Owning Nothingness: Between the Legal and the Social Norms of the Art World

Abstract

Almost $8 million — that is what the Crystal Bridges Museum paid for one work of contemporary art in November 2015. What did that museum get for that hefty sum? From a legal perspective, absolutely nothing. The work it purchased was just an idea, and ideas of this kind escape legal protection.

The reason that large, sophisticated, experienced, and legally-represented institutes are willing to pay millions of dollars for something that the law does not recognize has to do with the social norms of the art world. This Article is one of the first in legal scholarship to examine at depth those norms in this multibillion-dollar industry. It does so by, inter alia, reporting on interviews the author conducted with industry insiders concerning their practices. The Article suggests that those norms create property-like rights in all artworks, whether or not they are legally protected, as well as an ongoing right of artists to partly control the use of their works. Those social norms fill a gap between the ways in which the contemporary art world understands creativity and ways in which our legal system actually incentivizes creative endeavors.

The Article analyzes the normative implications of these social norms and the gap they fill. First, it explains how those norms incentivize certain forms of creativity in a way that is more effective and efficient than property rights. Second, going beyond the art world, the Article shows how the social norms expose certain hidden assumptions in copyright authorship and their shortcomings. It suggests how the law can be improved to account for the richer description of creativity this Article provides. Third, the Article contributes to the ongoing debate concerning private-property ownership. The art world provides sellers with significant post-sale control over their works in a way that the law commonly finds undesirable. That tension might justify rethinking of the current legal rules that disincentivize post-sale control.

Keywords: Copyright, Art, Art law, Moral Rights, Authorship, Authenticity, Social Norms, Private Property, Property Law

JEL Classification: K00, K11, O34