Two Ways of Policing Heritage

A red-figured krater withdrawn from auction at Christie's in Dec. 2014 after Christos Tsirogannis connected the image to David Swingler, who has been investigated by US Customs Authorities and was sentenced to prison in absentia in Italy
A red-figured krater withdrawn from auction at Christie’s in Dec. 2014 after Christos Tsirogannis connected the image to David Swingler, who has been investigated by US Customs Authorities and was sentenced to prison in absentia in Italy

Christie’s had an auction of antiquities on Dec. 11, and some of the objects up for auction were ‘matched’ with photographic archives seized from dealers and collectors who deal in illicit material. These matches have always left me a little uneasy. If an object is matched, it means it is most likely looted. But the auction houses have no good way to match these objects because these photo archives are closely held by law enforcement agencies and a group of researchers. There are claims that the auction houses could go directly to Greek or Italian officials and have these objects checked against these databases for free. As Christos Tsiogiannis answered when asked by Catherine Schofield Sezgin: “The auction houses, and the members of the international antiquities market in general, always have the opportunity to contact the Italian and Greek authorities directly, before the auctions. These authorities will check, for free, every single object for them.”  But it seems they do not do this. Objects are invariably withdrawn after a match, where they disappear back into collections in most cases, and we are left with little progress in stemming future looting and protection of sites. And so each new antiquities auction continues the cycle of public shaming and return. But the looting continues.

That was the core point of a paper I presented last year in a meeting of ISPAC and the United Nations office on Drugs and Crime in Courmayeur. Some of the papers have been collected and published by Stefano Manacorda and Arianna Visconti. I’ve posted my short paper “Two Ways of Policing Cultural Heritage” on SSRN. From the introduction:

The title of this paper is, of course, a play upon the title of Professor John Henry Merryman’s well-known essay which laid out the ways of conceptualizing cultural property law there are two ways to think about cultural objects. One as part of a national patrimony, and second as a piece of our collective cultural heritage. In a similar way there are two ways to envision jurisdiction of cultural heritage crime. Criminal law can of course apply to policing the individuals responsible for stealing, looting, selling and transporting illicit art and antiquities. Or, law enforcement resources can be used to secure the successful return of stolen art, and the protection of sites. The criminal law can regulate people; and it can also regulate things. In order to produce meaningful change in the disposition of art, it must do both effectively. Focusing on art at the expense of criminal deterrence for individuals is an incomplete strategy.
Fincham, Derek, Two Ways of Policing Cultural Heritage (December 10, 2013). Courmayeur Mont Blanc, Italy, edited by Stefano Manacorda, Arianna Visconti, Ed. ISPAC 2014 . Available at SSRN:http://ssrn.com/abstract=2536542

 

Gerhardt on the publication doctrine and art history

The coal Glen Mine in North Carolina was the site of a series of explosions in 1925. 53 miners were dead, but the account is not listed in most North Carolina history texts, perhaps because the images of the scene like this are not copyrighted and in the public domain.
The coal Glen Mine in North Carolina was the site of a series of explosions in 1925. 53 miners died, but the account is not listed in most North Carolina history texts according to Gerhardt, perhaps because the images of the scene like this are not made available. 

Deborah Gerhardt, an Assistant Professor at North Carolina School of Law has written an interesting discussion on the public domain and the publication doctrine, which would make it possible to place a number of images in the public domain, which has important consequences for art historians. From the abstract:

This Article is the first to use the copyright publication doctrine to clarify whether art, photographs, films, and historical documents that fill our museums and libraries are in the public domain. Knowing whether a photo, painting, film, or original letter was published is critically important to anyone who wants to use it today. Before 1989, publishing a work with no copyright notice dedicated the work to the public domain. Unpublished works without a notice are likely protected by copyright, and their unauthorized use can result in severe federal penalties. Unfortunately, the meaning of “publication” in copyright law is notoriously ambiguous. The federal statutory definition suggests that works “made available” to the public are published, while leading treatises generally assume that works given to public museums and libraries are unpublished. Confronted with this uncertainty, risk averse institutions too often assume that archived works are protected by copyright. Misunderstanding the law can keep cultural treasures locked in dark archives, vaults and basements, preventing their use as a foundation for new expression and distorting our sense of history.

This Article critically examines mistaken assumptions about copyright publication. It finds that neither the statutory definition nor leading treatises adequately identify when a work is published. A better standard for determining when a work is published and in the public domain is needed to free works from being locked up by copyright uncertainty. The best solution would clarify the boundaries of a stable public domain. In a recent decision, the Supreme Court took a wrong turn in dismissing the importance of the public domain. Knowing what content may be freely used is critical to preserving First Amendment values and freeing cultural treasures from copyright’s bondage. The copyright ambiguity of archived works should be resolved in a way that honors the expressive and historical value of the public domain. After considering several alternatives, this Article shows how precedential patterns point to the best solution to the publication ambiguity. Drawing on empirical analysis of federal cases interpreting copyright publication, I identify the variables that are most important in determining whether archived works are published. The suggested solution focuses on copyright owner intent and the availability of authorized copies. Other factors described as significant in leading treatises — such as the type of work or archive — actually mask these two fundamental inquiries. The proposed standard provides a much needed solution to clarify which pieces of our cultural heritage are in the public domain and freely available as raw materials for educational sharing, expressive work, historical research, and public discourse.

