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Next week the Kunstmuseum in Bern will announce if it will accept the bequest of 1300 works of art from Cornelius Gurlitt. Gurlitt’s father was art dealer Hildebrand Gurlitt, operating during World War II. As a consequence a large number of these works will have possibly been stolen or forcibly taken during the Nazi regime. Receiving these works will be a challenge for whoever ultimately gets them. But the likely result no matter what will be litigation. There has never been such a large and contested body of artworks collected in one estate, but even if this were just a mundane estate without Nazi-era art association, large estates often carry with them the likelihood of litigation.

The Wall Street Journal reports that the Kunstmuseum is expected to accept the works:

The Kunstmuseum Bern’s legal team has been researching the artworks’ provenance since the museum was informed of the bequest on May 7. Barring a last-minute legal discovery that could scuttle the deal, the museum’s board of directors will accept the gift at its meeting on Saturday, the last of half a dozen deliberations regarding Mr. Gurlitt’s bequest. . . . Much of the delay in accepting the trove has come because the tiny museum needed to secure seven-figure private funding from Swiss donors to be as free as possible of German funding that the museum thought could taint the neutrality of their provenance research, people familiar with the deliberations said.This was a daunting task for the board members. The museum lacks the financial backing of other Swiss museums like Fondation Beyeler. Unlike European and American museum boards filled with wealthy collectors and art world insiders, the Kunstmuseum Bern’s board comprises local government officials and academics.

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Ole Varmer, International Section, Office of General Counsel, NOAA has written a technical examination of Underwater Cultural Heritage law: Closing the Gaps in the Law Protecting Underwater Cultural Heritage on the Outer Continental Shelf, 33 Stan.Envtl.L.J. 251 (2014). From the abstract: Continue Reading…

The Roman Colonnade at Apamea

The Roman Colonnade at Apamea

Jason Felch has an excellent piece examining the claims that ISIS has made massive profits off of illicit antiquities. He effectively critiques the claim that illicit antiquities have become the second-largest revenue stream for ISIS. Having seen the destruction and looting in Syria, we can see theft and destruction is taking place. But how can we estimate the size and scope? He notes getting accurate estimates of an illicit trade is not easy:

 

I have spoken with imprecision about the link between terrorism and the antiquities trade. UNESCO officials frequently cite a $7 billion dollar figure for the global illicit antiquities trade that has a very shaky foundation. The Antiquities Coalition has referred to $3 – $5 billion generated by looting in Egypt alone since 2011 (or in some instances, per year), but the research supporting that claim has yet to be published. Rajendra Abhyankar, a professor at Indiana University and former Indian Ambassador to Syria, declared in the Huffington Post earlier this month that “thirty to fifty percent” of ISIS income comes from the theft and looting of antiquities. When asked for a source, he told me it was based on notes he had taken while reading articles that he could no longer find. The problem is significant enough that Dr. Sam Hardy at Conflict Antiquities has made a cottage industry of debunking such claims.

The truth is we have very little reliable data on the global revenue generated by the illicit antiquities trade, and even less on the role it plays in funding terror groups. It is, to paraphrase Donald Rumsfeld, a known unknown: we know it happens, but not much more. Claiming otherwise may in the short term bring attention to the issue of looting, but ultimately saps it of credibility – and the urgency to answer those important questions with well-documented research. It can also taint important policy decisions, as Patty Gerstenblith, chair of the State Departments Cultural Property Advisory Committee, noted in response to Danti and similar claims: “Commentators and scholars should avoid sensationalism…Exaggerated [or] baseless claims hinder rational policies to restrict trade in illegal antiquities.”

Larry Rothfield responds by basically arguing, who cares so long as awareness is raised:

In the long term we are all dead, said Keynes, and in the short term getting attention paid to archaeological looting has had very positive stimulative effects in the area of heritage protection at least (witness the White House Coordinator law just proposed). More generally, the notion that credibility will be sapped by the flogging of dubious factoids is not supported by any evidence I know of in public policy studies, and indeed there’s plenty of evidence that even outright lies have very long tails and only sap credibility when they lead to what are retrospectively recognized to have been disastrous policy decisions.

I think accuracy matters, as exaggerated claims will only harm the cause in the long run.

"The Street is in Play", Banksy, Chinatown, Oct. 2013.

“The Street is in Play”, Banksy, Chinatown, Oct. 2013.

Noel Murray previews tonight’s HBO documentary on Banksy’s New York ‘residence’. One reason for the enduring appeal of Banksy, is the artist gets people thinking about art:

Banksy posted pictures of the finished works, but wouldn’t say where they were located, which meant that Banksy fans had to hunt around the city to find them—all while hoping that the pieces hadn’t been removed or painted over before they could be discovered. Over the course of the month, Banksy stirred up controversy with the political content of some of the work, and provoked the usual brouhaha over whether street art is any different from everyday vandalism. But Banksy also got the citizens of New York talking nearly every day about art and social issues, and he had people paying more attention to their surroundings, looking for hidden Banksys. He kept folks on their toes. . . .

That’s ultimately what makes Banksy Does New York such a lively and engaging film (even if it lacks the endearing puckishness of Exit Through The Gift Shop). Moukarbel ignores a lot of the outcry in New York about the appropriateness—or cleverness—of some of Banksy’s big social statements, like his comments about 9/11 and the Freedom Tower. And Banksy Does New York doesn’t give more than a passing voice to Banky’s critics and skeptics. (If anything, it’s more harsh to the New York art world for largely ignoring the residency.) But the film does a fine job of getting at the tension that each day’s new piece inspired. In the neighborhoods where Banksy struck, some locals fought to preserve the work, some looked to profit from it, and some saw the whole event as a nuisance. Meanwhile, New Yorkers flocked to the new exhibits, and balked whenever anyone tried to restrict their access or mar the art. Intentionally or not, Banksy and Moukarbel raise the question of who these spontaneous acts of creativity belong to, and whether they’re ever really “complete.”

The documentary airs Nov. 17th on HBO.

How Law Defines Art

By on November 10, 2014 — Leave a comment
Is this a museum?  "Prada Marfa" by Michael Elmgreen and Ingar Dragset

Is this a museum? “Prada Marfa” by Michael Elmgreen and Ingar Dragset

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Is this advertising? “Playboy Marfa” by Richard Phillips

Last month the John Marshall Review of Intellectual Property Law held its annual symposium. This year the topic was the intersection of art and law. There were a number of great papers examining how art and law overlap. I contributed a short talk on how the law ends up defining art, arguing the legal and the arts community need to recognize the important role law plays in defining the limits of conceptual art when legal disputes arise. I’ve posted the short draft online here: (How Law Defines Art), and I’d love to hear any reactions.

Defining art is both hard and subjective. But in lots of contexts the law must arrive at a just solution to hard and subjective questions. The art world (which includes artists, buyers, art lovers, art historians, and art writers generally) has largely neglected the task of defining artworks. This neglect has crept into legal disputes as contemporary art has become more conceptual. It has loosened the limits of aesthetics, form, function, and composition. This makes crafting a definition even more challenging. Yet the Law has an important part to play in resolving art disputes. In doing so courts end up defining art. They do not set out to do so, and in fact they do all they can to avoid acting as art critics. But paradoxically this creates inconsistent judicial reasoning and leads to under-reasoned opinions. The solution offered here, is to acknowledge this critical function, and encourage courts to engage with the visual arts community, and for the arts community to engage back.

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Detail of a petroglyph in the White River Narrows in Nevada

Detail of a petroglyph in the White River Narrows in Nevada

Central Nevada’s Garden Valley is home to wildlife, Native American rock shelters, the White River Narrows archaeological sites, and ancient trails used by the Shoshone and Paiute peoples. In September Senator Harry Reid introduced legislation to put over 800,000 acres off-limits to energy exploration and exploitation there. The Bill has been referred to Committeee, and can be tracked here. Though Sen. Reid’s office did not respond to initial press questions about the Bill, setting aside this land must hinge on protecting these natural and archaeological resources. But the area is also home to Michael Heizer’s ongoing City project. Continue Reading…

In 2001 a number of artists including Chuck Close, Laddie John Dill, and the estates of Robert Graham and Sam Francis brought suit against auction houses and eBay to receive royalties they had been owed under California’s Resale Royalty Act. That Moral Rights legislation provided that visual artists should receive 5% of the resale price when their work was resold by a California resident, or resold in the state of California for more than $1,000. The District Court struck down the law as unconstitutional on the grounds that commerce like this must be regulated at the federal level under the Commerce Clause to the Constitution. Continue Reading…

"Great Republic" by James E. Buttersworth ~1850

“Great Republic” by James E. Buttersworth ~1850

The Mariners’ Museum in Newport News Virginia has crassly bowed to the need for more visitors and made the decision to exhibit a number of works by James E. Buttersworth alongside a forgery of his work by Ken Perenyi. The attraction with forged art knows no bounds it seems. How would the artist feel to know that decades later his work was being displayed alongside the work of a criminal:

A small Buttersworth in good condition might sell for $30,000, said Alan Granby, who, with Janice Hyland, runs Hyland Granby Antiques in Hyannis Port, Mass, which usually has several Buttersworths for sale. The much rarer large paintings, especially those depicting America’s Cup races, can go for more than $1 million. Mr. Perenyi said that his prices range from $5,000 to $150,000.

The museum has made a point of not mentioning Mr. Perenyi, who said he did not know until a reporter approached him that his work was in its current show. “We did not want to lend any legitimacy to the forger or be seen as promoting him in any way,” Mr. Forbes said.

