Art and the Law

1. Appropriazione e postproduzione: il contesto giuridico. 2. L’opera approriazionista come trasformazione dell’opera orignaria. 3. L’opera appropriazionista come parodia dell’opera orginaria. 4. Nuovi criteri per la valutazione dell’effetto trasformativo. 5. Diritto d’autore v. Libertà d’espressione: alla ricerca di un nuovo equilibro

Archivi d'artista e lasciti: memorie culturali tra diritto e mercato - Il 28 e 29 novembre 2016 l'Università Milano-Bicocca ha ospitato il convegno Archivi d'artista e lasciti: memorie culturali tra diritto e mercato. Il convegno ha beneficiato del sostegno dell'Accademia di Belle Arti di Brera, di NABA Nuova Accademia di Belle Arti e della collaborazione con l'Associazione Italiana degli Archivi d'Artista. Durante le due giornate di lavori si sono confrontati responsabili degli archivi e delle fondazioni, curatori dei cataloghi ragionati, direttori dei musei, giuristi ed esperti di marketing dell'arte provenienti da diverse parti del mondo.

This article deals with the (legal) iconography and the popularity of Peter Brueghel the Younger's well known 'Advocate of difficult affairs' (Ghent Museum of Fine Arts). It is a satirical view on the growing importance of the legal profession in the 16th-17th centuries. The painting is compared to other early modern satirical representations of the legal profession. The author also defends that not actually a barrister ('advocaat'), but a 'proctor' is represented.

This paper was sparked by an encounter with the British landscape artist Paul Nash's painting 'We Are Making a New World' (1918) amid the tumult of Brexit in 2016. Much as the UK might like to withdraw from the outside world, I argue, it is inescapably implicated in world-making projects. It cannot choose to withdraw, it can only decide whether to engage consciously and reflectively or not. The world-making projects that began as World War One ended - projects evoked by Nash in his painting - are still in train today. Just as Nash's painting draws us into the churning mud of his ambivalent image of world-making, so we are always already engaged - for good and ill - in world-making work.

This article examines the public art practice of the Chinese performance artist Zhao Bandi, aka the 'Panda Man', and situates it in relation to the social activism of the Chinese consumer rights campaigner Wang Hai, aka the 'Anti-Counterfeiting Hero'. Contextualizing the appropriation strategies of these two unlikely figures within contemporary China's changing legal, market, and media spheres, this article places global contemporary concerns with authenticity, copyright, counterfeits, and fakes in relation to notions of performativity and behavior. Challenging the expectation that appropriation need resemble oppositional or antagonistic strategies of Western precedent, it argues that Chinese figures like Zhao and Wang presented transformative models for consumption and citizenship in 1990s China, laying the groundwork for today's public discourse of 'shanzhai' − a distinctly self-conscious Chinese claim on appropriation.

This article considers the extent to which civil and criminal law in Singapore deters the unlawful removal of cultural objects from the possession of private owners, art galleries and museums, or from archaeological sites, and provides redress to victims. Given Singapore's position as the crossroads of Asia, the law must be able to cope with the flow of objects in and out of the country. The law is currently deficient as it is not tailored to deal with issues concerning cultural heritage, and needs to be reformed in several respects. There are sound reasons for a modern State like Singapore to enact legislation, as well as to enter into regional and international treaties, to protect its national heritage and to promote global co-operation in opposing the illicit trade in unlawfully removed cultural objects.

Cantor Yossele Rosenblatt was offered an opportunity that would make any performer swoon: a star role in the ground-breaking film The Jazz Singer (1927). Yet Rosenblatt refused this artistic opportunity of a lifetime. This paper contextualizes Rosenblatt’s baffling decision, by exploring one possible relationship between the arts and law; in this case—the art of storytelling and the Jewish legal system. The study demonstrates where the two pursuits tread separate, unlinked paths to a common end. This vector is refracted through the lens of liturgical performances outside the religious synagogue service; specifically the propriety of cantorial concerts featuring prayers from the High Holy Days. This issue is addressed in legal writing and in storytelling, each modality using its own tools to tackle the trend. It is noted that legal systems without effective enforcement mechanisms—such as Jewish law in the late modern period—could use arts as compensatory media for achieving societal order. More significantly, however, arts and law are not umbilically connected; each cultural creation independently strives to fashion society.

