Professor Stephen Clowney of the University of Arkansas School of Law has written an interesting article examining the role of markets in certain special categories: things like organs, human lives, sex, and works of art. He has an interesting summary of the scholarship critical of markets; and he suggests I think that markets are not inherently corrupt. He ably points out flaws in the scholarship which criticizes commodification, yet he makes his own grave errors in relation to the role of the market on the art trade and its allied fields and disciplines. His approach is a kind of ethnographic study of art appraisers and prostitutes. The article is well-written and entertaining, but I just don’t think you get a complete picture of the art market by only talking with appraisers. He also ignores large areas of helpful scholarship from criminologists, totally ignores the Knoedler forgery scandal, and does not acknowledge the problems presented by the antiquities trade. But if you want an entertaining read, I can recommend it.
I miss museums, and it sounds like the next time I visit one I’ll look like I’m trying to rob the place.
Garty Tinterow, the director of the Museum of Fine Arts, Houston offered some insights into how his institution is planning to safely reopen, whenever that may be. He did a useful Zoom interview with the Houston Chronicle’s Molly Glentzer, and here’s a brief excerpt:
Q. When do you expect the museum to reopen, and what will be different?
I check my mail every day but the crystal ball hasn’t arrived yet. Opening by July 1 seems to be feasible, given our most pessimistic models. The pandemic will bring permanent change to art museums such as ours. We’re going to have to live with this virus for quite some time. Our biggest challenge is learning gradually; it’s going to have to begin with baby steps. We’ll all learn how to visit a museum differently. We are adopting procedures for low-touch entrances, exits and visits. We’re going to change the way we deliver information so individuals so they won’t have to touch things or pick up things that aren’t their own. An attendant with a mask and gloves will open the door. You’ll probably be wearing a mask. We won’t hand you gallery guides unless they can be sanitized; you’ll probably download material on your own device.
Many museums provide a textbook case of how to live in this new world. For a survey of the Association of Museum Directors, we calculated how many visitors we could admit based on the square feet in our display spaces. If they have six feet of circumference around them and move through the space as equally distributed as atoms of oxygen, how many people would there be? Probably 800 at a time. We can easily accommodate that. They won’t be in one space; they’ll be throughout our campus in multiple buildings. Maybe, if we have a film program in Brown Auditorium, people can be seated on every other aisle and alternate seats. There is room at the MFAH for social distancing.
In the early hours of Monday March 30, thieves broke the front glass window of the Singer Laren museum east of Amsterdam. The thief or thieves stole an early work by Vincent Van Gogh. In a press conference on Monday annnouncing the theft Singer Laren museum director Jan Rudolph de Lorm expressed shock and sadness:
I’m shocked and unbelievably annoyed that this has happened . . . . This beautiful and moving painting by one of our greatest artists stolen – removed from the community . . . . It is very bad for the Groninger Museum, it is very bad for the Singer, but it is terrible for us all because art exists to be seen and shared by us, the community, to enjoy to draw inspiration from and to draw comfort from, especially in these difficult times.
The Dutch Police announced that the work is only 25×57 centimeters, oil on paper, and was one of Van Gogh’s early works before he moved to southern France. The thief or thieves smashed the glass door entrance and set off the alarm, but were able to steal the small work before police arrived.
Most art thieves are awful people; but those responsible for this theft are especially vile. Art thefts seem to cluster around holidays and periods of inactivity. As the world looks increasingly to starve the Coronavirus of new hosts, and more and more people stay home, art museums are closed. And they are at increased risk from thefts.
In a ruling which will likely feature in future art law coursebooks, the Second Circuit has affirmed a $6.75 million judgment against a real estate developer for whitewashing a number of murals at 5Pointz. This is a rare victory for artist’s moral rights in an American court.
The site became known as a prominent aerosol art haven in 2002 when the developer Gerald Wolkoff asked Jonathan Cohen to install some art on a warehouse in Long Island City in Queens. Cohen curated the space and had a rotation of various artists use the building. It attracted worldwide attention. It also displayed itself to passengers every time a 7 train would pass by:
As is often the case with moral rights cases that have been litigated under the Visual Artists Rights Act, changed circumstances for the building led to the deveoloper seeking to capitalize on the new-found gentrification of the neighborhood. In 2013 artists learned that Wolkoff was planning to destroy the warehouses to build a condominium complex. The artists sought landmark status and asked for an injunction under the Visual Artists Rights Act. That injunction was not granted, and rather than wait for the legal process to play out, or wait to let the artists preserve their works, Wolkoff whitewashed the art. That act probably did more harm to Wolkoff’s argument than any thing, with the district court finding the art had achieved recognized stature and imposing the maximum statutory damages of $150,000 per work (45 works in total) of art in order to sanction Wolkoff’s conduct and to vindicate the policy supporting the moral rights act.