On entering the exhibition, visitors approach a high-resolution digital image of “Magic and Gracie off Castle Garden,” an 1871 Butterworth that shows two yachts, sails taut in the wind, racing neck and neck in New York Harbor. On a nearby television screen, a photo of Buttersworth pops up, and “hot spots,” activated with the touch of a finger, explain the fine points: the signature, size, background features, sky and weather, seas and sea gulls, composition and meticulous detailing of the ships.

Visitors, prompted by clues in the wall texts, then try to identify the lone forgery. At two voting booths, they can test their suspicions by entering the number of the suspected forgery on touch screens that tell them whether they are right or wrong and offer to give them the correct answer. Then the honor system applies. Those in the know are asked not to give away the secret.

William Grimes, To Reel In Crowds, a Museum Is Showing a Fake Painting, The New York Times, Oct. 31, 2014.
The Getty Villa in Malibu

The Getty Villa in Malibu

James Cuno, President of the Getty Trust, has authored a short essay revisiting his arguments against repatriation. Those familiar with his arguments will see many of the same kinds of arguments he has made in the past. Mainly he criticizes repatriation as an exercise in nationalism:

Such claims on the national identity of antiquities are at the root of many states’ cultural property laws, which in the last few decades have been used by governments to reclaim objects from museums and other collections abroad. Despite UNESCO’s declaration that “no culture is a hermetically sealed entity,” governments are increasingly making claims of ownership of cultural property on the basis of self-proclaimed and fixed state-based identities. Many use ancient cultural objects to affirm continuity with a glorious and powerful past as a way of burnishing their modern political image — Egypt with the Pharaonic era, Iran with ancient Persia, Italy with the Roman Empire. These arguments amount to protectionist claims on culture. Rather than acknowledge that culture is in a state of constant flux, modern governments present it as standing still, in order to use cultural objects to promote their own states’ national identities.

Though he acknowledges the looting and destruction that has taken place and this was the impetus for a number of returns from his current institution, he’s attempting it seems to hold a firm line against calls for repatriation which pre-date 1970. While he does obliquely criticize looting, he offers no other solution to the problem. How can we prevent site destruction and looting without national legislation and domestic initiatives (which he has called nationalistic)? That question is left largely unanswered. He does make calls for more Universal museums in nations of origin.

He ends with a call for exchange and cooperation:

For encyclopedic museums to fulfill their promise of cultural exchange, they should be established everywhere in the world where they do not now exist. And existing encyclopedic museums should aid in their development. Already, there are laudable examples of how great museums in wealthy countries can foster a more comprehensive kind of cosmopolitanism. The British Museum established a program in 2008 to promote partnerships with institutions in Africa, Asia, and the Middle East. In addition to loaning collections and exhibitions from British museums, it focused on training: in conservation, curating, and archiving. In all, some 29 countries were involved. The program was supported by the British government’s Department for Culture, Media, and Sport. But after three years, the British government cut the program’s funding. The partnerships continue on a smaller scale supported by grant funding, including from the Getty Foundation.

This process of exchange and cooperation should build trust among museums and national authorities. It will be a long, slow process, but if successful, it would lay the foundation for a greater understanding of the values represented by the encyclopedic museum: openness, tolerance, and inquiry about the world, along with the recognition that culture exists independent of nationalism.

Cuno, James. “Culture WarForeign Affairs, December 2014.
A Silver Rhyton depicting a stag, ca. 14th-13th C BCE. One of the objects Turkey has reportedly inquired about from the Met.

A Silver Rhyton depicting a stag, ca. 14th-13th C BCE. One of the objects Turkey has reportedly inquired about from the Met.

Disputes over works of art continue to hamper relationships between major Museums and nations of origin. One example is what appears to be a strained relationship between Turkey and the Met.

The Met is planning a major exhibition on the Seljuk Islamic empire. But the show

looks to be hampered by Turkey’s cultural embargo which demands a return of works of art before any new material will be loaned. As Tim Cornwell reports for the Art Newspaper:

Without loans from Turkey, and with Iranian loans unlikely unless there is a sudden improvement in relations between the US and Iran, the Met will have to rely on major loans from British and European institutions instead.

. . .

But Turkish loans could have ranged from manuscripts from the Topkapi Palace Museum in Istanbul and trophy items, such as an extraordinary steel mirror with gold inlay also housed there, to reliefs from the walls of Konya, the Seljuks’ historic capital in Anatolia.

A tile from the Seljuk Ceramics Museum in Konya

A tile from the Seljuk Ceramics Museum in Konya

Turkey has asked for a number of objects back from the Met, the British Museum and other institutions. Some of them removed from Turkey very early in the 20th Century.

According to reporting at Chasing Aphrodite, those objects requested by Turkey from the Met include objects with no history before from the Norbert Schimmel collection acquired them in the 1960s-70s. The ongoing dispute is a pity, as it harms both the ability of curators at the Met to secure Seljuk material for the exhibition, and hampers Turkey’s opportunity to present its heritage to new audiences.

  1. No Turkish loans for big Met show, The Art Newspaper (Oct 9, 2014).