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

Pilot Project by the German Lost Art Foundation

Catherine Hickley reports for the Art Newspaper that a new study has shown that serious state-sanctioned seizures of privately-held artworks continued long after the conclusion of World War II, particularly in east Germany. The study examined acquisitions between 1945 and 1989 by four museums: the Viadrina Museum, and museums in Strausberg, Eberswalde, and Neuruppin. The study was conducted by the German Lost Art Foundation, and was intended as a pilot project to guide further research.


One of the most common ways that art confiscated from individuals wound up in East German museum collections was through the clearance of the residences of people who had fled the country, especially in the second half of the 1950s, Sachse says.
At the end of 1961, just a few months after the Berlin Wall was erected, East German Minister for State Security Erich Mielke gave orders for a secret operation to force open and empty unused, privately rented bank vaults, safety deposit boxes and safes at around 4,000 locations across the country and empty them of their contents.
The stealth operation, known as Aktion Licht (Operation Light), amounted to an orchestrated, state-sanctioned mass theft from people who had left the country. The treasures belonged to East Germans who had escaped to the West, but also to Jewish people forced to flee or who were taken to concentration camps during the Third Reich. The Stasi valued its findings at 4.1m deutschmarks (around $10m at the time).
After 1970, the preferred method of theft by the East German authorities was to invent astronomical tax bills and then seize art when the victims could not pay.

Catherine Hickley, Mass theft of art from East German citizens revealed in new report, The Art Newspaper (Jun. 12, 2019), http://theartnewspaper.com/news/mass-theft-of-art-from-east-german-citizens-revealed.

My Article on the Council of Europe’s ‘Blood Antiquities’ Convention

The Arch of the Temple of Bel, near Palmyra in Syria in 2005 (via)

In 2017 the Council of Europe opened the Nicosia or ‘Blood Antiquities’ Convention up for signature. The new initiative is the first of its kind devoted to the criminal and penal aspects of policing cultural property. I wrote a discussion of the Treaty, examining its provisions in detail and thinking about what this initiative may mean for the future of cultural heritage law.

In 2017 the Council of Europe opened for signature the first ever international treaty aimed at policing cultural property. As more attention has been paid to the damage done by the theft, looting, and illicit trafficking of cultural objects, the Council of Europe has met this challenge with an ambitious convention which aims to fill gaps in the current criminal laws. These gaps have too often been exploited by individuals in the illicit antiquities trade. The author had an opportunity to present his analysis of a draft version of the Council of Europe’s Convention at a meeting held in Lucca, Italy in 2017. The meeting of that group of experts revealed a document that had the benefit of grand ambitions and tough talk on the policing of illicit antiquities. Yet there was pessimism expressed by many experts that the Convention would accomplish the goals which it set out to achieve. The essay which follows is an expansion of the remarks given at that meeting. It argues that the cultural property trade badly needs to be properly regulated. This includes not simply seizure and forfeiture of objects, but also the prosecution of persistent bad actors. The Nicosia Convention opens up new possibilities for prosecution at all levels of the illicit trade. Although the Convention is the first of its kind, it has been met with surprisingly little attention in the cultural heritage law academy. This essay introduces the main reforms offered by the Convention and argues that it points the way forward for future policing of the illicit trade in cultural property.


The Blood Antiquities Convention as a Paradigm for Cultural Property Crime ReductionCardozo Arts & Entertainment Law Journal, Vol. 37, No. 2, 2019

Janet Ulph on Acquiring Fossils

A Seymouria Fossil , from the California Academy of Sciences, via.

Professor Janet Ulph of Leicester Law School has written a handy and concise discussion of how fossils fit into the overall picture of cultural heritage crime.

This article explains why museums should avoid acquiring fossils which lack sufficient provenance and where the circumstances are suspicious. It argues that, regardless of whether one considers fossils to be cultural property or not, the Museums Association’s Code of Ethics should be followed not only in order to maintain public trust in museums but also to ensure compliance with current laws

Ulph, J. 2018. Acquiring fossils: a complex picture. The Geological Curator 10 (10): 657-670.

Babcock on “The Public Trust in Public Art”

Winslow Homer, The Veteran in a New Field, 1865, (source).

Professor Hope Babcock, of Georgetown Law, has published an interesting discussion on public art which carries forward a number of ideas presented by Joseph Sax and the public trust. She looks at the interesting problem of art which is withheld from public enjoyment. In other words should this iconic work of Winslow Homer enter the public patrimony, and thus be prevented from disappearing into a private collection if the Met would ever decide to deaccession it?


Private hoarding of important works of art is a phenomenon that has caused their disappearance from public view. The loss of this art undermines republican values like education, community, and citizenship, and therefore should be resisted. This Article explores various legal tools to prevent this from happening, including doctrines and laws that protect artists’ rights in their work, but which offer the public little relief. Turning to two well-known common-law doctrines—public dedication and public trust—to see whether they might provide a solution, the author favors the latter because it is nimbler and better suited to the public nature of important works of art. But she recognizes that making viable use of the public trust doctrine requires enhancement with incentives, such as those offered by listing the art on a register, the tax code, and external norms of social behavior. The Article is a tribute to Professor Joseph L. Sax’s public trust scholarship, which has inspired so many of us who follow in his footsteps.


