Collecting art always has been a risky and dangerous matter for investors. Now it has become more dangerous.
This is not because of recent auctions, in which works of art failed to bring the prices expected and in some cases didn't even draw the reserve prices. Such happenings are not new. They are part of the ebb and flow of all markets. Nor is it because of the debate over the government's funding of artists, particularly those who might offend.
The new threat to art collectors is a law sponsored by Sen. Edward Kennedy, D-Mass., which was tacked to legislation that whipped through the Capitol in the closing days of this year's session. It is called the Visual Artists Rights Act.
What it means: If you buy a painting or other art object, the artist has control of what you do with it. If you damage it in some way, or if it is destroyed, the artist has the right to take you to court.
The new law also raises the possibility of artists retaining ownership of the rights to their work to a greater degree than ever before, to the extent of receiving royalties each time a particular painting, sculpture or whatever is sold.
What the Kennedy measure does, art dealers believe, is prohibit the sale of art work. No matter how much a buyer pays for a particular work, the artist retains control of that work forever.
"I would call it the Lawyers Full Employment Act of 1990," says a gallery owner in New York City's SoHo district. "Nobody is quite sure what it means, but it sounds very much like that painting on your wall may have just become a time bomb.
"There is a lot of confusion, because no one knows just how far the law goes. Does it mean that if the artist doesn't like the way you've hung the painting he or she can insist you put it on a different wall, on pain of a lawsuit? What if the artist doesn't believe a particular piece belongs in your home at all? This thing has no beginning and no end."
What constitutes art under the new law? The law doesn't really say. That is left up to the courts to determine. Unclear also is the extent to which the law applies to existing works of art.
One thing is clear, say art dealers: The new law, designed to aid artists, in fact will bring further tension to an already shaky market.
The new federal law mimics one approved in California in the 1980s. That law has resulted in substantial litigation. Insight magazine reports one case in which an artist gave a painting to his girlfriend. Following a bitter breakup, the woman cut up the painting and mailed the pieces back to him. He sued and won.
The whole issue arose from an incident that took place a few years ago in New York. The federal government had purchased a sculpture called Tilted Arc and installed it in the courtyard of the Federal Plaza in lower Manhattan. The long, bent slab of metal quickly became a public urinal and a hide-out for muggers, or so the government claimed when it announced plans to remove it.
The artist sued. A lengthy and expensive legal battle followed before the government was finally granted permission to have the sculpture hauled away.
Under the new law, the outcome could well be different.
Also in question is the status of existing pieces of art. It is up to the courts to determine whether that sculpture you purchased is fully yours, or whether the sculptor now can tell you what you may and may not do with it.
Perhaps you want to sell it. Perhaps you are offered a price you find attractive. Must you inform the sculptor of the piece's pending status change? Does the artist have a right to veto the sale? If so, what grounds are permissible for such a veto?
All these matters will have to be determined by the courts.
"It's a real mess," says a Manhattan art dealer. "The law probably was offered with the best of intentions, but once it soaks in, its effect is going to be that people are not going to buy works of art. Who would want that kind of hassle?"