NEW YORK—Making the world beautiful for mankind is what arts organizations do, and they are lucky to have legal help when unforeseen problems arise. In this second part of an interview with Attorney Jo Backer Laird, we discover the many aspects of art law.
The Epoch Times: What are the legal needs of arts organizations today?
Ms. Backer Laird: The most important issue facing almost every arts organization today is how to pursue its mission in the face of drastically reduced financial resources. As we go through this difficult economic time, government and private funding for the arts is going to be increasingly hard to find. Lawyers can help organizations by working with them to restructure existing arrangements that may have become untenable in today’s economic environment, or to structure tax-efficient arrangements that also protect the institutional interest in securing the benefits that donors have promised.
A key to this process is assuring that the organization’s governance policies and practices are sound. In difficult times, organizations can make poor decisions under pressure—ignoring fiduciary responsibilities, bypassing guidelines and approval processes, and cutting ethical corners. Recent events demonstrate just how dangerous this can be.
The survival of the organization can be jeopardized, and both management and board members can face legal liability. It is essential to get careful guidance from experienced attorneys. If the organization can’t afford legal fees, advice may be available on a pro-bono basis from organizations such as the Volunteer Lawyers for the Arts.
Epoch Times: Do arts organizations need to have an attorney on retainer or is this only on an as-need basis?
Backer Laird: Whether or not you keep someone on retainer, it is best to have someone whom you use regularly, and who gets to know the organization. An attorney with whom you have an ongoing relationship will be able to give you the best day-to-day advice, guide you on how to avoid crises, and get you through a crisis if something goes wrong.
Epoch Times: What are the greatest challenges in art law today?
Backer Laird: Contemporary artists are creating new forms of work in media that were undreamt of when doctrines of law such as copyright were developed. How, for example, can an artist protect her intellectual rights in a piece of purely conceptual art? Or in digital work that is published online and is “sampled” by others?
Taking the point one step further, one contemporary conceptual artist demands that there be no written documentation whatsoever relating to his art—no certificate of authenticity, no bill of sale or written contract when it is sold. Nevertheless, his work has sold for tens of thousands of dollars. If the law in any given jurisdiction requires that an agreement be in writing to be enforceable, how does a collector who purchases a work by this artist protect her rights of ownership? Can she sue the artist if he re-sells the piece to another owner? What is it that she owns, anyway?
Just as the law has to catch up to rapid advances in technology, art law has to address ever-changing forms of art. Law attempts to establish an analytical construct for life. It draws lines. Artists color outside the lines. That’s where the biggest challenges are as an art lawyer, and where it gets the most interesting.
Epoch Times: What is your favorite art medium?
Backer Laird: I tend to like contemporary art the best, particularly contemporary paintings. What I look for, though, is any art that engages me in some way—makes me feel something deep or think something new.
Epoch Times: Do you do any art?
Backer Laird: My daughter dances. My husband takes great photographs. My brother and my nephew draw. Me? I appreciate.
Jo Backer Laird, Esq. has recently become Of Counsel in the firm of Patterson Belknap Webb & Tyler LLP. The firm provides specialized advice to clients that include major museums, artists, dealers, and collectors at all levels, in both the for-profit and not-for-profit sectors.
The Epoch Times: What are the legal needs of arts organizations today?
Ms. Backer Laird: The most important issue facing almost every arts organization today is how to pursue its mission in the face of drastically reduced financial resources. As we go through this difficult economic time, government and private funding for the arts is going to be increasingly hard to find. Lawyers can help organizations by working with them to restructure existing arrangements that may have become untenable in today’s economic environment, or to structure tax-efficient arrangements that also protect the institutional interest in securing the benefits that donors have promised.
A key to this process is assuring that the organization’s governance policies and practices are sound. In difficult times, organizations can make poor decisions under pressure—ignoring fiduciary responsibilities, bypassing guidelines and approval processes, and cutting ethical corners. Recent events demonstrate just how dangerous this can be.
The survival of the organization can be jeopardized, and both management and board members can face legal liability. It is essential to get careful guidance from experienced attorneys. If the organization can’t afford legal fees, advice may be available on a pro-bono basis from organizations such as the Volunteer Lawyers for the Arts.
Epoch Times: Do arts organizations need to have an attorney on retainer or is this only on an as-need basis?
Backer Laird: Whether or not you keep someone on retainer, it is best to have someone whom you use regularly, and who gets to know the organization. An attorney with whom you have an ongoing relationship will be able to give you the best day-to-day advice, guide you on how to avoid crises, and get you through a crisis if something goes wrong.
Epoch Times: What are the greatest challenges in art law today?
Backer Laird: Contemporary artists are creating new forms of work in media that were undreamt of when doctrines of law such as copyright were developed. How, for example, can an artist protect her intellectual rights in a piece of purely conceptual art? Or in digital work that is published online and is “sampled” by others?
Taking the point one step further, one contemporary conceptual artist demands that there be no written documentation whatsoever relating to his art—no certificate of authenticity, no bill of sale or written contract when it is sold. Nevertheless, his work has sold for tens of thousands of dollars. If the law in any given jurisdiction requires that an agreement be in writing to be enforceable, how does a collector who purchases a work by this artist protect her rights of ownership? Can she sue the artist if he re-sells the piece to another owner? What is it that she owns, anyway?
Just as the law has to catch up to rapid advances in technology, art law has to address ever-changing forms of art. Law attempts to establish an analytical construct for life. It draws lines. Artists color outside the lines. That’s where the biggest challenges are as an art lawyer, and where it gets the most interesting.
Epoch Times: What is your favorite art medium?
Backer Laird: I tend to like contemporary art the best, particularly contemporary paintings. What I look for, though, is any art that engages me in some way—makes me feel something deep or think something new.
Epoch Times: Do you do any art?
Backer Laird: My daughter dances. My husband takes great photographs. My brother and my nephew draw. Me? I appreciate.
Jo Backer Laird, Esq. has recently become Of Counsel in the firm of Patterson Belknap Webb & Tyler LLP. The firm provides specialized advice to clients that include major museums, artists, dealers, and collectors at all levels, in both the for-profit and not-for-profit sectors.
