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International Journal of Museum Management and

Curatorship
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The common market and the art market

Jean Chatelain & Raymonde Moulin
Published online: 14 Aug 2009.

To cite this article: Jean Chatelain & Raymonde Moulin (1982) The common market and the art market, International Journal of
Museum Management and Curatorship, 1:4, 311-322, DOI: 10.1080/09647778209514846

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 The Common Market and the Art Market 311
22. Case 62/79, Coditel (1980) ECR 881.
23. First Directive for the implementation of Article 67 of the Treaty, OJ 43, 22.7.1960; Second Council
Directive of 18 December 1962 adding to and amending the First Directive for the implementation of Article 67 of
the Treaty, OJ 9, 22.1.1963.
24. The Development of a European Capital Market, Report of a Group of experts appointed by the EEC Commission
(Brussels, November 1966).
25. Especially, Case 78/70 Deutsche Grammophon (1971) ECR 487; Joined cases 55 and 57/80 Gema (1981) ECR
147; Case 187/80 Merck, not yet reported.
26. See on this subject W. Waelbroeck, La compatibility de la procedure de declaration prealable de hausses de prix
avec les regies du traite de Rome (1981) RCJB 12.
27. Case 120/78 Cassis de Dijon (1979) ECR 649.
28. Case 83/78 Pigs Marketing Board (1978) ECR 2347.
29. Case 120/78 Cassis de Dijon (1979) ECR 649.
30. Communication from the Commission, Oj C256, 3.10.1980, p. 2.
31. See in particular, M. Waelbroeck, Droit des marques et regies du traite de Rome: aux termes d'une evolution
(1977) RCJB 212; L. Defalque, 'La Cour de justice des Communautes europeennes et les teledistributeurs' Revue
de droit intellectual, L'Ingenieur-Conseil (1981), p. 1.
32. See for example, Written Question No. 889/81 by Mr Weisch to the Commission (OJ C 315, 3 December
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1981, p. 2) concerning the variety of difficulties encountered by a British lecturer wishing to spend a year in
France.
33. P. Fontaine, Le Comite faction pour les Etats-Unis d'Europe de Jean Monnet (Lausanne, 1974), p. 13.
34. R. Rochefort, Robert Schuman, Lecerf, 1968, pp. 340 and 344.
35. Agence Europe, editorial of IO September 1981.
36. Schuman Declaration of 9 May 1950.
37. H. Brugmans, L'idee europeenne, 1918-1965, p. 248.
38. Agence Europe, editorial of 10 September 1980.

II. The Concept of the Work of Art

In the light of twentieth century artistic developments the definition of the Work
of Art is a problem of immediate importance since, in effect, any definition adopted
establishes the limits of application of fiscal and administrative measures, as well as
defining what potentially constitutes the artistic patrimony.

