Art Law

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The Framers of the Constitution acknowledged the importance of the arts when they wrote that Congress shall have the power "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" (Art. I, § 8). Despite this provision, or perhaps because of its very limited nature, the federal government offered little assistance to artists until the 1930s. Early unsuccessful attempts to aid the arts included an effort by President james buchanan to establish the National Commission of Fine Arts, a project that failed within a year when Congress did not appropriate funds. President theodore roosevelt also encountered a reluctant Congress half a century later when he proposed the Council of Fine Arts, but success came when his successor, william howard taft, persuaded Congress to create the National Commission of Fine Arts.

Even after the National Commission of Fine Arts was established, the federal government continued to play a minor role in funding the arts, but several municipal programs attempted to fill the void. In New York City, the Civil Works Administration (CWA) sponsored paintings, murals, and art education. The primary goal of the CWA was to create employment for artists receiving government relief. With the only requirement for employment being an assertion that the applicant was an artist, the art produced under the CWA was often the work of unskilled amateurs.

Federal funding for the arts took off during the Great Depression with the creation of the Federal Art Project, a branch of the Works Progress Administration (WPA). The Federal Art Project was modeled on some of the earlier municipal attempts but avoided their problems by emphasizing the production of works of high technical competence, utilizing defined hiring guidelines, and encouraging creativity and experimentation. The Federal Art Project paid a security wage, an amount that was calculated to fall between the prevailing wage and the relief grants of the region involved and was graduated according to skill level. The WPA spent $35 million on the Federal Art Project and supported the production of approximately 1,500 murals, 18,800 sculptures, and 108,000 paintings as well as other works of art. The onset of world war ii effectively ended the WPA.

In the cold war era following World War II, the federal government funded cultural exchanges to promote diplomatic ends. The major cultural institutions were located primarily in large cities, such as New York, Los Angeles, Chicago, and Boston. In 1965, only five state arts agencies existed. The quality of performances and exhibitions was inconsistent, and support for the best art depended on the discretion and charity of a few patrons. As a result, opportunities for artists were limited, and rural audiences had few chances to see the best productions or visit outstanding exhibitions.

In the mid-1990s, federal financial support for the arts and humanities was provided through several distinct agencies: the National Commission of Fine Arts, the National Endowment for the Arts (NEA), and the National Endowment for the Humanities (NEH). The Commission of Fine Arts, established in 1910, advises the president, Congress, and government department heads on matters of architecture, sculpture, painting, and other fine arts. The commission's primary function is to preserve and enhance the appearance of the nation's capital, Washington, D.C. (40 U.S.C.A. § 104[1986]).

The National Foundation for the Arts and Humanities Act of 1965 (20 U.S.C.A. §§ 951–968 [West Supp. 1990]) established the NEA and the NEH. The NEA provides grants to, or contracts with, groups and individuals of exceptional talent, and state or regional organizations engaged in or concerned with the arts. NEA programs encourage individual and institutional development of the arts, preservation of the American artistic heritage, wider availability of the arts, leadership in the arts, and the stimulation of nonfederal sources of support for the nation's artistic activities. The goal of the NEA is not to provide employment, as the WPA did, but rather to make the arts more widely available to U.S. citizens, to preserve the nation's rich cultural heritage, and to encourage the creative development of the nation's finest artistic talent. By 2003 the NEA had made more than 120,000 grants for theater, dance, symphonic music, painting, and poetry.

As a major financier of the arts, the NEA has been a significant influence on much of the publicly exhibited art in the United States. For many years, it led a quiet administrative existence, and, although it was a force in the artistic community, the general public knew little about it. In late 1989, however, the organization became the center of controversy when some members of Congress questioned whether some works of art and performances funded by the NEA were obscene. The NEA had provided funding for exhibits featuring the works of artists including Robert Mapplethorpe and Andres Serrano. Mapplethorpe's exhibit included sexually explicit photographs of men, and Serrano's exhibit included a jar of urine into which a photograph of a crucifix had been placed. The uproar from the public, and from members of Congress, was so strong that in 1990 Congress enacted a law that required the NEA to take into consideration "general standards of decency and respect for the diverse beliefs and values of the American public." This became known as the decency test.

Over the next several years other controversial grants were awarded and challenged, culminating in a case that went to the U.S. Supreme Court. The case, National Endowment for the Arts v. Finley 524 U.S. 569, 118 S. Ct. 2168, 141L.Ed. 2d 500 (1998), was brought by four artists including Karen Finley. Finley became infamous for a performance art piece in which she would remove her clothing and smear chocolate on her body. The work, she explained, symbolized the way women were exploited in society. Finley and her fellow plaintiffs argued that the 1990 statute was unconstitutional and that the decency test was a violation of the rights of free speech and due process.

