Art Law – Page 5 – Illicit Cultural Property

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.

“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.

Continue reading ““Yamatane” and temporary art”

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.

Continue reading “Litigation seems inevitable in the Gurlitt case”

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.

Continue reading “How Law Defines Art”

Ninth Circuit to hear Artist’s Resale Rights Appeal

In 2001 a number of artists including Chuck Close, Laddie John Dill, and the estates of Robert Graham and Sam Francis brought suit against auction houses and eBay to receive royalties they had been owed under California’s Resale Royalty Act. That Moral Rights legislation provided that visual artists should receive 5% of the resale price when their work was resold by a California resident, or resold in the state of California for more than $1,000. The District Court struck down the law as unconstitutional on the grounds that commerce like this must be regulated at the federal level under the Commerce Clause to the Constitution. Continue reading “Ninth Circuit to hear Artist’s Resale Rights Appeal”

A museum asks the audience to find a forgery

"Great Republic" by James E. Buttersworth ~1850 — “Great Republic” by James E. Buttersworth ~1850

The Mariners’ Museum in Newport News Virginia has crassly bowed to the need for more visitors and made the decision to exhibit a number of works by James E. Buttersworth alongside a forgery of his work by Ken Perenyi. The attraction with forged art knows no bounds it seems. How would the artist feel to know that decades later his work was being displayed alongside the work of a criminal:

A small Buttersworth in good condition might sell for $30,000, said Alan Granby, who, with Janice Hyland, runs Hyland Granby Antiques in Hyannis Port, Mass, which usually has several Buttersworths for sale. The much rarer large paintings, especially those depicting America’s Cup races, can go for more than $1 million. Mr. Perenyi said that his prices range from $5,000 to $150,000.

The museum has made a point of not mentioning Mr. Perenyi, who said he did not know until a reporter approached him that his work was in its current show. “We did not want to lend any legitimacy to the forger or be seen as promoting him in any way,” Mr. Forbes said.

On entering the exhibition, visitors approach a high-resolution digital image of “Magic and Gracie off Castle Garden,” an 1871 Butterworth that shows two yachts, sails taut in the wind, racing neck and neck in New York Harbor. On a nearby television screen, a photo of Buttersworth pops up, and “hot spots,” activated with the touch of a finger, explain the fine points: the signature, size, background features, sky and weather, seas and sea gulls, composition and meticulous detailing of the ships.

Visitors, prompted by clues in the wall texts, then try to identify the lone forgery. At two voting booths, they can test their suspicions by entering the number of the suspected forgery on touch screens that tell them whether they are right or wrong and offer to give them the correct answer. Then the honor system applies. Those in the know are asked not to give away the secret.

William Grimes, To Reel In Crowds, a Museum Is Showing a Fake Painting, The New York Times, Oct. 31, 2014.

Review of “Art and Craft”, the Landis documentary

Mark Landis on a "philanthropic binge" — Mark Landis on a “philanthropic binge”

We might forgive the casual observer’s relaxed views of art forgers. Perhaps because many of us, on some level, love an outlaw. Tales of art forgers have been popular: Clifford Irving’s Fake! (1969) examined the life of notorious art faker Elmyr de Höry. Orson Welles’ documentary examination of creation and storytelling F for Fake (1973) still cuts to the heart of what it means to make art. Done well, portrayals of art forgery force us to question the aesthetic experience. Yet many fail to acknowledge the underlying wrongdoing. Putting aside their colorful stories and backgrounds, all art counterfeiters are creating an elaborate lie. These individuals defraud our collective cultural heritage by distorting the body of work that artists have created. Prof. John Henry Merryman has called art counterfeiters “cultural vandals”. Those who watch the new documentary, Art and Craft, will first want to mark its subject as a vandal, but by the end may feel differently about him.

The documentary offers a terrific examination of the complicated predicament Landis gifted to at least 46 museums in 20 States. And does so by allowing the museum staff and Landis himself to tell us how he was able to fool so many for so long.

Landis would forge works with skill, such skill that he was able to use surprisingly inexpensive materials. But rather than sell his works, he would pose as a donor and give away his forged work. Most recently he impersonated a Jesuit priest. In the past he would pretend to come from old money. He would arrive at mostly small to mid-size art museums in his deceased mother’s cadillac and give his forged creations away. The documentary film, directed by Sam Cullman and Jennifer Grausman, with Mark Becker co-directing, gives us a first-hand view of how Landis creates forgeries and shows him giving them away. Viewers will come away with different impressions of the man. Landis battles anxiety, schizophrenia, and other mental illnesses. In scenes where he describes his day-to-day well-being to doctors and caregivers, he’s asked how he stays busy, how he engages with the world.

Landis forges with simple materials: instant coffee, cheap frames, plywood, photocopies, some paint and most of all clever technique. His materials are purchased from chain hobby and home improvement stores. The man who finally caught Landis was Mat Leininger, a former Registrar at the Oklahoma City Museum of Art The filmmakers hint at but don’t quite dive in to the tricky question of whether Leinenger’s pursuit of Landis and his forgeries made his employers at the Cincinnati Art Museum uncomfortable, or if there were other reasons for his dismissal. But for much of the film Leininger offer’s Prof. Merryman’s position, basically pointing out Landis’s wrongdoing, and expressing frustration at how difficult it can be to convince some museum staff that they have been fooled. Special praise should go to those curators who were willing to be filmed on camera after having been fooled.

Continue reading “Review of “Art and Craft”, the Landis documentary”

Cultural Heritage Law Moot Court Competition

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

DePaul is once again hosting its terrific National Cultural Heritage Law Moot Court Competition. This is a terrific tournament, in its sixth year, with rounds argued in the Dirksen Federal Building in Chicago. If you are a law student interested in meeting some cultural heritage lawyers, and getting some great moot court experience, this is a terrific opportunity. There is still time to register. Here are the details:

DePaul College of Law and the Lawyers’ Committee for Cultural Heritage Preservation are pleased to announce that registration for the Sixth Annual Cultural Heritage Law Moot Court Competition is now open! The Oral Arguments for the 2015 Competition will be held on February 27^th and 28^th, 2015 at the Everett M. Dirksen United States Courthouse, home of the United States Court of Appeals for the Seventh Circuit, in Chicago, Illinois.

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.

The competition is open to 26 two- and three-member student teams from ABA-accredited or provisionally accredited law schools. Schools may register up to two teams at a rate of $450.00 per team. The registration deadline is November 20, 2014. The problem will be released on November 21, 2014. Visit the competition website at go.depaul.edu/chmoot for additional details or to register a team. Contact the Competition Board at chmoot@gmail.com with any questions regarding the competition.

Attorneys interested in serving as judges or brief graders should contact chmootjudges@gmail.com. CLE credit is available for attorneys who participate as judges.