“James Turrell should write a legal brief”

James Turrell's Skyspace at Rice University.
James Turrell’s Skyspace at Rice University.

At least according to Daniel Grant. James Turrell, the artist whose medium is color itself, should instead turn to art law to gain more attention. The premise is exaggerated for effect, but only slightly when you consider the range of recent art law disputes questioning the very foundation of the visual arts. It is a great time to be interested in the intersection of art and law.

You really should go read the whole piece, but here are two clips. First, disputes over the nature of art itself have been examined, including whether art is art without its certificate of authenticity:

 In May, a Puerto Rican art collector and dealer named Roderic Steinkamp brought a lawsuit against Chicago art gallery owner Rhona Hoffman for having lost a work of art that he had consigned to her. Well, sort of. He had entrusted to her a certificate of authenticity and a diagram for a Sol Lewitt wall drawing, not the wall drawing itself, and she somehow lost this paperwork. Big deal, you think: you ask the Sol Lewitt estate for a duplicate certificate and diagram, maybe pay a fee for the trouble, just as you would if you lost the deed to your house or car. However, the Lewitt estate said no. “We don’t give duplicates,” said Susanna Singer, long-time business manager for Sol Lewitt and now an advisor to the estate. “We don’t want two certificates out there, raising the question of which is the real one.” . . . It’s the view of the estate that the certificate of authenticity and especially the diagram are the actual work of art; the paperwork is the art, rather than an installation of the wall drawing, and in this instance no installation appears to have taken place.

Grant concludes:

The portion of the legal community that focuses on the arts (literary, performing, and visual) is still small, in part because there aren’t really that many disputes requiring counsel, and also because the people most likely to be wronged are lesser-known artists without the resources to pay for lawyers. It was big money that drove the lawsuits most recently, but these cases are also notable because they ask basic questions, from what is art to who decides where and how it will be sold and displayed. They’re questions that in an earlier age might have been more a part of the general discourse but are now left to the courts to decide. Perhaps, if he wants more attention, James Turrell should write a legal brief.

The birth of art law as a field can only really be traced to 1979 and John Henry Merryman at Stanford, though there were of course legal disputes over art long before that. Yet he got lawyers and artists to think in an organized way about the intersection between law and the visual arts. Those questions seem to be getting more foundational as art becomes more conceptual, challenging our ideas of how value for art is created and how to resolve the inevitable disputes. Lawyers follow money sure, but so does art.

  1. Daniel Grant, The Art of Art Lawsuits, Hyperallergic (2014).

New York’s highest court preserves art trade anonymity

New York’s highest court has issued its opinion in the dispute between the Jenack auction house and Albert Rabizadeh. At issue was whether Rabizadeh would be required to follow through with his winning auction bid for this 19th century Russian box ornamented with silver and enamel. The intermediate appellate court had earlier left a small window open which might use the statute of frauds to compel auction houses to reveal more information about consignors, buyers and sellers. That will not be happening any time soon, at least via this case.

The Court held:

We agree with the Appellate Division that the absentee bidder form, along with the clerking sheet, provide the necessary information to establish the name of Rabizadeh as the buyer. This conclusion is inescapable given that each of the documents contained information pertaining to the terms of the sale as required by the Statute. Both contain the item number, the bidder number, the auctioneer, and a detailed description of the item.

So essentially there are enough details in auction house practice to preclude a possible fraud being committed on a buyer or seller. And the underlying bad behavior by Mr. Rabizadeh of bidding up to $400,000 and then refusing to pay had much to do with the decision by New York’s highest court.

The 18th century Russian decorative box that Mr. Rabizadeh bid at $400,000
The 18th century Russian decorative box that Mr. Rabizadeh bid at $400,000

Nicholas O’Donnell agrees:

So where does this leave all the upheaval of the past year?  It resolves the question conclusively in the most important art market in the United States, no small thing: an auctioneer is the person on whose account the sale is made as a matter of agency, and they need not disclose the actual consignor or owner.  The uncertainty of the past year in which a winning bidder could have forced the disclosure of the actual consignment owner is finished for good.  Auction houses to whom these practices are important will no doubt breathe a sigh of relief.

