Steven Rodgers, a recent graduate of Southern Illinois Law explains the ways in which the tax code subsidizes art museums through fractional giving, from the introduction:
Comment on Fractional Giving
Category: Writing
Comment on in-kind payments with art
“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.
- Julia LM Bogdanovich, Devising an Artful Tax: An Appraisal of Payment-in-Kind Income Taxes in Mexico and the United Kingdom, 164 U. Pa. L. Rev. 983 (2015).
Lazopoulos Friedman on Isis’s “get rich quick scheme”
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.
- Lindsey Lazopoulos Friedman, ISIS’s Get Rich Quick Scheme: Sell the World’s Cultural Heritage on the Black Market—Purchasers of ISIS-Looted Syrian Artifacts Are Not Criminally Liable Under the NSPA and the McClain Doctrine in the Eleventh Circuit, 70 University of Miami Law Review 1068 (2016).
Professor Song on Restitution after Illegal Export
The Collection of the Bibliotheque nationale de France returned 297 volumes to Korea in 2011
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.
- Ho-Young Song, International Legal Instruments and New Judicial Principles for Restitution of Illegally Exported Cultural Properties, 4 Penn. St. J. L. & Int’l Affairs 718 (2016).
- Yates Donna, ‘Uigwe « Trafficking Culture’ (14 March 2014) <http://traffickingculture.org/encyclopedia/case-studies/uigwe/> accessed 23 August 2016.
Comment on Pragmatic Reform in the Antiquities Trade
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.
Cornelius Banta Jr., Finding Common Ground in the Antiquities Trade Debate to Promote Pragmatic Reforms, http://www.houstonlawreview.org/2016/05/06/53-4-finding-common-ground-in-the-antiquities-trade-debate-to-promote-pragmatic-reforms/.
Amineddoleh on Forgery Law
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.
Her article is titled Are You Faux Real? An Examination of Art Forgery and the Legal Tools Protecting Art Collectors. It follows up on her recent symposium piece in the International Journal of Cultural Property and gives a comprehensive and useful overview of some recent art forgery scandals, and the laws which apply.
Here’s the abstract:
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.
- Vogel, Carol. “Not by Leonardo, but Sotheby’s Sells a Work for $1.5 Million.” The New York Times, January 28, 2010.
Note on Using Trademark law to protect street art from fashion
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.
Maribeth Smith, Tagging the Lanham Act: Protecting Graffiti Art from Willful Infringement, 81 Brooklyn Law Review (2016).
Note on Cultural Heritage and New Media
Ann Marie Sullivan a third year law student at John Marshall Law School has written an interesting piece thinking about the intersections of cultural heritage and new media. From the abstract:
The application of new media to cultural heritage is consistent with the policy objectives that the copyright law of the United States stands to promote. However, the practical application of the law currently hinders these objectives, often stifling the creation and dissemination of new media works of cultural heritage. In this context, copyright law presents a problem and not a solution, a barrier and not a protection, dissuasion of creation and not encouragement and incentive. Defining the legal scope and reach of digital property and new media within the realm of art and cultural heritage law is critical for the benefit of creators, consumers, cultures, and society as a whole. Unless a modification is made, or a solution adopted, the problems presented by legal uncertainties and inadequacies will continue to operate in a manner contrary to the main purpose of copyright, “To promote the Progress of Science and useful Arts.”
Ann Marie Sullivan, Cultural Heritage & New Media: A Future for the Past, 15 J. Marshall Rev. Intell. Prop. L. (2016).
Anderson on the looming underwater heritage struggle
Max Anderson has written an insightful op-ed highlighting the coming tension between commerce and archaeological examination for underwater sites and wrecks:
The technology needed for deep-sea exploration is advancing rapidly. What once seemed like science fiction will soon become a reality, with exploratory probes not only transmitting images but operating retrieval devices equipped to reveal artifacts and move them to the surface. Archaeologists have also begun using DNA analysis on wrecks in the Mediterranean, yielding information ranging from what onboard bowls once contained to the home port of the sunken ship.
Continue reading “Anderson on the looming underwater heritage struggle”
Work in Progress on Authenticating Art
I’ve posted a draft of a forthcoming work on art authentication on SSRN. The piece is scheduled for publication in the Mississippi Law Journal in the fall. I probably enjoyed writing this piece more than I should have. Our appetite for stories about art forgery and art authentication are indeed boundless, and in researching the piece, they’ve been boundless for a long time. Criminologists were studying art forgery as early as the 1960s. From the abstract:
The determination of a work of art as authentic (or not) makes a tremendous difference in the value of a work of art. Owing to the millions of dollars which can be added, or subtracted, to a work of art when an authentication opinion is made, lawsuits will often be the last resort of those unhappy with an authentication. Determining with absolute certainty, the authenticity of a work of art takes the combined expertise of art historians, scientists, and art connoisseurs. Previous examinations of the problem of art fraud and counterfeit art have focused on criminal offenses, pointed to market failures, and even argued that we should not care too much about fake art at all if nobody notices. These examinations all fail to give sufficient weight to the sheer difficulty of the task. It takes tremendous expertise required to correctly determine the artist who created a work of art, and the period in which the object was fashioned. The pages which follow argue art authentication and the experts who make them have gotten a bad reputation. Instead, their analysis should be properly valued as expert testimony in court in art authentication disputes, and should be protected from vexatious litigation.
Derek Fincham, Authenticating Art by Valuing Art Experts, SSRN Scholarly Paper ID 2770705 (Social Science Research Network), Apr. 26, 2016.