WYWH: Knoedler Trial Uncut (Week 2)

By Center for Art Law Team

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Source: The New York Times (Feb. 8, 2016).

Another exciting and riveting week has passed in Courtroom 318, where District Judge Paul Gardephe is presiding over the trial in the case brought by Domenico and Eleanor De Sole against Ann Freedman, Knoedler Gallery, and 8-31 Holdings and others. Over a course of about 15 years, Knoedler sold almost 40 works brought to the Gallery by Glafira Rosales. She admitted following a grand jury investigation and an indictment that all of the works she handled were forgeries. The Gallery earned about $80 million on the transactions involving Rosales trove and transferred over $20 million of that amount to its parent company, 8-31 Holdings, before closing to the public in November 2011. Both Knoedler Gallery LLC and 8-31 Holdings Inc. are incorporated in Delaware and were operating out of 19 E 70th Street, a stone’s throw away from the Frick Museum and other art institutions of the City.

As some art attorneys like to say, judges want to give opinions in art related cases. So who is presiding over the first Knoedler trial?

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1. Meet the Judge:

Judge Gardephe is a graduate of Columbia Law School who was nominated to the Southern District of New York in 2008 by George W. Bush. He has handled a number of fraud cases and high profile cases but the Knoedler cases appears to be the first arts related case on Judge Gardephe’s docket. Throughout the Knoedler trial, Judge Gardephe has been thoughtful in his consideration of objections and evidence admittance as well as diligent in his management of the trial. During the jury selection, Judge Gardephe underscored the civic duty that the members of the jury are called upon to perform and was very reluctant to accept mundane reasons presented by the would-be jurors in hopes of getting out of service.

Judge Gardephe has been making rulings in the Knoedler case for months leading to the public trial. Thus in his decision from September 2015 De Sole v. Knoedler Gallery LLC, No. 12 CIV. 2313 PGG, 2015 U.S. Dist. LEXIS 134146 (S.D.N.Y. September 30, 2015), he denied a summary judgement motion in part because he found that the movement of funds from Knoedler Gallery to its parent holding company 8-31 Holdings may be deemed siphoning of resources and thus ruled that 8-31 Holdings must remain a party to the dispute – on October 9, 2015 Judge Gardephe issued another opinion De Sole v. Knoedler Gallery LLC, No. 12 CIV. 2313 PGG, 2015 U.S. Dist. LEXIS 138729 (S.D.N.Y. October 9, 2015), explaining the reason for denying summary judgment. Specifically, he found that a reasonable jury could find an “overall element of injustice or unfairness,” in observing corporate distinction between Knoedler Gallery LLC and 8-31 Holdings LLC, the parent company of the Knoedler and Hammer Galleries.

In the October 9, 2015 opinion, Judge Gardephe also noted that Freedman enjoyed a significant financial fallout from the sale of the Rosales  forgeries. Notably, between 1998 and 2007 Freedman profit sharing percentage increased three times to a total of 30% of the Knoedler Gallery’s operating income. In 2007,  Freedman was paid more than $1.3 million in 2007.

2. Questions to Answer:

Before the trial and certainly as various art experts, accountants and researchers have been testifying at trial, the questions mount: Did Ann Freedman and the Knoedler Gallery know that they were selling forgeries? Or were they fooled along with the rest of the art world? These are the questions that everyone who is watching the trial as it unfolds both in courtroom and on the pages of the the newspapers is asking, and the jury may have a chance to answer them in the coming weeks, unless the parties settle before the verdict. On Sunday, February 7, 2016, two weeks into the trial, Ann Freedman settled with the De Soles. The terms of this settlement have not been disclosed; however, Freedman was expected to testify on Tuesday, February 9, 2016.* (Note: Freedman did not testify on February 9th).

3. What happened during the second week in De Sole v. Knoedler et al.,:

Monday, February 1, brought the conclusion of testimony from Eleanor De Sole as well as testimony from Christopher Rothko. Mrs. De Sole testified that she accepted the provenance that Ann Freedman and Knoedler provided because Freedman was the representative of one of the oldest and most reputable galleries around and “that should have said it all.” Freedman provided the De Soles with a list of experts who had viewed the work. The list served as a clever marketing tool to imply that individuals including David Anfam, E.A. Carmean, Irving Sandler, and Christopher Rothko authenticated the work. Even though Mrs. De Sole was not personally familiar with any of these people (she stated that the only name she was familiar with was Christopher Rothko), she was impressed with the line up and trusted its representation.

Due to his lineage, a celebrity witness, Christopher Rothko was next on the stand. Christopher, the son of Mark Rothko testified that he never authenticates his father’s work, as this “requires specific expertise” that he does not believe he possesses. He viewed the De Soles’ work, as well as other Rosales works, and may have described them as “beautiful” or “pristine” but he did not authenticate them or give permission for his name to be on any lists used in connection with the work. On cross, Rothko admitted to giving countless presentations about his father’s works as well as writing articles and organizing exhibitions related to Rothko. The dichotomy in the art market created by the fear of giving a negative opinion about a work of art and being brought to court to answer for the opinion has discouraged not only individual scholars but also authentication foundations from giving categorical rulings about the attribution of art works (See a previous article about the disbanding of the Keith Haring Foundation art authentication committee).  Rothko admitted that he directed Freedman to consult an art conservator for expertise regarding technique, paints and other physical qualities of the works attributed to his father. Freedman consulted Dana Cranmer (who testified on January 29). A memorable quote from the day: “On the basis of … research, a strong case can be made for authenticity or lack of authenticity of any given work.”A picture of Christopher Rothko leaving the courthouse appeared in The New York Times the following day. The decision to publish a photograph of this witness was not based on his Rothko expertise but rather on him being a genuine Rothko.

The second Rothko expert, David Anfam, was feeling less at ease on the stand and at times would proclaim certain statements or practices as “outrageous.” He is the author of the 1998 Rothko Catalogue Raisonne entitled Mark Rothko: The Works on Canvas and he, too, emphatically indicated that he does not provide authenticity for sale purposes. According to Anfam, the mysterious collector who was the source of the paintings was based in Switzerland and Jewish, and had considerable links to Mexico. Incidentally, the pedigree of Mr. X (or Secret Santa, a.k.a son of the collector, who was the purported source of the Rosales paintings) was unclear and changed multiple times. He was described as a sole heir to his father’s collection, and  as one of two children––at one point, he supposedly had an estranged brother and at another he had a sister. Anfam had the honor of informing the jury about “art transparency” (photograph of a work of art) and “Park Avenue Armory” (an annual show in the NY armory until recently). At one point, Anfam admitted that Freedman did most of the talking but as to the substance of her statements he described them as “a lot of nothing.”

On Tuesday, February 2, Plaintiffs’ attorneys began by wrapping up David Anfam’s testimony, which focused on his opinions about the Rosales works and how his impressions evolved as he learned more and more about the collection Rosales brought to Knoedler Gallery. Anfam considers himself to be the foremost expert in abstract expressionism and has authenticated Rothkos in the past. He saw dozens of the Rosales works and did not raise doubts as to their authenticity. In 2008, he wrote to Knoedler that the works were “99.99% okay” and he just couldn’t “see how anyone but the artists could have produced such a cache.” However, in 2012, he told an FBI investigator that such a large collection “strains all credibility,” later saying that he possessed information in 2012 that he did not have in 2008, such as the number of the works, the IFAR investigation of Jack Levy’s Pollock, and the results of Jamie Martin’s forensic tests.  Anfam emphatically denied giving Freedman permission to use his name in connection with any sales. By the same token, he probably never specifically asked her not to use his name in connection with the business transactions either.

Next on the plaintiffs’ witness list was Dr. Stephen Polcari a retired art historian whose expertise lies in abstract expressionism of the 1930s, 40s, and 50s. He has written books, received multiple fellowships, and taught courses in modern art and abstract expressionism at multiple universities. His testimony centered around his time working as an “independent contractor” at Knoedler Gallery, where he would curate exhibitions and write essays about works he saw at Knoedler. He would evaluate the style and meaning behind these works. Polcari testified that he thought the works he was writing about were authentic, or else he would not have written about them. In terms of the provenance of the works, his information came from Freedman, and he found this convincing simply because the works were in the Knoedler Gallery. Notably, Polcari read an email from an upset Ann Freedman, who told him that she was “kicked out the door” of the Knoedler Gallery “without so much as a goodbye.”

A small amount of Dr. Polcari’s testimony concluded the morning of Wednesday, February 3, but the stars of the day were Frank Del Deo, Jack Flam, and Martha Parrish. Mr. Del Deo, an art dealer in New York, worked at Knoedler from 1999 until 2011, and was the President and Director from 2009 until 2011. While at Knoedler, he sold 100-200 works, none of them from the Rosales collection. He testified that the standard profit for the gallery was anywhere between 5 and 100 percent on works the gallery owned and 20 and 30 percent for works they did not own, but the profits were “considerably higher” for the Rosales collection. These profits would be over 100 percent on occasion. Mr. Del Deo’s testimony contained many references to attorney-client privilege, but he stated that he left the Gallery employment in 2011, before the gallery closed, after speaking with a lawyer and sought other employment.

Next witness, Dr. Jack Flam, is an art historian who concentrates on Motherwell and Matisse. A close friend of Motherwell’s, he spent summers in his studio and serves as the President of the Dedalus Foundation. He has never authenticated a Rothko and was never asked to. He could not recall seeing the De Soles’ painting and was “very surprised” to learn that his name was included on the list that accompanied the De Soles’ work. Dr. Flam spoke rapidly about David Herbert and said that Freedman kept coming back to the Herbert story, but upon seeing a reproduction of a purported Motherwell in the Rosales collection, he believed it was a fake. When he looked four images of purported Motherwells and later saw one at Dana Cranmer’s studio he “strongly” believed they were fake, and expressed his opinion to Ann Freedman and Knoedler Gallery on several occasions, though E.A. Carmean disagreed with him.

Martha Parrish, a retired art dealer in New York and Palm Beach who helped draft the Art Dealers Association of America (“ADAA”) code of ethics, also testified on Wednesday. Ms. Parrish stated that dealers “run like hell” when an individual comes to them with a large collection of unknown works to sell below market price. She also informed the jury that cash is not a customary way to pay for a work on consignment (plaintiffs stressed that Rosales was paid in part by check, with cash below $10,000, and out of the country wire transfers). As to the usual range of profit on consigned works, Ms. Parrish testified that it ranges between 10% and 20%. In some instances, Knoedler’s profit was more than 700%. She stated that good provenance could be used as a selling tool and emphasized the importance of being transparent with prospective purchasers––presenting something as a fact that is not known to be fact is “not acceptable.” On cross examination and on its face, the practices actually followed by dealers may not be as transparent or stringent as this witness indicated through her testimony, which is the reason why the art market is notoriously opaque and all experts agree to that fact if little else.

Upon information and belief, Thursday, February 4, began with Victoria Sears Goldman, provenance researcher and an art historian, followed by a brief and uncomfortable testimony by Edye Weissler, a former Knoedler employee, taking the stand. Ms. Weissler performed research at Knoedler along with Melissa De Medeiros and E.A. Carmean. She attempted to establish a connection between David Herbert and the works that were coming into Knoedler from Glafira Rosales. Forensic analyst James Martin next took the stand. Mr. Martin does art examination work for FBI, US Attorney, Christie’s, Sotheby’s, and conservators, among others, in a private studio using the same methods and technology as museums. He has analyzed about 5000-8000 art works and taught courses on paint analysis. He was first hired by Knoedler in 2008 to evaluate 2 Motherwells, which he determined were not created in the 1950s, as they were purported to have been. Martin testified that he told Freedman and Knoedler to exercise caution when dealing with these paintings. He later examined the De Soles’ work and 15 other works sold through Knoedler. Martin concluded that all of the Rosales works were deliberate fakes. He described in great detail the process that he used to evaluate these works as well as the tools involved.

Martin’s testimony concluded on the morning of Friday, February 5, with more description about the process that he used to evaluate the De Soles’ work, a process that he said Knoedler’s competitors have been coming to him with artworks for since 2004. Forensic accountant Roger Seifert was the next person to be questioned. Mr. Seifert’s testimony concerned three topics: a profitability analysis of Knoedler from 1994 to 2011, the amount of profit sharing earned by Freedman from the Rosales sales, and whether or not 8-31 Holdings benefited from the Rosales sales. Mr. Seifert concluded that Knoedler would not have been profitable without the Rosales sales (the data showed that they would have lost about $3.2 million from 1994-2011), Freedman earned $10.4 million in profit sharing, and 8-31 Holdings benefited from these sales, as the income from Knoedler was included in their consolidated earnings. Between 1994 and 2008, works from Rosales were sold by Knoedler for about $70 million, bringing the gallery $32.7 million in net income.

The Knoedler demise and the subsequent lawsuits against it, its employees and shareholders highlight the power that experts wield in creating an aura of legitimacy. In the case of the Rosales forgeries, peppering correspondence with references to recognized authorities was enough, at least for a while, to compensate for an auspicious lack of documentation. The theme that emerged during the trial was that just because a work looks like a Pollock (Rothko, Motherwell, etc.), it is not necessarily a “Real McCoy.”

4. Food for thought:

Is there an ethical, if not legal, responsibility in the academic or art market community to ask probing questions regardless of context (reputable gallery or museum, renowned seller, collector, family member, curator)? At the end of the week, it seems that only cold, hard facts in accounting and science are able to light fire under the cool demeanor of the crème de la crème of the art world.

