Illicit Cultural Property

Judges Just Don’t Like VARA and Applied art

The Burning Man installation, "La Contessa" — The Burning Man installation, “La Contessa”

Daniel Grant reports on a recent Visual Artists Rights Act case involving the Burning Man re-purposed bus known as La Contessa.

A recent court decision in Nevada raises this question and, perhaps more fundamentally, the issue of whether or not VARA might need to be rewritten or updated to account for a broader definition of art. On June 8 of this year, a three-member Appeals Court panel affirmed a 2009 lower court ruling that called the demolition of a refashioned school bus—turned into a Spanish pirate ship on wheels and used for events as part of the annual Burning Man late-August to early-September festival in Black Rock Desert, Nevada between 2002 and 2005—not a violation of VARA, because the vehicle in its new form did not constitute fine art but “applied art.”

The 16’ x 60’ pirate ship, called La Contessa, was created by two artists, Simon Cheffins and Gregory Jones, who transformed an out-of-commission school bus into a replica 16^th century Spanish galleon that included a hull, decking, masts, and a hand-crafted figurehead. La Contessa added to the sometime circus nature of Burning Man, used for rides, marching band performances, children’s treasure hunts and even two weddings. After the conclusion of the festival, the vehicle was put into storage on nearby land controlled by a woman, Joan Grant, with a lifetime tenancy of the property. However, in 2005, Grant’s home burned down and she abandoned her tenancy, which was then taken over by a limited liability company controlled by a Michael Stewart. “La Contessa” remained on the property and was not reclaimed by Cheffins and Jones the following year, and in late 2006 Stewart dismantled and then burned the wooden structure so that a scrap metal dealer could remove the underlying school bus. In 2009, the artists brought a VARA lawsuit against Stewart, losing in district court and more recently on appeal. “The focus of our inquiry should be on whether the object in question originally was—and continues to be—utilitarian in nature,” the Appeals Court ruled, although noting that the ship has “some artistic or aesthetic merit.”

In a concurring opinion, one of the three judges, Margaret McKeown, expressed concern that the ruling being issued was not workable and required “a more nuanced definition of ‘applied art’ that balances between the risk of unduly restricting VARA’s reach and the risks of turning judges into art critics.”

Daniel Grant, The More Art Changes, the More Urgent an Update to the Visual Artists’ Rights Act Is, Observer (Aug. 3, 2016), http://observer.com/2016/08/the-more-art-changes-the-more-urgent-an-update-to-the-visual-rights-act-becomes/.

CHEFFINS v. Stewart, Court of Appeals, 9th Circuit 2016 – Google Scholar, https://scholar.google.com/scholar_case?case=7731083587113005243&q=la+contessa+visual+artists+rights+act&hl=en&as_sdt=6,44.

CHEFFINS v. Stewart, Dist. Court, D. Nevada 2011 – Google Scholar, https://scholar.google.com/scholar_case?case=10972864568398950890&q=la+contessa+visual+artists+rights+act&hl=en&as_sdt=6,44.

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

Three street artists known as Revok, Reyes and Steel brought an action against Roberto Cavalli for appropriating this mural a clothing line

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).

New National Monument Proposal for the Bears Ears

The proposed Bears Ears national Monument would protect over 100,000 archaeological sites

A coalition of Native Americans has formed an Inter-Tribal Coalition to promote the designation of 1.9 million acres in Utah as a National Monument. The area contains granaries, rock art, burial sites, and many other important natural and historic sites. So its not surprising then that 26 tribes support protecting the area, which gets its name from these the two buttes which resemble a large bear. This area was described beautifully in Craig Childs’ excellent work on archaeology and heritage in the four corners region. Designation of the massive area would protect scores of ancient sites, burial sites, and pieces of rock art. An area which has suffered repeatedly at the hands of amateur archaeologists and later illicit looting.

