UK Copyright Amendment Provokes Controversy in the Art and Design World

By Christopher Visentin*

Screen Shot 2015-07-16 at 9.59.46 AMThe British government has recently moved to repeal section 52 of the Copyright, Designs and Patents Act 1988 (the “CDPA”). Removing this section would increase the copyright duration for artistic designs—as opposed to traditional artistic works—from 25 years from the year the designs were first marketed, to the more common term of life of the author plus 70 years. In a report published February 18, 2015, the British government detailed provisions for implementing the change, set to take place April 6, 2020, and also published responses to comments made by those affected by the law. It seems, however, that the new arrangement has stirred up some controversy in the process.

As in the United States, the United Kingdom has long grappled with what copyright protection—if any—should be available for functional, yet arguably artistic, designs (see Brandir International, Inc. v. Cascade Pacific Lumber Co. for a famous U.S. treatment of a similar issue, involving the design of ribbon bike racks). Such artistic designs can be hard to define, but certain iconic mass-produced pieces, such as Arne Jacobsen’s “Egg Chair,” or Robin Day’s “Polypropylene Chair,” serve as examples of the types of works implicated in this change.

Egg (1958)

Arne Jacobsen, “Egg Chair” (1958).

In such cases, there is a tension between rewarding an individual the full copyright protection for his or her work, and the public’s desire to access functional designs and articles. S. 52 of the CDPA offered a solution in the U.K. by limiting copyright protection for artistic designs to 25 years.

  1. 52 effectively carved out an exception for artistic designs. Instead of the standard ‘life of the author plus 70 years’ term of copyright protection, mass-produced artistic designs would receive a shorter term of protection. More specifically, designs “derived from…artistic work[s]” that have been made by “industrial process” and subsequently marketed to the public would enjoy protection of only 25 years from the date the design was first manufactured.
  2. 52 thus separates designs derived from artistic works from both pure ‘artistic works’ and pure utilitarian designs. Under this scheme, the CDPA seems to conceptualize the work in question as an intermediate work between utilitarian design and art, deserving of likewise intermediate copyright protection.

Admittedly, some might find that the fine lines s. 52 draws over-simplify the breadth of creation in the art world. Take, for example, works like Ingo Maurer’s “Bulb,” a playful design of a lightbulb within a lightbulb, created in 1966 and part of the Museum of Modern Art’s collection. With s. 52 in place, Maurer’s design would perhaps only enjoy 25 years of copyright protection because of its functional design, and because it has been industrially manufactured and marketed. The functional elements would thus render the piece no longer protectable by copyright. Conversely, one might argue that Maurer should enjoy the full copyright term of his life plus 70 years for his creative expression. This distinction between types of artistic expression might seem unfair to some in the art world and beyond.

One argument against the repeal is that a limited copyright term would encourage artist-designers to create new designs, while also ensuring that the more practical, utilitarian benefits conferred by the designs would not be kept from the broader public for too long. After 25 years, others could lawfully create copies or other articles based on the previously protected design. Furthermore, the economic advantage that mass-produced artistic designs have over other artistic works may be great enough to justify limiting the benefits of an exclusive right of ownership to only 25 years. Presumably, the limited copyright period would balance the public interest in new, improved designs with the designers’ interest in profiting off of their mass-produced work.

Now, however, this exception for artistic design is set to disappear come April 6, 2020. With the repeal of s. 52, designers of artistic works would enjoy the same length of copyright protection as other artists, writers, and musicians. The British government moved to repeal s. 52, claiming  “to update and clarify UK legislation in line with EU law.” The change is an effort to adhere to an interpretation of the EU Design Directive (71/98/EC), promulgated by the European Court of Justice. By repealing s. 52, the British government’s protection will no longer provide a shorter term of protection than other member states for industrially manufactured artistic designs.

Extending the duration of copyright from 25 years to 70 years further distinguishes artistic designs from those designs that are not “artistic works,” and thus can only enjoy protection according to the UK Registered Designs Act 1949 (the “RDA”). Under s. 52, artistic designs that were industrially produced only enjoyed the same amount of protection as other designs governed by the RDA, which had separate registration requirements.

The extension of copyright protection provides additional incentive to artistic designers to create and mass produce new designs. Baroness Neville-Rolfe, Minister for Intellectual Property, says that the repeal is “an important step, to bring about the fair treatment of all types of artistic works and to reward those that innovate and inspire.” She further states, “[t]he innovative work of designers will have the appropriate copyright protection, whilst ensuring that UK-based businesses can adapt and thrive.”

Others affected by the change, by some reports, are less than enthusiastic. Repealing s. 52 would require manufacturing companies to pay licensing fees to rights holders long after the previous 25-year period in order to produce replicas. The change would also require permission and possible licensing fees to reproduce the images of designs in books and other publications, as well as restrict what new designers could do if they wanted to build off of an existing, protected design.

One of the most controversial aspects of the reform is that it will have retroactive effect. This means that some artistic designs whose 25-year copyright protection term has expired will once again be covered under the more expansive 70-year term, assuming it did not already expire. Those that have lawfully reproduced or otherwise used designs after the old 25-year term of copyright expired may not have to pay for their prior reproductions, but they will have to pay licensing fees for future use.

This retroactive effect may prove to be a particular burden on museums. Like many others, museums that have displayed and sold replicas of artistic designs whose 25 years of copyright have since expired may now have to pay licensing fees to continue to do so. These extra fees would introduce much higher costs to museums and could end up being entirely prohibitive.The impact of the statement for the repeal of s. 52 in the government report includes one museum’s estimate of a loss over £850,000 a year.

Beyond the licensing costs, however, museums and publishers will have to survey their collections, including an inventory of books and photographs published therein to ensure that the photographs and publications do not contain any newly protected copyright works. Even images depicting a protected work may end up infringing on the newly revived copyright. Needless to say, the cost of reassessing collections and catalogues will add to the burden.

Some argue that another side effect of the change may occur within the design industry itself. As Ivan Macquisten of the Antique Gazette notes, “some of the leading intellectual property specialists in the country have argued that [repealing s. 52] will have a chilling effect on new design, because young designers must ensure that they do not fall foul of the law when inspired by earlier designers.” Inspired designers seeking to build off of prior work will either need to secure permission from the original designer, or take care that any work that they do will not infringe on the extended copyright of the prior work.

Ultimately, there is a chance that this bolstered protection may slow down the output of new designs, as well as threaten the manufacture of current designs that are adaptations (or ‘derivative works’) of works that will regain or have extended copyright. Of course, the counter argument would be that any chilling effect the extended copyright may have might be mitigated by the increased protection due to the same designers when they create an original work.

Despite protests and appeals to lawmakers by members of the intellectual property community—including efforts by Professor Lionel Bently of Cambridge, joined by faculty members of the University of Oxford, King’s College, London, and Edinburgh University, to name a few—the House of Lords has approved the reform. Originally, the government sought a three-year transition period, but due to feedback from commenters, the three years has been increased to the current five-year period—ending April of 2020—in order to give those affected by the change more time to prepare. It seems that designers, museums, publishers, and onlookers alike will have to sit down and wait until then to determine the true outcome of the change.

Robin Day, “Polypropylene Chair.”

Robin Day’s “Polypropylene Chair” (1963).

Sources:

About the Author: Christopher Visentin is a rising third-year law student at Boston University, where he concentrates his studies on intellectual property law, art law, and law and literature. He is also pursuing a master’s degree in English literature at Boston University.

