Derek Fincham

Note on Cultural Heritage and New Media

Artist Morehshin Allahyari uses 3-D scanning to recreate artifacts which have been damaged or destroyed, like this Assyrian Lamassu.

Ann Marie Sullivan a third year law student at John Marshall Law School has written an interesting piece thinking about the intersections of cultural heritage and new media. From the abstract:

The application of new media to cultural heritage is consistent with the policy objectives that the copyright law of the United States stands to promote. However, the practical application of the law currently hinders these objectives, often stifling the creation and dissemination of new media works of cultural heritage. In this context, copyright law presents a problem and not a solution, a barrier and not a protection, dissuasion of creation and not encouragement and incentive. Defining the legal scope and reach of digital property and new media within the realm of art and cultural heritage law is critical for the benefit of creators, consumers, cultures, and society as a whole. Unless a modification is made, or a solution adopted, the problems presented by legal uncertainties and inadequacies will continue to operate in a manner contrary to the main purpose of copyright, “To promote the Progress of Science and useful Arts.”

Ann Marie Sullivan, Cultural Heritage & New Media: A Future for the Past, 15 J. Marshall Rev. Intell. Prop. L. (2016).

Anderson on the looming underwater heritage struggle

The "Philosopher of Anthykera", a 3rd Century BCE bronze head discovered near the Anthykera shipwreck. — The “Philosopher of Anthykera”, a 3rd Century BCE bronze head discovered near the Anthykera shipwreck.

Max Anderson has written an insightful op-ed highlighting the coming tension between commerce and archaeological examination for underwater sites and wrecks:

The technology needed for deep-sea exploration is advancing rapidly. What once seemed like science fiction will soon become a reality, with exploratory probes not only transmitting images but operating retrieval devices equipped to reveal artifacts and move them to the surface. Archaeologists have also begun using DNA analysis on wrecks in the Mediterranean, yielding information ranging from what onboard bowls once contained to the home port of the sunken ship.

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Orhan Pamuk calls for a different kind of museum

Orhan Pamuk was a keynote speaker at the International Council of Museums conference in Milan this week. In his address to the conference he called for a different kind of museum. He offered a vision for what museums could be if they put aside their universal mission.

The Turkish author of the terrific The Museum of Innocence (Vintage International), set the literary foundation for a very different kind of museum. The museum occupies a house in the Çukurcuma neighborhood of Istanbul, near the Pera Museum. Each display cabinet is full of objects from time depicted in the novel, which echo the neighborhood’s antique shops. The museum highlights the lives of the characters depicted in his novel, and is a powerful argument that museums which only focus on grand universal cultures and themes have missed the mark:

All museums are genuine treasures of humankind, but I am against these precious and monumental institutions being used as models for the institutions to come. Museums should explore and uncover the population as a whole and the humanity of the new and modern man that emerges from the growing economies of non-Western countries. I address this manifesto in particular to Asian museums that are experiencing an unprecedented period of growth.

The aim of the great state-sponsored museums is to represent a state and that is neither a good nor innocent aim. Here are my proposals for a new museum, some themes on which we must reflect now more than ever.

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Italy reached an agreement with the Glyptotek

Contents of a tomb from the Sabine Hills, north of Rome

Italy and the Ny Carlsberg Glyptotek art museum in Copenhagen on Tuesday announced an agreement for the return of antiquities taken illegally from Italy.

Objects repatriated include the contents of a tomb from near Fara north of Rome. Those objects had allegedly passed through Robert Hecht, a familiar name to those who follow illicit antiquities. Hecht passed away in 2012, and had been the subject of a criminal trial in Rome in 2005, allegedly for dealing in illicit antiquities.

Robert Hecht described buying the Etruscan chariot from Giacomo Medici:

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Italy Squandered €150m in Culture Funding

The Art Newspaper reported last week after examining EU documents, that Italy has been stripped of €151m in culture funding next year because regions have failed to spend funds allocated. This includes the loss of funding for Aidone, which is the village near the ancient site of Morgantina:

The EU rejected a request for €2.4m from the Archaeological Museum of Aidone to renovate its galleries because of incomplete documentation and the lack of an “economic framework”. The museum was due to welcome back the Head of Hades (400-300BC), a Hellenistic terracotta fragment that was restored to Sicily by the J. Paul Getty Museum in Los Angeles in January. But the sculpture, thought to have been illegally excavated from a sanctuary at Morgantina in the 1970s, remains in limbo in Palermo, partly because the Aidone museum has not prepared a suitable display for it.

This is a really sad development. It seems now very difficult to square the argument that works of art must be returned when the requesting nation cannot properly manage funding that is available. The step here needs to be capacity building for these smaller museums and regions to properly instruct the employees the expectations of grant requests and the expectations.

