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.
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.
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”.
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.
Kammeyer v. Oneida Total Integrated Enterprises, No. EDCV15869JGBKKX, 2015 WL 5031959 (C.D. Cal. Aug. 24, 2015).
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
“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.
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.
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.
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 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’.
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.