The Original Work of Art: A Lawyer's View

JEAN CHATELAIN

A basic objection has to be disposed of before we can start to deal with this subject. Although
obviously fallacious, this objection still commands support in certain quarters. It is this: Can
art be subject to the law at all? Is there not a fundamental antithesis between the two? The
argument is supported by romantic visions of the artist as subject to neither man nor law, as a
solitary wild boar or as a lion roaring in the moonlight. If it were accepted, this study would
be damned from the start. What this argument overlooks, however, is that art concerns a
 312 The Common Market and the Art Market
much wider group of people than just artists, namely all those who revolve around them,
dealers, experts, collectors and the art-buying public. It also forgets that at the beginning of
the French Revolution it was the artists themselves who asked for special protection from
exploitation at the hands of parasitic publishers, theatre managers and dealers.
Art is everywhere a subject of law, and has long been so. We might consequently expect
that its end product, the work of art, had long been defined. This is far from the case. The
reason is not the lack, but the proliferation, of definitions, many of which are meaningless
when they are not contradictory. Thus, in France, the great law of 31 December 1913 on
historical monuments allows to be classified as such any movable or immovable property
whose conservation is in the public interest from the point of view of art history; the law of 23
June 1941 on the export of works of art speaks of objects of national significance for history or
art; whilst that of 31 December 1968 on the preservation of the national artistic heritage
applies to works of art and items belonging to collections of great artistic or historical value.
All this is not very illuminating. The same unclear picture is found in other countries'
legislation and in international instruments. There are a good half-dozen definitions of'work
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of art' in UNESCO conventions and recommendations, and the most important, in the 1970
Convention on illicit trade in cultural property, is so wide that it would have been quicker to
say what is not a 'cultural property' than what is.
The obscurity is too widespread not to have deep-seated causes. Let us look at two of the
most fundamental:
1. The first is the enormous diversity of art. Operas, ballets and plays are as much works of
art as paintings, drawings and sculptures but have completely different characteristics and
uses. Here we are not going to deal with the 'intangible' arts, music, dancing, drama, etc., but
concentrate on the plastic arts. These have the common feature of producing tangible
objects, but the range of such objects is still extremely wide, covering paintings, drawings,
engravings, sculptures, tapestries and furniture, and the traditional variety is tending to
increase as new materials and methods appear. Faced with such variety, the law can either try
to cover everything at once by keeping its provisions very general, or it can try to be concrete
and precise, in which case it will be forced to fragment itself into a multitude of separate sets
of rules.
2. The second reason for the multiplicity of definitions is the difference in the approach and
objectives of different pieces of legislation. These are of course infinitely variable and can
differ from country to country. We will look at three which are found practically throughout
Europe. The first objective is a desire to protect things that are seen to be of particular value
to the community at large. This is almost always the case with archaeological finds and is
often true also of other things which have a special function, e.g. works in public art
collections, or which have been selected for lists of classified properties, etc. The actual form
the protection takes varies, from safeguarding the work against vandalism, or simply
inexperienced handling, to restrictions on export. It is difficult to find any common principles
underlying these arrangements and we will not go into them here. The second motive for
legislation may be a wish to protect the artists themselves. Arrangements designed to achieve
this have existed for a very long time but they have used quite different methods. The first
and older type of protection starts from the definition of the artist. He is a person who has
been admitted, after proving his competence in some way or other, to a corporation,
confraternity, guild or academy. The definition of the work of art follows, namely a work
executed by an officially recognized artist in accordance with the techniques and aesthetic
standards prescribed by the organization to which he belongs. In modern times, however, we
start by defining the work of art and go on to say that anyone executing works worthy of being
protected is, ipso facto, an artist. It is the modern system that we will mainly be talking about
 The Common Market and the Art Market 313
here. The third objective is to protect the 'consumers' of works of art, namely the art-owning
and, more particularly, art-buying public. Although we all like to pride ourselves on our
good taste, we are unfortunately not all equally competent. The art trade is such big
business nowadays in terms of the numbers of people involved and the amount of money
changing hands that there would appear to be a social need to protect the inexperienced
purchaser from the wiles of unscrupulous dealers. In 1900 men could bring ruin upon their
families by keeping mistresses. Now you can do the same by unwise buying for a private
art collection.
We will confine our discussion to the definitions prompted by the last two aspects, with
particular reference to works having that quintessential attribute of works of art, namely
originality. We will thus be concerned with the lawyer's view of the original work of art.
However, even with the field apparently narrowed down, the matter is still not clear-cut or
free of interference. In fact, two different notions of the original work of art emerge
depending on whether the vantage point is protection of the artist or protection of the
consumer.
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I. The Original Work of Art from the Point of View of Protection of the Creative
Artist
The main characteristic of the copyright systems that have been developed in all European
countries is their liberalism, shown by a complete absence of formality. Whereas in related
fields, such as patents and trade marks, protection is acquired only if certain formalities are
completed and certain associated checks carried out, the copyright in artistic works comes
into existence automatically and at once by operation of the law. To be regarded as the author
of an artistic work a person does not need to be regularly pursuing a particular, in some
degree organized, occupation or to complete certain formalities. An artist is anyone who
produces, even on a one-off basis, a work falling within the scope of the protecting legislation.
Thus, it is the definition of the work of art that precedes and determines that of the artist.
This very liberal approach results in the definition of the works protected being very wide,
often to the point of vagueness, a feature compounded by the fact that the definitions attempt
to cover works in such different fields as literature, painting, sculpture and music. Thus the
various terms used in national legislation all tend to be very wide, for example 'intellectual
works' (Italy), 'works of the spirit' (France), 'literary and artistic works' (Belgium, Denmark
and Luxembourg), and 'literary, dramatic and musical works' and 'artistic works' (United
Kingdom, Ireland).
The very wide terms are sometimes amplified, with the aim of giving examples rather than
limiting their scope. This is done, for example, in Article 3 of the French law of 11 March
19571 and Article 2(1) of the Berne Convention.2 The lists which are given are nevertheless
