Cathay Smith (Asst. Prof. at Montana School of Law) has published an article in the St. John’s Law Review, Community Rights to Public Art. The article surely would have generated the attention of the student editors of the St. John’s Law Review, as the 5 Pointz building, until it was demolished in 2014, was located just a few miles away from the St. John’s campus. From the abstract:
In 1932, the Rockefeller family commissioned Diego Rivera to paint an enormous mural as the centerpiece of the RCA Building lobby in Rockefeller Center in New York City. The colorful mural that Rivera painted, titled Man at the Crossroads, included images of social, political, industrial, and scientific visions of contemporary society. One night in February of 1934, the Rockefellers hired workers to chisel the mural off the wall without any warning or notice. The mural was broken into pieces before being carted away and dumped. The destruction of his mural shocked Rivera. More importantly, however, the destruction of Rivera’s mural permanently deprived the public of a significant work of public art and heritage. The public was stunned at the destruction of the mural; protesters called the Rockefellers’ act “art murder” and “cultural vandalism.” Nevertheless, the mural was the Rockefeller’s property and, despite public support for the mural, they had the legal right to destroy it. More than eight decades later, communities still face this type of loss of heritage through the destruction of public art. For instance, public outrage followed the 2014 demolition of 5 Pointz in New York, when the owner of 5 Pointz whitewashed and destroyed the 20-plus-year-old “graffiti Mecca” to make way for two new $400 million luxury high-rise apartment towers. On the opposite coast, just last year, Piedmont Avenue neighbors in Oakland were shocked when the owner of Kronnerburger Restaurant demolished a beloved community mural in connection with its construction of a new trendy burger restaurant.
Property owners generally have the right to destroy their own property. This Article argues, however, that certain property is so connected to a community’s identity that the community’s right to preserve its heritage may trump a property owner’s right to destroy. This Article explores existing, yet underutilized, legal solutions a community may use or adapt to preserve public art when that art has become a part of its cultural heritage. Finally, recognizing that preservation has its limits, and that without destruction there will be no space for creation, this Article ultimately sets forth questions communities will need to grapple with as they weigh whether and how to protect works of public art as cultural heritage.
Prof. Jennifer Anglim Kreder has published an article examining the concept of the “Public Trust” in the Pennsylvania Journal of Constitutional Law. The doctrine has been used in environmental and museum law, but has a richer history:
It seems as if no one really knows the meaning of the term “public Trust” used in the Religious Test Clause of Article VI of the U.S. Constitution. This Article is the first scholarly attempt to define the term by exploring historical evidence pre-dating the nation’s founding through the Constitution’s adoption, including British and colonial trust law that influenced the Founders’ conception of the term. Today, one can find the term used only in the cases and scholarship concerning environmental law, tax law and museum law. After a thorough analysis of the old and new sources, this Article proposes the following original definition of term “public Trust”: “Any entity given special privilege by the government, beyond the simple grant of a state corporate charter often coupled with state or federal tax waivers, so long as that entity is legally obligated to engage in conduct that could traditionally have been performed by the government itself for the public’s benefit.”
Kreder, Jennifer Anglim, The ‘Public Trust’ (January 21, 2016). 18 University of Pennsylvania Journal of Constitutional Law 1425 (2016).
Kasi E. Wahlers has published an interesting student article in the North Carolina Law Review titled “North Carolina’s Heritage Protection Act: Cementing Confederate Monuments in North Carolina’s Landscape”. It takes up North Carolina’s handling of remnants of public monuments aimed at remembering and commemorating some ugly aspects of its past.
From the Abstract:
Even in 2015, the North Carolina landscape is densely populated with Confederate monuments, appearing in more than half of the state’s one hundred counties. The state has more monuments honoring the Civil War than any other event, with five Civil War monuments for every World War II monument. Most of these structures were erected between 1890 and 1930 and many are located on public property, commonly found in and around courthouses, town squares, graveyards, and University campuses. In July of 2015, North Carolina enacted the Heritage Protection Act (“HPA”). This law severely restricts the removal, relocation, or alteration of any monument located on public property. While neutral on its face, North Carolina’s Heritage Protection Act was enacted for the purpose of protecting Confederate monuments.
This Recent Development argues that the North Carolina Heritage Protection Act creates a lack of accountability on behalf of the N.C. General Assembly, usurps powers of local governments, and is amorphously vague as to what objects it applies to. Clarification of the statutory language by the General Assembly as well as a provision allowing for the erection of plaques that contextualize these monuments within local history is needed. Analysis proceeds in three parts. Part I of this Recent Development briefly sketches the propagation of Heritage Protection Acts across the South, outlines the North Carolina Heritage Protection Act, and highlights ways the North Carolina statute differs from other states. Part II discusses the confusing nature of this statute and analyzes legislative history to offer insight as to: (1) what role the North Carolina Historical Commission plays, if any, in deciding to permanently remove or relocate monuments; (2) whether this statute applies to county or city owned monuments; and (3) what constitutes a “display of permanent character.” Finally, Part III argues that this statute is in need of clarification and a provision that provides for plaques that contextualize these monuments within their local history. A brief conclusion follows.
I expanded a bit on a blog post from last year with an essay for the Cumberland Law Review which takes up the tools of art authentication to argue that Go Set a Watchman should not be considered an authentic work by the author, and instead complicates the idea of authorship. Here’s the abstract:
For many lawyers, Harper Lee’s To Kill a Mockingbird represents an important goal to which law and its practitioners should strive. The novel describes the struggle to achieve justice for a black man in the face of deep-seated institutional racism. It stands as a beloved work of literature, widely read and deeply appreciated. Therefore, any work that Lee would have written after To Kill a Mockingbird would have sparked tremendous interest, given the beloved place her first novel holds. But many other questions have arisen since the release of Go Set a Watchman. This essay aims to address how the authenticity of the novel should be weighed by using the tools of art historians and the art market.