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

WYWH: “Managing Risk in Art Transactions” June 2015 (NYC)

By Debra S. Friedmann*

IMG_8413

In June, as part of a continued series of Art Law related events, the law firm of Herrick, Feinstein LLP hosted a morning panel-discussion entitled “Managing Risk in Art Transactions,” dedicated to consignment, authenticity and title risks. Panelists included Laura Patten, with Art Crime Program, FBI, Judy Pearson, President at ARIS Title, Annelien Bruins, Chief Operating Officer at the Tang Art Advisory, Stephen D. Brodie, Partner at Herrick, Feinstein, and Dina Friedman, from JP Morgan. Underscoring the inherent risks in any transaction involving valuable art, this panel addressed several preemptive steps people can take to  protect their assets and what signs to look out for when assessing the trustworthiness of a business partner, including art dealers, authenticators, advisors, etc

Laura Patten of the FBI Art Crime team took the lead in discussing risks that may arise from personal relationships in art transactions. Specifically, she offered some clues on how to recognize a con-artist. Using field information gathered from speaking to con-artists, Patten presented what was coined the “exploitation cycle.” These criminals, she explained, are calculating. They vet their victims, learn how to gain one’s trust and confidence, and then disappear once the crime has been executed. Patten warned that a key characteristic to be aware of in personal relationships is the point where the criminal tests the potential victim. It is at this juncture that the would be victim might notice suspicious or strange activity and should address those concerns immediately. Most likely, if the con-artist senses that he is being found out, he will disappear.

Several of the panelists discussed the dynamics of the art market and what features make art transactions particularly vulnerable to crime. Investment in art, as opposed to real estate for example, is unique because of the relatively  limited regulatory framework imposed on art sales. The only paperwork associated with the sale of artwork is provenance material, such as bills of sale, exhibition history, etc, but even then it is significantly limited if it does exists at all. Panelists agreed that this lack of record keeping may be a result of the “handshake culture,” which leaves ambiguity in the limitations of the agreement. For example, if a donor supplies a museum with several pieces from a private collection, tens of years down the line the heirs of the original donors may claim that the donation was temporary, to be returned upon the donor’s passing, while the museum may have understood the pieces to be gifts, now belonging to the museum. Without clear documentation to prove the details of the  initial agreement, the parties are likely to be stuck in a lengthy dispute.

Other difficulties identified by the speakers were matters of forgeries and authenticity. The wealth and art advisors on the panel reviewed several steps to take before making a purchase. For example, where a seller of a work of art offers limited  provenance accounts, it is necessary for the buyer to do extensive research instead of simply relying on the word and the reputation of the seller. It is possible that all information available is provided, but as the Tang advisor explained, many buyers fail to take even the preliminary steps before acquiring title insurance to protect themselves. Such steps include conducting research  about the history of a piece, looking at stolen art databases for the piece in question, and watching for regular market value. As the expression goes, if it is too good to be true, it probably is.

Stephen Brodie, partner at Herrick, Feinstein LLP addressed some of the other art related types of cases: art investments, inheritance issues as well as logistics in handling and storing art People buy art for any number of reasons, one of which is simply because it is an investment that is or has the potential to be worth a substantial amount of money. These investments can be the point of contention in cases involving trusts and estates, import export claims, and storage claims. Here too, the lack of regulation associated with works of art can often lead to ambiguity of ownership and criminal activity. Art assets can be used as collateral in transactions, some of these legal, others  not. Brodie explained that this is significant because the lack of regulation in this field and art related crimes spread to other popular areas of law, and are not just confined to stealing art or forgeries.

The take away from the June program is very simple. Just as there are many delights/joys for those engaged in art transactions, there are many risks as well. For oblivious buyers, the risks may outlast their thrill of acquisition. Thus to avoid having acute pangs of buyer’s remorse, risk awareness and assessment should be a part of the exercise.

The next Art Law event in the Herrick/The Art Newspaper partnership, is scheduled for September 30, 2015. Moderated by Jane Morris, editor of The Art Newspaper, the September program is entitled “Challenges of Loaning Works of Art” Panelists for the event will be announced shortly. Keep an eye on the Center for Art Law Calendar of Events for updated information.

Selected Resources:

  • Herrick, Feinstein LLP – Herrick, Feinstein is a leading firm with a prominent practices in art and cultural property law. It handle all types of art litigation and alternate forms of dispute resolution, and also actively represent and counsel clients in corporate and commercial art law matters. 
  • Art Title Protection Insurance (ATPI)The ARIS ATPI® policy is a title insurance policy structured to address the chain of title and lien risks inherent in art as a form of personal property. The ARIS policy insures against two risk categories: Art Provenance/Chain of Title Risks and “Classic” Title Risks such as Security interests and Creditor liens. A Spotlight on ARIS is available here
  • Federal Bureau of Investigation Art Theft ProgramThe FBI has a dedicated Art Crime Team of 15 special agents, supported by three special trial attorneys for prosecutions. It also runs the National Stolen Art File, a computerized index of reported stolen art and cultural properties for the use of law enforcement agencies across the world. 
  • Tang Art Advisory – Tang Art Advisory advises private and corporate collectors on buying, selling and managing their art assets. Services include: due diligence before the purchase; selling consultations; negotiates for clients and art management. 

About the Author: Debra Friedmann, Center for Art Law  Legal Intern (Summer 2015) is a rising second-year law student at the Georgetown University Law Center. She received a B.A. in History and Studio Art from Brandeis University. Debra may be reached at dsfriedmannATgmailDOTcom.

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.

I am not a Fan: Museums Acting and Reacting to Public Opinion

By Irina Tarsis, Esq.*

Magritte, "C’est ci ne pas un Pipe."

Magritte, “C’est ci ne pas un Pipe” (1929). On public view at LACMA (78.7).

Self-censorship by museums is a dangerous trend. In the July/August issue of The Art Newspaper, Maurice Davies, of the Museum Consultancy and senior research fellow in the Department of Management at King’s College London, explores several instances in recent history where museums worldwide engaged in self-censorship to the detriment of the public. On this humid summer day, we ask, shouldn’t museums leave self-censorship to artists and trigger-happy public? Museums focus so much of their attention on self-censorship, yet leave other areas of museum administration exposed. Self-assessment should occur across all aspects of museum administration, such as encouraging provenance research, decreasing disparity in staff compensation and developing best practices for borrowing and lending art works. Otherwise it seems that museums tend to fight tooth and nail over keeping contested art works in their collections, in efforts that are more costly than brainstorming creative solutions to attract visitors to the exhibition halls or address historical and social injustices.

Screen Shot 2015-07-10 at 2.25.02 PMWhereas Davies’ article focuses on self-censorship due to security fears, and controversial material that includes nudity, racial, or political representations, the recent public outcry against “Kimono Wednesdays” in front of the 1876 Claude Monet’s “La Japonaise/Camille Monet in Japanese Costume” at the Museum of Fine Art collection in Boston is but another instance where public outrage is misplaced as more important issues remain overlooked. What is truly shocking is that there are plenty of outrageous art-related displays that deserve the flagellation of the public. Somehow these manifestations do not encounter the same adamant resistance, leave little impact on museums, yet tend to be more offensive.

“In an episode that speaks volumes about cultural institutions, ethnic sensitivity, and the power of protest in the digital age, the Museum of Fine Arts is hastily pulling back on an event that protesters labeled a latter-day form of racist minstrelsy.” [From the editor: “Minstrelsy – a 19th century form of entertainment developed in the US that included musical, comic and variety acts performed by either white people in blackface or by black people.] Thus begins just one of dozens of articles, this by The Boston Globe staffer, Malcolm Gay, on the topic of the failed experiment at interactivity at the Boston Museum of Fine Arts (the “MFA”) involving a kimono dress-up in front of a Monet portrait.

The irony of the situation of course is that this very same Monet painting recently returned from an exhibit in Japan, entitled “Looking East: Western Artists and the Allure of Japan” where “historically accurate reproduction kimonos were made for visitors to try on.” Yet, a similar program at the progressive Massachusetts museum faced an exceedingly critical public reaction from concerned visitors and activists. The MFA chose to diffuse the controversy by canceling the dress-up element of the display instead of using this opportunity to tackle the misconceptions surrounding the idea of cultural appropriation.

