Derek Fincham

A practical view from an archaeologist on looting

The IAL blog has a terrific preview of an upcoming interview with Kathryn Morgan, a PhD candidate and archaeologist who has dug at the ancient site of Gordion in Central Turkey. Nina Nieuhaus asked Morgan what can be done, from an archaeologist’s perspective to stem looting of sites. Here’s a brief excerpt:

Education and economic incentives are probably the two most effective anti-looting “measures,” if they can be called measures. Education, because if people value the past for itself and think that it’s important, they don’t want to loot; and economic incentives, because if they are reliably prosperous without relying on looting, they don’t have to. Alternatively, you can try to foster the idea that an excavation itself and/or the tourism that it brings is a more sustainable long-term alternative source of income than a quick loot-and-sell operation. As far as I understand it, looting often isn’t that profitable a business for the looter: he’s giving whatever he finds to a middle man, who may be giving it to someone else, and him to someone else, until it finds a legitimate seller and a legitimate buyer who hasn’t dirtied his hands with any of the illegal activity. So, for the little guy, it’s dangerous – because looting is of course illegal – and he’s not making that much money off of it; he’s not going to do it unless he has to. If you can foster a good relationship with locals – providing them with employment opportunities, buying food for the project from within the village, some projects get students to teach English or organize pick-up soccer games with the workmen – those personal relationships are key to the long-term success of your project. But that’s kind of a warm and fuzzy answer that doesn’t deal with all of the complicated motivations that real people have in the real world.

Realistically, what do we do? What can we do? The Gordion project employs a site guard year round who checks on the site. We give a map of the area to the local Jandarma, the police force, of the “most sensitive” areas archaeologically, that they need to keep an eye on. Also, in Turkey, sites that are looted or in danger of looting can be eligible for special “salvage excavation” permits. Near Gordion, several tunnels were dug into a large tumulus, looking for the burial chamber, over the past few winters. Last year, the Turkish authorities decided to excavate the tomb themselves, in a careful, scientific fashion with conservators on call – rather than allowing looters to make another attempt. The Gordion project was invited to contribute to the effort, which we did gladly. So, sometimes pre-emptive excavation is a necessary solution.

And there are other interesting insights, so I look forward to reading the whole exchange. Practical change is slow in coming to the antiquities trade.

Gerhardt on the publication doctrine and art history

The coal Glen Mine in North Carolina was the site of a series of explosions in 1925. 53 miners were dead, but the account is not listed in most North Carolina history texts, perhaps because the images of the scene like this are not copyrighted and in the public domain. — The coal Glen Mine in North Carolina was the site of a series of explosions in 1925. 53 miners died, but the account is not listed in most North Carolina history texts according to Gerhardt, perhaps because the images of the scene like this are not made available.

Deborah Gerhardt, an Assistant Professor at North Carolina School of Law has written an interesting discussion on the public domain and the publication doctrine, which would make it possible to place a number of images in the public domain, which has important consequences for art historians. From the abstract:

This Article is the first to use the copyright publication doctrine to clarify whether art, photographs, films, and historical documents that fill our museums and libraries are in the public domain. Knowing whether a photo, painting, film, or original letter was published is critically important to anyone who wants to use it today. Before 1989, publishing a work with no copyright notice dedicated the work to the public domain. Unpublished works without a notice are likely protected by copyright, and their unauthorized use can result in severe federal penalties. Unfortunately, the meaning of “publication” in copyright law is notoriously ambiguous. The federal statutory definition suggests that works “made available” to the public are published, while leading treatises generally assume that works given to public museums and libraries are unpublished. Confronted with this uncertainty, risk averse institutions too often assume that archived works are protected by copyright. Misunderstanding the law can keep cultural treasures locked in dark archives, vaults and basements, preventing their use as a foundation for new expression and distorting our sense of history.

