cultural heritage – Illicit Cultural Property

Cemeteries, Crown Jewels, Fakes, and War

Recent cultural heritage events remind me that protection is often weakest before anyone thinks to call it protection. A cemetery becomes “vacant” land. A museum becomes a little too open. A forged provenance becomes plausible enough. A customs rule turns movement into uncertainty. A damaged monument returns to Italy. The dramatic theft still has its place. Crown jewels stolen from the Louvre will always draw attention. But the quieter stories may tell us more about how heritage is actually lost: slowly, administratively, through development pressure, through market incentives that reward thin provenance and quick sales, and sometimes violently, in the gap between what the law promises and what institutions are prepared to do.

Heritage can also disappear through neglect, development, poor records, wishful thinking, legal uncertainty, military force, or a stamp on the back of a painting that looks just plausible enough.

In Northeast Houston, residents are raising concerns that development may threaten an abandoned Black cemetery. The legally recognized cemetery parcel is small, but longtime resident Roscoe Bluitt remembers headstones extending more widely into the wooded land nearby. A 2014 survey reportedly identified possible graves at least partly outside the known cemetery boundaries, and Houston officials have placed a stop-work order on the site while the next steps are considered. Advocates are now calling for a more thorough investigation, potentially including ground-penetrating radar.

Roscoe Bluitt, a lifelong resident of northeast Houston, describes his memories of a now abandoned Black cemetery where developers are clearing a nearby property. Jason Fochtman/Houston Chronicle

The story is painfully familiar. Burial grounds, especially Black cemeteries, are often “forgotten” only after systems of ownership, recordkeeping, maintenance, and development have made them easy to ignore. By the time a neighbor notices bulldozers, the law is already playing catch-up. The question is not simply whether a parcel is listed as a cemetery. It is whether the community, the city, the developer, and the state are willing to ask what may have been missed.

A very different kind of vulnerability is on display in the continuing discussion of museum security after the Louvre crown jewels theft. The New York Times recently used that heist to examine a broader design problem for museums: how to protect collections without turning institutions into fortresses. The article notes not only the Louvre robbery, but also thefts from an off-site storage facility of the Oakland Museum of California, damage at Chihuly Garden and Glass in Seattle, and the recent theft of works by Renoir, Cézanne, and Matisse from the Magnani-Rocca Foundation near Parma.

The challenge is that the museum ideal of openness sits uneasily with the needs of security. Glass, light, gardens, open galleries, and accessible storage can all help museums feel less forbidding. They can also create blind spots, entry points, or tempting routes of escape. The best security seems to be less about a single dramatic barrier and more about layers: thoughtful site design, sightlines, lighting, staffing, cameras, object-level alarms, and best of all the good old-fashioned human response. A camera, as one consultant put it, cannot get out of its chair.

Then there are the fakes. A father and daughter have pleaded guilty in connection with a multimillion-dollar forgery scheme involving works presented as Banksy, Andy Warhol, Andrew Wyeth, Richard Mayhew, Raimonds Staprans, Fritz Scholder, and others. Prosecutors described a scheme using forged works made in Poland, antique paper, and fabricated gallery stamps from defunct galleries to make the objects appear more credible. Forgery stories are often treated as colorful art-world scandals, and they are that. But they also show how fragile the market’s trust mechanisms can be in a market that continues to value privacy and discretion. Provenance is not just a nice story attached to an object.

This photo provided by Tulane University classical archeologist Susann Lusnia in October 2025 shows the 1,900-year-old grave marker of a Roman sailor named Sextus Congenius Verus, discovered in a New Orleans backyard. (Susann Lusnia via AP)

There was also a quieter and more hopeful story this week. A nearly 2,000-year-old Roman grave marker discovered in a New Orleans backyard has been returned to Italy. The marble epitaph, dedicated to Sextus Congenius Verus, was eventually matched to an object missing from a museum in Civitavecchia, near Rome. The likely path to New Orleans seems to have involved a U.S. soldier who served in Italy and later kept the stone at his home. The FBI coordinated the return, and the object is now headed back.