Hannah Willett, a JD candidate at the University of Arizona has published a student note examining what U.S. criminal penalties could be used to prosecute the market end of antiquities which may pass through the Islamic State. Though many student notes can suffer from not having a full understanding of the scholarship examining illicit cultural heritage, this piece rises above the typical student note; perhaps owing to the fact that Ms. Willett undertook study at the Tulane-Siena summer program.
From the abstract:
The illicit antiquities market is a thriving international enterprise that has the potential to fuel wide-scale criminal and terrorist activity. Nonetheless, the economic and symbolic impact of cultural property exploitation has been largely overlooked.
This Note explores the role that the illegal antiquities market can and does play in facilitating terrorist activities, particularly in ISIS-controlled areas of the Middle East. It addresses the regulatory obstacles uniquely inherent to the trade of cultural property, and examines international, national, and online intermediary responses to looting and the market.
Finally, this Note proposes a multi-faceted, counteractive response to the trade. First, the Note highlights the potential for online intermediaries to serve as powerful choke points. It then draws attention to the undertheorized and underutilized mechanisms of U.S. domestic law that are readily employable to combat the illicit trade. Lastly, this Note emphasizes the important function that education can have in reducing consumer demand, and consequently, in disincentivizing participation at every step along the trade.
The exact nature of the illicit antiquities trade from ground to market in Southeast Asia remains poorly known outside of Thailand and Cambodia, where most research has been focused. This paper helps to address this imbalance by documenting and contextualizing looting activities at the Bronze and Iron Age site of Vườn Chuối, located within urban Hanoi. A brief excavation history is provided so as to place recent looting into archaeological context. The methods used to document the recent and on-going looting observed are then discussed, followed by the nature of the current threat to Vườn Chuôi and a summation of what little is known about the Vietnamese antiquities trade in general and its relationship to regional antiquities trafficking. Finally, we discuss the current regulatory landscape in terms of constitutional, ownership, penal and international law, difficulties with enforcement and prosecution, and what course of action is needed not only to protect Vườn Chuôi and similar sites in and around Hanoi, but also to continue to raise public awareness of the archaeological repercussions of the trade itself.
“The Revolution (Mural)” by David Alfaro Siqueiros
Julia L.M. Bogdanovich, a senior editor of thePennsylvania Law Review has authored an interesting comment examining how artists could pay taxes with in-kind payment. She uses a comparative approach highlighting both Mexico and the United Kingdom. From the Introduction:
According to popular accounts, in 1957 David Alfaro Siqueiros marched into Hugo B. Margáin’s office with a radical and risky proposal. There, the famous muralist bluntly told the new Director of Income Tax that the recent income tax reforms were unduly burdening Mexico’s artists because they “did not know about accounting or tax laws” and had no money with which to pay their obligations. “The only thing we have are paintings,” Siqueiros insisted. However, rather than seek a complete tax exemption for artists, he told Margáin that artists could instead pay taxes with their artwork. Because their art was valuable, Mexico could amass an enviable collection. Tasked with ensuring the success of the new tax system,8 perhaps Margáin was inclined to be creative, or perhaps he was an art aficionado. Regardless of his motives, Margáin replied, “It doesn’t seem like a bad idea.” Under Margáin’s leadership, the Mexican Ministry of Finance and Public Credit accepted Siqueiros’ proposal and launched a program called Pago en Especie (Payment in Kind) in November 1957, when it collected its first income tax payment in art.
Are Syrian Artifacts protected under the NSPA?Lindsey Lazopoulos Friedman has written an article discussing the possibility of using the McClain Doctrine and the NSPA for objects illegally removed from Syria.
From the abstract:
This article explores how an individual importing a looted artifact may face prosecution and liability in the Eleventh Judicial Circuit. The article begins with a background section that provides additional information about the history of ISIS and ISIS’s current plundering scheme. The background section also provides the legal framework and historical treatment of looted art and stolen artifacts. In particular, this section explains the Eleventh Circuit doctrine on this issue, the McClain doctrine. The McClain doctrine applies the National Stolen Property Act (“NSPA”) to foreign found-in-the-ground claims. Supporters of the doctrine argue that it helps “prevent looting internationally without placing an unacceptable burden on the cultural objects trade.” The analysis section hypothesizes that a looter of a Syrian artifact would not be prosecuted in the Eleventh Circuit under the McClain doctrine. The analysis section also includes possible alternative means for prosecuting a trafficker of Syrian cultural property.
Professor Ho-Young Song (Hanyang University School of Law, Seoul) has published an article in the recent issue of the Penn St. Journal of Law and International Affairs examining how works of art are restituted after an illegal export. Once considered by some a tenuous way to regulate the illicit trade in art, illegal export has grown as a regulatory check with more and more impact. From the abstract:
Worldwide, many cultural properties have been wrongfully exported to other countries in times of war and colonization. Furthermore, cultural properties are currently constant targets of illegal transaction due to their substantial economic value. Illicit trade in cultural properties is now the third largest black market after drug and firearms. There are several international treaties aimed at combating the illicit export and enabling the restitution of cultural properties. Despite these efforts, more legislative and judicial cooperation between countries will be necessary to truly solve the problem. This article reviews international legal instruments for restitution of illegally exported cultural property, and suggests some new judicial principles that should be applied by domestic courts for supplementing drawbacks of international treaties. The author suggests to adopt “lex originis” rule for choice of governing law instead of traditional “lex rei sitae” rule and to apply to shifting burden of proof to a certain extent to find a solution for disputes over cultural properties.