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The Art Law Review

Introduction

India has been synonymous with its arts in various forms. From the time of our earliest civilisation in the Indus valley, the subcontinent has been known to have artisans of extraordinary skill and creativity. Each invader brought with them local traditions and design elements that local artisans assimilated and amalgamated into elements of design that we see as the style synonymous with the Indian subcontinent today.

The Indian art market is a US$2 billion industry, which includes artisans, weavers and tribal and contemporary artists. Sixty per cent of the work artisans create is for the domestic market, while 40 per cent is exported around the world. Most artisans work with designers and buying houses to export their products and have very little say in terms of pricing. In the past few years, we have seen huge interest in artisan art from the domestic market. Brands have started to work on reviving old and dying crafts.

For paintings and fine arts, there are established galleries dealing in masters, modern art, photography, etc., in all major cities, and these hold regular events, including those of an educational nature, for their patrons. In the past five years, we have seen auction houses becoming popular sources for procuring artwork. These auction houses have regular sales and curate their events around festive seasons. Non-fungible tokens (NFTs) continue to be a recurring theme in the art world, and India saw many artists turning to popularising their art through NFT sales.

India has been very mindful of protecting its various traditional art forms and extending support to artisans in the remote corners of the country. Each state has a handicrafts emporium that procures works from artisans local to the state and sells it in their retail outlets. These handicraft emporiums are popular with both locals and tourists. They procure ethically sourced works and have fixed prices to protect artisans’ interests.

The year in review

The year 2022 has seen significant growth in both the reach of, and sales in, the art industry. The year began on a promising note with the Indian Art Fair in May, which announced skyrocketing sales in 2022.2

There has been an increase in the budgetary allocation for the Culture Ministry for 2022–2023 by 11.9 per cent, compared to the previous year, with the Archaeological Survey of India (ASI) being allocated 10.8 billion rupees, which is 35 per cent of the total amount.3 2021 also witnessed innovation in the patronage and promotion of artistic talent, including the announcement of digital artist residency programmes.4

The past two years have also seen the repatriation of Indian art. From his trips abroad, the Prime Minister brought back works that were illegally smuggled out of the country or stolen from monuments or temples of significance. The government has been working with the Ministry of Culture and its diplomatic missions in various countries to identify works of significance and bring them back to be reinstated in their original location or housed in state-owned museums. Governments of several countries, museums, art galleries and art dealers have facilitated the return of these ancient sculptures and artwork to the Indian government. In early 2022, it was reported that Art Recovery International and the India Pride Project had successfully repatriated Indian cultural objects, including a goat-headed Yogini deity (tenth century) said to have been stolen from the northern state of Uttar Pradesh.5

Art disputes

i Title in art

Art and antiquity have wide meanings and interpretation. The connotation extends to various articles, such as paintings, books, statues, sculptures, manuscripts, objects and heritage sites as contained in Section 2(1)(a) of the Antiquities and Art Treasures Act 1972 (the Antiquities Act). The law under the Antiquities Act not only examines the ‘buyer’ of an art or antique object or item, but also recognises those who are in possession, by ownership, possession or inheritance.

The transfer of title in an antiquity or art item by means of an auction or a private sale is accompanied by requirements such as registration under Section 14 of the Antiquities Act. This registration is mandated in a time-bound manner of three months for a person who owns, controls or possesses the antiquity, from the date on which the item is declared an ‘antiquity’ by the central government through a notification. For all other persons, registration is mandated within a period of 15 days of the person owning, controlling or possessing the antiquity.

The transfer of title through purchase or by gift, and licensing, entails necessary scrutiny by the person accepting the art or antiquity in respect of its authenticity, source, origin, registration, licence and all determinants indicating its nature and origin. The lack of necessary licence or registration will result in criminal prosecution under the Antiquities Act.