Art is an evergreen and shape-shifting word, indefinable and untainted by time. We live in a time where our mind is compressed with point-blank words and imageries – excessive information is available to us and our interactions depend vastly on social media. Our connections are falsely constructed, as our lives begin and end with devices. Aashish M., a reclusive and quaint artist, explored the phenomenon of how technology is upgraded to feed human integrity; the two are indistinguishable in his looming art installations. Artist Samish A., warm and friendly, extracts surreal graphics from the origin of nature's effect on the human body frame as his muse in print-making. The motifs of the two artists helps us understand where we stand in the timeline of art. Artist Archan Nair, through his exuberant and breath-taking artworks, holds live discussions on Facebook every day. Listening to his voice is therapeutic to his admirers, including myself, and we are able to lose our senses in his studio space. In contrast, a handful of artists may not even have a social media presence, such as artist Deepshikha M., who feels pressured and scrutinized by people's views on her stacked-away artworks. We, the human race, are conflicted and complexed with our approach to technology, this indecisiveness translates into the treatment of art. Artists, when documenting their artworks on social media, in actuality are documenting their own existence. Art and artists operate as one entity in the power house of creation. Artists, like art, coalesce energies to bring meaningful reflections in the cognitive dissonance of our lives. The art community (rather creative) is an expansive landscape of rising and upcoming Artists to include graphic designers, illustrators, typographers, online writers, photographers, film-makers. Traditionally, the community is fragmented and disorganized with museums, auction houses and galleries operating as supreme art spaces. Despite the hierarchical imposition of such spaces, artists in unison are redefining 'spaces' altogether. Instagram, for instance, is a one-store stop to recreate a space as good as a gallery to showcase artworks. Art start-ups in the form of websites for 'affordable art' hive on accessibility to ordinary buyers and young collectors. Even alternative media, such as photo-journalism and documentary based blogs through voices of individuals, are fueled with ample content with visual orientation. Thus, neither art nor artists have any bounds in either levying a shade of their individualistic expression or hesitating to publish subaltern narratives. The unquantified levels of sharing of art, matched with the question, 'What is Art' is palpable and overwhelming for those in the art community. This samples the feverish exchange of a creative overdrive where art and technology intersect to the point of a daily 'art/artists fame' notoriety. There is a vulnerability in sharing artworks intimately on a medium like the Internet, at the risk of copyright infringement, contract issues with business enterprises, governmental-authoritative conflicts and art frauds. In India, a few artists have claimed that their art was slapped onto merchandising products without prior permission. In some cases, art appropriation is manipulated to copy an original piece strategically into a morphed piece that resulted in disputes between artists. Even gallery and home décor design spaces exploit at a magnitude level to copy and sell existing pieces of online art. Artists are at a financial loss, and are discredited from the original pieces birthed from their minds.

The Aesthetics of Law.
Today the aesthetics of law constitutes a fifth branch of legal philosophy – alongside the ontology of law, the epistemology of law, legal logic, and legal ethics. The aesthetics of law is not only exceptionally interesting in itself, but also important in legal practice; further, the scope of its effects in jurisprudence is broader than might appear at first to be the case. There is an extraordinary number of traces of the aesthetics of law – something that becomes apparent as soon as we read successive books and articles with our eyes open for such elements in order to make note of them, and subsequently interpret and develop them. The aim of this study is, on one hand, clearly to set out what has been written on the aesthetics of law, and, on the other hand, to propose a program for further research. This principle makes it possible to create a “foundation,” upon which further aesthetic-legal discussion can arise, a discussion that other researchers – I hope – may join. The results of further study of the aesthetics of law may be of practical use in creating and applying the law, although not only here, since such research relates to a very important issue, which is the formation of the legal consciousness of those whom the law addresses and of their attitudes toward the law.