Disclaimer: Reading WYWH articles is no substitute to attending art law trials, programs and exhibitions in person. After all, picture is worth a thousand words, even if it’s a fake.

Select Sources and Suggested Readings:  

U.S. Museums May Serve As Safe Havens to protect ISIS-Looted Antiquities from Destruction

 

by Elizabeth Weber, Esq.

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Source: AAMD Website.

Following the destruction and looting of culturally significant works in war-torn areas, the Association of Art Museum Directors (AAMD) issued a number of protocols to safeguard these artifacts by granting them safe haven in AAMD member museums. The protocols, titled AAMD Protocols for Safe Havens for Works of Cultural Significance from Countries in Crisis, state that works may be brought into the United States, Canada or Mexico from countries affected by terrorism, armed conflict, or natural disaster, so long as depositors comply with applicable laws in both the country of origin and the country of deposit. The protocol is uniform among AAMD member museums, which include the Metropolitan Museum of Art, the Smithsonian American Art Museum, the National Gallery of Canada, and the Museo Nacional de Arte in Mexico City, among others. As the provisions contemplate, a hypothetical depositor must request safe haven for the cultural object with an AAMD member museum and be granted that request before sending the artifact to the museum for safekeeping until it is determined that it is safe for the artifact to be returned to its country of origin.

Admittedly, it may be difficult to pinpoint exactly who will request safe haven for cultural objects in war-torn countries. The AAMD acknowledges this uncertainty and points to four potential examples of depositors in the protocol: museums in the affected area that hold works; government entities of or within affected areas; U.S. government authorities that seized works upon entry into the United States; or private individuals, companies, or organizations who own or come into possession of works, whether in the affected area or after its removal from the area. Additionally, the protocol urges member museums to consult legal counsel before accepting any requests for safe haven objects to ensure legality of the process and to diligently inventory and document the safe haven process once the museum accepts an item.

AAMD President Johnnetta Cole, Director of the Smithsonian Institution’s National Museum of African Art, specifically named the current conflict in Syria and other affected areas as locations where the loss and intentional damage of culturally significant works are deplorable, which may have played a large part in the AAMD’s safe haven initiative. The recent destruction of UNESCO World Heritage Site Palmyra, Syria and the looting of cultural works by ISIS may have also played a part in the AAMD’s decision to safeguard cultural artifacts. Indeed, the regularity of ISIS/ISIL-looted antiquities being sold on the black market to fund terror operations reached a point where the FBI felt it necessary to issue a report on the subject.

An FBI-published ISIL and Antiquities Trafficking article warns U.S. dealers and art collectors that ISIS-looted artifacts may reach the art market stateside. According to the report, the FBI received credible intel that individuals in the U.S. had been offered potentially looted cultural property from Syria and Iraq – the sale of which may fund terror operations and subject the purchaser of looted cultural artifacts to prosecution under U.S. law. Bonnie Magness-Gardiner, manager of the FBI’s Art Theft Program, indicated that buyers interested in Syrian and Iraqi pieces should “[c]heck and verify provenance, importation, and other documents” to ensure the objects from these countries are legitimate, not looted.

In light of the AAMD’s Safe Haven initiative, individuals in war-torn countries who have access to culturally significant artifacts may undermine looting by sending these works to AAMD member museums for safekeeping. However, stakes for those involved in preserving cultural works from ISIS looting on-site are tragically high – Palmyra’s former Chief of Antiquities, Khaled al-Asaad, refused to share information about relocated artifacts and was executed by ISIS militants as a result.

Under the Safe Haven protocol, the safe haven term extends until the works can be safely returned to their country of origin, and all works provided safe haven will be treated as loans by the receiving museum. The AAMD also established a secure Safe Haven database to identify works given safe haven as part of the AAMD Object Registry. No objects have been uploaded onto the Safe Haven registry to date.

* * *

From the Editors: The subject of looted antiquities, either stolen from known private and public collections or improperly excavated from the ground, on the ISIS controlled territory and exported through illicit channels has generated almost as much attention as the plight of the refugees from the war zones in the Middle East. In recognition of this important subject, last week there were at least three events in New York City alone, examining the results of destruction and illicit trade of antiquities.

January 26, 2016 – The Destruction of World Heritage Sites as It Concerns Cultural Property and International Laws.

Moderated by Peter Herdrich, a co-founder of the Antiquities Coalition and the founding Partner of  the Heritas Group, the panel included Colonel Matthew Bogdanos, Esq., New York County District Attorney’s Office;  Megan E. Noh, Esq., Associate General Counsel, Bonhams; Steven D. Feldman, Esq., Murphy & McGonigle; Brenton Easter, Special Agent, Homeland Security Department’s Immigration and Customs Enforcement Agency.

Panelists discussed how the ongoing illegal traffic in looted antiquities is fueling the sectarian and other conflicts. Beautiful remnants of the past, improperly excavated and exported in violation of domestic law to financially benefit militants and looters, are poised to enter private art collections. Protection of cultural property is a perennial problem, exacerbated by the current political events on the territories of Syria and Iraq under the Islamic State (ISIS) control.

With irreparable harm inflicted by looting and demolition, panelists discussed the current events in ISIS-controlled territories and present possible scenarios for handling legal matters concerning cultural valuables that are bound for the American art market. The presenters focused on various channels of distribution available in the source countries, as well as suggested best practices on handling looted property (always ask for provenance information, credible documents from exhibitions and insurance, and cooperate with authorities).

January 27, 2016 – Special Guided Tour of “The Missing: Rebuilding the Past,” led by Dr. Erin Thompson (John Jay College, NYC)

The Exhibit entitled “The Missing: Rebuilding the Past” showcases the efforts of artists and scholars to resist the destruction of the past through creative and innovative reactions, protests, and reconstructions. In a variety of media – photography, drawing, video, 3D printing – it explores the destruction of art at many historical moments, from ancient Greece and World War II to the ISIS’ destruction of cultural property.

January 28, 2016 — Limited release of “The Destruction of Memory,” a documentary based on the eponymous book by Robert Bevan.

The film, directed by Tim Slade, reminds the audience that destruction of landmark buildings, their contents, their staff and visitors is a heartbreaking but a perennial occurrence in zones of armed conflict. Thus, “[o]ver the past century, cultural destruction – the purposeful destruction of buildings, books and art in order to erase collective memory and identity – has wrought catastrophic results on every continent. The effectiveness of what happened to the Armenians and their culture triggered the fate of the Jews and the Poles, and so it flowed.” The film includes commentary on destruction of historical monuments in the ISIS-controlled territory as well as the stance the International Court of Justice has taken in regards to crimes against cultural heritage. For  information about the film: http://destructionofmemoryfilm.com/

About the Author: Elizabeth Weber is a lawyer living in Brooklyn, NY.  She graduated from the University of Florida Levin College of Law, where she received her certificate in Intellectual Property Law and served as an active member of the Art Law Society and the Journal of Technology Law and Policy. She is the Spring 2016 Postgraduate Fellow with Center for Art Law.

Sources:

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Any views or opinions made in the linked article are the authors alone. Readers are not meant to act or rely on the information in this article without attorney consultation.

WYWH: Knoedler Trial Uncut (Week 1)

By Center for Art Law Team

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Dealer Stock Books: Knoedler & Co. Getty Research Institute.

After the “public closing” (words used by Melissa De Medeiros, a former Knoedler employee in her testimony on January 27) of the venerable Knoedler Gallery (the “Gallery”) in November 2011, rumors spread that the Gallery was implicated in selling forgeries of the top Abstract Expressionist masters – Mark Rothko (1903-1970), Jackson Pollock (1912-1956), Richard Diebenkorn (1922-1993), Clyfford Still (1904-1980), Willem de Kooning (1904-1997) and other important post-War American artists.

As the tale of how the Gallery accepted on consignment and purchased some of the fake artworks, signed and dated as if they were created in the late 1940s – late 1950s unfurled close to a dozen lawsuits alleging fraud and other causes of action were brought against the Gallery, its penultimate director and its owners. The art market and professionals in related fields prepared to witness a public trial and a look into the Knoedler dealings with its clients, advisors and colleagues. In 2012, the Getty Research Institute, which collects for preservation and study archives of art dealers and galleries, among other materials, acquired a pre-1971 portion of the Knoedler archive. The rest of the documents were retained by the parent company. The magical cut off date has nothing to do with the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. Apparently, it was selected due to the fact that it was in 1971 that the Gallery, in existence for more than 100 years, was acquired by the legendary entrepreneur Armand Hammer (his grandson was the owner of the gallery in 2011).

By the end of 2015, less than a handful of the claims and complaints brought against Knoedler et al. were settled for undisclosed sums of money and under confidential terms.However, two cases De Sole v. Knoedler Gallery and Howard v. Freedman, et al., were scheduled for trial in January 2016. The latter case, involving a fake Willem de Kooning, was filed by collector John Howard in 2012 and settled on December 2, 2015.

On January 25, 2015, the trial in the case brought by Dominico and Eleanor De Sole began. The spectators following the De Sole trial as it has proceeded during the first week could witness first hand the jury selection process (which took about 5 hours), the heavy volumes of exhibits and testimonies prepared for both sides, the fake Rothko that seduced the De Soles in 2004, the demeanor of hostile and friendly witnesses, including the aforementioned Ms. De Medeiros, Dr. Thaw, Dana Cramer and Jim Kelly, Judge Gardephe’s style in instructing the jury, the legal teams and the mannerisms of the parties in the courtroom: Mr. and Mrs. De Sole (as the plaintiffs) and Ann Freedman (as the only defendant in attendance).

Summary of the Facts: The De Soles purchased a work attributed to Mark Rothko from Knoedler in 2004. It was their second Rothko acquisition, but their first Rothko painting on canvas, the other work in their collection was a Rothko on paper. During a visit to the Knoedler gallery, when the De Soles wished to see works by Shawn Scully, they were shown a different work attributed to Rothko which was presented by Knoedler through its employees as a recently rediscovered masterwork. While the De Soles initially only planned on spending one million dollars they ended up purchasing the alleged Rothko for a “discounted price” of $8.4 million. The De Soles ultimately purchased the work for $8.4 million with the assistance of their art advisors and another dealer James Kelly (who testified in the case on January 28).

Soon after the work was purchased, it was exhibited in Switzerland, and later shipped to the De Soles home in Hilton Head, South Carolina where it hung for seven years until 2011. Knoedler and Kelly both supplied the De Soles with a letter indicating that the work was authentic. As Kelly later explained in testimony, he was not in the habit of checking the provenance of the works sold by reputable dealers. Instead, his role in advising De Sole’s on the Knoedler purchase was to established the fair market value of the piece.

In 2008, the De Soles asked Knoedler to provide an updated appraisal for the work, which the Gallery promptly did. In 2009, Knoedler notified all of its clients, including the De Soles that Ann Freedman resigned and a new director was appointed to head the Gallery. In 2011, Mrs. De Sole learned of another collector’s concerns regarding a Pollock purchased from Knoedler by a hedge fund manager Pierre Lagrange. Lagrange’s lawsuit was settled on October 4, 2012. Within the statutory period of two (2) years after discovery of fraud, the De Soles brought their case. Among the allegations, the De Soles accused defendants of fraud, fraudulent concealment, wire and mail fraud, racketeering, aiding and abetting fraud, conspiracy to commit fraud, breach of warranty, and unilateral and mutual mistake. In their complaint, the De Soles sought a judgment of $25 million dollars which includes treble damages under the Racketeering Influenced and Corrupt Organizations Act (“RICO”).

The De Soles alleged each instance of fraud between 1994 through October of 2009 was not an isolated event but rather an interconnected scheme because there was a common goal, similar methods used, similar participants and similar victims. By doing so, the De Soles availed themselves of RICO causes of action and the statutory benefits that are associated with RICO such as treble damages and attorney’s fees. Specifically the De Soles alleged in their complaint that Knoedler was involved in a scheme to use its “name reputation, and access to collectors to sell forged works into the marketplace.” The complaint goes on to note that the works were being purchased for “suspiciously low” prices.

On January 23, a Friday afternoon before the trial was scheduled to begin, Judge Gardephe conducted a hearing in limine to review and rule on the admissibility of certain witnesses and types of evidence as potentially unduly prejudicial to the parties. Court’s rulings included.

Attorneys representing the Plaintiffs are partners with Clarick Gueron Reisbaum LLP. Knoedler’s legal team comes from Fulbright & Jaworski L.L.P. Ann Freedman’s council is with Boies, Schiller & Flexner, LLP.

Select highlights from Week 1 of the De Sole v. Knoedler, et al.

Day 1 — Jury selection and opening statement for the De Soles. The voir dire was an example of human spectacle where people from disparate walks of life were all gathered in the same place at random to perform their civic duty. They included parents with holiday reservations, medical employees, blue collar workers, high school teachers and college professors, students and retirees, people of different faiths and ranging interest in the matter at hand — rich people fighting over money and discussing abstract expressionism. Desire of those to get out of the jury duty would later be experienced by those with the transparent desire to be absolved of responsibility as demonstrated by some expert witnesses and parties to the case.

Day 2 — Opening Statements for Ann Freedman and Knoedler Gallery/8-31 Holdings. Both defendants’ opening statements emphasized the idea that the entire art world was tricked.  Freedman’s opening painted abstract expressionists as disorganized heavy drinkers, who were “messy, unpredictable,” and dysfunctional. The idea that Pollock traded some of his works for groceries was repeated on a number of occasions. Attorneys also emphasized the difficult burden for Plaintiffs to prove fraud, analogized to mountaineering. Knoedler’s attorney addressed the jury in a way that suggested that the trial was frivolous and that he would not waste the jury’s time any more than he had to.

