In this Notebook I have written about specific cases: the Hamburg ruling that found in favour of LAION against the photographer Robert Kneschke, the US Supreme Court ruling on the 2016 licensing of a portrait of Prince that Warhol had made from a photograph by Lynn Goldsmith, and the Banksy trademark that the EUIPO annulled for bad faith. Each one forced me to learn a rule I did not know, to read an entire law or resolution, and to distinguish what it said from what it was said to say. What those cases taught me is organised in a section of its own on the website: Guides, which begins with some fifty short, practical guides on art, rights, documentation and research.
The guides are a different genre from the Notebook texts, which is why they have their own section. A Notebook post analyses a dated case and remains as it is: it is a reading of a moment. A guide is consulted, updated and has to say how long it can be relied on. That is why each one shows, beneath its title, the date it was last checked.
What’s inside
There are guides for those who sell or exhibit their work: what is transferred when selling a painting and what the artist retains, what is paid when the work is resold, how to invoice, and what to agree with a gallery or before lending a piece. For those documenting: how to keep a record for each work, what a catalogue raisonné is, and what a certificate does and does not state. For those collecting: what to check before buying, how to care for works at home, and what provenance and attribution contribute. For those researching or studying: how to distinguish a primary source from a back-cover blurb, how to verify a quotation supplied by an artificial intelligence, and how to publish in open access. And on the infrastructures on which any contemporary work depends: copyright and artificial intelligence, protected heritage, open networks and the transparency of public administrations.
You can come in by topic, but above all by the situation you are in: studying, starting out in practice, selling or exhibiting, documenting a work, researching or writing, or building a collection. People who arrive with a problem do not usually know whether it belongs to intellectual property, heritage or tax. They should not need to know in order to find the answer.
How they are made
Each guide rests on regulations, resolutions and official documents, read in the original, not through what has been written about them. What I have not been able to confirm, I state as such: not located, pending, unconfirmed. And each one indicates its status. 'Verified' means that its legal, technical or procedural assertions have been cross-checked against primary sources. 'Reviewed' applies to guides on method or professional practice, where what is offered is a set of criteria rather than facts that go out of date. The distinction matters, because a common practice is not a legal obligation, and the reader has the right to know which of the two is in front of them.
The method does not protect me from being wrong, and writing them has proven this. In the guide on the resale right, I went as far as citing as current a law that had been repealed in 2019; a cross-check caught it before publication, and the guide now cites the article in force. For this reason, the section is corrected in the open: when someone finds an error or a regulation changes, the guide is updated and records the date and what changed.
None of them replaces legal, tax or technical advice for a specific case. Their purpose is more modest: that the reader should know what to ask, what documents to keep and where to check what they are told.
Why an artist writes this
My research concerns the conditions under which a work comes to be recognised as art: which institutions, which infrastructures and which rules decide that it circulates or disappears. Those conditions are not abstract. They are written in contracts, heritage laws, platform terms of use and the rules of open calls, and most of those who create, research or collect have never read them, because no one has ever set them out in a readable form. The guides are a way of setting them out. Reading the rules does not guarantee that they will favour you, but it is the precondition for challenging them.
On the open conversation
This text presents the Guides section, which grew out of the cases analysed in this Notebook regarding rights, heritage, the market and infrastructures. The guides are open to correction: if you work in law, heritage, conservation, archiving, academic publishing or cultural management and you see an error, an omission or a regulation that has changed, this Notebook is still open.
Sources
Guides from juanesteban.art
Cited Notebook posts: 'Reserving your rights in a language the machine understands' (Kneschke v. LAION), 'Warhol v. Goldsmith: the same image, two uses' and 'Banksy before the EUIPO: two readings of anonymity'.