Monet "La Japonaise (Camille Monet in Japanese Costume)" (1876). On View a MFA (56.147).

Monet “La Japonaise (Camille Monet in Japanese Costume)” (1876). On view at MFA (56.147).

The decision to scrap the benign kimono project is disturbing because museums are meant to be educational forums where different manifestations of creativity and creative types inform the public about the past and safeguard it for the future. It is universally accepted that artists frequently explore and borrow ideas and iconography from different cultures and other artists. Just as Eastern Art experimented with “Western” conventions of painting landscapes to show perspective and integrated Western dress into portraiture, artifacts of Asian, African, South American art and culture, including fans, kimonos, masks, patterns, ceramics, etc. were and continue being frequently incorporated themes in Western artworks, with varying success.

What was the intent of the MFA in allowing visitors to try a kimono? To offend? To discriminate? Unlikely. The Museum is open for free on Wednesday nights to be accommodating and inclusive. Making kimono available on Wednesday nights for photo-ops in front of a festive 19th century Impressionist painting was anything but racist. By allowing their visitors to don a replica kimono, the MFA probably wanted to capitalize on social media use in museums. Even the White House, lifted its ban of taking photos on the tours, arguably recognizing that the technology and the inexplicable need to snap pictures with one’s phone at every turn, on every tour and in every location, will happen whether they are banned or not.

The lesson learned from the MFA bungle, is perhaps what is fashionable is not always classy. Davies concludes his article with a suggestion that “museums could push at the edges of the law” and they should help address difficult contemporary events and social divides rather than shy away from this role. In instances such as the “Kimono Wednesdays”, we counsel museums to be more discriminating in handling public reactions. On the house.

Select Sources:

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

Book Review: “Visual Arts and the Law: A Handbook for Professionals” (2013)

By Irina Tarsis, Esq.*

“I want to do something splendid…

I think I shall write books.”

Louisa May Alcott

Historically, introducing art law to lawyers and artists, not to mention law and non-law students, used to be a challenge. The majority of artists and lawyers were perplexed by the idea of ‘art law,’ now an accepted practice area that touches upon private as well as public law, national and international art business, and art making. Therefore, a handful of attorneys have grappled with the task of composing textbooks, which would serve as suitable introduction to the discipline.

Screen Shot 2015-07-10 at 5.28.23 PMThe 2013 offering from the former chair of the Entertainment, Arts & Sports Law Section of the New York State Bar Association, Judith B. Prowda, who is a Senior Lecturer at Sotheby’s Institute of Art teaching Art Law and Ethics, is an excellent teaching tool to present information about artists’ rights and art market relationships in a clear and engaging tone. Her “Visual Arts and the Law: A Handbook for Professionals” (the “Handbook”) is a comprehensible if not comprehensive primer for the uninitiated. It is part of the Handbooks in International Art Business series. Like an art history work, the Handbook is peppered with the familiar names of Calder, Monet, Schiele, and Serra. Like a law textbook, it is devoid of art reproductions. The only visual decoration that the publisher allowed in this text are the three symbolic images on the cover — Portrait of a Lawyer (1866) by Paul Cezanne, Tilted Arc (1981) by Richard Serra, and Egon Schiele’s Portrait of Wally (1912). The lack of illustrations is regrettable because an art law textbook, unlike other legal publications, stands to benefit from having reproductions of the works that have shaped and given rise to the discipline. The images used for the cover merely scratch the surface of the wealth of imagery that imbues the art law discipline. Luckily, the attorney who authored this Handbook succeeded in penning a clear bird’s-eye view of the discipline.

In the Handbook, Prowda synthesizes information about the basics of copyright and focuses on issues affecting visual arts, such as moral rights, commissions, auctions, expert opinions and title disputes. Consequently, this publication is best suited for artists, students in art and business management, appraisers and gallery employees as well as members of the general public that wish to learn about different aspects of art market as it is affected by the law. The target audience probably excludes those training for legal practice and the active members of the legal bar who already represent artists and galleries as their clients.

As a self-imposed objective, Prowda wished to “give her reader some “context and insights into the most salient legal issues of the day affecting art.” Therefore she organized the materials in the order of what happens with visual artworks from creation to sale in the primary market and again in secondary market. The structure of each section offers historical foundation and recent manifestations of specific legal issues associated with appraisal, authentication, theft, and auctions.

The Handbook is divided into three sections: 1) Artists’ Rights; 2) Artists’ Relationships; and 3) Commercial Aspects of Art, with twelve chapters unevenly split between these topics.  Contemplated as “a tour d’horizon of the complex questions raised in the field of art law,” with some attention given to the law in different countries — U.K., France, Germany as well as the U.S., in her preface Prowda acknowledges that she is covering the material through a U.S.-trained lawyer’s lens as well as looking at limited number of topics. Prowda revisits many classic legal examples: what is art according to Brancusi v. United States (U.S. 1928), and what is copyrightable per Burrow-Giles Lithographic Co. v. Sarony (U.S. 1884). The narrative is easy to follow and it flows well from one example and concept to another. The Handbook tackles the big picture and glosses over nuances and gray areas that emerge in numerous related transactions and disputes.   

First section explores Artist’s Rights, namely freedom of expression, including historical overview of obscenity law, right of privacy and publicity, principles of copyright, including its duration, requirements, exclusive rights, infringements, defenses and spends some time discussing fair use exception, including a brief mention of the recent 2nd Circuit fair use case Cariou v. Prince. Here, Prowda spends considerable time exploring moral rights in Europe, the U.K. and the U.S., dating back to France in the 19th century and moving forward to the 1990 enactment of the Visual Artists Rights Act in the United States, and the case law that emerged subsequently. Repeatedly, the Handbook follows a formula of introducing a concept and explaining its origins, past applications and the current state of applicability. Thus, readers who are interested in limited moral rights in the United States or the variety of fair use cases decided by courts in different jurisdictions would need to go beyond the distilled information offered in the Handbook to learn more about the VARA cases, such as Mass MOCA v. Buchel or the different circuits’ applications of the fair use exception to copyright infringement claims.

Second section of the Handbook is dedicated to the artist’s relationships with dealers, collectors and art commissioners. Here, Prowda focuses on fiduciary duties owed to artists and their heirs; she explains relevant sections of the New York Arts and Cultural Affairs Law that deals with consignment of art for sale. Rarity of written contracts and pitfalls of oral contracts are featured prominently in discussion of disputes related to Georgia O’Keeffe or the Estate of Jean-Michel Basquiat. This section certainly would have benefited from offering guidelines for working with attorneys and advisors as well as grant-giving agencies such as the New York Department for Cultural Affairs, which administer public commission. As is, the section is brief and is best summarized as following: due to fact specific and unique relationships between each artist and her dealer or the art commissioner, each negotiation and partnership needs to be carefully reviewed and monitored throughout the relationship.

Third section moves away from the creative process to explore the commercial side of art disposition through the secondary market, collection development, art theft and issues of authenticity. It explores questions surrounding legal title and includes a discussion of good faith purchases of art works. Author underscores the importance of clear and corroborated provenance, duties of different parties involved in art transactions, obligations and rights of creditors, an array of warranties that may accompany change of ownership and technical defenses to combining ownership of art with legal title.

In her treatment of auction houses, Prowda lists various services and duties auctions have to their clients and then she focuses on the seminal 1986 Cristallina v. Christie’s decision that “resulted in significant changes in auction laws and redefined auction practice in New York.” In that case, the auction house was accused of fraudulent misrepresentation in violation of its fiduciary duty to the consigner by failing to assess market conditions. The third section is also used as a vehicle to discuss the antitrust price-fixing scandal that embroiled both leading auction houses in the early 1990s. Prowda briefly introduces the main players and the circumstances of the Sherman Act violations.

