$6.7 Million Award for 5Pointz Artists

5Pointz before it was whitewashed

A federal court has held that the real estate developer Jerry Wolkoff is liable for intentionally destroying 45 works of art when they were whitewashed in 2013, amounting to a total award of $6.75 million dollars. The ruling comes as a bit of a surprise given the limited success of artists under the Visual Artists Rights Act in the past.

Jerry Wolkoff purchased the vacant factory in the 1970s in Brooklyn after manufacturing had left the area. Graffiti artists asked him for permission to display their art on the building in the 1990s, and he agreed. The building then became a haven for graffitie, even a renowned attraction. An artist Jonathan Cohen, otherwise known as Meres One, started acting as a curator of the space in 2002.

By 2013 the factory had become a valuable piece of real estate, and Wolkoff had plans to demolish the site and start a new development on the. The site had been much beloved by then, and so the artists brought suit to prevent the destruction of the art. That injunction was unsuccessful, and so Wolkoff immediately whitewashed the art, a willful act that seems to have been the primary driver for Judge Block’s scathing decision:

If not for Wolkoff’s insolence, these damages would not have been assessed. If he did not destroy 5Pointz until he received his permits and demolished it 10 months later, the Court would not have found that he had acted willfully. Given the degree of difficulty in proving actual damages, a modest amount of statutory damages would probably have been more in order.

The shame of it all is that since 5Pointz was a prominent tourist attraction the public would undoubtedly have thronged to say its goodbyes during those 10 months and gaze at the formidable works of aerosol art for the last time. It would have been a wonderful tribute for the artists that they richly deserved.

The ruling may be appealed, but the decision marks an important precedent for works of visual art and especially works of temporary art. Landscape art, graffiti, and other similar works may be impacted by the ruling.

On one hand this ruling stands as an obvious victory for the artists themselves. But taken in the broader context, will future property developers be wary about inviting graffiti artists? Perhaps street art has become so popular and ubiquitous now, that there will not be a chilling effect of future uses of derelict buildings for graffiti exhibitions like Cohen helped create.

International Cultural Heritage Course in Malta this Summer

 

Ħaġar Qim is a megalithic temple complex dating to 3200 BCE

This summer I’m slated to teach a two-credit hour course on International Cultural Heritage Law in Valletta, Malta. Valletta will serve as Europe’s 2018 Capital of Culture. Malta is a wonderful setting—Baroque architecture, outstanding works by Caravaggio, and we hold classes in the World’s first planned Renaissance city, Valletta.

My course examines the intersection between law and heritage. We study disputes over ancient sites, works of art, and antiquities. A particular emphasis will also be the legal instruments which prohibit the intentional destruction and whole-scale looting of ancient culture. We will examine international conventions, domestic laws, and analyze the prominent cases which have arisen over cultural heritage disputes.

Students at ABA-approved U.S. law schools in good standing are eligible to apply. Information about the other courses, and information about applying can be found here:

Valletta, Malta

Air strike damages Iron Age temple of Ain Dara

Ain Dara, with a view of the entrance to the temple showing the footsteps carved in the floor, which were meant to show the path of the divine entering the temple. Via Wikimedia.

Bombs have destroyed much of the Iron Age temple of Ain Dara in Northern Syria. Reporting indicates the temple was the target of an air strike conducted by Turkey. The temple dated to the 9th century BCE, and was perhaps of a similar design to Solomon’s Temple in Jerusalem. The Hittite temple had survived for 3,000 years, and it has been reported that the temple was deliberately targeted.

Here is a similar view of the temple after the airstrike:

An image of the complex after the alleged Turkish air strikes provided by the Syrian Directorate-General of Antiquities and Museums

The damage seems extensive. Martin Bailey reported for the Art Newspaper that:

Turkey’s air force bombed Ain Dara as part of its military offensive against the Syrian militia YPG (People’s Protection Units), a mainly Kurdish faction which is fighting for autonomy from the Damascus regime of president Bashar al-Assad. The Ankara government is concerned that Syrian Kurds are supporting Kurdish separatists and terrorists in Turkey.

A large basalt lion, discovered in 1955 via wikimedia.

 

There are claims that the temple was deliberately targeted, an action that would certainly contravene the 1954 Hague Convention on the Protection of Cultural Property during armed conflict. It may even be classified as an action of intentional destruction. The temple has been photographed and documented, so at least some of this damage may be alleviated with modern reconstructions.

