Art law

In a nutshell

Whether you’re a billionaire whose wealth portfolio includes staggeringly expensive paintings, or a struggling musician seeking justice after hearing a song on the radio that’s ripping yours off, art law is very relevant to you. A conversation with lawyers from two of the top-three ranked firms for art law in Chambers UK made it clear to us that these are just two obvious examples: art law is much broader than that. “The area encompasses all types of issues related to art, the art market and cultural heritage” and includes both contentious and non-contentious elements, according to Farrer & Co associate Anisha Birk. “Any practice area can relate to art.” At Farrer, clients include “museums and galleries; historic houses and gardens; arts charities; and other participants in the art market like dealers, commercial galleries and financial institutions.” On the individual side, you’re working with “private collectors, advisers, artists and dealers.”

“I didn’t think the law could be so exciting.”

Tim Maxwell, a partner at Charles Russell Speechlys explains his route to the practice: “I came from the private client side. I had the great fortune to fall into it as a trainee working on a case with an old master picture.” Maxwell’s colleague Rudy Capildeo, a partner on the transactional side, says this: “My experience was working with dealers on high value transactions.” That means big money deals like “purchasing a painting for £19 million. It was exciting.” While such a transaction comes with “due diligence” and other typical corporate law admin, it also called for “understanding the piece itself and its history. It had crossed borders and belonged to an Italian count,” at one point even ending up in Nazi hands. That raised the question: “Was it a stolen painting? It was a thrill. I was a trainee at the time and I didn’t think the law could be so exciting.”

What lawyers do

What you do depends largely on where you are and what practice area you’re based in. Farrer & Co is famous for its high-net-worth clients, so for Anisha Birk “there’s a lot of work that comes out of those clients with concerns of ownership, import/export, art financing, loans and so on. I then also work with cultural organisations.” With several galleries and museums on the books at Farrer, Birk adds that she does a lot of “IP policy advice, and compliance and regulation work.”

Capildeo says that on the transactional side, his “bread and butter is purchase and sale matters.” Alongside commodities like paintings and sculpture, Capildeo says there’s a fair bit of “work in the classic car field,” where lawyers “make sure engine and chassis numbers match up” and, of course, “ensure clients get the best prices.” Other matters include “art finance for collectors and dealers.” Charles Russell Speechlys also “advises artists’ estates,” which Capildeo describes as “highly unusual. Unlike pop musicians, artists become cool at 80 years old. No one has been buying your paintings for years and suddenly you’re looking at your studio and wondering about inheritance tax and so on.”

“Unlike pop musicians, artists become cool at 80 years old.”

On the contentious side, Maxwell says “the big public cases are generally against auction houses. Clients may be people who consign something to an auction house and feel the value was wrong or that the potential wasn’t spotted.” He recalls working on “a Banksy case,” while at Boodle Hatfield, where the parties involved “recovered a piece from the US and returned it to Folkestone. The old masters are more fascinating from a historical perspective, but Banksy stuff generates news copy.” Echoing the feelings of Capildeo and Birk, Maxwell notes that lawyers in this space “act across the art world, on any aspect of litigation: breaches of contract, fraud, debt recovery, IP for artists, art finance…”

“As a firm, there are so many different ways that art law pops up,” Birk suggests. “In private client you’re dealing with collectors and dealers, ownership and sales, import and export...” As for the banking sphere, art is treated as an “asset class. Parties make loan arrangements with art offered as the collateral.” The relevant organisations also “own commercial property,” adding a real estate element to the mix. “What might fall under the ‘art law’ umbrella is everywhere.”

Realities of the job

Eager to put your brush to the art law canvas? Pause a moment – Birk warns that “there’s no specific practice area called ‘art law.’ There are a number of different ones that intersect with the art world.” Rudy Capildeo tells a similar story: “While my practice has grown and grown and now takes up more than 100% of my time, it didn’t start that way,” adding that his grounding was in corporate law. Rather than setting your sights on art law straight away, it might be that the practice makes itself available to you after several years of practice.