The movement of objects is also being shaped by a less romantic force: tariffs. The Art Newspaper reports that after the U.S. Supreme Court struck down President Trump’s unilateral tariffs as unconstitutional, the administration imposed a new tariff regime of up to 15 percent under a different emergency powers law, prompting further litigation and continued uncertainty for the art and antiques trade. Dealers described confusion over whether exemptions for antiques over 100 years old will remain secure, and whether shipping, tariffs, and fuel surcharges will make some transactions commercially impossible. Tariffs may seem far removed from grave markers, forged art, or museum alarms. But they matter because cultural objects move through ordinary commercial channels. Dealers, collectors, museums, conservators, shippers, and customs brokers all operate inside systems of cost and uncertainty. When the rules shift suddenly, especially around imports, the market adjusts. One suspects, uncertainty makes the already opaque parts of the trade even harder to see.

Finally, a much darker reminder that cultural heritage protection cannot be separated from the conduct of war. More than 200 scholars and cultural professionals (including me) signed a statement criticizing damage to Iranian cultural heritage during U.S.-Israeli strikes and the international response to that damage. The statement invokes the 1954 Hague Convention and argues that more than 130 registered UNESCO and national monuments and museums have reportedly been damaged since the start of the conflict. It also criticizes international institutions for what the signatories view as an inadequate response when powerful states are involved.

The Art Newspaper’s coverage notes reported damage to sites including Golestan Palace in Tehran, the Chehel Sotoun building of the Persian Garden in Isfahan, the Jame Mosque of Isfahan, and sites near the Prehistoric Sites of the Khorramabad Valley. UNESCO has acknowledged damage and expressed concern, while the statement’s organizers argue that concern is not enough when legal protections lack enforcement.

This is the hard edge of cultural heritage law. The 1954 Hague Convention rests on the premise that damage to cultural property belonging to any people is a loss to all humanity. But that principle is only as strong as the willingness of states and institutions to apply it consistently. The problem is not that we lack legal language. What is often missing is consequence.

Taken together, these stories point to the same larger lesson. Cultural heritage protection is not a single switch that the law turns on after something has gone wrong. The law matters. But the law often arrives late. The harder work is to build protection into ordinary practice, before the bulldozer, before the ancient stone becomes patio décor, and before a historic site is reduced to a damage assessment. Heritage is most vulnerable where attention is weakest.

Sam González Kelly, Houston Residents Worry Development Threatens a Black Cemetery. They’re Fighting to Protect It., Houston Chronicle (May 1, 2026), https://www.houstonchronicle.com/news/houston-texas/article/black-cemetery-history-construction-22218009.php , archived at https://perma.cc/WJ6H-3J27.

Sam Lubell, After the Heists: Securing Museums Without Closing Them Off, The New York Times (Apr. 18, 2026), https://www.nytimes.com/2026/04/18/arts/design/museums-security.html.

Jake Offenhartz, Father and Daughter Admit to $2M Banksy and Warhol Art Forgery Scam, Independent, https://uk.news.yahoo.com/father-daughter-admit-2m-banksy-082920547.html, archived at https://perma.cc/HCQ6-5HZX (last visited May 2, 2026).

More than 200 Cultural Figures Sign Statement Criticising International Response to Destruction of Iran’s Heritage, The Art Newspaper – International art news and events, https://www.theartnewspaper.com/2026/04/15/more-than-200-cultural-figures-sign-statement-criticising-international-response-to-destruction-of-iran-heritage (last visited May 2, 2026).

Ancient Roman Gravestone Found in New Orleans Back Yard Returned to Italy, the Guardian, https://www.theguardian.com/science/2026/may/01/roman-gravestone-new-orleans-returned-italy, archived at https://perma.cc/75LC-7R43 (last visited May 2, 2026).

Art Trade Adjusting after US Supreme Court Struck down Trump’s Extreme Tariffs, The Art Newspaper – International art news and events, https://www.theartnewspaper.com/2026/05/01/trump-tariffs-struck-down-supreme-court-art-trade-adjusts (last visited May 2, 2026).

Security, Spectacle, and Return

It has been an oddly revealing week for cultural heritage.

