Author: Derek Fincham

Bezanson on "Art and the Constitution"

Randall P. Bezanson has a very interesting and entertaining article (with pictures) in the most recent issue of the Iowa Law Review titled Art and the Constitution. From the introduction:

The First Amendment has been with us for 217 years. Over that long
history there have been surprisingly few Supreme Court cases involving art—
hardly more than a handful—and even fewer that are illuminating. When
forced to address the status of art under the Constitution, the Supreme
Court has simply said “of course” and “surely” the free-speech guarantee of the
First Amendment protects art. But as I tell my students in constitutional law,
when the Supreme Court explains itself by saying “of course” and “surely,” it
is a safe bet that the Justices do not really know what they are talking about.
This is the case with art. The Court does not tell us what art is, why it is
protected, or how the free-speech guarantee can be read to include it.
It turns out that the question of art and free speech is a very difficult
one, and this is the reason that art has had a troubled relationship with the
First Amendment. The law of obscenity, for example, protects only “serious”
art (whatever the Court means by that). But what about happy art? Or
humorous art? Or avocational, rather than professional, art?

And from the text:

Plato was right in at least one respect. Art is dangerous and incapable of
domestication. It rests on emotion and the senses. Art, as I use the term
here, is a representation perceived not mainly through our cognitive
faculties, but instead through our senses unconstrained by reason. An object
or performance that we call art is an instrument through which the
presented object is assimilated through the senses and becomes re-
represented as something distinct to each person—a perception or
understanding grounded in an act of imagination.

And from the conclusion:

Free speech—literally, textually, and by common public understanding
in the late Eighteenth Century—did not include art, but it should today.
The expansion of speech to include art reflects the evolved and evolving
habits and attitudes of society at large over a period of more than 200 years.
Today, art is a major source of expression and ideas. It is a central feature of
the creativity that our culture so prizes. Our culture has evolved from a time
when there was no broad private market in art—only patronage—to a time
when the private market in art is pervasive.

Highly recommended — Strict constructionism, Justice Scalia, Serrano’s Piss Christ, Manet, and Finley’s Return of the Chocolate-Smeared Woman all in one article.

Questions or Comments? Email me at derek.fincham@gmail.com

Art Fraud in New Orleans

Today’s Times-Picayune has the story of a Mother and Son who “invented” artists to help sell cheap Chinese paintings from wholesale distributors. The pleaded guilty to conspiracy to commit mail fraud. From the story:

Constance “Connie” Breithoff, 60, and Christopher Breithoff, 35, both of Covington, admitted in federal court on Wednesday to misrepresenting their galleries’ artwork. They would buy inexpensive Chinese paintings from wholesale distributors and then market and sell them, at a large profit, as works created by Louisiana artists.

Specifically, the mother-son art dealers pleaded guilty to conspiracy to commit mail fraud. Each now faces a $250,000 fine, as much as five years in prison and three years of supervision after prison. They were charged by the U.S. attorney’s office on Sept. 17 and are scheduled to be sentenced Jan. 28 by U.S. District Judge Eldon E. Fallon.

The mother and son would mail a certificate of authenticity, along with a description of the fictional artists, to their customers after each purchase.

In addition to owning the Barlow Art Gallery and Transitions in Mandeville, the family operated a Barlow gallery in the French Quarter at 805 Royal St. from 1999 to 2005.

This mirrors in some ways the concerns with the buying of art at auction on cruises a few months ago. Do not buy art as a tourist, if you are spending more than a thousand dollars, make sure you educate yourself about the dealer and the artist.

If you bought a work of art in New Orleans by an artist named Falgot, S.A.M., Shanta, or Michel, you may want to contact the U.S. Attorney’s office, victim witness coordinator at 504-680-3000.