Here is some first-hand video from AFP:

International law was unable to prevent this destruction, the open question is whether it will provide a remedy. And if there is a remedy, who will seek it? Syria? A Kurdish state?

 

Matthes on ‘Radical Redistribution of Art’

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

Erich Hatala Matthes, a Prof. of Philosophy at Wellesley College has authored an argument for the radical redistribution of wealth in the open source journal Ergo. From the abstract:

Museums are home to millions of artworks and cultural artifacts, some of which have made their way to these institutions through unjust means. Some argue that these objects should be repatriated (i.e., returned to their country, culture, or owner of origin). However, these arguments face a series of philosophical challenges. In particular, repatriation, even if justified, is often portrayed as contrary to the aims and values of museums. However, in this paper, I argue that some of the very considerations museums appeal to in order to oppose repatriation claims can be turned on their heads and marshaled in favor of the practice. In addition to defending against objections to repatriation, this argument yields the surprising conclusion that the redistribution of cultural goods should be much more radical than is typically supposed.

An interesting argument, and it sounds to me like he is making a case for cultural justice.

Erich Hatala Matthes, Repatriation and the Radical Redistribution of Art, 4 Ergo (2017).

Manhattan DA Seizes more matarial from Steinhardt

Images supplied by the Manhattan DA’s office of the objects seized from Steinhardt

Manhattan prosecutors have continued to pursue the seizure of antiquities in 2018. Yesterday the NYT reported that investigators seized several antiquities from Michael Steinhardt. Steinhardt has been the focus of much of the investigative thrust directed at the antiquities trade. Chasing Aphrodite thoroughly discussed Steinhardt in the recent seizure of a Bull’s head originating from Lebanon. Steinhardt is a noteworthy figure as he was an early pioneer in hedge funds, reportedly worth billions, who has also collected antiquities. One of the galleries in the Metropolitan Museum of Art in New York is named for him. He has also continued to acquire antiquities even as investigations and repatriations have continued in recent decades.

The Manhattan district attorney, Cyrus R. Vance Jr. has done much to use his office to secure the return of looted antiquities. That trend looks to continue with the creation of a new Antiquities Trafficking Unit, led by  assistant district attorney Matthew Bogdanos, a Marine who investigated the theft and looting of antiquities from Iraq during the U.S.-led invasion in the early 2000s. The investigation into these objects joins a long list of other investigations that the Manhattan DA’s office has successfully undertaken in 2017, including the return of a marble bull’s head to Lebanon which had been on loan to the Met, the return of an ancient limestone bas-relief on display at the European Fine Art Fair a the Park Avenue Armory, the return of a remnant from one of Caligula’s ships perhaps stolen from an Italian Museum before the Second World War, and other investigations.

These investigations have resulted in the seizure of a great deal of material. Prosecutions of individuals remain elusive. Steinhardt has had very valuable antiquities seized from him before, yet he has continued to acquire this material. Whether this investigation will be able to change his behavior, and the behavior of others is an open question. The Manhattan DA’s office would not comment on the specific grounds for the seizures of these objects, other than the use of New York’s state theft statute. The NYT notes that though Steinhardt has had many object seized, he has not been the subject of any charges for possessing this allegedly stolen material.

The NYT reported that the material seized from Steinhardt included:

[A] Greek white-ground attic lekythos — or oil vessel — from the fifth century B.C., depicting a funeral scene with the figures of a woman and a youth, according to the search warrant. It is worth at least $380,000.

Also seized were Proto-Corinthian figures from the seventh century B.C., depicting an owl and a duck, together worth about $250,000. The other pieces included an Apulian terra-cotta flask in the shape of an African head from the fourth century B.C.; an Ionian sculpture of a ram’s head from the sixth century; and an attic aryballos, a vessel for oil or perfume, from the early fifth century. The objects were all bought in the last 12 years for a total cost of $1.1 million, according to the warrants.

  1. James C. McKinley Jr., Looted Antiques Seized From Billionaire’s Home, Prosecutors Say, The New York Times, January 5, 2018, https://www.nytimes.com/2018/01/05/nyregion/antiques-seized-from-billionaire-michael-steinhardt-cyrus-vance.html (last visited Jan 6, 2018).
  2. Art Traffickers Beware: The Manhattan DA Is Deploying a New Unit to Combat NYC’s Antiquities Crime Wave, (2017), https://news.artnet.com/art-world/manhattan-antiquities-traficking-unit-1182896 (last visited Jan 6, 2018).

Trump administration trades heritage for short term gain

Sites like the Cedar Mesa Ruins in Bears Ears National Monument are at risk with the proposed reduction in the national monument

Conservation is not a conservative principle anymore. Today President Trump signed presidential proclamations that will take the unprecedented step of dramatically shrinking two national monuments in Utah. The moves are largely seen as favors to Senator Orin Hatch, a frequent Trump apologist. This part of the American West frequently suffers from antiquities looting on the part of local residents, and the designation of these monuments was an important step to reduce the destruction and looting of these sites. A step that the Trump administration now is attempting to undo.

The reductions in these national monuments are a seldom-used step, one few other presidents have considered since the Antiquities Act was created in 1906. The New York Times reported that reductions have occurred before—Woodrow Wilson reduced the size of Mount Olympus, and Franklin Roosevelt reduced the size of the Grand Canyon monument.

Trump’s attempted reduction in size is not yet known, and will have to survive likely legal challenges, but mark an unfortunate step away from preservation of natural and cultural heritage. Instead the short-sighted move seems to prioritize development, mineral extraction, and ranching. Tribal groups are likely to be impacted most directly, and as a result some have already announced plans to challenge the reduction in court. The Navajo Nation in a statement declared:

The decision to reduce the size of the [Bears Ears] Monument is being made with no tribal consultation. The Navajo Nation will defend Bear Ears . . . . The reduction in the size of the Monument leaves us no choice but to litigate this decision.

 

Persepolis Relief seized from New York Art Fair

A fragment of a bas-relief from the city of Persepolis, dating from the 5th Century B.C.E.

On Friday afternoon New York prosecutors and police officers seized a limestone relief which once decorated a building from the ancient Persian city of Persepolis. The New York Times reported that “cursing could be heard” from the booth. The seized bas-relief, valued at an estimated $1.2 million dollars was being offered for sale by Rupert Wace, a London-based antiquities dealer. In a statement, Wace argued that the stone fragment “has been well known to scholars and has a history that spans almost 70 years.”

According to Wace, the relief was donated to a Canadian museum in the early 1950s. It was on regular display until it was stolen from the Montreal Museum of Fine Arts in 2011. It was recovered by Canadian authorities, but rather than seek the return of the object, the museum decided to keep the insurance payout given by AXA Insurance Company. AXA then had title to the object, which sold it to Wace.

What then is the crime committed which would lead to a seizure? I have not had a look at the warrant, so I’m speculating here, but reportedly it alleges the bas-relief was stolen. Likely because it was removed from Iran after the enactment of an ownership declaration. That argument has not been helpful on its own for material from Iran when Iran initiated an unsuccessful civil lawsuit against Denyse Berend for another bas-relief removed from Persepolis before the Revolution.

This case may be different though, as this is a criminal seizure, not a private suite. Iran declared ownership of objects like this one in 1930. Adding to the claim is the immovable nature of this bas-relief. It had been affixed to the wall for 25 centuries before it was removed.

The Apadana Palace at Persepolis.

This object may have been transported in the modern era, but had been designed and crafted to stay on a wall as part of a monument. This seizure pushes up against some of the oldest successful seizure of illicit material, and has as one obstacle the passage of time. On the other hand though is the reality that this object was part of a monument, Persepolis, which was granted World Heritage Status in 1979.

The Antiquities Trade Gazette reported that the Art Loss Register was responsible for vetting objects at the fair. James Ratcliffe, the director of recoveries and general counsel at the Art Loss Register stated:

We understand this piece was seized and although we’ve not seen an official explanation for this we gather it relates to the possibility that it was taken from Persepolis unlawfully. Given that it was on public display in a museum for over 60 years it will be interesting to see how the claim develops.

Indeed it will. What claims Wace will offer to defend his possession of the object, and what claims he may have against AXA or other predecessors up the chain of possession will be interesting to watch. One thing is certain though, the Manhattan District Attorney’s office is vigorously policing the antiquities trade at a level not seen in the United States or elsewhere. Dealers of illicit cultural property are on notice.

