Karin Orenstein, an Assistant U.S. Attorney for the Eastern District of New York has published a new short essay for the North Carolina Journal of International Law titled “Risking Criminal Liability in Cultural Property Transactions”. In the Piece she references the purchases of questionable material by prominent wealthy collectors Michael Steinhardt and Steve Green. From the abstract:
This Comment explores when buyers of cultural property cross the line from taking business risks to engaging in criminal conduct. The Comment applies the National Stolen Property Act (NSPA) and the conscious avoidance doctrine to potential red flags in hypothetical cultural property transactions. When buyers are presented with red flags about a piece’s provenance and choose not to investigate, they cannot rely on deliberate ignorance as a defense to a charge that they knowingly transacted in or possessed stolen cultural property.
Orenstein, Karin, Risking Criminal Liability in Cultural Property Transactions (2020). North Carolina Journal of International Law, Vol. 45, 527, 2020. Available at SSRN: https://ssrn.com/abstract=3583457
Provenance, the ownership history of an artifact or work of art, has become one of the primary mechanisms for determining the legal status and authenticity of a cultural object. Professional associations, including museum organizations, have adopted the “1970 standard” as a means to prevent the acquisition of an ancient object from promoting the looting of archaeological sites, which is driven by the economic gains realized through the international market. The Association of Art Museum Directors (AAMD), one of the museum world’s most influential professional organizations, requires its members to list the ancient artworks and artifacts that they have acquired after 2008 that do not conform to the 1970 standard in an online object registry. The study presented here of the AAMD’s Object Registry for New Acquisitions of Archaeological Material and Works of Ancient Art analyzes the extent to which AAMD member museums do not comply with the 1970 standard and, perhaps of greater significance, the weaknesses in the provenance information on which they rely in acquiring such works. I argue that systematic recurrences of inadequate provenance certitude are symptomatic of the larger problem of methodology and standards of evidence in claiming documented provenance. A museum’s acceptance of possibly unverifiable provenance documentation and, therefore, its acquisition of an object that may have been recently looted, in turn, impose a negative externality on society through the loss of information about our past caused by the looting of archaeological sites.
Gerstenblith, P. (2019). Provenances: Real, Fake, and Questionable. International Journal of Cultural Property,26(3), 285-304. doi:10.1017/S0940739119000171
Anne-Sophie V. E. Radermecker, affiliated with the Department of History, Arts and Archaeology (Cultural Management) Université libre de Bruxelles, Brussels, Belgium has published a paper devoted to the market for anonymous Flemish paintings which were sold between 1955-2015.
This paper explores the market for indeterminate works of art. Our data set includes 1578 sales of fifteenth and sixteenth-century anonymous Flemish paintings, mainly collected from the Blouin Art Sales Index over the period 1955–2015. After a brief introductory section to the issue of anonymity in early modern art, and the different situations of information failure generated by anonymous paintings, the empirical part examines the supply and demand for paintings by unrecorded artists, using a hedonic pricing model. We find evidence that the degree of specification of the spatio-temporal designations given to the paintings (e.g. Flemish school, sixteenth century) affect prices differently (H1). The more specific the designation is in time and space, the more it tends to make up for the lack of information, and to positively affect the market value of anonymous paintings. When the artist name is missing, we also argue that purchasers pay greater attention to other quality signals. Four other hypotheses, which are expected to influence the buyer’s willingness to pay, are successively tested: H2) the physical condition of the painting; H3) oral or written interventions by an expert; H4) the length of the lot essay; and H5) previous attributions to named artists. The results suggest that most of these variables operate as significant pricing characteristics. We finally compare price indices of named artists, indirect names and spatio-temporal designations.
Museums are home to millions of artworks and cultural artifacts, some of which have made their way to these institutions through unjust means. Some argue that these objects should be repatriated (i.e., returned to their country, culture, or owner of origin). However, these arguments face a series of philosophical challenges. In particular, repatriation, even if justified, is often portrayed as contrary to the aims and values of museums. However, in this paper, I argue that some of the very considerations museums appeal to in order to oppose repatriation claims can be turned on their heads and marshaled in favor of the practice. In addition to defending against objections to repatriation, this argument yields the surprising conclusion that the redistribution of cultural goods should be much more radical than is typically supposed.