The ancient Buddha statue displayed at the High Commission of India in London is a notable instance of title claims being put forth and considered favourably in India’s art heritage. In this instance, a claim was put forth to the UK government and the arbitration award was in favour of the Indian government.6

ii Limitation periods

The limitation periods for bringing about civil claims in India is governed by the Limitation Act 1963, which contemplates a period of three years from the date of accrual of cause of action to sue as the statutory period within which a claim or suit shall be preferred. The limitation period for ‘declarations’ (title, ownership, etc.) commences from the date on which the right to sue ‘first’ arises.7 The Antiquities Act stipulates a maximum imprisonment of three years for any contravention of Section 3. Agreements containing governing law clauses with Indian law as the chosen law are bound by the three-year limitation period to initiate proceedings. Arbitration clauses are said to survive the termination of the underlying contract, entitling the parties to invoke and initiate arbitration within a period of three years from the date on which it is commenced, as per Section 21 of the Arbitration and Conciliation Act 1996 (the Arbitration Act).

iii Alternative dispute resolution

Often, disputes tend to involve issues concerning authenticity (genuineness of the purported work of art) and ownership. In this context, and more generally speaking, evaluating the ‘chain of title’ (i.e., assessing provenance) is an important step in any art transaction. However, there are several challenges to establishing provenance, especially in older works of art. These could include destruction of records (if they existed) over time, aspects of party confidentiality in the transactions, inadequate diligence on the part of buyers as to identities of prior owners, absence of documentation of the work by artists themselves, and the practice of relying on certifications of authenticity by family members of an artist, which have subsequently been found to be unreliable.8

In an arbitral award passed in December 2014, the arbitrator considered the claims of auction house Bid & Hammer, which sought payment of its dues towards a Ravi Verma painting, bid for and purchased by Kiran Nadar. Ms Nadar had disputed the authenticity of the 120-year-old painting. The tribunal observed that the respondent’s expert himself was not sure of the authenticity of the painting in question and that a suspicion could never partake in character of a proof in a court of law. Therefore, the tribunal held the painting to be genuine.9

Sections 34 and 48 of the Arbitration Act render an award arising out of an ‘inarbitrable’ dispute, such as those concerning title, fraud and copyright ownership, unenforceable in India. Cases of art-related fraud are dependent upon the specific facts of each case, with judicial precedents indicating arbitrability in cases involving internal affairs of parties.10

Although the Arbitration Act recognises and permits the parties and the tribunal to appoint an expert under Section 26, in instances where the tribunal fails to refer the question of authenticity to the ASI or disregards the ASI’s opinion, there is a possibility that the award passed may succumb to a Section 34 challenge. The Supreme Court of India has ruled that in the case of a conflict, the provisions of the Antiquities Act will override the provisions of a general enactment covering the same aspect.11

Given the high-profile nature of these cases, parties occasionally choose to mediate in the interest of quick and discrete dispute resolution; however, the success rate of mediation is hugely dependent on one party’s willingness to reimburse or restore the other party’s financial position.

Fakes, forgeries and authentication

In 2011, the Government College of Art and Craft, Kolkata, displayed 23 Rabindranath Tagore paintings at an exhibition marking the 150th anniversary of his birth. A public interest litigation was filed claiming that 20 of those paintings were fake (although they reportedly carried the artist’s signature). The High Court directed the ASI to examine the paintings, which then constituted an expert committee that found that 20 of the displayed paintings were replicas carrying Tagore’s signature. The committee also reportedly discovered that the idea behind convening the exhibition was ‘solely to get the counterfeit paintings authenticated as the original works of Tagore, thereby increasing [their] value based on provenance’.12 Regarding older works of art, articles such as paintings and sculptures that have been in existence for at least a hundred years are considered to be ‘antiquities’ under the Antiquities Act. Antiquities that have been notified as such by the central government, including because of their possible role in safeguarding the cultural heritage of India, are required to be registered appropriately.