This Article critically examines mistaken assumptions about copyright publication. It finds that neither the statutory definition nor leading treatises adequately identify when a work is published. A better standard for determining when a work is published and in the public domain is needed to free works from being locked up by copyright uncertainty. The best solution would clarify the boundaries of a stable public domain. In a recent decision, the Supreme Court took a wrong turn in dismissing the importance of the public domain. Knowing what content may be freely used is critical to preserving First Amendment values and freeing cultural treasures from copyright’s bondage. The copyright ambiguity of archived works should be resolved in a way that honors the expressive and historical value of the public domain. After considering several alternatives, this Article shows how precedential patterns point to the best solution to the publication ambiguity. Drawing on empirical analysis of federal cases interpreting copyright publication, I identify the variables that are most important in determining whether archived works are published. The suggested solution focuses on copyright owner intent and the availability of authorized copies. Other factors described as significant in leading treatises — such as the type of work or archive — actually mask these two fundamental inquiries. The proposed standard provides a much needed solution to clarify which pieces of our cultural heritage are in the public domain and freely available as raw materials for educational sharing, expressive work, historical research, and public discourse.

Gerhardt, Deborah R., Copyright at the Museum: Using the Publication Doctrine to Free Art and History (September 5, 2014). Available at SSRN: http://ssrn.com/abstract=2505041.

As always, if you have a draft or an article related to art law, antiquities law, or cultural heritage generally, please consider posting a draft on SSRN or another open access site.

“Yamatane” and temporary art

Yusuke Asai, "Yamatane", Rice University, Houston 2014. — Yusuke Asai, “Yamatane”, Rice University, Houston 2014.

So much effort goes in to thinking about where art belongs, how it should be preserved and conserved. So in many ways I can be guilty of taking the idea of preservation for granted. But more attention should be paid to thinking through what exactly preservation means. After all, preservation comes with costs. And thinking about how much does not get preserved, and how much effort it takes to preserve art and sites can seem overwhelming. Which is why it can be refreshing to just enjoy some art every now and then. Yusuke Asai, a Japanese painter created a massive installation at Rice University titled “yamatane” (Japanese for mountain seed). But you can’t see it any more, it has been “deinstalled”, which was the idea all along. As a result he gently forces the viewer to enjoy and take in the work while you can.

Asai's soil samples from Houston and Texas — Asai’s soil samples from Houston and Texas

He uses dirt and earth as a medium. In Houston he had Rice students and volunteers collect soil samples from around Houston and Texas, which he used to create 27 different shades.

Of his works he says:

I do not decide on a story or meaning before I start painting. Imagery of figures and creatures comes to me in the moent. Fox, bird, cat, and sunshine – everything has a role; parts disappear and something is added. The world accepts it and keeps changing. I begin each work thinking of the countless small things that come together to make a larger world. I choose to use the earth as a medium because I can find dirt anywhere in the world and do not need special materials. Dirt is by nature very different than materials sold in art stores! Seeds grow in it and it is home to any insects and microorganisms. It is a “living” medium.

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Prott on Australian museums and illicit art

The 900-year-old bronze Dancing Shiva (Shiva Nataraja) returned by the National Gallery of Australia to India in 2014

Lyndel Prott, Honorary Prof. of International Heritage Law at the University of Queensland has authored a timely Op-Ed for the Conversation. In it she argues the 1970 UNESCO Convention has a role to play in impeding the flow of illicit art. But wonders about its impact on the recent spate of illicit material revealed in Australian Museums:

In September the Australian Prime Minister personally returned a 900-year-old bronze Dancing Shiva (Shiva Nataraja) to the Prime Minister of India which had been bought by the National Gallery of Australia (NGA) and was subsequently found to have been stolen from a temple in southern India.

In a country which has been a party to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property – 1970 since 1989, how did the AGSA, the NGA and the AGNSW find themselves in such egregious situations?

Despite the passage of the Protection of Movable Cultural Heritage Act 1986 which implements for Australia the provisions of the 1970 Convention, the holding institutions have not undertaken the effort that they should have over the last 25 years.