On one end, Dutch officials unveiled the recovered Coțofenești helmet and two gold bracelets at a press conference in Assen, flanked by heavily armed officers in balaclavas. The helmet, stolen from the Drents Museum in January 2025 while on loan from Romania, was recovered with minor damage; though one bracelet remains missing. The recovery appears to have come as part of an agreement with suspects ahead of trial.

A Geto-Dacian helmet dating from the first half of the 4th century BC, uncovered by chance. View from the front. — By © Radu Oltean / Wikimedia Commons, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=14615152

On the other end, just days earlier, thieves entered the Magnani-Rocca Foundation near Parma and, in about three minutes, made off with works by Renoir, Cézanne, and Matisse. Reports describe a fast, organized raid by four men who forced entry and targeted highly recognizable names.

“Odalisque on the Terrace” by Henri Matisse.

And then, in Zurich, Switzerland quietly transferred ownership of 28 Benin Bronzes from three museums, with 18 expected to travel physically to Nigeria in June. That return followed provenance research and was framed, quite rightly, as another step toward reuniting Nigeria with material taken in the 1897 British plunder of Benin.

Three stories, one week, and each says something slightly different about how the cultural heritage world performs security, legitimacy, and justice.

The Dutch press conference was the most visually obvious example. The object had been recovered. Great! That part matters most. But the staging mattered too. Armed guards. Masks. Cloth lift. The careful unveiling of a rescued national treasure. It was a display of regained control. One could almost hear the subtext: yes, it was stolen, but look how seriously we take it now.

That is what struck Donna Yates so clearly in her reaction to the event: the oddity of the whole performance. The recovery of a cultural object becomes not just an announcement, but a kind of theatrical rebuttal to the earlier embarrassment. The state is not merely returning the object; it is staging authority. And perhaps staging reassurance too.

The Italian theft, by contrast, stripped away the theatre. There is no ceremonial dignity in a three-minute smash-and-grab. Only a broken entry point, a short timeline, and the uncomfortable reminder that museums remain vulnerable to ordinary criminals with planning, nerve, and a few minutes to spare. Anthony Amore’s point is useful here: three minutes is not some cinematic anomaly. It sits squarely within the normal range for many museum thefts. That should worry people more than the headline itself.

The most important lesson from Parma may be the least glamorous one. Famous art is easier to steal than to monetize as Anja Shortland details. Freshly stolen museum objects are extraordinarily difficult to sell on the legitimate market because dealers, auction houses, and registries check title, provenance, and stolen-art databases. That does not mean theft makes no economic sense; it means the economic logic is usually murkier than the movies suggest. These works may be held, moved through criminal networks, used as bargaining chips, or dangled in hopes of some later leverage. The hard part is not the theft. The hard part is cashing out.

And that, in turn, makes the Dutch recovery more interesting. If a stolen object can later become useful in plea bargaining or sentence reduction, then it acquires a kind of underworld value quite apart from its cultural value. That is not a comforting thought. The helmet is priceless to Romania; it may also have become useful to suspects once prosecutors made clear that recovery would matter.

Then there is the Swiss Benin return, which points in a different direction entirely. No broken door, no emergency unveiling. Instead, a transfer of ownership after provenance work, a public ceremony, and a clear acknowledgment that access to cultural heritage means more than a paper change in title.

But even here, where the moral and historical case is much clearer, ceremony still does important work. Returns like this are also public performances—just of a more attractive kind. They signal fairness, accountability, and institutional maturity. They tell a story not about how we have secured this object, but about we are finally doing the right thing. Switzerland’s transfer of 28 objects, and the expectation that 18 will physically move to Nigeria in June, is meaningful precisely because it joins symbolism to substance.

Still, the Swiss story also comes with a caution. Returns create expectations. Nigeria’s National Commission for Museums and Monuments has had notable success in securing repatriations, but it now faces the harder question of display, stewardship, resources, and internal politics. Justice is not finished when the ceremony ends. Sometimes that is where the real work starts.

Taken together, these stories reveal a familiar pattern in cultural heritage disputes. We are very good at paying attention to dramatic moments: the theft, the raid, the recovery, the unveiling, the handover. We are less good at attending to the quieter work in between: preventive security, provenance research, institutional due diligence, funding, and conservation. Yet that unglamorous middle is where most of the work actually happens.

