Diritto & Internet

Art through the eyes of the law – 1st part

Here is the interview with Giusella Finocchiaro recently published in “Il giornale dell’arte”.

As a lawyer, how would you define art and its various forms of expression today?

There is no legal definition of artwork. Art itself defies definition. This does not mean that there are no legal instruments to protect the original creation, leaving aside all critical or aesthetic assessments, which belong to other fields of expertise and knowledge. The main Italian law which may be applied to art is that regarding copyright dating back to 1941, which models itself on the romantically based approach of French legislation, focussing on the author, in contrast to the Anglo-Saxon approach. The law on copyright, framed in such broad terms that it can also be applied to contemporary art and its various forms of expression, states in art. 1 that “(the following) are protected (…) intellectual works of a creative nature pertaining to literature, music, figurative art, architecture, theatre and cinematography, whatever be their mode or form of expression”. The same law goes on to list in art. 2: literary, dramatic, scientific, educational and religious works, both in written and oral form; musical works and compositions; works of choreography and pantomime; works of sculpture, painting, drawing, engraving and of similar figurative arts, including scenic design; architectural designs and works; works of cinematographic art whether they be silent or with sound; photographic works; and then also software and databases. Therefore any form of expression, provided it is of a creative nature, can be protected.

How do you see the circulation of cultural assets and the transformation of the art market and its players in the Internet age?

The Internet has widened the market and made it more mobile, but also more accessible to those with less experience, who therefore need adequate protection and information. This situation once again raises issues well known to operators in the field of e-commerce: namely the problem of the applicable law, the competent court, the electronic form of the contract, the protection of the weaker party and so on. Specialized law firms already have extensive experience of all these issues, but the online market is also a great opportunity for companies and artists. Nor should we forget either digital art, which creates a form of expression of digital technology, or its target market.

What windows are opportunities are created by new funding methods in the art market such as investment funds and cultural crowdfunding, for example?

In the last decade we have seen a growing interest in investment funds in the art business that reached peak levels in 2014. These investments are highly attractive as they allow diversification of investment portfolios and, at the same time, they give the individual investor the feeling of being the owner – even if partially – of great masterpieces that would otherwise be the prerogative of only an elite few. However, it is just as well to remember that these investments are not risk-free. This type of financing has certainly brought an injection of new blood to the traditional art market. Of quite a different nature, crowdfunding for art projects is usually reserved for financing non-commercial cultural projects. At a time when public funding for artists is constantly decreasing, crowdfunding represents a form of survival for non-profit projects.

In recent years thanks to this type of financing, innovative projects have been developed, which would have had great difficulty attracting interest on the part of traditional investors. For example the Nikola Tesla Museum in New York comes to mind, which was built thanks to a crowdfunding campaign on the Indiegogo platform, on which almost two million dollars were collected in six days. In Bologna we have had an interesting crowdfunding campaign in support of the restoration of the famous Portico di San Luca, which has been most successful.

What is the role of artistic patronage and what are the current trends?

Italian legislation promotes donations directed to art and facilitates their tax deductibility. However, individual private donations are related to the state of the economy and do not always put the art and culture sector first. In the contemporary art system traditional cultural patronage has already undergone significant changes, characterized by the appearance of art foundations, which are able to merge together private resources for the implementation of projects and activities in support of the public cultural heritage. In recent years, a new type of patronage has created an opening for particular forms of collaboration and hybridization, involving cultural institutions with new business skills and advising large groups to invest in works of considerable cultural value. It is well known that some of the most famous historical monuments have been restored thanks to donations. The interesting formula of “adoptional” patronage can also be added to these solutions, which is a miscellaneous category of concrete cases still in search of a precise fiscal and juridical arrangement. In fact, while the different varieties of sponsorship are governed by a negotiable contract and in the case of simple patronage the investor’s return is measured in terms of prestige, the case of “adoptional” patronage stands out on account of the absence of any return linked to the use of the image of the artwork or of its “privatization”. In the adoptional formula, in the absence of contractual ambiguity and of the provision for compensation, the contribution of the private individual should simply look to protect and increase the value of a cultural asset.

[Click HERE for the second part]

Add comment

Scientific Director
Prof. Avv. Giusella Finocchiaro
Editorial Curator
Dott. Giulia Giapponesi