I’m sad to relay the news that John Henry Merryman passed away on August 3. He was 95. No single individual did more to establish the field of art law, and I’m not sure any work on art or cultural heritage law can be written without accounting for his groundbreaking scholarship. He will certainly be missed, but he left behind a wonderful body of scholarship.
Merryman introduced the idea for the new course “Law, Ethics and the Visual Arts,” in 1970 to a somewhat skeptical law faculty. Merryman taught the course in 1971, the first of its kind. Elsen collaborated and co-taught with Merryman — the two delving into questions of tax, copyright, contracts, regulation, cultural property, ethics and more — creating a syllabus for the nascent field of study and publishing the groundbreaking book Law, Ethics and the Visual Arts, now in its fourth edition.
Before that, Merryman was a comparative law scholar of international standing.
“His great book on The Civil Law Tradition caused a fundamental rethinking of comparative law and subsequent scholarship — and courses based on that scholarship — were powerfully strengthened as a result,” said Thomas Ehrlich, dean of Stanford Law School from 1971 until 1976. “John’s many works relating to art and cultural property, as well as his multiple courses in that arena, were no less groundbreaking. He deployed his strengths in comparative law to produce penetrating analyses on the ownership of antiquities, as well as on art and the law more generally. Students from across the Stanford campus and beyond flocked to John’s classes. John was one-of-a-kind, as colleague and as dear friend.”
“Head of a Young Woman” by Pablo Picasso was seized by French customs officials on the island of Corsica
French customs officials seized this work by Pablo Picasso from a yacht off the coast of Corsica. It was reportedly about to be flown to Switzerland on a private jet. Henry Samuel reported for the Telegraph that:
The work Picasso painted in 1906 and valued at “more than €25 million” is the property of Spanish billionaire Jaime Botin, the largest shareholder of Bankinter and whose great grandfather founded Spain’s largest bank, Santander. Mr Botin reportedly bought the painting in 1977 at the Marlborough Fine Art Fair in London for his personal collection.
He has a stake in the company that owns the yacht where the painting was found but “was not on board at the time”.
The seizure is the latest chapter in a three-year battle by the 79-year-old billionaire, Spain’s 15th richest man according to Forbes, to take the Picasso out of Spain and auction it off in London.
Mount Vernon, George Washington’s estate, was preserved thanks in part to conservation easements
Jessica Owley of SUNY Buffalo has posted a piece examining the use of conservation easements in the context of Cultural Heritage Protection. From the abstract:
Conservation easements are quickly becoming a favored tool for protection of cultural heritage. Perpetual encumbrances on the use of private land, most cultural heritage conservation easements are held by private conservation organizations known as land trusts. With minimal public oversight, land trusts decide which lands to protect in perpetuity and what the rules regarding use of those lands should be. A variety of concerns arise when protection of cultural heritage resides with private organizations. First, as governments abdicate cultural heritage protection to private organizations, the public’s role in site protection shifts. When private organizations and landowners negotiate which properties to protect and how to protect them, some culturally important sites go unprotected. Privatizing protection of cultural sites may reduce the ability of some members of the public to become involved in the decision of what to protect as well as hamper public oversight and enforcement of land-use restrictions. It may even reduce overall protection as public entities remove themselves from the cultural heritage protection game, ceding the territory to land trusts. Second, private perpetual restrictions problematize the balance between intergenerational rights and present responsibilities. Reverence of past cultural events and properties may hamper future growth as users of conservation easements restrict properties in perpetuity without enabling communities to revisit or modify the restrictions. Third, conservation easements may be protecting sites that were not in danger of exploitation. In such cases, conservation easements subsidize landowners with questionable public benefits. Finally, using conservation easements to protect sacred sites commoditizes cultural heritage. Paying people to protect cultural heritage could degrade cultural heritage or civic responsibility.
Jessica Owley, Cultural Heritage Conservation Easements: The Problem of Using Property Law Tools for Heritage Protection (2015), http://papers.ssrn.com/abstract=2243129.
“A human life doesn’t have much value without culture to go with it” says Markus Hilgert, director of the Pergamon Museum. He’s interviewed in a CNN profile of Heritage for Peace, a group working to document the destruction taking place there. The group walks a delicate line, trying not to take a stand in the dispute. The group has limited funding and works with a number of volunteers with founder Isber Sabrine:
A 29-year-old archaeologist from a village near the Mediterranean coast in western Syria, Sabrine is using modern technology to trace and document the looting and destruction of his country’s ancient heritage.
