Sara Ross, a Ph.D. candidate at Osgoode Hall Law has published an article in the American Indian Law Journal titled: “Res Extra Commercium and the Barriers Faced When Seeking the Repatriation and Return of Potent Cultural Objects: A Transsystemic Critical Post-Colonial Approach”. From the abstract:
The repatriation and return of objects of cultural value are often linked to decolonization projects and efforts to repair past wrongs suffered as a result of colonialism. Yet significant barriers hinder these efforts. These barriers primarily take the shape of time limitations, diverging conceptions of property and ownership, the high costs involved, and the domestic export and cultural heritage laws of both the source country and the destination country. I argue that these barriers are relics of colonialism that replicate and perpetuate the continued imposition of Eurocentric and Western legal notions and values on subaltern source countries and source indigenous groups. In order to truly move beyond the remaining relics of colonialism into a context where the culture and values of all groups are accorded equal respect, it is important that these barriers be removed.
The Spring issue of the Northwestern Journal of Technology and Intellectual Property has published an interesting student note by Jaya Bajaj titled “Art, Copyright, and Activism: Could the Intersection of Environmental Art and Copyright Law Provide a New Avenue for Activists to protest Various Forms of Exploitation?” The piece works best as a thought experiment, and may be an argument used by the many detractors of moral rights for artists to further restrict the expansion of the still-developing series of rights for artists. But I find the article, and the experimental protest to be thoughtful and well-reasoned. Here’s the abstract:
In 2015, a group of activists led by Aviva Rahmani began an artistic venture known as “Blued Trees.” They painted blue sine waves onto trees along a proposed pipeline pathway, and subsequently filed for federal copyright registration. They hoped to use copyright law and the Visual Artists Rights Act as a sword against fossil fuel companies. Although the piece was destroyed later that year as part of the pipeline construction, the “Blued Trees” movement continues. This note will discuss Rahmani’s legal theory and consider this theory’s strengths and weaknesses. This experimental protest brings forth a number of unanswered questions about the nature of copyright law. It is no secret that contemporary art forms, and the mediums involved, are becoming increasingly diverse. Therefore, this note also seeks to address the merits and limitations of current copyright law in terms of environmental and installation art.
Federal prosecutors in Brooklyn have announced a civil forfeiture proceeding against 5,500 objects from Iraq. The current possessors of the objects have also quickly announced they will not contest the forfeiture, and have agreed to pay a $3 million fine. The objects were imported by Hobby Lobby and its president, Steve Green, to create the Museum of the Bible in Washington D.C.
The Museum of the Bible, set to open in November near the National Mall in Washington D.C., has been rapidly acquiring antiquities from the Middle east for the last several years. History shows this kind of rapid acquisition with generous financial backing will inevitably lead to buying objects which may be looted, illegally exported, stolen, or orphaned. The questions surrounding the quick acquisition of all these objects has generated speculation for many years that these objects would cause legal difficulties for the museum.
The government’s civil forfeiture complaint tells a fascinating story of how Green traveled to the United Arab Emirates in July of 2010 and agreed to purchase 5,548 objects, including “500 cuneiform bricks, 3,000 clay bullae, 35 clay envelope seals, 13 extra-large cuneiform tablets, and 500 stone cylinder seals”. These objects were then then shipped via Federal Express to Oklahoma City to various different addresses of Hobby Lobby and its subsidiaries. The complaint notes an important reality of customs—not every shipment raises suspicion. Only some of the shipments of this material were seized by customs agents. Five shipments which traveled through Memphis, Tennessee were seized between January 3-5 of 2011. Other shipments successfully reached their destination in Oklahoma City.
The new issue of the International Journal of Cultural Property is available now, with contributions discussing deaccession, the status of fauna as cultural property, the role Sotheby’s has played in the collection of Maya antiquities, the fascinating case of the Buddhist Mummy, and other contributions. Here is the table of contents with abstracts:
Mann, D. (2017). To Have and To Hold … Or Not? Deaccessioning Policies, Practices, and the Question of the Public’s Interest. International Journal of Cultural Property,24(2), 113-159. doi:10.1017/S0940739117000091
Shockwaves echoed through the media and the arts community when the Delaware Art Museum chose to deaccession pieces from its collection and when the public learned that the Detroit Institute of Arts might be forced to do the same. Further concern arose when financial troubles compelled the Corcoran Gallery of Art to merge with the National Gallery of Art and George Washington University. An examination of the climate and legal battles surrounding these events shows how these institutions chose to cope with the financial adversity that put their collections at risk and illustrates the precarious position of works in a museum’s collection when that museum experiences financial distress. This article explores the ethical, judicial, and legislative frameworks currently governing deaccessioning and ultimately advocates for new legislative solutions to guide the deaccession process in order to provide the opportunity to maintain these works in the public sphere.
I have a few initial thoughts on the Council of Europe’s proposed antiquities convention at the Georgetown Journal of International Law online. Here’s just the introduction:
On Friday, May 19, the Committee of Ministers of the Council of Europe will meet to open a new treaty for signatures on a new Convention on Offences relating to Cultural Property. Given that the Council of Europe now has 47 member states, including both Russia and Turkey, the impact of this new Convention could be immense. This is particularly true given that the member states of the Council of Europe include art-acquiring states, transit states, and states with ancient monuments. The Convention may even allow any non-Council state to sign on to the Convention. The work of this draft Convention could catapult the member states of the Council of Europe to the head of the pack in embracing the complementary international conventions aimed at stemming the illicit trade in cultural property.
The Visual Artists Rights Act, or VARA, has since 1990 granted artists moral rights to their works of art. At least in the United States. Other nations have granted these moral rights to their artists for far longer. These are non-economic rights which prevent mutilation or destruction of works of art, and VARA lasts for the lifetime of the artist. Unfortunately much of the language of VARA is cumbersome and has relied on judicial massaging to reach a workable framework. And even despite this massaging, the concept of moral rights have not been favorably received in most courts. So it is noteworthy when an artist is able to successfully invoke the protections of VARA.
Such appears to be the case with respect to this work, “The Illuminated Mural” which was created on the side of this building on East Grand Boulevard in Detroit in 2009. At the time, Craig had received an agreement from the owner of the building that the mural would remain there for at least 10 years. When the building was sold to a new owner, the mural was jeopardized by plans to potentially redevelop the building. So in January of 2016, Craig filed a lawsuit asking for an injunction to preserve the mural.
This week, the current owner of the building has reached an agreement with Craig that will allow the mural to remain on the side of the building.
As she told Crain’s after the settlement:
“I’m really happy we got a break-through with ‘The Illuminated Mural’ where we are able to protect the work and maintain the original contract, which was the goal,” Craig said Friday afternoon. “It’s respect for the artwork that’s there and the future of the community, and the developer as well. We reached a middle ground there that I am happy with.”
How long and what the terms of the agreement may be are not public. But this large mural has earned a reprieve.
In a criminal complaint filed in New York State Court last December, charges were brought against a New York Gallery owner, Nancy Wiener for dealing in stolen property. When examining a complaint, special care should be taken that they are by nature one-sided accounts that are only allegations, in this case the allegations are made by Assistant District Attorney Matthew Bogdanos.
In the New York Times yesterday, Ralph Blumenthal and Tom Mashberg reveal the identity of two anonymous alleged co-conspirators from the complaint: