'Law Is in the Bin: New Frontiers in Conceptual Art and Legal Liability' by Katelyn E Doering in (2021) 97 Notre Dame Law Review 441 comments
Part I of this Note begins with a discussion of who Banksy is and why his work is important to this legal debate, finishing with a detailed description of the features of conceptual art that are relevant for legal analysis and an argument that the shredding stunt – the event itself, not the partially shredded canvas – is a work of conceptual art. Part II argues that the unique features of the shredding stunt, and of future works in the same artistic category, present a novel legal problem both for artists and for buyers. This novel problem is explored through the lens of the legal recourse available to buyers of modern art who become aware at the time of purchase that the artist had different plans for the tangible elements of the work than were communicated prior to purchase. Whether the court adopts the artist’s or the buyer’s definition of the ‘artwork’ is crucial to the resolution of these disputes. Existing law governing sales of artwork indicates that a reviewing court is more likely to side with the buyer.
In light of the ramifications of the shredding stunt and the new questions it raises, Part III issues recommendations for artists seeking to realize their creative goals and buyers seeking to avoid harm to themselves and liability to third parties. In the absence of formal copyright protection for conceptual artworks, artists can avoid legal action from potential buyers by ensuring they only sell to willing buyers. While this option has adverse consequences for artistic integrity, as risk mitigation is antithetical to the element of surprise at the heart of works like the shredding stunt, artists might need to voluntarily accept this reality as a limitation on their ability to pursue any concepts they desire. Buyers, on the other hand, need to begin scrutinizing art transactions with more caution if they want to avoid becoming unwilling participants in conceptual artworks. In fully evaluating risk, buyers may also be able to rely on industry norms to incentivize artists to be mindful of their interests.
