Many nations assign to artists moral rights over their creations. One of the core moral rights is the right to claim or exclude works of art in your body of work. But not in the United States. NPR reports on the bizarre case involving Peter Doig and the art he’s trying to disclaim.
Professor Ho-Young Song (Hanyang University School of Law, Seoul) has published an article in the recent issue of the Penn St. Journal of Law and International Affairs examining how works of art are restituted after an illegal export. Once considered by some a tenuous way to regulate the illicit trade in art, illegal export has grown as a regulatory check with more and more impact. From the abstract:
Worldwide, many cultural properties have been wrongfully exported to other countries in times of war and colonization. Furthermore, cultural properties are currently constant targets of illegal transaction due to their substantial economic value. Illicit trade in cultural properties is now the third largest black market after drug and firearms. There are several international treaties aimed at combating the illicit export and enabling the restitution of cultural properties. Despite these efforts, more legislative and judicial cooperation between countries will be necessary to truly solve the problem. This article reviews international legal instruments for restitution of illegally exported cultural property, and suggests some new judicial principles that should be applied by domestic courts for supplementing drawbacks of international treaties. The author suggests to adopt “lex originis” rule for choice of governing law instead of traditional “lex rei sitae” rule and to apply to shifting burden of proof to a certain extent to find a solution for disputes over cultural properties.
- Ho-Young Song, International Legal Instruments and New Judicial Principles for Restitution of Illegally Exported Cultural Properties, 4 Penn. St. J. L. & Int’l Affairs 718 (2016).
- Yates Donna, ‘Uigwe « Trafficking Culture’ (14 March 2014) <http://traffickingculture.org/encyclopedia/case-studies/uigwe/> accessed 23 August 2016.
Cornelius Banta, Jr. a recent graduate of the University of Houston Law Center has written an interesting piece in the Houston Law Review putting forth some pragmatic reforms to the antiquities trade. From the abstract:
The debate over the trade in antiquities generally pits archaeologists and antiquities-rich nations (cultural nationalists) against museums, art dealers, and private collectors (cultural internationalists). The former alleges that the latter’s lusting after antiquities perpetuates a black market that threatens the archaeological record and undermines the sovereignty of source nations. Conversely, cultural internationalists assert that policies favoring cultural nationalists stifle the free exchange of artifacts that belong to mankind as a whole, not just a select group of scholars and countries. The problem is that both sides are so intent on pointing the finger at each other that they fail to realize cooperation could produce a mutually beneficial outcome. The solution lies in changing the current adversarial debate into a cooperative dialogue where each side gives a little in order to ensure both sides gain more in the end.
This Comment attempts to break through the polarization in the debate over the trade in antiquities by stressing the shared interests of both sides and advocating pragmatic reforms. The current debate is first viewed through an intellectual framework, where the interests of cultural nationalists, who want to protect antiquities, runs up against cultural internationalists, who advocate for the free movement of antiquities. With the theoretical framework set, one can then analyze the debate through the current legal approaches towards regulating the antiquities market. The United States’ blend of criminal prosecutions and trade restrictions is illustrative of present efforts to control the antiquities trade. Yet despite the ineffectiveness of current polices, the hardline stances taken by both sides of the antiquities trade debate create an impasse for reform. Consequently, change can only come by recognizing the shortcomings of the current approaches and promoting civil and private remedies that benefit both sides.
This June I had the chance to visit the town of Aidone in Southern Sicily. It’s a town that I’ve written and thought a lot about, so when we had the opportunity to pop up from teaching in Valletta for a long weekend, we jumped. Its fame comes as the result of a series of looting scandals.
The village and the archaeological site has been written about a great deal, but I haven’t come across many who have actually visited the site and the Muesum. For decades, the site it represented in a tangible way the competing interests of illicit looters and archaeologists. Archaeologists would excavate during the summer, looters would raid the site after they left. Year after year the cycle continued.
If you are reading this you probably have some strong feelings about where the Dea di Aidone (aka the Getty Goddess) should reside. This short essay is a collection of my own thoughts about the ancient site of Morgantina and the nearby town of Aidone.
To give a bit of the history as I understand it, the island of Sicily was subject to the control of many Mediterranean civilizations, and Morgantina’s history reflects this. Morgantina was founded perhaps seven or eight centuries before Christ. At some point it came under the control of Syracuse. Much of what now exists at this site reflects a city at the edge of the ancient Greek world. At some point in the third century BCE Morgantina may have chosen to throw their lot in with Carthage, a choice which likely proved costly when it was finally captured by Rome. Morgantina may have fallen on hard times, and the city itself seems to have been largely deserted by the First Century CE.
