Category: Art Law

Professor Song on Restitution after Illegal Export

Uigwe for Crown Prince Hyojang's Investiture Ceremony Version for Kings, 1725 The Collection of the Bibliotheque nationale de France returned 297 volumes to Korea in 2011
Uigwe for Crown Prince Hyojang’s Investiture Ceremony Version for Kings, 1725
The Collection of the Bibliotheque nationale de France returned 297 volumes to Korea in 2011

Professor Ho-Young Song (Hanyang University School of Law, Seoul) has published an article in the recent issue of the Penn St. Journal of Law and International Affairs examining how works of art are restituted after an illegal export. Once considered by some a tenuous way to regulate the illicit trade in art, illegal export has grown as a regulatory check with more and more impact. From the abstract:

Worldwide, many cultural properties have been wrongfully exported to other countries in times of war and colonization. Furthermore, cultural properties are currently constant targets of illegal transaction due to their substantial economic value. Illicit trade in cultural properties is now the third largest black market after drug and firearms. There are several international treaties aimed at combating the illicit export and enabling the restitution of cultural properties. Despite these efforts, more legislative and judicial cooperation between countries will be necessary to truly solve the problem. This article reviews international legal instruments for restitution of illegally exported cultural property, and suggests some new judicial principles that should be applied by domestic courts for supplementing drawbacks of international treaties. The author suggests to adopt “lex originis” rule for choice of governing law instead of traditional “lex rei sitae” rule and to apply to shifting burden of proof to a certain extent to find a solution for disputes over cultural properties.

  1. Ho-Young Song, International Legal Instruments and New Judicial Principles for Restitution of Illegally Exported Cultural Properties, 4 Penn. St. J. L. & Int’l Affairs 718 (2016).
  2. Yates Donna, ‘Uigwe « Trafficking Culture’ (14 March 2014) <http://traffickingculture.org/encyclopedia/case-studies/uigwe/> accessed 23 August 2016.

Judges Just Don’t Like VARA and Applied art

The Burning Man installation, "La Contessa"
The Burning Man installation, “La Contessa”

Daniel Grant reports on a recent Visual Artists Rights Act case involving the Burning Man re-purposed bus known as La Contessa.

A recent court decision in Nevada raises this question and, perhaps more fundamentally, the issue of whether or not VARA might need to be rewritten or updated to account for a broader definition of art. On June 8 of this year, a three-member Appeals Court panel affirmed a 2009 lower court ruling that called the demolition of a refashioned school bus—turned into a Spanish pirate ship on wheels and used for events as part of the annual Burning Man late-August to early-September festival in Black Rock Desert, Nevada between 2002 and 2005—not a violation of VARA, because the vehicle in its new form did not constitute fine art but “applied art.”

The 16’ x 60’ pirate ship, called La Contessa, was created by two artists, Simon Cheffins and Gregory Jones, who transformed an out-of-commission school bus into a replica 16th century Spanish galleon that included a hull, decking, masts, and a hand-crafted figurehead. La Contessa added to the sometime circus nature of Burning Man, used for rides, marching band performances, children’s treasure hunts and even two weddings. After the conclusion of the festival, the vehicle was put into storage on nearby land controlled by a woman, Joan Grant, with a lifetime tenancy of the property. However, in 2005, Grant’s home burned down and she abandoned her tenancy, which was then taken over by a limited liability company controlled by a Michael Stewart. “La Contessa” remained on the property and was not reclaimed by Cheffins and Jones the following year, and in late 2006 Stewart dismantled and then burned the wooden structure so that a scrap metal dealer could remove the underlying school bus. In 2009, the artists brought a VARA lawsuit against Stewart, losing in district court and more recently on appeal. “The focus of our inquiry should be on whether the object in question originally was—and continues to be—utilitarian in nature,” the Appeals Court ruled, although noting that the ship has “some artistic or aesthetic merit.”

In a concurring opinion, one of the three judges, Margaret McKeown, expressed concern that the ruling being issued was not workable and required “a more nuanced definition of ‘applied art’ that balances between the risk of unduly restricting VARA’s reach and the risks of turning judges into art critics.”

Daniel Grant, The More Art Changes, the More Urgent an Update to the Visual Artists’ Rights Act Is, Observer (Aug. 3, 2016), http://observer.com/2016/08/the-more-art-changes-the-more-urgent-an-update-to-the-visual-rights-act-becomes/.
CHEFFINS v. Stewart, Court of Appeals, 9th Circuit 2016 – Google Scholar, https://scholar.google.com/scholar_case?case=7731083587113005243&q=la+contessa+visual+artists+rights+act&hl=en&as_sdt=6,44.
CHEFFINS v. Stewart, Dist. Court, D. Nevada 2011 – Google Scholar, https://scholar.google.com/scholar_case?case=10972864568398950890&q=la+contessa+visual+artists+rights+act&hl=en&as_sdt=6,44.

Note on Cultural Heritage and New Media

Artist Morehshin Allahyari uses 3-D scanning to recreate artifacts which have been damaged or destroyed, like this Assyrian Lamassu
Artist Morehshin Allahyari uses 3-D scanning to recreate artifacts which have been damaged or destroyed, like this Assyrian Lamassu.

Ann Marie Sullivan a third year law student at John Marshall Law School has written an interesting piece thinking about the intersections of cultural heritage and new media. From the abstract:

The application of new media to cultural heritage is consistent with the policy objectives that the copyright law of the United States stands to promote. However, the practical application of the law currently hinders these objectives, often stifling the creation and dissemination of new media works of cultural heritage. In this context, copyright law presents a problem and not a solution, a barrier and not a protection, dissuasion of creation and not encouragement and incentive. Defining the legal scope and reach of digital property and new media within the realm of art and cultural heritage law is critical for the benefit of creators, consumers, cultures, and society as a whole. Unless a modification is made, or a solution adopted, the problems presented by legal uncertainties and inadequacies will continue to operate in a manner contrary to the main purpose of copyright, “To promote the Progress of Science and useful Arts.”

Ann Marie Sullivan, Cultural Heritage & New Media: A Future for the Past, 15 J. Marshall Rev. Intell. Prop. L. (2016).

60 Minutes Reports on the Knoedler art fraud scandal

This forged work forgot to spell Jackson Pollock's last name with a 'c'
This forged work forgot to spell Jackson Pollock’s last name with a ‘c’

In case you haven’t seen it yet, 60 minutes examined the rapid fall of the Knoedler Art Gallery in 2011. The piece does a thorough job of giving background on the Knoedler Gallery, the role of the Cataloge Raisonne, and scientific testing.

I found particularly interesting this exchange between Anderson Cooper, and Domenico de Sole, one of the collectors, and the chairman of Sotheby’s which underscores the role of reputation and trust in the art market:

Anderson Cooper: Do you feel you did enough due diligence as a buyer?

Domenico de Sole: My due diligence was to go to the best, most prominent gallery in the United States dealing with a person with a stellar reputation, and pay a price that was reasonable, it was fair.

Domenico de Sole was the person who bought that $8 million fake Mark Rothko and told us he believes Knoedler Gallery and its President Ann Freedman either knew or should have known that this lucrative collection could not possibly be genuine. Greg Clarick is his attorney.

Greg Clarick: The red flags began with the notion that Glafira Rosales, who was an unknown person to Knoedler, who Knoedler never investigated, came in and she started delivering what turned out to be an endless stream of never-before-seen paintings was enough to raise a huge red flag.

Anderson Cooper: Strangers don’t walk off the street into a gallery saying that they have access to a never-before-seen collection of some of the greatest masterpieces

Greg Clarick: That’s right. Second, the works had no provenance.

Anderson Cooper: No chain, no history?

Greg Clarick: They had no history. They had no documents.

Anderson Cooper: So there was no evidence these paintings had ever been painted by the artists?

Greg Clarick: That’s correct.

Not only that, there were no bills of sale, no insurance records, no shipping documents, and no museum exhibitions for any of the paintings. Greg Clarick told us the gallery had motivation to overlook the paintings’ shortcomings.

Greg Clarick: Over the period of this fraud, Knoedler sold these paintings for about $67 million. Knoedler made over $40 million in profit from selling these paintings. And at the same time, Knoedler made essentially no money at all from selling other paintings.

$80 Million Con, http://www.cbsnews.com/news/60-minutes-80-million-art-fraud-anderson-cooper/.

Student Comment: “The Law of Banksy: Who Owns Street Art?”

Banksy’s ‘mobile lovers’. It sparked a dispute between the Boys’ Club where it was painted, and the Bristol City Council which sought to seize it.

The artist Banksy creates valuable works of art, but he places them without permission, and this often raises property disputes. Peter Salib, a JD candidate at the University of Chicago has posted a draft of “The Law of Banksy: Who Owns Street Art?” It is an interesting examination of the problem, though comparative lawyers and those outside the United States may share my frustration that though the author uses as an example the dispute between a Boys’ Club in Bristol, and the Bristol City Council, and an artist who works frequently in the United Kingdom and all over the world, insists on focusing almost exclusively on American law.

From the abstract:

Street Art — generally, art that is produced on private property not owned by the artist and without permission — has entered the mainstream. Works by such artists as Banksy, Jean-Michel Basquiat, and Shepard Fairey now sell at the world’s most prestigious auction houses, fetching prices in the millions. Strangely, however, the law governing street art ownership is entirely undeveloped. The circumstances of street art’s creation — often involving artists’ clandestine application of their work to the sides of buildings owned by others — render traditional legal paradigms governing ownership intractable. If Banksy paints a valuable mural on the side of my house, who owns it? Me? Banksy? Someone else? American law is currently ill-equipped to answer the question.

This article rigorously investigates the problem of street art ownership. It accounts for the unusual circumstances of street art creation and distribution. It then considers the possible legal regimes for governing street art ownership and comes to a surprising recommendation.

  1. Peter N. Salib, The Law of Banksy: Who Owns Street Art?, SSRN Scholarly Paper ID 2711789 (Social Science Research Network), Jan. 6, 2016.
  2. Owner of Banksy Mobile Lovers youth club received death threats, The Independent (Aug. 27, 2014), http://www.independent.co.uk/arts-entertainment/art/news/banksy-mobile-lovers-sold-owner-of-youth-club-where-artwork-appeared-in-bristol-received-death-9695327.html.

Competition Complaint Filed Against Art Loss Register

Via the Art Newspaper: Art Recovery Group founder Chris Marinello with Matisse's Seated Woman, which was returned to the Rosenberg family last year (left), and Art Loss Register founder and chairman Julian Radcliffe
Via the Art Newspaper: Art Recovery Group founder Chris Marinello with Matisse’s Seated Woman, which was returned to the Rosenberg family last year (left), and Art Loss Register founder and chairman Julian Radcliffe

Melanie Gerlis reports for the Art Loss Newspaper on a competition claim filed against the Art Loss Register. The claim was filed by Chris Marinello, founder of the Art Recovery Group, and former employee of the Art Loss Register:

ARG’s letter to the competition authority accuses ALR of “systemic breaches of competition law”, citing seven examples of “abusive behaviour”. ALR, according to the letter, “is implementing a persistent, pervasive and systematic plan to eliminate ARG fr om the market”.

Heading the list of complaints is what ARG describes as “vexatious litigation”, a reference to a civil claim that ALR took to the UK’s High Court in July. This claim accuses Marinello and others of “the unlawful establishment and operation” of ARG, citing breach of contract, breach of confidence and “infringement of database rights”, among other things. ALR’s claim demands the handover of any confidential information the defendants may have that belongs to ALR.

Marinello and the other defendants filed a counterclaim in November, in which “each and every allegation contained in the particulars of claim is denied”. A subsequent reply and defence was lodged by ALR in December, which also denied all allegations.

