Derek Fincham

Lazopoulos Friedman on Isis’s “get rich quick scheme”

The Temple of Baal Shamin, in happier times

Are Syrian Artifacts protected under the NSPA?Lindsey Lazopoulos Friedman has written an article discussing the possibility of using the McClain Doctrine and the NSPA for objects illegally removed from Syria.

From the abstract:

This article explores how an individual importing a looted artifact may face prosecution and liability in the Eleventh Judicial Circuit. The article begins with a background section that provides additional information about the history of ISIS and ISIS’s current plundering scheme. The background section also provides the legal framework and historical treatment of looted art and stolen artifacts. In particular, this section explains the Eleventh Circuit doctrine on this issue, the McClain doctrine. The McClain doctrine applies the National Stolen Property Act (“NSPA”) to foreign found-in-the-ground claims. Supporters of the doctrine argue that it helps “prevent looting internationally without placing an unacceptable burden on the cultural objects trade.” The analysis section hypothesizes that a looter of a Syrian artifact would not be prosecuted in the Eleventh Circuit under the McClain doctrine. The analysis section also includes possible alternative means for prosecuting a trafficker of Syrian cultural property.

Lindsey Lazopoulos Friedman, ISIS’s Get Rich Quick Scheme: Sell the World’s Cultural Heritage on the Black Market—Purchasers of ISIS-Looted Syrian Artifacts Are Not Criminally Liable Under the NSPA and the McClain Doctrine in the Eleventh Circuit, 70 University of Miami Law Review 1068 (2016).

A strong connection between looting and organized crime in Greece

resize541x360_e6e652d50e5d6f86c310d3ded7074c8d_3d34e303458225864f2879e513e91934960x638_quality99_o_1aubbcj4h69h1cci1ms06c41c27t

Police in Greece have announced the arrest of 26 individuals in connection with an antiquities looting network that had been operating for 10 years. The announcement showed the recovery of more than 2,000 objects, including coins, jewelry, and other objects. Two individuals were arrested last Sunday at the Greek-Bulgarian border with an astounding 1,000 coins and small portable objects hidden in the bumper of their car.

resize541x360_e6e652d50e5d6f86c310d3ded7074c8d_24097b7cf155817b30c5d499c7cf9084960x638_quality99_o_1aubbcj4h197t19e7b791ej31j1lu

Police also confiscated metal detectors, guns, currency, and materials used to counterfeit currency.

resize541x360_e6e652d50e5d6f86c310d3ded7074c8d_8e0515789a586a44c129f311232c735d960x638_quality99_o_1aubbcj4h1jp43v3v3t10ee1s5rs

The arrests on Sunday were the culmination of a 14-month investigation which may have involved as many as 50 people.

Nicholas Paphitis, Greek police break up gang that excavated, sold antiquities, US News & World Report (Oct. 5, 2016), http://www.usnews.com/news/world/articles/2016-10-05/greek-police-break-gang-that-sold-thousands-of-antiquities.

Helen Stoilas, Police in Greece arrest 26 in bust of alleged antiquities smuggling ring, http://theartnewspaper.com/news/archeology/police-in-greece-arrest-26-in-bust-of-alleged-antiquities-smuggling-ring/.

The Cultural Heritage Moot Court Competition Registration

Alexander Calder's 'Flamingo' in front of the Dirkson Federal building — Alexander Calder’s ‘Flamingo’ in front of the Dirkson Federal building

I’ve received notice that the terrific Cultural Heritage Moot Court competition is gearing up again. Here are the details from DePaul and the LCCHP:

DePaul University College of Law and the Lawyers’ Committee for Cultural Heritage Preservation are pleased to announce that registration for the Eighth Annual Cultural Heritage Law Moot Court Competition is open! The Oral Arguments for the 2017 Competition will be held on February 24^th and 25^th, 2017 at the Everett M. Dirksen United States Courthouse, home of the United States Court of Appeals for the Seventh Circuit, in Chicago, Illinois.

The 2017 Competition will focus on the Bald and Golden Eagle Protection Act (BGEPA), which prohibits the taking of bald and golden eagles and eagle parts, including feathers. The competition problem will address a challenge to BGEPA brought by a Native American tribe member, including a challenge under the Religious Freedom Restoration Act.

The competition is open to 26 two- and three-member student teams from ABA-accredited or provisionally accredited law schools. Schools may register up to two teams at a rate of $450.00 per team. The registration deadline is November 17, 2016. The problem will be released on November 18, 2016. Visit the competition website at go.depaul.edu/chmoot for additional details or to register a team. Contact the Competition Board at chmoot@gmail.com with any questions.

Attorneys interested in serving as judges or brief graders should contact chmootjudges@gmail.com. CLE credit is available for attorneys who participate as judges.

