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Know What you Want Before you Lawyer Up


I’m just catching up with this story, but I think its a fascinating dispute. The Massachusetts Museum of Contemporary Art (MASS MoCA) has won its suit against artist Christoph Buchel, and is free to display a massive unfinished work “Training Ground for Democracy”. Federal District court judge Ponser ruled Friday the Visual Artists Rights Act (VARA) does not prevent the display of the unfinished work. The Boston Globe has a good overview of the case.

VARA gives artists the right, in some circumstances, to prevent unauthorized distortion or mutilation of the work. The judge ruled the work hasn’t been distorted, because it’s not finished. It seems there was some kind of falling out between Mass MoCA and Buchel. The museum then brought suit to gain the right to display the unfinished work.

What strikes me about this case, is the tendency to see litigation as a cure-all. You can win a lawsuit and still come out a loser. A good lawyer encourages a client to think about what the end result will be, even if they earn a court victory. I don’t know what the museum sought to gain by initiating a suit against Buchel, but they have certainly damaged their reputation among artists. What are they gaining by displaying a work the artist himself wants nothing to do with?

There is a lot of great commentary which tries to answer that question.

  • Donn Zaretsky, Buchel’s counsel, has been posting his thoughts at the excellent Art Law blog. He expresses disappointment at the result, as “if you can’t read VARA to prevent [what NY Times reporter Roberta Smith calls an opening which has ‘broken faith with the artist, the public and art itself’], you’re not trying hard enough. So needless to say, we were very disappointed by the result of Friday’s hearing in Springfield.”
  • Mike Madison argues the judge probably made the right decision, as a “work of visual art” only exists when a work is fully realized and finished. In essence it can’t be distorted because it’s not a work yet. He also points out the claim may have more to do with trademark, and that’s essentially the remedy the judge provided: the work can be displayed but only with a disclaimer.
  • Lee Rosenbaum notes Judge Ponser was “extremely moved” by the installation, and found it “very powerful”. She argues MASS MoCA should show the installation for a week, recoup the $300,000 it invested and move on.
  • Ed Winkelman argues the result was the product of two unfortunate decisions. First was the decision by the museum to take the issue to court, “what’s the core message here? Money invested trumps artistic vision?” And second, the legal decision was “a hair-splitting technocratic decision that ignores the spirit of the law”.
Questions or Comments? Email me at derek.fincham@gmail.com

Hire This JD/PhD!

Please forgive the self-promotion, but I am approaching the end of my time as a PhD candidate here at the University of Aberdeen, and my wife is quite understandably tired of supporting my education habit. Two 3-year postgraduate programs really are about the limit, so I’ve reluctantly concluded that I should get myself employed.

I will be submitting my thesis tentatively titled “The US and UK Response to the Illicit Trade in Cultural Property” in November of this year. If you think I would be a good addition to your law faculty, arts institution, law firm (or anything really) please visit my web page where I’ve listed my qualifications, publications, teaching experience, and research interests. Location is no obstacle, we would be excited to move anywhere in North America or Europe especially.

I have submitted my information to the AALS, so any law professors who may enjoy my writing, I would appreciate a kind word to your hiring chairs. I’m cautiously optimistic about the process, but I would also be interested in some teaching fellowships as well.

If you have further questions you can email me at derek.fincham “at” gmail.com.

Questions or Comments? Email me at derek.fincham@gmail.com

"Loot" Reviewed


This weekend I’ve had a chance to finally finish Loot: Inside the World of Stolen Art, by Thomas McShane with Dary Matera. McShane worked as an undercover agent for the FBI for 36 years, and recovered a number of works of art. In order to win the confidence of the handlers of the stolen works, McShane had to adopt aliases, most notably Thomas Bishop, the elegantly dressed art buyer.

The book starts strong, revealing the recovery of Rembrandt’s the Rabbi. The theft from the Bonnat Museum was “[a]s is so often the case with art thefts…a crime of opportunity rather than precision planning. On 1 March 1971, a young French art student named Robert LeBec visited the Bonnat Museum as he often did to study the brushtrokes of the ancient masters.” The travels of the work reveal a great deal about art theft. The work was very easy to steal, but the handlers were unable to unload it, and it seemed to cause them nothing but trouble. I enjoyed the description of smaller art museums as “reminiscent of the ‘easy jug’ banks American bandit John Dillinger robbed with impunity 40 years earlier. Security was lax or non-existent. Alarm systems, if present, were rudimentary and easily overcome. The atmosphere was friendly and hands-on.”

