Smith on ‘Community Rights to Public Art’

5Pointz before it was whitewashed

Cathay Smith (Asst. Prof. at Montana School of Law) has published an article in the St. John’s Law Review, Community Rights to Public Art. The article surely would have generated the attention of the student editors of the St. John’s Law Review, as the 5 Pointz building, until it was demolished in 2014, was located just a few miles away from the St. John’s campus. From the abstract:

In 1932, the Rockefeller family commissioned Diego Rivera to paint an enormous mural as the centerpiece of the RCA Building lobby in Rockefeller Center in New York City. The colorful mural that Rivera painted, titled Man at the Crossroads, included images of social, political, industrial, and scientific visions of contemporary society. One night in February of 1934, the Rockefellers hired workers to chisel the mural off the wall without any warning or notice. The mural was broken into pieces before being carted away and dumped. The destruction of his mural shocked Rivera. More importantly, however, the destruction of Rivera’s mural permanently deprived the public of a significant work of public art and heritage. The public was stunned at the destruction of the mural; protesters called the Rockefellers’ act “art murder” and “cultural vandalism.” Nevertheless, the mural was the Rockefeller’s property and, despite public support for the mural, they had the legal right to destroy it. More than eight decades later, communities still face this type of loss of heritage through the destruction of public art. For instance, public outrage followed the 2014 demolition of 5 Pointz in New York, when the owner of 5 Pointz whitewashed and destroyed the 20-plus-year-old “graffiti Mecca” to make way for two new $400 million luxury high-rise apartment towers. On the opposite coast, just last year, Piedmont Avenue neighbors in Oakland were shocked when the owner of Kronnerburger Restaurant demolished a beloved community mural in connection with its construction of a new trendy burger restaurant.

Property owners generally have the right to destroy their own property. This Article argues, however, that certain property is so connected to a community’s identity that the community’s right to preserve its heritage may trump a property owner’s right to destroy. This Article explores existing, yet underutilized, legal solutions a community may use or adapt to preserve public art when that art has become a part of its cultural heritage. Finally, recognizing that preservation has its limits, and that without destruction there will be no space for creation, this Article ultimately sets forth questions communities will need to grapple with as they weigh whether and how to protect works of public art as cultural heritage.

  1. Cathay YN Smith, Community Rights to Public Art, 90 St. John’s Law Review 337 (2016).

Five paintings stolen from the Museum of Modern Art in Paris feared destroyed

Nature Mort au Chandelier, Fernand Léger, 1922

The Associated Press reported this week that five important works stolen from the Museum of Modern Art in Paris in 2010 may have been destroyed. This work by Léger was apparently stolen to order, and in his zeal to capitalize on his time in the museum, the thief managed to make life considerably more difficult for his alleged co-conspirators because he stole some more very notorious works which only served to attract more attention from the authorities.

At a trial in Paris, one of the defendants, Yonathan Birn, claimed to have destroyed the works after fears that the investigation into their disappearance would lead to him.

Continue reading “Five paintings stolen from the Museum of Modern Art in Paris feared destroyed”

Operation Pandora nets 75 arrests in Europe

This Byzantine depiction of Saint George was one of the artworks recovered.

Earlier this week police in Europe announced the fruits of operation Pandora, an investigation into an international art trafficking network. In total, 75 people were arrested and 3,500 objects and artworks were seized. The investigation centered in Spain and Cyprus. The network allegedly moved works of art from conflict areas, and dealt in objects stolen from museums. The Europol press release boasted that over 48,000 individuals were investigated, almost 30,000 vehicles were investigated (along with 50 ships).

According to the release the aim of the investigation was to:

[d]ismantle criminal networks involved in cultural theft and exploitation, and identify potential links to other criminal activities. Moreover, there was a special focus on cultural spoliation, both underwater and on land, and the illicit trafficking of cultural goods, with a particular emphasis on conflict countries.

