Spotlight: Institute for Museum and Library Services (DC)

By Debra S. Friedmann*Screen shot 2015-10-06 at 10.34.02 AM

Combining the number of all Starbucks and McDonald’s locations will still not come close to the number of museums and libraries in all of the United States. According to the Institute of Museum and Library Services (the “IMLS” or the “Institute”), an independent government agency dedicated to the innovation and improvement of libraries and museums around the country, there are some 35,000 museums and 123,000 libraries in the U.S. These numbers are collected and reviewed biannually.

IMLS was created through the Museum and Library Services Act in 1996, an amendment to the Museum Services Act, within the National Foundation for the Arts. The Institute is currently  headed by Dr. Kathryn K. Matthew, who was recently confirmed by the senate in September 2015 for a four-year term. The President’s National Museums and Libraries Services Board advises the IMLS director on general policy and practices, in addition to selections for the National Medals for Museum and Library Service. The Institute, made up of approximately sixty employees receives funding through the federal congressional appropriations process, signed by the U.S. President.

The 114th Congress House of Representatives report on the budget for the 2016 fiscal year sought to eliminate the budget for the IMLS claiming that supporting museums and libraries is not a core federal responsibility.  The report instead puts the burden on the state and local governments to support these institutions, supplemented by charitable contributions from the private sector. President Obama on the other had requested a budget of $237,427,957 for the Institute. With much additional support from the museum and library community, including advocates from the American Museum Alliance, IMLS overcame this hurdle will be allotted funds with the completion of the 2016 budget.

One of the duties of the Institute is to distribute funds down the chain line in the form of grants. IMLS is the greatest source of primary funding from the federal government to support museums and libraries. It also administers the funds appropriated by the Library Services and Technology Act (LSTA). IMLS was developed to create a network where people can connect and share ideas. Each of these cultural institutions – libraries including public, academic, research, special and tribal, and museums including art, history, science and technology, children’s museums, historical societies, tribal museums, planetariums, botanical gardens and zoos – to some degree is supported by IMLS, whose mission is to “inspire libraries and museums to advance innovation, lifelong learning, and cultural and civic engagement.” Specifically  IMLS sets five main goals to guide research, policymaking, and grant opportunities, which include: 1) a focus on the learner as a member of the local and global community; 2) civic engagement and cultural opportunities; 3) innovation in technology to help learning; 4) advising the president on plans, policies, and activities; and 5) public management.

The Institute produces annual reports in which it highlights surveys, research, and analysis conducted by IMLS to identify trends and evaluate needs of libraries and museums.  According to the reports, the research is submitted into publications and catalogs by the agency is meant to help museums and libraries brainstorm ways to improve their institutions by learning from the successes and from successful programs as well as missteps. One such survey is the “Public Needs for Library and Museum Services Survey” (PNLMS), accessible in both English and Spanish. The survey includes information regarding  museum attendance, attitude towards going to museums and libraries, demographics of those who respond, and information on how and to what extent the family uses these institutions through a cross-sectional sample of data collected through random-digit dialing (RDD). The results of this survey were released in Spring 2015, and are often used by policymakers in federal and state government, practitioners, researchers, and journalists to learn about the outstanding needs of the public and consider how to resolve these deficiencies.

The IMLS Office of Planning, Research and Evaluation (OPRE) is a resource for data collection, publications, and evaluation resources that measure the outcome of different methodologies. All of these findings are available and shared by museums and libraries to improve their own programming in areas such as general demographics, child well-being, education, health, arts and culture, library services, economic indicators, labor and employment, and small businesses. Not only does IMLS provide the information, but it also provides the tools for museums to create their own surveys and data analysis that are specially designed to address the needs of the institution. To help measure the success of museums and libraries experimenting with innovative programs, the IMLS website also offers guides to monitor, evaluate, and analyze the results of the program. The agency recognizes that not all museums and libraries are the same, and thus the same evaluation  will not always apply to every program. IMLS provides a diverse list of methods and resources with contact information for a guide to help shape future projects.