In Assen, security was performed after failure. In Parma, failure arrived in three minutes. In Zurich, legitimacy was sought through return. None of those performances are trivial. But none should distract from the underlying question either: are institutions actually getting better at protecting and returning cultural objects, or are they just getting better at staging the moment?

Anthony Amore, The Italian Job – A Profile, Big Security, https://anthonyamore.substack.com/p/the-italian-job-a-profile (last visited Apr. 3, 2026).

Eileen Kinsella, Experts Break Down the Brazen $10 Million Museum Theft in Italy, Artnet News, https://news.artnet.com/art-world/magnani-rocca-foundation-heist-experts-2761113, archived at https://perma.cc/9M2G-CZJY (last visited Apr. 3, 2026).

Senay Boztas, ‘A Wow Moment’: Ancient Romanian Gold Helmet Returned in Plea Deal with Theft Suspects, the Guardian, https://www.theguardian.com/artanddesign/2026/apr/02/stolen-romanian-gold-helmet-recovered-netherlands , archived at https://perma.cc/74V4-PWVR (last visited Apr. 3, 2026).

Claire Moses, Ancient Artifacts Stolen in Dutch Museum Heist Are Recovered, The New York Times (Apr. 2, 2026), https://www.nytimes.com/2026/04/02/world/europe/museum-heist-netherlands-helmet-romania.html.

Barnaby Phillips, Switzerland Returns Benin Bronzes, Institute of Art and Law (Apr. 2, 2026), https://ial.uk.com/switzerland-returns-benin-bronzes/, archived at https://perma.cc/2F52-DU6R.

Anja Shortland, Selling Stolen Art is Tricky, so Why Even Bother Heisting It? An Expert Explains, The Conversation, https://theconversation.com/selling-stolen-art-is-tricky-so-why-even-bother-heisting-it-an-expert-explains-279700 , archived at https://perma.cc/D9EX-5R2M (last visited Apr. 3, 2026).

Ali Watkins & Josephine de La Bruyère, Renoir, Cézanne and Matisse Artworks Are Stolen in 3-Minute Museum Heist, Police Say, The New York Times (Mar. 30, 2026), https://www.nytimes.com/2026/03/30/world/europe/parma-art-heist-renoir-matisse-cezanne-italy.html.

Donna Yates, Performance of Security at the Drents Museum Helmet Return Press Conference, Anonymous Swiss Collector (Apr. 2, 2026), https://www.anonymousswisscollector.com/2026/04/performance-of-security-at-the-drents-museum-helmet-return-press-conference.html , archived at https://perma.cc/6X68-JZ6J.

Renoir, Cézanne and Matisse Works Stolen in ‘Three-Minute’ Italian Museum Heist, The Art Newspaper – International art news and events, https://www.theartnewspaper.com/2026/03/30/renoir-cezanne-matisse-works-stolen-in-three-minute-italian-museum-heist , archived at https://perma.cc/563Y-H7LT (last visited Apr. 3, 2026).

Human Rights and Cultural Heritage at DePaul

Mali Mosque On November 1 and 2 DePaul’s Center for Art, Museum & Cultural Heritage Law will be holding a conference examining the intersection of heritage and human rights. Here’s the list of excellent speakers:

Intangible Cultural Heritage and Human Rights: Morag Kersel, Justin B. Richland, George Nicholas, Catherine Bell
Environmental Justice and Cultural Rights: Patty Gerstenblith, Rosemary Coombe, Dean Suagee, Dorothy Lippert
Featured Lecturer Karima E. Bennoune, Special Rapporteur in the field of Cultural Rights, United Nations
Featured Lecturer Shamila Batohi, Senior Legal Advisor to the Prosecutor, International Criminal Court
Sovereigns vs. Peoples: Who Has Rights to Cultural Heritage: Lubna S. El-Gendi, Sarah Dávila-Ruhaak, Rebecca Tsosie
Resolving Cultural Heritage Disputes Through Alternative Dispute Resolution: Giving Peace a Better Chance (Ethics Panel): Thomas R. Kline, Stacey Jessiman de Nanteuil, Alessandro Chechi, Lori Breslauer

The Alternative Dispute Resolution panel looks particularly interesting.