The operation was supported by UNESCO, INTERPOL, the World Customs Organization, Europol, and law enforcement officials from 18 countries. This was an extensive operation, which took a great deal of cooperation and resources. The investigators and policy makers who made this investigation successful should be commended. And yet, is this kind of large scale investigation sustainable? Will art thieves and traffickers be chastened and refrain from art crimes? Will the arrests actually produce successful prosecutions unlike so many of American investigations?

  1. Raphael Minder, 75 Arrested in European Crackdown on Art Trafficking, The New York Times, January 22, 2017, https://www.nytimes.com/2017/01/22/world/europe/75-arrested-in-european-crackdown-on-art-trafficking.html (last visited Jan 25, 2017).
  2. 3561 artefacts seized in Operation Pandora, Europol, https://www.europol.europa.eu/newsroom/news/3561-artefacts-seized-in-operation-pandora (last visited Jan 25, 2017).
  3. “Operation Pandora”: police in Spain and Cyprus lead major bust of antiquities traffickers, , http://theartnewspaper.com/news/operation-pandora-police-in-spain-and-cyprus-lead-major-bust-of-antiquities-traffickers/ (last visited Jan 25, 2017).

Kreder on the Public Trust

“The Gross Clinic”, Thomas Eakins, 1875. This work was sold by Thomas Jefferson University to the Philadelphia Museum of Art and the Pennsylvania Academy of Fine Arts in 2006, prompting discussion of whether this work had entered the “public trust”.

Prof. Jennifer Anglim Kreder has published an article examining the concept of the “Public Trust” in the Pennsylvania Journal of Constitutional Law. The doctrine has been used in environmental and museum law, but has a richer history:

It seems as if no one really knows the meaning of the term “public Trust” used in the Religious Test Clause of Article VI of the U.S. Constitution. This Article is the first scholarly attempt to define the term by exploring historical evidence pre-dating the nation’s founding through the Constitution’s adoption, including British and colonial trust law that influenced the Founders’ conception of the term. Today, one can find the term used only in the cases and scholarship concerning environmental law, tax law and museum law. After a thorough analysis of the old and new sources, this Article proposes the following original definition of term “public Trust”: “Any entity given special privilege by the government, beyond the simple grant of a state corporate charter often coupled with state or federal tax waivers, so long as that entity is legally obligated to engage in conduct that could traditionally have been performed by the government itself for the public’s benefit.”

 

Kreder, Jennifer Anglim, The ‘Public Trust’ (January 21, 2016). 18 University of Pennsylvania Journal of Constitutional Law 1425 (2016).

Student note on Confederate Monuments in North Carolina

‘”The monument was erected in honor of the 321 men from Alexander County who lost their lives in the Civil War. It is a single granite block 7 feet tall, 4 feet wide, and 8 inches thick with two small circles above the front inscription containing pairs of crossed confederate battle flags.”
Image courtesy of Commemorative landscapes of N. Carolina.

Kasi E. Wahlers has published an interesting student article in the North Carolina Law Review titled “North Carolina’s Heritage Protection Act: Cementing Confederate Monuments in North Carolina’s Landscape”. It takes up North Carolina’s handling of remnants of public monuments aimed at remembering and commemorating some ugly aspects of its past.

From the Abstract:

Even in 2015, the North Carolina landscape is densely populated with Confederate monuments, appearing in more than half of the state’s one hundred counties. The state has more monuments honoring the Civil War than any other event, with five Civil War monuments for every World War II monument. Most of these structures were erected between 1890 and 1930 and many are located on public property, commonly found in and around courthouses, town squares, graveyards, and University campuses. In July of 2015, North Carolina enacted the Heritage Protection Act (“HPA”). This law severely restricts the removal, relocation, or alteration of any monument located on public property. While neutral on its face, North Carolina’s Heritage Protection Act was enacted for the purpose of protecting Confederate monuments.