James Ratcliffe, ALR’s director of recoveries, lawyer and near-namesake of the company’s founder, says that, while he has not seen ARG’s letter to the competition authority, ALR’s legal actions are “certainly not vexatious” and that there is “no systematic plan” to eliminate its competitor. He says the claim had to be issued to protect the interests of ALR’s stakeholders because Marinello “took confidential information from our business and we don’t know the full extent of it”.

Marinello says: “The ALR knows exactly the extent of information in my possession because it was obtained openly, transparently and with express permission pursuant to an agreement signed by Julian Radcliffe in 2012.”

Julian Radcliffe is ALR’s majority shareholder, although Sotheby’s also has a stake (around 11%), as does Christie’s (around 3%), and Marinello himself (10%).

Both companies are positioned to fill an important function in the art market, and to help recover lost and stolen works of art. Hopefully they can find a way forward to coexist.

Melanie Gerlis, Art Loss Register faces competition complaint from Art Recovery Group, The Art Newspaper (Jan. 26, 2016), http://theartnewspaper.com/market/gloves-come-off-in-fight-to-run-international-database-of-stolen-works-of-art/.

International Cultural Heritage Law Course, Malta

valletta-Malta

This summer I’m slated to teach a two hour credit course on International Cultural Heritage Law in Malta through South Texas’ Malta program, alongside courses in Comparative Tax; and Democracy, Politics and Courts.

More information is available here.

Here’s my course description:

The course will examine the intersection between law and material cultural heritage. It will show how domestic and international law works to resolve disputes over ancient sites, works of art, and antiquities. A particular emphasis will also be the legal instruments which prohibit the intentional destruction and wholescale looting of ancient culture. We will examine international conventions, domestic laws, and analyze the prominent cases which have arisen over cultural heritage disputes.

If you are a law student interested in summer study opportunities, I hope you’ll consider it.

 

Malta

Supermarket clerk or principessa? Leonardo or Greenhalgh?

"Profile of a Young Fiancee" Licensed under Public Domain via Commons - https://commons.wikimedia.org/wiki/File:Profile_of_a_Young_Fiancee_-_da_Vinci.jpg#/media/File:Profile_of_a_Young_Fiancee_-_da_Vinci.jpg
“La Bella Principessa”

Scott Reyburn aptly summarizes the range of possibilities with respect to the controversial work of art known as “La Bella Principessa” in his report for the New York Times:

By various accounts, then, it would seem that “La Bella Principessa” is either a real Leonardo worth tens of millions; a 19th-century Italian Renaissance style drawing worth tens of thousands; or a modern fake worth hardly anything at all.

The Sunday Times has published a report that claims Shaun Greenhalgh, a prolific art forger who has fooled the Art Institute Chicago, the British Museum, and countless others may be the creator of this work. He claims he created the work in the 1970s, depicting a “bossy” supermarket clerk named Alison.

Doubts should now increase as to whether this is an authentic Leonardo da Vinci. It was purchased by a Canadian, Peter Silverman, who has been trying to demonstrate the authenticity of the work. It seems the work was made on vellum, but may have been done on the wrong side. The art critic Waldemar Januszczak, part of a consortium publishing a limited run of Greenhalgh’s memoirs, writes in the Sunday Times that Greenhalgh “bought an old land deed that had been written on vellum, and finding the ‘good’ side to be too ink stained to use turned it over and drew on the rough side instead, as Leonardo would never have done”.

For now Silverman will keep the work of art at the Geneva freeport. In an attempt to burnish the reputation of the work, he claims he will offer 10,000 pounds to Greenhalgh if he could reproduce the work on vellum, and criticized Januszczak as “shameless”.

  1. Scott Reyburn, An Art World Mystery Worthy of Leonardo, The New York Times, Dec. 4, 2015, http://www.nytimes.com/2015/12/07/arts/international/an-art-world-mystery-worthy-of-leonardo.html.
  2. Josh Boswell and Tim Rayment, “It”s not a da Vinci, it’s Sally from the Co-op’, The Sunday Times, Nov. 29, 2015, http://www.thesundaytimes.co.uk/sto/news/uk_news/Arts/article1639169.ece .

