Karin Orenstein, an Assistant U.S. Attorney for the Eastern District of New York has published a new short essay for the North Carolina Journal of International Law titled “Risking Criminal Liability in Cultural Property Transactions”. In the Piece she references the purchases of questionable material by prominent wealthy collectors Michael Steinhardt and Steve Green. From the abstract:
This Comment explores when buyers of cultural property cross the line from taking business risks to engaging in criminal conduct. The Comment applies the National Stolen Property Act (NSPA) and the conscious avoidance doctrine to potential red flags in hypothetical cultural property transactions. When buyers are presented with red flags about a piece’s provenance and choose not to investigate, they cannot rely on deliberate ignorance as a defense to a charge that they knowingly transacted in or possessed stolen cultural property.
Orenstein, Karin, Risking Criminal Liability in Cultural Property Transactions (2020). North Carolina Journal of International Law, Vol. 45, 527, 2020. Available at SSRN: https://ssrn.com/abstract=3583457
Marc Masurovsky, cofounder of the Holocaust Art Restitution Project (HARP) has published “A Comparative Look at Nazi Plundered Art, Looted Antiquities, and Stolen Indigenous Objects” in the North Carolina Journal of International Law and Commercial Regulation. The Piece is an ambitious and serious look at the different kinds of State-sponsored taking of art and heritage, and attempts to connect the different kinds of takings across different historical periods and cultural groups.
From the introduction:
The dispersal of Jewish collections during the Nazi years interestingly compares with the recycling of looted cultural property from conflict zones and the plunder of ritual objects from indigenous groups worldwide. There should be a common response by the international community to cultural plunder and crimes committed against culture, within the framework of State-sponsored persecutions of entire groups. And there should be common standards for prevention, seizure, and restitution. This Article explores these issues.
Professor Stephen Clowney of the University of Arkansas School of Law has written an interesting article examining the role of markets in certain special categories: things like organs, human lives, sex, and works of art. He has an interesting summary of the scholarship critical of markets; and he suggests I think that markets are not inherently corrupt. He ably points out flaws in the scholarship which criticizes commodification, yet he makes his own grave errors in relation to the role of the market on the art trade and its allied fields and disciplines. His approach is a kind of ethnographic study of art appraisers and prostitutes. The article is well-written and entertaining, but I just don’t think you get a complete picture of the art market by only talking with appraisers. He also ignores large areas of helpful scholarship from criminologists, totally ignores the Knoedler forgery scandal, and does not acknowledge the problems presented by the antiquities trade. But if you want an entertaining read, I can recommend it.
The art market owes much of its success to tax policy. A new essay in the Columbia Journal of Law & the Arts examines many of the financial structures used by Pop Art gallerist Leo Castelli in the middle of the 20th Century. The Essay is authored by Michael W. Maizels (visiting researcher at the Harvard metaLAB) and William E. Foster (Associate Dean for Academic Affairs at Arkansas School of Law)
This essay focuses on the efforts of an enterprising art gallerist, Leo Castelli, to aggressively promote his stable of Pop artists through the development of several financial structures, including some designed to leverage the relatively generous income tax deductions and anemic enforcement regime of the time. In doing so, Castelli not only seeded the ground for the international ascendance of American visual art, but also engineered financial arrangements that fostered the development of a lucrative and resilient art market that endures to this day. With the aim to provide insights into both the legal-political and the art historical registers, this essay describes a tax law framework that provides a key piece missing from the art historical puzzle.
Katherine Recinos and Lucy Blue have authored an article titled “Improving Capacity Development for Threatened Maritime and Marine Cultural Heritage Through the Evaluation of a Parameter Framework” in the Journal of Maritime Archaeology. Here’s the abstract:
Maritime cultural heritage is under increasing threat around the world, facing damage, destruction, and disappearance. Despite attempts to mitigate these threats, maritime cultural heritage is often not addressed to the same extent or with equal resources. One approach that can be applied towards protecting and conserving threatened cultural heritage, and closing this gap, is capacity development. This paper addresses the question of how capacity development can be improved and adapted for the protection of maritime cultural heritage under threat. It asserts that capacity development for maritime cultural heritage can be improved by gaining a more comprehensive and structured understanding of capacity development initiatives through applying a consistent framework for evaluation and analysis. This allows for assessment and reflection on previous or ongoing initiatives, leading to the implementation of more effective initiatives in the future. In order to do this, a model for classifying initiatives by ten parameters is proposed. It is then applied to a number of case studies featuring initiatives in the Middle East and North Africa region. This is followed by a discussion of how conclusions and themes drawn from the examination and evaluation of the case study initiatives can provide a deeper understanding of capacity development efforts, and an analysis of how the parameter model as a framework can aid in improving capacity development for threatened maritime cultural heritage overall.
Provenance, the ownership history of an artifact or work of art, has become one of the primary mechanisms for determining the legal status and authenticity of a cultural object. Professional associations, including museum organizations, have adopted the “1970 standard” as a means to prevent the acquisition of an ancient object from promoting the looting of archaeological sites, which is driven by the economic gains realized through the international market. The Association of Art Museum Directors (AAMD), one of the museum world’s most influential professional organizations, requires its members to list the ancient artworks and artifacts that they have acquired after 2008 that do not conform to the 1970 standard in an online object registry. The study presented here of the AAMD’s Object Registry for New Acquisitions of Archaeological Material and Works of Ancient Art analyzes the extent to which AAMD member museums do not comply with the 1970 standard and, perhaps of greater significance, the weaknesses in the provenance information on which they rely in acquiring such works. I argue that systematic recurrences of inadequate provenance certitude are symptomatic of the larger problem of methodology and standards of evidence in claiming documented provenance. A museum’s acceptance of possibly unverifiable provenance documentation and, therefore, its acquisition of an object that may have been recently looted, in turn, impose a negative externality on society through the loss of information about our past caused by the looting of archaeological sites.