“If you just like champagne and parties you’re going to get seen through quickly.”

If that’s a direction you’re keen to head in, Tim Maxwell lays out a few essentials. “It’s important to have an interest in the law as well as the art. If you’re interested in curating, do that.” Our sources also advise “getting as wide an experience” as possible as a practice foundation. “As an art lawyer you’re not always specialist,” Maxwell muses, “but you’re in a sector which means you get drawn into various areas.” Explain? “For example, galleries may need advice about property or employment.” He unsurprisingly advises that you should have an “interest in the art world itself, spending time with genuine experts to learn more. If you just like champagne and parties you’re going to get seen through quickly.” On a more practical note, Capildeo suggests “getting a strong grounding in IP” as art, music and film are all good examples of intellectual property.

Current issues

Updated October 2023

• With a recession looming, art may seem more a luxury than a commodity. However, according to Forbes, art is a potentially ideal investment during turbulent economic times. As with every commodity, art peaks and troughs but art averages out at returns of 7.6%, which is nothing to be sneezed at, and, importantly, isn’t affected by financial market volatility.
  
• African art is experiencing a global boom, and as of December 2022 its fine art market is valued at just over $1.8 billion. Visibility is increasing because of digital platforms such as galleries, with immersive exhibitions, as well as AI and NFTs which are expanding opportunities.  
• Following the discussion of digital art, artificial intelligence (AI) is proving to be a significant challenge to the industry, undeniably so. This year, Getty Images filed a suit against image generator Stable Diffusion, alleging that the company has copied over 12 million photos, various captions, and metadata without permission for AI training. As described by Forbes, ‘many of the examples also include hauntingly weird anatomy’, as the AI distorts the original image. The suit argues that this damages Getty’s brand image. Companies are now seeking clarity over intellectual property matters, and this is an example of numerous cases pending against AI generators such as Midjourney and DeviantArt.   
• The biggest piece of recent news in the art world is undoubtedly NFTs. Non-Fungible Tokens are units of data stored on blockchain to certify that a digital asset is unique. These are being used for digital artworks (or anything else that might be represented digitally), and are also being deployed in relation to physical artworks, not least for verifying their provenance. However, some types of NFTs can be registered by anyone, meaning that digital theft of copyright is a risk. As so often with new markets, regulation trails behind innovation, and artists and content creators might be left out of pocket. 
  
• Both Birk and Forbes note that street art is an emerging market to keep an eye out, with Forbes noting that the medium is popular among “younger millennial collectors in particular.” Another area to keep an eye on is the work of historic women artists, whose work is being recognised in the public domain and is seen as a valuable commodity.
  
• Climate change isn’t a matter you’d immediately think would be affecting the art world. However, cultural sites and museum exhibits come under the ‘art law’ umbrella and global warming and extreme weather are seeing more and more world heritage sites under threat. With the recent movement towards repatriation of artifacts, the art world is discussing how we approach moving and saving these artifacts safely and sensitively. 
• Talking of repatriation, it’s no secret that many Western museums hold artworks and artifacts that were taken from countries during colonial rule. There have been only very minor repatriation efforts. France, Belgium and Germany, have begun to send some art back to Africa.  In 2023, Glasgow Life became the first UK museum to repatriate objects to India. However, other countries have been reluctant to follow suit.  
• Yet on the 31 October 2022, an unprecedented provision to the Charities Act will enable museums and galleries (as much function as charities) in England and Wales the ability to dispose of objects on a compelling moral basis via the transfer of trustees, which could have a significant impact in the years to come in terms of repatriation. Whereas, previously legislation such as the British Museum Act of 1963 meant objects could be returned only if it wasa duplicate, damaged, or unfit to be retained and no longer of public interest. 
• Stolen art is not a thing of the past, this year to combat it the FBI established a mobile app of all things, the National Stole Art File (NSAF) which can be used by the public to directly submit tips about missing/stolen art. It is not the first tool of its kind either with the 2014 Italian iTPCapp (acronym for Protection of Cultural Heritage) to fight against cultural heritage crime.