Questions or Comments? Email me at derek.fincham@gmail.com

Private International Law and Nations of Origin



I have posted on SSRN a working version of my forthcoming paper titled How Adopting the Lex Originis Rule Can Impede the Flow of Illicit Cultural Property, to be published some time next Spring in the Columbia Journal of Law and the Arts. Here is the abstract:

The International trade and transfer of art and antiquities faces problems because nations have erected very different rules with respect to movable property. All nations forbid theft, however most cultural property disputes involve an original owner and a subsequent good faith possessor. Different jurisdictions have chosen to allocate rights and responsibilities between these two relative innocents in very different ways. Disharmony in the law is seldom a good thing, but in the realm of cultural property it can be particularly damaging to the interests of nations, museums, individuals, and our collective cultural heritage. The lack of harmony ensures no overarching policy choices will be furthered, which prevents parties from anticipating legal outcomes and giving substance to policies.

This article explores the default conflict of law rules which are applied to cultural property, and shows how the lex situs rule exploits the various legal rules which apply to art and antiquities. It challenges the lofty position enjoyed by the lex situs rule and proposes a radical reform of the default choice of law analysis. By employing the law of the Nation of Origin or lex originis courts can ensure the jurisdiction with the most tangible connection to an object enjoys the benefit of applying its legal rules to a given dispute. This will not only ensure the security of art and antiquities transactions, but impart much-needed transparency into the cultural property trade, and finally will decrease the theft and illegal excavation of art and antiquities.

The article begins by presenting some examples of recent disputes, and the problems they present for the law and cultural heritage policy. Section II describes the fundamental difficulty of adjudicating claims between two relative innocents, and the disharmony which has resulted as different jurisdictions have resolved this conundrum in very different ways. Section III lays out the ways in which private international law impacts art and antiquities disputes. Section IV analyzes the 1995 UNIDROIT Convention, the most recent attempt to harmonize the law affecting cultural property. Section V proposes a radical reform of the choice of law enquiry taken by courts.

I’d be delighted to hear any reactions to the work at derek.fincham “at” gmail.com.

Questions or Comments? Email me at derek.fincham@gmail.com

International Red Tape, $500 Translation

International red tape often hampers the investigation of the illicit trade in antiquities, this example involves Leonardo Patterson (discussed earlier here) and the difficulty in acquiring a decent Spanish-German translation. From AFP a couple days ago:

SAN JOSE (AFP) — The price of a translation is keeping the Costa Rican government from retrieving a collection of pre-Columbian objects it claims were stolen by a private collector now living in Germany.

In August 2007, Costa Rica first learned about Leonardo Patterson’s collection stored in Spain since 1997. Its more than 1,700 pre-Columbian pieces originate from Costa Rica, Mexico, Guatemala, Nicaragua, Panama, Ecuador, Bolivia and Peru.

Costa Rica is seeking the recovery of 457 of those objects it says are part of its national heritage.

Patterson’s collection is of incalculable value, said Marlin Calvo, head of the Cultural Heritage Protection department at Costa Rica’s National Museum.

The objects are “very beautiful, very diverse, and in very good condition,” said Calvo.

Patterson, a former Costa Rican diplomat and renowned art collector, was questioned and part of his collection seized by Munich police in April this year, after he took it out of storage in Spain and had it shipped to Germany.

Investigators valued the objects at more than 100 million dollars.

Costa Rica, along with Mexico and Peru, say some of the pieces were stolen and are attempting to recover them, even as Patterson maintains he obtained them in Europe, legally.

Since May, Costa Rican authorities have tried, without success, to reclaim the pieces. Their main problem: the price of a translation.

Questions or Comments? Email me at derek.fincham@gmail.com

Student Comment on the 1970 UNESCO Convention

Janene Marie Podesta has written an article in the Cardozo Journal of International and Comparative Law, SAVING CULTURE, BUT PASSING THE BUCK: HOW THE 1970 UNESCO CONVENTION UNDERMINES ITS GOALS BY UNDULY TARGETING MARKET NATIONS. I haven’t found a free copy available on the net, so you’ll have to rely on the usual scholarly databases if you’re keen to get your hands on a copy.