  1. Laura Chesters, Persian limestone sculpture seized by police from antiquities dealer at TEFAF New York Antiquities Trade Gazette (2017), https://www.antiquestradegazette.com/news/2017/persian-limestone-sculpture-seized-by-police-from-antiquities-dealer-at-tefaf-new-york/ (last visited Oct 30, 2017).
  2. James C. McKinley Jr, Ancient Limestone Relief Is Seized at European Art Fair, The New York Times, October 29, 2017, https://www.nytimes.com/2017/10/29/arts/design/ancient-limestone-relief-seized-european-fine-art-fair.html (last visited Oct 30, 2017).
  3. Stolen artifact from Montreal museum recovered in Edmonton, CBC News (2014), http://www.cbc.ca/news/canada/montreal/stolen-artifact-from-montreal-museum-recovered-in-edmonton-1.2535754 (last visited Oct 30, 2017).

Moral rights and property rights on trial in Brooklyn

5Pointz before it was whitewashed

Alan Feuer reports on the opening of the jury trial brought by artists whose works were removed from the 5Pointz building back in 2013. They are seeking a remedy for the infringement of their moral rights under a federal law called the Visual Artists Rights Act.

Eric Baum, a lawyer for the artists in his opening statement told the jury:

[T]hat they would hear from several art experts that the whitewashed graffiti was indeed of “recognized stature” and that Mr. Wolkoff, no matter how generous he had been with his buildings in the past, failed to give the artists the proper 90-day notice that 5Pointz was slated to come down. Mr. Baum added that his clients never wanted to sue; they wanted to save 5Pointz. But once the complex and the art had been destroyed, he said, they had only two choices: ask for money or do nothing.

The buildings developer, Jerry Wolkoff was represented by David Ebert who in his opening statement:

[A]cknowledged that 5Pointz was a “fantastic place” — one that Mr. Wolkoff helped create — but he argued that the law in question was irrelevant. “V.A.R.A. does not protect buildings,” he said. “It protects art.

The case is a rare instance of a moral rights claim brought on behalf of artists which has made it to the merits before a jury. Bringing claims in federal court is an expensive proposition, and few of these cases survive the summary judgment stage. The case will be fascinating to watch unfold.

 

  1. Alan Feuer, At Core of 5Pointz Trial: Is Graffiti Art Protected by Law?, The New York Times, October 17, 2017, https://www.nytimes.com/2017/10/17/nyregion/at-core-of-5pointz-trial-is-graffiti-art-protected-by-law.html (last visited Oct 18, 2017).

United States will withdraw from UNESCO

The San Jose mission is one of five missions granted World Heritage Designation.

The United States has made the unfortunate decision to withdraw from membership with UNESCO. I should probably have some thoughts about this, but I just feel profoundly sad. The Trump administration is a parade of embarrassment, and this is one of a series of anti-science, anti-art, anti-culture decisions. Sadly it may not be the last.

The best reads I’ve found on the decision is this reporting by Eli Rosenberg and Carol Morello in the Washington Post. Jack Morgan also has a very fine radio report for the Texas Standard on how much work goes into seeking World Heritage designation, and how the decision may impact the World Heritage sites in San Antonio.

Human Rights and Cultural Heritage at DePaul

Mali MosqueOn November 1 and 2 DePaul’s Center for Art, Museum & Cultural Heritage Law will be holding a conference examining the intersection of heritage and human rights. Here’s the list of excellent speakers:

  • Intangible Cultural Heritage and Human Rights: Morag Kersel, Justin B. Richland, George Nicholas, Catherine Bell
  • Environmental Justice and Cultural Rights: Patty Gerstenblith, Rosemary Coombe, Dean Suagee, Dorothy Lippert
  • Featured Lecturer Karima E. Bennoune, Special Rapporteur in the field of Cultural Rights, United Nations
  • Featured Lecturer Shamila Batohi, Senior Legal Advisor to the Prosecutor, International Criminal Court
  • Sovereigns vs. Peoples: Who Has Rights to Cultural Heritage: Lubna S. El-Gendi, Sarah Dávila-Ruhaak, Rebecca Tsosie
  • Resolving Cultural Heritage Disputes Through Alternative Dispute Resolution: Giving Peace a Better Chance (Ethics Panel): Thomas R. Kline, Stacey Jessiman de Nanteuil, Alessandro Chechi, Lori Breslauer

The Alternative Dispute Resolution panel looks particularly interesting.

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