very comprehensive. The intention behind all the definitions is clear, even if their terms may
not be. Copyright is intended to protect works that are new, creative in the true sense of the
word, and which display their author's powers of invention, in other words 'original' works as
opposed to reproduction or copies. Some national legislation actually uses the expression
'original work' (United Kingdom, Ireland). The Berne Convention also does so in Article
2(2), which extends the list given in Article 2(1) quoted above as follows: 'Translations,
adaptations, arrangements . . . shall be protected as original works, without prejudice to the
right of the author of the original work.' Whether the word 'original' is used or not, in no
country does there appear to be any serious doubt on the point that the type of work
deserving of protection is that which contains something new or original compared with what
has existed before.
 314 The Common Market and the Art Market
With the statutory definitions of protected works having been left deliberately vague, in
order not to exclude works in unconventional or unforeseen forms, although the underlying
idea is clear, it will be the job of the courts to decide in individual cases whether a work for
which copyright is claimed is entitled to it or not. There is on this subject an extremely
abundant and detailed case law, which is analysed and discussed in the many specialist
journals dealing with copyright in most of the countries concerned. We can therefore restrict
ourselves to a few of the basic notions.
(a) The most general principle is that copyright extends only to works that display
creative imagination. To be recognized as have copyright, therefore, a work must fulfil two
conditions. First, actual work must have been produced; a mere idea for a work does not
qualify for protection. Anyone can take a subject treated only months before by another artist
and depict it in his own way. Justice pursuing Crime, The Birth of Venus, The Victory of Law
and The Bay of Naples do not belong to anyone and are not copyright as ideas for works of art.
Secondly, a work can attract copyright only if it contains a creative, novel or personal
element. Hence, the sculptor who merely made a cast of the human body would not be
creating a work of art, even if the result was very beautiful.3
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(b) The point at which an idea or inspiration is considered to have assumed sufficient form
to become a work is not the same for all art forms. In literature, the idea or theme for a work is
not usually considered in itself as deserving of protection. There will not be a work until the
idea has been moulded into a text that is at least sufficiently organized to have a personality
and identity of its own. In music—like literature, an intangible art form in that its end
product is not a physical object—a melody is usually regarded as constituting a work even
before the addition of harmony and rhythm to make it into a complete piece of music. In
these art forms, the final process of transferring a work on to a physical medium is subsidiary
and need not be performed by the author himself, i.e. it is immaterial whether the composer
or poet writes the score or manuscript himself or dictates it to an assistant. The essence of the
work is the arrangement of sounds or ideas which has taken shape in the composer's or poet's
head before it is put down on paper. The situation is different in the plastic arts, in which a
tangible object is the end product. Here, it is this physical embodiment that is protected by
copyright. A painter is entitled to set up his easel next to that of another painter and paint the
same subject. The paintings which result will both be regarded as originals protected by
copyright provided they were both painted by the respective artist's own hand and reflect the
impression the scene made on him, and regardless of the similarities there are likely to be
between the pictures if the artists paint in a representational style. If, however, the second
painter merely copied by hand the painting of the first, his painting would not be an original
but a copy. Difficulties are also caused for the courts by the arts in which the work must pass
through several forms before it is a complete work of art, such as bronze sculpture, where the
real work of the creative artist consists in making a clay or plaster model but the sculpture is
not complete until many craftsmen have performed further important operations to cast the
material in another material, bronze. Nevertheless, it is an established principle that only a
person who contributes what is new or original about a work can claim to be its author and be
protected by copyright. In the case of bronze sculpture, it is agreed that the sculptor alone is
the author and that the assistants who put the clay or plaster model into another medium are
playing only a technical role.
(c) The existence and enforcement of copyright do not depend on the artistic merit of the
work or the purposes for which the privileges of copyright are claimed. The courts need
consider only whether a work has the characteristics of innovation or personal creativity.
They do not need to go into the work's social significance or aesthetic quality. This rule is
sensible, especially as the canons of artistic merit become increasingly uncertain. It has the
 The Common Market and the Art Market 315
disadvantage, however, that original but minor works are given exactly the same protection as
masterpieces. The artistic trivialities that are held to be covered by the undiscriminating
protection of copyright are sometimes surprising. Here are a few typical examples from
decisions of French courts, which have ruled worthy of protection as 'works of the spirit': a
design of fancy umbrella in the Second Empire style with wavy trimmings, giving it, in the
court's opinion, an original look; aquarium decorations made of stones, cement and glass,
which were held to have, however simple their design, a novel and unusual appearance; and a
design of wrapping paper for flour confectionery featuring an endless repetition of two types
of paving stones, making the design 'novel and distinctive'.4 Such rulings are commonplace
and explain why the possibility of less comprehensive or less prolonged protection for some
minor works is sometimes mooted in legal literature.5 Copyright thus provides uniform
protection to all creative works. The protection is limited only in time, usually until 50 years
after the author's death (the copyright period may incidentally involve difficulties of
calculation and application for various reasons, as in the case of collaborative or posthumous
works or because in some countries it is extended in wartime). It should be noted that the
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protection is not reduced or exhausted by use but remains the same for as long as it exists.
Thus, a novel is copyright whether or not it was successful and whether it has been printed in
half-a-million copies or circulated only among the author's friends. It cannot berepublished,
reproduced or adapted for the cinema or television without the author's consent. Similarly,
the fact that a painting by Picasso, Chagall or Miro has been widely reproduced in books,
photographs, audiovisual showings, etc., does not entitle anyone to make a further
reproduction. However widely a work may have been disseminated, as long as the copyright
has not expired it is not in the public domain. The same applies to a work which the author
wished to keep secret. The author can prevent anyone who has gained knowledge of it from
publishing it without his consent. To sum up, the protection of an author's copyright in his
original work, which is the basis of the legal protection of creative artists, is not subject to
conditions or numerical or quantitative restrictions. It is a completely different story,
however, when it comes to protecting, not the artist, but those who at one stage or another
may acquire an artist's work.