I continue to be surprised at the tremendous popularity of this topic, particularly the frequency with which cultural heritage issues are used as Note and Comment topics for law students. I think this is a good thing, though unfortunately they tend to rely a bit too much on the same staple of core topics and concepts.

From the Introduction:

This Note argues that UNESCO’s current policy, which makes a minority number of market nations almost universally responsible for the protection of source nations’ cultural property, is contrary to the international public good and cannot succeed in its current form. While well intentioned, placing all responsibility on the receivers of illicit goods will not curb the flow of these goods; it will only send the market further underground. It may also result in criminal prosecution for those who were simply ignorant rather than those who purposefully decimated their own countries’ heritage. UNESCO requires almost nothing from some nations (generally, those who gain the most from the system) and burdens others with disproportionate accountability.
Part II of this Note will focus on the various international conventions on the subject of cultural property, predominately the 1970 UNESCO Convention. It will look at the context in which the 1970 UNESCO Convention was convened, the conflicting theories on the concept of “cultural property” underlying the drafting, and the resulting bias against internationalist nations within the 1970 UNESCO Convention. These factors make the system ultimately unsustainable.
Part III traces the development of the current situation by exploring the various interpretations countries have had of the UNESCO decree to “carry out the necessary concrete measures” to protect the state’s own “cultural patrimony.” It will focus on the three main types of ownership laws that have been enacted by various countries, and will also reflect on the success that each such method has shown.
Part IV will, conversely, look at those steps taken by market countries, particularly the United States, to “prevent museums and similar institutions . . .from acquiring cultural property,” and “to recover and return” any such property. This part will highlight not only laws specifically enacted in reaction to UNESCO, but also laws that have substituted for such laws in cases of cultural property “theft.” It will then analyze the effects that various rulings have had on the cultural patrimony arena, and forecast the dangers likely to result from such holdings.
Part V suggests alternate possibilities that would more evenly balance the responsibility between those nations that wish to protect their own cultural heritage, and those that wish to help in this quest without sacrificing their own belief systems and citizens’ rights.
Questions or Comments? Email me at derek.fincham@gmail.com

New Heritage Legislation in the UK?

Jaspar Copping has a very interesting, though perhaps misleading, article in the Telegraph on Saturday detailing potential new heritage legislation in the UK. He writes initially that UK museums are prevented by law from giving works of art back to the families that once owned them. That is true, but that does not mean these families are denied compensation (which he points out further down in the piece). The Spoliation Advisory Panel has the power to award compensation to the claimant.

It seems there is a campaign by a Labour MP, Andrew Dinsmore:

“The owner of an artwork identified as stolen by the Nazis ought to have the right to decide whether they wish for the artwork to be returned,” he said.

“Some people may be happy for work to stay in public collections, but they should have the option. At the moment, they are not given that choice.

“No one knows how many artworks this will relate to but we shouldn’t think that just because the war was 60 years ago that this has all finished.”

Under the current legislation, all national museums and galleries are prevented from disposing of any of their works. They can only offer compensation to the owners, although private museums are able to return artworks and artefacts.

I’m not sure if this is an essential change. I think the UK policy which avoids costly litigation is a useful model. In the US, where nazi-era restitutions suits are the most common, claimants often get title to the disputed works. However in nearly all cases they sell the works anyway to satisfy the enormous legal fees often required to bring these successful claims.

Then in a response, the Department of Culture Media and Sport said, “The Government are committed to introducing legislation as soon as possible to allow all national museums, that are currently prevented from doing so by the acts of parliament under which they are founded, to return works of art spoliated during the Nazi era.” It seems this legislation will be a component of the prospective Heritage Protection Bill.

