February, 2002
Introduction
California and Massachusetts have enacted laws that declare a "public interest in preserving the integrity of cultural and artistic creations." In each case efforts to preserve the integrity of works of art go beyond the moral rights retained by creators, to create the possibility for a third party, other than the creator or the current owner of the work, to initiate actions that would prevent alterations of the work. The third party must be a public or non-profit entity in the artworld, and can seek an injunction against the "intentional commission of any physical defacement, mutilation, alteration, or destruction of a work of fine art." Moral rights are typically a part of copyright law, and apply to all works of visual art covered by copyright. But the California and Massachusetts preservation laws apply only to fine art of "recognized quality." This paper concerns whether contingent valuation methods could play a useful role in determining whether a particular work of art is of "recognized quality."
We begin with a discussion of the existing art preservation laws and proposals that have been made for a national law. Central to the question is exactly what is meant by the "public interest" in preserving privately-owned works of art even when the owners do not wish to preserve the work, and how we then define "recognized quality." Different conceptions of the public interest lead to different methods for evaluating the extent of the public interest. The California and Massachusetts laws rely on "the opinions of artists, art dealers, collectors of fine art, curators of art museums, and other persons involved with the creation or marketing of fine art" to determine whether a work is of recognized quality and so is subject to the preservation laws. But this essay will question whether expert opinion is appropriate under the circumstances.