Gerhardt, Deborah R., Copyright at the Museum: Using the Publication Doctrine to Free Art and History (September 5, 2014). Available at SSRN: http://ssrn.com/abstract=2505041.

As always, if you have a draft or an article related to art law, antiquities law, or cultural heritage generally, please consider posting a draft on SSRN or another open access site.

Smith on Street Art and low Intellectual Property

Street art in Oslo
Street art in Oslo

Cathay yvette Nikka Smith, of  the University of Denver Sturm College of Law has posted on SSRN, Street Art: An Analysis Under U.S. Intellectual Property Law and Intellectual Property’s ‘Negative Space’ Theory, 259 DePaul J. Art, Tech., & Intel. Prop. (2014). From the Abstract: Continue reading “Smith on Street Art and low Intellectual Property”

Varmer on Underwater Cultural Heritage law

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Ole Varmer, International Section, Office of General Counsel, NOAA has written a technical examination of Underwater Cultural Heritage law: Closing the Gaps in the Law Protecting Underwater Cultural Heritage on the Outer Continental Shelf, 33 Stan.Envtl.L.J. 251 (2014). From the abstract: Continue reading “Varmer on Underwater Cultural Heritage law”

How Law Defines Art

Is this a museum?  "Prada Marfa" by Michael Elmgreen and Ingar Dragset
Is this a museum? “Prada Marfa” by Michael Elmgreen and Ingar Dragset
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Is this advertising? “Playboy Marfa” by Richard Phillips

Last month the John Marshall Review of Intellectual Property Law held its annual symposium. This year the topic was the intersection of art and law. There were a number of great papers examining how art and law overlap. I contributed a short talk on how the law ends up defining art, arguing the legal and the arts community need to recognize the important role law plays in defining the limits of conceptual art when legal disputes arise. I’ve posted the short draft online here: (How Law Defines Art), and I’d love to hear any reactions.

Defining art is both hard and subjective. But in lots of contexts the law must arrive at a just solution to hard and subjective questions. The art world (which includes artists, buyers, art lovers, art historians, and art writers generally) has largely neglected the task of defining artworks. This neglect has crept into legal disputes as contemporary art has become more conceptual. It has loosened the limits of aesthetics, form, function, and composition. This makes crafting a definition even more challenging. Yet the Law has an important part to play in resolving art disputes. In doing so courts end up defining art. They do not set out to do so, and in fact they do all they can to avoid acting as art critics. But paradoxically this creates inconsistent judicial reasoning and leads to under-reasoned opinions. The solution offered here, is to acknowledge this critical function, and encourage courts to engage with the visual arts community, and for the arts community to engage back.

Continue reading “How Law Defines Art”

Klerman on ‘Choice of Law and Property’

One of the stolen Mosaics at issue in AUTOCEPHALOUS GREEK-ORTHODOX CHURCH OF CYPRUS vs.GOLDBERG, 917 F. 2d 278 (7th Cir., 1990)
One of the stolen Mosaics at issue in AUTOCEPHALOUS GREEK-ORTHODOX CHURCH OF CYPRUS vs.GOLDBERG, 917 F. 2d 278 (7th Cir., 1990)

Daniel Klerman, of the University of Southern California Law School, has a new paper titled “Jurisdiction, Choice of Law and Property” up on SSRN. The piece looks at international choice of law generally, but he argues that the situs rule produces bad outcomes with respect to stolen art disputes. Instead, he argues the lex originis rule produces better outcomes. From the abstract:

Jurisdiction and choice of law in property disputes has been remarkably stable. The situs rule, which requires adjudication where the property is located and application of that state’s law, remains the norm in most of the world. This article is the first to apply modern economic analysis to choice of law and jurisdiction in property disputes. It largely confirms the wisdom of the situs rule, but suggests some situations where other rules may be superior. For example, in disputes about stolen art, the state where the work was last undisputedly owned may be both the most efficient forum and the best source of applicable law.

 

 

Roodt on the limits of art restitution

Repatriated Etruscan objects, part of the Nostoi exhibition
Repatriated Etruscan objects, part of the Nostoi exhibition

Dr. Christa Roodt has written a piece for the International Law Journal of Southern Africa titled “Restitution of art and cultural objects and its limits”. She is a Research Lecturer at the University of Glasgow. Her piece is available from Trafficking Culture.

The abstract:

Art and cultural objects have a complex nature and status. A legal approach cannot escape having to state which objects come within the scope of the definition, but an objective legal definition in abstracto is difficult to provide. Because the flows of licit and illicit objects are so intermixed, both the legitimate and underground art markets are implicated in the trade involving these objects. Global legal diversity further complicates the distinction between the licit and the illicit trade. This article takes stock of restitution and suitable dispute settlement mechanisms against this backdrop. Restitution processes have become more openly policy-oriented, and the meaning of ‘restitution’ now extends to overcoming the legal obstacles in the way of return. Law can provide the framework for negotiation and dispute settlement in many cases, but the ethical dimension is a particularly powerful agent for restitution of Nazi spoliated art and human remains.

 

 

Roodt, C. (2013) ‘Restitution of art and cultural objects and its limits’, Comparative and International Law Journal of Southern Africa XLVI, 286-307.