Art Law – Page 4 – Illicit Cultural Property

Buccafusco on Copyright authorship

Christopher Buccafusco, a Professor at Cardozo Law School has posted on SSRN a draft of his work forthcoming in the Virginia Law Review titled “Copyright Authorship”. From the abstract:

The U.S. Constitution gives Congress the power to grant rights to “Authors” for their “Writings.” Despite the centrality of these terms to copyright jurisprudence, neither the courts nor scholars have provided coherent theories about what makes a person an author or what makes a thing a writing. This article articulates and defends a theory of copyrightable authorship. It argues that authorship involves the intentional creation of mental effects in an audience. A writing, then, is any fixed medium capable of producing mental effects. According to this theory, copyright attaches to the original, fixed, and minimally creative form or manner in which an author creates mental effects.

After setting out the theory, this article applies it to a series of current copyright disputes. My authorship theory both expands and contracts the scope of potentially copyrightable works. Some media that have previously been excluded from copyright law, such as gardens, cuisine, and tactile works, now fall within the constitutional grant of rights. By contrast, aspects of copyrightable works, including photographs, taxonomies, and computer programs, may not constitute copyrightable authorship. This theory resolves a number of current and recent copyright cases, and it offers a new approach to the emerging challenges associated with artificial intelligence, the Internet of things, and, ultimately, the impending revision of the Copyright Act.

Buccafusco, Christopher, A Theory of Copyright Authorship (September 23, 2015). Virginia Law Review, 2016, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2664891

Picasso Work Seized in Corsica

"Head of a Young Woman" by Pablo Picasso was seized by French customs officials on the island of Corsica — “Head of a Young Woman” by Pablo Picasso was seized by French customs officials on the island of Corsica

French customs officials seized this work by Pablo Picasso from a yacht off the coast of Corsica. It was reportedly about to be flown to Switzerland on a private jet. Henry Samuel reported for the Telegraph that:

The work Picasso painted in 1906 and valued at “more than €25 million” is the property of Spanish billionaire Jaime Botin, the largest shareholder of Bankinter and whose great grandfather founded Spain’s largest bank, Santander. Mr Botin reportedly bought the painting in 1977 at the Marlborough Fine Art Fair in London for his personal collection.

He has a stake in the company that owns the yacht where the painting was found but “was not on board at the time”.

The seizure is the latest chapter in a three-year battle by the 79-year-old billionaire, Spain’s 15th richest man according to Forbes, to take the Picasso out of Spain and auction it off in London.

Agence France-Presse, Authorities in France Seize Picasso Painting Banned from Leaving Spain, The Guardian, Aug. 4, 2015, http://www.theguardian.com/artanddesign/2015/aug/04/authorities-in-france-seize-picasso-painting-banned-from-leaving-spain.
Henry Samuel, Picasso worth €25m seized from British-registered yacht off Corsica (8–4, 2015), http://www.telegraph.co.uk/news/worldnews/europe/france/11782480/Picasso-worth-25m-seized-from-British-registered-yacht-off-Corsica.html.

A Polke Painting Discovered in Thrift Shop?

A detail from a painting which may be by Sigmar Polke, via ABC News

A thrift store called The Guild Shop in Houston may have sold an original work by Sigmar Polke in May. It had been sitting in the shop for 100 days until Ray Riley bought the work for $90.

Continue reading “A Polke Painting Discovered in Thrift Shop?”

Richard Prince’s Appropriation Isn’t New

Richard Prince's Instagram Prints at the GAgosian gallery, via — Richard Prince’s Instagram Prints at the Gagosian gallery, via artfcity

The terrific daily JSTOR points out that Richard Prince and his appropriation of Instagram photos is nothing new, in fact some argued his ideas weren’t even new 25 years ago:

Prince’s artistic practice has always been challenged by critics, though likewise his very forthright practice and process challenges viewers, gallerists, art patrons, and the public at large to consider and debate the very value of art and copyright, now questioning what it means to own, create, and appropriate public art in this digital age.