Donn Zaretsky in commenting on the ruling wrote that the damages may have been the most interesting part of the ruling:
Now, it may be the facts of this case were so unique and so egregious that it won’t have a wider impact — basically what happened is that early in the litigation the artists got a TRO preventing the demolition of the site, it expired, and, while the district court was considering their application for a preliminary injunction to replace it, the developer had the work painted over, “without any genuine business need” to do so, “simply, as the district court found, an ‘act of pure pique and revenge.'” But the idea that significant statutory damages can be awarded in a VARA case even where actual damages can’t be proven could be a big deal.
Moral rights are rights that have been around for a very long time. They originated in the French Revolutionary idea of ‘droit moral de l’auteur’, stemming from the idea that if art is harmed, the artist also is harmed.
I am always surprised when I encounter art lawyers and academics who are critical of the idea of moral rights. They will often make the argument that artists do not want or need moral rights, and developers like Wolkoff will not allow art anywhere near their buildings ever again. But this elides the reality, these condominium developments have as I understand it been built to take advantage of the newly gentrified neighborhood, and the new ‘luxury’ development will still be called 5 Pointz, and feature aerosol art. The art will happen no matter what, this ruling just gives the artists vindication for the personality of these artists that was bound up and integral in these images. Developers like Wolkoff claim that these moral rights damage their property rights; but a moral right is not an economic right. Instead it accounts for the psychological suffering which takes place when an artist’s art has been harmed in some way.
This is an unsolicited plug—I have no doubt that many folks are very familiar with the good work that the International Foundation for Art Research (IFAR) has done for many years. But one of its most remarkable accomplishments is its Art Law and Cultural Property Database. If you are a student, attorney, art professional, or cultural heritage advocate and not availing yourself of this resource, you are likely duplicating work and failing to account for much of the advocacy and scholarship which has come before. I encouraged my own librarians to secure a subscription for my work, and the work of students in my Art Law Seminars. I’ve used this terrific resource many many times in preparing lectures and informing my own scholarship, and I encourage you to consider adding a subscription for your own firm or institution.
On Wednesday evening at the National Arts Club in New York a screening this new documentary examining Elmyr de Hory will take place.
Here are the details:
Real Fake: The Art, Life and Crimes of Elmyr de Hory A Film By Jeff Oppenheim
Wednesday, February 5, 8:00 PM THE NATIONAL ARTS CLUB 15 Gramercy Park S, New York, NY 10003 Elmyr de Hory was one of the most notorious forgers. He is alleged to have painted thousands of “fakes,” many of which still hang in major museums and private collections worldwide. Having eluded prosecution from Interpol, Scotland Yard and other authorities, veteran filmmaker Jeff Oppenheim re-opens the case in this investigative caper that sheds new light on the depth of Elmyr’s crimes.
The art market owes much of its success to tax policy. A new essay in the Columbia Journal of Law & the Arts examines many of the financial structures used by Pop Art gallerist Leo Castelli in the middle of the 20th Century. The Essay is authored by Michael W. Maizels (visiting researcher at the Harvard metaLAB) and William E. Foster (Associate Dean for Academic Affairs at Arkansas School of Law)
This essay focuses on the efforts of an enterprising art gallerist, Leo Castelli, to aggressively promote his stable of Pop artists through the development of several financial structures, including some designed to leverage the relatively generous income tax deductions and anemic enforcement regime of the time. In doing so, Castelli not only seeded the ground for the international ascendance of American visual art, but also engineered financial arrangements that fostered the development of a lucrative and resilient art market that endures to this day. With the aim to provide insights into both the legal-political and the art historical registers, this essay describes a tax law framework that provides a key piece missing from the art historical puzzle.
The Art Newspaper has a useful update on the current state of the Guelph Treasure dispute. The Supreme Court has asked the Executive Branch, specifically the Solicitor General of the United States for an opinion on the case, in order to aid in its decision over whether or not to hear an appeal of the case from the D.C. Circuit Court of Appeals.
Here’s a quick background on the dispute. The Welfenschatz, or Guelph trove, a collection of 42 objects dating from the 11th-15th centuries is currently in the possession of the Prussian Cultural Heritage Foundation and has been claimed by successors of art dealers who were fleeing the holocaust. These objects were originally housed in the cathedral in Braunschweig, owned by the House of Guelph. During the First World War, the House of Guelph lost reign over Braunschweig and in the 1920s the pieces were sold to a consortium of Frankfurt art dealers, including 82 items in 1929. Later in 1935 the Prussian state, led by Hermann Goering, bought the remaining pieces of the hoard in what the claimaints allege was a “genocidal taking”. In 2014, a German government commission found that the transaction was not a forced sale.