President Obama seems to be taking a more open approach to the designation of the lands than Bill Clinton took when designating the nearby Grand Staircase-Escalante National Monument in 1996. A July public hearing allowed members of the public a chance to voice their opinion to Interior Secretary Sally Jewell for nearly four hours. Writing about that meeting for High Country News, Jonathan Thompson reported:

Today’s crowd contains as many brown faces as it does white ones, a refreshing change from other such gatherings in the past. The land in question is an important part of contemporary Ute and Navajo history, and members of those tribes continue to use it for wood-, herb- and piñon-gathering. The pueblos here — including the Bluff Great House that’s just a stone’s throw from today’s hearing — were inhabited on-and-off from the 9th to the 13th centuries by the ancestors of today’s Zuni, Hopi and Rio Grande Pueblo people. And the Bears Ears and other landmarks on this landscape are considered to be important religious sites.

That, Navajo Nation President Russell Begaye tells Jewell in the hearing, is why his tribal government supports a national monument. “We relate to them (the Bears Ears) like an Anglo relates to a family member,” he says. Begaye’s tribe, along with the Hopi, Zuni, Ute Mountain Ute, and Ute tribe, overcame historic antagonism to join together to form the coalition that’s pushing for the monument. That’s unprecedented, as is their proposed management structure: a committee of eight, including one representative from each tribe, and one representative each from the National Park Service, the Bureau of Land Management and the U.S. Forest Service.

“It’s been far too long that us Natives have not been at the table,” says Malcolm Lehi, the Ute Mountain Ute council representative from the White Mesa community, just up the road from Bluff. “Here we are today inviting ourselves to the table. We’re making history.”

The proposal and coalition has the support of six of the seven Navajo chapters in Utah, at least two-dozen additional tribes and the National Congress of American Indians, along with a host of environmental groups and more than 700 archaeologists.

But there is a long history of entrenched private property owners in the southwest that often resist these efforts, as demonstrated by Utah’s two members of the House: Continue reading “New National Monument Proposal for the Bears Ears”

Note on Cultural Heritage and New Media

Artist Morehshin Allahyari uses 3-D scanning to recreate artifacts which have been damaged or destroyed, like this Assyrian Lamassu.

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

The "Philosopher of Anthykera", a 3rd Century BCE bronze head discovered near the Anthykera shipwreck. — The “Philosopher of Anthykera”, a 3rd Century BCE bronze head discovered near the Anthykera shipwreck.

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”

Orhan Pamuk calls for a different kind of museum

Orhan Pamuk was a keynote speaker at the International Council of Museums conference in Milan this week. In his address to the conference he called for a different kind of museum. He offered a vision for what museums could be if they put aside their universal mission.

The Turkish author of the terrific The Museum of Innocence (Vintage International), set the literary foundation for a very different kind of museum. The museum occupies a house in the Çukurcuma neighborhood of Istanbul, near the Pera Museum. Each display cabinet is full of objects from time depicted in the novel, which echo the neighborhood’s antique shops. The museum highlights the lives of the characters depicted in his novel, and is a powerful argument that museums which only focus on grand universal cultures and themes have missed the mark:

All museums are genuine treasures of humankind, but I am against these precious and monumental institutions being used as models for the institutions to come. Museums should explore and uncover the population as a whole and the humanity of the new and modern man that emerges from the growing economies of non-Western countries. I address this manifesto in particular to Asian museums that are experiencing an unprecedented period of growth.

The aim of the great state-sponsored museums is to represent a state and that is neither a good nor innocent aim. Here are my proposals for a new museum, some themes on which we must reflect now more than ever.

Continue reading “Orhan Pamuk calls for a different kind of museum”

Italy reached an agreement with the Glyptotek

Contents of a tomb from the Sabine Hills, north of Rome

Italy and the Ny Carlsberg Glyptotek art museum in Copenhagen on Tuesday announced an agreement for the return of antiquities taken illegally from Italy.

Objects repatriated include the contents of a tomb from near Fara north of Rome. Those objects had allegedly passed through Robert Hecht, a familiar name to those who follow illicit antiquities. Hecht passed away in 2012, and had been the subject of a criminal trial in Rome in 2005, allegedly for dealing in illicit antiquities.