Attorney for Freedman suggested that Knoedler and Freedman were victims of Glafira Rosales, just as much as the collectors who bought the forgeries and suggested that Rosales should be among the defendants in the case, and Freedman should not be held liable for Rosales’s crime.

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WSJ journal coverage by Thomas MacMillan and Elizabeth Williams. WSJ.com

Day 3 —  Witness testimonies from Jaime Andrade, Melissa De Medeiros, and Dominico De Sole. Much coverage in the news already characterized the at times entertaining and at times frustrated testimony and the cross examination of Mr. De Sole. See for example: The Art Newspaper coverage in Laura Gilbert’s “Top US collector takes the stand in Knoedler trial” (Jan. 28, 2016) and Artnet news coverage in Eileen Kinsella’s “Sparks Fly at Knoedler Trial as Defrauded Buyer of Fake Rothko Painting Takes Stand” (Jan. 27, 2016).

The testimonies given by Mr. Andrade and Ms. De Medeiros have received less attention so far. Unlike Mr. Andrade, a non-native English speaker who introduced Rosales to Freedman, Ms. De Medeiros spent a considerable time on the stand, carefully and almost begrudgingly responding to the questions posed by the Plaintiff’s attorney. The reticence was understandable, in light of the fact that Ms. De Medeiros has a long history working for the Gallery, where she held different research and exhibition positions between 1984 and 2014.

Day 4 — Witness testimonies from Eugene Victor Thaw, James Kelly, Sharon Flescher. Parade of witnesses for Plaintiffs continued with the testimony from Eugene Victor Thaw, author of the catalogue raisonné of Jackson Pollock; James Kelly, art dealer and advisor to the De Soles; and Dr. Sharon Flescher, the executive director and Editor in Chief at theInternational Foundation for Art Research (IFAR).

Among other questions posed, witness were asked to explain art history and art market terms such as  “catalogue raisonné”, ‘provenance,’ ‘connoisseurship,” “warranty of authenticity”, “secondary market,” as well as comment on the Knoedler’s reputation before the Rosales scandal. Most art historians and critics who took the stand emphatically and categorically indicated that they did not give opinions about authenticity because “it was not their job.” Even those who have spent much time reviewing body of works by Pollock and Rothko indicated that it was not their position to give opinions on authenticity.  

Some of the entertaining and memorable Q/A included:

Q: “You wrote this document?” A: “I typed it.”

Q: “You now understand this painting is a fake?: A: “No, I do not.”

Q: “You are a lawyer?” A. “No. I sell handbags for the last 25 years. Successfully I might add and [they are] real.”

A: “He knew he was wrong from my letter. [it was] implicit. I was not willing to publish it myself. … If you want my true testimony, by not publishing I gave a negative opinion.”

A: “CB … who “blessed it” !!!! (as if)…[JC] apparently saw it “Inspected it” and gave his ok (as if he would do so).

Q: “Do you typically describe 2 paintings as a ‘collection’?: A: I would not…”

A: [Having listened to a deposition being read to refresh recollection one witnesses stated that it “Sounds alright … does not say anything”. [Followed by laughter in the courtroom]

Day 5 — Witness testimonies from Earl A. Powell, Bonnie Clearwater, Irving Sandler, Dana Cramer and Eleanor De Sole. Two of these witnesses, Earl A. Powell, director of the National Gallery, and Bonnie Clearwater, former head of the Mark Rothko Foundation, were not present and their pre-trial depositions were read into the court record. Witnesses who did take the stand on the last day of the first week included Professor Irving Sandler, one of the foremost authorities on abstract expressionism; Dana Cranmer, a conservator and Mrs. De Sole.

Professor Sandler, an art historian and formerly a member of the Rothko Foundation Board who indicated that he was not “one of the foremost” but “THE foremost authority on Abstract Expressionism would frequent galleries for a number of reasons including gossip. He mentioned that at one point Knoedler was on his gallery track because it was one of the most important galleries in New York, for two reasons: 1. its history and 2. the caliber of art it sold. When at Knoedler, Prof. Sandler testified that he had no reasons to doubt authenticity of art shown because of the Gallery and Ann Freedman context.

Looking forward: As the second week is already on its way, how important is this Knoedler trial? Only the time will tell but the case has attracted a considerable amount of attention in the news and lively attendance in the courtroom. Those observing the first week, not including the jury members, were art dealers, court illustrators, journalists (many journalists), art attorneys, including some working on other Knoedler cases, law students and friends of the parties to the case. Given that this Knoedler trial may become the playbook for other pending Knoedler cases as well as a seminal case for art and wire fraud precedent the upcoming week promises to be just as entertaining.

Select Sources:

Disclaimer: Reading “Wish You Were Here” articles in no substitute to attending art law events, trials and programs. This and all http://www.itsartlaw.com articles are for educational purposes only. It is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advice. Instead, readers should seek an attorney.

The Cost of Donating Artwork: Can Artists Afford to Donate Their Own Artwork?

 

By Emma Kleiner*

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Sample press release about a gift (2011 The Philadelphia Museum of Art).

At the Tucson Medical Center in Tucson, Arizona, the Healing Art Program’s mission is to fill the hospital with art that lifts the spirits of the patients and creates a serene environment. Lauren Rabb, the Curator of the Healing Art Program, manages that task, which includes arranging works from the hospital’s private collection and searching for new donations. It may seem curious, then, that when Rabb began her work at the Hospital she would not consider asking an artist to donate his or her own work. To professionals in the art world this hesitance makes sense: unlike art collectors, who are incentivized to donate artwork because they may deduct the fair market value of the work from their taxable income, artists may only deduct the value of their supplies – which likely amounts to the negligible cost of paper, brushes, and paint. In an interview for Center for Art Law, Lauren Rabb, who once also owned a gallery and worked as a museum curator, stated: “Everyone in the art world has come into contact with this [tax provision].”

Under § 170 of the Internal Revenue Code of 1986 and § 1.170-1(c)(1) of the Code of Federal Regulations, when a taxpayer makes a charitable contribution of tangible property, including artwork, he or she may deduct the fair market value of that tangible property from his or her taxable income. The law is designed to provide an incentive to collectors to donate artworks to nonprofit educational institutions such as museums and libraries. However, as a result of the passage of the Tax Reform Act of 1969, “creators,” such as artists, writers, and choreographers, are excluded from this tax provision. Instead, creators may only deduct the cost of their supplies from their taxable income. Thus, while collectors may be motivated to donate artwork due to the favorable tax benefits, artists are asked to give away their artwork essentially for free.

The origin for the disparate treatment of artists and non-artists dates back to the 1960s, when Congress was galvanized to close a perceived loophole after public officials and politicians capitalized on their status as creators of their own papers and manuscripts. Presidents Truman through Johnson reaped very favorable tax benefits when donating their presidential papers. Supporters of the Tax Reform Act of 1969 derided the ability for public officials and politicians to deduct the fair market value of their papers – papers that arguably belonged to the public in the first place. The timing of this reform put President Nixon’s donation of a portion of his vice presidential papers in 1969 at risk. President Nixon’s Vice Presidential papers were valued for tax purposes at $576,000, which appeared to be a very favorable appraisal to many observers, even exceeding Nixon’s gross income for 1970. To take advantage of the pre-1969 tax break though, Nixon backdated the deed transferring title of his papers. That deduction helped to reduce his taxable income to zero – in fact, the $792 he paid in taxes in 1970 was a result only of the alternative tax minimum. In passing the Tax Reform Act of 1969, Congress was concerned that if they failed to close this loophole, other creators would take advantage of the tax provision allowing for a deduction of fair market value of their works. Notably, these examples relate to documents and written materials rather than works of visual art.

The effect of the revision of the Internal Revenue Code in 1969 was immediate: donations of works, including artwork, manuscripts, and other scholarly collections, by their creators came to a halt. For example, in the three years prior to 1969 the Museum of Modern Art in New York received 321 donations from artists, but in the three years after 1969 the Museum received only 28 donations from artists. Strikingly, the Library of Congress, which customarily received around 15 donations from authors per year, received one donation in the four years after 1969. The National Archives, within just days of the passage of the Tax Reform Act of 1969, noted a visible decline in gifts of papers made to the government.  

This trend was particularly significant for museums and libraries, which depend on the public to a large extent to grow their collections. Museums, which must rely on their endowment and funds to support their staff and the costs of running a museum, need donations to grow their collections. It is estimated by the Performing Arts Alliance that 80% of objects in U.S. museums arrive as donations. Furthermore, the connection between donations and tax benefits is clear. In Artful Ownership, author and attorney Aaron Milrad wrote, “Historically, most museums and public institutions have received their finest works through donations[,] . . . [and] the donations are made, at least in part, for the tax benefits available to the donor.” Today, because of the insignificant tax break for donating artwork, artists often sell work that they would otherwise consider donating to a cultural institution or nonprofit, and the public is thus denied the benefit of that art.

Although the possibility for valuation abuse that spurred support for the Tax Reform Act of 1969 will always exist, there are many reasons to believe that deceptive or exaggerated valuations are not likely to occur and that Congress could safely adopt a measure restoring the law to its pre-1969 condition. The Senate currently has such a bill in front of it: the Artist-Museum Partnership Act (“the Act”). The Act, proposed by Senator  of Vermont, would give artists the ability to deduct the fair market value of their works while providing additional safeguards to prevent any abuse of the tax provision.

The Act has been introduced in the Senate seven times since 2000, most recently on April 14, 2015, but it has not gained much traction or become law. To reduce the ability for creators to take advantage of a tax provision allowing for the deduction of their donated works at fair market value, a qualified appraiser must determine the fair market value of the tangible property. Moreover, the tangible property must be created no less than 18 months prior to the contribution, which stops an artist from creating and donating a piece of tangible property in quick succession simply to gain a tax advantage. Finally, the Art Advisory Panel at IRS, which was established in 1968 to help IRS review the fair market value of works of art, should also help to curb any appraisals of art that raise red flags. Given these safeguards, such “phantom abuses” should not prevent the United States from supporting creators in their artistic work.

 

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Note credit line of the controversial Rauschenberg work that includes a stuffed bold eagle. MoMA.

Amending the IRC by passing the Act or comparable legislation would be one step towards rectifying the unfairness with which artists and other creators have been treated for the past decades and undoing the harm to museums, libraries, and other institutions that have limited acquisition funds. It would serve the fundamental goal of generating public access to the arts and helping museums grow their collections. In advocating for passage of the Artist-Museum Partnership Act, Senator Leahy stated: “We have a lot of contemporary artists in this country who have this artwork, and ultimately the public wins. The public gets to see artwork they might not have seen otherwise, unless they were visiting somebody who’s a private collector.”

 

At present, by disallowing the deduction of the fair market value of artwork when donated by its creator, the Internal Revenue Code creates a schism between taxpayers where there should be none. It is only fair that collectors and creators, who are identical taxpayers and donate the same types of works, receive the same tax benefit of a donation.

Note: For this interview, author interviewed Lauren Rabb, Curator of the Healing Art Program at Tucson Medical Center in Tucson, Arizona. More information about the Program is available on their website: http://www.tmcaz.com/healing-art-program.

Sources:

*About the Author: Emma Kleiner is a student at Stanford Law School. She can be reached at ekleiner@stanford.edu.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advice. Instead, readers should seek an attorney.

Let’s Get Digital!

By David Honig, Esq.

In 1946 the University of Pennsylvania’s Moore School of Electrical Engineering unveiled the Electronic Numerical Integrator and Computer (ENIAC) introducing the world to what is often referred to as the first general purpose reprogrammable computer. Although ENIAC’s origins were military, the development of ENIAC was funded by the United States Army, its legacy is much more. Computer technology, evolved from a tool for the military, into, among other industries and applications, a tool for the arts and spawned a new genre: digital art. Some of the pioneers of digital art include Lillian Schwartz and Gopakumar R.

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Sedition Landing Page. 

In the twenty-first century, digital art is a fast growing medium even if it is not fully understood or integrated into the mainstream art world yet. Schools such as the University of Oregon, the University of Washington and Pratt Institute offer degrees in digital art. Additionally, the British Broadcasting Corporation (BBC) has funded The Space, a website that allows its users to explore digital art that has been commissioned or licensed by the website. According to BBC News, the BBC has already spent £3.6 million on The Space with another £8.1 million committed to the project. In addition to the BBC other major players in the art world have invested in digital art. Since 2002, the Whitney Museum of American Art has hosted an online gallery for digital art called Artport. According to the Artport website, it “provides access to original art works commissioned specifically for the artport by the Whitney…”  

As digital art becomes more accepted, purchased and commissioned by private collectors and institutions, like the BBC and the Whitney Museum, a new problem arises, namely dealing with issues of authenticity and reproducibility. The problem of authentication and unauthorized reproduction is often present when any form of copyrightable content is stored as a digital file. However, digital art presents a unique take on issues of authentication and unauthorized reproduction because unlike movies or music, the value of art is partially based on scarcity and the ability to prove authenticity.

When buying a piece of art the purchaser usually wants to know the piece is indeed original, if it is not unique than how many other copies are there, and that the work will not be endlessly (re)produced. Unlike, a physical work of art, digital art can be reproduced easily with the push of a button. This possibility for reproduction, as both the music and film industries know, affects the market for the genuine article.

Unlike in film and music, the producer and consumer in digital art are much more likely to be aligned in their desire to prevent the ability to reproduce the work. In the sphere of entertainment, the producer does not want film or music to be easily reproduced because unauthorized copies usually negatively impact the market for the good, but the consumer usually wants the ability to make copies so as to enjoy the song or movie on multiple devices without having to purchase a new copy. It is unclear whether when it comes to digital art, the consumer would wish to have multiples for different devices.

