The year ahead

Posted on: January 9, 2023 by

It is dangerous to make predictions. Too precise and they can be proved wrong. Too vague and they tend not to offer much of use. So it is a difficult line to tread…

What do we have to expect from 2023 in the world of art law? If we consider the big developments from last year – namely the cost of living crisis and the war in Ukraine – neither appears to be dissipating any time soon. We are of course watching the situation in Ukraine and the work that is being done by UNESCO to try and quantify the damage to cultural heritage sites that has occurred to date (231 sites have been confirmed as damaged, according to a report from December) and the International Criminal Court’s Office of the Prosecutor investigation of war crimes committed on the territory (which would include intentional destruction of religious and heritage monuments).

In the museum sector, apart from the impact of a squeeze on public financing, we can expect changes to certain guidelines and codes governing institutional operation. ICOM has at last settled on a definition of ‘museum’ which appears to have reached some level of consensus. The consequences of the formal implementation should be felt during the year. The UK’s Museums Association is reviewing the Disposal Toolkit from 2014, with an eye to making certain changes. Meanwhile UNESCO has undertaken an update of its code of ethics for dealers, while it also plans to introduce model provisions for states that have ratified the 1970 UNESCO Convention, or plan to do so.

In terms of cases, the one that everyone seems to be waiting for (certainly in America), is the decision of the US Supreme Court in Lynn Goldsmith v Andy Warhol Foundation. As we reported after the appellate decision in 2021, this is a dispute involving Andy Warhol’s use of a photograph of the musician Prince for a series of 16 silkscreens and illustrations. The decision will deal with the ‘fair use’ defence under the US Copyright Act, which will inevitably have an impact on the art world, and more broadly across the creative industries. Because the practice of artists and institutions in the US has such influence around the world (especially in the online environment), expect reverberations well beyond American shores.

In terms of UK cases, it appears the test case for the artist resale royalty brought by the royalty’s collecting societies (ACS and DACS) against the dealer Ivor Braka is scheduled for a hearing at the High Court early this year. Any resulting decision could have implications for art dealers and artists across the country… but perhaps not as much as the possibility of the royalty finding itself on the government’s chopping block: if the government goes through (or gets away) with its plans to axe many residual rules that came from the EU (what is known as ‘retained EU law’), it appears the artist’s resale royalty, which derives from EU Directive 2001/84/EC on the resale right for the benefit of the author of an original work of art, may well form part of this major shedding project. If the right is removed, UK sales of art would no longer be subject to the royalty paid to the artist of a work (or their estate), but likewise UK artists would no longer benefit from that right in the EU. Considering the generally positive reviews of the right by various affected parties (certainly DACS), this would be a rather unexpected (and perhaps unwelcome) move by government.

So nothing necessarily earthshattering in all of this. But still, always expect the unexpected. As we saw in 2022, some of the biggest changes were those that caught everyone – including those in the art world – by surprise.

We will be running as always our DipAPLE (Diploma in Art Profession Law and Ethics) course, which will start in the next few days (online), as well as our DipLCM (Diploma in Law and Collections Management) course, which will be offered both online (in Spring) and in-person (in October). Our DipIPC (Diploma in Intellectual Property and Collections) course will be offered in June, whilst our next Study Forum will take place on the 25th of February as a virtual event.


Image credit: Image by dashu83 on Freepik