데이비드 스미드와 마크 로스코 판례를 통해 본 미술가의 유산 계획

This paper is an art historial approach to American Art Law, which has emerged since the late 1960s and established as a discipline in a law which deals with legal issues on art. ‘Art Law’ is still an unfamiliar field to Korean society, while it is likely that legal disputes over art would increase as the circumstances of art making and circulating systems have been rapidly changing for the past several years. This study covers a brief history of American Art Law and some legal issues such as copyright, moral right, and capital gains tax, which have been some of the major concerns from its inception in US or in recent Korea. Fully examining legal issues raised by two well-known court cases of American artists of David Smith and Mark Rothko, it also discusses the necessity of estate planning for the artists while they live. The intention of this paper thus is three fold. First, it is to make aware of the importance of Art Law and estate planning, which is uncultivated field in Korea, by the study of American legal cases. Second, legal definition of art and the arguments among specialists on the market values of certain art works as well as on art historical contributions of Smith and Rothko included in the records of the litigations. Two cases reveal the subtle differences or contestation between artistic and legal perspectives on art. Third, considering the impact of cases of Smith and Rothko to the art world and the public, this paper argues that the interactions between art and Art Law are far more intimate than what we realize.