In a 1988 interview with Prince, Marvin Halferman asked about Warhol’s influence upon his photographic works, to which Prince responded, “I wanted to use photography because it has another…history. Painting, silk screen, drawing, they suggest something else. But photography suggested belief. It suggests fact. I thought that because I was choosing subject matter that was in fact, fiction, it might be better to use a factual medium to level that fiction, to occupy an area of ‘official fiction.’”

It seems that Prince’s blending of fact and fiction via photography has now expanded into the much murkier waters of social media, where an exponentially growing public archive is available to him as his medium.

Whether praised for his continued relevance in the conversation surrounding ownership and the digital archive or whether condemned for his lack of originality and accused of outright stealing, Prince continues to sell his work and name while sparking important and relevant conversations.

Cooke sums it up best back in ‘92 saying, “Whether it is encountered in actuality or in reproduction matters little, for Prince’s works function best when they act as reminders of themselves, as traces of what has already been seen, revealed, or known.” Instagram currently has 300 million active users who are likely intricately and personally embedded in this network of friends, family, celebrity, and strangers alike.

Lynne Cooke, Richard Prince. New York, Whitney Museum, 134 The Burlington Mag. 554 (1992).

Marvin Heiferman & Richard Prince, Richard Prince, BOMB 34 (1988).

5Pointz Suit Continues

The legal battle over 5Pointz has entered a new phase this week, as a complaint by some of the artists whose works were destroyed when the building was whitewashed has been filed in Federal Court. Though this may seem to be a new suit or new proceeding, it really should be viewed as a continuation of the dispute that has been ongoing since 2013 and earlier. Only instead of asking a court to prevent the destruction of the works at issue, now the artists are seeking compensation for the actual destruction of the works when they were whitewashed. Nicholas O’Donnell has kindly posted this new complaint on his blog, and he argues that one interesting thing to watch in the dispute, is the measure of damages: Continue reading “5Pointz Suit Continues”

Good Luck to the Cultural Heritage Law Teams in Chicago

Alexander Calder's 'Flamingo' — Alexander Calder’s ‘Flamingo’

Good luck to all the teams fighting over the Blue Pineapple in Chicago at the National Cultural Heritage Law Moot Court competition this weekend! This competition is put together by DePaul College of Law with the help of the Lawyers’ Committee for Cultural Heritage Preservation. It’s a great showcase for these soon-to-be-lawyers and this field. A bit about this year’s problem:

The 2015 Competition will focus on constitutional challenges to the Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. § 106A, which protects visual artists’ moral rights of attribution and integrity. The problem will address both a First Amendment and a Fifth Amendment challenge to VARA.

Cultural heritage law deals with our most prized possessions and often spans beyond national borders, and, inevitably, has become the subject of often contentious legal debates and policies. This dynamic and growing legal field deals with the issues that arise as our society comes to appreciate the important symbolic, historical and emotional role that cultural heritage plays in our lives. It encompasses several disparate areas: protection of archaeological sites; preservation of historic structures and the built environment; preservation of and respect for both tangible and intangible indigenous cultural heritage; the international market in art works and antiquities; and recovery of stolen art works.

And Chicago must be the place to be for art and cultural heritage law this weekend, as the University of Chicago’s Neubauer Collegium will also be hosting a two-day conference titled: ‘Archaeological Looting: Realities and Possibilities for New Policy Approaches’.

Germany sued over Nazi-era Medieval art sale

The 13th-century Dome Reliquary, part of the Welfenschatz or Guelph Treasure, is displayed at the Bode Museum in Berlin

“Any transaction in 1935, where the sellers on the one side were Jews and the buyer on the other side was the Nazi state itself is by definition a void transaction”.