Continue reading “Human Rights and Cultural Heritage at DePaul”

Ross on the barriers to post-colonial repatriation

“Raven/Sisutl transformation mask by Oscar Matilpi, Kwakwaka’wakw Nation, 1997. In the permanent collection of The Children’s Museum of Indianapolis.” CC BY-SA 3.0

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.

Sara Ross, Res Extra Commercium and the Barriers Faced When Seeking the Repatriation and Return of Potent Cultural Objects: A Transsystemic Critical Post-Colonial Approach, SSRN Scholarly Paper ID 2755435 (Social Science Research Network), Mar. 28, 2016.

Younging on Traditional Knowledge and Intellectual Property

A Caribbean Steel drum, an instrument made using traditional knowledge

Dr. Gregory Younging, at the University of British Columbia, has an interesting essay in the Pennsylvania Journal of International Law titled “Traditional Knowledge Exists; Intellectual Property is Invented or Created“. From the introduction:

Prior to contact with Europeans between 300 and 600 years ago, Traditional Knowledge (TK) systems had developed and flourished over thousands of years in various parts of the world. These knowledge systems are rich and varied, ranging from soil and plant taxonomy, cultural and genetic information, animal husbandry, medicine and pharmacology, ecology, zoology, music, arts, architecture, social welfare, governance, conflict management, and many others. Most of these TK systems continue to exist and evolve; at the same time, they have been appropriated and subjected to Western legal regimes. Indigenous cultural expressions are manifestations of TK that are passed on by Indigenous ancestors through successive generations. They are, in turn, inherited by current, to be passed on to future, generations.

Gregory Younging, Traditional Knowledge Exists; Intellectual Property Is Invented or Created, 36 U. Pa. J. Int’l L. 1077 (2015).

Auctions and Civil Disobedience (UPDATE)

The Christie’s Auction catalog with a bronze rabbit head

Earlier this week I was able to watch a screening on Earth Day of ‘Bidder 70’ a new documentary which examines the story of Tim DeChristopher. He was sentenced to two years in prison, and a $10,000 fine. His crime? He attended an oil and gas lease auction and bid on Utah land which was being leased for oil and gas exploration with no intent to buy the land (he didn’t have the money) or to drill on it. I’m not as interested in going through a review of the documentary itself. I thought overall its well worth taking a look at, but my biggest frustration with the story was it left out a lot of the details of the auction process, how he was able to bid and refuse to pay, and how his act of civil disobedience ended up being successful.

From what I gathered the Bush administration in their last weeks in office put opened up lots of land for oil and gas leases, and that DeChristopher successfully ruined these auctions. And then when the Obama administration took office the Department of the Interior later decided not to auction these parcels of land after all. The film does a great job of presenting DeChristopher’s story, and conveying his indignation at the ruination of what appears to be some pristine Utah wilderness.

But watching the documentary I was most struck by the connections between a couple of events that I’ve traced here before: the Bronze zodiac auctions in France from the Yves Saint-Laurent sale, and the sentencing of antiquities looters in Utah. Environmental and cultural heritage issues are inextricably linked, and the different priorities of prosecution and sentencing on display here were really striking.

If you aren’t familiar with the sad saga of the Chinese Zodiac heads, here’s a quick overview. Over 150 years ago the Summer Palace near Beijing was looted by British troops. Lots of art was burned, looted, destroyed, or lost. Some objects which had been taken were parts of a beautiful ornate fountain/clock mechanism which had the 12 Chinese zodiac animals. A handful of these still existing heads have been purchased by Chinese repatriation advocates on the open market. And two of these bronze figurines, the rabbit and the rat were acquired by Yves Saint Laurent. Well on his death many objects from his estate were set to go up for auction at Christie’s in Paris. But the looting of the Chinese Summer Palace is a notorious event in Chinese history, and the Chinese government lodged a number of protests at the sale. When the two heads were up for auction, the successful bid was nearly 32 million Euro. The winning bidder was Cao Mingchao, owner of a small auction house in China. After the auction he refused to pay the bid, exacting the same kind of civil disobedience that DeChristopher went to prison for. After the auction Mingchao stated “What I want to stress is that this money cannot be paid (…) I think any Chinese person would have stood up at that moment. It was just that the opportunity came to me. I was merely fulfilling my responsibilities.” Despite some hints at a French prosecution of the bidder, those never materialized and the heads as I understand it were never actually auctioned.