Certain instances of establishing fake provenance for stolen or looted Indian art have been relatively well documented. The issues concerning looting are exacerbated in cases of older places of worship, such as temples, where works of art are not always surveyed and accounted for. An infamous example is that of former New York-based art dealer Subash Kapoor who reportedly commissioned the theft of religious idols from Chennai dating back to the thirteenth century. An idol, the ‘Dancing Shiva’, was bought by the National Gallery of Australia from Kapoor for A$5.6 million (and later returned to the Indian government as a gesture of goodwill). The theft was discovered and reported to the Tamil Nadu Police by locals. Kapoor was ultimately extradited and is being tried in India.13 Kapoor’s business partner Aaron Freedman reportedly admitted that the ‘Dancing Shiva’ had been stolen from a temple and that forged documents were used to establish fake provenance to facilitate the sale.14

i Fake and forged artwork laws

Indian Contract Act 1872

The Indian Contract Act stipulates that for a contract of sale to be valid, consent to enter the contract must be obtained freely and must not be induced by coercion, undue influence, fraud, misrepresentation or mistake.15 Therefore, it will be the responsibility of art houses to ensure that the contract of sale of the artwork does not amount to fraud or misrepresentation. Where a seller induces a buyer to believe that a fake artwork is real, this amounts to misrepresentation and the buyer may void the contract. In India, artists, including Anjolie Ela Menon,16 have themselves filed cases17 against people selling their forged paintings.18

The liability of dealers and auction houses under the Contract Act

In their contracts for sale, most art houses, with a view to absolving themselves of any liability, for fakes, inter alia, state that they are only agents of the sellers of the artwork and that the actual transaction is a bipartite agreement between the buyer and the seller. The laws governing principal–agent relationships are given under the Contract Act. Ordinarily, an agent is not liable for acts carried out on behalf of the principal or where the act is ratified by the principal. However, this liability has evolved over time and will depend upon the facts of a case; for example, when the agent defrauds the parties.19

Indian Penal Code 1808

The laws in India criminally penalise the act of faking or forging documents under the provisions of the Indian Penal Code 1808 (IPC). The form or the substance of the document is immaterial for the laws to be applicable.20

Under the IPC:

Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.21

Therefore, a dealer or an art house will commit forgery if it tries to sell a fake or forged artwork to enter a contract or to defraud a person. The person committing forgery will be penalised with imprisonment for a term of up to two years or a fine, or both. Further, any person using a forged document as genuine would be punishable under the IPC in the same manner as if they had forged the document.

Forgery committed for the purpose of cheating somebody is punished with imprisonment for seven years and a fine.22 Forgery for the purpose of harming a person’s reputation is punishable with imprisonment of a maximum of three years and a fine. One such incident in India was the Sheetal Mafatlal case, where Mafatlal faced criminal charges for filing fake cases regarding fake paintings, and the court ordered her to pay 700,000 rupees as a fine for filing false complaints.23

The IPC also penalises ‘cheating’ as a criminal offence. A dealer, art house or seller that, with the intention of cheating the buyer, sells forged artwork as genuine will be liable and can be imprisoned for one year, or fined, or both, if found guilty.24

The IPC also penalises cheating when it leads to delivery of the property by the deceived person to any third party.25 Therefore, if an art house or a private person selling artwork was cheated when they acquired the work and goes on to sell the work as a genuine work of art, the party that had originally cheated the seller will be punishable with seven years of imprisonment and a fine. The art dealer, auction house or art gallery will also be criminally liable for conspiracy to sell fake artwork and a criminal breach of trust under the IPC.

ii Consumer protection laws

The rights of consumers in India are protected by the Consumer Protection Act 2019 (COPRA). Art dealers, auction houses, art galleries and online art sellers will be liable for selling defective goods under the COPRA. They may also be sued for deficiency in their services of providing proper services. A ‘defect’ under the COPRA encompasses:

any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods or product and the expression ‘defective’ shall be construed accordingly.26

Further, ‘deficiency’ includes any shortcoming, negligence, omission or the deliberate holding back of important information, by a service provider, which may result in loss to the person seeking their service. Therefore, a buyer who seeks the services of an art dealer, art gallery, auction house or online art platform for buying art will be entitled to a remedy under the COPRA.

