How 'art law' went from niche curiosity to legal mainstream

In 2025, "art law" is a recognized subject of litigation and counseling work and an area of practice to which more than a few law students aspire. Dozens of U.S. law schools regularly teach classes in this area. All this has happened in roughly the past half century. 

Around 1970, John Henry Merryman, a middle-aged comparative law professor at Stanford Law School, was stumped when his wife Nancy, having recently opened an art gallery in Palo Alto, came to him with legal questions related to her dealings with artists and collectors. Merryman began investigating the legal doctrines implicated in these relationships, as well as other art-related legal issues, such as artists' rights, taxes and the international trade in antiquities. In 1972, he and Albert Elsen, a Rodin scholar in Stanford's art history department, co-taught a law school course called "Art and the Law." They published their teaching materials in the first edition of "Law, Ethics, and the Visual Arts" in 1979. 

Merryman and Elsen published the second edition in 1987. After Elsen's death in 1995, Merryman published two more editions. Then in 2007, working with Stephen K. Urice, an art law scholar at the University of Miami School of Law, Merryman published the fifth edition. 

Meanwhile, I found my own path to art law. After graduating from law school in the early 1990s -- when art law wasn't offered as a class -- I clerked for a wonderful federal judge in New York who had developed a judicial expertise in copyright cases. It is hard to imagine, 35 years later, how little attention copyright law received. During my entire three years at law school, only one intellectual property law course was taught. After clerking, I returned to practice in my hometown of San Francisco, eager to explore intellectual property litigation.

As it happened, my father had retired from practicing business law in San Francisco around the same time and spent a year studying at Harvard's Kennedy School. At Harvard's law school, he took one of the very few art law classes offered in the country. He returned to the Bay Area, audited Merryman and Elsen's class, and then designed his own law school class on art law -- inviting me to teach it with him at Berkeley Law School when I was a second-year associate. He and I continued co-teaching at Berkeley and other law schools in the Bay Area for half a dozen years; I kept teaching after my father "retired from retirement," as he liked to say, and have continued to do so to this day.

Early on, my teaching led to related legal work. Lawyers at my firm would come to me with clients' art-related issues, and I developed practice expertise in issues of copyright, title and transactions related to art. Colleagues and I litigated a case against Mattel when it sued an artist who used Barbie dolls in photographs, juxtaposed with vintage kitchen appliances, an obvious commentary on the Barbie beauty myth. In a landmark opinion, the 9th Circuit upheld the artist's right to use the Barbie doll in this way under copyright and trademark law -- and the artist recovered over $2 million in attorney's fees. Later, I handled significant litigation matters for and against museums concerning ownership of cultural property and restitution claims over an abstract expressionist painting that had changed hands under the Nazis. 

All of which brought me directly into John Merryman's orbit. In 2012, Merryman, then age 92, decided to stop teaching the art law class he had pioneered and taught for more than 40 years. He recommended to Stanford that they ask Adine Varah -- then the top arts lawyer for San Francisco and now general counsel at the San Francisco Museum of Modern Art -- and me teach the class in his place. We both leapt at the chance -- and of course, used the latest edition of "Law, Ethics, and the Visual Arts." Two years later, Professors Merryman and Urice invited me to collaborate with them on the next (sixth) edition of the book -- referred to as LEVA6. 

How do you revise a foundational textbook, retaining its distinct voice and character while updating the materials? The three of us discussed the basic plans for a significantly revised edition, drawing in part on the structure of the teaching materials my father had developed decades earlier before John's death in 2015. Then Stephen and I had  to figure out how to do the work. As a partner at Covington & Burling at the time, the book became my night and weekend project for many years. Equally significant, I was lucky to receive help from dozens of associates and summer associates at Covington, who researched developments in a wide range of areas and collected source materials for each chapter.

There was a lot of material. The chapters include transactions in the art world in the primary (when artists first sell a work through dealers or directly to collectors) and secondary markets (when collectors or dealers sell, often at auction), issues of title and authenticity, artists' rights in the works they create (such as copyright and moral rights), tax issues affecting those in the art world, international trade in cultural property, museums' legal issues, freedom of expression and more. 

Stephen and I worked to revise the book to be more than a textbook, so it could function as well as a useful reference work for lawyers and other professionals (such as dealers, collectors or museum staff) and also be accessible for anyone interested in legal and ethical issues related to visual art. There were other, more subtle issues to address. John Merryman was a renowned scholar and staked out strong positions on certain cultural property and art world issues (such as his general arguments in favor of relatively free trade in cultural property and his more specific view that the so-called Elgin Marbles at the British Museum should remain there in the face of Greece's requests for repatriation). Stephen and I sought to balance these and other discussions on a range of controversial issues.

Around the time the manuscript went to the publisher, I left my law firm to become a judge on the Superior Court in San Francisco. I have been handling criminal hearings and trials there for the past two years, while continuing to teach Art and the Law at Stanford with Adine Varah. And LEVA6 is finally out, just published by Cambridge University Press.

I still love these issues, as I did when I first began teaching and practicing art law 30 years ago. Art law presents so many fascinating legal issues, set against the background of the colorful art world: What is "art" and who is an "artist?" Does art justify (or require) different legal treatment from that accorded other tangible personal property? How does and should the fact that art is a form of expression affect how it is regulated, protected and funded? What special fiduciary or other duties should be imposed on those who buy, sell or exhibit works of art? What is and should be the role of judges or juries in deciding disputes involving aesthetic determinations, such as whether a work is authentic or obscene?

The factual contexts in which these issues arise are also captivating. The art world is full of colorful characters -- genuine geniuses and true charlatans -- who display tremendous ambition, deep appreciation for beauty, and, sometimes, breathtaking dishonesty. A valuable painting is consigned for sale to someone who appears to be an art dealer but turns out to be a delicatessen employee; an impressionist painting is lost by Jews in Germany under the Nazis and, years later, sold to a good faith buyer in New York, and then, more years later, the heir of the original owner seeks its return; a famous painter is irked that his ex-wife has sold one of his works, so he disavows authorship of the painting -- to name just a few examples from LEVA6.

And quickly evolving areas of law keep it interesting. Even since LEVA6 went to press there have been notable developments in repatriation of cultural property and the relationship between visual art, copyright, and generative artificial intelligence. We are already starting work on the next edition, LEVA7!