Month: July 2019

Rub on State-Enacted Resale Rights

Chuck Close, Self Portrait, 2000, in the Smithsonian Collection. Close unsuccesfully brought a lawsuit to collect royalyy payments under the California Resale Rights Act, but the law was held to be pre-empted by federal law by the Ninth Circuit in 2018.

Guy Rub (Ohio State University, Michael E. Moritz College of Law) has posted an article from a symposium issue of the Kentucky Law Journal on: Experimenting with State-Enacted Resale Rights.

Current federal law does not require sellers of fine art to pay a share of the sale price to the artists, although Congress and federal agencies have been debating the advantages and disadvantages of such a duty, commonly referred to as Artists’ Resale Rights (ARR), since the 1970s. What is often missing from this discourse is the role that state law might play in this ecosystem. This issue, and especially California’s 1976 ARR law, the only state-enacted ARR to date, is the focus of this Article. 

States are often said to be the laboratories of democracy as they can experiment with various legal rules and produce rich comparative empirical data. The Article explores whether states can be the laboratories of ARR as well. It reaches three conclusions: First, there is a vibrant debate concerning the impacts and overall desirability of resale royalties, but that debate is driven by relatively scarce empirical data. Second, if states decide to adopt ARR they can provide some of that missing information. Third, subject to minor restrictions, states are allowed to enact ARR legislation, and the recent Ninth Circuit decisions that held the California ARR act unconstitutional are, for the most part, misguided, as it does not fully recognize the important role that states play in the markets for creative goods.

Rub, Guy A., Experimenting With State-Enacted Resale Rights (June 20, 2019). 109 Kent. L. J. 647 (2019). Available at SSRN: https://ssrn.com/abstract=3413846

Manhattan DA has Charged Kapoor and 7 Others

The Manhattan DA alleged that many illicit objects are still missing, including this grey schist Garuda Seizing a Nagini (via).

The office of the Manhattan District Attorney has charged Subhash Kapoor and seven individuals in a antiquities massive smuggling network. The arrest warrants filed yesterday allege Kapoor travelled to India to discuss the looting of objects, he then shipped these objects to London to be cleaned and restored, and finally these objects were given fraudulent histories before being sold through his galleries.

These arrests show the potential use of state and federal cooperation, unfortunately a massive investigation this large takes time. As Chasing Aprhorite pointed out, these arrest warrants come 7 years after federal agents raided Kapoor’s gallery in 2012:

The individuals arrested include two British citizens. Neil Parry Smith, an antiquities restorer was alleged to have prepared looted objects. Also, Richard Salmon is alleged to have helped restored recently looted material in New York. The five other individuals were a part of the alleged looting network in India and are Sanjeeve Asokan, Dean Dayal, Ranjeet Kanwar (aka Shantoo), Aditya Prakash and Vallabh Prakash.

Kapoor is currently jailed in India where he has been awaiting trial under the Indian criminal code for nearly 8 years. But his alleged looting network is vast, including an alleged 2,600 antiquities from Afghanistan, Cambodia, India, Nepal, Pakistan, and Thailand. Helen Stoilas at the Art Newspaper compiled many of the images of still-missing objects provided by the Manhattan DA. Those objects are now presumed illicit, dealing a big blow to their future market.

For a terrific account of this looting network, you should seek out the work of S. Vijay Kumar:

Rogers on the Unique Property Status of Native American Remains

Jim Thorpe at the 1912 Summer Olympics (via). In 2010 Thorpe’s children and the Sac and Fox Nation sued the town of Jim Thorpe, Pennsylvania seeking to repatriate his remains under the Native American Graves Protection and Repatriation Act.

Alix Rogers (Stanford Law School fellow, and PhD candidate at the University of Cambridge) has posted an article titled “Owning Geronimo but Not Elmer McCurdy: The Unique Property Status of Native American Remains” on SSRN.

This article unifies two areas of property scholarship that have not historically intersected. In the field of biotechnology and the law, it is generally understood that human remains and many body parts are not objects of legal property. This general rule has a startling exception, which heretofore has gone unnoticed in the literature and relevant case law. The bodily remains of Native Americans were, and I argue, continue to be, objects of legal property.

With the passage of the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) Native American remains are classified as familial and tribal property. The distinction and significance of property status under NAGPRA has been overlooked in the Native American legal scholarship. The perpetuation of property status is surprising given that NAGPRA was passed to address the systematic disrespect for Native American burial grounds and commercialization of Native American remains. Property status is all the more striking and important because some federal circuits have also interpreted NAGPRA to apply to contemporary individuals with Native American ancestry. With the rise of genetic testing technologies, application of this property rule takes on some surprising implications.

At first glance, we might condemn the property status of Native American remains as continued evidence of dehumanization. Property is traditionally associated with rights of alienability, exclusion, commensurability, and commodification. The understanding of property in Native American human remains advocated for in this paper challenges classic property constructs of wealth-maximization and an individually centered right of exclusion. Instead, after re-considering the paradigm of property, I argue that the communal property approach embodied by the Act enables Native Americans to more effectively protect their dead compared to any other American group. NAGPRA, therefore, represents an intriguing pathway for human biological materials regulation reform more broadly.

Rogers, Alix, Owning Geronimo but Not Elmer McCurdy: The Unique Property Status of Native American Remains (June 11, 2019). Available at SSRN: https://ssrn.com/abstract=3402650 or http://dx.doi.org/10.2139/ssrn.3402650