Is all this a good thing?  The fact remains that no one makes an auction purchase at gunpoint, and if anonymity drives the availability of art, then it is hard to quarrel with.  Those more focused on smuggled antiquities or looted art may be concerned that it will keep what they view as important provenance information unavailable.  There too, however, the fact is that without anonymity any object with issues wouldn’t even appear on the market.  Indeed, that visibility may (ironically, from the smugglers’ perspective) pull more out of the shadows.

5Pointz Whitewashed

5pointz artworks being whitewashed
5pointz artworks being whitewashed

Very early this morning the artwork at the 5Pointz was whitewashed over at the urging of Jerry and David Walkoff, the landlords of the building. 5 Pointz has become a canvas for Graffiti artists. Last week a federal judge in Brooklyn denied a temporary injunction petition by artists seeking to save the building from demolition.

In an interesting twist, this whitewashing may be considered an act of intentional mutilation and destruction, and may in fact make VARA claims for these artists more likely to succeed—particularly if the intentional destruction of these works can be shown to prejudice the honor and reputation of specific individuals. The whitewashing was certainly done in a direct way to preclude further legal action, but it may have only emboldened opponents and demonstrated some really egregious bad faith on the part of the building owners.

New York’s highest court orders return of Assyrian gold tablet to Germany

The Assyrian gold tablet excavated by German archaeologists before WWI
The Assyrian gold tablet excavated by German archaeologists before WWI

“Allowing the Estate to retain the tablet based on a spoils of war doctrine would be fundamentally unjust.”

So held New York’s highest court in a ruling today ordering the return of this Ancient gold antiquity to Germany. This was the second appeal to resolve the dispute over this small tablet. In an earlier probate proceeding, the estate was allowed to keep the tablet on the grounds that the German museum had waited too long to make its claim. The German claimant was the Vorderasiatisches Museum, a branch of the Pergamon in Berlin.

Here’s the story of the tablet based on the court’s ruling. Its a 3,000-year-old gold tablet which dates to the 13th Century BCE. The tablet was found before the first World War by German archaeologists near the Ishtar temple in Ashur, Iraq. The tablet was in the inventory of a Berlin Museum starting in 1926. The Museum was closed during the second World War, and its collection was put in storage. But in 1945 the tablet was discovered to be missing.

The tablet “resurfaced” in 2003 when its possessor, Riven Flamenbaum, passed away and his daughter and executor of his estate Hannah listed a “coin collection” in the accounting. But her brother Israel objected to the accounting and asserted that what he described as a “gold wafer” was an ancient Assyrian artifact and properly belonged to a German Museum.

The court opinion is silent on how Flamenbaum may have acquired the tablet. The story according to the family was that the elder Flamenbaum, an Auschwitz holocaust survivor, acquired the tablet from a Russian soldier in exchange for cigarettes. Hannah Flamenbau is quoted by the AP with respect to her claim that “The thought was if we’re allowed to retain it, put it on display in one of the museums, whether down here in Battery Park City in Manhattan or even in Israel. Use it as a way to talk about the Holocaust … and my parents’ story”.

The estate argued that it should retain the tablet because of the doctrine of laches, an equitable legal principle that essentially says it would be unjust to let a claimant wait this long to make a claim. However, the New York Court of Appeals held that though there may have been a delay, it was not unreasonable in light of the circumstances, and importantly no injustice would be done to the estate. Especially considering there was an indication that Flamenbaum knew the tablet rightfully belonged to a German museum.

The other claim was that when Russia invaded Germany, Russia acquired artifacts like the tablet from Germany as spoils of war, and thus the German Museum could no longer hold good title. This legal argument conflicts with the steady stream of domestic and international principles of the last 150 years. You cannot invade a nation and strip it of its works of art. And so, this unlikely dispute which arose out of a dispute between siblings who lost their father results in the return of this gold tablet to Germany.

In re Flamenbaum, 213 NY Slip Op 07510 (N.Y. 2013).

Berlin Museum Seeks Return of Ancient Gold Tablet.” AP, October 15, 2013.

