How Law Defines Art

13 Pages Posted: 9 Nov 2014 Last revised: 6 Aug 2016

See all articles by Derek Fincham

Derek Fincham

South Texas College of Law Houston

Date Written: November 7, 2014

Abstract

Defining art is both hard and subjective. But in lots of contexts the law must arrive at a just solution to hard and subjective questions. The art world (which includes artists, buyers, art lovers, art historians, and art writers generally) has largely neglected the task of defining artworks. This neglect has crept into legal disputes as contemporary art has become more conceptual. It has loosened the limits of aesthetics, form, function, and composition. This makes crafting a definition even more challenging. Yet the Law has an important part to play in resolving art disputes. In doing so courts end up defining art. They do not set out to do so, and in fact they do all they can to avoid acting as art critics. But paradoxically this creates inconsistent judicial reasoning and leads to under-reasoned opinions. The solution offered here, is to acknowledge this critical function, and encourage courts to engage with the visual arts community, and for the arts community to engage back.

Keywords: art law,

Suggested Citation

Fincham, Derek, How Law Defines Art (November 7, 2014). John Marshall Review of Intellectual Property Law, 2015. Available at SSRN: https://ssrn.com/abstract=2520594

Derek Fincham (Contact Author)

South Texas College of Law Houston ( email )

1303 San Jacinto Street
Houston, TX 77002
United States
9546678328 (Phone)

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