Robert Hecht described buying the Etruscan chariot from Giacomo Medici:

Continue reading “Italy reached an agreement with the Glyptotek”

Italy Squandered €150m in Culture Funding

The Art Newspaper reported last week after examining EU documents, that Italy has been stripped of €151m in culture funding next year because regions have failed to spend funds allocated. This includes the loss of funding for Aidone, which is the village near the ancient site of Morgantina:

The EU rejected a request for €2.4m from the Archaeological Museum of Aidone to renovate its galleries because of incomplete documentation and the lack of an “economic framework”. The museum was due to welcome back the Head of Hades (400-300BC), a Hellenistic terracotta fragment that was restored to Sicily by the J. Paul Getty Museum in Los Angeles in January. But the sculpture, thought to have been illegally excavated from a sanctuary at Morgantina in the 1970s, remains in limbo in Palermo, partly because the Aidone museum has not prepared a suitable display for it.

This is a really sad development. It seems now very difficult to square the argument that works of art must be returned when the requesting nation cannot properly manage funding that is available. The step here needs to be capacity building for these smaller museums and regions to properly instruct the employees the expectations of grant requests and the expectations.

There may be another side to this story. The English-language reporting of happenings in Italy often have a Northern-European bias. But its hard to put a positive spin on such wasted resources.

We’ll hopefully be in Aidone and Morgantina in a week’s time—we are able to sneak away from my cultural heritage law course in Valletta, Malta. I hope to have some images and thoughts on the site and museum in Aidone soon.

Tina Lepri & Hannah McGivern, Italy squanders €150m in EU grants, http://theartnewspaper.com/news/conservation/italy-squanders-hundreds-of-millions-in-eu-grants/.

60 Minutes Reports on the Knoedler art fraud scandal

This forged work forgot to spell Jackson Pollock's last name with a 'c' — This forged work forgot to spell Jackson Pollock’s last name with a ‘c’

In case you haven’t seen it yet, 60 minutes examined the rapid fall of the Knoedler Art Gallery in 2011. The piece does a thorough job of giving background on the Knoedler Gallery, the role of the Cataloge Raisonne, and scientific testing.

I found particularly interesting this exchange between Anderson Cooper, and Domenico de Sole, one of the collectors, and the chairman of Sotheby’s which underscores the role of reputation and trust in the art market:

Anderson Cooper: Do you feel you did enough due diligence as a buyer?

Domenico de Sole: My due diligence was to go to the best, most prominent gallery in the United States dealing with a person with a stellar reputation, and pay a price that was reasonable, it was fair.

Domenico de Sole was the person who bought that $8 million fake Mark Rothko and told us he believes Knoedler Gallery and its President Ann Freedman either knew or should have known that this lucrative collection could not possibly be genuine. Greg Clarick is his attorney.

Greg Clarick: The red flags began with the notion that Glafira Rosales, who was an unknown person to Knoedler, who Knoedler never investigated, came in and she started delivering what turned out to be an endless stream of never-before-seen paintings was enough to raise a huge red flag.

Anderson Cooper: Strangers don’t walk off the street into a gallery saying that they have access to a never-before-seen collection of some of the greatest masterpieces

Greg Clarick: That’s right. Second, the works had no provenance.

Anderson Cooper: No chain, no history?

Greg Clarick: They had no history. They had no documents.

Anderson Cooper: So there was no evidence these paintings had ever been painted by the artists?

Greg Clarick: That’s correct.

Not only that, there were no bills of sale, no insurance records, no shipping documents, and no museum exhibitions for any of the paintings. Greg Clarick told us the gallery had motivation to overlook the paintings’ shortcomings.

Greg Clarick: Over the period of this fraud, Knoedler sold these paintings for about $67 million. Knoedler made over $40 million in profit from selling these paintings. And at the same time, Knoedler made essentially no money at all from selling other paintings.

$80 Million Con, http://www.cbsnews.com/news/60-minutes-80-million-art-fraud-anderson-cooper/.