Table of Contents

Table of Contents Introduction: Part 1 Art, Society and the Law

Chapter 1 Introduction
1.1. Gelitin and their Arc de Triomphe 1.2. The problem 1.3. American law 1.4. France 1.5. Conclusion

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Chapter 2 Deconstructing Individual Authorship: Artworks as Collective Products of Art Worlds

2.1. Introduction 2.2. Making art: art worlds as co-operative networks 2.3. Interpreting art: art worlds as cultural communities 2.4. Contesting art: art worlds as social arenas

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40 41 45 50

Part 2 The artist and his artistic creation

Chapter 3 WARNING! Youll Be Shocked! Dealing with Offensive Art: Erotic Art and Hate Art in Transatlantic Perspective
3.0. Introduction 3.1. The Protection of Offensive Art: the right to offend 3.1.1. The Freedom of Art 3.1.2. Offensive Art in the Postmodern World 3.2. Censoring Offensive Art: A Transatlantic Comparison 3.2.1. Erotic Art: Obscenity and Indecency 3.2.1.1.1. The United States: obscenity and less value art

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a. Carving Obscenity out of the First Amendment b. Less Value Speech and Pornography 3.2.1.1.2. Europe compared: French outrage aux bonnes moeurs 3.2.1.2.1. The United States: Ofcial Art without Ofcial View 3.2.1.2.2. Europe compared: Ofcial View without Ofcial Art 3.2.2. Hate Art: Restrictions on Hate Speech 3.2.2.3.1. Cross-burning: Virginia v Black 3.2.2.3.2. NEA and the Respect Prong 3.2.3. Explaining the Difference: Civility vs. Decency? 3.2.4. Conclusion: The Limits of Law 3.3. Alternative WAYS of Dealing with Offensive Art 3.3.1. Counterspeech: Talking Back to Offensive Art 3.3.2. The Role of the Exhibitor: A Bridge towards the Community 3.4. Conclusion: the Artist and the Community

65 67 67 70 73 75 81 82 83 84 86 86 87 90

Chapter 4 The Social Status of the Artist: A Moving Picture

4.1. Looking at the artists status: meanings, reasons and purposes 4.1.1. The Need for Special Treatment 4.1.2. Dening and Recognising the Artist As a Worker 4.2. The moving international and EU context 4.2.1. International Initiative 4.2.2. European Initiative 4.3. Moving employment law 4.3.1. Employment Status 4.3.2. Insecurity and Precariousness 4.3.3. Artist Representation and Collective Defence 4.4. A moving and multidimensional picture

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95 95 96 98 98 101 106 106 107 109 110

Chapter 5 Art and Social Security

5.1. What is social security? 5.2. Artists in social security? 5.3. Who are artists? 5.4. When do artists work? 5.4.1. Contribution Duty 5.4.2. Entitlement to Benets 5.5. When are artists disabled? 5.6. The international element 5.7. Conclusion

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Chapter 6 Digital Preservation of the Cultural Record in Archives: A Comparative Copyright Analysis
6.1. Exclusive economic rights applied to the activities of archives 6.1.1. Acquisition and Preservation of Records 6.1.2. Dissemination of Records 6.2. The impact of moral rights on the activities of archives 6.3. Exceptions in favour of archives 6.3.1. Temporary Reproduction 6.3.2. Ofcial Documents and Public Speeches 6.3.3. Archives Exemption 6.3.4. Abuse of Right versus Fair Use 6.4. Copyright protection for special kinds of copyrighted works 6.4.1. Software 6.4.2. Databases 6.5. Legal protection for technological measures and rights management information 6.5.1. Denitions: Rights Management Information 6.5.2. Denitions: Technical Measures 6.5.3. Scope of Protection: Copyright Management Information 6.5.4. Scope of Protection: Technical Measures 6.5.5. Exceptions for Archives 6.5.6. Impact on Digital Archiving 6.5.7. The Future of Digital Archiving 6.6. Conclusion

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134 135 136 140 142 144 147 147 151 155 155 158 161 164 165 168 171 177 181 182 186

Chapter 7 The Payer Determines, or Does He?

