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.
Cornelius Banta, Jr. a recent graduate of the University of Houston Law Center has written an interesting piece in the Houston Law Review putting forth some pragmatic reforms to the antiquities trade. From the abstract:
The debate over the trade in antiquities generally pits archaeologists and antiquities-rich nations (cultural nationalists) against museums, art dealers, and private collectors (cultural internationalists). The former alleges that the latter’s lusting after antiquities perpetuates a black market that threatens the archaeological record and undermines the sovereignty of source nations. Conversely, cultural internationalists assert that policies favoring cultural nationalists stifle the free exchange of artifacts that belong to mankind as a whole, not just a select group of scholars and countries. The problem is that both sides are so intent on pointing the finger at each other that they fail to realize cooperation could produce a mutually beneficial outcome. The solution lies in changing the current adversarial debate into a cooperative dialogue where each side gives a little in order to ensure both sides gain more in the end.
This Comment attempts to break through the polarization in the debate over the trade in antiquities by stressing the shared interests of both sides and advocating pragmatic reforms. The current debate is first viewed through an intellectual framework, where the interests of cultural nationalists, who want to protect antiquities, runs up against cultural internationalists, who advocate for the free movement of antiquities. With the theoretical framework set, one can then analyze the debate through the current legal approaches towards regulating the antiquities market. The United States’ blend of criminal prosecutions and trade restrictions is illustrative of present efforts to control the antiquities trade. Yet despite the ineffectiveness of current polices, the hardline stances taken by both sides of the antiquities trade debate create an impasse for reform. Consequently, change can only come by recognizing the shortcomings of the current approaches and promoting civil and private remedies that benefit both sides.
Leila Alexandra Amineddoleh has posted an abstract of her latest piece, which appeared in the Spring issue of the Cardozo Arts & Entertainment Law Journal. Amineddoleh, as many readers likely know, teaches art and cultural heritage law as an adjunct Professor at a good portion of New York’s law schools, including I think recently with St. John’s and Fordham. She also is a Partner and co-founder of her own art and cultural heritage law firm, Galuzzo & Amineddoleh.
The authorship of artwork greatly affects its value. For this reason, authentication in art is a complex and sometimes contentious process. This paper examines the history of art authentication, due diligence to ensure that purchasers are not buying forgeries, complex cases without clear-cut answers, and legal tools available to buyers after a forgery has been purchased.
Amineddoleh, Leila Alexandra. “Are You Faux Real? An Examination of Art Forgery and the Legal Tools Protecting Art Collectors.” SSRN Scholarly Paper, May 26, 2015. http://papers.ssrn.com/abstract=2784963.
Maribeth Smith has written an interesting student note in the Brooklyn Law Review which argues that trademark protection may be a good way to protect street artists from having their works appropriated by fashion designers:
Graffiti has transformed over the last several decades from a sign of urban blight to a sign of artistic expression. As a result of this shift, clothing designers and other players in fashion have begun to use images of “street art” as part of their lines. This leaves graffiti artists with no way of protecting their art, especially because of the illegal nature of graffiti. This note examines current sources of law that can be used to protect artists from this infringement. Artists have unsuccessfully argued under both moral rights and copyright theories. However, copyright and moral rights analyses do not address the nuanced issues that illegal art presents because of the way both areas of law have been interpreted by the courts. Moral rights have traditionally been thought of as preservationist in nature, and copyright has traditionally only covered legally made works of art. However, there is one avenue that can be used to protect this art, which is false designation of origin under the Lanham Act, the federal trademark statute. This note argues that the Lanham Act is a source of law that graffiti artists can utilize to protect their work.