art, heritage, & law
In an LA Times OP-ED, Erin Thompson argues Syria is home to a rich array of cultural heritage. Noting the risk to the works of art from thousands of archaeological sites, she highlights an under-acknowledged threat.
Continue reading “Thompson argues to protect Syrian heritage, don’t buy it”
Tatiana Flessas (Law Department, London School of Economics) has a new work-in-progress titled “The Ends of the Museum“.
Here’s the Abstract:
Deborah A. DeMott, a Professor at Duke Law, has an interesting essay titled “Artful Good Faith: An Essay On Law, Custom, AndIntermediaries In Art Markets” appearing in 62 Duke Law Journal 607 (2012). From the introduction:
This Essay explores relationships between custom and law in the United States in the context of markets for art objects. The Essay argues that these relationships are dynamic, not static, and that law can prompt evolution in customary practice well beyond the law’s formal requirements. Understanding these relationships in the context of art markets requires due attention to two components distinctive to art markets: the role of dealers and auction houses as transactional intermediaries as well as the role of museums as end-collectors. In the last decade, the business practices of major transactional intermediaries reflected a significant shift in customary practice, with attention newly focused on the provenance (ownership history) of objects consigned for sale and on long-standing concerns with an object’s condition and authorship. During the same time major museums developed new policies and practices applicable to new acquisitions and objects already in held in collections, focused in particular on archaeological objects and ancient art, as well as paintings present in European countries subject to the Nazi regime between 1932 and 1945. The Essay argues that, in both cases, law furnished the backdrop to significant shifts in customary practice, augmented by heightened public knowledge and concern. Custom evolved in response to salient episodes of enforcement of the law, which furnished further rallying points for newly broadened or awakened public interest and concern. The relationships explored in this Essay are relevant to ongoing debate about the merits of the underlying law. In the United States, it has long been true that nemo dat quod non habet—no one can give what one does not have—with the consequence that a thief cannot convey good title. The subsequent transferees lack good title and are not insulated against claims by the rightful owner even when the transferees acted in good faith. To be sure, an elapsed statute of limitations may furnish a defense, as may the equitable doctrine of laches. Prior scholarship notes that the United States is unusual, but not unique, because it does not recognize any good-faith purchaser defense in this context and because it does not require that the rightful owner of a stolen object compensate the good-faith purchaser as a condition of obtaining the return of the object. However, this scholarship does not acknowledge (or does not emphasize) the significance of transactional intermediaries within art markets or the operation of customary practices of museums and transactional intermediaries. This Essay thus adds the context requisite to evaluating the merits of the relevant law.
An interesting approach which examines the successes generated with increased attention on Nazi-era taking of art and the antiquities acquisition policies of North American museums. Connecting legal shifts and the shadow they cast on auction houses and museums is an important consideration as we attempt to make informed recommendations about how the law should change.
The proliferation of images in and of law lends itself to surprisingly complex problems of epistemology and power. Understanding through images is innate; most of us easily understand images without thinking. But arriving at mutually agreeable understandings of images is also difficult. Translating images into shared words leads to multiple problems inherent in translation and that pose problems for justice. Because images are inherently “what we know” (because they are “what we see”), insofar as most of us process our experiences first through sight, images do not naturally lend themselves to linguistic translation. We don’t believe they require translation because we are so sure of what we see, and yet comparing and sharing understandings of images requires communication through words. Despite our saturated imagistic culture, we have not established methods to pursue that translation process with confidence.
Other articles from the symposium are available here.
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| The New Acropolis Museum and the Parthenon |
Apologies for the lack of posting in recent weeks. I’ve been furiously finishing up some writing before the new semester really gets into full swing. If you, gentle reader, will forgive the shameless self-promotion, I’ll post a link to the work-in-progress titled “The Parthenon Sculptures and Cultural Justice“. Here’s the abstract:
From government and philosophy to art drama and culture, the ancient Athenians, as most everyone knows, gave future generations so much. Yet the pinnacle of their artistic achievement, the Parthenon, remains a damaged and incomplete work of art. 2012 marks the two-hundredth anniversary of the last removal of works of art from the Parthenon. That taking was ordered by an English diplomat known to history as Lord Elgin, and it reminds us that cultures create lasting monuments. But not equally. Cultures which remove the artistic achievements of other nations have increasingly been confronted with uncomfortable questions about how these objects were acquired. Nations of origin are increasingly deciding to press claims for repatriation of works taken long ago. They proceed through history mindful of the irresistible genius of their forebears have created and are unwilling to cease their calls for return. The majority of the surviving sculptures from the Parthenon in Greece now are currently on display in the British Museum in London. The Greek government and cultural heritage advocates, have been asking for reunification of these sculptures in the New Acropolis Museum in Athens. Greece has offered a number of concessions, but the British Museum and the British Government have repeatedly refused to seriously discuss reunification. Mounting pressure on the British Museum, and the inescapable fact that the Parthenon was an ancient unified work of art both mean that the Parthenon marbles will either eventually be returned to Greece or subject to an endless repatriation debate. Here I offer a series of principles which the Greeks and the British Museum can take to jointly create a just return. Because the way the British Museum and Greece resolve this argument will have much to say for the future of the management of our collective cultural heritage.
I hope to find a good placement for the piece this fall submission cycle. As always, I’d be very grateful for any comments, criticisms or suggestions (derek.fincham@gmail.com).