This Recent Development argues that the North Carolina Heritage Protection Act creates a lack of accountability on behalf of the N.C. General Assembly, usurps powers of local governments, and is amorphously vague as to what objects it applies to. Clarification of the statutory language by the General Assembly as well as a provision allowing for the erection of plaques that contextualize these monuments within local history is needed. Analysis proceeds in three parts. Part I of this Recent Development briefly sketches the propagation of Heritage Protection Acts across the South, outlines the North Carolina Heritage Protection Act, and highlights ways the North Carolina statute differs from other states. Part II discusses the confusing nature of this statute and analyzes legislative history to offer insight as to: (1) what role the North Carolina Historical Commission plays, if any, in deciding to permanently remove or relocate monuments; (2) whether this statute applies to county or city owned monuments; and (3) what constitutes a “display of permanent character.” Finally, Part III argues that this statute is in need of clarification and a provision that provides for plaques that contextualize these monuments within their local history. A brief conclusion follows.

Wahlers, Kasi E., Recent development. North Carolina’s Heritage Protection Act: cementing Confederate monuments in North Carolina’s landscape. 94 N.C. L. Rev. 2176-2200 (2016).

In Syria, looting causes faked antiquities too

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

Reporting for the L.A. Times last week, Nabih Bulos indicates that with the rise in looting of ancient sites, the market demand is starting to also be met by forged antiquities:

“In the last year, we’ve caught thousands of pieces. We noticed that the percentage of fakes has risen up from 30 to 40% to over 70%,” said Maamoun Abdulkarim, Syria’s director-general of antiquities and museums.

“Bibles, coins, statues … the buyer wants a certain model of artifact. The seller doesn’t have it, so you have workshops that produce fakes.”

On his laptop, Abdulkarim played a video depicting an open-air workshop, which he said was in the town of Khan Al-Subul in the rebel-held province of Idlib. Men, their hands covered in white dust, sit cross-legged on the ground, carving delicate patterns on pieces of stone.

Off to the side, one worker washes down a column head with a wet sponge. The rivulets of liquid work their way down the stone’s surface, leaving a dark sediment that would give it the appearance of age, according to Abdulkarim.

But are the faked antiquities new, or are we just paying more attention because of the loud destruction and institutionalized iconoclasm taking place in parts of Syria.

In 2009, Charles Stanish argued that he stopped worrying about the sale of faked antiquities on internet sites such as eBay, in the hopes that antiquities fakers would ultimately put antiquities forgers and looters out of business. In Syria at least, this report indicates that instead, the art market’s failure to often sell objects with detailed and legitimate histories leads to first looting, then also a rise in faked artworks. Some of course will argue that there should not be a market for this material at all. Others argue that the market should be preserved. The inability to compromise, of these two competing interests to even discuss the possibility of the other existing has served to preserve not the sites or context, but the black market in looted archaeological material and fake antiquities.

 

  1. Nabih Bulos, After Islamic State Institutionalized Looting in Syria, the Market for Fake Antiquities is Booming, Los Angeles Times, Dec. 31, 2016, http://www.latimes.com/world/middleeast/la-fg-syria-fake-antiquities-2016-story.html.

My Essay on the authenticity of ‘Go Set a Watchman’

One of these is not like the other

I expanded a bit on a blog post from last year with an essay for the Cumberland Law Review which takes up the tools of art authentication to argue that Go Set a Watchman should not be considered an authentic work by the author, and instead complicates the idea of authorship. Here’s the abstract:

For many lawyers, Harper Lee’s To Kill a Mockingbird represents an important goal to which law and its practitioners should strive. The novel describes the struggle to achieve justice for a black man in the face of deep-seated institutional racism. It stands as a beloved work of literature, widely read and deeply appreciated. Therefore, any work that Lee would have written after To Kill a Mockingbird would have sparked tremendous interest, given the beloved place her first novel holds. But many other questions have arisen since the release of Go Set a Watchman. This essay aims to address how the authenticity of the novel should be weighed by using the tools of art historians and the art market.
  1. Derek Fincham, Is Go Set a Watchman Authentic?, 47 Cumberland L. Rev. 101 (2016).