L’arte contemporanea pone continue sfide al diritto classico; non solo al diritto d’autore, ma anche, più in generale, al diritto civile. Tale considerazione trova riscontro anche in relazione al tema del restauro di opere di arte contemporanea: restauro, conservazione, chiamano in gioco i diritti morali dell’artista. Il restauro è necessariamente connesso alla identità dell’opera: e dove il diritto fatica a riconoscere tale identità, anche i limiti giuridici intorno al restauro diventano di difficile individuazione. Nella prospettiva del diritto comparato, una tale inadeguatezza del diritto si colloca in un contesto di diversità di regime giuridico, principalmente fra il sistema statunitense, dove i diritti morali dell’artista sono riconosciuti in modo limitato, e quelli europei, ispirati dalla legislazione francese che identifica nella tutela dell’opera un aspetto della tutela dei diritti della personalità dell’autore. Questo saggio affronta, in particolare, due questioni: quella del restauro che interviene su di un’opera permanente, e quella del restauro che interessa opere destinate alla distruzione o al deperimento per intenzione dell’artista. In entrambi i casi la prospettiva giuridica individua delle situazioni di potenziale conflitto: ora in relazione ad un intervento sull’opera che ne modifichi il significato in contrasto con la intenzione dell’artista; ora in relazione ad una operazione che, contro l’intenzione dell’artista, incida sulla natura effimera o auto-distruttiva dell’opera. Una proposta di superamento di tale conflitto e di riduzione della distanza fra diritto classico ed arte contemporanea, qui avanzata, consiste nella previsione per via legislativa della produzione di un certificato per il restauro e la documentazione dell’identità dell’opera.

Contemporary visual art is challenging traditional law in the areas of both copyright law and property or contract law. This emerges clearly in the conservation-restoration of contemporary artworks where artists’ moral rights are called into play. The act of restoring an artwork is inevitably connected to its identity, and whenever the law struggles to identify this identity, the legal limits of restoration also remain unclear.
The issue is even more complex in a comparative law perspective, given the difference between the US Visual Artists Rights Act (VARA) which provides for weak protection of artists’ moral rights, and the French-based European regulations which
recognise author protection within the broader context of the fundamental rights of personal identity.
This paper focuses on the legal aspects of restoration of a permanent artwork, as opposed to restoration of artworks destined for decay or destruction. Both cases call for interpretation of moral rights, either when an artwork is restored in the absence of, or against, the artist’s wishes, or when restoration interferes with the artist’s intention to leave the artwork to decay or self-destruct.
It is proposed that this potential conflict be resolved through introduction of legislation incorporating artists’ instructions for restoration of artworks, and registration of identity

This article [in Dutch] comments two paintings by Jacob Jordaens, now in the Antwerp and Brussels museums of fine arts, representing the holy Yves, patron saint of jurists and law practitioners. By comparing the iconography to several other representations of the same saint, and by investigating the history of the paintings’ ownership, the conclusion is drawn that, very probably, the works of Jordaens were ordered by the board of the Antwerp Saint Yves Guild of law practitioners, or by one of its members.

The Judgment of Cambyses is a well known exemplum iustitae, dating back to Herodotus’ Historiae, and very popular in the middle ages. The king condemns the corrupt judge Sisamnes to be flayed. His skin is draped on the bench. The new appointed judge Otanes, seated on his father’s skin, will always be aware to judge justly… The story’s most known representation is a diptych of Gerard David, today in the Bruges Groeningemuseum. This article draws attention to some other early modern paintings of the same story, all commissioned by magistrates near the Flemish coast: Bruges, Dunkirk and Nieuwpoort.

noun | cryp.tom.ne.sia | \, krip-,täm-‘nē-zhə\
The presence of phenomena in normal consciousness, which objectively are memories,
but subjectively are not recognized as such.

In an attempt to strike a greater sense of harmony between copyright law and the freedom of expression – and to protect the status quo of the creative process from undue restriction and distortion – this paper proposes that the postmodern philosophy ought be applied to the analysis of non-verbatim artistic appropriation; through United States and European law. The application of the postmodern philosophy will, heretofore, be referred to as “the postmodern approach.” The postmodern approach, as it were, undertakes the “influence view” of creativity – advanced by Wendy Gordon – that “subconscious copying occurs constantly and usually bears valuable fruit.” That is to say, this paper argues that most, if not all, art is in part derivative – as a result of either deliberate appropriation or subconscious appropriation (i.e., cryptomnesia). To that end, the argument propounded is that the status quo of the creative process entails appropriation; and ought to be protected from undue restriction or distortion by doctrines such as the subconscious copying rule – where strict liability is imposed on alleged copyright infringers. This paper will, therefore, use the term “appropriation” in a neutral form to describe the act of taking – but with no intimation as to whether the act of taking is improper, or otherwise unlawful. Further, in light of the influence view of creativity, the postmodern approach posits that whether or not appropriation has occurred is irrelevant – once a sufficient transformation has been made upon that appropriation. In other words, the approach views the evolution of art as a series of building blocks that comprises art works that may occasionally appear to overlap upon one another. Further, this approach encourages the building upon the existing corpus of artwork and disregards such occasions of overlap.

