Muddling Artist’s Moral Rights

A now-faded and defaced bicentennial mural painted on the Prado Dam spillway in Corona, California
A now-faded and defaced bicentennial mural painted on the Prado Dam spillway in Corona, California.

The National Historic Preservation Act has come to the rescue of this mural from 1976, which is badly in need of conservation. But in the process a federal court has muddled the Moral Rights of Artists moving forward. The mural on the Prado Dam near Corona, California was painted by High School students from Corona High School. The Army Corps of Engineers, which manages the dam and spillway planned to remove the mural over concerns of lead paint, tagged graffiti artists who replaced the 1776 with “TOPS”. Carolina Miranda reported for the L.A. Times in June that the image “has become one of the region’s more iconic, unofficial freeway landmarks”. Two groups sought protection in Federal Court for the mural, both the Mural Conservancy of Los Angeles, and one of the original artists and designers of the mural, Ronald Kammeyer.

Nicholas O’Donnell summarizes a recent lawsuit in California which sought to protect this mural. He comes to the conclusion that the Court managed to misunderstand some of the key provisions of the act:

First, the Court accepted (and perhaps the government failed even to understand to challenge) that the plaintiffs have any VARA rights at all.  They almost certainly do not.  VARA rights exist from the date of creation and for the life of the author.  They cannot be assigned or inherited.  That standard applies, as with most laws, to anything created after the effective date of the statute.  But what about earlier works?  The Supreme Court has long held that statutes do not have retroactive effect unless they say so explicitly.  VARA does, but in an usual way:

‘With respect to works of visual art created before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, but title to which has not, as of such effective date, been transferred from the author, the rights conferred by subsection (a) shall be coextensive with, and shall expire at the same time as, the rights conferred by section 106.’

The mural predates the effective date of VARA, obviously.  So the plaintiffs—if they are the “Author”—could only assert VARA rights if they had not transferred title to the physical work (not the copyright, which one or more of them undoubtedly still holds).  But none of the plaintiffs claimed to own the mural, either when it was painted or now.  Someone, possibly Kammeyer alone, possibly Kammeyer jointly with the volunteers who helped him, owns the copyright.  That will endure either alone or as joint work, under the term of copyright.  But could any of them claim to have owned title to the physical work in 1976?  On a federally-owned flood management dam?  It seems a stretch.

The opinion misses this threshold question entirely.  Second, VARA is absolutely a “lifelong” veto when it applies.  That is exactly what it is supposed to endow on the artist.

Good writing matters, both in drafting judicial opinions and also in drafting legislation. The Court and attorneys could be given at least a little reprieve from us as the act it self is terribly arcane. Congress did us no favors when drafting this piece of legislation. I have to agree with O’Donnell—when there are so few judicial opinions in the United States which take up the moral rights of artists, to miss so badly on some key provisions is a missed opportunity.

The Court ultimately upheld the injunction on the basis of the National Historic Preservation Act as the Army Corps of Engineers failed to comply with that act’s “stop, look, and listen provision” which requires federal agencies to “make a reasonable and good faith effort to identify historic properties”. But not before muddling the slowly diminishing respect for the moral rights of artists under VARA.

  1. Kammeyer v. Oneida Total Integrated Enterprises, No. EDCV15869JGBKKX, 2015 WL 5031959 (C.D. Cal. Aug. 24, 2015).
  2. Nicholas O’Donnell, New VARA Ruling Muddies Analysis on Moral Rights and Significance of “Site Specific” Art Art Law Report (2015),
  3. Carolina A. Miranda, Court order halts destruction of Prado Dam bicentennial mural in Corona (2015), .

Legal Questions over the acquisitions by the Museum of the Bible were inevitable

Artist rendering of the museum of the Bible
Artist rendering of the museum of the Bible

Steve Green has amassed 40,000 objects since 2009 for his Museum of the Bible. His name may be familiar, he’s President of Hobby Lobby (and one of the major funders of a successful Supreme Court challenge which allows employers to opt out of paying for insurance on religious grounds, which pays for some health care). Given that nearly all of those 40,000 objects originated from the Middle East, and given the unstable situation in that part of the world, where armed conflict has made securing heritage difficult, there was always a strong likelihood that a substantial amount of that material may have been looted, stolen, illegally exported, or even faked. The illicit nature of that material may be about to put the future of the museum in serious jeopardy. The Museum of the Bible will sit very near the National Mall, an important national space where the Smithsonian, the National Gallery, the Air and Space Museum, and other museums sit. America has reserved this space as a place for museums, so the optics of having a new museum filled with tens of  potentially looted artifacts should not be underestimated.