II. The Original Work of Art from the Point of View of Protection of the Art-buying
Public
Art collectors like to claim that they are attracted solely by the beauty of the works they buy.
In fact, an important part of their appreciation of a work is probably its rarity value. This is
no doubt bound up with man's psychological make-up. Our love for something tends to
contain a large measure of possessivenessand to be stronger if nobody else has it or anything
like it. It is also partly attributable to a fairly recent historical factor, namely the profound
transformation in the conception of art and the artist which has taken place since the early
nineteenth century. In the eighteenth century, artists were still not clearly distinguished
from craftsmen. Some masters may have been more highly regarded than others, but such
people were to be found in all branches of the arts, and a great cabinet-maker or goldsmith
counted for as much, or as little, as a great painter. All were highly skilled in their chosen craft
and lived in the shadow and under the protection of rich and powerful patrons, whose
surroundings they beautified with the paintings, furniture, tapestries and ornaments which
decorated their mansions and palaces. The various arts and crafts were also organized on
similar lines, as far as their differing technical characteristics allowed. They were trades
controlled by a guild or academy and in all of them, even those later to become the most
individualistic, it was common for practitioners to work in communities or schools. Painters
 316 The Common Market and the Art Market
also worked in this way. A young painter would become a pupil to a master and would serve
him for many years until his talent was sufficiently recognized to become a master himself and
found his own school with pupils and assistants to help him. He would work at his pictures
slowly and painstakingly, like a craftsman, striving for perfection, and without attaching too
much importance to drawings and sketches, which he would regard as merely unfinished
forms of the work. If the final work was successful, he would have no scruples about
reproducing it himself or having his assistants do so under his supervision, just as a
cabinet-maker or goldsmith would do with a work with which he was pleased.
The revolutionary upheaval which broke up the traditional guild system, the advent of an
individualist philosophy and the associated upsurge of romantic sentiment, and finally the
development of the art market and speculation in art works, helped to destroy the unity of the
arts and replace it by a hierarchy. For these factors combined to produce a new concept of the
artist as someone unique and inspired, endowed by providence or nature with a creative gift
for making things that had never been made before, a gift so personal and spontaneous that it
could only flourish in complete liberty, brooking neither tutelage nor restriction. This
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exaltation of creativity, which from now on is considered the fundamental characteristic of