Working from Berlin, he runs a network in Syria of around 150 volunteers — archaeologists, architects, students and simply concerned citizens — who often pose as antiquities buyers to see what has been stolen in the course of Syria’s now more than four-year uprising. He communicates with them via Skype when the Internet in Syria is working, which isn’t often.
“They go to the locals and they say look, we are interested. They cannot buy, but at least they make photos and they send us photos,” says Sabrine. “Like this we have a list of looted materials from Syria.”
That list is shared with law enforcement, auction houses and collectors. CNN asked if we could publish some of those photographs — we saw statues, mosaics and coins — but Sabrine declined for fear the photos might expose the volunteers.
After years of chaos, the market for stolen antiquities is flooded, and dealers are holding back some of their most valuable items. “We know that the most important objects don’t go to market now,” says Sabrine. “The big dealers are waiting, maybe two, three or four years, and then when the opportunity is right, they will sell.”
A detail from a painting which may be by Sigmar Polke, via ABC News
A thrift store called The Guild Shop in Houston may have sold an original work by Sigmar Polke in May. It had been sitting in the shop for 100 days until Ray Riley bought the work for $90.
Christa Roodt, of the University of Glasgow and the University of South Africa, and Bernadine Benson, of the University of South Africa have an article in the June issue of the South Africa Crime Quarterly examining databases for stolen art with a particular emphasis on the South African position post-Apartheid. They make a good common-sense argument in favor of a centralised database for South Africa which would assist both the market and law enforcement. Here’s the abstract:
Addressing the illicit trade in stolen works of art and other heritage items is notoriously difficult. Before thefts of heritage items can be recorded, the object in question must be identified as having special significance. The investigation of the circumstances in which such an object was acquired and the enforcement of legal and ethical standards of acquisition become unduly complicated in the absence of a comprehensive national inventory of museum holdings and of a database of stolen art and cultural objects. This article considers the development of inventories and databases in South Africa and elsewhere. We argue that cross-sectoral cooperation in sharing databases needs to improve significantly in order to boost compliance with due diligence standards. To help restore the credibility of the trade in art and cultural objects, the South African Heritage Resources Information System site must be endorsed as the centralised database for heritage crime. This would provide ready access to databases, helping art market participants, law enforcement officers and customs officials in the investigation of stolen art works.
In remarks marking the opening of the 39th session of the World Heritage Committee in Bonn, Germany yesterday, UNESCO Director-General Irina Bokova asked for help from the international community:
Heritage is under attack today. In Syria, Iraq, Libya and Yemen, we see the brutal and deliberate destruction of heritage on an unprecedented scale. This is a call for action . . . Our response to ignorance and criminal stupidity, must also have a cultural dimension: knowledge, the sharing of Islam’s millennial learning and wisdom, sharing the message of Palmyra, the ‘Venice of the Sands’, that is like a bridge between the legacies of ancient Greece and Rome, the Persian Empire and the Arab culture from ancient times to the present. . .
That is a wonderful sentiment, and one I endorse, but note also that there are not calls for much in the way of concrete action. And that’s because short of military intervention there really is not much that can be done to dissuade those bent on erasing heritage. In a statement today the UNESCO World Heritage Committee stated its deep concern about the situation in Palmyra:
Intentional attacks against buildings dedicated to religion, education, art, science or charitable purposes and historic monuments may amount to war crimes . . .
So it may amount to war crimes, yet the International Criminal Court has no good opening to bring charges even if it wanted to. That’s because neither Syria nor Iraq has signed on to the ICC convention, and the individuals who commit this destruction are not high-profile enough it seems to warrant an ICC investigation and prosecution anyway. And so the end result is there is an accountability gap for this destruction.
Marina Lostal arrived at the disappointing conclusion that prosecution of ISIS iconoclasts is difficult under current law:
[T]he legal bases for prosecuting individuals for violations of the 1954 Hague Convention and the World Heritage Convention are largely absent. Those responsible may be prosecuted under the Syrian Antiquities Law, a law that was presumably approved independently of those conventions and hence present a number of caveats explained above. If the Chautauqua Blueprint is successful, it would turn a blind eye to three major causes of damage (viz. looting, use for military purposes, attacks against sites that constitute military objectives) allowing those behind this vicious circle of violations to “walk away.” This is especially frustrating if one takes into consideration that the driving force behind the adoption of conventional laws for the protection of cultural property has mostly been motivated by a desire to hold individuals accountable. The accountability gap shown in the case of Syria should serve those involved in the implementation of cultural heritage laws (e.g., UNESCO, the World Heritage Committee at the international level) as a warning that the 2003 UNESCO Declaration, or any other instrument before that, did not manage to have consequences for Bamiyan or beyond.
