Art Dealer Professionals Beware of Purchasing Stolen Goods

by: Sekou Campbell, Esq.*

Judges in the District Court for the Central District of California, the Ninth Circuit Court of Appeals (twice, here and here) and Justices in the U.S. Supreme Court have heard the story of Norton Simon, a case initiated on May 1, 2007 by a family member of a victim of Nazi art looting. Indeed, legislators have even weighed in on the case by amending California Code of Civil Procedure § 338 (Assembly Bill 2765, introduced on February 25, 2010). The latest Court (from the C.D. Cal.) pronouncement states that, at least when it comes to museums, galleries, auctioneers or dealers, the ancient maxim caveat emptor (buyer beware) strictly applies to bona fide purchasers of stolen artwork. Therefore, art theft victims, or their heirs, like Marei von Saher can bring claims against art dealer professionals like the Norton Simon Museum of Art in Pasadena even after the statute of limitations has run, if the subject artwork was “subsequently purchased” and “actually discovered” within the limitations period.

Facts

Von Saher alleges that she is heir to the diptych entitled “Adam and Eve,” a pair of sixteenth century oil paintings on wood panels by Lucas Cranach taken in a forced sale by the Nazis during World War II. Von Saher’s Dutch father-in-law, Jacques Goudstikker, purchased “Adam and Eve” in 1931. After Nazi invasion of the Netherlands in May 1940, Jacques Goudstikker fled Jewish persecution to South America by ship, but died in an accident en route. He left behind a “Blackbook” containing a log of much of his art collection, which included an entry for “Adam and Eve.” In May 1945, the Allied Forces recovered, among other artwork, the looted “Adam and Eve” and returned it to the Netherlands. There, Dutch restitution law required claimants to return money (from a “forced sale,” a sale of assets far below market value) as a condition for recovery of looted artwork. Therefore, Desi Goudstikker, Jacques’ widow, did not file a restitution claim for “Adam and Eve;” she also explicitly declined to waive any claim to the subject artwork. The Dutch government retained possession of the piece until 1961, when it transferred the work to George Stroganoff-Scherbatoff without notifying the Goudstikker family. Norton Simon then purchased “Adam and Eve” from Stroganoff-Scherbatoff in 1971 and has “possessed” them ever since. Desi Goudstikker died in 1996 leaving Von Saher as the sole Goudstikker heir. “Adam and Eve” went on display for the first time on October 25, 2000 at Norton Simon. Sometime thereafter, Norton Simon and Von Saher entered an agreement to toll the statute of limitations (essentially calling timeout on the statute that limits the time when a party can bring certain claims).

Procedural History

On May 1, 2007 Von Saher filed her initial complaint (began the lawsuit). In 2010, the Ninth Circuit appellate court affirmed a district court decision that California Code of Civil Procedure § 354.3 was “facially unconstitutional” under the foreign affairs doctrine and that Von Saher’s claim was “time-barred” (filed after the statute of limitations, even considering the tolling agreement). However, Von Saher was allowed to and did amend her complaint to “allege the lack of reasonable notice to establish diligence” under California Code of Civil Procedure § 338. That statute was then amended to allow recovery of a work of fine art six years after a plaintiff “actually” rather than “constructively” discovers (meaning when a plaintiff did discover not when she should have discovered) that a “museum, gallery, auctioneer or dealer” improperly owns looted artwork. In 2014, the Ninth Circuit, reversing the Central District of California’s decision, held that such an action did not conflict with express U.S. policy on Nazi-looted art and remanded the case back to the district court to rule on the remaining arguments on Defendants’ Motion to Dismiss. The Court declined to decide on those issues but rather invited Norton Simon to provide any other reason for dismissing the claims. Norton Simon complied and that Motion was briefed throughout March of 2015. On April 2, 2015, the district court denied Norton Simon’s motion and allowed the case to move forward on the grounds discussed below.

Analysis

Under the ancient maxim caveat emptor (buyer beware), the Court held that Norton Simon was exposed to liability for “Adam and Eve” even if Stroganoff-Scherbatoff, the party Norton Simon bought the piece from, was not so exposed. The Court determined that Desi Goudstikker, Von Saher’s predecessor-in-interest, would have been barred from bringing a claim against Stroganoff-Scherbatoff had he retained possession of “Adam and Eve.” “However, it is an open question in California whether a subsequent possessor who acquires stolen property after the statute of limitations has already expired is subject to a renewed limitations period” (Von Saher, at p. 9, citing Soc’y of California Pioneers v. Baker, 43 Cal. App. 4th 774, 783 n.4 (1996) (“we need not decide whether a purchaser who acquired the item after the statute expired would be subject to a renewal of the limitations period.”); also see Naftzger v. American Numismatic Soc’y, 42 Cal. App. 4th 421, 423 (1996) (“[w]e do not decide, for example, if an owner who fails to file a lawsuit under the prior version of section 338, subdivision (c) within three years of discovering the property’s whereabouts will be time barred if the thief or subsequent possessor later moves the stolen property to an unknown location, sells, or continues to withhold the stolen property.”)). Relying on an explanation of caveat emptor from the Oregon Supreme Court in 1888, the Court reasoned that “[e]very person is bound at his peril to ascertain in whom the real title to property is vested, and, however much diligence he may exert to that end, he must abide by the consequences of any mistake.” Velzian v Lewis, 15 Or. 539, 542 (1888). In other words, as between a “sophisticated” art dealer (museum, gallery or auctioneer) and an heir, the art dealer should bear the risk of mistakenly purchasing looted Nazi artwork.

The Court further explained the fairness of its decision by distinguishing between a “remedy,” a court-imposed resolution favoring the plaintiff, and a “cause of action,” a right for a plaintiff to sue in the first instance. A statute of limitations extinguishes a “remedy.” Meaning, for example, if a defendant merely forgets to assert a statute of limitations defense, the Court can provide an award for plaintiff. If the statute of limitations period is tolled by agreement, the Court can provide an award for plaintiff. If a defendant fraudulently hides the wrongdoing during the limitations period, the Court can provide an award for plaintiff. In other words, the passage of time alone does not eliminate the right to sue, it merely may extinguish the right to recover the stolen property. On the other hand, every transfer of stolen property is a new unlawful act, governed by civil tort law. So, according to the Court’s recent decision, when Norton Simon purchased “Adam and Eve,” even if it did not know such a purchase was unlawful, it committed a new tort, and thus was subject to a new statute of limitations period. Therefore, the Court held that Von Saher could proceed on her new “cause of action” against Norton Simon, which accrued on October 25, 2000, and was tolled within the new six-year limitations period under California Code of Civil Procedure § 338.

Implications

Of course, purchasers, particularly art buyers, should be wary when entering transactions. But, this case leaves open what type of investigation suffices. Specifically, the Court briefly addressed whether “adverse possession” could or should apply in this case. “Adverse possession” is a doctrine that states, after certain requirements are met, an unlawful possessor of even stolen property obtains superior title to the relevant property as against the whole world, including the rightful owner. The rationale behind “adverse possession” is to encourage property owners to make productive use of their property and therefore defend against unlawful users or possessors. The existential threat that enabled Nazi looting suggests that, at least, in cases like Norton Simon, a very careful analysis is required before finding that a party could adversely possess Nazi-looted artwork. Therefore, the Court deferred judgment on any claims to title of “Adam and Eve,” through adverse possession or otherwise, by Norton Simon for another episode in this ongoing saga.

*About the Author: Sekou Campbell is an attorney in private practice in Philadelphia, PA.

Sources:

  • Marei von Saher v. Norton Simon Museum of Art at Pasadena, et al., CV 07-2866-JFW (JTLx) (Mar. 22, 2015).
  • California Code of Civil Procedure § 338.

More than Just “Street Cred”: Why Intellectual Property Rights Matter to Street Artists

By Christine E. Weller*

Perhaps to the dismay of artists executing works in public spaces or on private property, street art and graffiti art has financial value and can be sold at auction without the artist’s consent. This commercialization does not sit well with some artists who engage in street art (illegally at times) as part of a political act, social commentary, or even just  for exposure.  Increasingly, graffiti and street artists who fight the involuntary commercialization of their work are achieving some success.

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Street art near Center for Art Law’s Headquarters in DUMBO. The DUMBO Improvement District commissioned this work with studio Sagmeister & Walsh, in partnership with Two Trees Management Co and the NYCDOT Urban Art Program, who collaborated with renowned Japanese illustrator Yuko Shimizu, and hand painted by Coby Kennedy.

While the terminology is unclear and used interchangeably, graffiti and street art are distinct.  The two disciplines can inform each other and are interrelated, but they differ in terms of style, method, and theme. Graffiti generally refers to stylized writing such as graffiti tags and visual work placed on buildings without permission.  Street art can take the form of murals or installations incorporated into property, more often with permission (tacit or explicit) of the property owner. Labels aside, street art lawsuits are garnering attention, and have enough merit to have caused several major commercial brands, including American Eagle Outfitters and Sony Music to settle infringement claims.

Since July 2014, there has been a rise in intellectual property (IP) lawsuits filed by street artists. However, a tension in the legal framework exists.  Many still view street art as an illegal act without artistic merit, to which no rights should attach. Notwithstanding the Visual Artists Rights Act (VARA), U.S. Copyright legislation that protects “moral” rights of artists in their work, there is legal precedent that street art may be destroyed by the property owner or painted over. Cohen v. G&M Realty LP, 988 F. Supp. 2d 212, 214, 109 U.S.P.Q.2d 1869 (E.D.N.Y. 2013)(Five Pointz). Nevertheless, the right to reproduce the street art may be protected by copyright or trademark law as evidenced by the successes in recent copyright cases brought by street artists.  The tension between the street artists’ intellectual property rights and the arrests and vandalism charges they may face is illustrated by the arrest of graffiti artist Cost (Adam Cole) and the recent false arrest lawsuit filed by Richard Pfeiffer, who police allegedly thought was Banksy. Richard Pfeiffer vs. The City of New York et al, No. 152797/2015 (N.Y. Sup Ct. Mar. 21, 2015).