The second-to-last chapter of this section explores briefly the subject of expert opinions as they pertain to art appraisal and authentication. In light of the recent legal actions brought against art experts, this section is of great importance to those engaged in creating catalogue raisonnés and labeling art as fakes or forgeries. Prowda explains fiduciary duties owed by experts and explains risks and legal liabilities that may attach to actions of authenticators and appraiser. This section includes discussion of the main legal cases involving opinions on art and its value, including but not limited to the 1929 Hahn v. Duveen decision, as well as Ravenna v. Christie’s (2001) and Double Denied, an antitrust case against the Andy Warhol Foundation decided in 2009.

Finally, the Handbook tackles the temporally, geographically and emotionally-complicated questions regarding title problems related to stolen art, with emphasis on war plunder and Nazi-era looted art. Given the vast body of cases and alternative dispute resolution mechanisms dedicated to solving issues related to Nazi-era looted art, the treatment of this subject in the Handbook merely scratches the surface of the questions and outcomes related to art restitution claims. Prowda chooses to focus on three cases as main illustrations of related issues, specifically U.S. v. Portrait of Wally which was ultimately settled in 2010 for $19 million, Guggenheim Foundation v. Lubel (NY, 1991) and Bakalar v. Vavra (2nd Cir. 2010). However, other important trends affecting the art displaced during the Nazi-period are excluded. For example, the late 1990s and early 2000s case sequence involving American art museums proactively seeking to quiet title through declaratory judgments aimed at keeping possession of once-looted artworks is omitted entirely, as is the discussion of the numerous foreign advisory commissions that review restitution claims brought against public institutions by heirs in France, England, Germany, Austria and so on.

The Handbook ends with an admission that in the 21st century, there are ongoing and profound changes in the production and consumption of art and thus the legal system is continuously tested. The author admits she wanted her readers “to situate themselves within [law, art and commerce] discourse.” She certainly succeeds in giving a long view on perennial important topics even as case law and legislation continue offering new examples and challenges.

Art law is a growing and developing practice area and by definition textbooks and handbooks tend to become outdated as soon as they are submitted to print because of the subsequent developments. This Handbook is no exception. While Prowda talks about Nazi-era looted art, as well as authentication issues such as the threat of litigation that affect authentication boards and commissions, there is understandably no reference to the Gurlitt art trove which was made public in 2013 nor the infamous demise of the Knoedler Gallery in 2011, formerly the oldest art gallery in the United States that was found out as selling forgeries. The first of almost a dozen claims for breach of warranty and negligent misrepresentation against the gallery, its owners and staff were filed as early as 2011; however, the reverberating effect of the downfall was not fully felt until much later. Other materials missing from the Handbook include laws governing the antiquities trade, and questions dealing with import/export of art containing ivory and other problematic materials.

The Handbook would have been more authoritative and easy to use for the legal community if the references and citations were not relegated to endnotes at the end of the volume but appeared at the bottom of the page as footnotes or at least following each chapter. Nevertheless, the Handbook intends to situate its users or reader within various art law related discourse and it accomplishes that task very well. Whether the book inspires students to become art lawyers and thus dive into the specific issues more deeply remains to be seen.

Prowda supplements her writing with a brief bibliography which reads as a “Who is who in Art and Law.” All the usual suspects are represented: Leonard D. DuBoff, Patty Gerstenblith, John Henry Merryman, David Nimmer, Pierre Leval, Judith Bresler, as well as Michael Bazyler, Lawrence M. Kaye and Ronald D. Spencer. Again, just like the Handbook itself, the bibliography offers a sound but basic set of tools. For non-lawyers, the glossary of legal terms is a non-exhaustive list of terms that may or may not need explanation. It includes Latin phrases (e.g., caveat emptor and lex loci), substantive terms (e.g., subpoena and contract), relationships (e.g., fiduciary and agency), causes of action and rights. The concept of due diligence is explained here but good faith purchase is not.

The writer of this review would argue that the subtitle “ Handbook for Professionals” is a confusing description of the text contained within. Perhaps it is the formula imposed by the publisher, however, unlike the guide for collectors, investors, dealers and artists co-authored by Judith Bresler and Ralph E. Lerner, a two-volume $200+ opus akin to Nimmer on Copyright, or Law, Ethics and the Visual Arts volume by John Henry Merryman et all, Prowda’s textbook is a general introduction/a primer for newcomers. It does not bore those lacking the technical training or stamina to work through legal analysis and exhaustively shepardized citations, rather it is a carefully composed teaching tool that ushers its reader at a comfortable pace through fascinating and varied legal history. Professionals would need to dig deeper into each subject; however, given the paucity of affordable basic textbooks for students learning about art law, this volume is an excellent option for any art law professor seeking to introduce countless areas for study and further exploration. Perhaps it should have been titled “A Handbook for Future Professionals.” The Handbook may be coupled with select case decisions and legislative material for an effective introduction to the fascinating field that concerns art, art history and law.

Prowda’s Handbook is a tool designed to further adoption and acceptance of art law, and given its modest price in comparison with other art law publications, it is a worthy addition to any mentor or art law instructor’s reference library. It is a solid stepping-stone to further popularizing the art law discipline.

Cited Cases:

  • Bakalar v. Vavra, 619 F.3d 136 (2d Cir. 2010).
  • Brancusi v. United States, 54 Treas. Dec. 428 (1928).
  • Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 4 S. Ct. 279, 28 L. Ed. 349 (1884).
  • Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013).
  • Cristallina v. Christie’s, 117 A.D.2d 284, 502 N.Y.S.2d 165 (App. Div. 1986).
  • Guggenheim Found. v. Lubell, 77 N.Y.2d 311, 567 N.Y.S.2d 623, 569 N.E.2d 426 (1991).
  • Hahn v. Duveen, 234 N.Y.S. 185, 133 Misc. 871, 133 Misc. Rep. 871 (1929).
  • Lagrange et al v. Knoedler Gallery, LLC et al, 1:2011cv08757 (S.D.N.Y. Dec. 1, 2011).
  • MA MUSEUM, CONTEMP. ART FOUN. v. Buchel, 593 F.3d 38 (1st Cir. 2010).
  • Ravenna v. Christie’s Inc., 289 A.D.2d 15, 734 N.Y.S.2d 21 (App. Div. 2001).
  • Serra v. US General Services Admin., 847 F.2d 1045 (2d Cir. 1988).
  • Simon-Whelan v. Andy Warhol Found. for the Visual Arts, Inc., 2009 W.L. 1457177 (2009).
  • US v. Portrait of Wally, 105 F. Supp. 2d 288 (S.D.N.Y. 2000).

About the Author: Irina Tarsis, Esq., specializes in art law, provenance research and cultural heritage law. She may be reached at itsartlaw@gmail.com.

Disclaimer: This article presents general information and is not intended as legal advice.

Reprinted with permission from: Entertainment, Arts and Sports Law Journal, Spring 2015, Vol. 26, No. 1, published by the New York State Bar Association, Albany, NY.

The Statute of Limitations Invoked to Dismiss Copyright Claims (Source: NYSBA EASL Blog)

Joel L. Hecker, counsel for Gideon Lewin, in the ongoing case of Gideon Lewin v. The Richard Avedon Foundation (2015) offers some comments on the the case that invoked statute of limitations in a copyright claim
Following, is an excerpt from the Hecker’s article:
“On June 26, 2015, a decision of interest concerning the application of the statute of limitations and work made for hire doctrine in connection with copyright litigation was issued in the Southern District of New York. The case is Gideon Lewin vs. The Richard Avedon Foundation, docket No. 11-cv-8767 (KMW) (FM). The court dismissed the The Richard Avedon Foundation’s (the Foundation) affirmative claims that photographs created by Lewin while he was acting as studio manager for Richard Avedon between 1965 and 1980 were works made for hire, since it waited too long to raise the defense. However, the work made for hire argument, ruled the court, is still available as an affirmative defense to Lewin’s suit for declaratory judgment that he owns such copyrights.”

