By Andrew Cohen
Reflecting the art world’s far-reaching expanse, a recent Berkeley Law symposium took on myriad issues that are captivating artists, curators, lawyers, scholars, investors, business leaders, and technology strategists.
Held at the San Francisco Museum of Modern Art, the second annual Berkeley Art, Finance, and Law Symposium delivered expert insights from numerous sectors. Presented by the school’s Berkeley Center for Law and Business, it tackled everything from how art’s influence on our culture and its unfurling relationship with artificial intelligence to the Supreme Court’s impact on artistic expression and high-stakes art fraud.
“We wanted to look at all the ways our shared love of art intersect,” said symposium organizer Delia Violante, the center’s associate director. “Our goal was to bring forth perspectives not only from legal and financial experts, but also from curators, collectors, and creators of all kinds.”
Discussing his book The Entanglement: How Art and Philosophy Make Us What We Are, UC Philosophy Professor Alva Noë said humans are the products of art. Appreciating that “no criteria can be used in advance to gauge success or failure” of art works, he added that making things has long been fundamental to our existence.
“Making art puts us on display in ways that give an opportunity to change and liberate us,” he said. “In that way, art refuses culture even as it feeds it and affords us a chance to catch ourselves in the act of bringing the world into view.”
Stepping into the AI cauldron
Artificial intelligence (AI) took center stage in a discussion with Open AI Deputy General Counsel Che Chang and Morrison Foerster attorney Heather Whitney. Moderated by Adam Sterling ’13, Berkeley Law’s assistant dean for executive education and revenue generation, the discussion probed a red-hot issue: authorship of art made using AI models.
As AI’s ability to dissect data rapidly advances, Chang described seeking a balance between how AI can improve artistic endeavors — from making a photo less blurry to churning out ideas for a painting — to making sure it doesn’t overpower the art world. With the explosion of ChatGPT and AI tools that create and enhance art works, he said proceeding in the absence of clear government regulation is a challenge.
“People really want AI to be fair,” Chang said. “They want to build something that’s useful, not something that replaces people. We want people to use AI tools freely in ways they see fit, but we don’t want to build something that replaces artists. These tools are going to improve the actions they can take on your behalf, but they also raise concerns and every group in society will be impacted.”
Whitney explained that the U.S. Copyright Office almost always granted copyright if someone had put any creativity or originality into their creative expression. But that has changed as copyright law scrambles to keep pace with AI. She said artists are increasingly using AI in the same way Photoshop became a tool to improve images, noting that photography initially didn’t receive copyright protection as courts initially questioned its creative depth.
“Courts now examine who controlled the artistic vision, who had say over the final end product,” Whitney explained. “In the U.S., you can’t have joint authorship unless it was agreed to. So the Copyright Office has effectively said it’s going to treat these claims like a dispute between two people: How much control did you exert over the image?”
Warhol at the Supreme Court
Symposium guests heard different views on Andy Warhol Foundation v. Goldsmith. Last month, the U.S. Supreme Court ruled that the foundation infringed on photographer Lynn Goldsmith’s copyright when it licensed an image of Warhol’s Orange Prince, based on Goldsmith’s photo of the late musician Prince, for use in a 2016 Vanity Fair spread.
Copyright law’s fair use exception allows unlicensed appropriations of copyrighted works in non-commercial or educational situations. The case sparked debates about protecting artists’ rights to draw from previous works versus protecting against copyright infringement, and whether Warhol’s image “transformed” Goldsmith’s photo enough to not be an infringing work.
While showing some of her paintings next to photographs that inspired them, visual artist MGP Andersen voiced concern that the case will deter artists from referencing other artists’ work. Highlighting the uncertainty of the artistic process, she said the ruling left a vague area where artists wouldn’t necessarily know “that they crossed the line until they got sued.”
Interviewed by Samantha Cox-Parra ’23, Berkeley Law Professor Peter S. Menell took a different view of the decision. He said our copyright system is geared to serve the interests of creators, protects originals above adapters, and that the fair use provision accounts for the creation of derivative works.
“I’m going to speak favorably about the decision, and I’m aware this may not be the most sympathetic place to talk about that,” Menell said, adding that while courts are loath to judge art, the Warhol case shows that they can still judge purpose. He praised Justice Sonia Sotomayor’s “very thoughtful” majority opinion for methodically navigating the copyright issues and trying to provide courts with a useful lens for deciding questions surrounding derivative works.
“Warhol was an incredibly important figure in art, but to say his Prince image was transformative goes beyond credulity,” Menell said. “It’s not a very different image. Justice Sotomayor made a point to say we treat all artists on equal footing, with no Warhol exception. The case will have tremendous importance and feed directly into some of the litigation now bubbling up.”
Checks and balances
The last two panels focused on legal developments related to provenance and due diligence, and international fraud and money laundering.
In the former discussion, Fine Arts Museums of San Francisco Curator Emily Beeny, Asian Art Museum of San Francisco Deputy Director Robert Mintz, and Senior Fellow Curator and Berkeley Law Lecturer Carla Shapreau addressed the history of ownership and possession and how defective titles can spur both civil and criminal liability.
The curators described how authenticating antique art works is fraught with uncertainty, and how older works require more detailed verification. Discussing the rampant appropriation, sale, and expropriation of works from Jewish collectors between 1933 and 1945, they said millions of objects changed hands through looting and forced sales, leading to a series of new provenance practices after World War II.
In the closing panel, Berkeley Law Professor Frank Partnoy moderated a discussion between Jessica Feinstein, co-chief of money laundering and the U.S. Attorney’s Office in the Southern District of New York, and Sullivan & Cromwell partner Sharon Cohen Levin. Using the wild ride of infamous art dealer Inigo Philbrick as a case study, the panelists unpacked his meteoric rise and rough fall from grace.
Sentenced to seven years in prison last year for wire fraud and aggravated identity theft and ordered to forfeit $86.7 million, Philbrick essentially hatched a Ponzi scheme. He sold shares exceeding 100% of single pieces to multiple investors, used art works as loan collateral without the owners’ knowledge, and provided fraudulent documents to inflate their value. After running out of money to pay people back, Philbrick closed his galleries and fled to the Pacific island of Vanuatu, where he was eventually found and arrested.
“Investors love art because it’s a great way for them to make money,” Violante said. “Fraudsters love art because it’s a great way to make money off investors.”
Nathaniel Whitthorne ’23 contributed to this report.