Law Commons^™

How To Sell Nfts Without Really Trying, Brian L. Frye

Law Faculty Scholarly Articles

Something is happening and we don’t know what it is. Suddenly last summer, the internet went nuts for “non-fungible tokens” or “NFTs.” In a matter of months, NFT sales swelled from a sleepy slough of the blockchain to a thundering cataract that shows no sign of slaking. Special NFTs sell for millions of dollars, and some are even securitized. It’s a big business that’s only getting bigger.

But no one seems to know why. Objectively, NFTs are useless, meaningless, and worthless. So why are people willing to pay millions of dollars for them, even begging for the opportunity? Maybe it …

Artworks As Business Entities: Sculpting Property Rights By Private Agreement, Christopher G. Bradley

Law Faculty Scholarly Articles

Modern business entities, such as LLCs, are increasingly created and deployed to accomplish customized transactions and evade legal restrictions. Rather than acting as traditional business enterprises, entities serve as tools to facilitate complex commercial transactions and surmount limitations presented by existing bodies of law. One limitation constrains the ways that private parties can agree to divide property rights—a doctrinal limitation sometimes referred to as numerus clausus. This Article shows that such limitations on the customizing of property rights by private agreement now can be surmounted by virtue of modern business entity law. After describing the key features of modern …

Against Deaccessioning Rules, Brian L. Frye

Law Faculty Scholarly Articles

Art museums are the aristocrats of the charitable sector, with all

the virtues and vices of the aristocracy. In their prime, they are glorious

exemplars of the finest in cultural expression. But in their dotage,

they are weak and vulnerable, constitutionally incapable of avoiding

financial ruin. Some art museums have even gone bankrupt and dissolved,

despite owning large collections of extremely valuable objects.

What explains this paradox? Deaccessioning rules: professional

rules governing art museums and art museum directors that prohibit

the sale of works of art for the purpose of generating capital. When

art museums find themselves in financial distress, …

New Art For The People: Art Funds & Financial Technology, Brian L. Frye

Law Faculty Scholarly Articles

Wealthy people have invested in art since time immemorial. But the modem art market emerged only in the late nineteenth century, as private wealth gradually spread to the bourgeoisie. As the art market grew and the most desirable artworks became extremely valuable, individuals and institutions began to form "art funds" to invest in this promising new asset class. In 1904, a group of Parisian art collectors formed La Peau d'Ours, the first private art investment club. Between 1974 and 1980, the British Rail Pension Fund invested £40 million in art. And in the 2000s, many private investment companies created …

Equitable Resale Royalties, Brian L. Frye

Law Faculty Scholarly Articles

A “resale royalty right” or droit de suite(resale right) is a legal right that gives certain artists the right to claim a percentage of the resale price of the artworks they created. The Berne Convention for the Protection of Literary and Artistic Works and the Tunis Model Law on Copyright for Developing Countries provide for an optional resale royalty right. Many countries have created a resale royalty right, although the particulars of the right differ from country to country. But the United States has repeatedly declined to create a federal resale royalty right, and a federal court recently held …

Reflections On Motion Picture Evidence, Brian L. Frye

Law Faculty Scholarly Articles

Courts have long admitted motion pictures as evidence. But until recently, making motion pictures was expensive and cumbersome. Today, making motion pictures is cheap and easy. And as a result, people make so many of them. As Cocteau predicted, the democratization of motion pictures has enabled people to create new forms of motion picture art. But it has also enabled people to create new forms of motion picture evidence. This article offers a brief history of motion picture evidence in the United States, and reflects on the use of motion picture evidence by the Supreme Court.

Art & The “Public Trust” In Municipal Bankruptcy, Brian L. Frye

Law Faculty Scholarly Articles

In 2013, the City of Detroit filed the largest municipal bankruptcy action in United States history, affecting about $20 billion in municipal debt. Unusually, Detroit owned its municipal art museum, the Detroit Institute of Arts (“DIA”) and all of the works of art in the DIA collection, which were potentially worth billions of dollars. Detroit’s creditors wanted Detroit to sell the DIA art in order to satisfy its debts. Key to the confirmation of Detroit’s plan of adjustment was the DIA settlement, under which Detroit agreed to sell the DIA art to the DIA corporation in exchange for $816 million …

Andy Warhol’S Pantry, Brian L. Frye

Law Faculty Scholarly Articles

This Article examines Andy Warhol’s use of food and food products as a metaphor for commerce and consumption. It observes that Warhol’s use of images and marks was often inconsistent with copyright and trademark doctrine, and suggests that the fair use doctrine should in-corporate a “Warhol test.”

The Dialectic Of Obscenity, Brian L. Frye

Law Faculty Scholarly Articles

Until the 1960s, pornography was obscene, and obscenity prosecutions were relatively common. And until the 1970s, obscenity prosecutions targeted art, as well as pornography. But today, obscenity prosecutions are rare and limited to the most extreme forms of pornography.

So why did obscenity largely disappear? The conventional history of obscenity is doctrinal, holding that the Supreme Court’s redefinition of obscenity in order to protect art inevitably required the protection of pornography as well. In other words, art and literature were the vanguard of pornography.

But the conventional history of obscenity is incomplete. While it accounts for the development of obscenity …

Gallery Of The Doomed: An Exploration Of Creative Endeavors By The Condemned, Roberta M. Harding

Law Faculty Scholarly Articles

This Article examines creative expressions produced by the death row faction of the incarcerated population. Looking at these works provide insights about what it means to live as a condemned person in our society, and about the people who occupy the death rows across our nation. After reviewing and analyzing a substantial amount of the enormous body of work of this genre, it became apparent that the condemned's creative endeavors reflect how they address and handle serious issues such as their executions and the ways spirituality influences their life. When the individual issues are examined, two general themes are evident: …