So if there is one thing that can be done, it may be to consider reforms to the current laws to hold those who destroy heritage individually accountable. But that change would have little impact on the current conflict in Syria.
United Nations News Service Section, UN News – As World Heritage Committee opens session, UNESCO urges protection of sites targeted for destruction, UN News Service Section (Jun. 28, 2015), http://www.un.org/apps/news/story.asp?NewsID=51279.
The UK seems poised to ratify the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. The Convention responded to the horrible theft and destruction which took place during World War II. The UK Government has at various points in the past indicated ratification of the Convention was imminent, including in 2004, as pointed out by the IAL blog. It was even an original signatory to the agreement when it was adopted. But ratification has been slow, even leading Colin Renfrew to accuse the UK of “dithering” over ratification. It seems that dithering may now be coming to an end. The new culture secretary, John Whittingdale, has indicated he will introduce legislation to formally bring the UK in line with the 115 other countries which have ratified the Convention. The UK has claimed to have been in compliance with the Convention anyway, so the practical changes brought about by the UK ratification seems to be slight. But the symbolic effect is considerable.
In his statement Whittingdale said:
While the UK’s priority will continue to be the human cost of these horrific conflicts, the UK must also do what we can to prevent any further cultural destruction.The loss of a country’s heritage threatens its very identity. The knowledge and expertise of the experts in our cultural institutions makes us uniquely qualified to help. I believe that the UK therefore has a vital responsibility to support cultural protection overseas.
A terrific sentiment, and one that will hopefully will lead to ratification of the Convention.
Some of the other comments made by Whittingdale though may do more in the near term for heritage in conflict zones. He announced a new “cultural protection fund” which would help safeguard cultural heritage in conflict areas. Funding if deployed well could have a positive impact. He also announced a summit bringing together individuals from the government and institutions like the British Museum, the V&A, and perhaps others.
Thge Temple of Bel complex in Palmyra Syria, taken in 2010, one of the best-known at-risk sites in Syria
“We must try . . . to remain calm”.
So says Stefan Weber, Director of the Museum of Islamic Art in Berlin in an interview with Sönje Storm of DW. The entire interview is well worth a read, but of particular note are his comments on how we can prepare for the time after the armed conflict in Syria, and how paying too much attention to the destruction at Palmyra can distract us from the human suffering taking place there, and also gives ISIS more credibility:
Richard Prince’s Instagram Prints at the Gagosian gallery, via artfcity
The terrific daily JSTOR points out that Richard Prince and his appropriation of Instagram photos is nothing new, in fact some argued his ideas weren’t even new 25 years ago:
Prince’s artistic practice has always been challenged by critics, though likewise his very forthright practice and process challenges viewers, gallerists, art patrons, and the public at large to consider and debate the very value of art and copyright, now questioning what it means to own, create, and appropriate public art in this digital age.
In a 1988 interview with Prince, Marvin Halferman asked about Warhol’s influence upon his photographic works, to which Prince responded, “I wanted to use photography because it has another…history. Painting, silk screen, drawing, they suggest something else. But photography suggested belief. It suggests fact. I thought that because I was choosing subject matter that was in fact, fiction, it might be better to use a factual medium to level that fiction, to occupy an area of ‘official fiction.’”
It seems that Prince’s blending of fact and fiction via photography has now expanded into the much murkier waters of social media, where an exponentially growing public archive is available to him as his medium.
Whether praised for his continued relevance in the conversation surrounding ownership and the digital archive or whether condemned for his lack of originality and accused of outright stealing, Prince continues to sell his work and name while sparking important and relevant conversations.
Cooke sums it up best back in ‘92 saying, “Whether it is encountered in actuality or in reproduction matters little, for Prince’s works function best when they act as reminders of themselves, as traces of what has already been seen, revealed, or known.” Instagram currently has 300 million active users who are likely intricately and personally embedded in this network of friends, family, celebrity, and strangers alike.