IMLS awards grants in areas such as collections management, community engagement, conservation, formal education, informal learning, partnerships, professional development/continuing education, research, demonstration, digital collections/tools, public programs, awards, and innovation. The agency invites applicants to develop new, creative, and effective ideas to change any part of the industry.

One such grant was awarded to the Barnes Foundation in 2013, partnered with the Conservation Center for Art and Historical Artifacts in Philadelphia. The grant helped fund the conservation of 22 works of art, including five works by Paul Cézanne, five by Pablo Picasso, nine by Paul Klee, two by Edgar Degas, and one by Pierre-Auguste Renoir. Following its move from Lower Marrion to the Philadelphia Museum Mile, the Barnes Foundation has a conservation lab on site . Several of Cézanne’s sketches were newly revealed by cleaning up watercolors form under brown acidic paper. In celebration of their new findings, the Barnes foundation held an in-house display entitled Cézanne Uncovered: Two Sketches Revealed through Conservation.

Once a grant is awarded, IMLS requires the awarded institution to develop an outcome-based evaluation (OBE) procedure. The evaluation method is meant to help show the extent to which the program met its goals, progress towards long-term goals, quality of progress, need for more or fewer resources, and reiterates the importance of the program. The term “quality” is defined by each institution individually and could include categories such as efficiency, productivity, cost control, effectiveness, and value to the community.

These OBEs are submitted to Congress as required by the Government Performance and Results Act of 1993. The purpose of this review is to keep the federal government informed about the programs they fund and to try to identify areas of inefficiency and overspending. Institutions are therefore accountable to the federal government for the funding they receive. The efficient funding of these grants contribute to the overall goal of IMLS, which is to create strong libraries and museums and to connect these institutions so that successful programming can spread further. IMLS creates a database for all members of museums and libraries to see which programs worked, which did not, and how they may implement a completely new idea.

IMLS also takes applications for grant peer reviewers. After IMLS receives a complete application for a grant, the application is reviewed by volunteers with comparable expertise. According to the review process program instructions, each application is reviewed approximately three to six times. The reviewers submit comments answering the questions IMLS provides for evaluation. IMLS then makes the final funding decisions using these comments to further inform its decisions.

Under the new leadership of Dr. Matthew, the Institute is poised to become less of a mystery. For those interested in exploring the employment opportunities with IMLS, there are paid internships available to law, library and public policy students.


*About the Author: Debra Friedmann is a 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

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.

WYWH: Looted in “Fakes, Forgeries and Looted and Stolen Art” (NYC)

By Rebecca Krishnan-Ayer *

“In many ways, cultural heritage defines what it means to be human.  It is a tangible reminder of the beauty and accomplishment of the ancient civilizations, our common origins, and our shared history and identity.  It inspires a sense of belonging and is a source of pride.  Culture has the exceptional potential to be used as a tool for expression and peaceful cooperation, as it reminds us of the contributions and experiences of humanity.” –Sheba Crocker, U.S. Department of State

In June 2015, New York University’s School of Professional Studies hosted the 2nd annual Art Crime and Cultural Heritage Symposium entitled “Fakes, Forgeries and Looted and Stolen Art.” A major theme for the symposium was the increasingly grave threat facing the world’s invaluable international cultural heritage–particularly in Iraq, Syria, and Libya–through systematic destruction by extremist groups such as the Islamic State of Iraq and the Levant (ISIL/ISIS). The topic has gained considerable traction in the media within the last year since the demolition has spiraled into an unprecedented and alarming scale. Leading the discussion on ISIS cultural heritage destruction at the NYU symposium was Amr Al Azm, Associate Professor of Middle East History and Anthropology at Shawnee State University, and former Director of the Scientific and Conservation Laboratories in the General Department of Antiquities and Museums in Syria. Dr. Al Azm delivered a passionate message to conference attendees condemning the “industrial-scale” damage inflicted by ISIS in places like Mosul, Nimrud and Aleppo. He described opportunistic and systematic looting on the part of ISIS and an intensification of an already thriving trade in illicit looting of antiquities and pillaging of archaeological and Shi’ite religious sites. According to Al Azm, “2015 heralded a much more sinister manifestation of ISIS’ control and exploitation of cultural heritage.”