Eakin on the destruction at Palmyra

Louis Vignes, Temple of Baalshamin, Palmyra, Syria (1864)

In an essay in the most recent issue of the New York Review of Books, Hugh Eakin criticizes the actions of UNESCO, the United States, and Russia in the wake of the retaking of Palmyra from the Islamic State.

For all the pageantry, the retaking of Palmyra has served as a powerful reminder of how detached from reality the international campaign to save Syria’s endangered cultural heritage has been. Chastened by the damage wrought in recent wars in Bosnia, Afghanistan, Iraq, and Mali, Western leaders, cultural officials, UNESCO, and even the UN Security Council have for several years now devoted unprecedented attention to the threats to sites in Syria by ISIS and other extremist groups. Millions of dollars have been spent to document, with the best satellite technology available and other resources, the current condition of archaeological monuments in the areas of conflict; legal scholars have called for war crimes prosecutions against those who intentionally damage historic sites and monuments; while top officials, including Secretary of State John Kerry and French President François Hollande, have long warned of the cost of Western inaction. Above all, a continuous series of initiatives have been aimed at cracking down on the international trade in looted Syrian antiquities, often described as a major revenue source for ISIS.

He argues instead that the best progress will likely come as a result of action done by local populations: Continue reading “Eakin on the destruction at Palmyra”

“loot” at Texas A&M Law on September 9

LOOT-web-banner2-crop

Next Friday Texas A&M Law school is sponsoring a symposium on looted art, cultural property and repatriation. They’ve announced an impressive lineup of speakers:

Don Burris, Senior Founding Partner, Burris & Schoenberg, LLP
Megan Carpenter, Co-Director, Texas A&M Center for Law and Intellectual Law (CLIP)
Monica Dugot, Senior Vice President, International Director of Restitution, Christie’s
Simon Frankel, Chair of Intellectual Property, Partner, Covington & Burling LLP
Deborah Gerhardt, Associate Professor of Law, University of North Carolina
Jennifer Kreder, Professor of Law, Northern Kentucky University
Marilyn Phelan, Paul Whitfield Horn Professor of Law Emeritus and former Professor of Museum Science, Texas Tech University
Lucille Roussin, Board of Directors, The Lawyers’ Committee for Cultural Heritage Preservation, and Director, Holocaust Restitution Claims Externship at Benjamin N. Cardozo School of Law

For the details, visit the event page here.

The Sad State of Moral Rights in the United States

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.

Federal Judge To Rule On Whether Peter Doig Painted Desert Landscape, NPR.org, http://www.npr.org/2016/08/23/491024818/federal-judge-to-rule-on-whether-peter-doig-painted-desert-landscape.

Professor Song on Restitution after Illegal Export

Uigwe for Crown Prince Hyojang's Investiture Ceremony Version for Kings, 1725 The Collection of the Bibliotheque nationale de France returned 297 volumes to Korea in 2011 — Uigwe for Crown Prince Hyojang’s Investiture Ceremony Version for Kings, 1725
The Collection of the Bibliotheque nationale de France returned 297 volumes to Korea in 2011

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.

Comment on Pragmatic Reform in the Antiquities Trade

The 900-year-old bronze Dancing Shiva (Shiva Nataraja) returned by the National Gallery of Australia to India in 2014

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.

Cornelius Banta Jr., Finding Common Ground in the Antiquities Trade Debate to Promote Pragmatic Reforms, http://www.houstonlawreview.org/2016/05/06/53-4-finding-common-ground-in-the-antiquities-trade-debate-to-promote-pragmatic-reforms/.

We Visited Morgantina and Aidone, they were great

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.

The baths at Morgantina. Notice the painting on the walls

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

A detail from one of the 16 pieces of the "Morgantina Silver" — A detail from one of the 16 pieces of the “Morgantina Silver”

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.

Continue reading “We Visited Morgantina and Aidone, they were great”

Judges Just Don’t Like VARA and Applied art

The Burning Man installation, "La Contessa" — The Burning Man installation, “La Contessa”

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 16^th 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.”

Daniel Grant, The More Art Changes, the More Urgent an Update to the Visual Artists’ Rights Act Is, Observer (Aug. 3, 2016), http://observer.com/2016/08/the-more-art-changes-the-more-urgent-an-update-to-the-visual-rights-act-becomes/.

CHEFFINS v. Stewart, Court of Appeals, 9th Circuit 2016 – Google Scholar, https://scholar.google.com/scholar_case?case=7731083587113005243&q=la+contessa+visual+artists+rights+act&hl=en&as_sdt=6,44.

CHEFFINS v. Stewart, Dist. Court, D. Nevada 2011 – Google Scholar, https://scholar.google.com/scholar_case?case=10972864568398950890&q=la+contessa+visual+artists+rights+act&hl=en&as_sdt=6,44.