Thesite has been the subject of a number of archaeological excavations, mainly by American archaeologists, and also the target of antiquities looters who ultimately sent objects on through the illicit black market in antiquities. Many of the most beautiful items looted ended up in American Museums, notably the Getty and the Metropolitan Museum of art. This seems to me to be a notable correlation. How is it an accident that most summers for the last 60 years have seen american archaeologists digging at Morgantina, and also the museums of the United States acquiring works from the very site. Assigning blame to the archaeologists who dig there, the local officials for protecting the site, or the museum curators who
acquire this material seems unproductive for this short essay. But visiting the Museum in Aidone and the site of Morgantina I was struck by what a colossal policy failure the looting represents.
Daniel Grant reports on a recent Visual Artists Rights Act case involving the Burning Man re-purposed bus known as La Contessa.
A recent court decision in Nevada raises this question and, perhaps more fundamentally, the issue of whether or not VARA might need to be rewritten or updated to account for a broader definition of art. On June 8 of this year, a three-member Appeals Court panel affirmed a 2009 lower court ruling that called the demolition of a refashioned school bus—turned into a Spanish pirate ship on wheels and used for events as part of the annual Burning Man late-August to early-September festival in Black Rock Desert, Nevada between 2002 and 2005—not a violation of VARA, because the vehicle in its new form did not constitute fine art but “applied art.”
The 16’ x 60’ pirate ship, called La Contessa, was created by two artists, Simon Cheffins and Gregory Jones, who transformed an out-of-commission school bus into a replica 16th century Spanish galleon that included a hull, decking, masts, and a hand-crafted figurehead. La Contessa added to the sometime circus nature of Burning Man, used for rides, marching band performances, children’s treasure hunts and even two weddings. After the conclusion of the festival, the vehicle was put into storage on nearby land controlled by a woman, Joan Grant, with a lifetime tenancy of the property. However, in 2005, Grant’s home burned down and she abandoned her tenancy, which was then taken over by a limited liability company controlled by a Michael Stewart. “La Contessa” remained on the property and was not reclaimed by Cheffins and Jones the following year, and in late 2006 Stewart dismantled and then burned the wooden structure so that a scrap metal dealer could remove the underlying school bus. In 2009, the artists brought a VARA lawsuit against Stewart, losing in district court and more recently on appeal. “The focus of our inquiry should be on whether the object in question originally was—and continues to be—utilitarian in nature,” the Appeals Court ruled, although noting that the ship has “some artistic or aesthetic merit.”
In a concurring opinion, one of the three judges, Margaret McKeown, expressed concern that the ruling being issued was not workable and required “a more nuanced definition of ‘applied art’ that balances between the risk of unduly restricting VARA’s reach and the risks of turning judges into art critics.”
Leila Alexandra Amineddoleh has posted an abstract of her latest piece, which appeared in the Spring issue of the Cardozo Arts & Entertainment Law Journal. Amineddoleh, as many readers likely know, teaches art and cultural heritage law as an adjunct Professor at a good portion of New York’s law schools, including I think recently with St. John’s and Fordham. She also is a Partner and co-founder of her own art and cultural heritage law firm, Galuzzo & Amineddoleh.
Her article is titled Are You Faux Real? An Examination of Art Forgery and the Legal Tools Protecting Art Collectors. It follows up on her recent symposium piece in the International Journal of Cultural Property and gives a comprehensive and useful overview of some recent art forgery scandals, and the laws which apply.
Here’s the abstract:
The authorship of artwork greatly affects its value. For this reason, authentication in art is a complex and sometimes contentious process. This paper examines the history of art authentication, due diligence to ensure that purchasers are not buying forgeries, complex cases without clear-cut answers, and legal tools available to buyers after a forgery has been purchased.
- Amineddoleh, Leila Alexandra. “Are You Faux Real? An Examination of Art Forgery and the Legal Tools Protecting Art Collectors.” SSRN Scholarly Paper, May 26, 2015. http://papers.ssrn.com/abstract=2784963.
- Vogel, Carol. “Not by Leonardo, but Sotheby’s Sells a Work for $1.5 Million.” The New York Times, January 28, 2010.