Even hoarders of art have rights

A Sketch by Canalletto
One of the works recovered in Munich, a sketch by Canaletto

Some of the dust has settled after the frenzied early reports about the cache of art found in a Munich apartment. We can start to see what the discovery of all this art means. The Art Newspaper has the best English-language account I’ve seen of the press conference yesterday. We know that German authorities seized 121 framed works; and 1,285 unframed works. The search of the apartment occurred in February 2012—not in 2011 as many initial reports indicated. Cornelius Gurlitt also owns a home in Salzburg, Austria, and his immediate location is not known. The authorities in Augsburg invite individuals who may be seeking the return of art to contact the prosecutor’s office there.

There has been a great deal of criticism levied against German officials. But I’ve yet to see any wrongdoing on their part. An 18 month delay does not strike me as unjustified given the enormity of this recovery and the difficult task uncovering the history of all these works. As unpleasant as it may be, we have to remember that Mr. Gurlitt has rights, and nations cannot just strip him of his property rights. It appears as if original owners may be able to be tracked down for much of this art. But for art spoliated during World War II, there was a wide spectrum of art that was taken—from outright theft on one end to sales under duress, to even some fair transactions at the other. Its also possible that Gurlitt may have good title to a substantial portion of this art. The German authorities are likely examining how best to navigate this difficult issue. If it appears like they were misleading or held ulterior motives, then criticism is certainly warranted, but I’ve yet to see it.

Rather than release a list of the works and their images, German authorities have made the decision to task one individual, Meike Hoffmann, an art historian, to research potential claimants. Reinhard Nemetz, the chief prosecutor in Augsburg said the list won’t be published as:

We would prefer to have people coming to us to tell us which pictures they are missing than making them public and having 10 claimants for each one…

So rather than a host of conflicting claims, prosecutors can match existing claimants.

It may also be wise to temper some of the claims about the value of all this art. the AP spoke with Christoph Zuschlag, an expert on so-called ‘degenerate art’:

We need to see whether these were originals or prints…

Continuing that of the 21,000 pieces of ‘degenerate’ art which were seized, 2/3 were prints. Only 1/3 were originals.

That is an appropriately cautious way to think about all this art I think. Because one of the most interesting things this discovery may signal is how much we might be mistaken about the Nazi’s and ‘degenerate’ art. As Jonathan Jones writes:

Gurlitt’s cache reveals that many assumptions about the Nazis and art are simply untrue. The Degenerate Art exhibition was real enough – but did it really mean the Nazis hated modern art? It is because we take this for granted that no one has been searching for lost “degenerate” works such as those in the flat in Munich. Some works from the Entartete Kunst exhibition, many seized from once-progressive German museums, were sold abroad afterwards. Others have vanished. As the war began and Nazi racial policies became ever more explicit, more modern and pre-modern works were seized or bought for a pittance from Jewish owners. Much was destroyed. Or was it?


Michalska, Julia. “Details of Naziloot Cache Revealed.” The Art Newspaper, Nov. 5, 2013.  
Smale, Alison. “Report of Nazi-Looted Trove Puts Art World in an UproarThe New York Times, November 4, 2013. 
AP. “German Gov’t Helping Probe Into Huge Art Find.” via ABC News, November 4, 2013. 

Massive trove of modern art discovered

The apartment block in Munich where 1500 were discovered in 2011
The apartment block in Munich where 1500 were discovered in 2011

The recovery rate for stolen art may take a dramatic shift towards original owners. The German magazine Focus has broken the story of an incredible find. One of the most remarkable discoveries of stolen art that I can think of. A reported 1,500 works of art by artists including Matisse, Picasso, Chagall, Klee, and others was stored in an apartment in Berlin for years. The works were likely spoliated by Nazis during the 1930s-40s.

When authorities executed a search warrant they found the works stacked in a dark room in a flat in this apartment block in Munich. They were hidden there by Cornelius Gurlitt, now 80, who was the son of a Munich art dealer.

The works were discovered after tax authorities executed a search warrant of Gurlitt’s apartment in 2011. He was stopped on a train bound for Switzerland with 9,000 euros in cash, and had plans to deposit the money in undeclared Swiss accounts. When the authorities searched his home they found what must be one of the largest ever single recoveries of stolen art.