There may be another side to this story. The English-language reporting of happenings in Italy often have a Northern-European bias. But its hard to put a positive spin on such wasted resources.

We’ll hopefully be in Aidone and Morgantina in a week’s time—we are able to sneak away from my cultural heritage law course in Valletta, Malta. I hope to have some images and thoughts on the site and museum in Aidone soon.

Tina Lepri & Hannah McGivern, Italy squanders €150m in EU grants, http://theartnewspaper.com/news/conservation/italy-squanders-hundreds-of-millions-in-eu-grants/.

60 Minutes Reports on the Knoedler art fraud scandal

This forged work forgot to spell Jackson Pollock's last name with a 'c' — This forged work forgot to spell Jackson Pollock’s last name with a ‘c’

In case you haven’t seen it yet, 60 minutes examined the rapid fall of the Knoedler Art Gallery in 2011. The piece does a thorough job of giving background on the Knoedler Gallery, the role of the Cataloge Raisonne, and scientific testing.

I found particularly interesting this exchange between Anderson Cooper, and Domenico de Sole, one of the collectors, and the chairman of Sotheby’s which underscores the role of reputation and trust in the art market:

Anderson Cooper: Do you feel you did enough due diligence as a buyer?

Domenico de Sole: My due diligence was to go to the best, most prominent gallery in the United States dealing with a person with a stellar reputation, and pay a price that was reasonable, it was fair.

Domenico de Sole was the person who bought that $8 million fake Mark Rothko and told us he believes Knoedler Gallery and its President Ann Freedman either knew or should have known that this lucrative collection could not possibly be genuine. Greg Clarick is his attorney.

Greg Clarick: The red flags began with the notion that Glafira Rosales, who was an unknown person to Knoedler, who Knoedler never investigated, came in and she started delivering what turned out to be an endless stream of never-before-seen paintings was enough to raise a huge red flag.

Anderson Cooper: Strangers don’t walk off the street into a gallery saying that they have access to a never-before-seen collection of some of the greatest masterpieces

Greg Clarick: That’s right. Second, the works had no provenance.

Anderson Cooper: No chain, no history?

Greg Clarick: They had no history. They had no documents.

Anderson Cooper: So there was no evidence these paintings had ever been painted by the artists?

Greg Clarick: That’s correct.

Not only that, there were no bills of sale, no insurance records, no shipping documents, and no museum exhibitions for any of the paintings. Greg Clarick told us the gallery had motivation to overlook the paintings’ shortcomings.

Greg Clarick: Over the period of this fraud, Knoedler sold these paintings for about $67 million. Knoedler made over $40 million in profit from selling these paintings. And at the same time, Knoedler made essentially no money at all from selling other paintings.

$80 Million Con, http://www.cbsnews.com/news/60-minutes-80-million-art-fraud-anderson-cooper/.

Work in Progress on Authenticating Art

F_FOR_FAKE_COVER

I’ve posted a draft of a forthcoming work on art authentication on SSRN. The piece is scheduled for publication in the Mississippi Law Journal in the fall. I probably enjoyed writing this piece more than I should have. Our appetite for stories about art forgery and art authentication are indeed boundless, and in researching the piece, they’ve been boundless for a long time. Criminologists were studying art forgery as early as the 1960s. From the abstract:

The determination of a work of art as authentic (or not) makes a tremendous difference in the value of a work of art. Owing to the millions of dollars which can be added, or subtracted, to a work of art when an authentication opinion is made, lawsuits will often be the last resort of those unhappy with an authentication. Determining with absolute certainty, the authenticity of a work of art takes the combined expertise of art historians, scientists, and art connoisseurs. Previous examinations of the problem of art fraud and counterfeit art have focused on criminal offenses, pointed to market failures, and even argued that we should not care too much about fake art at all if nobody notices. These examinations all fail to give sufficient weight to the sheer difficulty of the task. It takes tremendous expertise required to correctly determine the artist who created a work of art, and the period in which the object was fashioned. The pages which follow argue art authentication and the experts who make them have gotten a bad reputation. Instead, their analysis should be properly valued as expert testimony in court in art authentication disputes, and should be protected from vexatious litigation.

Derek Fincham, Authenticating Art by Valuing Art Experts, SSRN Scholarly Paper ID 2770705 (Social Science Research Network), Apr. 26, 2016.

Greece reported to be seeking International Justice for the Parthenon

The Ilissos sculpture, on display in London, originally adorned the Parthenon

With 2016 marking the 200th anniversary of the acquisition of the Parthenon sculptures by Parliament from Lord Elgin, there will likely be a lot of attention paid to the long-running dispute. The Guardian reported yesterday on a legal summary authored by Geoffrey Robertson, Norman Palmer, and Amal Clooney. The possibility of bringing a claim before the ICJ, raising public support, and continuing to generate goodwill towards reunification of the monument in Athens are the major themes of the 141 page summary, available via the Guardian. But the major focus of the claim now seems to be a call for justice for the sculptures, an argument I’ve made as well building on the well-established principle of environmental justice.

