The Threat of Termination in a Dematerialized Art Market

Abstract

Conceptual and video artworks generally resist reduction to a single, material object. Nevertheless, there remains a robust market for them. Buyers of conceptual pieces will often acquire plans and certificates of authenticity, essentially instructions for realizing the work, rather than a particular physical article. Collectors of video art, for their part, generally attain a copy of the video embedded in a disc or file of some sort. In other words, they attain digital information. Because these artworks lack a core tangible object, however, they depend heavily on copyright licenses to be realized, performed or shown. This, in turn, makes them uniquely vulnerable to the Copyright Act’s termination provisions. In particular, artists and their statutory successors may use their inalienable termination rights years later to deny collectors and museums the ability to recreate or publicly show the works. The issue is particularly acute given the importance of fair market tax valuations to the contemporary art market and museums that benefit from charitable donations, and the potential impact termination rights could (and should) be having on the value of fundamentally conceptual pieces. This piece accordingly explores the threat that copyright termination rights pose to the museums and private individuals who collect artworks lacking a tangible art object.

Keywords: Copyright, termination, fair market value, conceptual art, video art, fine art, Sol LeWitt, Bill Viola, charitable deduction