7.1. Introduction and denition of the problem 7.2. Cases taken from Literature and case law: complete demolition and destruction 7.2.1. Koetsier v NV Schiphol 7.2.2. Lenartz and the Municipality of Sittard 7.2.3. Van den Berg and the University in Groningen 7.3. Problematic cases taken from the legal literature and the case law: less radical disposal 7.3.1. Struycken and the NAI 7.3.2. Halewijn and the Weekly Periodical Story 7.3.3. Oxenaar and Kruit on the One Hand, Ohra on the Other 7.3.4. Hageblling and the German City of Minden 7.4. Applicable ruling, taken either from treaties or from national statutes 7.5. Elaboration of the problematic cases of complete destruction or dismantling 7.5.1. Koetsier and Schiphol Ltd. 7.5.2. Lenartz and the Municipality of Sittard 7.5.3. Van den Berg and the University of Groningen

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7.6. Problematic cases in literature and case law: less radical disposal 7.6.1. Struycken and the Netherlands Architecture Institute 7.6.2. Halewijn and the Periodical Story 7.6.3. Oxenaar and Kruit on the One Hand, Ohra on the Other 7.6.4. Hageblling and the City of Minden 7.7. Is there more to be said relating to these cases? 7.7.2. Destruction Does Not Qualify as a Forbidden Atteinte 7.7.3. Conversions or Alteration 7.8. Conclusion

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7.7.1. Does Complete Destruction Qualify as Atteinte as Mentioned in the Berne Convention? 211

Chapter 8 Does the Moral Right of the Author Extend to Destruction of his Work?
8.1. Introduction 8.2. BelgiumThe destruction of a work of art. Can moral rights come to the rescue? 8.2.1. The Right of Integrity in Belgium 8.2.2. Overview of Belgian Case Law 8.2.3. Discussion 8.2.3.2.1. A dilemma (partially) solved by the concept of abuse of right 8.2.3.2.2. Both subjective rights are equal (and none is more equal) 8.2.3.3.1. The nature of the work 8.2.3.3.2. Motives underlying the destruction 8.2.3.4.1. Duty to inform 8.2.3.4.2. Duty to maintain? 8.2.4. Concluding Remarks 8.3. The Netherlands Morals, Dogma and Destruction: Revolutionary Dutch Perspectives (?) 8.3.1. Introduction 8.3.1.1. Diverging Views 8.3.1.2. Honour and Reputation of the Author as the Core Value of Copyright 8.3.1.3. Conditions for a Valid Reason for Destruction 8.3.1.4. Jelles v Zwolle: Abuse of a Right Instead of Violation of a Right of Integrity 8.3.1.5. Consequences of the Decision: Increased Protection 8.3.1.6. Consequences of the Decision: Practice 8.3.1.7. Conclusion 8.4. GermanyThe moral right defence against the destruction of a work of art 8.4.1. Case Law: a Defence Against Partial Destruction Only 8.4.2. Legal Literature: Arguing Against the Legitimacy of Destruction 8.5. ConclusionThe right of integrity vS. the right of destruction: a balancing act 8.5.1. The International Scene 8.5.2. The National Scene

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Chapter 9 The moral right of Jeff Kloons

Introduction 9.1. Exploiting the Masses And Fair Use 9.1.1. PreliminarilyThree Banalities Alike? 9.1.2. On Infringement: A Dandy Disarmed 9.1.3.1.1. Purpose and character of the use 9.1.3.1.2. Nature of the Original Copyrighted Work 9.1.3.1.3. Amount and Substantiality of the Work Used 9.1.3.1.4. Effect of the Use on the Market Value of the Original 9.1.4. The Koons Cases and Moralism 9.2. A Place Under the Sun For Appropriation Art? 9.2.1. Law and Economics, the Landes Way 9.2.2. First Amendment Hocus-Pocus? 9.2.3. Modications of the Copyright RegimeThe Radical Departures 9.2.4. Modications of the Copyright Regime The Softer Recipes and the Fair Use Perspective 9.2.5. Borrowing From Activism in the Music Sector? 9.2.6. Cleaning Up the Mess of Rogers 9.3. Conclusion