With regard for copyright’s economic foundations, this paper argues that the most important consideration, in determining whether the secondary work is sufficiently transformative, ought to be based on the fourth factor of the United States fair use doctrine: whether the use of the original work in the second work has effected the potential market for or value of the original work. The Supreme Court, in Acuff-Rose, held that unless the second work is a complete verbatim duplication of the original and, therefore, likely to usurp the demand for the original work; the second work, a work of non-verbatim appropriation, may go as far as to suppress the demand for the original and remain lawful. To that end, this paper does not endorse verbatim piracy, illegal-downloading or wholesale illegal distribution of copyrighted works, a practice which, invariably, would not pass the fair use doctrine. However, this paper underlines the dictum, in Feist, that holds that the primary objective of copyright is not to reward the labor of authors but to “promote the Progress of Science and useful Arts.” Therefore, it is argued that rigid, property-based copyright discourse is more likely it is to disincentivize innovative activities and chill speech, rather than incentivize it. To that end, the application of the labor-desert theory (i.e., property-based rhetoric), to intangibles, is demonstrated in the following paper as manifestly incorrect and, in fact, extremely problematic.
Furthermore, with regard for copyright’s creative foundations, this paper argues that for the second work to be considered structurally transformative it must satisfy a different purpose or character. In line with Arthur C. Danto’s claim that there is a palpable difference between imitation and impersonation, this paper will put forward that when considering a non-verbatim second work, as a whole, where there is a sufficient degree of original contribution in addition to the appropriated portion: that second work out to fall within the meaning of the “comment” exception in the fair use doctrine and the “pastiche” exception in the Information Society Directive, in Europe. For the purpose of comparative support, examples of parody will be used to demonstrate the viability of this proposition and flexibility of the definitions of parody and pastiche exceptions,9 through both United States and European case law. Furthermore, this paper argues that the necessary degree of originality to be contributed, by way of transformative comment, ought to be directly proportional to the originality threshold in the relevant jurisdiction to secure copyright protection; in the United States and Europe, the threshold is relatively low. This paper also underlines the importance in considering the fact that, as Pamela Samuelson pointed out, many aesthetic works comprise un-protectable elements weaved together in a creative manner. Indeed, while compositions such as this are duly protected under Feist precedent, the more manifestly un-protectable the elements are that comprise the work – the more “thin” the copyright protection is said to be. Further, this actuality is something that the postmodern approach accounts for and it echoes the sentiments of Samuelson when it posits that the substantial similarity test in the United States has failed to adequately address this matter. This matter will be demonstrated with a particular interest in the Arnstein and Krofft variations of the substantial similarity test. Not merely does this paper posit that the question of discerning similarities, in law, between two works – is manifestly defective but it also argues that un-protectable elements are too often, misunderstood, misconstrued and awarded copyright protection, to the detriment of secondary artists.

Jonathan Griffiths wisely noted that exceptions in copyright law provide insufficient protection for the freedom to create and that it is not enough that copyright legal structure “may” secure its compatibility with the freedom of expression. Therefore, the postmodern approach aims to provide a semblance of a legal structure that invariably will secure copyright and freedom of expression compatibility. Furthermore, the approach secures its final and most valuable prospect of support in Europe’s emerging case law regarding copyright and the freedom of expression, where both copyright and the freedom of expression are afforded fundamental rights status and decisions are made on the basis of the proportionality doctrine and with regard for the public interest. To that end, this papers argues that the progressive postmodern approach finds both historical and contemporary support in United States and European case law for the building of a more harmonious relationship between copyright law and the freedom of expression and a means to protect the status quo of the creative process as it exists for present and – as Gordon encouraged – future artists. The postmodern approach is, in itself, an expression of protection for those cannot speak for themselves.

Addressing the illicit trade in stolen works of art and other heritage items is notoriously difficult. Before thefts
of heritage items can be recorded, the object in question must be identified as having special significance.
The investigation of the circumstances in which such an object was acquired and the enforcement of legal
and ethical standards of acquisition become unduly complicated in the absence of a comprehensive national
inventory of museum holdings and of a database of stolen art and cultural objects. This article considers the
development of inventories and databases in South Africa and elsewhere. We argue that cross-sectoral cooperation
in sharing databases needs to improve significantly in order to boost compliance with due diligence
standards. To help restore the credibility of the trade in art and cultural objects, the South African Heritage
Resources Information System site must be endorsed as the centralised database for heritage crime. This
would provide ready access to databases, helping art market participants, law enforcement officers and
customs officials in the investigation of stolen art works.