Full text available here.

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

Let’s do it again but better? Pros and Cons of Renewing the US-Italy Cultural Property MOU

by Tess Bonoli*

CPAC collage

Since January 19, 2001, the Memorandum of Understanding (MOU) between the United States and Italy has offered an added layer of protection to Italy’s cultural heritage. It was designed to regulate imports of  pre-Classical, Classical, and Imperial Roman period cultural artifacts in the United States. The MOU is in response to a request from the Italian government, pursuant to Article 9 of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (the Convention). The Convention’s implementing legislation, the Convention on Cultural Property Implementation Act (CPIA), came into effect in 1983. Article 9 of the Convention empowers any State Party whose cultural patrimony is in jeopardy to call upon other State Parties who are affected to assist with curbing the illicit traffic. These bilateral agreements last five years, and may be renewed an indefinite number of times, following a petition and a review of the bilateral commitments. On February 26, 2015, the U.S. State Department announced that Italy had requested a third renewal of the MOU; this request is currently under review – with competing interests advocating for and against another term.

“Italy is blessed with a rich cultural legacy and therefore cursed to suffer the pillaging of important cultural artifacts,” stated John R. Phillips, American ambassador to Italy. The current MOU requires that the U.S. and Italy both contribute their resources to work toward the shared goal of preserving invaluable objects of cultural and historical importance. The U.S. is responsible for restricting importation of materials on the Designated List (including categories of stone, metal, ceramic and glass artifacts, and wall paintings); upon the recovery of such materials, returning them to Italy; and providing public notice of the items on the Designated List. In turn, the Italian government is obligated to increase scientific research; guard archaeological sites that are known to be at risk from looters; develop Italian tax incentives for private support of legitimate excavations; institute more severe penalties for looters; regulate the use of metal detectors; provide ongoing training for the Italy’s national military police, the Caribinieri, etc. In 2010, Italy also agreed to facilitate U.S. access to its art and artifacts through long-term loans, permitting scientific analysis of those materials, by encouraging American museums and universities to participate in Italian excavations, and by promoting exchange and study abroad programs. Both countries further agreed to launch joint efforts to strengthen cooperation from other Mediterranean nations, publicize the terms of the MOU, and examine more ways to facilitate the legitimate export of items sold within Italy.

Since its inception, the MOU has guided the successful recovery and return of statues, sculptures, architectural fragments, weapons and armor, vessels, coins, wall paintings, and inscriptions. In May 2015, U.S. Ambassador Phillips generalized that the joint efforts of American agents and Italian investigators had “borne fruit in returning some important artifacts to their rightful home in Italy.”

Noteworthy returns that occurred in 2014 and 2015 have included objects recovered from American museums, auction houses, galleries, private collections and universities. For example, Giovanni Battista Tiepolo’s painting, “The Holy Trinity Appearing to Saint Clement,” was stolen from a private home in Turin in 1982 and discovered in a Christie’s online catalogue in January 2014. An Etruscan bronze statuette of Hercules, stolen from a museum in Pesaro in 1964 was recovered from a New York City gallery in October 2014. Pompeian frescos and a dog-shaped askos, looted from Pompeii in 1957, were recovered from a San Diego warehouse in February 2015. An Etruscan black figure vase with dolphins was seized from the Toledo Museum of Art, after it was revealed that antiquities dealer Giacomo Medici presented false provenance documentation to the museum. The Minneapolis Institute of Arts acquired an Attic red-figure vase from Medici, which was recovered after U.S. authorities learned of its falsified provenance. Three rare 17th century books, which were stolen from the National Historical Library of Agriculture in Rome and distributed among a private collector and Johns Hopkins University, were seized and returned to Italy. A second century sarcophagus lid depicting a sleeping Ariadne was recovered from a New York gallery and returned in 2015. Interpol, the International Criminal Police Organization,“estimates that the stolen art and cultural property market produces more than $9 billion in profits each year, and it’s the fourth most profitable black market trade after human trafficking, narcotics and weapons.”

Despite the undeniable success achieved by the MOU’s joint efforts, another five-year renewal is not guaranteed. On April 8, 2015, the U.S. State Department Cultural Property Advisory Committee (CPAC) met in open session (full list of attendees and CPAC members is available here) to discuss the renewal of the Italian MOU, with Patty Gerstenblith presiding. Peter Tompa, one of the presenters before the CPAC, speaking on behalf of the International Association of Professional Numismatists and the Professional Numismatists Guild argued against the renewal; he explained “import restrictions were never meant to be permanent. Rather, they were aimed at cutting market demand to allow time for a source country to get its own house in order.” Moreover, others doubted the practicality of returning such artifacts to Italy. Sue McGovern-Huffman, of the Association of Dealers and Collectors of Ancient and Ethnographic Art, asserted that “restrictions have been detrimental to collecting.  Over time, this will negatively impact museums that benefit from donations from collectors.  Import restrictions disadvantage American collectors versus those in the EU.” While McGovern-Huffman fully supports the MOU’s goal of preventing the illegal removal of cultural objects from Italy, addressing the CPAC she emphasized the vital role that U.S. art collectors and museums have played in the preservation and study of artifacts. She also cautioned that the current MOU severely inhibits the ability of private collectors in the U.S. to aid in such preservation and suggests that less restrictive means can be employed to achieve the goal of protecting Italian artifacts, without leaving U.S. collectors and museums at a disadvantage. Others echoes McGovern-Huffman’s concerns, and warned that the MOU’s rigid restrictions would “destroy the historically close relationship between advanced collectors and museums and inevitably impact donations of coins to numismatic institutions…likely to result in a drastic reduction in numismatic scholarship.” The Designated List, as McGovern-Huffman noted, includes common archaeological objects that “possess no special or rare features” and, because such items are so prevalent, they “cannot be realistically deemed of specific cultural, historical or scientific importance to the republic of Italy.”

In addition, concerns have been raised about whether the Italian government has been fulfilling its responsibilities under the MOU. According to Tompa, “in prior MOUs, Italy pledged to consider ways to make it easier to secure export certificates for archaeological objects legitimately sold within Italy itself. Unfortunately, nothing has been done to keep this promise, and, if anything it has become more difficult to procure them.” Attorney, Stephen Knerly, representing the Association of Art Museum Directors, stated “Italy has not lived up to its promises in the MOU to provide long-term loans. The only museums to get long-term loans are those that receive them as a quid pro quo for repatriation of artifacts.” Knerly emphasized that, even when U.S. museums do receive artifact loans, they are personally responsible for the expensive courier and insurance fees, as “Italy will not accept US State Department guarantees of indemnity and requires American museums to purchase insurance from Italian companies.”

Despite these concerns, supporters of the renewal, including Ann Stock, the U.S. Assistant Secretary for Educational and Cultural Affairs, explained that the MOU was necessary to combat an ongoing struggle and that “[t]he cultural heritage of Italy continues to be in jeopardy from pillage of archaeological material.” Professors Jane DeRose Evans, Alex Barker and Carla Antonaccio, all give the MOU unqualified support. Barker, whose university collaborates with programs at Rome’s Capitoline Museum, insisted that all legal requirements on Italy’s behalf have been met for a renewal of the MOU. Antonaccio explained that Italy was doing the best it can, despite a severe budgetary crisis. Finally, addressing the arguments raised by the numismatic collectors, Evans indicate that “locals and collectors and dealers should be educated to discourage looting. Even common coins have value.”