The reporting by Helena Smith focuses on the work by advocates in Athens:

As campaigners prepare to mark the 200th anniversary of the antiquities’ “captivity” in London, Athens is working at forging alliances that would further empower its longstanding battle to retrieve the sculptures.

“We are trying to develop alliances which we hope would eventually lead to an international body like the United Nations to come with us against the British Museum,” the country’s culture minister, Aristides Baltas, revealed in an interview.

“If the UN represents all nations of the world and all nations of the world say ‘the marbles should be returned’ then we’ll go to court because the British Museum would be against humanity,” he said. “We do not regard the Parthenon as exclusively Greek but rather as a heritage of humanity.”

But the politician admitted there was always the risk of courts issuing a negative verdict that would wreck Athens’ chances of having the artworks reunited with the magnificent monument they once adorned.

“Courts do not by definition regard [any] issue at the level of history or morality or humanity-at-large. They look at the laws,” said Baltas, an academic and philosopher who played a pivotal role in founding Syriza, Greece’s governing leftist party. “As there are no hard and fast rules regarding the issue of returning treasures taken away from various countries, there is no indisputable legal basis.”

Helena Smith, Greece Looks to International Justice to Regain Parthenon Marbles from UK, The Guardian, May 8, 2016, http://www.theguardian.com/artanddesign/2016/may/08/greece-international-justice-regain-parthenon-marbles-uk.

Derek Fincham, The Parthenon Sculptures and Cultural Justice, 23 Fordham Intellectual Property, Media & Entertainment Law Journal 943 (2013).

Christopher Hitchens, A Home for the Marbles, The New York Times, Jun. 19, 2009, http://www.nytimes.com/2009/06/19/opinion/19iht-edhitchens.html.

Michael Kimmelman, Elgin Marble Argument in a New Light, The New York Times, Jun. 24, 2009, http://www.nytimes.com/2009/06/24/arts/design/24abroad.html.

John Henry Merryman, Whither the Elgin Marbles, in Imperialism, art and restitution 98 (Cambridge Univ Pr 2006).

David Rudenstine, Lord Elgin and the Ottomans: The Question of Permission, 23 Cardozo L. Rev. 449 (2001).

Younging on Traditional Knowledge and Intellectual Property

A Caribbean Steel drum, an instrument made using traditional knowledge

Dr. Gregory Younging, at the University of British Columbia, has an interesting essay in the Pennsylvania Journal of International Law titled “Traditional Knowledge Exists; Intellectual Property is Invented or Created“. From the introduction:

Prior to contact with Europeans between 300 and 600 years ago, Traditional Knowledge (TK) systems had developed and flourished over thousands of years in various parts of the world. These knowledge systems are rich and varied, ranging from soil and plant taxonomy, cultural and genetic information, animal husbandry, medicine and pharmacology, ecology, zoology, music, arts, architecture, social welfare, governance, conflict management, and many others. Most of these TK systems continue to exist and evolve; at the same time, they have been appropriated and subjected to Western legal regimes. Indigenous cultural expressions are manifestations of TK that are passed on by Indigenous ancestors through successive generations. They are, in turn, inherited by current, to be passed on to future, generations.

Gregory Younging, Traditional Knowledge Exists; Intellectual Property Is Invented or Created, 36 U. Pa. J. Int’l L. 1077 (2015).

Some thoughts on Remote Houston

IMG_20160413_172149955_HDR — Downtown Houston, part of our Remote “Tour”

What would happen if some thoughtful people added some real art to the idea of the audio guide. What if you ditch the whole name. What if you took the best parts of Radiohead’s OK Computer, flashmobs, our fears of mortality, our reliance of technology, confronted 50 people with the idea of a city, and took them through the parts of a city we often ignore?

You’d end up I think with something like “Remote Houston”. An experience put together by the arts collective Rimini Protokoll based in Berlin. The idea is adaptable to different cities, and each tour is modified to account for the quirks of different cities. “Remote Houston” begins in Evergreen Cemetery, and ends in the heart of Houston’s downtown.

What you get out of each tour will be personal and different. I was struck by how the tour was tied so closely to the idea of life and death and the passage of time. All concepts that we teach in law school, with are given arcane names with course titles like “Trusts and Estates” and cover concepts like “dead hand control” and the like. These doctrines are integral to our courses and doctrine, but never really made tangible. At least not in this way.

As Molly Glentzer, an art critic for the Houston Chronicle discussed during our recent tour together pointed out in her review:

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