Laurie Rush, and Army archaeologist who has directed the In Theater Heritage Training Program for Deploying Personnel has a very interesting piece tin the March-April edition of Military Review, Cultural Property Protection as a Force Multiplier in Stability Operations The piece focuses on the work of the Monuments officers during WWII, but has much to say about the continued importance of heritage protection today. An excerpt:
Few contest the long-term value of cultural property protection during fullspectrum operations. However, one might reasonably question its immediate benefits to Western military personnel facing hostile engagements in today’s complex conflict situations. One immediate response refers to the media battle that is an inevitable part of all modern conflict. Just as the Italians and Germans used propaganda effectively to advance their causes during the African and Italian campaigns, the terrorists and insurgents of today are often on the scene with video cameras. The British monuments program in 1943 began in part as a response to an Italian propaganda effort centering on the ancient Roman city of Cyrenica in Libya. After the ancient site changed hands from the Italians to the British and back to the Italians, the Italian government put together a propaganda campaign with the message that the British had shown no respect for the glory of ancient Rome. The Italians faked damage to the museum, photographed statues under reconstruction and added captions accusing the British of deliberately breaking them, and offered examples of graffiti written in English. The power of these materials was manifest. They helped convince the Italian people that the British had no respect for any element of Italian or Roman history and culture.
The whole piece merits a good read, highly recommended. I wonder if the protection of these sites and objects can be considered an economic, cultural or other ‘multiplier’ as well, extending the arguments and resources we might dedicate to their protection outside of conflict zones as well.
Prof. Peter Byrne has posted Historic Preservation and its Cultured Despisers: Reflections on the Contemporary Role of Preservation Law in Urban Development on SSRN. The piece has a thoughtful discussion of historic preservation. He argues convincingly that the “cultural heritage conveyed by a community’s historic buildings is a public good, the value of which is not fully internalized in property rights . . . [r]egulation may be done well or poorly, but regulation must exist.” He puts Edward Glaeser’s breathless appreciation for Houston’s development policies in context, well worth a read.
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| Houston’s Fourth Ward/Freedmen’s Town |
I have posted on SSRN a working paper “Justice and the Cultural Heritage Movement: Using Environmental Justice to Appraise Art and Antiquities Disputes” which attempts to make connections between the environment and culture.
The piece introduces the concept of cultural justice. It uses the recent scholarship examining environmental justice to apply critical scrutiny to the calls for repatriation of cultural heritage (including art and antiquities). The paper applies Rawls’s theory of justice to cultural heritage and presents a taxonomy of cultural justice examining in detail the distributive, procedural, corrective and social aspects.
The environmental justice movement has been an important grassroots effort which allows minority and underpriviliged communities to challenge environmental harms. It has its roots in Houston. I use as a starting point the cultural harm which has taken place here in Houston to a neighborhood called the Fourth Ward, at one time referred to as the “Harlem of the South”, which has fallen victim to cultural loss and over-development. In the piece I work to make broader observations about culture, the environment, and justice, focusing specifically on antiquities law and policy. It is my hope that by using justice we can begin to move beyond the source/market entrenchment and craft real solutions. I would of course welcome any comments or criticisms (derek.fincham ‘at’ gmail.com).
Two interesting recent discussions of Moral Rights have appeared in the Texas Law Review.
First, in a student note, Lindsey Mills (Moral Rights: Well-Intentioned Protection and Its Unintended Consequences) argues that “by taking away ownership rights that purchasers of artwork would otherwise have, [moral rights legislation] diminishes the economic value of the artwork in question and further, to the extent that artistic expression is deemed desirable, harms society as a whole. After weighing these interests against each other, she concludes that moral rights protection has no place in the United States, let alone as part of the Copyright Act.”
In a follow up, Prof. Robert Bird responds (Of Geese, Ribbons, and Creative Destruction: Moral Rights and Its Consequences) with his own “misgivings based on her discussions of a Canadian moral rights case and artistic destruction. Professor Bird concludes with an appeal to pragmatism in light of “artistic doomsday rhetoric” against moral rights protections in American law.”
Michael Madison (Univ. of Pittsburgh School of Law) has posted his recent article titled “Knowledge Curation“, published in the Notre Dame Law Review, on SSRN:
This Article addresses conservation, preservation, and stewardship of knowledge, and laws and institutions in the cultural environment that support those things. Legal and policy questions concerning creativity and innovation usually focus on producing new knowledge and offering access to it. Equivalent attention rarely is paid to questions of old knowledge. To what extent should the law, and particularly intellectual property law, focus on the durability of information and knowledge? To what extent does the law do so already, and to what effect? This article begins to explore those questions. Along the way, the article takes up distinctions among different types of creativity and knowledge, from scholarship and research to commercial entertainment and so-called “User Generated Content”; distinctions among objects, works of authorship, and legal rights accompanying both; distinctions among creations built to last (sometimes called “sustained” works), creations built for speed (including “ephemeral” works), and creations barely built at all (works closely tied to the authorial “self”); and distinctions between analog and digital contexts.
Prof. Madison has a number of interesting things to say about culture, creativity and technology. He I think pays too little attention to the rule role cultural heritage laws play in the stewardship of knowledge and heritage, but he acknowledges the piece asks more questions than it answers. In examining how we decide what to save and “curate” from our past, it perhaps offers yet another implicit reason for increased attention to heritage awareness and protection, highly recommended.
