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Apologies for the lack of blogging in last couple of weeks. I was swamped, among other things by my contribution to co-writing, on short notice, a paper on the federal government’s Senate reform plans. (The paper isn’t quite ready yet, but should be soon enough, so I hope to have more to say about it in the coming weeks.) I am still swamped, but will try to post, if not as frequently as I might like.

To get my rhythm back, here’s a not-entirely-serious thought inspired by a story that ran 10 days ago. The story is about a 1967 Ferrari being sold for $27.5 million, a price one usually associates with famous paintings, not used cars (albeit that these too can get pretty expensive, at least if you add punitve damages and full-indemnity costs into the mix). Then again, describing the Ferrari 275 GTB/4*S NART as a “used car” doesn’t really give you the picture (to get the picture, do click on the link above). This thing is not really a “used car” ― it is, indeed, more like a work of art. (Other old cars, by the way, have been exhibited in art museums ― even one as serious and prestigious as Arts Décoratifs in Paris.)

Which brings me to my not-entirely-but-somewhat serious, and legal, thought. Many jurisdictions, especially in Europe, give an artist a right to receive a royalty from the re-sale of one of his or her works ― something known as a droit de suite. Interestingly, California, where the Ferrari seems to have been auctioned off, also has a statutory provision, s. 986 of the California Civil Code recognizing a droit de suite, though it has been found unconstitutional (as an interference with interstate or foreign commerce) by a federal District Court. Now, I am no expert on art law, but I doubt that such legislation would apply to the sale of the Ferrari. The California provision certainly wouldn’t. It applies only to a “work of fine art,” which it defines as “an original painting, sculpture, or drawing, or an original work of art in glass,” which seems to exclude much or even all decorative art ― not just cars. (I should also note that the sale of the Ferrari would not have come within the scope of this provision for other reasons.) My question is: why is this?

One reason might be that applying the droit de suite to the sale of cars, or indeed of other objets d’art, would not really serve the purpose for which the right was created, which was, apparently, to help help impoverished artists and their families. In a legislative debate, the French culture minister declared that

it is said that it was created following the re-sale of Millet’s L’Angélus after the war of 1914-1918. The painting’s owner made a great deal of money, even as the artist’s family was in strained circumstances. Many artists, as well as their families, had suffered because of the war: the droit de suite was a way to remedy socially difficult situations. (Translation mine; you have to scroll down to the heading “Avant l’article 28” to fin the passage.)

It might be that Ferrari, and other corporations often involved in the creation of objets d’art, are not struggling artists who need that kind of help. But, for one thing, some creators of decorative arts are, in fact, individuals. For another, companies too might be in dire financial straits. Ferrari itself, so long as it was ruled by its founder Enzo Ferrari, mostly struggled along ― he just used it to fund the Formula 1 team, which was the thing that really mattered to him.

I’m tempted to think, half-seriously at least, that the distinction being made here are just another product of the law’s inability to deal with art, about which I have already written here. Art is difficult to evaluate, and it is difficult even to define. Smarter people than lawyers have a hard time with that ― it is not surprising that lawyers, and legislators, do too.  All that is not to say that the droit de suite is generally a good idea ― I don’t know whether it is. But if it is, then the question of what qualifies as art, and how the law is going to implement this definition becomes an interesting one.

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