Noble as their intentions are, many of the regulations governing heritage are having a constraining effect leaving important issues in the 'source' countries unaddressed. Our current global climate, and indeed the entire history of the migrations since the second world war should force us to acknowledge that heritage needs to move with the communities who seek to make other parts of the world their home, rather than the land in which it was first made. Is identity linked more to a place or to a people? Robbing refugees and diasporic communities of their cultural patrimony to send it back to the nation state which they have fled, can be seen as perverse by human rights activists (and the UNHCR), even though it may be permissible under the 1970 UNESCO regulations on heritage. Rather than the ownership of a cultural asset globalisation should force greater resources to be deployed in the sharing of the knowledge that asset can generate. The co-production of knowledge is a better way for different nations to share the responsibility of ownership--whereby each can hold the other accountable to do their fair share.
This is a published text of paper spoken at the conference of the Association of Social Anthropologists, UK on the subject of ‘Arts & Aesthetics in a Globalising World’ held at JNU in 2012.

Iconological context and iconography of an anonymous 16th century painting belonging to the collection of the Ghent Museum of Fine Arts. The art work was commissioned by jurist Antoon Van Hille, councillor of the Council of Flanders. The painting represents the beatitudes, but contains several references to law and justice.

'Art & Law: Art in Peril' was an interdisciplinary conference, which took place on 22-23 June 2015, at the University of Cambridge. The Conference convened to discuss varying perspectives on questions of art and law, and to break down the barriers of specialization.  Panels were composed of speakers from a variety of disciplines, grouping papers by theme, geographic or temporal
location, rather than by academic or professional department. Speakers, panel chairs and delegates represented scholarship in art history, law, archeology, history, public policy, museum studies, classics, anthropological biology, criminology, art conservation and more from twelve nations: Australia, Canada, China, Denmark, France, Germany, Italy, Portugal, Spain, Switzerland, United Kingdom, and the United States of America.

Frakcija issue no. 66 - 67
Theme: The Immunity of Art
Editor(s): Tea Tupajic
Language: English, Croatian
Description:
After the murder of film director Juliano Mer-Khamis and the arrests of Ai Weiwei or the members of Voina group, and after the spectacular arrest and sentence of Pussy Riot, it seems illusionary to even speak about the immunity of art. Breton’s surrealist gesture of taking a revolver and firing blindly into the crowd would be treated as a crime in any society, regardless of the artistic context in which it has taken place.

It is therefore impossible to do just anything, proclaim it a work of art, and get away with it. Instead, the question that arises here is: What can be done only because it is a work of art? How can the fictional sphere in which art operates function as an area of refuge?

The basic currency of the post-disciplinary society is freedom, and art is its embodied ideal. If this is the reason that art is often criticized as an autonomous sphere where critical operations have been displaced and thus paralyzed, and if everything that is ever done in art is bound to remain merely art, isn’t that its main weapon rather than its weakness?

This issue of Frakcija raises these questions by taking as its starting point the immunity of art in the legal sense of the word, and by exploring the blind spots that art can create in its encounter with law as the primary regulatory apparatus in Western society.

Art occupies a unique position in relation to law. Law needs definitions in order to operate as a system. What cannot be unambiguously defined either does not exist or presents a threat in its unpredictability. Of all spheres of human activity, art is the one that presents most difficulties for law, which is precisely because its borderlines cannot be accurately defined and are constantly shifting. Exactly therein lies the subversive potential of art.

Besides this strictly legal sense, this issue of Frakcija has embarked on a search for the modern Trojan horse, exploring the use of art and the artistic in various forms of political activity.

Instead of thinking strategies in art, the issue proposes thinking of art as a strategy.