Candida Moss and Joel Baden reported for the Daily Beast that Federal investigators are looking at whether the Greens have illegally imported objects from Iraq. One of the allegations is that some objects were misdeclared on customs paperwork:

If the investigation ends with a decision to prosecute, on either criminal or civil charges, the Greens may be forced to forfeit the tablets to the government. There may also be a fine involved. The Green family, who successfully forced the federal government to legally recognize their personal moral standards, now find themselves on the other side of the docket, under suspicion of having attempted to contravene U.S. laws. . . .

When Summers spoke with us, he made it sound as if the ongoing federal investigation was simply the result of a logistical problem. “There was a shipment and it had improper paperwork—incomplete paperwork that was attached to it.” That innocuous phrase—“incomplete paperwork”—makes it sound as if some forms were simply missing a date or a signature. That is rarely the case with questionably-acquired ancient artifacts—and were the problem merely logistical, the chances are slim that it would take four years to resolve.

Summers suggested that the tablets were merely “held up in customs,” as if this was merely a case of bureaucratic delays. “Sometimes this stuff just sits, and nobody does anything with it.” But an individual close to the investigation told us that investigators have accumulated hundreds of hours of interviews, which doesn’t sound like bureaucratic delay—and which also suggests that there is more at stake here than merely a logistical oversight.

Gary Vikan, formerly of the Walters Art Museum, noted in an Op-Ed last week that Henry Walters amassed a relatively modest 1700 works from an Italian priest in 1902 and discovered many illicit works, including fakes which were purportedly by Titian, Raphael, and Michelangelo. The test according to Vikan will be whether the Greens will undertake the kind of rigorous study and authentication required of a serious cultural institution:

The collection in its entirety must, of course, be properly conserved and safely preserved — including those works the staff does not plan to exhibit, both for scholars, and in anticipation of possible repatriation claims.

This process, done right, will entail significant expense, but just a tiny fraction of what has already been invested. And it will go a long way toward repairing the Greens’ reputation as responsible stewards. As the Walters example suggests, there is a place in the profession for ex post facto due diligence on high-speed collecting: if you can’t get it right at first, make sure you do it right later. Full transparency is also the ticket price for membership in the museum and academic worlds to which the Greens aspire.

I urge Steve Green to announce that this approach is part of his strategic agenda, that it has his full support, and that its urgency is no less than that of his new museum. Should these efforts reveal specific evidence of illegally excavated and/or exported works from, for example, Iraq, I would urge Green to initiate an open, good-faith dialogue with officials in the country of origin and with the U.S. State Department, with the aim of repatriation.

What’s done is done. Now is the time to look toward the future, and to act.

In many respects these problems were predictable and foreseeable. The age when you could spend freely on the international antiquities market are gone. Buyers must be more careful. Another consideration I suppose is whether it would have even been possible to put together a museum of the bible if those questions were asked. Perhaps not.

  1. Gary Vikan, Probe of Steve Green’s antiquities may be inevitable; his response is not (COMMENTARY), The Washington Post, October 30, 2015, .
  2. Candida Moss, Joel Baden, Exclusive: Feds Investigate Hobby Lobby Boss for Illicit Artifacts The Daily Beast (2015), .

On that funerary statue seized in the UK

HMRC seized this funerary statute because it was misdeclared
HMRC seized this funerary statute because it was misdeclared

Janet Ulph has given a helpful overview of the seizure by UK Customs of this funerary statue. The statue was seized after Her Majesty’s Revenue and Customs said the statue was “misdeclared”. It was declared as a statue from Turkey, with an estimated value of $110,000. Yet HMRC alleged the statue originated from Cyrene, Libya and its value was closer to £1.5m.