There have been a number of controversial sales of Precolumbian and native american sacred items in France in recent months. And it seems that despite some legal attempts to block sales, this kind of technically legal, but morally objectionable auction; which the current heritage law framework deems ok; will only be blocked if an auction house bends to public pressure or if there’s a bidder exercising civil disobedience.

Remember that in this part of the country the Four-Corners investigation uncovered a large network of illicit native american objects. That investigation led to 3 suicides and a number of citizens being indicted and later pleading guilty to heritage crimes. But no custodial sentences have been imposed. The sad takeaway is I think that you can loot native american sites, and the Federal government will have irregular investigations, but mess with the leasing of oil and gas, and you’ll feel the weight of the federal government.

Here’s the trailer for Bidder 70:
Bidder 70 – Trailer from Gage & Gage Productions on Vimeo.

UPDATE:

And now it looks like the rat and rabbit will be returned to China: http://bit.ly/ZpP67I

Questions or Comments? Email me at derek.fincham@gmail.com

My Piece on Property and Heritage

When writers discuss stolen art, repatriation or looting one of the threshold problems is how to classify these objects: either as property or as heritage. It seems to me both concepts are distinct, and in a piece which is now available from the Penn. State Law Review, I’ve argued both should be separated. Here’s the abstract:

This piece takes up the competing concepts of property and heritage. Recent scholarship views property as a series of connections and obligations – rather than the traditional power to control, transfer or exclude. This new view of property may be safeguarding resources for future generations, but also imposes onerous obligations based on concerns over environmental protection, the protection of cultural resources, group rights, and even rights to digital property. Yet these obligations can also be imposed on subsequent generations, and certain obligations are imposed now based on the actions of past generations.

This article examines the multigenerational aspects of property via a body of law which should be called heritage law. Heritage law now governs a wide range of activities some of which include: preventing destruction of works of art, preventing the theft of art and antiquities, preventing the illegal excavation of antiquities, preventing the mutilation and destruction of ancient structures and sites, creating a means for preserving sites and monuments, and even righting past wrongs. This piece justifies the new conceptualization in two ways. First, by showing that properly distinguishing property and heritage will allow us to better protect heritage with a richer, fuller understanding of the concept. And second by demonstrating how current definitions lead to imprecise analysis, which may produce troubling legal conclusions.

A growing body of heritage law has extended the limitations periods for certain cultural disputes. This has shifted the calculus for the long-term control of real, movable, and even digital property. This can be acutely seen with respect to cultural repatriation claims – specifically the claims of claimants to works of art forcibly taken during World War II; or the claims by Peru to certain anthropological objects now in the possession of Yale University which were removed by Hiram Bingham in the early part of the 20th Century.

You can download the whole article here. I’d be most interested to hear any comments at derek.fincham “at” gmail.com

Questions or Comments? Email me at derek.fincham@gmail.com

Student Note on Orphaned Works and Cultural History

Brianna Dahlberg has posted a student note on orphaned works and access to cultural history in the Southern California Review of Law & Social Justice. From the abstract:

Orphan works are copyrighted works whose owners are difficult or impossible to find. They include a vast number of old works in museums, archives and libraries that are not being commercially exploited by rights holders because they are out-of-print, unpublished or anonymous, but nonetheless have cultural or historical significance. However, if the institutions cannot locate the rights holders, they cannot publish or publicly display these works without risking a copyright infringement lawsuit should the rights holders come forward in the future. This Note addresses a new aspect of the orphan works problem: its disproportionate impact on works created by racial and religious minorities, women, Native Americans and other indigenous people, and the poor. Locating rights holders for early-twentieth century works by these groups tends to be especially difficult for a variety of reasons. Minority and poor white musicians were routinely excluded from performing rights organizations until the 1940s and were less likely to register their copyrights. Women and minority visual artists often created their works apart from the established gallery system, and their artworks tend to be less exhibited and well-known. The identifying information for folk art and traditional Native American art is often lost. As a result, many of these important works remain locked away in archives and inaccessible to the public. This Note proposes a solution to the orphan works problem with the goals of promoting broader cultural access and participation in mind. I evaluate four potential approaches, and conclude that the Nordic countries’ solution of extended collective licensing would best serve the goal of promoting access to cultural works of disadvantaged groups while fairly compensating rights holders who do come forward.