What incentivizes ISIS to embark on such extensive and relentless paths of deliberate, punitive cultural heritage destruction? Al Azm noted that such drastic measures enhance political power, demonstrating impunity and impotence of the western world. With 70% of Syria’s cultural heritage outside of state control and surmised to have been destroyed or damaged since the conflict arose, organizations such as the United Nations Educational, Scientific and Cultural Organization  (UNESCO) and Safeguarding the Heritage of Syria Initiative (SOSHI) have been left to grapple with a challenging international repatriation effort in heavy-armed conflict and civil war zones. Al Azm called for an extension of the moratorium on trade of objects in these countries and urged conference attendees to escalate and prioritize the fight against international racketeering, terrorism, and wanton annihilation of cultural heritage in the Middle East.

Fellow panelist Edouard Planche, Programme Specialist of the Cultural Heritage Protection Treaties Section at UNESCO, offered insight into the specific steps being taken by his organization to thwart ISIS’ vast cultural cleansing efforts. Planche described a “cultural genocide” that he and UNESCO Director-General, Irina Bokova, are actively working against through legal framework and legislation, treaties, and UNESCO conventions. The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property centers on three pillars: first, preventative measures; second, restitution provisions; and third, an international cooperation framework.

According to Planche, it is paramount that the art market joins and upholds the provisions of the 1995 UNESCO UNIDROIT Convention. Under UNIDROIT, devised in consort with The 1970 Convention, “states commit to a uniform treatment for restitution of stolen or illegally exported cultural objects and allow restitution claims to be processed directly through national courts…the UNIDROIT Convention covers all stolen cultural objects, not just inventoried and declared ones, and stipulates that all cultural property must be returned.”

Considerable efforts have been made among members of the international community to address and prevent further destruction. After ISIS released videos depicting militants destroying priceless artifacts in the ancient site at Nimrud and the World Heritage site of Hatra, UNESCO announced the launch of their #Unite4Heritage campaign in March. The social media campaign was launched on the heels of a smaller protest effort organized by Baghdad University students. Bokova issued a statement summarizing the global message that #Unite4Heritage aims to disseminate:

We must respond [to these atrocities], by showing that exchange and dialogue between cultures is the driving force for all. We must respond by showing that diversity has always been and remains today a strength for all societies. We must respond by standing up against forces of fragmentation, by refusing to be divided into ‘us’ and ‘them.’ We must respond by claiming our cultural heritage as the commonwealth of all humanity.

Discussions and dialogues shared at the NYU symposium similarly affirmed the need for a definitive response, for action—for something beyond mere passive denunciation on the part of members of the art, cultural heritage, and art law communities. 

* * *

Other programs on the subject that have take place in the recent month include the September 24, 2015 program at the Asia Society, entitled “Culture Under Threat: The Security, Economic and Cultural Impact of Antiquities Trafficking and Terrorist Financing” and the September 29, 2015 “Heritage in Peril” program held at the Metropolitan Museum of Art.


About the Author: Rebecca Krishnan-Ayer is a first year law student at the George Washington University Law School and member of the GW Art Law and Entertainment Society. She holds a B.A. in Art History and French Literature from Johns Hopkins University.

Towering Ban on Ivory Trade

By Mia Tomijima*

Byzantine ivory relief, Death of the Virgin (around 1000). Photo: © Worcester Art Museum, all rights reserved.

Byzantine ivory relief, Death of the Virgin (around 1000). Worcester Art Museum, MA. 1942 Museum Purchase.