One thing to watch closely will be how the legislation may permit institutions to return the work to claimants, a potential move which may signal a shift in the obstacles the British Museum may have in electing to return antiquities to their nation of origin. The debate over that question will likely feature in the consideration, as the Parthenon Marbles always seem to be overshadowing UK heritage policy.

Questions or Comments? Email me at derek.fincham@gmail.com

Antiquities as Natural Resources

Andrew P. Morriss (University of Illinois College of Law) has posted Politics & Property in Natural Resources on SSRN. Assuming Natural Resources are analogous to antiquities, he makes some interesting arguments. Here is the abstract:

Modern discussions of natural resources focus on increasing public control over extractive industries proposing measures that range from increasing the public’s share of the gain via royalties and taxes to regulating extractive activities to prevent environmental problems to outright expropriation of private investments. This Article argues that such efforts are counterproductive because the fundamental economic problem of natural resources is producing the knowledge necessary to locate and extract resource deposits. The public benefit comes from enabling the use of the resources and the increased economic activity their discovery produces rather than from royalties or expropriation. The key question in designing natural resource laws is thus their effects on the incentive to discover and manage resources. Private property rights in natural resources are the best way to provide such incentives. Fortunately, the combination of property rights and tort law principles (trespass and nuisance) enables property rights to solve environmental problems related to natural resource extraction as well.

Questions or Comments? Email me at derek.fincham@gmail.com

A History of Spoliation

Wayne Sandholtz has written a historical account of plunder and the norms which aim to prevent it over the last 200 years, Prohibiting Plunder. I have not had a chance to read it, but it looks promising. Here’s the description:

For much of history, the rules of war decreed that “to the victor go the spoils.” The winners in warfare routinely seized for themselves the artistic and cultural treasures of the defeated; plunder constituted a marker of triumph. By the twentieth century, international norms declared the opposite, that cultural monuments should be shielded from destruction or seizure. Prohibiting Plunder traces and explains the emergence of international rules against wartime looting of cultural treasures, and explores how anti-plunder norms have developed over the past 200 years. The book covers highly topical events including the looting of thousands of antiquities from the Iraqi National Museum in Baghdad, and the return of “Holocaust Art” by prominent museums, including the highly publicized return of five Klimt paintings from the Austrian Gallery to a Holocaust survivor.

The historical narrative includes first-hand reports, official documents, and archival records. Equally important, the book uncovers the debates and negotiations that produced increasingly clear and well-defined anti-plunder norms. The historical accounts in Prohibiting Plunder serve as confirming examples of an important dynamic of international norm change. Rules evolve in cycles; in each cycle, specific actions trigger arguments about the meaning and application of rules, and those arguments in turn modify the rules. International norms evolve through a succession of such cycles, each one drawing on previous developments and each one reshaping the normative context for subsequent actions and disputes. Prohibiting Plunder shows how historical episodes interlinked to produce modern, treaty-based rules against wartime plunder of cultural treasures.

Ingo Venzke has a review in 19 European Journal of International Law 866 (2008).

Questions or Comments? Email me at derek.fincham@gmail.com

Bonham’s Withdraws Antiquities From Today’s Auction

ANSA is reporting that Bonhams London has withdrawn 10 antiquities worth an estimated 250,000 Euros from a scheduled sale today after concerns were raised by the Italian government, seemingly at the last minute. There are indications these objects were illegally excavated or illegally exported from Italy, perhaps in the 1970s. It seems likely that it was Francesco Rutelli’s “urgent” question to his successor, Sandro Bondi about this sale perhaps forced Bondi to act, particularly given the 11th hour nature of the actions. The Chairman of the auction house, Robert Brooks said in a statement:

We are always happy to cooperate with any action that limits the chance of items being sold that should not be sold. Having said that we would welcome a greater openness on the part of the Italian Government, which would allow us far more advance warning and information about concerns they have. Responsible institutions need to work together and not to keep information hidden, for whatever reason, until the very last minute.

Questions or Comments? Email me at derek.fincham@gmail.com