As the U.S. and Italy plan to decide on the fate of the renewal of the MOU by January 2016, these two nations will need to balance their individual concerns, regarding the conservation of their resources and their own access to the artifacts, with the overarching need to find the most effective means to facilitate the preservation of cultural objects and dissemination of knowledge. The U.S. and Italy may find that their solution is to amend the MOU prior to renewing it, as the parties did with first renewal in 2006 and the second renewal in 2011. Reducing import restrictions on coins, mandating a certain volume of annual artifact loans to U.S. museums and educational institutions, and removing particularly prevalent, nondescript items from the Designated List are all amendments that would quell U.S. concerns while continuing to aid the Italian government in protecting its cultural objects.

Since the adoption of the CPIA 32 years ago, 15 nations have reached MOUs with the United States, including Belize, Bolivia, Bulgaria, Cambodia, China, Colombia, Cyprus, El Salvador, Greece, Guatemala, Honduras, Italy, Mali, Nicaragua, and Peru. Consequently, collectors of antiquities in the U.S. have felt their opportunities shrinking as protections increase and restrictions mount; however, these MOUs has proven themselves to be a meaningful mechanism for safeguarding the world’s cultural patrimony.

Selected Sources:

About the Author: Tess Bonoli is a rising third-year law student at Brooklyn Law School. She received a B.A. in Classics, Latin, and Italian from Tufts University. She may be reached at tessbonoli@gmail.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.

Hold your Horses: Art Authenticators Not Protected Yet

By Irina Tarsis, Esq.*

Screen Shot 2015-06-01 at 3.01.42 PMOn June 15, 2015, New York State Senate passed a revised version of the Bill S01229A intended to amend the New York Arts and Cultural Affairs Law  by adding a provision intended to encourage art historians to offer their opinions concerning authenticity, attribution and authorship of works of fine art.

The proposed amendment is intended to protect art authenticators in the visual arts community from the risk of civil action suits. Why is this group in need of special protection? It is because the risk is real: those who opine on authenticity of artworks are increasingly threatened with legal action by the outraged/indignant collectors whose dreams of owning (and selling a masterwork) are dashed by the professional and expert opinions of authenticators.

Screen shot 2015-07-01 at 10.19.32 AMWe and others have reported on the plight of art authentication committees previously and together we are waiting to see our Google Alerts announce the passage of the New York State proposed law that would grant protection to the authenticators. This Bill has been in the works for years, a more robust version having been introduced without success back in 2013. Despite all the anticipation, as of July 1, 2015 the law has not passed yet, though some headlines have been suggesting or hinting otherwise. See for example “Art Authenticators Harassed by Lawsuits and Death Threats Get New Legal Protection” and “New York Senate Passes Bill to Protect Art Authenticators.”

Having some version of the Bill pass the New York Senate is a promising first step, but the battle is far from over. The New York Assembly has to vote in favor of the Bill as well. As of June 26, 2015, the first half of the 2015-2016 Session of the New York State Legislature is in recess. It is unclear at this time why the amendment was not brought up for a vote in the Assembly between the 15th of June and the 26th of June last month. However, unless the Speaker of the New York State Assembly, Carl E. Heastie, calls for a special session, the New York Assembly members will not return to vote on any of the pending bills until sometime in 2016. While the Assembly version of the Bill, A01018A, will not need to be reintroduced at that time (the Bill number remains unchanged for the entire two-year cycle), the Bill sponsors will have to bring it for a vote. If and when the Bill passes both houses, it will be presented to the Governor, Andrew Mark Cuomo, to either sign or reject. In the case of latter, sponsors of the Bill would need to go through yet another round of edits, introductions, lobbying, etc., etc.

The earliest the current Bill could be enacted in New York, if it is approved in the 2015-2016 Session and promptly endorsed by the Governor, is “the sixtieth day after it shall have become a law.” Then and only then, will “all [good faith] opinions as to the authenticity, attribution or authorship of a work of fine art provided to someone other than the authenticator” will be afforded protections “to ensure that only valid, verifiable claims against authenticators are allowed to proceed in civil court.” (See the full text of the proposed bill for details.)

Indeed, the law is anticipated to have an extraterritorial reach for art authenticators. For example, individuals outside of New York State would be able to contract for New York State law to govern any disputes arising from the agreement to review authenticity of an artwork. However, for now, and until January 2016, there is no change in circumstances and art authenticators remain exposed to litigation and to the ire of art holders seeking affirmation that they struck gold and not pyrite.

* * *

The full text of the proposed bill is available here. Following are some of the sections from the Bill (with our editorial underlining) and excerpts from the Legislative Memo justifying the passage of the law:

Act to Amend New York Arts & Cultural Affairs Law:

IN ANY CIVIL ACTION BROUGHT AGAINST AN AUTHENTICATOR, … , THAT ARISES FROM OR RELATES TO THE AUTHENICATOR’S [SIC] OPINION OR INFORMATION CONCERNING A VISUAL ART MULTIPLE OR WORK OF FINE ART, THE CLAIMANT SHALL SPECIFY WITH PARTICULARITY IN THE COMPLAINT FACTS SUFFICIENT TO SUPPORT EACH ELEMENT OF THE CLAIM OR CLAIMS ASSERTED. (NY Arts and Cultural Affairs Law Section 15.12).

IN ANY CIVIL ACTION BROUGHT AGAINST AN AUTHENTICATOR … THAT ARISES FROM OR RELATES TO THE AUTHENTICATOR’S OPINION OR INFORMATION CONCERNING A VISUAL ART MULTIPLE OR WORK OF FINE ART, THE COURT MAY ALLOW THE PREVAILING AUTHENTICATOR THE COSTS OF THE ACTION TOGETHER WITH REASONABLE ATTORNEYS’ AND EXPERT WITNESSES’ FEES, PROVIDED, HOWEVER, THAT NO SUCH COSTS OR FEES SHALL BE MADE PURSUANT TO THIS SECTION EXCEPT UPON A WRITTEN FINDING OF GOOD AND JUST CAUSE, WHICH SHALL SPECIFY THE GROUNDS THEREOF. (NY Arts and Cultural Affairs Law Sec. 15.15 (4)B).

Justification:

In general, artwork is authenticated by a trained person through documentation, stylistic inquiry, and/or scientific verification. No one method is perfect as oftentimes authenticity is difficult to determine. While each authentication method has its own drawbacks, the role of authenticators as drivers of the art market cannot be overstated. Art authenticators reduce the risk of counterfeits and imitations flooding the art market that could potentially devalue the work of millions of artists.

In recent years, the work of authenticators has come under pressure from meritless lawsuits against those who render opinions in good faith. Such defense of expensive and frivolous lawsuits have left many in the industry reluctant to lend their expertise in authenticating art works.

Select Sources:

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

WYWH: Review of “Murder to Museums: Recent Cases and Ethical Considerations in Nazi Looted Art”

By Debra S. Friedmann*

On June 17, 2015, the New York County Lawyer’s Association (the “NYCLA”) hosted an event entitled “Murder to Museums: Recent Cases and Ethical Considerations in Nazi Looted Art,” with remarks by Raymond Dowd from Dunnington Bartholow & Miller LLP, and introduced by the Honorable Barbara Jaffe, acting justice in the New York State Supreme Court. Dowd is one of the program chairs of the Art Litigation and Dispute Resolution Practice Institute, scheduled to hold its 8th annual conference in November 2015.

La-Bergere

“La Bergere rentrant des moutons/Shepherdess Bringing in Sheep” (1886) Camille Pissarro

Dowd, who has represented numerous claimants with title dispute cases in U.S. courts, introduced the topic for the evening with a few examples of ongoing restitution cases, including the recent effort to return Camille Pissarro’s painting, “La Bergère Rentrent des Moutons,” from the University of Oklahoma. The concept of art restitution, Dowd explained, began with the Lieber Code, also known as Executive Order 100, ordered by President Lincoln in 1863 and later included in the Hague conventions in 1899 and 1907. The code sought to protect classical works of art and libraries and banned the sale or donation of art removed from enemy nations.