Ever since the United States announced the ban of commercial trade of African elephant ivory in February 2014 in order to protect dwindling populations of the endangered mammal, it seems that not a day has gone by without ivory being mentioned in the news. Recently, a loan of Byzantine-era ivory religious reliefs from the British Museum to the Museum of Russian Icons in Massachusetts was denied an import permit for entry into the U.S., causing the British Museum to revoke its loan of the objects. The news was surprising considering the federal government’s amendments made to regulations assured museums and collectors that ivory as part of a traveling exhibition – which does not have an effect on the supply and demand of ivory – would still be permitted to be imported.

The change in law has naturally been widely well received by environmental and animal rights groups, but has been met with great resistance in the art world. After United States Fish & Wildlife Service’s Director Dan Ashe announced new restrictions over trade in Director’s Order No. 210 on February 25, 2014, criticism over the specific details of the rules caused USFWS to issue amendments to its rules. To date, the rule has been amended twice, on May 15, 2014 and on July 31, 2015. Last month, the federal government solicited comments over its proposal to revise the rules to further restrict interstate commerce and export of ivory, with the exception of antiques (for details, please visit the Federal eRulemaking Portal).

As if these federal changes and proposals were not confusing enough to comply with, many individual U.S. states also enacted state laws to restrict trade further. Critics have questioned the state activism and its enforcement, federal preemption, and whether these regulations will even carry out their intended effect of protecting elephants in their home continent. Center for Art Law now hopes to clarify exactly what is happening in the legal landscape of ivory trade and how it has affected the art world. In this article, we will provide a general history of the federal laws, the recent amendments to the Director’s Order, an overview of individual state laws, and the way it has affected the arts.


Brief Background of Relevant Laws

Recognition of the need to protect endangered animals first began with the Convention on International Trade of Endangered Species of Wild Fauna and Flora (“CITES”). Taking effect on July 1, 1975, CITES is a multilateral treaty for nations to cooperate through international trade to ensure protection of certain species against over-exploitation. Today, CITES is signed by 181 nations around the world and affects more than 35,000 species, with varying levels of protection to those appearing on Appendix I (most threatened), Appendix II, and Appendix III. To give effect to the treaty, each signatory country enacts its own laws to protect and regulate the trade of CITES species imported and exported into the country.

In the United States, the need for controlling/protecting endangered species came with the alarming speed of extinction of the once abundant passenger pigeon caused the United States government to first jump to action. The U.S. passed laws such as the Lacey Act of 1900, the Migratory Bird Conservation Act of 1929, the Bald and Golden Eagle Protection Act of 1940, and the Endangered Species Act of 1973 (“ESA”). The ESA, as amended, implements CITES. The ESA makes it illegal for anyone to take, possess, sell, offer for sale in interstate or foreign commerce, import, export, deliver, carry, transport, or ship in the course of a commercial activity, any ESA species or part thereof. Two federal agencies administer these US laws: United States Fish and Wildlife Service (“FWS”) and the National Oceanic and Atmospheric Administration.

Congress built in exceptions into the ESA for certain items, including antiques. Section 1539(h) of the ESA defines “antiques” as more than 100 years old, containing the species article prior to enactment of the Act, and legally imported into the U.S. (either legally with a CITES permit, or if in the U.S. before December 28, 1973, by providing proof of how the antique entered the country and that it was identified as that species when imported). Without getting into the nitty-gritty of the 1973 Act’s exceptions, ivory that was imported legally, either before 1989, or after 1989 with a CITES certificate, could still be sold in the United States.

However, by the 1980’s, Congress found that CITES and the ESA were still insufficient at protecting depleting elephant populations and enacted new legislation. In 1988, Congress enacted the African Elephant Conservation Act (“AECA”), the first multinational conservation act to protect a specific species. The AECA established various moratoria on import or export of raw or worked ivory, effective June 9, 1989. Together, CITES, ESA, and AECA helped decrease demand, and thus supply, for ivory. But recent changes in political initiatives between the U.S. and African nations have necessitated another change in the rules.