Babcock, Hope M., “The Public Trust in Public Art: Property Law’s Case Against Private Hoarding of ‘Public’ Art” 50 Conn. L. Rev. 641 (2018). https://scholarship.law.georgetown.edu/facpub/2139


New article on the market for anonymous paintings

The King’s Fountain, 16th Century anonymous Flemish work (source)

Anne-Sophie V. E. Radermecker, affiliated with the Department of History, Arts and Archaeology (Cultural Management) Université libre de Bruxelles, Brussels, Belgium has published a paper devoted to the market for anonymous Flemish paintings which were sold between 1955-2015.


This paper explores the market for indeterminate works of art. Our data set includes 1578 sales of fifteenth and sixteenth-century anonymous Flemish paintings, mainly collected from the Blouin Art Sales Index over the period 1955–2015. After a brief introductory section to the issue of anonymity in early modern art, and the different situations of information failure generated by anonymous paintings, the empirical part examines the supply and demand for paintings by unrecorded artists, using a hedonic pricing model. We find evidence that the degree of specification of the spatio-temporal designations given to the paintings (e.g. Flemish school, sixteenth century) affect prices differently (H1). The more specific the designation is in time and space, the more it tends to make up for the lack of information, and to positively affect the market value of anonymous paintings. When the artist name is missing, we also argue that purchasers pay greater attention to other quality signals. Four other hypotheses, which are expected to influence the buyer’s willingness to pay, are successively tested: H2) the physical condition of the painting; H3) oral or written interventions by an expert; H4) the length of the lot essay; and H5) previous attributions to named artists. The results suggest that most of these variables operate as significant pricing characteristics. We finally compare price indices of named artists, indirect names and spatio-temporal designations.

Radermecker, AS.V.E. J Cult Econ (2019). https://doi.org/10.1007/s10824-019-09344-5

An interesting article with some very useful data. The article’s conclusions are unsurprising: the more information provided about a work of art, the higher the price will generally be.

Italy’s Carabinieri Outwits Art Thieves

The Crucifixion, by Pieter Bruegel the Younger, a copy of a similar work by his father (wikipedia commons)

Italy’s art squad, the Carabinieri Tutela Patrimonio Culturale, are the pre-eminent art police squad for a reason.

Thieves hoping to steal this work learned that lesson the hard way last week when they attempted to steal this work of art from a baroque church (Chiesa di Santa Maria Maddalena) in Castelnuovo Magra in Liguria. Working from information that a theft was imminent, the Carabinieri and only a handful of the residents of the town orchestrated and elaborate switch.

They swapped the real painting out for a copy, and that’s what the thieves stole.

The thieves now have a near-worthless copy, and the painting is still safe in storage.

Daniele Montebello, the mayor of the town which has a population of 8,500, said “The original painting was replaced by a copy more than a month ago . . . We were hearing rumours that someone wanted to steal it, so the Carabinieri brought in the fake and installed security cameras.”

Parish Priest Fr. Alessandro Chintaretto, who was reportedly napping nearby when the theft took place, expressed relief the original is safe: “It is a work of rare beauty which expresses a moment of profound faith . . . ”. 

A Profile of Vjeran Tomic


Georges Braque, 1906, L’Olivier près de l’Estaque (The Olive tree near l’Estaque)

In 2010 Vjeran Tomic managed to pull off an improbable heist. During a series of late night visits, he managed to make off with five important works from the Musée d’Art Moderne, including Pastoral by Henri Matisse, Woman with a Fan by Modigliani, Pablo Picasso’s Dove with Green Peas, and George Braques Olive Tree near Estaque. These works were always going to be difficult to sell, leading many to speculate they might have been destroyed.

Writing for the New Yorker, Jake Halpern speaks with Tomic and in a downright readable profile, attempts to figure out why. Here’s an excerpt:


Many of the luxurious apartments that Tomic broke into had valuable paintings, but he tried to resist taking them, knowing that they would be difficult to unload. “To sell them was dangerous, and I didn’t have reliable sources abroad in order to flog them to collectors or receivers,” he told me. Occasionally, though, the allure of the art proved overwhelming, and Tomic took what he found—including, he says, works by Degas and Signac. “A decent amount passed through my home,” he wrote. He hid some pieces in a cellar, “and some stayed with me for a long time, on the wall, and it’s in these cases that I fell in love.”
This might sound like braggadocio, but Tomic did make off with some masterpieces. In the fall of 2000, in an episode that subsequently made the papers in France, he used a crossbow with ropes and carabiners to sneak into an apartment while its occupants were asleep and stole two Renoirs, a Derain, an Utrillo, a Braque, and various other works—a haul worth more than a million euros.


Jake Halpern, The French Burglar Who Pulled Off His Generation’s Biggest Art Heist, The New Yorker, Jan. 7, 2019, https://www.newyorker.com/magazine/2019/01/14/the-french-burglar-who-pulled-off-his-generations-biggest-art-heist [https://perma.cc/M7FK-M39R].

Its a terrific profile, and if you enjoyed it, it recalls another terrific read, David Grann’s profile of the prolific aging bank robber Forrest Tucker.