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Art Law Syllabus Professor Amy Adler Fall 2015 Vh 216 Tuesdays and Fridays

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Art Law Syllabus Professor Amy Adler Fall 2015 Vh 216 Tuesdays and Fridays ART LAW SYLLABUS PROFESSOR AMY ADLER FALL 2015 VH 216 TUESDAYS AND FRIDAYS In this interdisciplinary course we will systematically explore how the law shapes and constrains visual expression. The censorship of art will be our focus for the most significant portion of the semester. We will use the special problems presented by the interpretation of visual images in order to probe more deeply into the meaning of “speech” for purposes of the First Amendment. The next part of the class will examine copyrights, moral rights, and the right of publicity. The final portion of the class will address legal issues that arise in the art market. Throughout the semester, we will frequently consider contemporary art controversies as a means of examining these broader issues. NOTE ON THE COURSE READINGS Readings for this course are located in a variety of places. Many of the readings are available on NYU Classes. Some of the readings are from the casebook. As noted below, I have placed two copies of the casebook on reserve in the library. In reviewing the syllabus, please note the following: • Readings marked “(DBM)” are from the Duboff, Burr and Murray casebook (Aspen: Revised Edition). • If there is no notation following an assigned reading on the syllabus, that means that this material is available on NYU Classes. • Many online materials are listed on the syllabus as “available at” followed by a web link. Please click on the link in the syllabus to go directly to these materials. • The following materials are available at the bookstore and on reserve in the library: Susan Sontag’s “On Photography” (which we will read for one class), and the Duboff, Burr and Murray casebook. • I have frequently included suggestions for further reading on the syllabus. These materials are not assigned reading. I have included some but not all of these materials in NYU Classes. Please note that I will make changes in this syllabus as the semester progresses. 1 COURSE OUTLINE I. ART AND THE FIRST AMENDMENT INTRODUCTORY TEXTS A. THE ARTIST’S RIGHT TO FREE EXPRESSION: CENSORSHIP LAW AND THEORY 1. OBSCENITY LAW a. Introduction b. The Evolution of Obscenity Law c. Introduction to Postmodern Art: The Problem for Obscenity Law 2. CHILD PORNOGRAPHY LAW a. Child Pornography Cases b. The Question of Serious Artistic Value: Child Pornography Law and Artistic Expression 3. THE FEMINIST ANTI-PORNOGRAPHY MOVEMENT 4. HATE SPEECH 5. WHAT IS ART AND (WHY) IS ART PROTECTED BY THE FIRST AMENDMENT? a. Text v. Image b. Photography c. Dance and Live Performance B. MUSEUMS, GALLERIES, AND THE PUBLIC: THE POLITICS OF ART 1. GOVERNMENT FUNDING OF THE ARTS 2. MUSEUMS AND GALLERIES: SELF-CENSORSHIP 3. PUBLIC ART II. INTELLECTUAL PROPERTY IN ART A. “MORAL RIGHTS” OF ARTISTS B. COPYRIGHT LAW AND THE PROBLEM OF POSTMODERNISM 1. INTRODUCTORY COPYRIGHT ISSUES AND COPYRIGHTABILITY 2. FAIR USE AND CONTEMPORARY ART C. THE RIGHT OF PUBLICITY III. THE ART MARKET A. AUTHENTICITY B. LOOTED ART 2 ASSIGNED READINGS I. ART AND THE FIRST AMENDMENT INTRODUCTORY TEXTS • First Amendment, U.S. Constitution 1791 • Exodus 20, Ten Commandments • Rene Girard, Things Hidden since the Foundation of the World (1987) (excerpt) • Nathaniel Hawthorne, The Prophetic Pictures (1882) (excerpt) • David Freedberg, The Power of Images (1989) (Introduction) • Stephen Greenblatt, Renaissance Self-Fashioning: From Moore to Shakespeare (1980) (excerpt) • W.J.T. Mitchell, What Do Pictures Want? (excerpt) • Daniel Grant, In 2012’s Art World, More Lawsuits Than Art, HUFFINGTON POST, Dec. 20, 2012, available at http://www.huffingtonpost.com/daniel-grant/in-2012s-art-world- more-l_b_2338534.html A. The Artist’s Right to Free Expression: Censorship Law and Theory 1. OBSCENITY LAW a. Introduction • Andy Grundberg, Cincinnati Trial’s Unanswered Question, N.Y. TIMES, Oct. 18, 1990, available at http://query.nytimes.com/gst/fullpage.html?res=9C0CE0D6 163FF93BA25753C1A966958260 b. The Evolution of Obscenity Law • John Stuart Mill (excerpts) • Regina v. Hicklin, L.R. 3 Q.B. 360 (1868) (DBM 285-88) • Roth v. United States, 354 U.S. 476 (1957) • Memoirs v. Massachusetts, 383 U.S. 413 (1966) • Redrup v. New York, 386 U.S. 767 (1967) • Miller v. California, 354 U.S. 476 (1957) (DBM 293-97) • Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) • Pope v. Illinois, 481 U.S. 497 (1987) • Cincinnati v. Contemporary Arts Center, 566 N.E.2d 214 (Ohio Mun. 1990) (DBM 303-06) • Michael Brenson, The Many Roles of Mapplethorpe, Acted Out in Ever-Shifting Images, N.Y. TIMES, July 22, 1989 (Mapplethorpe Review), available at http://query.nytimes.com/gst/fullpage.html?res=950DE3DF 3 113CF931A15754C0A96F948260&sec=&spon=&partner=per malink&exprod=permalink • Mapplethorpe images, available at http://www.mapplethorpe.org/portfolios/ c. Introduction to Postmodern Art: The Problem for Obscenity Law • Amy Adler, Postmodern Art and the Death of Obscenity Law, 99 YALE L.J. 1359 (1990) • Linda Yablonsky, How Far Can You Go?, ARTNEWS, Jan. 1, 2004, available at http://www.artnews.com/2004/01/01/how-far-can-you-go/ • Pop Life at Tate Modern, available at http://www.tate.org.uk/whats-on/tate- modern/exhibition/pop-life-art-material-world and http://www.guardian.co.uk/artanddesign/2009/oct/04/pop -life-tate-modern-cumming • Sunday Dialogue: What Is That Art Worth?, N.Y. TIMES, Jan. 5, 2013, available at http://www.nytimes.com/2013/01/06/opinion/sunday/sun day-dialogue-what-is-that-art- worth.html?pagewanted=all&_r=0 • Daniel Grant, In 2012’s Art World, More Lawsuits Than Art, HUFFINGTON POST, Dec. 20, 2012, available at http://www.huffingtonpost.com/daniel-grant/in-2012s-art- world-more-l_b_2338534.html Koons • Scott Rothkopf, No Limits (excerpt from the catalogue essay by the curator for the Whitney exhibition) • Roberta Smith, Shapes of an Extroverted Life: ‘Jeff Koons: A Retrospective’ Opens at the Whitney, N.Y. TIMES, June 26, 2014, available at http://www.nytimes.com/2014/06/27/arts/design/jeff- koons-a-retrospective-opens-at-the-whitney.html?_r=1. • Peter Schjeldahl, Selling Points: A Jeff Koons Retrospective, NEW YORKER, July 7, 2014, available at http://www.newyorker.com/magazine/2014/07/07/sellin g-points. • Sabri Ben-Achour, Artistic inspiration or piracy?, MARKETPLACE, Sept. 29, 2014 (a piece on NPR about Koons and copyright), available at http://www.marketplace.org/topics/business/artistic- inspiration-or-piracy. 