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Smith on Street Art and low Intellectual Property

Cathay yvette Nikka Smith, of the University of Denver Sturm College of Law has posted on SSRN, Street Art: An Analysis Under U.S. Intellectual Property Law and Intellectual Property’s ‘Negative Space’ Theory, 259 DePaul J. Art, Tech., & Intel. Prop. (2014). From the Abstract: Continue reading “Smith on Street Art and low Intellectual Property”

Litigation seems inevitable in the Gurlitt case

Next week the Kunstmuseum in Bern will announce if it will accept the bequest of 1300 works of art from Cornelius Gurlitt. Gurlitt’s father was art dealer Hildebrand Gurlitt, operating during World War II. As a consequence a large number of these works will have possibly been stolen or forcibly taken during the Nazi regime. Receiving these works will be a challenge for whoever ultimately gets them. But the likely result no matter what will be litigation. There has never been such a large and contested body of artworks collected in one estate, but even if this were just a mundane estate without Nazi-era art association, large estates often carry with them the likelihood of litigation.

The Wall Street Journal reports that the Kunstmuseum is expected to accept the works:

The Kunstmuseum Bern’s legal team has been researching the artworks’ provenance since the museum was informed of the bequest on May 7. Barring a last-minute legal discovery that could scuttle the deal, the museum’s board of directors will accept the gift at its meeting on Saturday, the last of half a dozen deliberations regarding Mr. Gurlitt’s bequest. . . . Much of the delay in accepting the trove has come because the tiny museum needed to secure seven-figure private funding from Swiss donors to be as free as possible of German funding that the museum thought could taint the neutrality of their provenance research, people familiar with the deliberations said.This was a daunting task for the board members. The museum lacks the financial backing of other Swiss museums like Fondation Beyeler. Unlike European and American museum boards filled with wealthy collectors and art world insiders, the Kunstmuseum Bern’s board comprises local government officials and academics.

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Varmer on Underwater Cultural Heritage law

Ole Varmer, International Section, Office of General Counsel, NOAA has written a technical examination of Underwater Cultural Heritage law: Closing the Gaps in the Law Protecting Underwater Cultural Heritage on the Outer Continental Shelf, 33 Stan.Envtl.L.J. 251 (2014). From the abstract: Continue reading “Varmer on Underwater Cultural Heritage law”

More on ISIS and Illicit Antiquities

Jason Felch has an excellent piece examining the claims that ISIS has made massive profits off of illicit antiquities. He effectively critiques the claim that illicit antiquities have become the second-largest revenue stream for ISIS. Having seen the destruction and looting in Syria, we can see theft and destruction is taking place. But how can we estimate the size and scope? He notes getting accurate estimates of an illicit trade is not easy:

I have spoken with imprecision about the link between terrorism and the antiquities trade. UNESCO officials frequently cite a $7 billion dollar figure for the global illicit antiquities trade that has a very shaky foundation. The Antiquities Coalition has referred to $3 – $5 billion generated by looting in Egypt alone since 2011 (or in some instances, per year), but the research supporting that claim has yet to be published. Rajendra Abhyankar, a professor at Indiana University and former Indian Ambassador to Syria, declared in the Huffington Post earlier this month that “thirty to fifty percent” of ISIS income comes from the theft and looting of antiquities. When asked for a source, he told me it was based on notes he had taken while reading articles that he could no longer find. The problem is significant enough that Dr. Sam Hardy at Conflict Antiquities has made a cottage industry of debunking such claims.

The truth is we have very little reliable data on the global revenue generated by the illicit antiquities trade, and even less on the role it plays in funding terror groups. It is, to paraphrase Donald Rumsfeld, a known unknown: we know it happens, but not much more. Claiming otherwise may in the short term bring attention to the issue of looting, but ultimately saps it of credibility – and the urgency to answer those important questions with well-documented research. It can also taint important policy decisions, as Patty Gerstenblith, chair of the State Departments Cultural Property Advisory Committee, noted in response to Danti and similar claims: “Commentators and scholars should avoid sensationalism…Exaggerated [or] baseless claims hinder rational policies to restrict trade in illegal antiquities.”

