Thinking About Art and Potential Liability

I have a friend whose occupation requires him to spend a lot of time in airports. Recently, he created a photo album on his social media account, titled “airport art,” and began periodically uploading photos of the artwork that he encounters in and around airports. The album consists almost entirely of paintings and sculptures; but, being the whimsical fellow that he is, he also uploaded a photo of a wall-mounted first-aid kit as if it, too, was a work of art. My initial reaction to this photo was the little chuckle that my friend no doubt intended for me to have, but then I wondered: what if someone actually installed a faux first-aid kit somewhere in the name of art? Then, as attorneys are wont to do, I began to ponder the liabilities which may apply to such an act.

I was immediately reminded of a story I saw recently, also on social media, about people who are going around airports, coincidentally, and applying stickers which look like electrical outlets in places where a real electrical outlet may reasonably be expected to be—especially in concourse seating areas, where seats near electrical outlets are highly coveted. The Internet abounds with video of unsuspecting people innocently attempting to plug their laptops or phone chargers into what they ultimately discover is only a sticker. Now, perhaps this is more of a prank than a work of art, but is there necessarily a distinction between the two? I think not.

Obviously, the potential liability for tricking someone into thinking that there is an electrical outlet where there isn’t one pales in comparison to the potential liability for tricking someone into thinking that a first-aid kit is real when it is not. The difference lies in the resulting injury. Sure, a person who is fooled by a sticker masquerading as an outlet may suffer a little embarrassment, but a person in need of first-aid is likely to suffer substantially more due to the delay caused by someone mistakenly retrieving an art installation instead of an actual first-aid kit. But what would the cause of action be? Negligence? Fraud? Also, would artistic intent be an effective affirmative defense?

And what if the tables are turned, and instead of the artwork being mistaken as something real at the observer’s expense, it is mistaken for something real at the artist’s or artwork’s expense? Take, for example, the story of a museum janitor who accidentally destroyed Martin Kippenberger’s It Starts Dripping From The Ceiling, an artwork valued at over $1 million, because she mistook it for an ordinary mess that needed to be cleaned up. Should the janitor be liable for the damage? What would the cause of action be in this case?

Sometimes, the installation of an artistic imitation of actual devices can be anticipated, and can therefore be regulated. For example, the Texas Transportation Code prohibits a person from placing within view of a highway an “unauthorized sign, signal, marking or device that . . . imitates or resembles an official traffic-control device or railroad sign or signal.” However, sometimes the law falls a little short of anticipating the artist’s imagination. For example, I personally know someone who once installed a bench on their property, right next to the street, and added a few other features so that it appeared to be a bus stop. Of course, this was not an official bus stop, and the property was not even along any existing bus route. Nevertheless, I happened to be driving past this cheeky art installation one morning, and I saw an elderly woman sitting upon the bench, apparently waiting on a bus that would not be coming. Perhaps she was merely enjoying interacting with the art, but I advised her of the nearest actual bus stop in any case, and I dared not ask her how long she had been there.

After all my pondering and a little research to boot, I realized that very little law exists to prevent people from being harmed by art, or to make them whole again after they have been harmed. And while I have heard of artists suffering for their art, thanks to my friend and his airport art album, I can now imagine others suffering for their art as well.

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