Connoisseurship and Its Potential in Matters of Copyright

Abstract

Among the most persistent and difficult problems in the field of copyright law is determining whether copying has actually occurred. This article responds to this challenge by proposing that judges and juries consider practices used in disciplines revolving around the close and methodical viewing of visual objects. Of special interest is connoisseurship, long employed by art historians, curators, and collectors to adjudicate the origins, provenance, and authenticity of art. Mindful of law’s emphasis on the spoken and written word, this article focuses especially on the visual analyses of Otto Pächt and Hans Sedlmayr, two art historians whose foundational status in the discipline of art history stems from the extent to which they attempted to systematically translate the experience of looking into words. The article concludes with a brief test case drawn from the high-profile 2005 dispute between architects Thomas Shine and David Childs over the latter’s alleged infringement of the former’s design.