Legal systems tend to reflect a preference between mobilia non habent sequelam (moveables
cannot be pursued) and nemo plus iuris ad alium transferre potest quam ipse habet (no one
can transfer to another a greater right than he himself has) in corporeal moveable property
title issues in general. Cultural objects merit special treatment, but comparatively few systems
have specific rules or exceptions for cultural moveables. General commercial law rules are
readily given extended application. A value judgment is involved in denoting an object as
‘cultural’. When stolen art moves across jurisdictional lines, courts may use the property
transaction as a basis for classification without checking whether theft attaches thereto.
Choice of law method can elevate legal rules above fact and context on the basis of the broad
lex situs rule (the law of the place in which property is situated) of private international law.
The lex situs rule strengthens the commercial imperative as applied to transactions involving
cultural objects. This article argues that result-selection is desirable. The applicable law must
be selected on the basis of a policy choice in favour of the party who lost possession on
account of the vice of theft, and time ought not to affect the deprived owner’s rights. This
article demonstrates how the acknowledgement of vitium reale (inherent taint or defect in a
title to property) in conflicts method eases tensions between private law and criminal law in
the art markets in New York and England.

"L'arte contemporanea non conosce limiti. Il diritto pone regole e limiti. Perché accostare al diritto l'arte, fino a proporre un "Manifesto per i Diritti dell'Arte Contemporanea"?
La risposta è in quell'aggettivo "contemporanea", che distingue l'azione artistica di oggi dal patrimonio creativo che si è accumulato nel tempo.
Il dialogo fra artisti, operatori e giuristi conduce a una nuova comprensione dei Diritti dell'Arte Contemporanea, intesi non come limite, ma come occasione di comunicazione."

1. Opere d’arte effimere, opere d’arte precarie. – 2. L’arte contemporanea e`
frequentemente arte contrattuale: il certificato come statuto giuridico dell’opera. – 3.
Tutela dell’integrita` dell’opera d’arte: modifiche, danneggiamenti e distruzioni nell’arte
contemporanea. – 4. Il disconoscimento dell’opera come sanzione alla lesione del
diritto all’integrita` dell’opera e per inadempimento. – 5. Il ruolo degli archivi d’artista
nella tutela degli autori e del mercato. – 6. Il Museo e la conservazione delle opere
d’arte effimere e precarie: PACTA per la tutela dell’identita` e autenticita` dell’opera.

Resale right, or also droit de suite, usually denotes the right of an author, or of his heir after death, to a royalty from each sale of his work of art following the initial transfer of ownership.  Generally speaking, France is marked as a country of origin of this legal institution, the concept of droit de suite; however, it was consequently adopted by many European countries.  Nevertheless, there were disparities between particular national laws relating to resale right. Due to that Directive 2001/84/EC on the resale right for the benefit of the author of an original work of art (hereinafter “Directive”)  was adopted. As it was argued, harmonization was necessary in order to ensure proper functioning of the internal market of the EU and to insure that no distortions of competition occur.

The book is devoted to the search for the fifth branch of the philosophy of law, which - apart from the ontology of law, epistemology of law, logic and legal ethics - completes its research areas analogically to general philosophy. It turns out that the aesthetic aspects of law may have practical significance in all of its five phenomena, that is: creating, binding, observing, applying and interpreting. Moreover, the aesthetics of law also influences the shaping of legal awareness and attitudes towards the law. The whole argument was organized in such a way that external and internal approaches to the aesthetics of law were distinguished and the issue of law as a tool of aestheticization was presented. All this is supported by many examples taken from the world of culture and art.

"Kamil Zeidler's book, many years in preparation, will soon become a scholarly event on an interdisciplinary level – not just in Poland. Its outstanding value is a ​​result of the author's broad scholarly horizons, and his vast erudition in the philosophy of law, aesthetics and the history of European art. I was amazed by the wealth and quality of illustrations that most effectively suppplement the author's discussion." Professor Juliusz A. Chróścicki

"The study not only makes it possible for the reader to learn a great deal about the relations of law to a variety of dimensions of culture and art, but, above all, it offers a rare opportunity to accompany an author in cutting fascinating new paths in the philosophy of law." Professor Tomasz Pietrzykowski

Following an exhibition held at the Groeningen Museum in Bruges ("The Art of Law"), for which I was invited in Autumn 2016 to give a conference, a three-days conference was held on this occasion. A selection of papers were published on this volume. My contribution (chapter 11) is published undr the title "The paradoxes of Lady Justice's blindfold". This paper has also appeared in French, under the title "L'allégorie de Justice et ses bandeaux" in issue 2018-4 of the "Cahier d'Histoire de la Justice".

