The art of understanding the law in art

Where there is money, there is conflict. And then come lawyers. And art is certainly an asset class that creates commercial wealth causing reasons for an intervention of the law. To complicate matters further, a creative work attracts intellectual property norms. Things can become complicated very quickly in the world of art with multiple parties in the ecosystem – the artist, gallery or dealer, collector, auction house, custodian and estate managers, heirs…to name a few. And issues at hand could range from title and ownership, provenance trail, authentication to intellectual property rights, copyrights, and reproduction rights. I personally collect art purely for the pleasure of enjoying it and engaging with it, but it becomes hugely evident that serious art collectors must have a lawyer ‘friend’ on speed dial.

Just last week I met Debottam Bose at the India International Centre in Delhi over a cup of tea. An old friend, Bose is the first art lawyer of India. His firm specialises in global art and philanthropy and operates out of the United Kingdom and India. Our meeting was meant to be a catch up but ended up being an educative conversation where I learnt about nuances of Art Law and its ever growing importance. Here are the key takeaways:

Art Law combines various aspects of law, and the independent nature is a value add to clients for unbiased advice.

The Art Law

I asked Bose about the genesis of this category. To my surprise, Art Law historically came into the forefront post World War II with Nazi stolen works of art. “A whole body of laws, both domestic and international, was framed to repatriate, return and protect works of art,” he said. Art attorneys in the US and Europe would specialise in Art Law as part of their private practice assisting clients with various claims arising from the Nazi regime, restitution to art crimes involving fakes and frauds to transactions involving buying and selling high-value works of art across multiple jurisdictions. And within the country, “…since 2004, with India’s economy opening up and doing well, affluent Indians have started collecting Indian modern and contemporary art. In the past decade, art has also been viewed as an alternative asset class,” says Bose.

The commerce of the art market continues to buzz. Bose said that even during the pandemic, total auction house turnover and art sales in India alone exceeded over INR 8.8 billion. Amrita Sher-Gil's In the Ladies' Enclosure became the second most expensive Indian work of art sold globally, after fetching a whopping INR 378 million at Saffronart. All this makes it attractive for the fake-art economy to churn as well. Bose says, “This has also led to an unprecedented level of fakes and forgeries being circulated, unsuspected buyers falling prey, and enforcement of existing Indian legal legislations to protect artists’ rights. The need for an art lawyer for verification, investigation, protecting artists and collectors’ rights is more important than ever.”

Thus, the area of practice of Art Law combines various aspects of law, and the independent nature is a value-add to clients for unbiased advice. It carved out a specialisation from the more traditional ambit of lawyering but requires a more creative approach and an eye for investigation in the way it forms a discipline of its own combining aspects from the law and nuances of art. 

Unique issues in a day in the life of an art lawyer

Bose says, “As an art lawyer, my chamber would get involved in all stages of buying a work of art or selling an artwork. Our job is to give strategic advice, as to what their best options would be.” Much of what an art lawyer does is investigative in nature, to fact-find and disclose material information to the client. “That’s the key. Independent advice based on full disclosure on critical issues, for example fake works of art or forged documents or imperfect titles or stolen works,” adds Bose. What is also important, as a part of the practice, he explains, is to understand the dynamics to resolve disputes, and maintain relationships. “It is not only about contracts and enforcement and the importance of no conflicts, but also about confidentiality to win clients over and close deals. Alternative Dispute Resolution is equally an important cornerstone of Art Law practice with mediation playing an important role,” informs Bose.

Monotony, or occasional moments of adrenaline rush?

“I was assisting a client with a prized Amrita Sher-Gil, oil on canvas painting that was for sale in India. My client, who is also based in India, absolutely loved the work. It was signed off as being authentic by a well-known artist and relative of Sher-Gil. All the paperwork was in order. I flew in to see the work and to see the original documents and inspect them. As I had mentioned, part of what an art lawyer does is very much investigative in nature. I must get to see and inspect the works of art. I was taken to the home of a well-known artist, who had sadly passed away. His widow was brought in a wheelchair, the painting was there along with all the original documents laid out on the table. I inspected them and when I was about to ask the widow the question about when and how her late husband acquired the Sher-Gil, I was given a letter in the late artist’s letterhead which detailed that the painting had been in the late artist’s collection. This was an important letter, what we call a provenance letter, but, as an art lawyer, part of my job was to validate this letter and see if it was actually written by the late artist. My research and investigation concluded that the letter was indeed forged: the painting did not actually belong to the late artist, it was what we call an ‘orphan work’, a stolen work, where all the paper works are forged and well-known, unsuspecting families are targeted as unsuspecting buyers to sell at a premium price,” shares Bose. This anecdote emphasises that even if a work of art is indeed genuine but with no provenance trail, or has a defective title, or if it is a stolen work, then any unsuspecting buyer takes the title risk and there is no defence to state that they were not aware of reality. Hence the investigation to establish both title and authenticity are important. “In this instance, we saved a princely amount of money and embarrassment for my client,” he adds.

Another example that Bose talked about was of a work by none other but Leonardo da Vinci! “I had to travel to Germany, Hamburg, to investigate and view a Leonardo da Vinci painting. You can imagine, I was so excited and I had my team with me. We met the seller’s side, including the agents, bankers, and a very old man who had the Power of Attorney. Dossiers and documents, and numerous authenticity affidavits were shared. Strangely, whenever I would request to view the painting, there would be a delay. This was an alarm bell. Then we were informed that the seller’s side wanted us to deposit money and the painting was not in Hamburg but in Madrid. This is where I took the decision that this deal was not going to happen and I did not want my client to pay the deposit, and we aborted the deal. Later, I was informed that the work was fake and entrapment to secure large amounts of deposit money from unsuspecting buyers,” he reminisces.

Recommendations to read and watch?

Watch: Women in gold and The Monuments Men.
Read: The Art Collecting Legal Handbook by Bruno Boesch (First Edition)

Topic of deliberation when I meet Debottam Bose next…why top images are that of lions in the wilderness when searching for ‘art law’ on a popular image bank 😉.