Recent movies such as “The Monuments Men” (2014) and “Woman in Gold” (2015) brought Nazi art restitution to the forefront of art and legal discussions, begging the question, how did the Nazis take possession of art collections that belonged to Jews? Dowd explained that the Nazi regime demanded regular declarations of property from Jews and systematically transferred ownership of all Jewish assets by forcing Jews to relinquish power of attorney to an assigned “Aryan trustee.” This Nazi system that funded their war efforts appears to abide by the law. Dowd suggested that the legal appearance of these sham transactions with blocked bank accounts has confused historians and judges alike when trying to decide if a piece of art was sold fairly or forcibly.

With so many stolen works scattered in museums around the world, Dowd questioned whether museums are doing enough to investigate their holdings and return the looted work to their rightful owners. Though the U.S. State Department has regularly shown support for Nazi restitution, the U.S. federal court system has nevertheless rejected many of these claims, and in some circumstances, ruled in favor of museums that have sued the Jewish heirs for extortion.

Dowd introduced some of the hurdles, such as laches (the undue delay in obtaining relief), statute of limitations, and the claim that the sales were voluntary, that he has incurred in his own work representing heirs of Holocaust survivors. In Dowd’s case In re Flamenbaum, the rejection of the laches argument to bar the return of a third century golden tablet belonging to the Temple of Ishtar was instrumental as support for other cases that similarly would need to argue against laches. This subject was particularly timely in light of the recent Cassirer v. Spain appellate decision against Claude Cassirer, heir to Lilly Cassirer who was forced to give up Camille Pissarro’s “Rue Saint-Honoré, Après-midi, Effet de Pluie” while fleeing from Nazi Germany. Recognizing national sovereignty, the court ruled that Spanish law rather than California law applied to  the case because, though the plaintiffs had a significant connection to California, the painting did not. According to Spanish law, if one possesses property in an obvious way for a certain period of time, ownership transfers to that individual.  Therefore, since the doctrine of adverse possession applied in this case, it did not matter that the painting in question was looted by the Nazis.

Screen Shot 2015-06-29 at 5.17.41 PM

“Seated Woman With Bent Left Leg” (1917) Egon Schiele

Dowd warned the audience that it is important to look skeptically at provenance research associated with works of art. As an example, Dowd discussed the case Bakalar v. Vavra, where he established that Franz (Fritz) Grunbaum, who owned a sizable collection of Egon Schiele works, was murdered in Dachau. Sotheby’s claimed in the listed provenance for the drawing by Egon Schiele, “Seated Woman With Bent Left Leg” (1917), that it was passed down to the widow and heirs and then sold voluntarily, when in reality no such transactions took place.

Dowd concluded that museums are not doing enough to research their collections and return stolen works, noting that if there is a theft in a transaction, the transactions that follow are irrelevant. Museums such as the Museum of Modern Art, the Toledo Museum of Art, the Detroit Museum of Art, the Museum of Fine Arts in Boston, and the Guggenheim Museum, are still fighting and rejecting charges of looted Nazi art, refusing to return the works.

The CLE lecture, which drew an audience of approximately thirty people, ended with questions on what museums should do in response to claims of looted art and suggestions for what advocates can do to rectify the suppression of Nazi looted art claims.

Select Cases:

  • Bakalar v. Vavra, 619 F.3d 136, 2010 WL 3435375 (2d Cir. Sept 2, 2010)
  • Cassirer v. Kingdom of Spain, 616 F.3d 1019 (9th Cir. August 12, 2010)
  • De Csepel v. Republic of Hungary, 714 F.3d 591 (D.C. Cir. 2013)
  • Grosz v. Museum of Modern Art, 2010 WL 88003 (Jan. 6, 2010), aff’d (2d Cir. Dec. 16, 2010.)
  • Guggenheim v. Lubell, 153 A.D.2d 143, 153, 550 N.Y.S.2d 618, 624 (1st Dep’t 1990), aff’d 77 N.Y.2d 311, 321
  • Schoeps v. State of Bavaria, 2014 WL 2915894 (S.D.N.Y. June 27, 2014)
  • Menzel v. List, 267 N.Y.2d 804, 819 (Sup. Ct. N.Y. Co. 1966), modified 279 N.Y.S.2d 608 (1st Dep’t. 1967), modified and aff’d 24 N.Y.2d 91 (1969)
  • Museum of Fine Arts Boston v. Seger-Thomschitz, 623 F.3d 1 (1st Cir. Oct. 14, 2010)
  • Republic of Austria v. Altmann, 541 U.S. 677 (2004)
  • Toledo Museum of Art v. Ullin, 477 F. Supp.2d 802 (N.D. OH 2006)
  • Vineberg v. Bissonnette, 548 F.3d 50 (1st Cir. 2008)
  • Von Saher v. Norton Simon Museum of Art at Pasadena, 131 S.Ct. 379 (Oct. 4, 2010)

Additional Sources:

  • Dowd, Raymond J., Nazi Looted Art and Cocaine: When Museum Directors Take It, Call The Cops, 14 Rutgers Journal of Law and Religion 529 (2013)
  • Dean, Martin, Robbing The Jews: The Confiscation of Jewish Property in the Holocaust, 1933-1945 (Cambridge U. Press 2008)
  • Petropoulos, Jonathan, Art As Politics in The Third Reich (U. North Carolina Press 1999)
  • Petropoulos, Jonathan, The Faustian Bargain: The Art World In Nazi Germany (Oxford U. Press 2000)

*About the Author: Debra Friedmann is a rising second-year law student at the Georgetown University Law Center. She received a B.A. in History and Studio Art from Brandeis University. She may be reached at dsfriedmann@gmail.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.

The Eaton Collection: Off the Block at Rago

By Rebecca Krishnan-Ayer*Screen Shot 2015-06-10 at 12.26.01 AM

The Contested Sale

The New Jersey-based auction house Rago Arts and Auction Center (est. 1988) stirred controversy with the April 2015 projected sale of 450 works of art and artifacts from the Japanese-American internment camps established during World War II. In the wake of the New York Times article announcing the auction, activists and community leaders alike banded together to ignite a social media campaign against the auction house, whose annual sales total approximately $30 million. Rago initially stood behind their decision to proceed with the sale, citing a lack of alternate options available to the client for relinquishing the items. As the New York Times reported, “A spokeswoman for Rago wrote in an email that the unnamed auction consignor, who knew the Eaton family, is ‘not in a financial position’ to donate the material to institutions and ‘did not feel qualified to choose one institution over another.’ The consignor has described the protests as a ‘social media attack’ meant to ‘bully us into compliance with their demands.’”

Meanwhile, protest groups established a Facebook page, “Japanese American History: NOT for Sale,” assembling over 6,700 followers. Critics also launched a Change.org petition, lambasting “the betrayal of those imprisoned people who thought their gifts would be used to educate, not to be sold to the highest bidder in a national auction, pitting families against museums against private collectors.” Among those issuing a rallying call for action was Japanese American actor George Takei, who helped catapult the controversy to the forefront of Japanese American cultural groups’ and foundations’ agendas–he himself was interned in one of these camps at the age of five. Eric L. Muller, Dan K. Moore Distinguished Professor in Jurisprudence and Ethics at University of North Carolina School of Law, assisted with preparing the sale catalog for Rago, and declined to proceed with a lecture planned at the auction house after learning that the consignor had refused to transfer or donate the property to Japanese-American cultural institutions. “I did not feel that I could deliver a public lecture connected to the sale in good conscience,” Muller told the ArtsBeat blog of the New York Times of the ethical quandary he faced. As the social media campaign opposing the sale gained traction and an injunction was issued from one former internment camp site, the Heart Mountain Wyoming Foundation, Rago announced their agreement to cancel the auction on April 15, 2015. The auction house’s decision and underlying motivations still draw criticism from activists such as Shirley Higuchi, chairwoman of the Heart Mountain Wyoming Foundation, who stresses that only after the immediate threat of legal action did Rago agree to withdraw the items from the auction block.