The ability to easily digitally reproduce a work also affects value of digital art because of issues of authenticity. Just like any other piece of art, the value of digital art is supported by the ability to prove that a work was indeed produced by the artist. When a work is easily reproduced the fact that it looks, and is in fact, exactly the same as the artist’s work is not enough to prove authenticity. These issues dealing with unauthorized reproduction and authentication have led to the use of innovative technologies, ranging from the simple and cumbersome to the complex and unseen, to find a possible solution.

The easiest solution to the problem of unauthorized copies and knowing whether a work is original would be to use physical or digital certificates of authenticity. Just like physical art, digital art can be accompanied by a certificate of authenticity, either a printed piece of paper or a digitization of the same. In fact, a certificate of authenticity accompanies every piece of digital art sold by online art gallery Sedition. While many people would be able to access the work of art, only the holder of the certificate would actually “own” said original or authorized work. This creates an issue of whether the work or the certificate is more valuable.

Another solution, adding a watermark to the image, is also the most cumbersome and somewhat ineffective. A watermark could tell anyone viewing the artwork the identify of the author or where the work was originally posted. But, watermarks won’t prevent copying nor will they show who currently “owns” the “real” version of the work. There are two different types of watermarks that could be applied to digital art, what will be called traditional watermarks and digital watermarks.

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See example of a traditional watermark. Photo: Painter Eric Isenburger, ca. 1929. Source: http://docsanddocs.com/

A traditional watermark works by embedding an image or word onto the work to signify where the work was originally posted or the author of said work. A traditional watermark could possibly affect the viewer’s perception of the work because anyone viewing the work would be disrupted by the mark. Another problem is that traditional watermarks can be digitally removed with software such as Adobe Photoshop. Ultimately, a traditional watermark is vastly limited in its effectiveness.

A better solution would be to use digital watermarks. Digital watermarks are similar to traditional watermarks in the sense that both are used to store information – in this case that the article is genuine. The key difference is that with a digital watermark the information is embedded within the file instead of on the surface of the piece of art for all to see. A digital watermark still has some of the same flaws of a traditional watermark, it does not prevent the copying of data nor is it able to signify that it is the “original” or “authentic” version of the work. In fact, every time the work is copied so too is the watermark since it is embedded in the file.

There will never be a way to completely prevent the piracy of digital files, it is the nature of the Internet and digital media that if someone wants to copy a digital file they will find a way. However, there are ways to mitigate the damage to the value of authentic works that results from unauthorized copying, this issue is about protection for the purchaser which is different from the issue of copyright which deals with an author’s right to reproduce. Maybe because of all the shortcomings of watermarks many in the art world have turned to cryptocurrencies for the answer.

Cryptocurrencies, such as bitcoin, record the chain of ownership utilizing a database known as blockchain. Blockchain is a type of database that prevents tampering or revising. This means that once the work’s provenance is embedded into the file it can’t be modified. That’s not to say that future owners will not be able to have their names added to the blockchain it only means that any name placed on the blockchain cannot be removed.

Companies such as Monegraph, Ascribe and Verisart all use blockchain technology to catalogue digital works of art and their owners. Each company has their own way of using blockchain as well as other methods such as licenses to further enhance the rights of the artist and the purchaser. Since blockchain is a decentralized database the recording system will most likely be universal regardless of which provider the work was originally purchased through. Meaning, if someone buys a piece of art from Monegraph future sales probably do not have to be recorded through Monegraph.

It is unlikely that the internet’s penchant for copying digital files will ever stop. More innovations to prevent illegal copying will always be discovered and some coder somewhere will always find away around those methods. But people who buy art frequently value more than pure entertainment delivered by digital art, instead they buy art as investment pieces. So, although there might be millions of copies of a particular piece of art floating around for free on the internet only one, or a designated few, would truly be the work and only that version will be certified and retain any value. Most investors will most likely be hesitant to be an early adopter but that is usually the case with any new technology or medium.

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Profile for Ryan Whittier Hale on Sedition.

That being said, a secondary market currently exists within Sedition. Through Trade, collectors can sell digital art from their collections. Sellers set the price they wish to receive and buyers bid on the work. The seller has the option to accept any bid even if it is below the set price. In addition to having a secondary market Sedition sells works by Gopaumar R. and Damien Hirst. Clearly there is enough of an interest in creating digital art that major players in the art world are not only experimenting with creating digital art but also with the new digital art dealers. What remains to be seen is whether a market for this type of art can be sustained.

In the concluding chapter of her book, The Computer Artist’s Handbook: Concepts, Techniques and Applications, Lillian Schwartz states that “[t]he computer also represents a process. But it is a polymorph of mathematical and logical design. What it can do is subject to what we believe it can do for us.” Just as the art itself must come from human creativity, methods for protecting the same must come from human ingenuity. As time goes on and digital art becomes more accepted new and better methods of creation, distribution and protection will be developed as well.

About the Author: David Honig is a post graduate fellows at the Center for Art Law. He is a member of the Brooklyn Law School class of 2015. While attending law school he focused his studies on intellectual property and was a member of the Brooklyn Law Incubator & Policy (BLIP) Clinic. He is admitted to New York and New Jersey state bars.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advise. Instead, readers should seek an attorney.

15 Years Later: Marking a Milestone for the Holocaust Claims Restitution Practicum

By Irina Tarsis, Esq.*

Cardozo Practicum Feb 2000 NYLJ_illustration

Source: NYLJ (2000).

2015 marked the fifteenth Anniversary of the Holocaust Claims Restitution Practicum (HCRP, the Practicum) at Benjamin N. Cardozo School of Law (Cardozo). The program was inaugurated in the spring of 2000, less than two years after the 1998 Washington Conference on Holocaust Era Assets, which brought together representatives from over 40 nations to address the issue of stolen and hidden property suffered by the Nazi victims. Founded by a Ph.D. in art history and archeology and a lawyer, Lucille A. Roussin (a Cardozo alumna), the Practicum graduated over 100 students who lent their time and efforts to helping victims and families of Holocaust survivors address asset restitution issues. The HCRP is a unique program. It is dedicated to offering students immediate experience working with specialized agencies and legal practitioners on investigation and recovery of property stolen from Holocaust victims.

Formerly an associate with Herrick, Feinstein LLP, Roussin is a solo practitioner and an educator. She has also testified as an expert witness in a number of Nazi-era looted art cases. When she served as a member of the U.S. Presidential Advisory Commission on Holocaust Assets, Roussin envisioned offering legal training to law students through law firms and various nonprofit and government organizations, which would create a personalized experience working on the Holocaust-related issues.

At the time, supporters of the visionary proposal recognized that it could only be implemented in the United States, and more specifically New York, because the jurisdiction offers a unique forum for bringing property claims decades after an injustice was perpetrated. One of the most powerful New York procedural tools available to the victims of Nazi-era looting is the favorable statute of limitations rule that allows claims for restitution to be brought only after the current possessor refuses to return the property to the rightful owner, the so called “demand and refusal” rule, as set forth in the 1991 Guggenheim v. Lubell case. Elsewhere, and in most of the countries where lootings took place, legal title vested after a certain period of time lapsed regardless of the physical inability to locate the property by the victims or their heirs.

By design, the HCRP is made up of two components — a weekly seminar in a course entitled “Remedies for Wartime Confiscation” open to qualified upper class students, and a field placement with an entity (a large to small law firm, solo practitioner’s office, nonprofit organization or a governmental agency involved in restitution claims). In the classroom, students learn about the socio-economic situation and legal history dating back to the years prior to World War II and the imminent looting and restitution that followed.  Over the years, the Practicum has hosted guest lectures delivered by restitution experts, such as Professor Richard Weisberg, a member of the Cardozo faculty who serves on the Presidential Commission for the Preservation of America’s Heritage Abroad; Professor Eric Freedman, the European Advisor and visiting professor for the Program in Holocaust and Human Rights Studies; and attorneys from the Herrick, Feinstein LLC art law department. Students are evaluated on class participation, feedback from the practicum supervisors, and a final paper.

A prerequisite for the students to be enrolled in the course and qualify for the practicum is passing the International Law course. While knowledge of foreign languages and art history is not mandatory, they are highly preferred. Students seeking admission to the Practicum are interviewed both by Professor Roussin and the would-be-employers.

Each year, students are provided with the opportunity to work on unique and diverse case files. When asked which case seems to resonate with the Practicum alumni, Roussin cites the famous U.S. v. Portrait of Wally, a case that involved a painting by Egon Schiele on international loan to the Museum of Modern Art in New York. That case was subject to 12 years of litigation, which resulted in a multi-million dollar settlement in favor of the heirs of the original pre-war owner of the painting. However, just as the claims by the Holocaust victims are diverse, the work performed by the Practicum students is not limited to cases involving art and cultural property. Over the years, work placement for the Practicum students has ranged from complicated class action lawsuits involving banking and railroad industries, to matters pertaining to securing pensions for the elderly and restitution of real property.

One student who enrolled in the inaugural session of the Practicum wrote a letter to the then Dean of Cardozo, Paul Verkuil, expressing that his most important experience at Cardozo was earned through the HCRP, both because the subject matter was “extraordinarily interesting and relevant”, and because the practical experience was “invaluable” and “unparalleled.” That student was placed with a practitioner working on a case involving the French National Railway’s involvement in transporting Jews to concentration and death camps. Others have gone to work with New York based organizations and firms, such as the Holocaust Claims Processing Office in the New York State Department of Financial Services; Claims Conference; New York Legal Assistance Group; Herrick, Feinstein, LLP; Squire, Sanders & Dempsey; Law Offices of Mel Urbach; as well as the Washington D.C. based Holocaust Art Restitution Project and Byrn, Goldenberg & Hamilton; practitioners in Florida; and even organizations beyond the U.S. borders. Indeed, in 2005, three students worked with a member of the Knesset (the Israeli Parliament) on the first Global Report on Restitution of Jewish Property in the State of Israel. Many alumni fondly remember the Practicum as a highlight of their law school experiences.

Another alumna who worked with the New York State Banking Department as part of her experience in the Practicum remembers poring “over auction records and exhibition catalogues in the hopes of finding stolen art.” The stories about “people signing bills of “sale” for their art while Nazi soldiers held guns to their heads, apartments being raided and paintings torn from the walls, etc.” filled her with compassion for the victims and inspired her to “increase [her] own efforts to always be kind and tolerant towards others.”

Given the extent of the property disputes and human rights violations that continue to occur in the world, a restitution practicum may be expected to continue with new cases and reparations efforts. For now there is no lack of Nazi-era related claims being reported, such as the recent stories of the Rosenberg and Gutmann families who lost property during the Holocaust, as well as reports and studies of the art found in the Gurlitt Art Trove (a.k.a. the Schwabing Art Trove) in Germany.

When asked how long the Practicum may remain relevant and in existence, Professor Roussin hedged her response, stating that “[t]he program cannot last indefinitely.” No other law school offers such a practicum, which may, to some degree, be explained by the fact that there is only one Lucille Roussin, and New York is the logical jurisdiction to offer a training program for the Holocaust restitution cases. One of the best aspects of the practicum is that through the lectures and readings, students are able to appreciate that restitution is not only about litigating cases in courts but “it is equally a matter of gaining the political and financial support of key influencers.”

Despite the attention restitution has received through programs like HCRP, the problem of doing right by those displaced and dispossessed of their valuables as a result of an armed conflict or a genocide has not been eradicated. At least one HCRP student had worked on the first restitution case brought before a U.S. Court involving cultural property taken during the Armenian Genocide (1915-1917). W. Prelacy of the Armenian Apostolic Church v. J. Paul Getty Museum was ultimately settled this September, whereby the title to the contested illuminated Bible pages passed to the claimants while pages would remain on a permanent loan with the Getty Museum. Perhaps in time the Practicum will grow to include more restitution questions related political and social unrest in South America, Asia, the Middle East, and elsewhere in the world that affected lives and livelihood of other victims. By then the HRCP will have established a precedent of helping people restitute their valuables and getting some measure of justice through well-established legal channels.

*Reprinted with permission from: Entertainment, Arts and Sports Law Journal, Fall/Winter 2015, Vol. 26, No. 3, published by the New York State Bar Association, One Elk Street, Albany, NY 12207.

About the Author: Irina Tarsis, (NY Bar Member since 2012) is the Founder and Director of Center for Art Law.

Spotlight: UNESCO and the World Heritage Convention

By Lindsay Dekter*

We must construct the defenses of peace in the minds of women and men.
-UNESCO Motto

A look at the history, framework, and impact of UNESCO’s World Heritage Convention and the work of the World Heritage Committee following UNESCO’s seventieth birthday this past November.

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Krakow, Poland, Historic Center, was amongst the first designated sites and the Celsus Library, Ephesus, Turkey, was amongst most recently designated sites. Left image by Ludvig14 / Right image by Benh LIEU SONG

Historical Background

In reaction to the destruction of two world wars, the United Nations, established in 1945, identified the need for an intergovernmental organization with values anchored in peace making and collaboration. The goal of founding such an organization was to unite heterogeneous social and political regimes worldwide in order to prevent the future occurrence of atrocities like those experienced during the first half of the twentieth century. With that in mind, 37 countries founded the United Nations Educational, Scientific and Cultural Organization (UNESCO) in the months following the end of the Second World War; within a year, twenty countries, including Egypt, Canada, Turkey, the United States, the United Kingdom, and China, ratified the Constitution of UNESCO, and met at the first General Conference of UNESCO in November of 1946 in Paris. UNESCO gained more international support in the 1950s and 1960s when additional countries throughout Asia, Africa, and Europe became members. Seventy years after its inception, UNESCO continues to garner international approval from both long-time and new members, the most recent of which include Montserrat (2015) and Anguilla (2013). Today UNESCO has 195 Member States.

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Distribution of UNESCO Member States by region / Image courtesy of UNESCO

UNESCO was responsible for a number of important global initiatives in its infancy, including recommendations that Member States make primary education “compulsory and universal,” and the extension of international copyright protections. Beginning as early as 1960, UNESCO realized a series of worldwide campaigns and conferences focused on environmental and cultural heritage protection, marking the beginning of the organization’s tenure in a more than half-century-long endeavor in preserving place.

UNESCO and World Heritage

Although UNESCO was officially established in the 1940s, it was not until was 1972 that the General Conference of UNESCO adopted The Convention concerning the Protection of the World Cultural and Natural Heritage. That Convention emerged out of growing international concern for the protection of humanity’s shared natural and cultural heritage, which had become threatened, or in some cases altogether destroyed, by increasing globalization and urbanization during the mid-twentieth century. Four years after adopting the Convention, UNESCO formed the World Heritage Committee (pursuant to Article 8 of the 1972 Convention) to oversee its implementation, allocate monies from the World Heritage Fund (pursuant to Article 15), and consider nominations for inscription on the World Heritage List. The Committee has met annually since 1977 in order to discuss sites on the World Heritage List. During the annual meeting, the Committee reviews the preservation and management of inscribed sites and adds or removes sites from the World Heritage List; any sites in danger are added to the List of World Heritage in Danger. The Committee additionally concerns itself with programs aimed to increase States Parties’ involvement in the protection of cultural and natural heritage, and also amends or creates new programs and policies that ensure the ongoing success of the Convention’s goals.

The World Heritage Committee itself is made up of 21 representatives from various signatory nations who are elected during the ordinary session of the General Conference of UNESCO. Members of the Committee can serve for six years, though most elect to serve for only four. 191 countries and territories have signed the World Heritage Convention to date (almost all of UNESCO’s members), meaning they have committed to preserving World Heritage sites located within their political boundaries as well as their national (non-UNESCO inscribed) heritage. The most recent countries/territories to ratify the Convention include Brunei and Palestine (2011), Singapore (2012,) and The Bahamas (2014). The first included the United States in 1973, followed by nine countries including Australia, Bulgaria, Iraq, and Sudan in 1974. 1975 and 1992 were the two biggest years for new signatories, with 10 and 9 new countries ratifying the Convention, respectively.

Identifying World Heritage

What qualifies as World Heritage is defined in Article 1 and 2 of the World Heritage Convention. In short, and informally, UNESCO’s definition of World Heritage includes the natural or cultural wonders of the world (or a combination of the two). More formally, and drawing from the language of Article 1 of the World Heritage Convention, cultural heritage worthy of inscription on the World Heritage List includes: architectural monuments and/or monumental works of art; groups of buildings, connected by geography or style; cultural landscapes that are a mix of monumental art, architecture, and nature; or archaeological sites. Pursuant to Article 2 of the World Heritage Convention, natural heritage includes: physical, geological, physiological, and/or biological formations or groups of such formations; areas that represent the habitat or of threatened animals and plants; or sites of considerable value to science and conservation, or that represent places of considerable beauty. Any site that is considered World Heritage, natural or cultural, must demonstrate “outstanding universal value from the point of view of history, art or science,” or “outstanding universal value from the historical, aesthetic, ethnological or anthropological point of view.”

Outstanding Universal Value is precisely the operative principle guiding States Parties in selecting sites for consideration as additions to the World Heritage List. There are ten criteria under which a site can be understood as having Outstanding Universal Value, outlined in the Operational Guidelines for the Implementation of the World Heritage Convention. For a site to be eligible for inscription on the World Heritage List, it must represent at least one of the ten criteria, which includes qualities like creative genius, uniqueness, associations with events, people, or places of historical importance, natural phenomena, aesthetic importance, habit preservation, cultural traditions, and so on.

In addition to Outstanding Universal Value, the Committee considers the integrity and authenticity of a site, as well as how the site will be managed and protected. Integral to site management is a State Party’s ability to demonstrate legislative or other regulatory protective frameworks at either the national or local level, as well as plans for monitoring and reporting changes and activity at the site. Each year the Committee considers no more than 45 nominations for review, with priority given to unrepresented or underrepresented States Parties and/or underrepresented types of heritage. No State Party may submit more than two nominations at one time, or one natural and one cultural heritage nomination.

Nominating World Heritage

The nomination process begins well before the official dossier is compiled and submitted to the Secretariat by a State Party. A site is only considered for nomination once a State Party creates and submits a tentative list of properties that interested parties (NGOs, INGOs, government agencies, cultural groups, and other stakeholders) agree exhibit Outstanding Universal Value per the World Heritage Convention and Operational Guidelines. The Tentative List must be submitted at least one year prior to the submission of an official nomination, and a nomination can only be submitted for a site that appears on the list. Once the Tentative List is submitted, it is up to the State Party to revise the list, although the Committee recommends States Parties update tentative lists every ten years.

Following the submission of a Tentative List, the State Party must then complete the official dossier for its nominated site. A complete nomination includes the following nine components:

  • Identification of the property;
  • A description of the property;
  • The justification for inscription (paragraph 77 of the Operational Guidelines);
  • A description of the state of conservation of the site and any factors that affect the site;
  • Plans for protection and management;
  • Monitoring plans;
  • All documentation relating to the site (drawings, maps, archival documents, photographs);
  • Contact information for the site’s authority;
  • The signature of the State Party (nominator).

Recognizing that States Parties may require assistance during the nomination process, the World Heritage Committee offers support by providing samples of successful dossiers, examples of robust legal protections and management plans, and direction and information for accessing archival or other documentary material; templates are also provided for organizing documentary material. Additionally, and upon request, the Secretariat will review draft dossiers and provide comments to the nominating State Party prior to official submission.

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 Map of all UNESCO designated World Heritage Sites as of 2015 / Image by NordNordWest

Once complete, the dossier is registered by the Secretariat and then passed on to the appropriate cultural or natural resources Advisory Body, either ICOMOS (International Council on Monuments and Sites) or IUCN (International Union for Conservation of Nature and Natural Resources). One of three recommendations is then made: inscribe the site to the World Heritage List; do not inscribe the site to the World Heritage List; or refer or defer for further research, explanation, or documentation. A successful nomination usually takes one and a half years from the time the dossier is registered to when a site is inscribed to the World Heritage List. The process cannot be completed in a shorter timeframe due to the requirement for registering a site on the Tentative List and the time required to conduct thorough site-specific research. Furthermore, a successful nomination often requires coordination between local, national, and international stakeholders, which in itself can be a multi-year process.

The World Heritage List

The World Heritage List was created in 1978 as a primary function of realizing the protection of world heritage under the World Heritage Convention. Per Article 11 (2) of the Convention, the World Heritage Committee must maintain and publish an up-to-date list of sites. The first sites were inscribed to the World Heritage List in 1978—12 in total—and included the Historic Centre of Kraków (Poland), Aachen Cathedral (Germany), Yellowstone National Park (United States), and Simien National Park (Ethiopia), to name a few. Today there are 1031 total sites that represent 163 States Parties, 24 of which were added during the 39th session of the World Heritage Committee in Germany in July of 2015.

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Aachen Cathedral, Germany, and Simien National Park, Ethiopia, were amongst the first twelve sites inscribed to the World Heritage List in 1978. Left image by Ministry of Building and Transport / Right image by Christof Schenck

The benefits of inscription are numerous and can include financial support, advocacy, physical conservation, economic development opportunities, international awareness, and political protection, amongst others. One of the earliest inscribed sites, the Pyramid Fields from Giza to Dahshur in Egypt, added to the World Heritage List in 1979, benefited from the expertise, financial support, and political influence of inscription when infrastructure development threatened the site’s integrity in the mid 1990s. Following evaluation, reporting, and reminders of Egypt’s obligations to protect the site as a signatory of the World Heritage Convention, UNESCO successfully negotiated development alternatives with the Egyptian government to preserve the integrity and Outstanding Universal Value of the site. The World Heritage Convention has been successfully used as a political and regulatory tool numerous times over the last four decades as evidenced by sites like the Royal Chitwan National Park in Nepal, where UNESCO challenged a river diversion project that would have threatened wildlife protection, and the Old City of Dubrovnik, where UNESCO provided financial support and professional expertise to repair historic buildings damaged by war in the early 1990s. Had these sites not been inscribed on the World Heritage List, their preservation would have been more difficult and certainly not realized in such an effective and quick way, if at all.

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Royal Chitwan National Park and the Old City of Dubrovnik received political and financial support for preservation thanks to inscription. Left Image by Casper Tybjerg / Right Image by Francesco Bandarin

The List of World Heritage in Danger

An integral component for thwarting unwanted change to world heritage sites—change that is incongruent with the World Heritage Convention—is the List of World Heritage in Danger. The List of World Heritage in Danger is a function of the World Heritage Convention, Article 11 (4), that allows the Committee to monitor and respond to both “ascertained” and “potential” danger at inscribed sites (Paragraphs 179 and 180 of the Operational Guidelines). It “is designed to inform the international community of conditions which threaten the very characteristics for which a property was inscribed on the World Heritage List, and to encourage corrective action.” Corrective action is manifested in a variety of ways, depending on the threat, the site, and other factors, and can include launching an awareness campaign or reconstruction of a damaged site. Although States Parties are supposed to inform the World Heritage Committee of threats to a site’s Outstanding Universal Value, UNESCO welcomes dialogue about these issues from any person or organization. There are currently 48 sites on The List of World Heritage in Danger (roughly 5% of inscribed sites). A site is removed from the List of World Heritage in Danger only once the appropriate measures have been taken to restore the site’s heritage value, or when its Outstanding Universal Value has been or will be altogether destroyed with no plan for remedy. In the latter case, which is very rare, the site is removed from the World Heritage List.

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Hatra, Iraq, and Old City of Sana’a, Yemen, both added to the List of World Heritage in Danger in 2015, and likely destroyed (at least partially) during conflict and/or acts of terror in the region this year. This information, unfortunately, has not been updated in UNESCO’s database or documents. Left Image by Véronique Dauge / Right Image by Jean-Jacques Gelbart

Since the inception of the World Heritage List, only two sites have been delisted. The first, the Arabian Oryx Sanctuary in Oman, was delisted in 2007 following increased poaching and habitat destruction within the conservation area; the second, the Dresden Elbe Valley, was added to the List of World Heritage in danger in 2006 and delisted in 2009 following a plan to construct a four-lane bridge through the center of the landscape. In both cases the Committee worked with the States Parties to find some resolution, but determined that the Outstanding Universal Value inherent to each site had been or would be destroyed by the respective countries’ decisions. The List of World Heritage in Danger is an integral component of the Convention that allows the Committee to exercise its power over site management, but is not without limitations. For example, some sites have been on the list since the 1980s and 1990s, while other sites on the List have been completely destroyed.

Conclusion

The World Heritage List has been generally successful at promoting the preservation of inscribed sites. Indeed, inscription on the World Heritage List gives States Parties access to financial support and international conservation campaigns, and gives them greater access to specialist knowledge through international partner organizations, which in theory contributes to better preservation and site management. Like the Pyramid Fields in Egypt mentioned previously, many sites have benefited from inscription on the World Heritage List over the last four decades, including the Archaeological site of Delphi in Greece, where development was thwarted in favor of inscription, or the safeguarding of Venice, UNESCO’s longest running campaign and inspiration for the creation of the World Heritage Convention. Even sites believed to suffer irreparable damage like the Old City of Mostar or the mausoleums recently destroyed in Timbuktu have benefited from inscription, drawing the attention and support of the international community for reconstruction.  

The world has recently witnessed the shortcomings of the World Heritage Convention, however, which is particularly evident at many sites in the Middle East that, despite inscription, could not be saved from complete destruction. The Temple of Baalshamin. the Temple of Bel, and the Arch of Triumph, all located in the ancient city of Palmyra in Syria, or Hatra in Iraq, are just a few of the many UNESCO-inscribed World Heritage sites destroyed by the Islamic State. The list grows when sites destroyed by other militant groups or acts of war are included, such as Aleppo in Syria, or when the Tentative List is considered, where sites awaiting inscription to the official World Heritage List have already been obliterated (the Ancient City of Nineveh in Iraq, for example) . Despite numerous international campaigns that sought to prevent damage to these sites, the lack of political influence from the world’s foremost heritage preservation organization was made abundantly clear, and its inability to mandate preservation and assist States Parties in protecting their sites has frustrated many. The situation has reached the point that many individuals and small organizations are now leading monitoring and response projects rather than UNESCO itself. In fact, UNESCO has yet to update any information about the aforementioned sites (and others in danger) on their website. Certainly the protections and resources inscription affords should not be minimized since positive outcomes are evident, nor should the knowledge, intentions, or contributions of individuals working within UNESCO. Yet the limitations of the World Heritage Convention, particularly with regard to its inability to protect heritage in times of conflict, or the lack of authority it wields in sanctioning States Parties who fail to comply, have become increasingly visible as global hostilities intensify. In light of these trends the efficacy of UNESCO and the World Heritage Convention in promoting peace and preservation outside of times of peace does seem minimal, if not entirely impossible. While the ideology of the Convention is proactive in nature, its power, it seems, is in its ability to treat a wound rather than prevent it.

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Temple of Bel, Palmyra, before and after satellite images of Islamic State led destruction. This site was added to UNESCO’s List of World Heritage in Danger in 2013, and despite numerous international campaigns, could not be saved. Image courtesy of The Times.

To that end, and as the result of the recent and unprecedented destruction of World Heritage sites, the influence and value of UNESCO, particularly the cultural arm responsible for the World Heritage Convention, has come under considerable scrutiny. Perhaps the recent Islamic State led destruction of UNESCO World Heritage sites (and other war-related destruction in the region) will one day be counteracted by virtue of inscription like the sites in Mostar and Timbuktu. While certainly reconstruction is not the ideal method of heritage preservation, recent events elucidate a systemic failure in UNESCO’s ability to proactively protect world heritage when it is most vulnerable, and instead points toward its capacity and proficiency for triage post-conflict. Considering, though, the powerful language of UNESCO’s Constitution that elaborates a commitment to peace, collaboration, and mutual respect and welfare on a global level, it is obvious the organization’s initiatives and members were not intended to simply observe and respond to world affairs once the air has cleared, but to instead lead through the haze. With that in mind, it may be time to reevaluate UNESCO’s international influence generally. More specifically, and with the knowledge of more than forty years of practice, it is almost certainly time to revisit the World Heritage Convention in order to establish what it is actually capable of achieving, and whether authoritative leadership is an improbable fantasy or feasible reality. Whatever the case, adjustment to either doctrine or practice (or both) is necessary.

Select Sources:

  • World Heritage Centre, Operational Guidelines for the Implementation of the World Heritage Convention, UNESCO, file:///Users/Home/Downloads/document-57-1.pdf (July 8, 2015).

*About the Author: Lindsay Dekter is a Center for Art Law Intern (Fall 2015) and a graduate student at New York University in the Program in Museum Studies. She holds a BA in Cultural Geography and an MS in Historic Preservation. Her current studies focus on museums and legal issues, cultural heritage policy and preservation, ethics, provenance research, and restitution.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Any views or opinions made in the linked article are the authors alone. Readers are not meant to act or rely on the information in this article without attorney consultation.

State of the Art: Introduction to Patent Law

By David Honig, Esq.*

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A common question in the legal, intellectual property, world is whether something is patentable. For example, is making Balloon Dogs sculptures patentable? After all, a patent provides a huge amount of legal protection. However, unlike its intellectual property sister, copyright, patents don’t protect creativity but rather novelty. While creativity and novelty have similarities, and often one leads to the other, there is a decisive difference between the two. Novelty, which will be discussed in more detail below, is a harder condition to establish than creativity, especially since the threshold for creativity is so low, Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 345 (1991). Since copyright protects creative works artists often turn to the copyright system for protection, but an artist can also look to and even obtain the greater, albeit shorter, protection available under patent law.

The misconception that copyright is for creative works whereas patents are for science is only partially true and is somewhat based on a misunderstanding of the “Copyright Clause,” Article I Section I Clause 8 of the United States Constitution. The Copyright Clause authorizes Congress to grant copyrights and patents. The clause states “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”  

The misunderstanding can be summarized thusly, today patents are commonly thought of as being scientific whereas copyright is thought of as artistic so the word “science” must be for patents and the word “art” must be for copyright. But, this line of thinking is incorrect. Copyright was designed to promote the progress of science whereas patents were designed to promote the useful arts. There are many ways to prove this, such as discussing the meaning of “science” and “useful arts” or by examining the sentence structure. However, any one of these methods would require a lot of analysis for little payoff. It is simply worth noting that patents protect the “useful arts” and as such the term “art” is often used in patent law.

While it is true that there are certain categories of discoveries that cannot be patented, which will be discussed bellow, art does not automatically fall into any of those categories. So, the answer to the question of whether art can be patentable, like most questions in law, really cannot be answered with a blanket “yes” or “no.” Instead, each situation must be looked at individually to determine whether the necessary conditions have been satisfied. If the art meets the requirements of patentability then it can be patented, plain and simple.

It should be noted from the outset that this is a cursory overview of the United States patent system and in no way legal advice. Not all patent topics will be covered and in fact many important aspects and requirements will be left out. Additionally, if you think you have an idea that is patentable you should obtain advice from a patent attorney before you share your idea with anyone else. It should also be understood that unless otherwise noted the examples and hypothetical situations in this article do not reflect patentable inventions. In fact it is quite likely that most of the examples are not patentable. These examples and hypotheticals were inserted in the hopes that they would help illustrate certain patent concepts.

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Part One: What type of Patent Covers My Invention?

United States law allows for there different type of patents – plant, design and utility. Each of these types of patents has its own requirements and term (i.e. length of protection). In order to obtain any of these patents an inventor would have to file an application with the United States Patent & Trademark Office (USPTO) and comply with USPTO’s own requirements as well as those created by Congress via statute.

The first type of patent, plant patents, are the least likely to be awarded for a work of art. A plant patent is awarded when an inventor creates or discovers a new variety of plant, such as the “New Dawn” rose variety, which can only be reproduced through asexual propagation. Plant patents prevent anyone besides the patent holder from using or reproducing the plant. USPTO limits what type of plants people can obtain patents over but it also expands the definition of “plant” to include algae and certain fungi. While it is possible an artist could have met the requirements of a plant patent the amount and cost associated with the necessary scientific research makes it unlikely.

The second type of patent, design patent, is the type that is most often associated with and used to protect art. Design patents protect the physical appearance but not the underlying structure or use. For example US D322,227 S is a patent for a wrist watch with five faces designed by Andy Warhol. This patent only covers the look of the watch not the underlying technology used to make it or the movement that allows the watch tell time. Anyone can use the underlying technology to make a watch but only the holder of the patent can make a watch that looks like the one described in the patent. Although limited in their protection design patents could apply to works of art.

The final type of patent is a utility patent. When most people talk about patents the are referring to utility patents. A utility patent is the type of patent most likely to be discussed when someone uses the word “patent” without a qualifier to denote the type of patent. This is because a utility patent covers more inventions than plant patents and provides more protection than a design patent. Utility patents protect processes, machines or products that are “useful.” Because utility patents cover the widest array of subject matter, moving forward it will be the only type of patent that will be discussed in this article.

Part Two: What are the Requirements of a Utility Patent?

A utility patent has four main requirement. If all those requirements are met then a patent will be granted. So, if a particular piece of art meets these requirements then the artist/inventor will be able to obtain a patent over the art. Before explaining the requirements of a utility patent it is worth noting that utility patents are a “one size fits all” type of protection. Meaning, a patent awarded for a pharmaceutical, that took millions of dollars to perfect, is awarded the same exact protection, in terms of scope and years, as a simple mechanical device. Additionally, regardless of how complex or simple an invention is the inventor, or owner, must prove all of the elements.

The first requirement, as alluded to above, is novelty. Novelty is the idea that the invention must not exist in the public domain in any form. This does not mean that if the invention is not patented the invention is novel. For example, there might not be a patent that covers painting in general, but the public as a whole knows that if you apply certain chemicals to canvas they will stick to the canvas based on the motion of the stroke. Because the public has this knowledge a patent will not be awarded to an inventor who filed a patent even if no patent has ever been issued. However, if someone finds a way to improve how to paint they can’t get a patent on their improvement, but the scope of the patent is limited the improvement (i.e. what was outside the public domain or prior patents).  

The second requirement that needs to be satisfied to obtain a patent is nonobviousness. Nonobviousness is a difficult concept in patent law that is a lot more confusing than it might appear. Simply put, nonobviousness is the requirement that someone would not be able to easily create the invention merely by looking at what has already been invented. The law places various restrictions as to what prior inventions can and cannot be used for determining nonobviousness and what type of person is used to determine whether an invention is obvious. For instance, in determining whether a new metal alloy or the method to produce it is obvious a court or USPTO might look to see whether it was obvious to a sculptor who works with metals and therefore might have a sufficient knowledge of metallurgy. However, the same court would not look to a sculptor who deals primarily in marble, since that sculptor would have no knowledge of the relevant medium, to determine obviousness.

The third requirement, utility is defined by the invention having a known use. While utility is nowhere near as complex as nonobviousness it does have its eccentricities. For instance, whether an invention can achieve its stated purpose is one of the requirements of utility. So, if an artist creates a new method of glazing ceramics and claims that staring at the new gaze will cure cancer the patet will not be awarded for the nonexistent cancer curing properties.

The final requirement for obtaining a patent is that the invention is of the type that a patent can be awarded. Section 101 of the patent act, 35 U.S.C. 101, defines what can be patented, the utility requirement discussed above is also derived from this section. A plain reading of this section would seem to suggest that a patent can be awarded for any invention as long as it satisfies the other three requirements. However, the courts have used section 101 to carve out and exclude certain discoveries from being patented. Patentable subject matter is best thought of as a negative requirement. An inventor should look to see if her invention falls into one of three categories: abstract ideas, physical phenomena and laws of nature, if so the invention cannot be patented. There are some examples like the law of gravity that clearly fall into laws of nature and therefore are not patentable; unfortunately determining whether an invention falls into one of these categories has never been easy and is currently more confusing than ever since the Supreme Court’s 2014 decision in Alice Corp. v. CLS Bank International.

If any of these four requirements are lacking then the invention is not patentable.

Part Three: How Can Art be Patented?

Up until now, there has been quite a lot of law and very little art. There is a good reason for that. Although the examples used to, hopefully, better explain the concepts are all based on different forms of art it is difficult to say whether any particular work of art is patentable. This would require looking to see whether all the elements are met.

A painting itself will most likely never satisfy the novelty and utility requirements but, USPTO has granted a number of patents for novel methods of painting – a method patent covers a process instead of the product of the process, so anyone can produce the product but only the holder of the patent can use the patented series of steps. In fact, so many patents have been issued for methods of painting there is a patent class dedicated to “COATING PROCESSES” – USPTO has created the patent classification system as a way to group, sort and easily find inventions based on similar characteristics or uses.

An example of a patent awarded for a painting method is US 4,341,821. This patent covered a method for applying water based paints in such a way as to prevent certain defects such as the paint running and bubbles. While it is unclear whether the technology in this patent was invented by an artist, it is clear that artists are always figuring out ways to overcome issues with materials used to create art. Artists have always taken up the challenge presented by seemingly inherent limits of materials, and should be rewarded for their ingenuity and ability to overcome problems. One way to reap the reward would be to obtain patents.  

In fact, many patents have been applied to art and at least a few have been granted for new methods of making art. On such patent is US 3,249,502 Embalming material and method. The method described in this patent, or a similar method, was used by Damien Hirst in a series of works using Formaldehyde. Had the method been discovered by Damien Hirst he might have been awarded a patent, assuming all other patent requirements were met.

Screen Shot 2015-12-23 at 1.14.06 PM.pngAnother good illustration of patents applied to art is Body Worlds. Body Worlds is a series of exhibits, by Gunther von Hagens, that display human tissue and bones preserved using a process called Plastination. The process of Plastination involves replacing certain fat cells with plastic to prevent decay allowing these bodies to go on display around the world. Plastination was developed by von Hagens in the mid-70s and USPTO issued him a patent, US 4,205,059, over the process on May 27, 1980. While, von Hagens did not set out to make art, he eventually used his patented process to do just that.

The fact that the above patents do not mention their artistic uses leads to an interesting question, whether artistic value would satisfy the utility standard required to obtain a patent. While some might argue that art is not useful and therefore cannot meet the utility standard it appears that USPTO is not among this group. Among the patents awarded that relate to art are US 1,249,390, US 5,534,315 and US 8,420,205. The earliest, US 1,249,390, was issued in 1917 for a method of painting aptly titled “Fine Art of Painting.” This patent covers a method of painting with celluloid based paints. The method described was designed to overcome certain problems experienced when using celloid paints at the time.

The second, US 5,534,315, covers a “Decorative art form.” This patent covers a form of art where two sheets are cut out into designs and then held parallel to each other. Based off of the drawings, a good example of this patent in use would be double sided Christmas decorations depicting Santa or Reindeer. What is special about this patent is it is not a method patent. Instead, this patent covers a piece of art. This is special because the owner of the patent can prevent anyone from reproducing this decorative art form as long as the replica legally infringes the patent regardless of how it is made.

The final patent, US 8,420,205, covers “Mixed Media Artwork and Methods of Creation.” The patent describes a “mixed media artwork” made up of sheets of metal that are cut into shapes and decorated with various coatings, referred to as “polymers” in the patent. The cut up sheets of metal are arranged in such a way as to create a 3D piece of art. This patent was issued fairly recently, April 16, 2013. And while it took almost three years from the time of filing for the patent to issue, this patent shows that as recently as two years ago USPTO was willing to grant patents over art. While it was mentioned earlier in this article that there is some uncertainty in the definition of patentable subject matter following the Supreme Court’s 2014 decision in Alice Corp. v. CLS Bank International, the uncertainty has nothing to do with art. While some art will be preempted from being patented by this decision, nothing in the decision says or even alludes to the fact that art is not patentable.

It is plain to see from these examples that artists can not just use the information from patents to create art but also obtain patents. It is worth noting again, that not all discoveries are patentable no matter how useful they may be. Another important note is that patents are not the only way to protect an invention or discovery. In fact it is possible to protect those discoveries that the United States court system will not allow inventor to obtain patents over.

Part Four: Alternatives

There are strict requirements that must be met before a patent is granted. If even one requirement is missing a patent will not be issued. Additionally, even if a patent is issued it can be challenged and invalidated. Because of the costs and uncertainty associated with the patent system some people forgo the whole process. That being said, the patents system is not the only way to obtain protection. As mentioned above copyright is a form of protection that is often associated with art. Additionally through use and a cultivation of consumer recognition artists can also obtain protection through trademark and related principles.

But, there is a problem with both copyright and trademark. Just like patent law, each is limited in scope of protection. There is, however, a fourth member of the intellectual property family, trade secrets, which could step in where other IP protections end. Unlike its intellectual property cousins, trade secrets is not limited in what can be protected as long as the requirements are met. Protection is derived from information being kept secret and commercial value of the information partially caused by the information being secret. For instance the way a painter mixes paint or how a ceramist stokes a wood fire kiln to release a certain amount of carbon into the glaze as its firing can be protected under a theory of trade secrets.  

Just as the list of subject matter that can be protected through trade secret law is not finite neither is the length of protection. For example, the method to make the Stradivarius string instruments which resulted in exquisite sound quality would still be protected today, if someone had knowledge of the method, even though it was first used by Antonio Stratdivari more than three hundred years ago. As long as all the elements, usually independent commercial value and reasonable efforts to keep the subject secret, are satisfied protection will continue indefinitely. One interesting aspect of trade secrets is that just because an idea is known by some of the population does not mean it is ineligible for trade secret protection.

If this seems a bit confusing there is a good reason. Trade secrets, unlike copyright and patents, is not governed by federal law. This means that each state deals with trade secrets in its own way. Additionally how a person or corporation goes about protecting a secret can differ in the same state, yet all can be provided protection. Trade secrets have no hard and fast requirements and the standard used to determine if the owner kept the secret secret enough varies from industry to industry. It is hard to say what is required to own a trade secret.

Very often the owner of a trade secret must use confidentiality agreements, among other safety precautions, but sometimes these requirements are not enough while in other instances they are not needed at all. This makes trade secrets a very difficult subject to give a blanket overview. Which is why it is important to remember the note at the beginning that this article is not legal advice nor should it be used by anyone to make legal determinations. Rather this article should be used to think about possible forms of protection and begin exploring them further with or without the help of an attorney.

About the Author: David Honig is a post graduate fellows at the Center for Art Law. He is a member of the Brooklyn Law School class of 2015. While attending law school he focused his studies on intellectual property and was a member of the Brooklyn Law Incubator & Policy (BLIP) Clinic. He is currently pending admission to the New York and is admitted to New Jersey state bar.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advise. Instead, readers should seek an attorney.

 

Unearthing the Evidence: How Soil Analysis will Revolutionize the National Stolen Properties Act

 

By Timur Tusiray*

Introduction

Less than one percent of the world’s archeological sites have been located or excavated, leaving the vast majority of humanity’s heritage open for discovery and exploitation by looters. This issue is not only relevant to Middle Eastern countries ravaged by conflict, but to areas around the world. For example, in China there are over a quarter-million known archeological sites, and it is reported that most have been looted to some extent. The sheer volume presents a unique challenge to those trying to prevent widespread looting by not only frustrating efforts to confiscate these looted objects, but also determining where they were looted. To further complicate matters, in the United States, criminal prosecution of those trafficking in cultural property hinges upon proving the actual provenance of these trafficked objects.

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Last month, the TED prize, a nonprofit forum for cutting edge ideas, was awarded to Dr. Sarah Parcak granting her $1 million to develop a project connected to her work in satellite archeology. Dr. Parcak is the founding director of the University of Alabama at Birmingham’s Laboratory for Global Observation, and through the use of satellite technology, has been able to track the increasingly destructive looting of archeology sites around the world. A pioneer in this new world of “satellite archeology,” Parcak has stated that she plans to use the money to continue her work in tracking, and hopefully preventing the widespread looting of cultural sites.

Parcak’s award is just another indication of the increasing awareness and action by the mainstream international community to protect cultural heritage. For more coverage on the subject, please read prior articles on the matter: here and here. However, what is truly unique to come from this development is Dr. Parcak’s recognition that satellite technology does not address the issue of tying a looted item to a particular site, but rather that, “someday digitized data on soil composition might be able to authenticate such matches.” (emphasis added).

That day may be soon upon us. With increasing technological advances in forensic soil analysis, and the recognition of its utility in combating the illicit market in cultural property, soil analysis can become a powerful tool. However putting the science aside, data from soil analysis could help alleviate the restrictive United States’ legal requirements for criminal prosecution of looters and the subsequent repatriation of looted objects through the National Stolen Property Act, giving a new tool to a traditionally convoluted and unwieldy test.

What is Soil Analysis?

Soil is a very complex combination of materials. Beyond the “parent rock” material, each sample has a unique composition of vegetation, flora and fauna, DNA of microbes, in addition to minerals the size and shape of sand grains. Soil analysis, in the context of assisting investigations into provenance, incorporates “new techniques in chemical, physical, biological, ecological and spatial analysis, coupled with informatics” to pinpoint areas in which the soil may have come, and to compare soil from those areas with the original soil sampling. This in turn helps investigators in site identification, site comparison and measurement for the eventual use as evidence in court.

Soil analysis is not a new technology, with the earliest example of a forensic soil comparison being documented in Berlin in 1856, and infamously having been considered by Sherlock Holmes in 1887 in, “A Study in Scarlet” to pinpoint the location of suspects. More recently, forensic soil analysis has been used by international organizations to combat the illicit trafficking of wildlife, and continues to be used on occasion by law enforcement agencies to assist investigations and solve crimes. However, the multi-disciplinary advances made in soil analysis has made progress from the realm of artful deduction into scientific process.

Application to Protecting Cultural Heritage

Soils can be a very potent type of trace evidence for linking an object to its original excavation site. Given the nature of the illicit market, in which objects may pass through several hands, and across many borders before being restored and cleaned, objects often retain the original soil from the site from which they were looted. It is typically not until the object reaches the final dealer that the object then gets cleaned in order to be sold. This traditional illicit market structure is also transforming, especially in cases involving the so-called Islamic State (“ISIS”), in which there is evidence of ISIS agents going directly to buyers in the West with these newly looted and soil encrusted objects.

There are already cases where soil analysis has been used to verify provenance of various cultural objects. For example, two Australian collectors were being investigated for possessing fossilized egg nests suspected of being looted from a Chinese site. The Australian collectors claimed the nests were not Chinese, but rather legal American fossils. Under Chinese law, fossilized dinosaur nests are protected, and both their sale and purchase are banned in Australia. To prove that they were illegally obtained, a soil analysis laboratory was hired, and compared the nest against soil samples from the various possible source areas for the nest. The lab found completely different mineralogy between where the collectors claimed the nest came from and the nest itself. They were subsequently convicted, and the eggs returned to China.

Soil analysis has many benefits for proving the provenance of an object. For example, trace soil may be so small as to be invisible, but with modern analysis, they can still yield meaningful results. Soil is easy to collect, and quickly analyzed. It can also be highly varied, and vast databases of soil types have already been catalogued. For example, in the U.S. alone there are more than 100,000 types collected, with attempts at digitizing and expanding the databases underway. Furthermore, the U.S. military has been collecting soil samples in the Middle East for decades now for various research reasons. Finally, unlike in wildlife crimes where DNA analysis is heavily relied on, cultural objects do not contain unique DNA identifiers, making soil a reliable alternative.

Finally, law enforcement officials working on wildlife crime, specifically that of ivory, sometimes find multiple soil samples on an individual tusk. Much like cultural objects, these elephant tusks were warehoused in various locations as they travel and exchange hands in the illicit market. Enforcement officials, utilizing these soil samples, were not only able to trace the tusk back to its original herd, but were able to determine which countries the tusks were trafficked through from each sample, and aggregating data and routes from multiple seized tusks are able to find “choke points” in the trade where a bulk of the objects travel through. This type of investigative work on wildlife crime has crossover into the world of looted cultural objects.

Of course there are still certain barriers to the widespread use of soil such as the cost, and limitations of access to soil databases around the world. However, with the increasing reliability of technology used in such analyses, along with the increasing call to repatriate looted objects, the importance of soil samples should only increase.

Why is this Important for Criminal Cases Brought in the United States?

The National Stolen Property Act (“NSPA”) is the central statute that has been utilized to prosecute individuals who transport stolen objects. It establishes a felony offense for knowingly transporting stolen objects in interstate or foreign commerce. This much maligned statute has the potential to be a vigorous tool to prosecute individuals dealing with looted objects in the United States due to its broad territorial application, however, it has been hamstrung by case-law interpreting the definition of “stolen property.” The increasing efficiency and spread of soil sampling may be the solution to make this statute relevant again.

Scope of the NSPA

The NSPA has broad territorial effect. In United States v. Schultz, the Second Circuit upheld a conviction of a well-known New York art dealer for conspiracy to receive property stolen in violation of a foreign government’s patrimony law. They further expanded that the objects need not be stolen in the U.S., and the owner of the object, nor the defendant have to be U.S. nationals (Schultz at 402). There only needs to be a nexus to the U.S. for the NSPA to be applicable. In the case of Schultz, the nexus was established when the objects were shipped to the United States.

Definition of Stolen Property

However, in United States v. McClain, the Fifth Circuit set out a stringent test (the “McClain Doctrine”) to determine when an object was considered “stolen.” In McClain, several American art dealers were convicted of selling stolen Mexican artifacts. The test the court laid out was that:

  1. Patrimony Law: The country from which the objects derives must have a clear law giving ownership of undiscovered objects in the state.
  2. Political Boundaries (Geographic and Temporal): And the objects in dispute must be shown to have come from the modern political boundaries of the state, after the effective date of the national ownership law.

This test was followed later in the Second Circuit in Schultz, and barring further case law diverging from it, is persuasive precedent for all jurisdictions applying the NSPA.

Much criticism has been leveled against the second prong of this test, saying that proving an object came from within the borders of a specific nation at a specific time is often difficult, if not impossible to prove. This is largely due to the fact that ancient civilization’s borders do not adhere to the borders of modern day states. For example, in McClain the defendants were accused of stealing certain pre-Columbian artifacts from Mexico. However, as was a point of contention in the case, the style of the artifacts in question could have been excavated not only in Mexico, but also Guatemala, Honduras, Panama, and Costa Rica. Looking at the Middle East, one can imagine the difficulty in proving the provenance of a looted Mesopotamian artifact, as the kingdom of Mesopotamia spanned across modern day Turkey, Syria, Iraq, Iran and some of Kuwait. Finally, without an eye witness at the looting, timing will always been in question. This is where the proliferation of accurate modern-day soil testing becomes invaluable.

Conclusion

As discussed above, soil sampling paired with aggregated data from satellite archeology, which can pinpoint the exact location and possibly the time of excavation, is no longer one of estimates, but of scientific fact. Dr. Parcak’s work highlights the importance of new scientific methods in combatting the illicit market in cultural objects. With the increasing scale and scope of looting occurring throughout the world, the United States must start utilizing such methods, especially that of soil analysis and sampling, in order to give new life to the NSPA.

Selected Sources

*About the Author: Timur Tusiray is a recent graduate of USC Gould School of Law, specializing in art and cultural heritage laws, human rights, and IP laws. He is currently an Orfalea-Brittingham Fellow at the Clinton Foundation. He may be reached at timurtusiray@gmail.com, or on twitter @TimurTusiray

Disclaimer: This article is being produced in the author’s individual capacity and does not reflect the views of his employer. This article is intended as general information, not legal advice, and is no substitute for seeking representation.

 

WYWH: Recap of “Art, Law and Crisis of Connoisseurship Conference”

By Marie H. Kramer*

Screen Shot 2015-12-10 at 5.28.08 PM.pngOn Tuesday, December 1, 2015, the conference titled, “Art, Law and Crises of Connoisseurship” took place at The Society of Antiquaries of London, Burlington House, London, UK. It was an international conference organized by ArtWatch UK, the Center for Art Law and the London School of Economics Cultural Heritage Law (UK). The program featured nineteen speakers, including artists, art historians, scientists and lawyers from Western and Central Europe as well as the United States, discussing how the ‘eye’ of the connoisseur interacts with art history and law. The conference was divided into three parts.

Part I: The Making of Art and the Power of Its Testimonies

Michael Daley, Director of ArtWatch UK and one of the program organizers, opened the conference with his essay “Like/Unlike; Interests/Disinterest,” which focused on the 1991 trial of Professor James Beck in Italy. Columbia U. Art History Professor Beck was accused of aggravated criminal slander (which carried a possible three year imprisonment) for his critical comments on a restoration of the sculpture, an effigy of Ilaria del Carretto in Lucca Cathedral. Beck had opined that the restorer ruined the sculpture by stripping its ancient patina to remove scratches and covering it with oil to create a new, shiny surface. Beck was ultimately acquitted of the charges setting precedent for the protection of future criticism of art restoration. After the trial, Beck and Daley joined forces to set up ArtWatch International, an organization dedicated to advocate for the protection of art against harmful restoration. The full story of the trials can be found in the book, Art Restoration: The Culture, the Business and the Scandal, co-written by Beck and Daley, which also includes criticism of the cleaning of Michelangelo’s Sistine Chapel frescoes. Daley showed examples of the restoration effects on the Sistine Chapel, where delicate layers of shadow that the master painted himself, were removed under the guise of ‘cleaning’ off dirt deposits.