iii Warranties laws

The laws related to warranty are covered under the Sale of Goods Act 1930 (SOGA). According to the SOGA, ‘a warranty is a stipulation collateral to the main purpose of the contract, the breach of which gives rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated’.27 There will be no implied warranties applicable to the quality or fitness for purpose of goods, unless the buyer makes known to the seller the particular purpose for which goods are required or the other conditions stipulated in Section 16 of the SOGA are met.28

In the case of breach of warranty, the buyer may, in addition to rejection of the goods ‘set up against the seller the breach of warranty in diminution or extinction of the price or sue the seller for damages’.29

iv Role of experts, art foundations and catalogues raisonnés

Experts will usually look for distinguishing features of the art by the artist, any famous strokes, colour palette, patterns, etc., to prima facie evaluate paintings. Art foundations and experts will usually advise art buyers to keep track of an artist’s work using a catalogue raisonné.30 These catalogues have been compiled by eminent art historians who have studied works of art and they are available in many reputable galleries. Art foundations, such as the India Foundation for the Arts, have documented the works of various artists to encourage talent and highlight India’s rich culture.

Art transactions

i Private sales and auctions

General considerations when buying art through auction are the following.

  1. Terms and conditions: the terms and conditions applicable to all online and offline auctions must be closely scrutinised before taking part in the bidding process.
  2. The role of the auction house: the art house will sell the artwork with an authenticity certificate. The bidder must also conduct thorough due diligence about the artist and the artwork they intend to buy, ideally with the help of qualified professionals including lawyers and independent art experts. It may also be prudent to transact with reputed auction houses in this regard.
  3. Registration: a bidder must register with the auction house before they can bid. Some auction houses ask for a minimum deposit registration along with details of how the payment will be made post auction.
  4. Payment: another important aspect that a bidder must understand is the terms of payment for a successful bid.
  5. Delivery: the auction house will be liable to take back the artwork if there is any damage during the transportation of the painting.

The Information Technology Act 2000 and the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules 2011 may also apply. Auction houses are responsible for storing and recording all the information related to their sales and bidders in compliance with the above rules.

ii Art loans

Loaning of antiques and art treasures in India is governed by the Guidelines for Lending Art/Antiquity to Institutions/Museums Abroad and Within the Country, provided by the Ministry of Culture. The Guidelines contain procedures for temporarily loaning art to foreign and national institutions and museums. Art may be loaned to international institutions or museums for three years, which is extendable by two years, on approval of the Inter-Ministerial Committee for Exhibition, headed by the Culture Secretary. Further, art may be sent outside India, for exhibitions, for a maximum of six months, which is extendable by an additional six months. Art may be loaned nationally, to government museums or institutions only. This loan may be long term (for 10 years, extendable by five years) or short term (for one year, further extendable by one year). These loans are extendable only on the approval of the Director General of the ASI or by the institution loaning the artwork. There is also a cooling-off period of three years between works being loaned to museums and institutions abroad.

Private collectors loan works to art museums in India, by agreement.

iii Cross-border transactions

India is party to almost all major international treaties, including:

  1. the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property;
  2. the Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention;
  3. the Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict;
  4. the Convention concerning the Protection of the World Cultural and Natural Heritage; and
  5. the Convention for the Safeguarding of the Intangible Cultural Heritage.

Export–import licensing

The Antiquities Act only permits the central government or bodies authorised by it to export antiquities.

Under the Foreign Trade (Development and Regulation) Act 1992, a person can only export or import property if they are granted an export–import code number by the Director General or by an officer authorised by the Director General. Contravention of these export–import licensing provisions will attract penalties under both the Antiquities Act and the Customs Act 1962.31

Choice of law

The number of cases related to the choice of law in India is particularly low. However, according to the rules of the Court of Arbitration for Art, the laws of the jurisdiction of the principal location of the seller will be applicable as substantial law or, if the dispute does not involve sale, the jurisdiction pertaining to the place where the dispute arises will apply. If these laws are applicable for cross-border disputes, the decree or award passed thereof will be executable in India.32

Special regulations for cultural property

The laws governing transactions and movement of cultural property in India are the Antiquities Act and the Antiquities and Art Treasures Rules 1973, falling within the purview of the ASI and the Ministry of Culture.

Tax considerations for art acquired internationally

Taxation in India is governed under the goods and services tax (GST), which became applicable in 2018. According to the GST Act, goods classified as ‘paintings, decoratives and sculptures’, which include ‘hand paintings drawings and pastels (including Mysore painting, Rajasthan painting, Tanjore painting, Palm leaf painting, basoli etc)’ and ‘paintings, drawings and pastels, executed entirely by hand, other than drawings of heading 4906 and other than hand-painted or hand decorated manufactured articles; collages and similar decorative plaques’ are taxed at the rate of 12 per cent.

According to the Customs Tariff Act 1975, the customs duty applicable on import of ‘paintings, decoratives and sculptures’, especially ‘paintings, drawings and pastels, executed entirely by hand, other than drawings of heading 4906 and other hand-painted or hand decorated manufactured articles; collages and similar decorative plaques’, is 10 per cent per unit (in kilograms).

Further, the import of ‘works of art created abroad – by Indian artists and sculptors, whether imported on the return of such artists or sculptors to India or imported by such artists or sculptors after their return to India’ is exempt from customs duty under the Customs Tariff Act.

iv Art finance

There is no art financing in India. Most high net worth individuals and private collectors buy art for the love of art and use private wealth. Banks and financial institutions do not provide financing for art in India. There have been a few art funds set up in India, including Yatra Art Fund, which was set up by the Kotak Mahindra Bank in 2015.33 The Securities and Exchange Board of India, however, ruled that these had to be wound up and asked the companies to return investor money. Philip Hoffman in England also set up an Indian fine art fund.34 A notable trend on the financial front is also the inflow of new buyers emerging from crypto wealth. However, the legal implications of transacting in certain classes of digital assets are not fully certain, given that the regulatory framework governing these transactions is arguably in a state of flux.

Artist rights

i Moral rights

The Indian Copyright Act 1957 recognises the existence of moral rights in original copyrightable works, under Section 57. Relying on the moral rights contemplated in the Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention), it has been held that the author is entitled to seek appropriate legal remedies if the moral right of attribution and integrity in their work is violated; and further that the author holds ‘moral rights’ even after they have parted with their economic rights to the work.35 The unique concerns that may arise where traditional pieces of art are converted into NFTs and monetised by parties unrelated to the original artwork may test the normative significance of moral rights, especially in relation to older works of art that may fall outside the scope of copyright.

Section 57 grants the following special rights to authors compared to owners of a general copyright: (1) to claim authorship of the work; and (2) to restrain or claim damages in respect of any distortion, mutilation or other modification in the work; or any other action in relation to the work that would be prejudicial to their honour or reputation.

The idea of Section 57 is that harm to an author’s integrity is different from infringement of the work itself.

Further, the author of a work has the right to assert the authorship of the work even after assignment of the copyright to the work; they have a right to limit the distortion or mutilation of their work or to seek damages for the distortion. For a contract of assignment to be valid, it must be made in compliance with the moral rights of the author of work granted to it under Section 57.

ii Resale rights

The concept of resale rights, provided under Article 14 of the Berne Convention, which grants ‘droit de suite’ in works of art and manuscripts by granting the author the inalienable right to an interest in any sale of the work after the first transfer by the author of the work, has been incorporated into the Copyright Act.

Section 53A of the Copyright Act grants to the first owner of the right or their legal heir at the time of resale of a copyright work, the right to a share of the proceeds of resale. This share will be fixed by the Copyright Board and shall not exceed 10 per cent.

iii Economic rights

Section 14 of the Copyright Act grants certain rights to the owner of the copyright for complete enjoyment of its right. In an artistic work, the artist has copyright over distinct activities that are set out in Section 14(c)(i) to (vi) of the Copyright Act.