Questions or Comments? Email me at derek.fincham@gmail.com

Stewarding the Watts Towers

I remember driving through LA for the first time five years ago, seeing these towers from the distance, and wondering what kind of crazy accident created those. I only learned later they were the work of one man, building on his own. The Los Angeles County Museum of Art is nearing an agreement to oversee the restoration and preservation of the Watts Towers:

Director of Lacma’s conservation department, Mark Gilberg, aims to take a more holistic approach to conservation efforts, which up until now have been short-term. “We are rethinking procedures and adopting ones that will be more proactive than reactive,” says Gilberg. Initial delays regarding insurance concerns have been resolved with the promise that Lacma will not be financially responsible for any gross negligence while working on the towers.

The decision to recruit the museum comes amidst a major budget shakedown across the state, which has resulted in slashed funding to nearly every sector. The state-owned Watts Towers “are in a situation where they are fighting a battle all the time,” explains Lacma spokeswoman, Barbara Pflaumer. Last year, before Los Angeles’s municipal budget was cut, the offer for Lacma’s conservation expertise was $300,000. Olga Garay, the head of the city’s department of cultural affairs, has reportedly put the total restoration costs at $5m.

I’ve probably linked to it before, but after the jump you can see a 1957 documentary showing Simon Rodia at work:

Marisa Mazria Katz, Lacma nears deal on Watts Towers project The Art Newspaper, http://www.theartnewspaper.com/articles/Lacma+nears+deal+on+Watts+Towers+project/22146 (last visited Jan 4, 2011).

Questions or Comments? Email me at derek.fincham@gmail.com

My New Piece on Property and Heritage

I have posted on SSRN a working draft titled “The Distinctiveness of Property and Heritage“. I argue we need to be careful to observe and honor the differences between the competing ideas of property and heritage by discussing how the law may be shifting to meet new challenges. The end result I think will be a renewed appreciation for cultural claims via a body of law which can be called “heritage law”. As always any comments or criticisms would be most appreciated. Also, if any readers have any works in progress they would like me to publicize, or if you have a recent piece you would like me to share, please do pass them along.

Here is the abstract to my work in progress:

This piece takes up the competing concepts of property and heritage. Recent scholarship views property as a series of connections and obligations – rather than the traditional power to control, transfer or exclude. This new view of property may be safeguarding resources for future generations, but also imposes onerous obligations based on concerns over environmental protection, the protection of cultural resources, group rights, and even rights to digital property. Yet these obligations can also be imposed on subsequent generations, and certain obligations are imposed now based on the actions of past generations.

This article examines the multigenerational aspects of property via a body of law which should be called heritage law. Heritage law now governs a wide range of activities some of which include: preventing destruction of works of art, preventing the theft of art and antiquities, preventing the illegal excavation of antiquities, preventing the mutilation and destruction of ancient structures and sites, creating a means for preserving sites and monuments, and even righting past wrongs. This piece justifies the new conceptualization in two ways. First, by showing that properly distinguishing property and heritage will allow us to better protect heritage with a richer, fuller understanding of the concept. And second by demonstrating how current definitions lead to imprecise analysis, which may produce troubling legal conclusions.

A growing body of heritage law has extended the limitations periods for certain cultural disputes. This has shifted the calculus for the long-term control of real, movable, and even digital property. This can be acutely seen with respect to cultural repatriation claims – specifically the claims of claimants to works of art forcibly taken during World War II; or the claims by Peru to certain anthropological objects now in the possession of Yale University which were removed by Hiram Bingham in the early part of the 20th Century.

Questions or Comments? Email me at derek.fincham@gmail.com