CONCEPTUAL COPYRIGHT.

AuthorFrye, Brian L.
  1. INTRODUCTION

    What is conceptual art, and why should legal scholars care about it? According to self-proclaimed conceptual artist Sol LeWitt, conceptual art is art that consists of ideas, not their realization: "In conceptual art the idea or concept is the most important aspect of the work. When an artist uses a conceptual form of art, it means that all of the planning and decisions are made beforehand and the execution is a perfunctory affair." (2)

    But who was he to say? After all, LeWitt neither invented nor defined conceptual art. He was just one conceptual artist among many. While his definition of conceptual art fit his work, other conceptual artists defined conceptual art differently, to fit their own work, and some didn't define it at all, but let the work speak for itself. In any case, if you ask two conceptual artists to define conceptual art, you'll get three answers: LeWitt says execution doesn't matter, Warhol says the execution is the concept, and Duchamp says the object expresses the concept. And you're still only getting started.

    Perhaps some examples would help. Marcel Duchamp created conceptual art in the form of the "readymade," an everyday object presented as a work of art. His notorious work Fountain consists of a urinal, signed "R. MUTT 1917" and submitted to an art exhibition. (3) Andy Warhol created conceptual art in the form of works that resembled commercial products. His work Brillo Box (Soap Pads) consists of a plywood box, painted to look like a box of Brillo soap pads. (4) Sol LcWitt created conceptual art in the form of instructions for creating artworks. (5) His work Wall Drawing #1180 consists of instructions for creating a drawing on a wall and a certificate conveying the right to execute an authentic version of the work. (6) And Yoko Ono created conceptual art in the form of instructions for conceptual artworks. Her work Painting to Exist Only When It's Copied or Photographed consists of instructions for creating a work of conceptual art. (7)

    Yoko Ono, Painting to Exist Only When It's Copied or Photographed (1964)

    What do all of these works have in common? They question the premises of art, what constitutes a work of art, and what it means to do art. Originally, art consisted of unique objects. Eventually, technology enabled the reproduction of art, but art still consisted of objects. (8) Conceptual art asks why art needs objects at all. And in so doing, it asks what we mean by art: the idea, the expression, or the object.

    1 think conceptual art has a lot to offer legal scholarship. After all, legal scholars ask similar questions about the theory, doctrine, and practice of the law. When the law describes and manages human interactions, it often takes itself for granted. Even legal realism and critical legal studies assume their own premises. Conceptual art makes the world weird and forces us to see it anew. It frustrates our expectations in order to highlight our assumptions. And when we look more closely, sometimes we notice problems that otherwise escaped us.

    Accordingly, I'll use conceptual art in order to reflect on both securities law and copyright doctrine. Or rather, I'll use a particular work of conceptual art I created as a tool to investigate how administrative agencies respond when they receive filings that ask legal questions in a way the agency doesn't know how to answer.

  2. REGULATING CONCEPTUAL ART

    On December 9,2019,1 posted to SSRN a draft law review article titled SEC No-Action Letter Request. (9) It is an unusual law review article because it proposes to offer for sale to the public a work of conceptual art titled "SEC No-Action Letter Request," in an edition of fifty, for $10,000 each. (10) The work of conceptual art offered for sale comprises a no-action letter request filed with the Securities and Exchange Commission ("SEC"), proposing to sell a work of conceptual art titled "SEC No-Action Letter Request" to the public, in an edition of fifty, for $10,000 each, and asking the SEC whether the proposal constitutes the sale of an unregistered security."

    Thank you for vour submission.

    Your Request for a Corporation Finance No-Action, Exemptive or Interpretive Letter was received on January 1, 2020.

    You can expect to receive a call from the attorney assigned to your matter promptly. Please save this page for your records.

    Information about request:

    Your name:

    Brian L. Frye

    Your phone number:

    917-273-2382

    Please also indicate whether this is an initial or a revised submission:

    Initial

    Upload File 1:

    Letter.pdf

    Upload File 2:

    SEC No-Action Letter Request.pdf

    SEC, "SEC No-Action Letter Request" Receipt (2020)

    Or rather, my article SEC No-Action Letter Request is a work of conceptual art in the form of a law review article proposing to sell a work of conceptual art that consists of an SEC no-action letter request proposing to sell a work of conceptual art that comprises a SEC no-action letter request.

    Under the Securities Act of 1933, it is illegal to sell an unregistered security, unless it is exempt from registration. (12) In SEC v. W.J. Howey Co., (13) the Supreme Court held that the definition of "security" is intentionally broad: "Form [is] disregarded for substance and emphasis [is] placed upon economic reality." (14) Congress's goal was to be inclusive, in order to ensure that clever schemes couldn't evade regulation. If it looks like an investment and is sold like an investment, then it's an investment, and Congress decided to regulate it as a security.

    Accordingly, an investment is a security if it includes four elements:

    (1.) The investment of money;

    (2.) In a common enterprise;

    (3.) With the expectation of profits;

    (4.) From the efforts of others. (15)

    Essentially, an investment is a security if the investors rely on the promoter to generate a profit.

    A promoter who wishes to sell an unregistered investment may file a noaction letter request, describing the proposed transaction. If the SEC grants the request, it issues a letter stating that the SEC staff would not recommend enforcement action based on the proposed transaction.

    On January 1, 2020, I filed a no-action letter request for "SEC No-Action Letter Request" with the SEC. The text of the no-action letter request I filed is included in my article SEC No-Action Letter Request. (16) Among other things, the no-action letter request observes that the transaction I propose satisfies every requirement for the sale of a security, and advises the SEC to deny my request, because it proposes to sell an unregistered security. Unfortunately, the SEC has not responded to my no-action letter request. (17)

    Because I believe that the transaction proposed in my no-action letter request would constitute the sale of an unregistered security, 1 did not sell any editions of the work "SEC No-Action Letter Request." However, I did create about 200 certificates of ownership of the work and mailed them for free to anyone who requested one. (18) Nevertheless, a secondary market for the work already exists, and I expect it to grow. (19)

    In any case, my article generated considerable public interest, although many people were skeptical of my claim that the transaction I proposed would constitute the sale of an unregistered security. Specifically, Joan Kec, John Berton, and Amy Goldrich argued that art collectors are not really investors but consumers buying products for personal use. (20) And Matt Levine argued that the transaction I proposed was not actually a security, because it didn't satisfy the four factors of the Howey test. (21)

    I think they are all mistaken. As Andy Warhol memorably observed, art is business, and business is art, and anyone who pretends otherwise doesn't understand either:

    Business art is the step that comes after Art. I started as a commercial artist, and I want to finish as a business artist.... Being good in business is the most fascinating kind of art. During the hippie era people put down the idea of business--they'd say, "Money is bad," and "Working is bad," but making money is art and working is art and good business is the best art. (22)

    Of course, I agree that the SEC is unlikely to regulate the sale of conceptual...

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