However, with this new wave of successful suits and several forthcoming street art exhibitions, such as Coney Art Walls presented by Jeffrey Deitch in New York and Open Source: Engaging Audiences in Public Spaces presented by the Philadelphia Mural Arts Program, there is an increased need for both artists and brand owners to appreciate that intellectual property rights can attach to artworks installed or executed in public spaces.

A Legal Primer

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“Trust Your Vision” By gilf! Street art near our headquarters in DUMBO. Plaque next to art states: “As the world becomes more and more competitive it’s easy to lose sight of one’s goals and aspirations. This maze-inspired piece references the difficulty of navigating life, especially in a city like New York.”

Under U.S. Copyright law, legal protection attaches when an original work is “fixed in a tangible medium of expression.” 17 U.S. Code § 102. Originality is a fairly low bar. The holder of the copyright has several exclusive rights in the work for the duration of the copyright (the general rule today is the life of the author plus 70 years for most works), including: reproducing the work, preparing derivative works, distributing copies of the work and displaying the work publicly. Id. § 106.  Authors need not own the physical copy of the original, nor register their works in order for rights to attach.  However, registering the works with the U.S. Copyright Office is a prerequisite to bringing a lawsuit and allows for statutory damages. Id. § 411. In cases where actual damages are hard to prove, registration is a cheap and added benefit to the copyright owner.

Under U.S. Trademark law, protection attaches to words or symbols used to distinguish a good or service in commerce. 15 U.S. Code § 1051 et. seq. Trademark law is used to protect consumers against confusion. A trademark has the potential to last indefinitely provided that it is being used in commerce.  While the use in commerce requirement for trademarks may make it more challenging for an artist to obtain a trademark registration than a copyright registration, a trademark registration with the Patent and Trademark Office may be another source of artists’ rights in their work. Trademark protection may be especially relevant where an artist uses a graffiti or street art tag in commerce.

The Cases

Anasagasti v. American Eagle Outfitters, Inc., No. 1:14-cv-05618 (S.D.N.Y. Jul 23, 2014)

The recent wave of street art infringement cases began in 2014 with the copyright case filed by Cuban-American street artist Ahol Sniffs Glue (David Anasagasti).  In July, Anasagasti filed a copyright infringement action against American Eagle Outfitters for their use of his mural Ocean Grown (Fl) in an advertising campaign. The original mural, located in Miami’s Wynwood neighborhood, known for its abundance of street art, was commissioned by Ocean Grown Glass Gallery. Wynwood has a vibrant collection of murals, and according to the Miami Times, photographers often seek licenses from the artists before shooting the work. In his complaint, the artist alleges that no permission was sought, and the photography included models posing as if they were painting the murals. American Eagle and Anasagasti privately settled in December.

Hayuk v. Sony Music Entertainment et al, No. 1:14-cv-06659 (S.D.N.Y. Aug 19, 2014)

Well known and successful artist Maya Hayuk also brought and settled a copyright infringement case against musician Sara Bareilles and Sony Music for the unauthorized use of her mural, Chem Trails NYC, in promotional materials for Bareilles’ new album and tour. Previously, Hayuk has sued Urban Outfitters, Target, Coach, and Elle Warner, for the unauthorized use of her artwork.

Miller v. Toll Brothers, Inc., No. 1:15-cv-00322 (E.D.N.Y. Jan 21, 2015)

Luxury  real estate developers Toll Brothers settled with CAM (Craig Anthony Miller) for copyright infringement of his famous Elephant Mural (NYC). The mural was featured prominently in advertisements for luxury condos in Brooklyn that Toll Brothers were developing in the neighborhood where the artwork was originally located. CAM had painted the mural with permission of the property owner in 2009, but it was later painted over in 2013.

Franco Fasoli et al v. Voltage Pictures LLC et al., No. 2:15-cv-00889 (C.D. Cal. Feb 06, 2015)

In February, director Terry Gilliam also found himself at the center of a lawsuit over his film, The Zero Theorem (2013), when he  allegedly infringed a mural by Argentinian street artists Jaz (Franco Fasoli) and Ever (Nicolas Santiago Romero Escalada), along with Canadian artist, Other (Derek Shamus Mehaffey).  In Fasoli, the defendant filed a motion to dismiss.  The Court vacated the hearing date of May 4, 2015 and the parties await a finding on the papers.

Jason Williams et al v. Roberto Cavalli, S.p.A. et al, No. 2:14-cv-06659 (C.D. Cal. Aug 25, 2014)

Finally, in a case involving both copyright and trademark infringement claims, Revok, Reyes, and Steel (Jason Williams, Victor Chapa, and Jeffrey Rubin respectively) filed suit against fashion designer Cavalli for the use of the Plaintiffs’ mural in Cavalli clothing designs. In Williams, the Plaintiffs alleged that pieces of their work were reproduced on Cavalli clothing with their signatures obliterated, and the Cavalli trademark superimposed instead. Plaintiffs argued that this creates a false impression to the consumer as to the origin of the product. In February the court denied a motion to dismiss filed by another named defendant in the suit, Staff USA. Williams v. Cavalli, 113 U.S.P.Q.2d 1944 (C.D. Cal. 2015). This suit is currently pending in the District Court of the Central District of California (Western Division).  It will be interesting to see how the court will treat the trademark argument if the case does not settle.  Many of the artists that have brought suit engage in their own commercial transactions and have carefully policed their brands to control how their work is used and sold to ensure that they are being compensated. The disposition of Williams could establish a new legal tool for street artists.

Going Forward

Defendants in many of these cases, recognized brand owners such as Sony, Cavalli and American Eagle usually find themselves on the other side of IP infringement lawsuits. However, these graffiti and street art cases illustrate that savvy business people and corporations exploring new marketing strategies do not always appreciate that art appearing in “public” spaces is not necessarily in the “public domain.” Copying and distributing street art without permission may constitute infringement and may expose the copier or distributor to significant legal risks.

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“The Owls, Revealing Flight” by Craig Anthony Miller (CAM). Street art near our headquarters in DUMBO.

With the preceding examples in mind, street artists should consider their IP rights when installing work in public spaces, and the public and brand owners should be aware that artwork appearing in public spaces may be protected. Before using street art or graffiti art in marketing or product campaigns, brand owners should consider investigating who holds the rights to those works and seek appropriate permissions.  Going forward, street artists who install work in a public space may consider registering that work with the Copyright Office.  Where an artist uses a specific tag or name for commercial purposes, the artist could consider filing for a trademark.  While the notion of “use in commerce” in the context of street art is still untested, bringing a trademark claim in addition to a copyright infringement claim as in Williams might be an additional remedy for a recognized artist.

Select Sources:

*About the Author: Christine E. Weller is an Associate at Griesing Law, LLC where she focuses her practice on new media, intellectual property, nonprofit, and employment law  matters. She can be reached at (215) 732-3923 or cweller@griesinglaw.com.

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

Art Investment Funds: The Basics

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“It was well-choreographed, a beautiful show, but what was the financial truth?” Christian Ogier, Paris dealer commenting on one of the Christie’s auctions, May 2015.

By Jessica M. Curley*

Fine art is known to have little intrinsic value beyond its cultural significance and aesthetically pleasing nature, yet it seems to be an increasingly attractive alternative to traditional investment assets. The CEO of Blackrock, Larry Fink, recently remarked that one of the “two greatest stores of wealth internationally today is contemporary art,…” adding that, all jokes aside, it is a “serious asset class.” Although many art world enthusiasts advise that people only purchase art if they truly admire it, recent record high sales and huge upside potential are attracting the attention of those more focused on profit making. One mechanism utilized by some of these profit seekers to gain exposure can be found in fund-structured vehicles sometimes referred to as “passion funds.” These art investment funds, or “passion funds,” provide the opportunity for investors to tap into the potential of art works to diversify portfolios and potentially obtain significant returns. While some money managers have also taken interest in other niche asset classes including fine wine, vintage vehicles, stringed instruments, rare gems, and even comic books, this article focuses primarily on fine art.

Background & Market

Individuals and private clubs have been collecting fine art with varying degrees of investment intent for hundreds of years. However, the first institutional investor to specifically allocate capital for the purpose of investing in art is widely considered to be the British Rail Pension Fund, having acquired about 2,500 objects during the 1970’s for a total cost of about $70 million USD, close to 3% of the total fund. Institutional investing in art works has evolved since the 1970’s, resulting in the emergence of more and more funds exclusively dedicated to the asset class. The collapse of the dot-com bubble in 2001 also fueled the art fund trend as investors looked outside of the market for alternative opportunities. This trend of looking towards alternative assets was seen again following the financial crisis of 2008, as investors increasingly focused on tangible assets and alternative types of investment opportunities. Shortly thereafter, 2010 saw record sales of art works at both Christie’s and Sotheby’s, which further demonstrated the potential offered by fine art. More recently, in 2014 the global art market reached the highest level ever recorded, a total of over €51 billion.