Next, Euphrosyne Doxiadis, a Greek painter and scholar, spoke about her three decades of research and criticism of the Rubens attribution of Samson and Delilah in the National Gallery in London. Her research of the provenance and the work revealed engravings and other painted ‘eye witnesses’ (copies made of the original Samson and Delilah painting by Rubens) that she contends do not match the version currently hanging in the National Gallery. Additionally, using her artist’s eye and the availability of high-resolution digital photographs, she observed visible differences in brush strokes from known Rubens paintings, as well as the use of different pigments. This is especially important because Rubens only used different red pigments to shade and highlight his red areas, rather than the white pigment used to lighten the red dress of Delilah in the National Gallery version. Now, still, Doxiadis continues to struggle to get her opinions heard and recognized by the National Gallery.

Jacques Franck, a French art historian and painter trained in Old Master techniques, explained “[w]hy the Mona Lisa would not survive modern day conservation treatment.”  Franck, who is a recognized authority on Leonardo da Vinci, has conducted an extensive investigation of the techniques used by Leonardo, especially his ‘sfumato’ (‘smoky finish’) method, in which colors and shades melt into one. Franck, who believes he has discovered how Leonardo accomplished this technique based on his years of personal experimentation, explained to the conference attendees that Leonardo applied ultra-thin layers of glaze and pigment to make his transitions, each layer only a few micrometers thick. Franck suggests that, clearly, modern conservation techniques that ‘clean’ off any of these thin layers of glaze would destroy the Mona Lisa and other Leonardo masterpieces.

With a continued focus on Leonardo Da Vinci, Ann Pizzorusso discussed the master’s work from the perspective of a geologist. Pizzorusso is a US professional geologist and a Renaissance scholar. She explained how geology can be used as a tool for determining attribution. Specifically, she noted that Leonardo was renown, not only as an artist, but also as a scientist. Leonardo carefully studied geology and botany, making extensive drawings of the world around him. Comparing the Virgin of the Rocks compositions hanging in the Louvre and in the National Gallery of London, Pizzorusso noted some odd differences. She could plainly identify the various rock formations in the Louvre version, but not so with the National Gallery version. Additionally, she noted that the plants in the National Gallery version, according to a botanist she consulted, were imaginary – not the precise petals and foliage of actual plants – a mistake she doubts Leonardo would ever make. Thus, she questions the attribution of the painting in the National Gallery.

Robin Clark, Sir William Ramsay Professor Emeritus at University College London, an inorganic chemist and spectroscopist, gave a fascinating discussion of the use of Raman microscopy (RM) to identify pigments in the palette of artwork. He explained how every pigment has a distinct pattern of scattered photons that can be seen after focusing a laser beam through a microscope—collectively referred to as its Raman spectrum. This unique pigment identifier is invaluable in determining the composition of the pigments and can give tremendous insight for authenticating and dating artwork, as well as conservation and restoration.

Unfortunately Segolene Bergeon-Langle, France’s Honorary General Curator of Heritage and a member of the Louvre’s preservation and conservation committee, was unable to attend the conference, but she provided her remarks, and Daley presented her main points about the relationship between science and art. She contends that scientific analysis can cause restorers to overlook the original artists’ formulations. For example, during the restoration of Leonardo da Vinci’s The Virgin and Child with Saint Anne, in the Louvre, the Louvre’s international advisory committee on the restoration concluded that there was blanching (whitening) of a layer of varnish due to moisture or ageing that needed to be removed. Bergeon-Langle strongly disagreed, recognizing that the whitened area was not a later varnish to be removed, but was original to the painting – and perhaps a device used by the painter. She resigned from the restoration advisory committee in protest to the removal of the varnish and ‘over-cleaning,’ which left a visibly brighter composition. As an advocate for responsible stewardship, she contends that different fields of science and connoisseurship need to work together, so that the proper scientific questions are asked, and to permit art connoisseurs to work with scientists to collaboratively analyze and understand the true meaning of the results.

Michel Favre-Felix, a French painter and President of ARIPA (Association for the Respect of the Integrity of Artistic Heritage), discussed how some art restorers have dramatically changed certain works of art because they failed to look at the testimony of historical copies. One of the restorations he discussed was Veronese’s The Pilgrims of Emmaüs. The original, painted in 1560, had been changed more than once over the past 450 years; but there had been engravings made over the course of history, as well. Each restoration made changes that compounded prior mistakes. For example, a restoration in the 1950s deemed that the neckline on the cloak worn by the Pilgrim Luke was an overpaint from the 19th century, and removed it, notwithstanding an 18th century engraving showing that very neckline. These errors and others were compounded again in the Louvre’s more recent 2003-2004 restoration. The piece today makes a good example for the study of art restoration and perhaps, what not to do.

Kasia Pisarek, an independent art historian and research specialist on attribution in London, discussed modern attribution, specifically, the case of La Bella Principessa, a chalk and ink drawing on vellum depicting the profile of a girl appearing to be 15th century. It was recently attributed as a lost drawing by Leonardo da Vinci, but Pisarek proposed several arguments against such a finding. For example, she questioned the story that the vellum came from the Sforziad manuscript in Warsaw, noting that, among other problems, the hole punches that would have held the vellum sheet in place do not match the supposed original source of the drawing, the Sforza family album, which has five holes. Additionally, she discussed how the style and technique of the drawing are very different from Leonardo’s, but that several of his works and a sculptured bust by Cristoforo Romano might have been the sources for the drawing. The controversy will continue—indeed, convicted art forger Shaun Greenhalgh has recently claimed that he forged this “Leonardo” modeled after a girl he knew in 1975.

The first part of the conference was concluded with a brief discussion and a Q&A moderated by one of the conference organizers, Irina Tarsis, of Center for Art Law. A heated discussion ensued surrounding La Bella Principessa’s attribution that could only be categorized as a battle of experts.

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Part II: Righting the Record – Diverse Experts as Authority

Tatiana Flessas, professor of cultural heritage law at the London School of Economics and one of the conference organizers, introduced the early afternoon speakers, starting with Brian Allen, Chairman of the London Old Master dealers Hazlitt Ltd. Allen discussed what he termed ‘the new art history’—a change in the teaching of connoisseurship, especially in the UK, since the 1980s. He has noticed that universities are focusing on the social history of art, and not training art history students to differentiate artists by their stylistic traits. The effect is that fewer art historians will be able or willing to make attributions, and forgeries can be missed.

Peter Cannon-Brookes, former museum curator with strong interests in conservation and security, presented his essay, “Reconciling Connoisseurship with Different Means of Production of Works of Art.”  He follows Brian Allen’s discussion of the change in connoisseurship and how well modern art historians and connoisseurs really understand art from long ago. He questioned whether the more modern analysis of art—post-war era art to the present—could apply to art created in the past, and the processes used throughout the ages.   

Continuing with the theme of the changing nature of connoisseurship, Charles Hope, former Director of the Warburg Institute, discussed how modern connoisseurs have been unable or unwilling to support their basis for attributions. Often, two types of connoisseurship are at odds with one another: that based on expertise acquired over a long time and that based on using historical evidence and reason. In more distressing terms, Hope highlighted the fact that decisions about attribution are not based on the actual evidence to support the attribution, but left to a decision by vote.

Martin Eidelberg, Professor Emeritus of art history at Rutgers University, next discussed how science alone will not solve authentication issues, that there needs to be a collaboration among different disciplines in addition to extensive time for study. While creating a catalogue raisonné of the paintings of Watteau, he discovered how the provenance and scientific analysis of the paintings were not always a reliable means to determine accurate authorship and could lead to various misattributions.

Robin Simon, Editor of The British Art Journal and Honorary Professor of English, UCL, explained his discovery of multiple fake paintings, which were hanging in the MCC (Marylebone Cricket Club). Simon discovered that a single artist, between 1918 and 1948, painted over fifty paintings depicting cricket matches that purportedly dated from the 16th-20th centuries. After outing the pictures, they were removed from the MCC and quietly given to dealers, although a few fakes still remain in the MCC. Interestingly, Simon learned that the fake paintings were later sold to a wealthy collector who believed them to be authentic. So, the fakes have worked in two swindles.

A guest lecturer at the LSE and Director of the Art Law Foundation, Anne Laure Bandle, discussed her PhD paper on the sale of sleepers at auction and the liability of the auction house in such dealings. She focused on the notable Thwaytes suit against Sotheby’s for negligent advice regarding the value of The Cardsharps—allegedly missing the current expert attribution to Caravaggio. The High Court ruled in favor of Sotheby’s, finding that it had met its due diligence by using highly qualified experts who reasonably concluded that the quality was not sufficient to indicate a Caravaggio, rather than just a ‘follower.’

The next speaker, Elizabeth Simpson, Professor at the Bard Graduate Center in New York, departed from the field of fine arts to discuss the use of connoisseurship in the study of ancient art. Specifically, she explained how the ‘eye’ of the connoisseur has been used to identify the artists of ancient Greek artifacts. For example, by studying the stylistic traits of ancient Greek vases, scholars have been able to determine that two separate artists created works on two sides of the same vases – the Lysippides Painter (black-figure technique) and the Andokides Painter (red-figure). Connoisseurship also reunited disconnected ivory pieces stored in the Metropolitan Museum of Art into the ancient chair or throne from which they came. The ivory pieces had been excavated without any record of the source or context of the figures. An investigation of the pieces and comparison to similar ivories with known provenance revealed how they fit together and their source (Anatolia). 

Part III: Wishful Thinking, Scientific Evidence and Legal Precedent

During the final portion of the program, participants discussed the implications of expert connoisseurs and science in the courtroom.

Irina Tarsis, an art historian, New York attorney, Founder and Director of Center for Art Law, and one of the program organizers, contextualized the litigation involving the renown Knoedler Gallery. Although of impeccable reputation, the Knoedler closed after more than 160 years in business in the face of at least ten lawsuits against the Gallery for selling forgeries. The Gallery sold over fifty paintings, many of which were thought to be by well-known abstract expressionists. They had been consigned by Glafira Rosales, who has now admitted to the forgeries. Thus, the question is, what was the duty of the Gallery to ensure appropriate authentication?  Interestingly, Tarsis reported that none of the museum purchasers have brought suit yet. Several of the private collectors who have brought suit have settled. Thus, the issue of a gallery’s due diligence regarding authentication and attribution in these matters has not been decided by the courts. The question also remains whether there is insurance coverage for all of the remaining claims and potential claims. The usual insurance policy may cover theft or damage to works of art, but not necessarily for loss due to misattribution. Further, the Knoedler may have a policy covering errors and omissions by its staff, but unlikely covering acts of fraud. The message is clear that collectors and dealers cannot rely on the representations of even a highly reputable gallery alone, without performing their own due diligence into authentication to protect themselves. Between December 1st and December 10th, one of the two Knoedler cases slated to go to trial in the January 2016 was settled.

Nicholas Eastaugh, Founder/Director of Art Analysis and Research Ltd., London, discussed the science of analyzing fine arts – the term he uses is ‘technical art history and materials science.’  He performs chemical analyses of the materials used in a painting and searches for anomalies in those paintings. For example, he analyzed Red Picture With Horses, supposedly a 1914 painting by Campendonk, but found titanium white pigment, which was not available at that time, evidencing a forgery by Wolfgang Beltracchi. He also uses high resolution digital imaging, X-rays and ultraviolet fluorescence to see below the painted surface. Earlier sketches and drawings (pentimenti) can show the true artist’s creative process in altering the composition along the way, rather than someone who is simply making a copy.

Megan E. Noh, Associate General Counsel of Bonhams, discussed recent legal trends in authentication disputes. One important change is that artists’ foundations and authentication boards have disbanded or stopped issuing certifications of authenticity. For example, there are no longer boards to authentic works by Basquiat, Warhol or Lichtenstein. This trend is coupled with increased litigation concerning authenticity. Modern litigants rely more on scientific evidence, but it often becomes a battle of the experts. Authenticators, however, are understandably cautious in giving opinions for fear of liability. Noh suggested some possible solutions, such as indemnification agreements or ‘no sue’ agreements to protect authenticators. In New York, there is an attempt to amend the Art and Cultural Affairs Law to protect authenticators by requiring enhanced pleading by plaintiffs filing suit against authenticators, and fee shifting requirements for the prevailing party. Favorable case law may also help reduce liability for authenticators.  Indeed, since the conference, a French court has overturned a 2013 judgment that required art expert Werner Spies to reimburse a collector for the price of a work that turned out to be another Beltracchi forgery, but that Spies authenticated as genuine in a catalogue raisonné. The French court held that an authenticator for a catalogue is not to be held to the higher standard of care as that of an expert consulted in the sale of a work.

Conclusion:

This fascinating conference brought together international experts in various fields of art, art history, science and law. The speakers recognized that controversy abounds as experts continue to reach different opinions regarding attribution of works of art, as well as what efforts to make to properly conserve works of art. As the value of art generally rises, the stakes are high. Disagreements over attribution are increasingly brought into the courts, where the battle of the experts in connoisseurship and science is left to the decision of judges and juries (those furthest from the art world). The eye of an experienced connoisseur, who can distinguish artistic styles, is still desperately needed. The ability to perform such a close inspection and analysis should be supplemented by modern scientific advances, but should never be replaced. Papers from the conference are being prepared for publication in 2016. In the meantime, the take away from the conference is to do due diligence and seek unbiased opinions for authentication or intervention in art handling from a combination of sources, including connoisseurs and scientists.  The conference also raised topics that warrant further exploration, such as ethical guidelines for conservators and how to seek and determine a consensus in opinions.

Suggested Readings:

About the author: Marie H. KramerPennsylvania attorney living in the United Kingdom, studying art and cultural heritage law. She can be reached at marie@kramerlegalbriefs.com