the artist, much more than mastery of technique, inevitably led to a reclassification of works
of art and of the arts themselves. As the artist is seen as someone with a creative gift,
innovation increasingly comes to be seen as the main characteristic of the work of art. The
genuine work of art is one that has never been made before, in other words an original work.
The exaltation of artistic creativity had important consequences in the plastic arts, which will
here be divided for convenience into the 'simple' and the 'complex'. The 'simple' arts are
those in which the work is completed by the creative artist himself. In painting and drawing,
for example, although nowadays the artist does not make his own materials and tools such as
canvas, paper, brushes, pencils and paints, once he has these materials he uses them to
produce a complete and finished work. The 'complex' arts are those in which the creative
artist produces an incomplete work, which is finished off by craftsmen. For example, an
etching or engraving has to be printed, a bronze cast, before becoming what the creative artist
wished to produce.
(a) In the 'simple' arts, notably painting and drawing, a trend emerged towards treating as
an original anything produced by the artist's own hand. While artists were all still thought of
as superior craftsmen, the perfect finished work was the culmination of their activity. The
sketches and drafts that came before, although not completely lacking interest, especially if
done by a great master, were nevertheless only preliminary works which, if kept, would be
considered to be of secondary importance by comparison with the final work. Final works
that had been particularly well received were often repeated (because artists usually worked
in schools surrounded by pupils and assistants). Such works which came after the final
original work—replicas when they were mainly executed by the master, and copies when
they were done by pupils under his supervision—did not have the same value as the original
work, chiefly because they had not required the same thought and preparation, but provided
they were executed under the master's close supervision and with his consent, they were not
considered fundamentally different from it. In fact, they often resembled the original so
closely that nowadays it is often difficult to tell them apart without additional evidence.
The exaltation of creativity under the influence of an individualist philosophy smoothed
out these distinctions. Drafts and sketches, long neglected or attracting interest only for
study purposes or out of curiosity, began to become important. After all, did they not express
the artist's creative imagination and spontaneity even more than the finished work? As for
copies and replicas, handmade copies ceased to be made as other reproduction techniques
began to be used and painters stopped working in family-like communities, surrounded by
 The Common Market and the Art Market 317
their pupils. Replicas produced by the painter himself became unthinkable: How could an
artist, filled by creative inspiration, make the same work two or three times over? Of course, it
might happen that an artist painted the same face, landscape or bouquet of flowers two or
three times, but each version would be thought of as a separate work, distinct from all the
others, and in any case the artist would probably himself take care to introduce variations to
make the pictures distinguishable. The result is that in the 'simple' arts the idea of the
original work has gradually become blurred, so that it is impossible to distinguish
preliminary works, such as drawings or sketches from finished original works, and from
copies or replicas. All are now lumped together under the same term. Any work by the artist's
own hand, whether preliminary sketch or finished work, whether unpublished or repeated
from a work published earlier, is now an original. Originality has become confused with
authenticity.
(b) The exaltation of artistic creativity had a different effect on the 'complex' arts,
threatening in fact to relegate them to a second-rate status. The reason lies in the inherently
reproductive nature of the 'complex' arts. In these art forms, artist and craftsman collaborate,
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the craftsman finishing off the work of the artist. The craftsman's role is important, because
without him the piece of furniture, tapestry or bronze would not be put into its final form, but
it is also secondary since it is, and must be, confined to putting into a tangible form ideas for
which the artist alone is responsible. However essential, it is only an auxiliary, executive role,
because the operations performed by the craftsman are purely technical and not creative;
they are repeatable. Whereas the artist, by definition inspired, would never express an idea
twice in the same form, the auxiliary is and must be able to repeat the technical operations he
performs. A weaver can weave the same tapestry, a founder cast the same statue, several times
over, and the proof that they have done their job well and stuck to their proper role without
succumbing to the temptation to emulate the artist by introducing their own ideas is that the
successive copies they make of a work are all as alike as it is technically possible to make them.
Just as in the 'simple' arts the exaltation of artistic creativity necessarily led to an exaltation of
the original work, consideration of the part played by craftsmen in the 'complex' art forms
necessarily led them to be associated with the idea of duplication and reproduction. This was
not prompted only by abstract or theoretical considerations. The craftsmen who are involved
in the 'complex' arts are highly skilled and often use large amounts of expensive materials. To
stay in business, craft workshops need a minimum supply of regular work, which is provided
by producing runs or 'editions' of works of art. Although there are instances of tapestries or
castings being produced only once, or even of single prints being made of engravings, if such
cases were the rule crafts, weavers, printmakers and bronze founders would long be a thing of
the past. The 'complex' arts are characteristically arts of repetition.
For this reason there was a serious danger that the 'complex' arts would no longer be
considered art forms at all, but, at best, artistic crafts with a correspondingly much lower