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9.1.3. Fair Use in the Second Circuit and the New York District Court: Banality Is No Saviour 265

Chapter 10 One Year and Millions of Euros Later: Taking Stock of the Implementation of the European Directive 2001/84/EC on Droit de Suite
10.1. Introduction 10.2. The key provisions of the Directive 10.2.1. Right to Information 10.2.2. The Management of Royalties: Collecting Societies 10.3. Implementation of the Directive in four Member States 10.3.1. Member States with Droit de Suite Legislation prior to the Directive 10.3.1.1.1. Previous regime 10.3.1.1.2. Implementation in Belgium 10.3.1.2.1. Previous regime 10.3.1.2.2. Implementation in Germany 10.2.2. Member States without Droit de Suite Legislation prior to the Directive 10.3.2.1.1. Previous regime 10.3.2.1.2. Implementation in the Netherlands 10.3.2.2.1. Previous regime 10.3.2.2.2. Implementation in the United Kingdom 10.5. Bibliography

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Part 3 The artwork and its preservaton

Chapter 11 The Protection of the Archaeological Heritage: The United States and Belgium compared.
11.1. Context and purpose of the contribution 11.2. Context of the Protective Systems 11.2.1. The United States 11.2.2. Belgium/ The Flemish Region. 11.3. Dening the Archaeological Heritage 11.4. Protecting the Archaeological Heritage 11.4.1. Inventories 11.4.2. Excavation 11.4.3. Protection Procedures 11.4.4. Legal Consequences 11.4.5. Goods Found by Chance 11.4.6. Moveable Cultural Heritage 11.4.7. Financial Support 11.4.8. Link With Other Regulations 11.4.9. Some observation

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320 321 321 322 324 325 325 326 327 331 333 333 334 335 336

Chapter 12 UNESCOs Convention on Cultural Diversity and WTO Law: Complementary or Contradictory?
12.1. Introduction 12.2. Basic Features of the UNESCO Conventionon Cultural Diversity 12.2.1. Scope of Application 12.2.2. Rights and Obligations of the Parties to the Convention 12.3. The WTO Agreements and Cultural Diversity 12.3.1. The Dual Nature of Cultural Goods and Services 12.3.2. The Provision of Cultural Goods and Services as a Clear Example of Market Failure 12.3.3. Culture-Sensitive Provisions in the WTO Agreements? 12.4. Intersections between the WTO and the UNESCO Conventionon Cultural Diversity 12.4.1. Measures to Promote and Protect Cultural Diversity 12.4.2. Promoting Cultural Diversity in Development Policies 12.5. Conict of Norms 12.5.1. General Principles on Resolving Treaty Conicts 12.5.2. Conict Clauses and Their Practical Application 12.5.3. The Role of the Dispute Settlement Body 12.5.4. Evaluation of the Conict Clause in the Convention on Cultural Diversity 12.6. Conclusion

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Chapter 13 The Art of War: Protecting Art in War

13.1. Introduction 13.2. Why does Art become a victim of Armed Conicts? 13.3. Historical Overview 13.4. The Protection of Cultural Objects in Armed Conicts 13.4.1. Protection of Cultural Objects by the Conventions of the Hague of 1907 13.4.2. The Protection Offered by the Convention for the Protection of Cultural Property in the Event of Armed Conict of 1954 13.4.3. Subsequent Developments in the Protection of Cultural Objects 13.4.3.1.1. The four Geneva Conventions 13.4.3.1.2. First Additional Protocol 13.4.3.1.3. The Second Additional Protocol 13.4.3.2.1. Application and scope of the Second Hague Protocol 13.4.3.2.2. General protection 13.4.3.2.3. Enhanced Protection 13.4.3.2.4. Criminal responsibility and jurisdiction 13.4.3.2.5. Institutional matters 13.4.3.2.6. Dissemination and international assistance 13.4.3.2.7. Execution of the Second Hague Protocol. 13.5. Remaining problems in the protection of cultural objects 13.6. Conclusion