Gerstenblith, P. (2019). Provenances: Real, Fake, and Questionable. International Journal of Cultural Property,26(3), 285-304. doi:10.1017/S0940739119000171
Last March I participated in Cardozo’s Arts and Entertainment Law Journal Spring Symposium on the topic of Digital Art & Blockchain. I learned a lot about this new technology, and wrote a bit about how Blockchain can impact the antiquities trade. Here’s the abstract to my essay:
Blockchain, the technology underpinning Bitcoin and other digital currencies, offers promise to shift the gathering and sharing of information in profound ways. It could help form a new kind of financial system that limits current inefficiencies, or even radically change how parties enter into contract, or monitor supply chains. The technology’s distributed ledger allows users in a network to monitor and access peer-to-peer digital transactions in real time. This digital ledger allows users to maintain this information securely by encrypting and allowing access only to those who have permission, given by cryptographic keys.
For the art market, blockchain offers a tantalizing possibility: a verifiable provenance research platform that would eliminate or minimize the problems with title history, authenticity, and looting, which have long-plagued the art and antiquities market. This essay examines whether blockchain might offer a chance for the antiquities market to remedy its persistent problems. The antiquities market has been beleaguered by the sale of forgeries, allowed stolen material to find a market, been hampered by market inefficiencies, and even been a haven for looted archaeological material. Distributed ledgers and blockchain could alleviate or eliminate these problems, but only if the market and those who shape it want to utilize them. No technology, no matter how ingenious or elegant, can end problems caused by the unprincipled actors in the antiquities trade. Such change has to come about with a culture shift and continued pressure by regulators and cultural heritage advocates.
Guy Rub (Ohio State University, Michael E. Moritz College of Law) has posted an article from a symposium issue of the Kentucky Law Journal on: Experimenting with State-Enacted Resale Rights.
Current federal law does not require sellers of fine art to pay a share of the sale price to the artists, although Congress and federal agencies have been debating the advantages and disadvantages of such a duty, commonly referred to as Artists’ Resale Rights (ARR), since the 1970s. What is often missing from this discourse is the role that state law might play in this ecosystem. This issue, and especially California’s 1976 ARR law, the only state-enacted ARR to date, is the focus of this Article.
States are often said to be the laboratories of democracy as they can experiment with various legal rules and produce rich comparative empirical data. The Article explores whether states can be the laboratories of ARR as well. It reaches three conclusions: First, there is a vibrant debate concerning the impacts and overall desirability of resale royalties, but that debate is driven by relatively scarce empirical data. Second, if states decide to adopt ARR they can provide some of that missing information. Third, subject to minor restrictions, states are allowed to enact ARR legislation, and the recent Ninth Circuit decisions that held the California ARR act unconstitutional are, for the most part, misguided, as it does not fully recognize the important role that states play in the markets for creative goods.
Alix Rogers (Stanford Law School fellow, and PhD candidate at the University of Cambridge) has posted an article titled “Owning Geronimo but Not Elmer McCurdy: The Unique Property Status of Native American Remains” on SSRN.
This article unifies two areas of property scholarship that have not historically intersected. In the field of biotechnology and the law, it is generally understood that human remains and many body parts are not objects of legal property. This general rule has a startling exception, which heretofore has gone unnoticed in the literature and relevant case law. The bodily remains of Native Americans were, and I argue, continue to be, objects of legal property.
With the passage of the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) Native American remains are classified as familial and tribal property. The distinction and significance of property status under NAGPRA has been overlooked in the Native American legal scholarship. The perpetuation of property status is surprising given that NAGPRA was passed to address the systematic disrespect for Native American burial grounds and commercialization of Native American remains. Property status is all the more striking and important because some federal circuits have also interpreted NAGPRA to apply to contemporary individuals with Native American ancestry. With the rise of genetic testing technologies, application of this property rule takes on some surprising implications.
At first glance, we might condemn the property status of Native American remains as continued evidence of dehumanization. Property is traditionally associated with rights of alienability, exclusion, commensurability, and commodification. The understanding of property in Native American human remains advocated for in this paper challenges classic property constructs of wealth-maximization and an individually centered right of exclusion. Instead, after re-considering the paradigm of property, I argue that the communal property approach embodied by the Act enables Native Americans to more effectively protect their dead compared to any other American group. NAGPRA, therefore, represents an intriguing pathway for human biological materials regulation reform more broadly.
Museums are home to millions of artworks and cultural artifacts, some of which have made their way to these institutions through unjust means. Some argue that these objects should be repatriated (i.e., returned to their country, culture, or owner of origin). However, these arguments face a series of philosophical challenges. In particular, repatriation, even if justified, is often portrayed as contrary to the aims and values of museums. However, in this paper, I argue that some of the very considerations museums appeal to in order to oppose repatriation claims can be turned on their heads and marshaled in favor of the practice. In addition to defending against objections to repatriation, this argument yields the surprising conclusion that the redistribution of cultural goods should be much more radical than is typically supposed.
An interesting argument, and it sounds to me like he is making a case for cultural justice.