The Objects

The ownership of the collection, comprising 23 lots, can be traced back to the 1950s. Following World War II, a number of former internees and Japanese American families donated works of art and furniture to Allen Hendershott Eaton, a historian conducting research for his 1952 book, Beauty Behind Barbed Wire: The Arts of the Japanese in Our War Relocation Camps. The objects were then handed down to an unnamed family friend of Eaton’s heirs based in Connecticut. Among the items bestowed to Eaton were unique “handmade cigarette boxes, delicate bird brooches carved of wood, intricate family nameplates, a cat figurine shaped from tree roots, and watercolors of life inside the camps, including children playing in dirt lanes and outdoor assemblies,” the LA Times reports. In an interview with NPR, Delphine Hirasuna, a scholar specializing in art created in the internment camps observes: “Here is something that gives them pride about what the[ir] grandparents created under really bad circumstances.” The emotional value of the collection far exceeds its monetary value (Rago appraised the lots for a collective estimate of around $26,000) and includes oil paintings and rare black and white photographs depicting families, internees creating works of art, and the rarely seen environs of camps in the West. Individuals born in internment camps or whose relatives experienced the tragic imprisonment of 120,000 Japanese Americans following the U.S. bombing of Pearl Harbor stand by the injustice in selling and monetizing such seminal memories and facets of history.

The Outcome

Screen Shot 2015-06-10 at 12.23.26 AMOn May 2, 2015, the Japanese American National Museum in Los Angeles announced plans to acquire the hotly contested collection as a result of Takei’s efforts to halt the public sale and with the cooperation of the would-be consignor. The museum recently honored Takei, a board trustee, for his contributions with the Japanese American National Museum’s Medal of Honor for Lifetime Achievement. According to Takei, “To put [the Eaton collection] up on the auction block to the highest bidder, where it would just disappear into someone’s collection, was insensitive. The most appropriate and obvious place for the collection was the Japanese American National Museum.” Rago Arts and Auction Center presumably played a role in the amicable settlement and urged the arts community to engage in a broader discussion on related legal and ethical dilemmas facing other institutions. Its managing partner, Miriam Tucker, affirms, “The issue extends beyond what is legal. It is something auction houses, galleries and dealers are faced with regularly.”

The Rago case recalls the efforts and ethics involved in recovering other culturally significant property such as Nazi-era looted works or Native American artifacts. Marc Masurovsky, co-founder of the Holocaust Art Restitution Project, describes a certain “sensibility and sensitivity” that must be acknowledged when dealing with such works. The attempted sale of the Eaton collection also raises interesting issues regarding precedent and discretion when it comes to auction houses accepting consignments, institutions acquiring objects, or galleries purchasing works. Legality aside, ethics and public good seem to challenge the notion of a “pure transaction” involving works of art and objects of cultural heritage.

Note from the editors: On the footsteps of the positive outcome for the Eaton collection, Center for Art Law is acutely interested in the auctions of Hopi artifacts that have taken place and continue to occur in France despite the communal and legal efforts to halt those contested sales. While Rago decided, with some backing from the court, to withdraw the Eaton items from auction, Hôtel Drouot, the largest auction house in Paris, has been proceeding with the sales of Hopi relics despite public outcry.

Select Sources:

About the Author: Rebecca Krishnan-Ayer received a B.A. in Art History and French Literature from Johns Hopkins University.

 

Case Review: Foster v. Svenson (2015)

arne-svenson-neighbors-3

Arne Svenson, “The Neighbors, # 3″ (2012)

By Christopher Visentin*

Following up on a remarkable decision from 2013, this April 9th the New York Appellate Division of the Supreme Court affirmed the Supreme Court’s dismissal of a family’s right of privacy claim in favor of an artist’s freedom of expression.

Two years ago Matthew and Martha Foster filed a complaint alleging breach of privacy against photographer Arne Svenson after learning that they, as well as their two young children, were subjects of Svenson’s series of photographs entitled “The Neighbors”.  For the series, Svenson used a camera with a telephoto lens to capture images of inhabitants of a glass apartment building across the street from his own apartment. Svenson took the photographs without knowledge or permission of his subjects. The Fosters learned of the images through a local publication promoting the exhibition of the photographer’s most recent works.

In 2013, the Supreme Court of New York granted Svenson’s motion to dismiss Fosters’ claims for injunctive relief and damages for emotional distress. Justice Rakower found that the First Amendment protects Svenson’s photography and artistic expression. Therefore, defendant’s conduct was deemed not actionable under the current New York privacy laws. (See Center for Art Law reporting from July 21, 2013 and August 11, 2013.) Fosters appealed.

Last month, on April 9th, the Appellate Division agreed with the lower Court’s decision. Justice Renwick, in her opinion for the Court, noted that under the New York law newsworthy events and matters of public concern have long been exempted under the privacy statute. Justice Renwick also noted that courts have extended this exemption to literature, films, and theater. It follows, she wrote, that the exemption should likewise extend to other forms of artistic expression, here, photography.

But the exemption for newsworthy events and artistic expression is not absolute; Justice Renwick noted that images used for “advertising or trade purpose” do not deserve exemption from the privacy statute. She made clear, however, that even though the Fosters saw the images in a notice promoting the exhibition, and even though Svenson might profit from the images he created, the promotion of the exhibition and any financial benefits relate to the art itself, and therefore the images are not used for “advertising or trade purpose” under the meaning of the privacy statute.

The decision places much importance on protecting freedom of expression, even when the expression constitutes what many people would feel is a clear invasion of privacy. Justice Renwick recognized this tension in her opinion, but she found that the invasion of privacy has to be much more outrageous to weigh against the court’s tendency to protect the public’s interest in the free flow of ideas. Barring such outrageous conduct, it seems that arts and artists enjoy a significant amount of liberty to create and display their art, even when such expression might violate other’s perceived rights, whether they live in glass houses or not.

Justice Renwick acknowledged that some may find the outcome troubling, however, when she stated, “Many people would be rightfully offended by the intrusive manner in which the photographs were taken in this case. However, such complaints are best addressed to the Legislature.” Foster v. Svenson, No. 03068, slip op. at 7 (N.Y. App. Div. Apr. 9, 2015). It may not be surprising, then, when this issue receives more attention in the future.

Note from the editors:

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Center for Art Law Mixer at Sundaram Tagore Gallery (May 28, 2015).

On May 28th, Center for Art Law hosted its latest Art/Law Mixer dedicated to photography and the law at Sundaram Tagore Gallery in New York City. In light of the gallery’s exhibition of large-scale silver gelatin prints by Brazilian photographer Sebastio Salgado, the discussion for the evening centered around recent photography case law and its affect on the art and legal worlds. Special guests for the evening included Paul Cossu (Cahill Partners) and Nancy Wolff (Cowan, Debaets, Abraham, and Sheppard LLC). Paul discussed the case his firm handled, Sobel v. Eggleston (2013), where a collector claimed that his limited editions of Eggleston photographs were harmed by the photographer’s later production of prints of the same images in different size and medium. Nancy, attorney for Arne Svenson, the photographer featured in the case review above, discussed her experiences advising and representing Svenson in court. She indicated that case law has evolved and new photography law textbooks may be in order.

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About the Author: Christopher Visentin is a rising third-year law student at Boston University, where he concentrates his studies on intellectual property law, art law, and law and literature. He is also pursuing a master’s degree in English literature at Boston University.

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.