Larry Rothfield responds by basically arguing, who cares so long as awareness is raised:

In the long term we are all dead, said Keynes, and in the short term getting attention paid to archaeological looting has had very positive stimulative effects in the area of heritage protection at least (witness the White House Coordinator law just proposed). More generally, the notion that credibility will be sapped by the flogging of dubious factoids is not supported by any evidence I know of in public policy studies, and indeed there’s plenty of evidence that even outright lies have very long tails and only sap credibility when they lead to what are retrospectively recognized to have been disastrous policy decisions.

I think accuracy matters, as exaggerated claims will only harm the cause in the long run.

Murray Reviews HBO’s ‘Banksy Does New York’

"The Street is in Play", Banksy, Chinatown, Oct. 2013. — “The Street is in Play”, Banksy, Chinatown, Oct. 2013.

Noel Murray previews tonight’s HBO documentary on Banksy’s New York ‘residence’. One reason for the enduring appeal of Banksy, is the artist gets people thinking about art:

Banksy posted pictures of the finished works, but wouldn’t say where they were located, which meant that Banksy fans had to hunt around the city to find them—all while hoping that the pieces hadn’t been removed or painted over before they could be discovered. Over the course of the month, Banksy stirred up controversy with the political content of some of the work, and provoked the usual brouhaha over whether street art is any different from everyday vandalism. But Banksy also got the citizens of New York talking nearly every day about art and social issues, and he had people paying more attention to their surroundings, looking for hidden Banksys. He kept folks on their toes. . . .

That’s ultimately what makes Banksy Does New York such a lively and engaging film (even if it lacks the endearing puckishness of Exit Through The Gift Shop). Moukarbel ignores a lot of the outcry in New York about the appropriateness—or cleverness—of some of Banksy’s big social statements, like his comments about 9/11 and the Freedom Tower. And Banksy Does New York doesn’t give more than a passing voice to Banky’s critics and skeptics. (If anything, it’s more harsh to the New York art world for largely ignoring the residency.) But the film does a fine job of getting at the tension that each day’s new piece inspired. In the neighborhoods where Banksy struck, some locals fought to preserve the work, some looked to profit from it, and some saw the whole event as a nuisance. Meanwhile, New Yorkers flocked to the new exhibits, and balked whenever anyone tried to restrict their access or mar the art. Intentionally or not, Banksy and Moukarbel raise the question of who these spontaneous acts of creativity belong to, and whether they’re ever really “complete.”

The documentary airs Nov. 17th on HBO.

How Law Defines Art

Is this a museum? "Prada Marfa" by Michael Elmgreen and Ingar Dragset — Is this a museum? “Prada Marfa” by Michael Elmgreen and Ingar Dragset

PlayboyMarfa2 — Is this advertising? “Playboy Marfa” by Richard Phillips

Last month the John Marshall Review of Intellectual Property Law held its annual symposium. This year the topic was the intersection of art and law. There were a number of great papers examining how art and law overlap. I contributed a short talk on how the law ends up defining art, arguing the legal and the arts community need to recognize the important role law plays in defining the limits of conceptual art when legal disputes arise. I’ve posted the short draft online here: (How Law Defines Art), and I’d love to hear any reactions.

Defining art is both hard and subjective. But in lots of contexts the law must arrive at a just solution to hard and subjective questions. The art world (which includes artists, buyers, art lovers, art historians, and art writers generally) has largely neglected the task of defining artworks. This neglect has crept into legal disputes as contemporary art has become more conceptual. It has loosened the limits of aesthetics, form, function, and composition. This makes crafting a definition even more challenging. Yet the Law has an important part to play in resolving art disputes. In doing so courts end up defining art. They do not set out to do so, and in fact they do all they can to avoid acting as art critics. But paradoxically this creates inconsistent judicial reasoning and leads to under-reasoned opinions. The solution offered here, is to acknowledge this critical function, and encourage courts to engage with the visual arts community, and for the arts community to engage back.

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