status. Some people resigned themselves to this situation and quickly turned to more humble
commercial activities, though retaining nostalgia for the more glorious past. This happened,
for example, to French furniture-making, which in the eighteenth century had been among
the leaders in the field. Others tried to fight against the drop in status by attempting to show
that, although their work might be duplicated in 'editions' of several or many copies, what
they did was still an art in the full sense of the term. With this aim in view, their supporters
popularized the concept of'original (or first) edition'. The concept of'original edition' is, for
largely historical or technical reasons, understood differently in the various art forms
concerned. A historical influence is the fact that in engraving a distinction was long drawn
between reproduction engravings, in which the printmaker reproduced the work of another
artist, and original engravings made by an artist directly expressing his own ideas. This
 318 The Common Market and the Art Market
distinction has now become obsolete since means of reproduction other than engraving have
taken over its role. There are also technical reasons. Whereas it is easy to make hundreds of
prints from an etched or engraved plate in a short time, it takes months or even years to
reproduce with the traditional methods a bronze sculpture or a large tapestry. Thus there are
differences in how 'original edition' is understood between different 'complex' art forms, but
the underlying idea is the same, namely to show that of the many copies of an engraving or
sculpture that can be made from the original plate or model, one set or edition of copies,
namely the 'first' or 'original' edition, is special and therefore worthy of a special designation
(and of course price!).
From a logical, and even technical, standpoint, the distinction between copies of a work
belonging to the first edition and to later editions is clearly quite artificial and arbitrary. It is
easy to see that the first print taken from an engraved plate will be better than the 10,000th
since the plate will by then have worn, or that a bronze figure cast as one of a large edition
might be less well finished than one made under especially careful supervision. On the other
hand, there is no reason at all why print No. 150 should be essentially different from No. 151
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or bronze No. 5 from No. 6. The argument based on the physical wear of the plates or moulds
is applicable only where there is a stubborn refusal to introduce modern techniques into the
traditional crafts. It is possible to print thousands of copies of art books, and to produce tens
of thousands of industrial castings in shapes often every bit as complex as those of sculptures
and to infinitely higher standards of precision. Finally, there is the further point that 'original
edition' is really a contradiction in terms, because edition implies duplication whereas
originality implies uniqueness. However, whether we like it or not, 'original edition' has
become an established part of the modern art scene, both among collectors and dealers. It is
an inescapable fact which it is wisest to accept. Nevertheless, we should try to prevent the
concept being misused as a sales ploy, a danger which arises from the fact that it is an
arbitrary notion to which no technical or logical criterion or limit can be applied. The
problem is that we are tending to see a proliferation of editions of works all claiming to be
'original', like washing powders all claiming to wash whiter. To give only two examples, it is
possible to make several 'original' editions of an engraving, one on Japanese paper, one on
Holland, and finally one on laid paper, not to mention the successive states, with or without
notes and drawings. Similarly, bronzes are often cast in several sizes from scaled up or down
versions of the basic model.
There is nothing inherently wrong in this proliferation, for, after all, this is why the
reproduction methods were devised—to make it possible to duplicate works in large numbers
for the enjoyment of hundreds or thousands of art lovers who are thereby able to acquire
these beautiful objects at a reasonable cost. It would, however, be wrong to take advantage of
the public by passing something off as special or rare when it is not. There therefore needs to
be a precise and foolproof definition of what may and may not be called an 'original' or 'first'
edition. The question is who is to decide on this definition. Should it be left to the art
world—i.e., artists and dealers—or should it be enshrined in legislation? Whilst one might
prefer the first alternative, if no definition is forthcoming or if the prevailing definition is not
observed, there might be circumstances in which the public authorities will be forced to
intervene, in a perhaps heavy-handed or blundering fashion. This is what has happened in
France with the decree of 3 March 1981.
Whoever decides the cut-off point and at what figure, it will inevitably place a restriction
on the right of reproduction, which under copyright law is unlimited. Thus, if we analyse
them closely, we find there is a clash between the two concepts of original work of art derived
from the points of view of protecting the artist and protecting the art-buying public
respectively. This is another inescapable fact. Any special protection given to one group is a
 The Common Market and the Art Market 319
restriction on other groups which have relations with it. For example, the general copyright
system for the protection of artists inevitably limits the rights of owners of contemporary
works (they cannot, for example, destroy such works because this would infringe the rights of
the artist, although in normal circumstances anyone is free to destroy what belongs to him).
Conversely, increasing the protection of collectors of original works encroaches upon the
rights of artists. In all these things it is necessary to strike a balance. Artists, dealers and the
art-buying public are too dependent on one another to be able to afford not to reach an
understanding. It is also important that all those who are trying to harmonize national
legislations, particularly between the countries of the European Community, should be
conscious of the complexity of the subject, for which there are no simple solutions.