The copyright owner has a private right and has the freedom to exclude others from replicating their work. If someone performs an act referred to in Section 14 of the Copyright Act, the copyright owner can institute a suit for violation of their copyright against that person. However, if an artist produces any art as part of a contract for their services, they will assign the rights to their employer and will not be able to hold the legal and equitable title to the work of art.36

The government of India has recently notified the Copyright (Amendment) Rules, 2021.37 In the context of authors’ rights, the notified Rules are likely to enhance accountability and transparency in issues such as distribution of royalty amounts and traceable payment methods during collection and distribution of royalties. Copyright societies holding precious artwork will now be obligated to draw up and make public an annual transparency report for each financial year. These amendments are said to harmonise the Copyright Rules with the Finance Act 2017.

Trusts, foundations and estates

i Trusts and foundations

Section 3 of the Indian Trusts Act 1882 defines trusts as ‘an obligation annexed to the ownership of property and arising out of a confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another, or of another and the owner’. As per Section 4, a trust may be formed for any lawful purpose. Foundations are usually companies with charitable purposes registered under Section 8 of the Companies Act 2013 for the promotion of social causes, including the promotion of art. Art collections may be held and administered through trusts or foundations. When a work of art is sold by an individual, trust or foundation, the seller (in the case of a trust, the trustee is deemed to be the representative to be assessed under Sections 160 to 164 of the Income Tax Act 1961 (ITA)) will incur a tax liability on the profits generated as capital gains because art is included under the definition of capital assets under Section 2(14) of the ITA. This tax is calculated based on the period of holding. The amount is computed as the difference between the cost of acquisition and the sale proceeds. The cost of acquisition must be brought up to present value by multiplying the cost of acquisition and any capital expenditure on restoration or repairing the artwork based on the cost inflation index.

ii Estates

Succession is governed by different personal laws that are applicable to different religious communities. In the case of Muslim intestate succession, the Muslim Personal Law (Shariat) Application Act 1937 is applicable. In the case of testamentary succession, the inheritance is governed under the relevant Muslim sharia law as applicable to Shias and Sunnis. For Hindus, Buddhists, Jainas and Sikhs, the Hindu Succession Act 1956 is applicable. For anyone other than a Hindu, Muhammadan, Buddhist, Sikh or Jain, the Indian Succession Act 1925 is applicable. Based on the conditions prescribed and the respective personal laws, when a lawfully executable will is in existence, the legatees will inherit title in property as per the conditions set forth in the will.

Once an artwork is inherited, the person inheriting it is the owner and must declare it in their returns. In the case of intestate succession, it is not clear who will inherit the artwork and how it will be divided equally among all heirs.

As legal title of the assets passes to the trustee when the trusts are settled, there is subsequently no change of ownership on death, thus avoiding the need for probate of a will in respect of trust assets.

Outlook and conclusions

India is in the process of revamping its laws with respect to data protection and e-commerce, to facilitate transparency, efficiency and protection of consumers. With the increase in the use of online platforms for sales and auctions, these measures will hopefully reduce counterfeit products and at the same time discourage the sale and auction of stolen or illegal works. While 2021 saw the beginning of the rise of NFTs in art,38 the trend appears to have continued in 2022, with digital art and NFTs being a prominent theme at the India Art Fair.39

Footnotes

1 Kamala Naganand, Spandana Ashwath and Anusha Madhusudhan are advocates at Aarna Law.

2 Ornella D’souza, ‘Thumping Sales At 2022 Edition At India Art Fair’, Outlook, 3 November 2022, www.outlookindia.com/art-entertainment/thumping-sales-at-2022-edition-at-india-art-fair-news-194259.

3 ‘Culture Ministry gets over Rs 3,000 crore in Budget; 35% of amount earmarked for ASI’, Press Trust of India, 2 February 2022, www.indiatoday.in/business/budget-2022/story/culture-ministry-gets-over-rs-3-000-crore-in-budget-35-of-amount-earmarked-for-asi-1907510-2022-02-01.

4 e.g., https://indiaartfair.in/apply-for-india-art-fairs-digital-artists-in-residence-programme.

5 ’10th century idol discovered in England, returned to India’, The Hindu, 14 January 2022, www.thehindu.com/news/national/10th-century-idol-discovered-in-england-returned-to-india/article38272307.ece.

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