So argues Nicholas O’Donnell, an attorney representing descendants of the Jewish art dealers who sold a collection of medieval artworks known as the “Guelph” or “Welfenschatz” Treasure, allegedly under duress and threat of persecution. The complaint for the two heirs was filed in U.S. District Court in Washington D.C. to recover yesterday afternoon. The objects were part of the treasury of the Braunschweig cathedral and were used to store and display relics. The claimants allege that a group of Jewish art dealers were forced to sell the objects in 1935 to the German state of Prussia.

One unfortuante aspect here is that the German commission charged with resolving the claims of Nazi-era claimants was unable to achieve a satisfactory result for the claimants and the German government. One of the likely issues in this dispute will be one the timelinesss of this suit, whether a court will examine the circumstances surrounding an alleged forced sale nearly 80 years after it took place. The complaint alleges that the objects were sold under persecution for 4.15 million Reichsmarks (RM). If we do some rough back-of-the-envelope calculations, the exchange rate was 2.45 RM for $1. So that means the objects were sold for just shy of $1.7 million in 1935 dollars, which be nearly $28 million today. Considering the treasure may be worth as much as $226m, the German State seems to have received a pretty good bargain. The legal question will be whether that sale was under duress.

O’Donnell argues in his blog this morning:

Continue reading “Germany sued over Nazi-era Medieval art sale”

Call for Papers: Art & Law in Peril

Art & Law: Art in Peril

An Interdisciplinary Conference

23 June 2015, University of Cambridge

Art & Law: Art in Peril is an interdisciplinary conference convened to discuss varying perspectives on questions of art and law and to break down the barriers of specialization. Art & Law: Art in Peril intends to improve communication and promote an exchange on the most pressing issues at the juncture of art and law. We aim to compose panels of speakers from a variety of disciplines, grouping papers by theme, geographic or temporal location, rather than by academic department.

We encourage submissions from scholars and professionals in art history, law, archeology, history, public policy, museum studies, classics, art conservation, and beyond. Suggested topics include, but are by no means limited to:

Historical perspectives on the interrelationship between art and law
Consequences of current conflicts on art and cultural heritage sites and objects in the Middle East (or elsewhere)
Perspectives towards notions of originality and authenticity of artwork
The legal aspects of the conservation of objects, sites, and/or structures
International dispute resolution of cultural property whose ownership is disputed
The relationship between cultural property and intellectual property
Human remains, collections, and the law
The digitization of artwork and visual culture

We intend to publish proceedings from the conference in either a journal, or as a stand-alone anthology.

Please email abstracts of no more than 300 words to Sarah Rabinowe at art.law.cambridge@gmail.com by 28 February 2015. Along with the abstract please include your name, institution, paper title and a brief biography. Successful applicants will be notified by 13 March 2015. Selected speakers will be given further information about the Travel Fund available to offset transportation and accommodation costs.

Art & Law: Art in Peril will take place at the University of Cambridge, Pembroke College with an evening reception at the Sedgwick Museum of Earth Sciences. Upon request, assistance with accommodation reservations will be provided.

“New” Leonardo da Vinci seized in Switzerland

A portrait of Isabella d'Este, seized from a bank vault in Lugano — A portrait of Isabella d’Este, seized from a bank vault in Lugano

A joint Swiss and Italian investigation has resulted in a seizure of this portrait, which may be a work by Leonardo da Vinci. Whether the work is, in fact, a recently surfaced work by the Renaissance master is very much in doubt. Some have tried to attribute the work to him the Telegraph reports:

Carbon dating has shown that there is a 95 per cent probability that the portrait was painted between 1460 and 1650, and tests have shown that the primer used to treat the canvas corresponds to that employed by the Renaissance genius.

Carlo Pedretti, a professor emeritus of art history and an expert in Leonardo studies at the University of California, Los Angeles, said the tests showed there were “no doubts” that the portrait was the work of Leonardo.

However Martin Kemp, professor emeritus of the history of art at Trinity College, Oxford, and one of the world’s foremost experts on the artist, has expressed doubts about whether the painting, which measures 24in by 18in, is the work of Leonardo.

Continue reading ““New” Leonardo da Vinci seized in Switzerland”

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.