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Dispute over Klimt’s “Beethoven Frieze”

The “Beethoven Frieze” (1902), by Gustav Klimt
The “Beethoven Frieze” (1902), by Gustav Klimt

An interesting dispute is unfolding involving this terrific Klimt. It involves a sale of the work which was given at far below the market price in exchange for the export of other works of art. From the NYT:

The gold-painted frieze was owned by the Lederer family, wealthy Austrian Jews who were important patrons of Klimt’s. When the Nazis invaded Austria in 1938, the family escaped to Switzerland, but its extensive art collection was seized and its once formidable industrial empire bankrupted. Many of the family’s valuable works, including 18 Klimts, were destroyed in the final days of the war.

The mammoth frieze survived and was formally returned to Erich Lederer, the family heir, after the war. But there was a hitch. The Austrian government would grant him export licenses for his other artworks only if he sold the “Beethoven Frieze” to the state at a cut-rate price, Mr. Lederer’s heirs say.

In a 1972 letter to Bruno Kreisky, then the Austrian chancellor, Mr. Lederer complained about what he considered government extortion, writing that officials were “trying to force me to my knees” and thinking “why won’t he finally die, this LEDERER!”

Mr. Lederer finally agreed to sell the frieze to the government in 1973 for $750,000: half of its estimated worth at the time, according to an evaluation by Christie’s. Since 1986, it has been on view at the turn-of-the-century Secession gallery, where it was first shown at a 1902 exhibition named after Klimt’s breakthrough art movement.

Georg Graf, a law professor and restitution expert at the University of Salzburg, who is supporting the family’s claim, said, “While the Austrian Republic did formally return the artwork after the war, it ultimately forced Erich Lederer to sell it back in old age by upholding the export ban.”

Cohen, Patricia. “Heirs Press Austria to Return Looted Klimt Frieze.The New York Times, October 15, 2013.

The Art Loss Register profiled in the New York Times

The Art Loss Register and Julian Radcliffe got the New York Times treatment last week. I think it was an accurate portrayal of the ALR and its role in the art market. I couldn’t help but be a little disappointed in many of the same art crime tropes that some are unable to resist in a piece like this. Things like Radcliffe’s physical appearance, his almost spy-novel backstory, and other aspects distracted me from some of the good reporting in the piece.

The main point holds true I think, that nobody really loves the ALR, but they do perform a service for the Art Market. Much of the criticism lobbied against the organization is entirely justified, but many critics point to the fact that the ALR not only is a database, but also acts as a stolen art recovery service, in exchange for a sizable portion of the value of the work. That has often put them in an uneasy position.

For example the incident involving a Norman Rockwell painting, ‘Russian Schoolroom’ is discussed:

Judy Goffman Cutler, an art dealer who became entangled in a Register hunt for a Norman Rockwell painting, has sued the company twice, contending that it harassed her for years in its zeal to collect a fee for recovering the work.

Mrs. Cutler had clear title to the painting in 1989, when she sold it to the director Steven Spielberg. Later it was mistakenly listed as stolen by the F.B.I. and, consequently, the Register, which tried for years to recover it.

Mrs. Cutler said that the Register pursued her even after company officials had reason to know she had done nothing wrong. Neither of her suits against the company succeeded, and she is still angry.

“They knew better but chose to follow the greedy path,” she said.

The Register has characterized its dispute with Mrs. Cutler as a misunderstanding based on faulty information it received from the F.B.I. and others that suggested that the painting was stolen.

I have heard many similar arguments and criticisms of the ALR. Dorothy King relates a similar example from last year.

Have any experience dealing with the ALR that you’d like to share? Comment below or drop me a note.

  1. Kate Taylor & Lorne Manly, Tracking Stolen Art, for Profit, and Blurring a Few Lines, The New York Times, September 20, 2013.

Chappell on Art Theft

Duncan Chappell uses the occasion of a loan exhibition of William Turner works on display at the National Gallery in Canberra—which does not include a couple of well-known stolen-then-recovered works.

He then discusses the persistent problem of stolen art:


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Will the Statute of Frauds Add Transparency to the Art Trade?

In his seminal 1982 article, Harvard Law Professor Paul Bator noted that the art trade is shrouded in mystery. In the thirty years since Bator examined the international art market, little has changed with respect to the basic information which is made available when works of art are bought and sold at auction. Auction house catalogues typically include little more than a cursory “this work is from a private collection”. That may change, at least in New York when the State’s highest court will take up a recent auction dispute.

Continue reading “Will the Statute of Frauds Add Transparency to the Art Trade?”