Developments in the US Federal Law Since 2014

        Alarming reports that over 30,000 African elephants die annually to support a booming black market and that proceeds from ivory poaching fund organized crime and African jihad groups caused environmental groups and nations around the world to jump to action. To curb demand, President Obama issued Executive Order 13648 on July 1, 2013, committing the U.S. to step up its efforts to combat wildlife trafficking. While the previously mentioned laws have been in place for decades, 21st century changes to the ivory trade  were deemed necessary because of the difficulty of enforcement in determining whether an item is truly an antique or just freshly poached ivory, colored to appear aged.

The controlling federal agency, Fish & Wildlife Service, announced new restrictions over trade in its Director’s Order No. 210 (see our previous article for more details), effective February 25, 2014. While this announcement was a triumph for environmental groups, it was a near death-sentence to people who regularly trade or move property containing ivory. Order No. 210 placed an outright ban on importation of African elephant ivory, with limited exportation allowed for antiques. The Order built in exemptions for an “antique” that qualifies under the following documented criteria:

  • (a) It is 100 years or older;
  • (b) It is composed of (in whole or part) of an ESA-listed species;
  • (c) It has not been repaired or modified with any parts of that species after December 27, 1973; and
  • (d) It is being or was imported through an “antique port.”

Even though the Order cured loopholes that existed in other federal acts, it also created seemingly impossible hurdles with which to comply, such as how musicians could travel and perform with musical instruments containing ivory, how antique guns that contain a proportionately small amount of ivory inlay would be affected, and what antique dealers had to prove in order to keep on selling their merchandise. The Order triggered a huge uproar in affected communities, so much so that the agency responded by amending the Order to provide greater clarity and more allowances in May 2014, and once again in July 2015.


Federal Amendments

First, the May 2014 amendment of Order No. 210 was revised to permit the import of non-commercial ivory that is either part of a musical instrument, a traveling exhibition, or as part of a household move or inheritance, and removed from the wild prior to February 26, 1976. The May 2014 amendment required that a work qualifying for one of these categories cannot be sold since February 25, 2014, however the July 2015 amendment removes this extra sale date requirement. The July 2015 amendment further restricts the export requirements for non-commercial ivory to only those items that meet the ESA antique exemption, or worked ivory that was legally acquired before February 26, 1976 and is either part of a musical instrument, traveling exhibition, or household move or inheritance, or worked ivory that qualifies as pre-Act. While this new proposed amendment creates greater restriction, it also provides better uniformity with the import rules. The July 2015 amendment also adds an import limit of whole tusk trophies from sport hunting of African elephants to two per hunter per year. Note that once sport-hunted trophies are imported into the U.S., they cannot be exported as they are personal to the hunter who brought them in. FWS hopes that these newly created allowances will exempt items that have little or no effect on current wildlife trafficking.

Second, the May 2014 amendment fixed the glaring problem with the “antique ports.” Before the amendment, a seller of an antique containing ivory trying to qualify for the exception had to prove that a specific object was imported through one of 13 “antique ports.” U.S. Customs and Border Protection designated 13 ports for the entry of antiques made of ESA-listed species on September 22, 1982, which include: Boston, Massachusetts; New York, New York; Baltimore, Maryland; Philadelphia, Pennsylvania; Miami, Florida; San Juan, Puerto Rico; New Orleans, Louisiana; Houston, Texas; Los Angeles, California; San Francisco, California; Anchorage, Alaska; Honolulu, Hawaii; and Chicago, Illinois. This antique port rule in the original Order created a complicated situation for objects imported into the United States before Sept. 22, 1982 (prior to when the ports were designated), or manufactured in the U.S., as these would never qualify as an antique. The agency recognized this predicament and amended the order to retain the antique port requirement, but added an exception for items imported before Sept. 22, 1982, or those manufactured in the United States and never imported.