References and Notes

1. For the purposes of this law, 'works of the spirit' shall mean, in particular: books, pamphlets and other literary,
artistic or scientific writings; lectures, addresses, sermons, counsels' speeches and works of a similar nature;
dramatic or dramatic-cum-musical works; choreographic works and mimes whose manner of performance is fixed
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in writing or otherwise; musical compositions with or without words; cinematographic works or works produced
by a similar process; drawings, paintings, architectural works, sculptures, engravings and lithographs;
photographic works of an artistic or documentary character and works of that character produced by a similar
process; works of applied art; illustrations, geographical charts, plans, sketches and multi-dimensional models of a
geographical, topographical architectural or scientific nature.
2. The term 'literary and artistic works' shall include every production in the literary, scientific and artistic
domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings;
lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works,
choreographic works and entertainments in dumb show, the acting form of which is fixed in writing or otherwise;
musical compositions with or without words; works of drawing, painting, architecture, sculpture, engraving and
lithography; illustrations, geographical charts, plans, sketches, and plastic works relative to geography,
topography, architecture or science.
3. Charges that they were using such reproduction techniques were levelled at the beginning of their careers at
some of the great masters, including Rodin when he began to exhibit works that were considered too lifelike to
have been produced by artistry alone. Rodin strenuously denied the charges, which were an attack on his integrity
as an artist.
4. Cour de Cassation (Comm.), 16 July 1968 (Bulletin Cour Cass. 68,4; 219); Cour de Cassation (Civ.), 30 April
1970 (Bulletin Cour Cass. 70, 1, 117); Cour de Paris, 3 February 1973 (Annales de la propriete 1973, 117).
5. Adolf Dietz, Copyright lam in the European Community. A comparative investigation of national copyright
legislation with special reference to the provisions of the Treaty establishing the European Economic Community,
Brussels (Commission of the European Communities), 1976. See also the regular case reports in the Revue
internationale du droit d'auteur.
 320 The Common Market and the Art Market

Notes on the Sociological Definition of the Work of Art

RAYMONDE MOULIN

Any product may become or be an object culture!. What is a work of art? A cultural
commodity? A humble pebble may have inestimable worth. And a humble pebble,
we would add, may have 'inestimable significance'.1

The Orthodox View

In the eyes of the law, art is defined in terms of concepts handed down to us from the
nineteenth century. The work of art is of its nature unique, original, a product of the
individual genius, existing in and for itself. This disputed but still dominant view is itself the
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legacy of historical developments which led to the sequestration of art from both craft and
industry. The process began in late-fifteenth century Italy, when painting, sculpture and
architecture came to be venerated as 'fine' arts wholly divorced from the manual trades. The
artist was no longer a maker but a creator. The second stage came with the industrial
revolution; against the division of labour, mass manufacture, mere utilitarian worth set the
work as art, as a manifestation of the creative spirit and an object of unsullied, disinterested
contemplation. This social definition manifests itself in legal terms in the concept of
originality. The fact that this concept itself is socially conditioned and historically relative is
well illustrated by the progress of printmaking in the nineteenth century. The law seems to
have been enlisted in the protection of rarity value, as a 'certificate' of artistic authenticity.2

Art without Artworks

The orthodox definition of the work of art is challenged by modernists. Over the last twenty
years the standard-bearers of the international avant-garde have quite explicitly set out to
'assassinate' the conventional work of art, with the aim of exploding its elitist social
connotations and economic exclusivity. In this they have simply carried on the subversion of
art from within, which dates from the beginning of this century, devaluing 'technique',
rooting out meaning in favour of the chance happening, canonizing the objet trouve and
eventually substituting the artist for the work, if, as the surrealists proclaimed, living (or
dying) 'artistically' was in itself an art-form. Artists of the 1960s and 1970s continued the
work of the major pre-war modernists pushing it to the frontiers of minimalist asceticism or
Dadaist self-parody. As the art fraternity succumbed to the fascination of the void and the
international culturati hailed the demise of 'the Work', the signature of the artist and the
critic's exegesis filled the vacant frame hung on the institutional wall. A Brillo box is just an
item on a shopping list until signed by Andy Warhol. Christian Boltanski's signature on the
most blandly banal of photographs is enough to transform it into Art with a capital A.
'Documentations' of Land Art or Body Art are printed off in signed limited editions. But only
the signature of an acknowledged artist can turn a Brillo box into Art. How a person comes to
be socially established as an artist is too complicated a question to go into here. In France, the
committee which classifies people as artists for social security purposes considers 'creations'
not belonging to one of the traditional art categories—painting, sculpture, engraving or
drawing—by reference to the institutions in which they have been displayed. Thus, in a
virtuous circle, the 'art world' defines the artist and the artist defines art.
 The Common Market and the Art Market 321