4 • Audio Guide for “String of Puppies” (remarks by Amy Adler), available at http://whitney.org/WatchAndListen/Exhibitions?context= Exhibitions&context_id=&play_id=1060 and http://whitney.org/WatchAndListen/AudioGuides?play_id =1061. • Optional: Wall text for Jeff Koons: A Retrospective, June 27–Oct 19, 2014 at the Whitney, available at http://whitney.org/Exhibitions/JeffKoons. • Optional: Jed Perl, The Cult of Jeff Koons, N.Y. REVIEW OF BOOKS, Sept. 25, 2014, available at http://www.nybooks.com/articles/archives/2014/sep/25 /cult-jeff-koons/. SUGGESTIONS FOR FURTHER READING • Amy Adler, All Porn All the Time, 31 N.Y.U. J. OF L. AND SOCIAL CHANGE 695 (2007) • Harry Kalven, Jr., The Metaphysics of the Law of Obscenity, 1960 Sup. Ct. Rev. 1 (1960) • David A.J. Richards, Free Speech and Obscenity Law, 123 U. PA. L. REV. 45 (1975) • Frederick Schauer, Speech and “Speech”—Obscenity and “Obscenity,” 67 GEO. L.J. 899 (1979) • United States v. Extreme Associates, Inc., 352 F. Supp.2d 578 (W.D. Pa. 2005) • EDWARD DEGRAZIA, GIRLS LEAN BACK EVERYWHERE: OBSCENITY LAW AND THE ASSAULT ON GENIUS (1992) • ELEANOR HEARTNEY, POSTMODERNISM (2001) 2. CHILD PORNOGRAPHY LAW a. Child Pornography Cases • New York v. Ferber, 458 U.S. 747 (1982) • Osborne v. Ohio, 496 U.S. 913 (1990) (DBM 308-11) • United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986) • United States v. Knox, 32 F.3d 733 (3d Cir. 1994) b. The Question of Serious Artistic Value: Child Pornography Law and Artistic Expression • Amy Adler, Inverting the First Amendment, 149 U. PA. L. REV. 921 (2001) (DBM 311-19) • Sally Mann art images, available at http://www.houkgallery.com/exhibitions/2007-11-29_sally- mann/ • Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (DBM 319-29) 5 • Miller v. Skumanick, 605 F. Supp. 2d 634 (2009) (excerpt) • United States v. Stevens, 559 U.S. 460 (2010) • U.S. v. Johnson, 639 F.3d 433, 441 (8th Cir. 2011), available at https://casetext.com/case/us-v-johnson- 819#.U_OujfldVp8 SUGGESTIONS FOR FURTHER READING • Amy Adler, The Perverse Law of Child Pornography, 101 COLUM. L. REV. 209 (2001) 3. THE FEMINIST ANTI-PORNOGRAPHY MOVEMENT • Catharine Mackinnon, Not a Moral Issue, 2 YALE L. & POL'Y REV. 321, available at http://www.jstor.org/stable/40239168 [login via Julius Library Catalog] • Catharine MacKinnon, excerpt from ONLY WORDS pp. 3-41 (1993) [Please note this book is on reserve in the library.] • American Booksellers v. Hudnut, 771 F.2d 323 (7th Cir. 1985) • Guy Trebay, Sex, Art and Videotape, N.Y. TIMES, June 13, 2004 (Review of Andrea Fraser’s “Untitled”), available at http://www.nytimes.com/2004/06/13/magazine/13ENCOUNT ER.html?ex=1402459200&en=aa724398866c64a5&ei=5007&pa rtner=USERLAND • Barbara Gamarekian, Show Closing Demanded at Washington Museum, N.Y. TIMES, July 13, 1991, available at http://query.nytimes.com/gst/fullpage.html?res=9D0CE7D717 39F930A25754C0A967958260&sec=&spon=&partner=permalin k&exprod=permalink SUGGESTIONS FOR FURTHER READING • Robert C. Post, Cultural Heterogeneity and Law: Pornography, Blasphemy, and the First Amendment, 76 CAL. L. REV. 297 (1988) • Geoffrey R. Stone, Anti-Pornography Legislation as Viewpoint Discrimination, 9 HARV. J.L. & PUB. POL’Y 461 (1986) • Cass R. Sunstein, Pornography and the First Amendment, 1986 DUKE L.J. 589 (1986) • LINDA WILLIAMS, HARD CORE: POWER PLEASURE AND THE FRENZY OF THE VISIBLE (1999) 4.
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