Smith on Street Art and low Intellectual Property

Street art in Oslo
Street art in Oslo

Cathay yvette Nikka Smith, of  the University of Denver Sturm College of Law has posted on SSRN, Street Art: An Analysis Under U.S. Intellectual Property Law and Intellectual Property’s ‘Negative Space’ Theory, 259 DePaul J. Art, Tech., & Intel. Prop. (2014). From the Abstract: Continue reading “Smith on Street Art and low Intellectual Property”

Litigation seems inevitable in the Gurlitt case

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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.

Continue reading “Litigation seems inevitable in the Gurlitt case”

Varmer on Underwater Cultural Heritage law

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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 “Varmer on Underwater Cultural Heritage law”

More on ISIS and Illicit Antiquities

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.

Murray Reviews HBO’s ‘Banksy Does New York’

"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

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.

Continue reading “How Law Defines Art”

Perhaps art and archaeology should work together

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 “Perhaps art and archaeology should work together”