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Chapter 14 Law, Art and the Ecclesiastical Heritage

14.1. Introduction 14.2. Canon Law and Art 14.2.1. The Second Vatican Council and the Teaching of the Church on Religious Art 14.2.2. Sacred Images and Relics 14.2.3. Sacred Places 14.2.4. Temporal Goods and Alienation of (Ecclesiastical) Goods 14.2.5. The Commission for the Cultural Heritage of the Church 14.2.6. Examples of Protection of Ecclesiastical Heritage 14.3. Civil Law and Art 14.3.1. Protection of Cultural Heritage: European Union Law 14.3.2. Protection of Cultural Heritage According to Flemish Law 14.3.3. Issues of Property and Temporal Goods 14.4. Concluding Remarks

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Part 4 The artwork and its circulation

Chapter 15 Inheritance and Art, A Mirror of Society
15.1. General Introduction 15.2. The will as a subject of art 15.2.1. Introduction 15.2.2. Sir David Wilkie and the Reading of the Will 15.2.3. Joseph Danhauser and Die Testamentserffnung 15.2.4. Conclusion 15.3. Art as a subject of the will 15.3.1. Introduction 15.3.2. Moral Rights Post Mortem Auctoris 15.3.3. The Importance of Testate Succession 15.3.4. Testamentary Dispositions by the Artist 15.3.5. Conclusion

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Chapter 16 Private Property Rights in Cultural Objects: Balancing Preservation of Cultural Objects and Certainty of Trade in Belgian and Dutch Law
16.1. Introduction 16.2. What are cultural objects? 16.3. The international framework: UNESCO (1954 and 1970), UNIDROIT (1995) and the European Directive 93/7 16.3.1. National Arrangements and International Precedents 16.3.2. The 1995 UNIDROIT Convention 16.3.3. European Union Directive 16.3.4. Article 1 of the First Protocol to the European Conventionon Human Rights 16.4. Legal developments in Belgian law 16.4.1. Belgian Internal Law 16.4.2. Belgian Private International Law: Implementation of Directive 93/7 and the New Provisions of the PIL-Code 16.4.3. Analysis of the Internal Protective Measures 16.5. Legal developments in Dutch law 16.5.1. Dutch Internal Protection of Cultural Property 16.5.2. Claims to Foreign Cultural Property in the Netherlands 16.5.3. A Case and New Proposals for Reform 16.5.4. Analysis of Dutch Protective Measures 16.6. Conclusion: is the tension between legal certainty and the preservation of cultural patrimony a ground to adapt the general property rules?

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Chapter 17 The Contract Between an Artist and a Gallery under Western European Law
17.1. General Remarks 17.2. Rules for Contracts with an Author, based on Copyright Law 17.2.1. The Creation or Material Expression of the Artwork 17.2.2. Warranty 17.2.3. The Exhibition 17.2.3. The Qualication of the Actions of the Author 17.3.1. Delivery of the Work 17.3.2. Specic Costs Linked with the Exhibition 17.3.3. Other Obligations Associated with the Exhibition 17.3.4. Information Duties of the Parties 17.3.5. Promotion of the Work 17.4. Sale of the work 17.4.1. The Capacity in Which the Gallery Acts 17.4.2. Delivery 17.4.3. Determination of the Price and Payment of the Artist 17.4.4. Failure to Abide by the Instructions Given 17.4.5. The Right of Restitution of the Work 17.5. Contracts Other than Sale Contracts Concluded by the Gallery Owner

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17.3. The organisation of the exhibition: assignment of tasks between the gallery and the artist 505

Chapter 18 Contracts and Performance: Managing Museums

18.1. Relevance of contracts and performance in managing museums 18.2. Performance and contracts 18.3. Denition 18.4. Characteristics of output control documents 18.5. Contracts and performance in museums 18.6. The Museum of Contemporary Art Antwerp (MuHKA) 18.7. The British Museum (BM) 18.8. The Western Australian Museum (WAM) 18.9. Findings: Contracts and performance in WAM, BM and MuHKA 18.10. Lessons and suggestions for contracts and performance in museum management 18.11. References