Muddling Artist’s Moral Rights

A now-faded and defaced bicentennial mural painted on the Prado Dam spillway in Corona, California
A now-faded and defaced bicentennial mural painted on the Prado Dam spillway in Corona, California.

The National Historic Preservation Act has come to the rescue of this mural from 1976, which is badly in need of conservation. But in the process a federal court has muddled the Moral Rights of Artists moving forward. The mural on the Prado Dam near Corona, California was painted by High School students from Corona High School. The Army Corps of Engineers, which manages the dam and spillway planned to remove the mural over concerns of lead paint, tagged graffiti artists who replaced the 1776 with “TOPS”. Carolina Miranda reported for the L.A. Times in June that the image “has become one of the region’s more iconic, unofficial freeway landmarks”. Two groups sought protection in Federal Court for the mural, both the Mural Conservancy of Los Angeles, and one of the original artists and designers of the mural, Ronald Kammeyer.

Nicholas O’Donnell summarizes a recent lawsuit in California which sought to protect this mural. He comes to the conclusion that the Court managed to misunderstand some of the key provisions of the act:

First, the Court accepted (and perhaps the government failed even to understand to challenge) that the plaintiffs have any VARA rights at all.  They almost certainly do not.  VARA rights exist from the date of creation and for the life of the author.  They cannot be assigned or inherited.  That standard applies, as with most laws, to anything created after the effective date of the statute.  But what about earlier works?  The Supreme Court has long held that statutes do not have retroactive effect unless they say so explicitly.  VARA does, but in an usual way:

‘With respect to works of visual art created before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, but title to which has not, as of such effective date, been transferred from the author, the rights conferred by subsection (a) shall be coextensive with, and shall expire at the same time as, the rights conferred by section 106.’

The mural predates the effective date of VARA, obviously.  So the plaintiffs—if they are the “Author”—could only assert VARA rights if they had not transferred title to the physical work (not the copyright, which one or more of them undoubtedly still holds).  But none of the plaintiffs claimed to own the mural, either when it was painted or now.  Someone, possibly Kammeyer alone, possibly Kammeyer jointly with the volunteers who helped him, owns the copyright.  That will endure either alone or as joint work, under the term of copyright.  But could any of them claim to have owned title to the physical work in 1976?  On a federally-owned flood management dam?  It seems a stretch.

The opinion misses this threshold question entirely.  Second, VARA is absolutely a “lifelong” veto when it applies.  That is exactly what it is supposed to endow on the artist.

Good writing matters, both in drafting judicial opinions and also in drafting legislation. The Court and attorneys could be given at least a little reprieve from us as the act it self is terribly arcane. Congress did us no favors when drafting this piece of legislation. I have to agree with O’Donnell—when there are so few judicial opinions in the United States which take up the moral rights of artists, to miss so badly on some key provisions is a missed opportunity.

The Court ultimately upheld the injunction on the basis of the National Historic Preservation Act as the Army Corps of Engineers failed to comply with that act’s “stop, look, and listen provision” which requires federal agencies to “make a reasonable and good faith effort to identify historic properties”. But not before muddling the slowly diminishing respect for the moral rights of artists under VARA.

  1. Kammeyer v. Oneida Total Integrated Enterprises, No. EDCV15869JGBKKX, 2015 WL 5031959 (C.D. Cal. Aug. 24, 2015).
  2. Nicholas O’Donnell, New VARA Ruling Muddies Analysis on Moral Rights and Significance of “Site Specific” Art Art Law Report (2015), http://www.artlawreport.com/2015/11/12/new-vara-ruling-muddies-analysis-on-moral-rights-and-significance-of-site-specific-art/.
  3. Carolina A. Miranda, Court order halts destruction of Prado Dam bicentennial mural in Corona latimes.com (2015), http://www.latimes.com/entertainment/arts/miranda/la-et-cam-restraining-order-temporarily-halts-destruction-of-40-year-old-mural-on-prado-dam-20150609-column.html .