The claimants then brought suit in the United States. The current possessors, the Prussian Cultural Heritage Foundation have defended that action on the grounds that as a Foreign Government, they are immune from suit in the United States under the Foreign Sovereign Immunities Act. Claimants have argued that the actions of the Prussian government fall under one of the exceptions to that law, that the actions of the Prussians was a violation of International law, namely genocide.
For some further helpful background from the perspective of the claimants, Nicholas O’Donnell, counsel for the claimants, has an excellent blog where he often updates this dispute.
The excellent podcast, Stuff You Missed in History Class, (hosted by Tracy V. Wilson and Holly Frey) has a useful overview of the chronology of the taking of the Parthenon Sculptures by Lord Elgin and his agents. It’s a useful overview, and will likely be of particular use for students or newcomers to the long-running dispute. Useful details include Elgin’s bitter divorce, and the reminder that it was never a good thing to draw the ire of Lord Byron.
The treatment of cultural heritage during armed conflict has received an unwelcome wave of attention after President Trump made the decision to threaten Iranian cultural sites with an attack over the weekend. In a series of tweets on Saturday, Trump stated that “if Iran strikes any Americans, or American assets,” that the United States has targeted 52 Iranian sites. This troubling threat would violate the Pentagon’s own War Manual, and the 1954 Hague Convention on Cultural Property in the Event of Armed Conflict. Article 4 of the 1954 Convention requires Parties to respect cultural property by refraining from using such property or its surroundings for any purpose which may lead to its damage or destruction.
This is the kind of shortsighted and callous thinking I never thought I’d see displayed by an American President. But sadly President Trump has joined many of the absolute worst leaders in history in choosing to threaten the culture of another people. The threat marks a sharp reversal of decades of work done by the State Department and others in American public life to protect and preserve the cultural heritage of all nations. What a disgrace.
It might be useful to compare the current President’s callous indifference to culture with that of General Dwight D. Eisenhower. In 1943, during the Second World War, General Eisenhower issued an order to his commanders to protect monuments and culture on the eve of the allied invasion of Italy:
Today we are fighting in a country which has contributed a great deal to our cultural inheritance, a country rich in monuments which by their creation helped and now in their old age illustrate the growth of the civilization which is ours. We are bound to respect those monuments so far as war allows.
If we have to choose between destroying a famous building and sacrificing our own men, then our men’s lives count infinitely more and the building must go. But the choice is not always so clear-cut as that. In many cases the monuments can be spared without any detriment to operational needs. Nothing can stand against the argument of military necessity. That is an accepted principle. But the phrase ‘military necessity’ is sometimes used where it would be more truthful to speak of military convenience or even of personal convenience. I do not want it to cloak slackness or indifference.
Note that there was no hint of military necessity in Trump’s words.
A wave of sharp condemnation has followed the President’s threats, more than I can catalog here. The Archaeological Institute of America called “upon President Trump and the U.S. Department of Defense to protect civilians and cultural heritage in Iran, and to reaffirm that U.S. military forces will comply only with lawful military orders.”
The world community, including the United States, has rightly condemned the intentional destruction of cultural heritage for decades. Hitler’s Germany, Pol Pot’s Khmer Rouge, the Taliban in Afghanistan, the Islamic State and the Assad regime in Syria intentionally destroyed cultural heritage in the absence of any military necessity. If Mr. Trump carries out this threat, the United States will join the ranks of these destroyers of the world’s cultural legacy.
Brett McGurk, the former U.S. special envoy for fighting ISIS tweeted that “American military forces adhere to international law. They don’t attack cultural sites.”
In an OpEd in the LA Times Prof. Sara Bronin argued “A nation that willfully destroys another country’s heritage would be no better than the criminals who have destroyed irreplaceable sites in Syria, Afghanistan, Iraq and elsewhere in recent years.”
Writing for the Guardian, Simon Jones argued that the “threat to destroy the sites of ancient Persia should send a shiver down the spine of any civilised person.”
Writing in the Art Newspaper, Francesco Bandarin, a former senior official at UNESCO rightly pointed out that “[t]he territory of modern Iran has been home to some of the greatest civilisations of mankind from prehistory to classical antiquity down to modern times. Iran today has 24 sites on the Unesco World Heritage List. A deliberate attack would presumably target historic cities and monuments or archaeological areas.”
On Sunday, John Bellinger III, a legal advisor for the State Department under President George W. Bush from 2005 to 2009 called on Defense Secretary Mark Esper and the Chairman of the Joint Chiefs of Staff Mark Millet to publicly affirm that the United States will still comply with the 1954 Hague Convention. He also argued that the White House should learn the domestic and international law rules that govern the use of military force.
One of those reasons that ignorance is so costly of course is that when a culture is targeted, that makes any mission or conflict existential, and makes an ultimate victory more difficult and costly to achieve. Any thinking leader would appreciate this simple fact.