Continue reading On that funerary statue seized in the UK

Leaked records hint at how much ISIS makes on antiquities

Image of some of the objects seized in the May raid, returned to the Baghdad national museum in July, Vivian Salama/AP
Some of the objects seized in the May raid in Syria, returned to the Baghdad national museum in July, Vivian Salama/AP

On Monday, on the blog Jihadology, we got some fresh insight into how ISIS makes its money. They have a short-term financial strategy that relies primarily on seizures and confiscations they classify as taxes. Relatively little comes even from oil revenues, and an even smaller amount comes from the sale of antiquities. The information comes from terrorism researcher Aymenn Jawad al-Tamimi, who has secured leaked documents from the IS’ financial ministry for a portion of Eastern Syria.

As he pointed out, without firm numbers, estimating just how much revenue ISIS can scrape together from its territories has been a guessing game. Estimates are based on potential revenue from sales of oil and gas; antiquities; taxation; and other streams of revenue. But now we have some firmer figures.

Zelin analyzes the data and concludes based on these documents:

Continue reading Leaked records hint at how much ISIS makes on antiquities

Buccafusco on Copyright authorship

Christopher Buccafusco, a Professor at Cardozo Law School has posted on SSRN a draft of his work forthcoming in the Virginia Law Review titled “Copyright Authorship”. From the abstract:

The U.S. Constitution gives Congress the power to grant rights to “Authors” for their “Writings.” Despite the centrality of these terms to copyright jurisprudence, neither the courts nor scholars have provided coherent theories about what makes a person an author or what makes a thing a writing. This article articulates and defends a theory of copyrightable authorship. It argues that authorship involves the intentional creation of mental effects in an audience. A writing, then, is any fixed medium capable of producing mental effects. According to this theory, copyright attaches to the original, fixed, and minimally creative form or manner in which an author creates mental effects.

After setting out the theory, this article applies it to a series of current copyright disputes. My authorship theory both expands and contracts the scope of potentially copyrightable works. Some media that have previously been excluded from copyright law, such as gardens, cuisine, and tactile works, now fall within the constitutional grant of rights. By contrast, aspects of copyrightable works, including photographs, taxonomies, and computer programs, may not constitute copyrightable authorship. This theory resolves a number of current and recent copyright cases, and it offers a new approach to the emerging challenges associated with artificial intelligence, the Internet of things, and, ultimately, the impending revision of the Copyright Act.

Buccafusco, Christopher, A Theory of Copyright Authorship (September 23, 2015). Virginia Law Review, 2016, Forthcoming. Available at SSRN:

The ICC has dramatically increased the profile of heritage crime

Militants destroying a shrine in Timbuktu in July, 2012
Militants destroying a shrine in Timbuktu in July, 2012

The International Criminal Court may be on the verge of dramatically increasing the profile of cultural heritage crimes. Perhaps even ushering in a new era of thinking about international criminal law’s role in the destruction of cultural heritage.

This potential shift comes with the  announcement that the ICC will prosecute Ahmad al Mahdi Al Faqi for alleged war crimes violations in intentionally directing attacks against religious and historical monuments in Timbuktu. The offense alleged, in Article 8 (2)(e)(iv), charges him with war crimes. Specifically, he is charged with directing attacks against mausoleums and the Sidi Yahia mosque in the city. ICC prosecutor Fatou Bensouda said in a statement:

The people of Mali deserve justice for the attacks against their cities, their beliefs and their communities.  Let there be no mistake: the charges we have brought against Ahmad Al Faqi Al Mahdi involve most serious crimes; they are about the destruction of irreplaceable historic monuments, and they are about a callous assault on the dignity and identity of entire populations, and their religious and historical roots.  The inhabitants of Northern Mali, the main victims of these attacks, deserve to see justice done.

Matt Brown, writing at Opinio Juris argues the decision by the ICC prosecutor should be seen as a watershed moment:

This news is an exciting development in efforts to enhance protection of cultural heritage and bring the perpetrators of cultural attacks to justice. At the same time however, it throws up many more questions about the broader definition of ‘culture’, victim participation in cultural matters, and whether this could give the Court a unique opportunity to tackle an issue of growing importance in international law.