A district court agreed and the U.S. Court of Appeals upheld the district court's decision in 1996 100 F. 3d 671 (9th Cir.) In 1998 the Supreme Court ruled 8 to 1 that the law was constitutional, and that it violated no rights. Grant-seekers, the court noted, were required to submit their proposals to a panel representing diverse points of view; as such, the risk that an arbitrary ruling of indecency would be reached was minimal. In his dissent, however, Justice david h. souter warned that the law could force artists to censor their own work to ensure that it would not offend anyone in a position to approve a grant.

The NEH funds activities are designed to improve the quality of education and teaching in the humanities, strengthen the scholarly foundation for humanities study and research, and advance understanding of the humanities among general audiences. The NEH provides support through outright grants, matching grants, and a combination of the two. Schools, higher education institutions, libraries, museums, historical organizations, professional associations, other cultural institutions, and individuals are eligible to apply for NEH grants.

One avenue members of Congress use to support the arts is the Congressional Arts Caucus. This bipartisan group, composed of nearly 250 members of Congress who recognize and support the arts, acts as an information clearinghouse on arts issues. The caucus reports on legislation affecting artists and arts institutions, both commercial and nonprofit. It helps members of Congress prepare testimony and speeches on the arts.

The government also provides indirect aid designed to create a heightened public awareness of art and to provide artists with new outlets for their work. Among the effective means of indirect aid are the regulations adopted by many state and municipal governments, which require a percentage of the cost of building new government structures to be spent on art.

Federal, state, and local governments indirectly promote a heightened public awareness of the arts in the community through zoning. Zoning laws divide a city into districts and set forth the types of structural and architectural designs of buildings in those districts, and the uses that buildings may serve. Some zoning regulations and laws are designed to preserve the aesthetic features or values of an area. As of 2003, most state courts allowed the use of zoning laws for solely aesthetic purposes. These laws may, for example, restrict the placement of billboards or television satellite dishes or may require that junkyards be screened or fenced.

State and local governments have become involved in improving the appearance of publicly funded buildings, or any building built on public land, by requiring that new building designs and locations be approved by the local government. Local control over design was held constitutional in Walnut & Quince Streets Corp.v. Mills, 303 Pa. 25, 154 A. 29, appeal dismissed, 284 U.S. 573, 52 S. Ct. 16, 76 L. Ed 498 (1931). In Walnut & Quince Streets, a municipal arts panel refused to permit a theater owner to construct a large marquee extending over the sidewalk. The owner unsuccessfully argued that a local statute permitted the jury to act in an arbitrary fashion that deprived him of due process of law and, furthermore, that the legislature did not have the authority to regulate aesthetics and thus could not delegate such authority to an "arts jury." The court upheld the statute as a legitimate legislative regulation of public property.

Many governments have enacted statutes and regulations prohibiting the destruction and alteration of historic landmarks. Landmark preservation laws indirectly aid the arts by increasing the public's awareness of the need for beautification and for preserving the work of past generations of artists. The earliest efforts to preserve the nation's heritage focused on particular buildings or national monuments. The application of historic preservation laws to limit a property owner's right to her or his property was declared constitutional in Penn Central Transportation Co. v. New York City, 438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978). In Penn Central, the U.S. Supreme Court held that the New City Landmarks Preservation Commission's failure to approve plans for construction of a 50-story office building over Grand Central Terminal, a designated landmark, was not an unconstitutional taking of property.

Historic preservation law is an active and expansive area of zoning and planning law. According to the National Trust for Historic Preservation, over 1,700 communities have enacted preservation laws. Federal efforts to encourage preservation include the enactment of laws providing some tax credits for the protection and restoration of old buildings (26 U.S.C.A. § 48 (g)(3)(A) [1986]) and for the protection of archaeological sites (16 U.S.C.A. § 461[1986]).

further readings

Brenson, Michael. 2001. Visionaries and Outcasts: The NEA, Congress, and the Place of the Visual Artist in America. New York: New Press.

Ellickson, Robert C., and A. Dan Tarlock. 1981. Land-Use Controls: Cases and Materials. Boston: Little, Brown.

Frohnmayer, John E. 1992. "A Litany of Taboo." Kansas Journal of Law and Public Policy 2 (spring).

Hulbert, Dan. 1998. "High Court Upholds NEA Decency Standards." Atlanta Journal-Constitution (June 26).

Rathkopf, Charles A. Rathkopf's Law of Zoning and Planning. 4th ed. New York: Clark Boardman Callaghan.

U.S. Congress. Congressional Arts Caucus. Serial 20515.


Helms, Jesse Alexander, Jr.; Land-Use Control; Zoning.