Third, the federal government revised the regulations that implemented the international treaty CITES, in order to reaffirm, clarify, and improve public understanding of the “use-after-import” provisions, so as to reduce sales (including intrastate sales) of ivory and other wildlife imported for noncommercial purposes.

Fourth, the July 2015 proposed amendment is imposing new restrictions on foreign and interstate commerce. Previously, there was no restriction on foreign commerce, but the U.S. is revising the rule to apply to individuals or entities subject to U.S. jurisdiction. The July 2015 amendment restricts sales in foreign settings and across state lines to items that meet the ESA antique exemption and certain manufactured items that contain a small or de minimis amount of ivory. To qualify for the “de minimis” exemption, the item must meet the following conditions:

  • A. If located in the U.S., the ivory must have been imported before January 18, 1990, or imported under a CITES certificate with no limitation on commercial use.
  • B. If located outside the U.S., the ivory must have been removed from the wild before February 26, 1976.
  • C. The ivory is a fixed component of a larger manufactured item and not the primary source of the item’s value.
  • D. The ivory is not raw.
  • E. The manufactured item is not made wholly or primarily of ivory.
  • F. The total weight of the ivory component is less than 200 grams.
  • G. The item must have been manufactured before the effective date of the final rule.

The July 2015 amendment also prohibits foreign commerce in sport-hunted trophies and ivory imported/exported as part of a household move or inheritance. It appears that the federal government is trying to close loopholes that ivory dealers may use to sell their items. Some of the added de minimis requirements are tricky to show and defined vaguely and may leave a considerable amount of discretion up to law enforcement.

Naturally, there are attorneys specializing in CITES issues. According to one such practitioner, William Pearlstein of Pearlstein & McCullough LLP, one big issue with the federal regulation overall is the difficulty of species identification. According to Pearlstein, Asian elephant ivory, which can be imported and sold, is treated differently from African elephant ivory, which cannot. Finding a DNA or biology expert to test an object to determine from which species the ivory was obtained is difficult, expensive and invasive. Pearlstein noted that since federal import and export trade regulations is critical for the art market, the need for a species neutral antique exception that would treat Asian and African elephant ivory the same under U.S. law is vital.

In addition to Order No. 210 and its amendments, federal legislators are now advancing bills in the House and Senate with aims of protecting elephants by increasing enforcement and criminal penalties, while also permitting trade of legally obtained ivory. Senators Daines (R-MT) and Alexander (R-TN) introduced S1769 the African Elephant Conservation and Legal Ivory Possession Act of 2015, to remove the unilateral decision making power of the U.S. Fish and Wildlife Service. The bill permits ivory to be imported or exported under the AECA and the ESA if: (1) the raw ivory or worked ivory is solely for a museum; (2) it was lawfully importable into the United States on February 24, 2014, regardless of when it was acquired; or (3) the worked ivory was previously lawfully possessed in the United States. The bill proposes to decrease poaching by placing a FWS enforcement officer in each African country with a significant elephant population to arrest poachers and work with local wildlife enforcement. Representative Don Young (R-AK) introduced H.R. 697, which mirrors the senate bill. Senator Feinstein (D-CA) and Senator Graham (R-SC) also introduced a bipartisan bill S27 to increase the criminal penalties against those who sell illegal ivory from the small fines and months in prison to larger fines and years in prison, similar to the criminal sentencing for money laundering and racketeering. The Appraisers Association of America is encouraging individuals to contact their Senators and Congressional Representatives to support these bills.


States Take Action

As if the new federal laws were not complicated enough, individual states are now joining the fight to protect elephants by passing regulations to stop the trade of ivory. Thus, on May 8, 2014, New Jersey became the first state to pass such a law, prohibiting the import, sale, offering for sale, purchase, barter, or possession with intent to sell any ivory, including rhinoceros horn. Noteworthy is the lack of distinction between Asian and African elephants, which is still present in the federal regulations. New Jersey exempts ivory that was conveyed to legal beneficiaries, with CITES or ESA permits, and those with a bona fide educational or scientific purpose. It also states that appraisals alone do not constitute possession with intent to sell.