Players

Managers of art funds are typically professionals from the financial industry, who have an interest and/or experience in the art world. They provide a number of crucial services including fundraising, investor relations, strategy development, market monitoring, and management of the disposition of fund assets. One notable example can be seen in Ron Perelman, billionaire businessman and art enthusiast, who established MAFG Art Fund for the purpose of investing in fine art, and who recently made headlines after getting caught up in a series of unfortunate  transactions (read more here).

Art fund investors generally have some kind of prior knowledge of the art market, and are largely looking to this type of asset for diversification and hedging purposes. To qualify to invest, they must be considered “accredited investors” under SEC guidelines, meaning that they are financially sophisticated individuals or institutions that require less protection than their unsophisticated counterparts. Institutional investors commonly include pension funds, trusts, family offices, insurance companies, endowments, and sovereign wealth funds, among others. For an individual to qualify for “accredited investor” status they must meet one of the following three criteria: (1) have a net worth exceeding $1 million, either individually or jointly with a spouse; (2) have an individual income in excess of $200,000 per year; or (3) have a joint income of $300,000 during each of the last two years and reasonably expect the same level of income moving forward.

Structure

Art funds are transactional in nature. They typically generate returns by strategic purchase and sale of artworks. In the US, art funds generally adhere to the traditional hedge fund structure of a limited partnership (typically in the form of a limited liability company (“LLC”)), which consists of a managing general partner(s), and a limited partner(s) who invest in the fund. Offshore funds can take on a number of more complex feeder/master fund formations, which also usually take on the form of a limited partnership, albeit with a wider variety of structuring options depending on source(s) of investment capital, taxation and accounting preferences. An open-ended fund scheme allows for the admittance of new investors and withdrawal of current investors throughout the life of the fund. More commonly used are close-ended funds, which, as the term implies, are closed to new investors once the fixed term to raise capital has ended. A third option consists of a hybrid model, which is more closely related to a close-ended fund, but which allows for some liquidity as investors can redeem shares after providing notice. Despite the likely existence of a withdrawal fee provision, the hybrid model boosts marketability since it provides for a quick exit for investors who do not like their capital locked up.

Once the structure is created and fund raising commences, a private placement memorandum detailing the objectives, risks and terms, including the investment minimum, of the offering is drafted and provided to potential investors. When an investor decides to invest, a subscription agreement detailing number of shares, price, and other terms will be executed resulting in the investor becoming a shareholder in the fund. One prominent art fund, the London-based Fine Art Fund Group, established in 2001, has six separate funds each of which is composed of an investment minimum of between $500,000 and $1,000,000 by 30 to 40 individual or institutional investors. Under some circumstances, investors may redeem shares, or sell to another accredited investor through a private placement, but this is typically limited or prohibited by the agreement terms.

Regulation

It is unknown exactly how many art funds exist today. Recently, Center for Art Law sat down with Enrique Liberman, President of the Art Fund Association, who has advised that there may be around 45 total funds worldwide. Most art funds are private investment vehicles, and as such are not subject to public disclosure and other burdensome regulatory requirements. Those art funds that are private investment vehicles must abide by the Regulation D private placement exemption requirements under the Securities Act of 1933 (the “33 Act”), which include limiting the offer to “accredited investors,” disclosing all material elements of the investment opportunity in a private placement memorandum and subscription agreements, and filing notice with the Securities and Exchange Commission (“SEC”) and with any relevant state regulators. To avoid being defined as an “investment company” under the Investment Advisers Act of 1940 (the “40 Act”), and thus subject to its additional set of regulatory burdens, art funds must qualify for one of two exceptions: having less than 100 investors or having up to 499 investors who meet the definition of “qualified purchasers.” Art funds are also subject to the anti-fraud provisions promulgated in the 33 Act, the Securities Exchange Act of 1934 (the “34 Act”) and the 40 Act, which prohibit fraud in connection with the offer and sale of securities and in connection with advisory services. Art fund managers themselves must register as investment advisors with the SEC, under the 40 Act, if either they engage in significant leveraging and securities trading strategies, or the art fund exceeds the $150,000,000 threshold for “assets under management,” which are rare. Art fund managers may also need to register if required by state laws.

In contrast to the heavy regulation and transparency of the financial markets, the art market is currently burdened by little oversight. Art assets acquired by funds are not subject to the same level of investor protection measures as securities and other financial instruments. Aside from anti-fruad provisions, auction regulations, cultural property laws, and general consumer protection and contract law, not much regulation exists, which is a definite worry for some art market investors. James R. Hedges IV, financier and art collector, was quoted by the New York Times commenting on the state of art market regulation in that “the art world feels like the private equity market of the ’80s and the hedge funds of the ’90s…it’s got practically no oversight or regulation.” In the same vein, Nouriel Roubini, co-founder and chairman of Roubini Global Economics, has advised that the art market is prone to abuse through “routine trading on insider information,” and is used for money laundering and tax avoidance purposes.

Additionally, art funds tend to be discreet in their communications due to solicitation and advertising restrictions under Regulation D. Hence the scarcity of information available about the strategies, operations, and returns of art funds. Generally speaking, art funds may adopt broad investment strategies or alternatively may be more refined, for example, focusing on acquiring art of a specific genre or geographical region. Works from certain genres or regions can be more profitable than others due to a number of factors, including trends, cultural awareness, and economic growth and prosperity. For example, Post-War & Contemporary art has outperformed Impressionist and Old Masters for the last two decades according to the Mei Moses Fine Art Index, and has even outperformed the S&P 500 for the last ten years. Fine Art Fund Group CEO Philip Hoffman has advised that the firm began by investing in Old Masters, Impressionist, Modern and Contemporary Art, and have since expanded into “emerging art” genres. It has also been disclosed that the first two funds produced annual returns of 16 percent for sold pieces, a figure based on the sale of about 100 artworks.

More is known about fee structures than investment strategies. The two most common fees include a management fee of about 1 to 2 percent, and a performance allocation fee of around 20 percent of the net income of the fund per annum. Additional costs associated with art funds include traditional expenses incurred by collectors: commissions, buyer’s premiums, shipping, storage and insurance. That said, art funds generally try to avoid transacting through auction houses so as to avoid hefty sales commissions and buyer’s premium expenses. The Collectors Fund, based in Kansas City and established in 2006, manages between $20 and $30 million raised from around 100 investors each having contributed a minimum of $100,000. Once works are sold, a 20 percent management fee is skimmed from the net profits. From the remainder, 40 percent is distributed to investors, while 60 percent is reinvested and used to purchase additional works.

Pros & Cons

Art funds offer many unique advantages to investors. The value of fine art is generally uncorrelated with traditional financial markets, providing a means of diversifying portfolios, and hedging against market downturn and inflation. Art typically holds its value, especially on the higher end, and has consistent performance returns, which are very attractive characteristics to investors. Although the art market is subject to little oversight, actual art funds are subject to some financial industry regulation and must comply with initial and periodic disclosure requirements, and antifraud provisions, which provide some level of investor protection. Art fund managers also have a fiduciary duty with regard to their investors, which is virtually non-existent in gallery-investor or auction house-investor relationships. Additionally, fine art has an inherent appeal as a luxury good, and depending on the fund, may be loaned out to investors for personal use.

One potential drawback of art fund investing is that traditional financial modeling does not generally work due to the unique nature of art works and trends in the art market. For investors who are accustomed to relying at least partially on traditional models, this may cause some discomfort. Another concern is that art funds require professionals who can strategically advise on the purchase and sale of art works; however, this is a difficult skill to qualify as past performance is often hard to measure. Limited liquidity is a major issue facing art fund managers and investors; art must be sold according to market trends in order to maximize returns, which may not coincide neatly with the close of a fund. Furthermore, as previously mentioned, unlike the financial markets, the art market is highly unregulated leading to less investor confidence in fair dealings, and more potential for price fixing and manipulation. The issue of valuation presents another problem for art funds as the value of acquired works remain that of the purchase price, not accounting for any shifts, until there is a liquidity event, making it hard to value a fund at certain benchmarks. Provenance issues, including forgery, looting events, and misattribution, are also pervasive in the art world and may arise if proper research is not carried out prior to purchase. To this end, title insurance may be purchased to protect a fund against a murky provenance.

Looking to the Future

As the interest in fine art investing continues to increase, new variations of the art fund are popping up, providing new ways for investors to access the art market. One such variation is Arthena, the first equity crowdfunding platform that allows investors to pool their capital in “collections” which are curated by expert art advisors. The minimum investment per collection starts at $10,000 providing access to a much broader group of investors than the typical art fund, with a floor of upwards of $100,000.

The art investment industry has also seen a recent trend of investors moving away from art funds and towards privately managed art investment accounts. This allows investors to avoid co-mingling their capital and provides the opportunity to customize the objectives and strategies of the investment.

In addition to these alternatives, new products are in the pipeline that would provide other methods for investing in the art world. Missouri based Liquid Rarity Exchange plans to bring one such product to market in the next few years, which will consist of publicly traded shares of securitized art and other tangible and intangible alternative assets. Shower Zhang, Director of Strategic Planning, has advised that in one interesting scenario, the owner of an art collection, be it an individual or institution, can essentially bring the collection to market through an IPO process, governed by standard SEC regulations. The shares then being traded on the open market. Another product, this one emerging from the banking world, is a collateralized debt obligation (“CDO”) utilizing art loans as the underlying asset. A traditional CDO is a structured investment product that utilizes cash flow-generating assets, including mortgages, loans, bonds, and credit card debt, and bundles them into tranches that can be sold to investors. An art CDO would theoretically operate the same way, only using loans backed by art works as the underlying assets. The art lending business has grown significantly in past few years as banks, auction houses, and private lenders seek to provide this additional service for high net worth clients, and as such, it makes sense that financial institutions would create sophisticated ways to further monetize these loans. 

In conclusion, the subject of art funds has seen about as much enthusiasm as it has criticism from the financial industry. However, it is worth noting that what most people today consider mainstream alternatives (hedge funds, private equity and real estate) were not always considered to be so. This leaves open the possibility that art investment, and particularly art funds, may follow in their footsteps. In the meantime, those considering investing in an art fund are strongly advised to do their research and seek the advice of experts in the field.

Sources:

About the Author: Jessica M. Curley, Esq. (Cardozo ’14) is pursuing her interest in art law and financial regulation in New York. She served as the Spring 2015 Post Graduate Fellow with Center for Art law, and currently works in fund structuring at a large financial institution. She may be reached at jessicamcurley@gmail.com.

Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.

ISIS Cultural Destruction: In Brief

By Mia Tomijima*

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War and political takeovers define history, but are also often responsible for erasing it. The devastating effects of these feuds result in the destruction of cities, people, and culture. Political leaders often make it a goal of destroying cultural heritage as a way of rewriting history and imparting their political, religious or ideological beliefs upon the civilization they are taking over. As the Nazis did during World War II, ISIS has emerged as the most recent group to destroy cultural heritage to further its ideology.

ISIS (or ISIL), shorthand for the Islamic State of Iraq and Syria, is a group of militants that have taken over parts of Iraq and Greater Syria (Syria, Lebanon, Turkey, and Jordan) and claim to represent Muslims worldwide. ISIS emerged during the summer of 2014, and quickly drew media attention with video recorded beheadings of journalists, and other reported massacres.394410_img650x420_img650x420_crop

Alarming reports from the archaeological community show that ISIS militants are now attempting to impose their ideology by demolishing cultural sites in Northern Iraq, including the Mosul Museum, the ancient city of Hatra, and other Assyrian capitals. The systematic public destruction of cultural property politically motivated to attract media attention is also considered to be a war crime under the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. In addition to the senseless destruction, ISIS is also selling Assyrian antiquities on the black market, using the proceeds to fund their campaign. Center for Art Law recently wrote on one such report of an Assyrian statue head emerging in the U.S., and the U.S. Attorney’s Office’s response to bring civil forfeiture proceedings on behalf of war-torn countries.

ISIS affiliation is even claiming responsibility over a recent attack in Texas, involving a shooting that occurred outside a cartoon contest of Prophet Mohammed in Texas (however no formal proof of affiliation of the shooters has yet to be shown). There has been great discussion in the archaeological, legal, and political communities over the destruction of cultural property in Iraq and Syria, including this Yale News conversation with Assyriology Professor Eckart Frahm, and this Democracy Now interview of Columbia University’s Near Eastern and East Mediterranean art and archaeology Professor Zainab Bahrani, who has consulted UNESCO on such matters.

On February 12, 2015, UN Security Council adopted Resolution 2199 to try to curb traffic in looted Syrian and Iraqi artifacts sold by ISIS members. In response to this call for action, French President François Hollande and members of the United States Congress recently issued statements in support of protecting cultural patrimony from the ISIS occupied territories. On April 26, 2015, the US House Committee on Foreign Affairs proposed a bill, H.R. 1493 Protect and Preserve International Cultural Property Act, which would, among other things, “require the Department of State to designate a department official to coordinate the efforts of the federal government to protect international cultural property… and develop strategies to reduce the illegal trade in such property and to assist countries in protecting their heritage sites and preventing looting and theft of cultural property.”

At an emergency meeting in July 2014, UNESCO’s Director General Irina Bokova stated “humanitarian and security concerns are inseparable from culture. Protecting the lives of people, their cultural heritage and identity go hand in hand,” and pledged that “UNESCO will continue mobilizing the United Nations Organization and the whole international community to safeguard Iraq’s cultural heritage with particular emphasis on the fight against illicit trafficking in cultural property.”

Sources:

*About the Author: Mia Tomijima is a recent graduate of Brooklyn Law School, where she received a certificate in intellectual property and served as Chair of the Art Law Association. She received a bachelor’s degree in art history from UCLA, and has worked with museums, auction houses, and law firms on both coasts. Mia is a post-graduate fellow with Center for Art Law. 

Oy May! Artless Boycotts Blossom

Chris Ofili, The Holy Virgin Mary, 1996.  Mixed media, elephant dung.

Chris Ofili, The Holy Virgin Mary, 1996. Mixed media, elephant dung.

By Irina Tarsis, Esq.*

The front page of the New York Times The Arts Section today, May 5, 2015, features indigenous actors and prominent writers staging walk outs. The story of American writers withdrawing from a literary gala that plans to honor the French satirical magazine Charlie Hebdo for “freedom of expression courage” is particularly surprising, as it rings counter to one of the basic principles of this nation’s freedom of speech and the press. While from the standpoint of free speech, “the state has no legitimate interest in protecting any or all religions from views distasteful to them which is sufficient to justify prior restraints upon the expression of those views,” reportedly 200 of 4,000 members of the PEN American Center signed a letter against awarding Charlie Hebdo’s “unacceptable” expressions.

This NY Times story appears just a few pages back from the front page photograph of “a crew … removing the bodies of two gunman who made an assault on a gathering [of controversial cartoonists] in Garland, Tex.,…” The foiled assault on the Mohammad cartoon contest in the United States, carried out by the self-declared ISIS supporters, instantly recalled the attack on the Charlie Hebdo headquarters in Paris earlier this year and the attacks on cultural sites and artifacts carried out by the bonafide ISIS militants.

The New York Times/The Arts (May 5, 2015).

The New York Times/The Arts (May 5, 2015).

Be it a boycott, an assault or a parade, these public spectacles are powerful tools for capturing attention and galvanizing support for a cause. When we talk about boycotts and cultural divides, we must not forget that this week marks the the 70th anniversary of the end of World War II, where millions of people, including talented writers and cartoonists, followers of all religions, died due to intolerance, racism, economic disparity and grand military aspirations. In commemoration of this date, nations and national leaders, veterans and survivors are conducting memorial services worldwide. One nation that arguably suffered the most from the so-called Great Patriotic War, the Russian Federation is poised to conduct one of the biggest parades on the Red Square both to celebrate the triumph over the Nazism but also to illustrate its current military might. Auspiciously, the nations that played as important a role in ending World War II, the Russian allies and former sister nations are not sending their representatives to Moscow this week. The list of absentees includes: the United States, the United Kingdom, France, Poland, Ukraine, Belarus, and Latvia.

The righteousness felt by those engaged in boycotts may be just as harmful as the debase and radical thinking that propels people to engage in unfair labor practices, take property from others without compensation, destroy artifacts and commit murder.

Michelangelo

Michelangelo Buonarroti, Male Nude Seen From the Back With a Flag Staff, ca. 1504. Black and white chalk

What does this editorial have to do with art law? In 1999, Brooklyn Museum organized a show “Sensation: Young British Artists from the Saatchi Collection,” which included works by Chris Ofili made with mixed media including elephant dung. The Mayor of the City of New York, Rudolph Giuliani decided that a number of the works were “sick” and “disgusting.” He decided that one work in particular, “The Holy Virgin Mary” was an attack on religion as it was offensive to Catholics. The Mayor tried to withhold funding from the Brooklyn Museum and threatened eviction. The Court held that the City and the Mayor were prohibited from taking any steps to inflict any punishment, retaliation, discrimination, or sanction against the museum because the freedom of speech trumped in this instance and that no “objective observer could conclude that the Museum’s showing of the work of an individual artist which is viewed by some as sacrilegious constitutes endorsement of anti-religious views.” Art and anti-religious sentiment may be subjective. The line between art and dung is sometimes indistinguishable. Legal minds thrive in the gray zone. Nevertheless, somethings remain black and white. Muscles flexing looks wonderful when it is rendered by Michelangelo or Baryshnikov, but it is much less palatable when done by means of weapons and at the cost of human lives. Certainly, there are fascinating art law debates and cases that stem from trademarking “Je suis Charlie,” looting that occurred during World War II, terrorist attacks and the recent annexation of Crimea, and even using elephant dung to create artworks. This week in May, however, there are few matters more important than cultural tolerance.

Suggested Readings:

About the Author: This editorial is by Irina Tarsis, art lawyer and Founder and Director of Center for Art Law.

Book Review: Elizabeth T. Russell’s “Arts Law Conversations”

From the editors: Case reviews, event reviews and now book reviews. Center for Art Law frequently receives notices of upcoming publications and accepts books for review. In addition to the list of Publications, we are happy to offer comments about some of the recently published materials on the subject of law and visual arts.

Arts Law Conversations

By Melissa (YoungJae) Koo*

Elizabeth T. Russell’s Arts Law Conversation: A Surprisingly Readable Guide for Arts Entrepreneurs (Ruly Press, 2014) (the “2014 Guide”) is a must-read for young arts professionals and students who call themselves artists or creators across all forms. As stated by the author in the Preface, the 2014 edition is a revision of the award-winning 2005 Art Law Conversations: A Surprisingly Readable Guide for Visual Artists. Note from the previous book’s title that while the 2005 version focused on “Art” and “Visual Artists,” the new book included “Arts” and “Arts Entrepreneurs” in response to those creative entrepreneurs who felt that the previous version did not cover non-visual artists’ legal issues.

From a soon-to-be-graduating law student’s perspective, the book is an excellent legal resource for people in the creative communities. The book should not be taken as legal advice, however, as it is “intended to provide accurate information regarding the subject matter,” reminded by the author on the first page of the book. What is most remarkable about this book is its wealth of legal information broken down in everyday language—anyone who is not familiar with legalese could enjoy reading it. As an added bonus, this book is humorous and witty, making it a truly delightful read. This reviewer could not help but wish for other  casebooks used in law school to have been as entertaining and as informative.

The 2014 Guide consists of fifty-two “Arts Law Conversations,” divided into four sections: I. Navigating the Legal System, II. Intellectual Property, III. Contracts, and IV. Business Issues You Might Have Overlooked. Each conversation explores a topic or a legal issue that art creators could face in a script-like hypothetical conversation form, bullet points, Q&A form, or a mixture of them. First and foremost, the book opens with a conversation called “First Thing First: The United States Constitution.” In bullet points, the author narrates the background and content of the Constitution in plain English, reminding readers of the foundation of the laws in the country. The second conversation introduces readers to the concept of jurisdictions and venues, possibly the first thing new law students learn in civil procedure class, through a hypothetical conversation between an artist in conflict with a gallery and her lawyer friend.

As the first two conversations of the book give readers a glimpse of the entire book, the author endeavors to engage readers to follow and clearly understand complexities of laws or concepts that could even be challenging to law students. Throughout the book, names of important concepts are bolded and main points are separately headlined on the side of pages, aiding readers’ understanding and refreshing what they have read. Some conversations also have a practical section called “YOU TRY,” encouraging readers to engage with the material, for example, by looking up a landmark case or other important facts not discussed in conversations. Although I wished that the section had an answer key somewhere in the book, the practical exercises allow readers to interact with the legal topic. The book also provides information on how to conduct legal research for people who are not in the legal field, making it genuinely artist-friendly. In addition to the appendix section of indexes, table of cases, and Bill of Rights, the book has an extensive glossary section where it lists definitions of concepts discussed in the book, which would be helpful for readers.

The book discusses not only relevant intellectual property laws for creative people, but it also lays out important tips about contracts. For example, the author explains commissioning agreements and goes over details about fine art consignment agreements, referring to UCC and various state statutes that artists should be aware of. Arts entrepreneurs are also reminded of other important business issues that could intertwine with legal matters such as organizing business, taxation, and collection. As if the author could read the minds of creative entrepreneurs, she comprehensively covers a variety of topics that has anything to do with law, which could be daunting to non-legal professionals. Creative people who want to protect their hard work or want to start their own business using their creative skills could truly benefit from this brilliant book. For law students or lawyers, this book is a great review of trademark, copyright, contracts, and corporations law.

About the Author: Melissa (YoungJae) Koo, Legal Intern with Center for Art Law, is a third year student at Benjamin N. Cardozo School of Law, concentrating in Intellectual Property law, especially art and fashion law. She can be reached at youngjae.koo@law.cardozo.yu.edu.

Disclaimer: Reading this book or its review is no substitute for getting your legal questions answered by a trained attorney.

WYWH: Review of “Successes and Challenges Facing the Return of Stolen Art and Cultural Heritage Property”

By Mia Tomijima*

On April 21st, New York Law School’s Center for International Law presented the Otto L. Walter Lecture entitled “Successes and Challenges Facing the Return of Stolen Art and Cultural Heritage Property.” The guest speaker for the evening was Sharon Cohen Levin, Chief of the Money Laundering and Asset Forfeiture Unit in the Criminal Division of the United States Attorney’s Office for the Southern District of New York. According to the U.S. Attorney’s Office website, Levin and her Asset Forfeiture Unit “pioneered the use of federal forfeiture laws to recover and return stolen art and cultural heritage property.” The event was well-attended and received by approximately 50 people, who came to hear Ms. Levin discuss the many famous art law cases that her office has handled over the past two decades, and the investigatory and legal strategies used for each one. A week later, on Monday, April 27, the New York Times broke the news that Levin is leaving the forfeiture unit and the Attorney’s Office after 29-years of tenure to join a private law firm, WilmerHale.

Sharon Cohen Levin image

In her opening remarks, Levin talked about her unit that uses forfeiture laws to locate and seize proceeds derived from criminal activities and then distributes them back to victims and appropriate law enforcement agencies. She provided an overview of the relevant forfeiture laws that she uses in her work, including 18 U.S.C. §981 (Civil forfeiture) and 18 U.S.C. §542 (Entry of goods by means of a false statement), among others. Levin described how it is illegal to “knowingly” move stolen property, and how her office is able to show intent through false customs statements and declarations. It is through this inventive use of preexisting law that her office was able to return over 100 items, ranging from fine art by Basquiat and Rembrandt, to ancient gold platters, and even a complete dinosaur skeleton.

The audience listened intently as Levin talked about a number of the cases that her office has handled. The survey started with U.S. v. An Antique Platter of Gold, 184 F.3d 131 (2d Cir. 1999), a case involving a gold phiale that was improperly excavated in Italy and smuggled into Switzerland. Thereafter, the phiale was flown to a buyer in the US. Levin explained that under Article 44 of Italy’s patrimony law, antiquities found and removed from Italian ground after 1902 belongs to the nation, a law that provided the basis for the U.S. government to bring an action on behalf of Italy. The 1999 decision was groundbreaking (no pun intended) because it set precedent that false statements on a customs documents serve as a basis for forfeiture. After the court ordered the forfeiture of the phiale, a twin phiale in the Metropolitan Museum of Art was also returned to Italy.

c6988-kohkerstatueatsothebys

Next, Levin discussed her work on the case U.S. v. a 10th Century Cambodian Sandstone Sculpture, 12 Civ. 2600 (GBD) (S.D.N.Y. 2013). This action sought the forfeiture of the Duryodhana statue, which was removed from the Prasat Chen Temple at Koh Ker in Cambodia in 1972 and was being auctioned at Sotheby’s in 2013. Like the Antique Platter of Gold case, the U.S. Government in the Koh Ker statue case was able to bring a forfeiture action on behalf of the Kingdom of Cambodia under Cambodian national ownership laws. The invoice and customs declaration form from 2010 misleadingly listed the statue as “Koh Ker style,” while Sotheby’s knew the statue had been taken directly from Koh Ker. While the auction houses in this case vehemently defended the interests of its consignor to sell the work, the lucky break in Levin’s investigation was finding records from the now-defunct UK auction house Spink that provided clear information on how the Duryodhana was transported from Cambodia via Thailand, to Belgium and then to the United Kingdom. The fact that the statue had missing feet and that the feet were still in situ at the temple only underscored its illicit removal. Levin said she even traveled to Cambodia to interview one of the looters involved in the actual removal of the item from the temple back in the 70’s, and she described his remorse in desecrating the Temple. The Duryodhana, along with two similar statues at the Met and one at the Norton Simon Museum, were all returned to Cambodia with ceremony in 2013 and 2014.

Levin briefly described her work on the case involving the forfeiture of a full Tyrannosaurus Bataar skeleton. In U.S. v. Tyrannosaurus Bataar Skeleton, 12 Civ. 4760 (PKC) (S.D.N.Y. 2012), the U.S. Attorney’s office used Mongolian cultural heritage laws to bring an action on its behalf. In this case, Eric Prokopi, a commercial paleontologist, excavated the dinosaur remains, reconstructed parts of the skeleton and put it up for auction in New York, where the skeleton was seized. As with all of the cultural heritage forfeitures, the crux of the investigation was to develop a record to show that this item originated in the country demanding its return. For the Tyrannosaurus Bataar, Levin built this proof of origin with affidavits provided by helpful paleontology experts.

Levin also described her office’s work in returning looted objects from currently war-torn countries, such as Iraq and Syria, which included her work on the case of U.S. v. One Iraqi Assyrian Head, 13 C.V. 5015. In the Q&A session following the lecture, Levin explained that in order for her office to return objects, the U.S. government must have diplomatic relations with the source country. As an example, her office is holding onto forfeited objects from Iran, until the day when diplomatic channels are bridged and the cultural valuables can be returned.

$19 million settlement frees "Portrait of Wally" after 13 year of legal disputes

In conclusion, Levin talked about U.S. v. Portrait of Wally, 663 F. Supp.2d 232 (S.D.N.Y. 2009), a landmark case that broke open the floodgates for other art restitution cases involving Nazis-era looted art. (Please see here for a more complete description of this case). Levin noted that the critical evidence in the case was the detailed letters between the original owner of the Schiele portrait, Jewish art dealer and collector Lea Bondi Jaray, and Rudolph Leopold, the Austrian collector who insisted that he was the rightful owner of the portrait, that documented their relationship and interactions. Additional evidence was developed from the trial testimony of Leopold himself. The case that lasted more than a decade was settled for the reported amount of $19 million dollars and a promise to display “Portrait of Wally” with an explicit wall label describing the civil forfeiture proceeding. Levin joked that this may be the only time a piece of art uses the word “forfeiture” in its description.

Less than a week after her lecture ended, the New York Times ran a story about Sharon Levin leaving the U.S. Attorney’s office to join a private law practice at the firm of WilmerHale. On Monday, April 27th, WilmerHale announced that it has hired Levin as a partner in the Financial Institutions Practice of its New York office. Accompanying the announcement, Ms. Levin told the New York Times “I had bigger cases that involved more complex issues, but ‘Portrait of Wally’ was special. [It] enabled me to use today’s forfeiture laws to correct a historical injustice.” With the Levin era at its end, art and cultural heritage restitution advocates wonder whether her successor will be as interested in and dedicated to the pursuit of art and cultural heritage matters. The helpful precedent and the ongoing need remain.

Select Sources:

*About the Author: Mia Tomijima is a recent graduate of Brooklyn Law School, where she received a certificate in intellectual property and served as Chair of the Art Law Association. She received a bachelor’s degree in art history from UCLA, and has worked with museums, auction houses, and law firms on both coasts. Mia is a post-graduate fellow with Center for Art Law. 

Disclaimer: This and all articles are intended as general information, not legal advice, and offer no substitution for seeking representation.

WYWH: Review of “Cultural Property: Current Problems Meet Established Law”

By Jill A. Ellman, Esq.*

Screen shot 2015-04-29 at 12.42.28 PM

On March 27, 2015, the Lawyers Committee for Cultural Heritage Preservation (LCCHP) and the Penn Cultural Heritage Center hosted the conference entitled Cultural Property: Current Problems Meet Established Law  in Philadelphia. This was the sixth annual conference for LCCHP, a not-for-profit organization dedicated to safeguarding cultural heritage, and the attendees included attorneys, archaeologists and other individuals interested in preserving cultural property. Four panels tackled ongoing issues including the problem of archaeological site looting, museum responses to the legal environment and collecting ethics, due diligence in provenance research, and emergency responses to the current crisis in Syria.

Patty Gerstenblith (Distinguished Research Professor of Law, DePaul University), commenced the conference by presenting on the adequacy of U.S. law, policy and practice in averting the international trade of looted objects. Gerstenblith explained that as looting of cultural property, a worldwide phenomenon, motivates by economic gain from source countries, cutting the demand for such objects in destination markets might be the only way to stem it. She described the vulnerability of archaeological sites, which consist of multiple layers of objects that reconstruct entire time periods and civilizations. Once looters destroy these sites, the context of the objects contained within are misunderstood or lost. See, e.g., Euphronios krater. While scholars are able to piece together the painter, potter, writing and characters represented on the Euphronios krater, information regarding the person buried in the tomb, including the food ritual burial practices as well as the health and age of the person, remain a mystery. Additionally, Ms. Gerstenblith explained that the abrupt stripping of objects from the ground results in the loss of knowledge of authenticity and purpose of those objects, such as the case of looted Cycladic figurines, which appeared on the art market in the 1950s.

Ms. Gerstenblith addressed existing laws aimed to combat illicit trafficking and trade of cultural property, including the UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (implemented by the United States through the enactment of the Cultural Property Implementation Act in 1983). Ms. Gerstenblith emphasized that even if an object is seized at the U.S. border and returned to the source country, it is still a loss for humanity because the context of that object is displaced. The ultimate win would be for the object to stay in the origin country. Efforts to train and provide expertise that would stem the flow of exporting objects in the originating country are therefore more effective for the preservation of cultural remains.

Ms. Gerstenblith also discussed the history of legal cases involving stolen property, identifying a first generation of cases in which a foreign country brings a replevin action in a U.S. court with the assistance of U.S. attorneys. But, she explained that a second generation of cases involving countries requesting actions to be brought by the U.S. government is now more prevalent. With respect to these second generation cases, the burden of proof is in favor of the U.S. government. Ms. Gerstenblith highlighted the problems with the current state of government involvement for this second generation of restitution cases. For instance, the U.S. government is likely to prevail even in circumstances where it is unclear how a foreign state possesses ownership of an object. See, e.g., U.S. v. Khmer Statue (specific factual allegations in the U.S. government’s complaint were lacking as to when the statue was stolen from Cambodia). See also Buying and Selling Antiquities in Today’s Market. In addition, Ms. Gerstenblith emphasized that because of the burdens of proof and costs, most of these cases are not litigated. Instead, courts sign off on complaints brought by the U.S. government, resulting in the creation of bad law.

Finally, Ms. Gerstenblith mentioned that there has not been a successful criminal prosecution since U.S. v. Schultz, in which the U.S. government brought charges against an American dealer for his conspiracy to smuggle Egyptian antiquities. Instead, the importation of stolen antiquities has become more of a game of catch and release: if a person imports stolen antiquities, then he or she may simply give up the object and walk away. She contended that the U.S. government has become lax with prosecuting and governmental agencies do not actively pursue criminal investigations. In addition, she suggested that there is ambiguity within the current legal framework for those who want to comply with the law.

Part I. Destruction of Archaeological Context

Dr. Katharyn Hanson (Postdoctoral Fellow, Penn Cultural Heritage Center, the University of Pennsylvania) opened the first panel concerning The Problem of Archaeological Site Looting and the Legal Context/Legal Response by showing satellite images of devastating looting of Mesopotamian archaeological sites in Iraq and Syria. At the site of Umma in southern Iraq, for example, satellite images detected over 8,000 looters’ pits between 2003 and 2005. The rapid acceleration of damage to Syrian sites is also very alarming. With respect to the ancient site of Apamea in Syria, satellite images taken between July 2011 and April 2012 revealed looting of at least 15,000 more pits than in southern Iraq. Dr. Hanson stated that looting is most effective when stopped on the ground by archaeologists and local police.

Tess Davis (Executive Director, the Antiquities Coalition) presented her research on the criminal trafficking networks in the historical case study of Cambodia’s civil war in the 1960s and 1970s. Her presentation revealed the corrupt nature of criminal looting networks that often involve gangs, foreign military and incumbent governments. Ms. Davis painted a grim picture that once the established criminal networks are in place, especially when armed forces fund the theft, those networks become more difficult to dismantle, and peace may in fact make it easier for them to operate.

Ole Varmer (Attorney, National Oceanic and Atmospheric Administration) and Jim Goold (Counsel, Covington & Burling) delved into the emerging area of law regarding the looting of underwater cultural heritage (UCH). Mr. Varmer explained that there is a gap in protecting UCH. He suggested future protection of UCH may be enforced through the Archaeological Resources Protection Act §6(c), which has been applied to archaeological objects from foreign lands. For further discussion See Underwater Cultural Heritage Law Study. Mr. Goold spoke on his involvement in the “Black Swan” case, concerning the salvage from a Spanish warship off the coast of Portugal by U.S. treasure hunters. In that case, the American company Odyssey Marine Exploration, Inc. brought a lawsuit claiming that its imported treasure from an unknown site (code-named the “Black Swan”) was from beyond the territorial waters of any nation, and therefore international laws did not apply. Mr. Goold’s presentation highlighted the thorny set of issues that may arise in cases where UCH does not fall within specific jurisdictional boundaries.

Keynote speaker Mariano Aznar Gomez (Professor, Universitat Jaume I) addressed the issue of the adequacy of international law, policy and practice in preventing underwater looting. He noted the difficulty of establishing hierarchy of ownership among states or countries of origin. Mr. Gomez concluded that while there are still many perceived threats to the protection of UCH, the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage may be a good solution. He emphasized the importance of the cooperation and collaboration of states to protect cultural objects.

Museum Responsibility, Collection Ethics and Due Diligence in Provenance Research

The lunchtime discussion moderated by Thomas Kline (Of Counsel, Andrews Kurth) among Dr. Richard Leventhal (Executive Director, Penn Cultural Heritage Center), Timothy Rub (CEO, Philadelphia Museum of Art), and Victoria Reed (Senior Curator for Provenance, Museum of Fine Arts, Boston (MFA)) focused on Museum Responses to Legal Environment and Collecting Ethics. All panelists emphasized the importance of transparency and continued best-effort practices for museums to disclose objects with incomplete provenance to foreign countries as a means to encourage dialogue. Dr. Leventhal highlighted that he was proud of the University of Pennsylvania’s “Pennsylvania Declaration” that it would not purchase art without verifiable provenance. Nonetheless, he emphasized that museums should engage in more provenance research and provide object registries accessible to the public. He opined that the transition from litigation to cooperation between museums and other countries, especially smaller and poorer countries, is essential in negotiating the placement of an object. Ms. Reed mentioned the MFA’s adherence to the 2008 Association of Art Museum Directors (AAMD) Guidelines and its staffs’ due diligence in conducting research to verify an object’s provenance. She seconded Dr. Leventhal’s sentiment that museums may reach creative solutions with countries, such as receiving exhibition loans in exchange for the museum’s return of certain objects. In addition, she stressed the importance of museums’ ongoing responsibility to consistently review collections and digitize records. Mr. Rub responded that digitizing records for big museums with large collections is a monumental task. He queried whether the more important issue is museums’ ability to check so-called orphaned objects with unverifiable provenance.

Legal Responsibilities, Methods and Due Diligence in Provenance Research, as those responsibilities extend to museum collections, was the topic of the third panel. Dr. Margaret Bruhac (Assistant Professor of Anthropology, the University of Pennsylvania) discussed approaches to provenance research for Native American heritage collections. Dr. Bruhac revealed the immoral museum collection methods of Native American artifacts in the early 19th century, including the purchase of artifacts from elderly or vulnerable tribes. She explained the identity of an object may be lost through the sorting and circulation of museums and collectors; such as the case of wampum belts, which became a hot sales commodity in the 1970s. Dr. Bruhac concluded that Native American property may be identifiable to a particular tribe only if museums and tribal nations share an open dialogue. Ms. Reed defended the ability of museums to acquire antiquities in the case of unverifiable provenance, citing MFA’s policy of assessing the risk of acquisition based on certain criteria. Ms. Reed mentioned that museums and collectors should demand the proper paperwork and ask more questions in order to facilitate transparency of orphaned objects. Dr. Lauren Ristvet (Associate Professor of Anthropology, the University of Pennsylvania) presented on provenance research approaches regarding cuneiform tablet collections. Her presentation highlighted the problematic impact that continual looting in Mesopotamian archaeology has in understanding the past. She differentiated the University of Pennsylvania’s collection, acquired through excavations in the ancient city of Nippur in Iraq versus those purchased for Yale University’s collection. The tablets at Penn, while not as aesthetically pleasing as those in Yale’s collection, are arguably more invaluable because their context is intact, providing insights into Sumerian literature and the Sumerian educational system. The tablets acquired at Yale, in contrast, consist of glued, incongruent fragments, some of which were thrown away, thereby destroying the historical meaning of the tablet.

Current Responses and Solutions

The final panel, Emergency Responses to Heritage Destruction in Times of Conflict, focused on the safeguarding of antiquities under siege and attempts to curtail present-day looting. Cori Wegener (Cultural Heritage Preservation Officer, Smithsonian Institution) disclosed international responses to site looting and heritage destruction in Syria. In particular, she stressed the importance of partnerships between non-governmental organizations and museums in order to raise awareness of the looting and help those on the ground who have been cut off from resources. She discussed the current collaboration of the Smithsonian with Safeguarding the Heritage of Syria Initiative (SHOSHI), spearheaded by Salam Al-Kuntar (Consulting Scholar, the University of Pennsylvania Museum). In June 2014, SHOSHI along with the Smithsonian led a conference in Southern Turkey to address emergency packing and planning for Syrian museum collections and the protection of archaeological sites. Led by Syrian technical experts, SHOHSI provided training workshops and supplies to volunteers looking to respond to the disaster. Apart from the conference, SHOSHI engaged in other projects, including training officials from the Ma’arra Museum to cover 90% of the museum’s mosaics with sandbags. Dr. Al-Kuntar seemed hopeful that these emergency efforts will preserve existing artifacts amidst the continual looting.

Susan Wolfinbarger (Project Director, the Geospatial Technologies and Human Rights Project, American Association for the Advancement of Science (AAAS)) concluded with the potential use of satellite imagery for cultural property war crimes prosecutions in Syria. She mentioned efforts by AAAS to train international human rights courts and commissions regarding the use of remote sensing in research documentation. Inaccurate evidence is common in these cases as prosecutions are based off of eyewitness testimony and lack of access to sites. Ms. Wolfinbarger expressed that the technology would be a useful tool in presenting objective evidence of human rights abuses and destruction to cultural property.

Conclusion

The destruction and plunder of cultural heritage, especially in areas of conflict, continues to be a devastating, universal problem. This year’s LCCHP conference highlighted the loss of the cultural meaning of objects and our understanding of memory and past cultures if artifacts are disturbed from their original context. A current illustration of this is ISIS’s attempts to eradicate past history and cultures.

While cooperation, as in the case between foreign governments and museums, is a useful tactic for the restitution of looted objects, there is room for improvement to block looted objects before they reach destination countries. Technology may facilitate the tracking of lost antiquities, but the most effective way to prevent looting is on the ground. Unfortunately, countries of conflict do not possess the resources or ability to police such pillaging. However, educational efforts led by non-governmental organizations and/or resource-rich populations may provide an answer to restrict the flow of antiquities from the origin country. In addition, if museums and collectors take the proper measures to conduct due diligence, demand for looted objects may be subdued. More extensive criminal investigations and policing efforts in destination countries may also prevent the facilitation of this illicit trade. Presently, there is legislation pending in Congress imposing import restrictions from Syria. Ms. Gerstenblith recommends that those wishing to make an impact in restricting trade from Syria call their representatives to pass the appropriate legislation. See H.R. 1493- Protect and Preserve International Cultural Property Act.

Nonetheless, the above efforts are only a beginning to arrest the flow of the illicit antiquity trade. Satellite imagery shows the vast destruction of looted archaeological sites, in which centuries of information regarding past cultures is lost. The universe of looted antiquities from such immense plunder will be resurfacing for years to come. Consequently, the message from this year’s conference was clear: education, transparency of collection practices, and meaningful dialogue between origin countries and market participants are the strongest means to keep cultural heritage intact.

Select Sources:

About the Author: Jill A. Ellman is an attorney in New York interested in the preservation of cultural heritage. She may be reached at jillaellman@gmail.com.

WYWH: NYCLA Discussion of Forensic Art Analysis

Screen Shot 2015-04-28 at 5.14.46 PMby Megan Noh, Esq.*

On Wednesday, April 1st, the New York County Lawyers Association (NYCLA)s Art Law Committee hosted James Martin, founder of Orion Analytical LLC, an independent laboratory dedicated to examining cultural property in authenticity studies and legal proceedings. Martin is a frequent guest in New York City; he recently gave a lecture at Center for Art Law’s “Youve Been Served” event, and is also an adjunct professor at the New York University School for Continued Education. Martin uses a range of scientific techniques – including technical photography, microscopy, elemental analysis, and chemical analysis of materials – to compare questioned and documented works, and identify anachronisms and anomalies in fraudulent and misattributed works. Mr. Martins presentation focused on his work in the context of several prominent art authenticity claims.

The first such instance was the widely-reported controversy surrounding 32 canvasses claimed by owner Alex Matter to be previously-unknown Jackson Pollock “drip/pour” works dating from 1946-1949. Mr. Matter purportedly discovered these works in an East Hampton warehouse in approximately 2002, and although the Pollock-Krasner Foundation officially ceased issuing authenticity opinions in the mid-1990s, its then-remaining members did express opinions about the Matter canvasses. Unfortunately, those opinions conflicted; as a result, three of the works were sent to Harvards Straus Center for Conservation, and more than twenty to Orion, so that both laboratories could conduct independent analyses. Mr. Martin found at least six anachronistic materials in the Matter canvasses he studied, including an automotive pigment first used on Ferrari automobiles in the 1980s, well after the works supposed date of execution. Orions official conclusion was that this scientific evidence indicated that the date and attribution of the works were not as alleged by Mr. Matter. Mr. Martin presented these findings, which were consistent with Harvards report of its own analysis (issued in January 2007) at an IFAR symposium in November 2007 and in a 2008 volume of IFARs journal, thus putting the matter to rest in New Yorks art community.

The second authenticity claim Mr. Martin discussed with NYCLAs ALC members was Lagrange v. Knoedler; Mr. Martin was cautious to limit his discussion to non-privileged information. (See our Knoedler Obituary). In this 2011 suit filed in the Southern District of New York, billionaire hedge fund manager Pierre Lagrange brought claims for breach of contract, fraud, and unjust enrichment against the then-venerable American gallery where he had purchased a work attributed to Jackson Pollock. According to the complaint, at the time of purchase, Knoedler told Mr. Lagrange that the Pollock catalogue raisonné was in the process of being updated, and would ultimately include the painting in question. However, several years after his purchase, Mr. Lagrange tried to consign the painting for auction, and two major auction houses rejected it on the basis that it was not included in the catalogue raisonné. Mr. Lagrange sought to rescind the Knoedler sale, alleging that there were in fact never any definitive plans to update the catalogue raisonné to include the painting in question, and that Knoedler had knowingly misrepresented these facts in order to sell him the work. Orion was retained to analyze the painting, and found at least three paints that were produced later than its purported 1950 date of execution. Apparently Knoedler shut its doors a day after receivingOrions report and the two sides subsequently reached a confidential settlement, while other cases brought against Knoedler are still pending.

This NYCLA meeting was a wonderful opportunity for members to learn more about the importance of scientific analysis in what Mr. Martin refers to as the “three-legged stool” model of authentication, where connoisseurship and provenance are supported by a third essential element: technical and scientific examination of physical substance. As the art market grows in complexity and commercial value, and questions of attribution become increasingly contentious and convoluted, authentication methodology will continue to evolve. It is likely that collectors and the attorneys who represent them will place more weight on this leg of the so-called stool, and Mr. Martins presentation was a welcome primer in that area.

Suggested Reading:

  • De Sole v. Knoedler Gallery, LLC, 974 F. Supp. 2d 274 (S.D.N.Y. 2013).
  • The Martin Hilti Family Trust v. Knoedler Gallery, LLC et al., 1:2013-cv-00657(S.D.N.Y. Jan 29, 2013).
  • White v. Freedman et al., 1:2013-cv-01193 (S.D.N.Y. Feb. 21, 2013).
  • David Mirvish Gallery Limited et al v. Knoedler Gallery, LLC, 1:2013-cv-01216 (S.D.N.Y. Feb. 22, 2013).
  • The Arthur Taubman Trust et al v. Knoedler Gallery, LLC et al., 1:2013-cv- 03011 (S.D.N.Y. May 3, 2013).
  • Rosenfeld v. Knoedler Gallery, 653030/2013 (Aug. 30, 2013).

About the author: Megan E. Noh, Esq. is the Assistant General Counsel of Bonhams and an active member of both the New York City Bar Association’s Art Law Committee and the New York County Lawyers’ Association.

Disclaimer: This and all articles are intended as general information, not legal advice, and offer no substitution for seeking representation.

Competing or Complementing: Art Loss Databases Proliferate

By Mia Tomijima*

Stolen art seems to be ubiquitous and difficult to track. It is relatively easy to ship and sell around the world, and can remain easily hidden for decades. The owner faces the conflict of wanting to publicize the loss widely, while also keeping their personal lives private. The development of databases to record losses was first preceded by newsletter alerts of stolen art that proliferated in the arts community to halt sales with questionable provenance. Next, the emergence of the Internet caused law enforcement agencies, international organizations, and private companies to establish online databases of stolen art. The increased organization and transparency created by these databases helps collectors and art professionals with due diligence searches for acquisitions, loans, and insurance, which ultimately helps ward off costly title disputes. However, a database is only as useful as the breadth, accuracy, and accessibility of information it contains. New technology and the market’s demand for other potential uses of art registries, such as for collection management, could push these databases to new, uncharted territories. The usual suspects for searches include: the Art Loss Registry, the FBI’s National Stolen Art File, and Interpol’s Database, among a few others. One new company that is pushing the boundaries is the ArtClaim Database.

On March 5, 2015, the ArtClaim Database (“ArtClaim”) had its U.S. launch party at the Hirschl & Adler Gallery in New York City. Members of the art, auction, insurance and legal communities arrived if not to learn about the new company than to support its founders on the new venture. After more than one year of strategizing, ArtClaim, owned and operated by the Art Recovery Group LTD, launched their new database in January 2015. Christopher A. Marinello, CEO of Art Recovery Group, along with several former employees of the Art Loss Register (“ALR”) established a competing company that could expand the concept of these databases to new areas beyond just thefts. According to Ariane Moser, Client Relations Director of Art Recovery Group, ArtClaim holds itself as the first private database created as an “all claims and all interests” database. This means that in addition to stolen art, the database contains information regarding art encumbered by financial liens, insurance claims, museum objects on loan, possible fakes and forgeries, and collections management, among other claims. The ArtClaim Database may also be used to register work directly from artists, which would help them to, for example, keep track of consignments with galleries or resale royalties. The ArtClaim Database joins a limited group of databases that record art ownership. The two best-known government-sponsored databases are aimed at assisting law enforcement to recover art or cultural artifacts that have been involved in thefts or looting are the one maintained by Interpol and the one maintained by the FBI. Interpol, the world’s largest international police organization, first started maintaining a database of stolen art from police reports in 1947. The database is accessible by law enforcement agencies, authorized private users, and, since 2009, the general public can access limited amounts of data, including the most recently reported works, recovered works, and recovered works that remain unclaimed. The FBI maintains a similar database of stolen art and cultural property, called the National Stolen Art File (“NSAF”). Entries into the NSAF are submitted by law enforcement in the U.S. and abroad, and the general public can access limited parts of the database, but not information related to ongoing investigations. Unlike other databases, the NSAF has some qualifications for entry, including that the object must be “uniquely identifiable and have historical or artistic significance,” must be worth at least $2,000 (or less if associated with a major crime), and the request for entry must come through law enforcement. Thus, the database is limited to only those reported to them, and excludes art that is not necessarily associated with crimes. Bonnie Magness-Gardiner, who manages the FBI’s art theft program, said to the NY Times that “It is not an absolutely complete database […] We get what they choose to send us.” When a work of art is recovered, it is removed from the database. Interpol’s and the FBI’s databases are unquestionably useful, but are limited by the finite resources of time and funding that often plagues government-run agencies.

To supplement and/or overcome the limitations of government funding, privately run databases have emerged as useful alternatives. Dominating this sphere is the Art Loss Register, the oldest and most-prominently established private art database. Started in 1976 by the non-profit IFAR (International Foundation for Art Research) as a “Stolen Art Alert” to deter international art theft and sales, the ALR formed a partnership with the organization and moved its headquarters to London in 1990. According to Julian Radcliffe, Chairman of the ALR, the database sets itself apart from others in the field via its exclusive collection of 25 years of data on art that is stolen, missing, lost, fake or forged. It offers registrations for art subsequent to loss or theft (at a cost of £15/ US$25 per item for 1-5 items; for 6 – 10 items: £12.50/ US$20 per; or for 11+ items: £10/ US$18 item). Reportedly, the ALR database currently holds about 435,000 objects. There is no public access to the data held and a single search may be performed at a cost of $95 or £60. Radcliffe notes that the company performs over 400,000 paid searches every year from auction houses, galleries, and other vetting organizations.

Incidentally, the Art Loss Register is developing new subsections for its database, including for the jewelry and watch trade, to add even more volume to their database. The company has conducted trials with emerging technology such as image recognition, but found it to be no more effective than the manual searches conducted by their trained art historians. Radcliffe states that image recognition, as it currently stands, may not catch the details of art being slightly altered and resold by thieves, or three-dimensional objects like the decorative arts. The ALR is a “managed database” with every search subject to an internal audit trail to avoid criminals from using their system to avoid being caught. ALR will issue due diligence certificates, which do not make guarantees of authenticity, but may provide some greater certainty as to a possible dispute over the artwork. While understandably protecting itself from liability as well as the private information of the art elite, the lack of transparency into the search process and what information is used and how that information is accessed and organized can raise some questions as the actual effectiveness of a due diligence search using ALR’s services. The company has received criticism over questionably ethical tactics used in demanding fees for leads, potential lack of cooperation with the authorities, and not to mention the fact that the company is partly owned by the auction houses that make primary use of its services. The company, unchallenged, remained persistent in its methods and was able to do so as the only private player to offer such level of services, at least until now.

As compared to these databases, ArtClaim is attempting to set itself apart by working with new forms of technology. Moser notes that the database was built completely from scratch with the most technologically advanced tools available in mind, using a modular system that is already fully developed but expandable for data processing that will continue to develop into the future. The database uses integrated high-definition image recognition software from a company called LTU Technologies, and has an intuitive user interface with over 500 different searchable data fields. The information contained within these searchable data fields are not accessible by the general public; since security and confidentiality is of an utmost importance, only internal employees can perform searches (just like ALR). Thus, while presumably using the latest technology will increase speed, efficiency, and accuracy of individual searches, it may be difficult to tell whether these uses of technology are actually more effective than previous methods.

What is the cost of ArtClaim’s services? Records of stolen or looted art are free to register on the ArtClaim Database. Registration of art for other claims, such as for lien recordings or collections management, is not free; the price tag is negotiable depending upon the total number of registrations and status of the requester (non-profit museum, auction house, or otherwise). A search of the database for due diligence purposes is permitted, however as noted earlier, users are expected to submit a search request to the company, whose staff performs the search. The ARTCLAIM issues a certificate if it finds that there is no disputed claim to the art as of the date of issue of the certificate. A single search costs £60 plus VAT (or US dollar equivalent), with multiple searches costing less per depending on the number and status of the requester. According to Moser, the ArtClaim Database has several hundred thousand records that are currently being digitized onto the system.

After registration within ArtClaim, a person can pursue recovery independently, or use the dispute resolution and recovery services offered by separate division Art Recovery International (“ARI”) for a fee. ARI is already working with law enforcement agencies around the world to investigate and recover works of art: it helped recover a Matisse painting taken from the Rosenberg Family during the Nazi occupation of France; identified several paintings including works by Marc Chagall and Diego Rivera stolen from a home in Encino, California; and recently recovered sculptures by Paul Manship and Paolo Troubetzkoy for the Hirschl & Adler Gallery from whom they were stolen over 32 years ago.

Finally, ArtClaim and other databases may overlap with databases that focus on art reportedly looted by the Nazis during World War II. For example, the Lost Art Database is run by the Koordierungsstelle Magdeburg, Germany’s central office for documenting lost cultural property, which was established to register cultural objects that were relocated, moved or seized as a result of Nazi dictatorship and persecution. Database of Art Objects at the Jeu de Paume is a database of searchable illustrations compiled by the ERR (Einsatzstab Reichsleiter Rosenberg) of more than 20,000 art objects taken from Jews in German-occupied France and Belgium. The general public can search this database by individual objects or by the owners from whom the object was taken. Another useful resource, the Central Registry of Information of Looted Cultural Property 1933-1945 is set up as a central repository of information on Nazi looting, including not only information on stolen objects, but also pending legal cases, laws, and reports on the fates of families. Working with the Oxford Centre for Hebrew and Jewish Studies, the database contains 25,000 artworks from over 12 countries, and is fully searchable by artist, owner, or provenance. The specificity in time and ownership from Nazi-looted art claims has lent itself well to the creation and maintenance of art loss databases, which will hopefully aid in due diligence searches and the recovery of art to their rightful owners or heirs.

In light of the fact that title disputes are expensive, time consuming, and oftentimes fraught with emotion, making sure that the art one is acquiring is not stolen is sound business advice as well as an ethical act. As with any piece of property, there is a great need to perform thorough due diligence prior to the purchase to check that the provenance is as claimed to be, and to protect stolen art from resale. Information about artworks that were stolen, lost, or looted is perennially valuable and should be widely accessible, however there are many barriers to the accessibility of this information, chief among them being cost and privacy. The availability of multiple databases with different tools, services, and information may create confusion for collectors and the art industry as to which database to use for their individual purposes and how to feasibly conduct a proper due diligence search. Greater competition in a marketplace generally drives the industry forward, with participants offering competitively priced services and greater innovation in order to stay relevant with their customers. The launch of the ArtClaim Database and formation of the Art Recovery Group are ambitious and risky, as well as promising, and time will tell whether they are what the art market needs.

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*About the Author: Mia Tomijima is a recent graduate of Brooklyn Law School, where she received a certificate in intellectual property and served as Chair of the Art Law Association. She received a bachelor’s degree in art history from UCLA, and has worked with museums, auction houses, and law firms on both coasts. Mia is a post-graduate fellow with Center for Art Law. 

The author would like to thank Ariane Moser and Julian Radcliffe for their time and input in this article.

Disclaimer: This article is intended as general information, not legal advice. Any opinions contained herein are of the author’s alone and are not an endorsement for a particular service.