Art, Craft and Creation

As an inevitable corollary to the etiolation of the Work by each successive New Wave, has
come the wholesale co-optation of art forms from other cultures and eras. The insatiable
quest for the rare object and the doctrines of aesthetic relativism have extended the 'art'
appellation to work well outside the academic's sphere. Anti-art and anti-culture have their
logical counterpart in the consecration of popular or 'ethnic' forms of visual expression. Not
only has art become the 'totality of known styles',3 it has widened its scope to include
traditional utilitarian artefacts. Thepromotion of popular traditional forms, long regarded as
culturally inferior, to the ranks of art has been followed by the assimilation of naive art, art
brut and the productions of instinctual and primitive artists or 'solitaries'. Of course, the 'art'
label is not handed out to just any object which forms part of our cultural heritage in the
anthropological sense of the word; objects previously regarded as ordinary become art only
when given the accolade by professionals—anthropologists, dealers, collectors, and
curators—and accorded a place in the museums.
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The elevation of contemporary trade or craft activities to the status of art is facilitated by
the blurring of conventional distinctions between major and minor arts, fine art and
commercial art, and the current extension of the concept of creation. 'Creativity' has become
the hallmark of the artist, and the criterion is reflected in new occupational classifications4 and
modern thinking on the legal definition of originality. But the prestigious title of 'creative
artist' is not bestowed on every artisan—once again, it is the art fraternity itself which
nominates the elect. In the field of textile crafts, for instance, groups of 'artists' are
increasingly exhibiting their work on the gallery circuit. Nevertheless, the power of
convention is such that their work is still often regarded as impure, with overtones of
'handicrafts'. The use of new technology such as video or the laser, on the other hand, offers
an instant entree to the world of art.

Art, Technology and Creativity

Science and technology have now been incorporated in the creative process, and 'research' is
a key concept in current avant-garde circles. Artists are using new photographic, film or
electronic media, opening up the possibility of re-producible or serial work and challenging
conventional ideas about the unique, irreplaceable nature of the work of art.5 Not only is
'high-tech'—or at any rate 'low-tech'—invading the artist's studio, but the extension of the
concept of creativity I have just mentioned also means that the products of the leisure
industries are being reconsidered and one by one admitted to the pantheon. Photography and
cinema are uncontroversially hailed as arts in their own right. Posters, and filmed
commercials are bought by museums, and international festivals celebrate the strip cartoon.
Uniqueness has ceased to be material; the law will have to redefine the 'originality' of art and
the rules for its protection. Advanced communications technology spreads cultural products
worldwide and legal, economic and sociological factors will all need careful consideration,
reopening the great nineteenth century debate on the relationship between art and industry.
The demarcation lines between art, craft and industry are fading, at least for the type of
'works' elevated to the status of art by the voices of authority.

Art, Culture and Creativity

The term 'artistic heritage' covers more than just the pantheon of 'dignified' beaux-arts
pieces, and the narrow definition of artistic creation—the heroic manifestation of an
 322 The Common Market and the Art Market
individual sensibility—is now outdated. Yet is the concept of the artistic heritage itself not
gradually becoming merged with the much wider concept of cultural heritage? The
distinction between 'Culture' with a capital C and culture in the wider anthropological and
sociological sense has become a political issue. The current democratization of our notions
about the creative process is tending to blur the distinction between art and other
manifestations of a given culture; radical anti-academicism and the looser definition of
creativity are breaking down the old identity of art. 'Today' said Mr Chatelain in his
stimulating talk, 'we start from the definition of the work and deduce that whoever produces
work worthy of protection is ipso facto an artist. We will be confining our discussion to this
modern system.' Can a 'modern system' inherited from the nineteenth century still apply to
the contemporary scene? I think that today, the tables have been turned: the acceptance of a
work as art proceeds from the acknowledgement of its creator as an artist, by the arts
establishment, or the art patrons.

Notes and References

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1. Jean Duquesne, 'De l'Europe des marchands à la comunauté des artistes', in La vie de la douane, July 1976, p.
40.
2. 'Rarity certifies art' (Marcel Duchamp).
3. To borrow Gaëtan Picon's remark.
4. As the job categories used by census organizations reveal.
5. Since it is difficult to check the number of 'copies' made, special sale and rental terms have been devised. See
Castelli-Sonnabend: 'Videotapes and Films', Vol. I, November 1974 (Castelli-Sonnabend Tapes and Films) for
the 'Conditions of Rental and Sale' on the inside cover.

III. Free Trade in Works of Art

Examinations of the national regulations operating today and proposed regulations
which are under consideration, not least the proposal for a Council Regulation
introducing arrangements for movement within the Community of goods sent
from one Member state for temporary use in one or more other Member States
(July 1981).

Free Trade in Works of Art

JEAN DUQUESNE

The Community authorities have long been concerned with Europe's cultural dimension.
Improving the free movement of cultural property within the European Community is a
noble goal, but it is difficult to define let alone attain.
This is not the place for a detailed survey of past achievements in harmonizing Community
rules on the movement of goods. Admittedly, the customs union is not yet complete and
many national procedures and regulations still affect intra-community trade, but much
progress has been made, and since 1 July 1968, when the last customs duties between the