An interesting argument, and it sounds to me like he is making a case for cultural justice.
Sonia Katyal, Professor of Law at University of California Berkeley has authored a fascinating new article titled, Technoheritage in Volume 105 of the California Law Review. She engages with some of the interesting overlap between cultural property and intellectual property along with the physical and the digital.
Here’s the abstract:
This Article explores the legal revolution that is swiftly unfolding regarding the relationship between technology, user interactivity, and cultural institutions, both inside and outside of the law. At the same time that cultural properties are facing destruction from war and environmental change, we are also living in an age of unprecedented interactivity and reproduction—everywhere, museums are offering their collections for open access, 3-D printing, and new projects involving virtual and augmented reality. With the advent of other sophisticated forms of digital technology, the preservation and replication of antiquities have never been easier.
Today’s archaeological moment demonstrates both the possibilities and limitations behind “technoheritage”—the marriage of technology and cultural heritage. Toward that end, this Article argues that, in order to understand the relationship between technology and cultural heritage, it might be helpful to study the theoretical dimensions behind interactivity itself. Just as technology has the power to preserve and protect ancient artifacts, it also invites a dizzying array of legal conflicts over their digitization and replication, particularly with regards to the intersection of copyright law with cultural identity. Unpacking this further, this Article offers a tripartite taxonomy of interactivity: the first, described as extractive (drawing upon the accumulation and selection of data); the second, immersive (drawing upon new forms of user participation through virtual and augmented reality); and the third, derivative (drawing upon new possibilities of user creation). Normatively, I argue that these models of interactivity provide us with an important framework with which to examine the importance of copyright protection for cultural heritage. In the concluding section, I suggest a potential way of rethinking the museum by drawing on the logic and legal protection extended to databases and archives in an age of unprecedented user interactivity.
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.
Cathay Smith (Asst. Prof. at Montana School of Law) has published an article in the St. John’s Law Review, Community Rights to Public Art. The article surely would have generated the attention of the student editors of the St. John’s Law Review, as the 5 Pointz building, until it was demolished in 2014, was located just a few miles away from the St. John’s campus. From the abstract:
In 1932, the Rockefeller family commissioned Diego Rivera to paint an enormous mural as the centerpiece of the RCA Building lobby in Rockefeller Center in New York City. The colorful mural that Rivera painted, titled Man at the Crossroads, included images of social, political, industrial, and scientific visions of contemporary society. One night in February of 1934, the Rockefellers hired workers to chisel the mural off the wall without any warning or notice. The mural was broken into pieces before being carted away and dumped. The destruction of his mural shocked Rivera. More importantly, however, the destruction of Rivera’s mural permanently deprived the public of a significant work of public art and heritage. The public was stunned at the destruction of the mural; protesters called the Rockefellers’ act “art murder” and “cultural vandalism.” Nevertheless, the mural was the Rockefeller’s property and, despite public support for the mural, they had the legal right to destroy it. More than eight decades later, communities still face this type of loss of heritage through the destruction of public art. For instance, public outrage followed the 2014 demolition of 5 Pointz in New York, when the owner of 5 Pointz whitewashed and destroyed the 20-plus-year-old “graffiti Mecca” to make way for two new $400 million luxury high-rise apartment towers. On the opposite coast, just last year, Piedmont Avenue neighbors in Oakland were shocked when the owner of Kronnerburger Restaurant demolished a beloved community mural in connection with its construction of a new trendy burger restaurant.
Property owners generally have the right to destroy their own property. This Article argues, however, that certain property is so connected to a community’s identity that the community’s right to preserve its heritage may trump a property owner’s right to destroy. This Article explores existing, yet underutilized, legal solutions a community may use or adapt to preserve public art when that art has become a part of its cultural heritage. Finally, recognizing that preservation has its limits, and that without destruction there will be no space for creation, this Article ultimately sets forth questions communities will need to grapple with as they weigh whether and how to protect works of public art as cultural heritage.
“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.
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.
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.
Lauren Jean Bradberry, a third year law student at Louisiana State has a comment in volume 76 of the Louisiana Law Review examining the scope of copyright protection for architecture. It offers an interesting read, so long as you can forgive the puns we lawyers seem to love.