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Chapter 19 Great Expectations and Bitter Disappointments: A Comparative Legal Study into Problems of Authenticity and Mistake in the Art Trade
19.1. Prologue 19.1.1. Three examples 19.1.2. The questions 19.2. Concept of authenticity 19.3. Lacking authenticity 19.3.1. Warranties and opinions 19.3.2. Error 19.3.2.1.1. Error in substantia 19.3.2.1.2. Excusable error De non vigilantibus non curat praetora moral appreciation Error on the part of the seller 19.3.2.1.3. Relation between the different actions Error and duty to deliver Error and hidden defects 19.3.3. Mistake in Common Law 19.4. Conclusion

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Part 1

Introduction: Art, Society and the Law

Jan Fabre & Marina Abramovic Virgin/Warrior, Warrior/Virgin

Palais de Tokyo, Paris, 2004

In 2008 Jan Fabre (b. Antwerp, 1958) was at the focus of artistic interest. Marie-Laure Bernadac, the controversial curator of exhibitions such as Masculin/Feminin: le sexe de lart (Paris, 1995) invited Fabre to edit the fourth edition of Contrepoint: The Angel of the Metamorphosis. The thirty-nine rooms of the Richelieu wing of the Muse du Louvre were at his disposal to open a dialogue about the most important Flemish painters in the collection. Fabres self-estimation is legendary: I am the rst living artist to get a oneman exhibition in the Louvre. Jan van Eyck, Pieter Paul Rubens and Jan Fabre: equal fellow-craftsmen carrying on a tradition. There had earlier been a comparable initiative in the Royal Museum of Fine Arts in Antwerp in 2006. There, too, Homo Faber was set in confrontation with masterworks from the pictorial past. In Paris and Antwerp Fabre recycles works of art, installations and performances made earlier. For instance, in the 2006 Antwerp exhibition he showed videos and accessories from the Virgin/Warrior, Warrior/ Virgin performance which had previously been shown two years earlier in the Palais de Tokyo in Paris. In Antwerp he showed Virgin/Warrior, Warrior/Virgin on the main oor of the museum. Rubens monumental paintings provided the setting. The actual performance took place on 14 December 2004. Jan Fabre shut himself up with Marina Abramovic for four hours in a glass showcase. Both actors were at rst dressed in armour and embodied the ideas of sacrice and forgiveness. Later they were naked. In turn they were Warrior or Virgin. Now and then they wounded themselves, so that they could then write notices with their own blood for the public who were watching them from the other side of the glass walls. Fabre had toyed earlier with the concept of the warrior and thought it was a good opportunity to get together with Abramovic on stage in a live performance. It was actually the rst time that he staged such a double act with a living artist. That lady, twelve years older than him (b. Belgrade, 1946) was regarded as the icon of Body Art and has been called the grandmother of performance. Emil Hrvatin rightly suggested that here Fabre was not only exhibiting bodies but in fact put himself and Abramovic on the stage as institutions of contemporary performance art. As always with Fabre, the alliance was a strategic one. A canonized prototype, such as Abramovic, was introduced within his own artistic courtyard . In 2004 Abramovic had not given any performances for some time. In the period before that (1976-1989) she had explored the remotest corners of performance art with her partner, the artist Ulay. Moreover, within this alliance, she, as an artist, by denition used an emancipated, feminine visual language, a dimension which generally escaped Fabre and which was lost on him. He is the attacker, the war hero. Abramovic incorporates the sacrice, forgiveness. The sex-specic content is emphasized by her likeness to La Pucelle, the warrior Joan of Arc. She is the mother who shows him the way as a small boy. She is the Eternal Virgin, who leaves the theatre of war with a smile and shrugs her shoulders. The alternation of the virgin/warrior pattern or of the husband/wife role is a pose, just as the glazed air bubble is a pose. Old masters and traditional ideas always do well. However, they are thank God more stubborn than one would suspect.

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