of the Constitution intentionally left the boundaries between protected and unprotected speech up to the courts to interpret as society evolved. To this day, the US Supreme Court has not given a clear definition of obscenity, although it has attempted on many occasions to analyze the problem. As a result, this area of First Amendment law is probably the most difficult to navigate.

There are many different forms of speech and expressive conduct that are protected under the First Amendment, but the law varies as to the level of protection for each. Verbal speech and written speech are generally the most protected. The law has recognized that speech may be non-verbal as well, beginning with the 1931 Supreme Court decision Stromberg v. California, which struck down a California statute banning the display of a red flag as a symbol of protest. The Court found that the statute, which prohibited the display of the flag as a sign of opposition to organized government, was unconstitutional because it could be construed to prohibit peaceful and orderly opposition to government by legal means. Artists also engage in symbolic, or expressive, conduct that is protected under the First Amendment, but courts often do not accord visual art the same level of protection as verbal or written communication, which is considered pure political speech. A final category of speech, physical conduct, has traditionally received the least protection.

The Mid-20th Century

Until the middle of the 20th century, US courts were applying the 1868 British Hicklin standard to define obscenity, such that material is obscene if it tends “to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.” As American courts used the Hicklin standard to increasingly prosecute obscenity, the ironic social, economic, and cultural consequences included increased proliferation of erotic representations. Publishers turned to postal mail to market and distribute proscribed materials, created new genres of indecent literature, and used the obscenity prosecutions to advertise the emerging pornography trade spreading knowledge to potential consumers. Finally, in 1934 the Second Circuit Court of Appeals abandoned the Hicklin standard, legalizing James Joyce’s Ulysses (1922). The proper obscenity standard must not look at isolated passages, but must determine “whether a publication taken as a whole has a libidinous effect.”

It was not until two decades later in 1957, in Roth v. United States, that the US Supreme Court squarely confronted the question of whether obscenity is a protected form of speech under the First Amendment of the US Constitution. In Roth, the Court affirmed a conviction of a New York publisher and distributor of books, photographs, and magazines for violating a federal obscenity statute by mailing obscene circulars and by advertising an obscene book. The Court, in a 6-3 opinion by Justice Brennan, held California and federal government restrictions on obscene expression did not violate the First Amendment because “obscenity is not within the area of constitutionally protected speech or press” as it is “utterly without redeeming social importance.” The Court defined “obscene material” as “material which deals with sex in a manner appealing to prurient interest,” and “prurient interest” as “lustful thoughts … itching, morbid, or lascivious longings … a shameful or morbid interest in nudity, sex, or excretion.”

The Roth Court established a new test: “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” If the allegedly obscene material had “even the slightest redeeming social importance,” it was constitutionally protected. In other words, the Court assumed that what was “obscene” could not possibly have any redeeming social value. The Court noted further that “sex and obscenity are not synonymous,” and that the “portrayal of sex, e.g., in art, literature and scientific works” is entitled to “the constitutional protection of freedom of speech and press” so long as it was not deemed obscene.

Seven years later, in Jacobellis v. Ohio, the Supreme Court reversed a conviction under an Ohio statute that banned the possession and exhibition of obscene films. After viewing the film in question, an artistic French film, Les Amants (The Lovers) (Louis Malle, 1958), the Court was not convinced that it was obscene, and rejected the state’s argument that the community standards referred to in Roth were local rather than national. Allowing local standards to govern would have “the intolerable consequence of denying some sections of the country access to material, there deemed acceptable, which in others might be considered offensive to prevailing community standards of decency.” Summing up the Court’s task of “trying to define what may be indefinable,” Justice Potter Stewart famously attempted to distinguish what is “hard-core pornography” in his concurrence, by stating: “I shall not today attempt further to define the kinds of material I understand to be embraced … and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.”

Two years later, in 1966, the Massachusetts Attorney General sought to have John Cleland’s book Memoirs of a Woman of Pleasure (popularly known as Fanny Hill) (1748) declared obscene. The Supreme Court refused, holding that the mere risk that a work “might be exploited by panderers because it so pervasively treats sexual matters” was not sufficient to make it obscene. The Court articulated several approaches for obscenity, including a three-part test, which was enunciated in the leading plurality opinion. Under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that “(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.”

The Modern Trend in Obscenity Law: The Miller Standard

In the 1973 Supreme Court landmark case Miller v. California, a new test for obscenity was adopted that remains the current standard today.

In Miller, the defendant had conducted a mass mailing to advertise the sale of “adult” material. Several unwilling recipients of the sexually explicit brochures complained to the police, which initiated the legal proceedings. Following a trial, Miller was convicted of violating a California statute prohibiting the unsolicited distribution of obscene material. On appeal, the Supreme Court noted that “[s]tates have a legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles.” The Court limited the scope of obscenity regulation by states to works depicting sexual conduct and held that a work is to be adjudged as obscene based on the following three-prong test, refining the Memoirs test: “(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”

From the Court’s new formulation emerged several important revisions of the law. First, the Court rejected the requirement that a work must be “utterly without redeeming social value” in order to be adjudged obscene. To prove a negative would be “virtually impossible.” Second, the “community standards” for obscenity were local, rather than national because “our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists.”

The community standards guideline, however, was not intended to give states complete autonomy. The second prong limited the restriction to materials depicting sexual conduct. The Court gave two examples of what a state statute could define for regulation: “(a) [p]atently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated,” and “(b) [p]atently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.”

Third, only hard-core pornography was considered obscene and therefore subject to state regulation. Henceforth “no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct specifically designed by the regulating state law, as written or construed.”

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