12 ottobre: Duchamp, artista? Non sempre per il diritto. Le definizioni giuridiche di opera d’arte.

Il diritto d’autore è in grado di conoscere bene l’arte classica e moderna, fatta di oggetti, statue, quadri. L’arte classica ha suggerito il consolidarsi di categorie giuridiche classiche, quali quella di originalità dell’opera dal punto di vista del diritto d’autore, e che ben si adattavano ad un modo di esprimere la creatività quando questa era centrata sulla figura dell’artsita-soggetto e sul suo prodotto-oggetto, l’opera. L’arte contemporanea negli ultimi decenni ha contaminato tra loro i generi e ampliato le tipologie di medium, confondendo con intenzionalità teorica pittura e scultura, oralità, gestualità, comportamentalità, innovando nei modi dell’espressione, in una ricerca sempre più motivata verso la smaterializzazione dell’opera, verso l’opera effimera e l’opera da riattivare, verso l’apertura alla partecipazione del pubblico alla realizzazione dell’opera stessa. Quali strumenti ha il diritto per tutelare nuove tipologie di espressioni artistiche?

13 ottobre:  Aspetti contrattuali dell’arte contemporanea.

L’arte contemporanea, in particolare modo dagli anni '60, ha fatto propri una serie di documenti legali, sia come strumento di amministrazione che come specifica modalità della pratica artistica. Certificati e contratti, non più intesi esclusivamente come attestati in grado di comprovare l'autenticità delle opere d'arte, sono entrati a far parte del linguaggio artistico e costituiscono ancor oggi per gli artisti un efficace mezzo per riflettere sullo statuto dell’opera d'arte e sul sistema economico in cui questi beni si muovono.


14 ottobre.  “Traccia e archivio”: l’autenticità delle opere d’arte.

La complessità dell’arte contemporanea postula un ripensamento in ordine alle modalità di valutazione ed attestazione del carattere di autenticità di un’opera, e, per la valenza della produzione che si fonda sulla documentazione dell’opera d’arte stessa, di una innovativa considerazione del concetto di “autenticità dell’archiviazione” e del ruolo degli Archivi d’artista.

This research paper looks at the judicial decisions in Canada including R v Butler, R v Labaye, and R v Sharpe to trace the court's evolving attitudes on obscenity. Specifically, this paper discusses visual arts in relation to censorship, obscenity, and pornography. The purpose of this paper is to show that the obscenity law restricts artistic freedom by requiring an unsubstantiated risk of harm. Consequently, this paper takes an anti-censorship feminist approach arguing there is profound educational value to be had in allowing artists to depict morally taboo subject matter. With this in mind, this paper offers a policy recommendation to eliminate the law of obscenity and indecency.

Keywords: Labaye, Butler, Sharpe, Langer, artistic merit, obscenity, indecency, pornography, anti-pornography, censorship anti-censorship, freedom of expression, Canadian Charter of Rights and Freedoms, risk of harm, artistic expression.

The metaphor connecting blindness and fair-impartial legal treatment has been embodied in the Western world for hundreds of years through the image of a blindfolded woman who represents justice. Nonetheless, not much has been written about the complexities and obstacles that stand in the way of placing actual blind judges on the bench. Nor has the 'Icon of Justice' been used to represent the social struggle for disability rights. This article is the first to turn a spotlight on the long history of blind people in England and the United States serving as members of the judiciary and to explore how this integration dovetails with the symbolic importance of blindness in the iconography of law. The article delves into the varied connotations of blindness throughout Western culture and legal history, specifically in its purported relationship to the objectivity of the judge. Finally, the article contrasts examples of the inclusion of blind people in Anglo-American legal systems with an Israeli case, revealing existing barriers that still prevent many blind people from entering the legal profession.

South Asia is encountering a pace of development which is unlike ever in its history, as the population rises and more rural areas and hinterlands are converted into urban spaces, archaeological contexts are disturbed forever. And yet, no developer, (even when the developer is the government which is supposed to be the caretaker of heritage), reports the discovery of artefacts for fear that archaeologists may slow down or even stop construction at a site. The entire South Asian region has seemingly noble and strong laws to protect their heritage, they have departments of archaeology to enforce them and ministries of culture to administer them. Yet, these laws have only been partially successful over the past 30 years. They have now outlived their utility and become both regressive and counterproductive. This article explores some of these contradictions.