Most of the book accounts how McShane transformed himself into his art buying alter-ego. He would invariably set up a “buy”, then authenticate the work, checking the brush strokes, paint composition, nails on the canvas; and then would signal the other agents listening in to make the bust. Interestingly McShane was always arrested with the thieves, to preserve his cover.

The stories are interesting, and fun to read. The book was great summer reading, but unfortunately it never seems to go below the surface. Part of that may be that McShane is unable or unwilling to reveal what goes on behind the scenes. For example, he would always get “tipped” that someone was looking to unload a Picasso or major work. It would be interesting to know how difficult it really is to fence stolen artwork. McShane gives a baseline. A thief can usually expect to get 10% of a stolen painting’s value. But how often to museums cave in and pay a ransom. What about insurance companies? Is it more important to recover the work or catch the thief?

One of the most interesting chapters involved Picasso’s still-missing Man with the Purple Hat. It was a 6 foot bright-purple canvas which was stolen on the way from Houston’s Jasper Museum to Manhattan. The work was sealed in a truck in Houston, but when it arrived in New York the painting was missing. The authors argue this is a likely “Dr. No” theft, where someone commissions a theft: “He, and she, exist all right. From Riyadh to Beverly Hills, they’re out there gazing up at their special prizes each and every day, proving once again that ‘stolen apples taste the sweetest.’ They’re just extremely difficult to catch.” There is no hard evidence that these evil geniuses are out there, but McShane should command some deference for his long service and many recoveries.

In the book’s second half, some momentum is lost, as the prose gets a bit muddled; and for some reason the author’s start describing each new character based on their likeness to Hollywood and tv Celebrities like Kojak and the like. Some of this is regained at the end with McShane’s take on the largest unsolved art theft: the theft of 13 works from the Isabella Stuart Gardner Museum in Boston in 1990. I enjoyed the speculation on that theft a great deal. But shockingly, if the thieves have sold the works on, the statute of limitations for the theft has expired, so the actual thieves may be able to collect on part of the $5 million reward. One wonders how often that goes on, but seldom is a full and open account given.

It’s a fun read, but ultimately it left me wanting more substance. In the epilogue a call is made for increased security and criminal penalties. But how? That does not seem to provide a complete picture, as museums are often strapped for funds, and they have to walk a balance between access to the public and security. No discussion of provenance was given, or how effective stolen art databases have become. I was also disappointed more was not said about current efforts at the FBI, including the Art Crime Team which seems to have had some notable successes. The authors seem to think this is still not enough, claiming that only one agent works full time on the problem. I had believed it was closer to half a dozen, but perhaps many of these agents have other duties. In any event it is a fun read, has some exciting stories to tell, but ultimately does not help us arrive at a better way of actually thwarting art theft.

Questions or Comments? Email me at derek.fincham@gmail.com

No Posting This Week

No posting until next week. We’ll be in Istanbul for the next five days at the International Law and Trade Conference. It should be a good time. I’ll be giving a short talk on my research, and talking about some of the new ideas which have been floated as alternatives to export restrictions in source nations. I’ll post my notes here when I get back.

Questions or Comments? Email me at derek.fincham@gmail.com

A Few Notes

Sorry for the lack of posts last week. I’ve been rushing to finish up a couple of articles for publication. The first, is a case note on Iran v. Berend which should appear in the next issue of the International Journal of Cultural Property. The second is a much longer article which is tentatively titled: Why US Federal Criminal Penalities for Dealing in Illicit Cultural Property are Ineffective, and a Pragmatic Approach. That should be published sometime next fall. I’ll try to post a copy of it on SSRN in the next few months.

In the links section at the left, I’ve added a link to the Museum Security Network, which is an outstanding service that sends daily emails on this topic. Also, I’ve included a link to Joanna Cobley’s Museumdetective site, which includes a lot of great information and podcasts.

Questions or Comments? Email me at derek.fincham@gmail.com