Research Handbook on Art and Law
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Research Handbook on Art and Law

Edited by Jani McCutcheon and Fiona McGaughey

Featuring international contributions from leading and emerging scholars, this innovative Research Handbook presents a panoramic view of how law sees visual art, and how visual art sees law. It resists the conventional approach to art and law as inherently dissonant – one a discipline preoccupied with rationality, certainty and objectivity; the other a creative enterprise ensconced in the imaginary and inviting multiple, unique and subjective interpretations. Blending these two distinct disciplines, this unique Research Handbook bridges the gap between art and law.
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Chapter 11: The effectiveness of Australia’s legal system in addressing problematic artwork

Dan Mossenson

Abstract

Australia’s legal system does not deal effectively with problematic artwork. Problematic artwork refers to paintings, sculptures, drawings, engravings, photographs and the like which have in some way been produced or marketed unlawfully or inappropriately. Fraud, breach of contract, unconscionable conduct, deception and criminality may be involved. Problems associated with problematic artwork are magnified in the case of Aboriginal and Torres Strait Islander artwork. Despite its prevalence, relatively few cases of problematic artwork reach the courts. The law which deals with it is uncertain and complex. There are inadequacies in the relief and remedies available. Consequently, there is little disincentive for problematic art offenders to cease operating. The chapter considers these matters and addresses court cases that have been adjudicated in recent decades. In addressing the inadequacies of the Australian legal system in dealing with this problem, the chapter considers both the public and private interest issues involved as well as the general community’s attitude to problematic artwork.

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