The same year, the State of New York was the next to join the prohibition, arguably one of the largest consumer states of ivory. Similarly to New Jersey, New York prohibits the sale, offer for sale, purchase, trade, barter or distribution of elephant and mammoth ivory articles and rhinoceros horn, with limited exceptions, and increased criminal and civil penalties for illegal sales. The law went into effect on August 12, 2014. NY’s Department of Environmental Conservation (“DEC”) may issue licenses or permits for items that meet certain “limited exceptions,” including:

  • Antiques that are at least 100 years old and comprised of less than 20 percent of ivory or horn (“de minimis rule”);
  • The distribution or change in possession is for educational or scientific purposes, or to a museum chartered by the board of regents, or by special charter from the New York State Legislature;
  • The distribution is to a legal beneficiary, heir or distributee of an estate; or
  • The article is a musical instrument that contains ivory or horn and was manufactured no later than 1975.

The “de minimis” rule, where if an item is constituted of 20% or less of ivory, is unique to New York State. When the legislation was passed, arts advocates argued that the state law could be preempted by the federal laws since the laws conflicted as to the exact definition of an exempted antique. William Pearlstein reports that these advocates agreed to back down on this point in exchange for certain additions to the FAQ on the DEC website. Specifically, the 20% de minimis rule would apply only to intrastate sales (within the state of New York), that there would be an exception for internet sales, and that to qualify for the antique exception, one must demonstrate that the ivory is less than 20% by square volume or weight and that reasonable estimates were acceptable for a 100-year-old work. The New York legislature is now allegedly taking back its promises. Pearlstein says that the legislature is taking back its evidentiary requirements as negotiated, and are now requiring date-stamp proof of age, which can be potentially impossible for some items. He states that this backsliding on its previous guarantees is coming from pressure from NGOs and the Clintons, who have both been using their political muscle to see this legislation carried out in full force. The art trade is getting tired of being pushed around and not having their voices heard, especially considering that no such permitting is required under federal law. Thus, it may appear that litigation on the federal preemption issue may be imminent.

This would not be the first time that a state law has come into conflict with federal law for ivory trade. In 1983, the Ninth Circuit ruled that federal law preempted a California statute prohibiting trade in elephant parts within the state. In Man Hing Ivory and Imports v. George Deukmejian, Governor of the State of California, et al., 702 F.2d 760 (9th Cir. 1983), an ivory importer argued that CITES and the ESA preempts state law, which would not allow him to trade under his federal permit. CITES did not apply since it is merely a treaty that requires other implementing laws, but the Court found that Section 6(f) of the ESA and 50 C.F.R. Sec. 17.40(e) of the AECA applied. Section 6(f) specifically states, “[a]ny state law … is void to the extent that it may effectively […] (2) prohibit what is authorized pursuant to an exemption or permit provided for […] in any regulation which implements this chapter.” Moreover, the Court predicted the situation currently unfolding, when it noted in a footnote that if it were “to uphold application of [the California statute] section 653o in the face of federal permits allowing trade in elephant products, we would pave the way for a day when an enterprise such as appellee’s could secure a federal permit authorizing trade in elephant products and yet find itself unable to conduct such trade within the United States because of widespread state adoption of statutes paralleling California’s section 653o. We think it improbable that Congress intended import or export permits under the Endangered Species Act to be revocable by state legislation.”

In light of this ruling, it appears that precedent has at least been set on the West Coast. However, states such as California, Oregon, Hawaii and Washington are all considering or recently enacted state prohibitions against ivory over the past two years. Time will show if the right plaintiff like Man Hing will emerge to challenge federal preemption of these individual state statutes once again.


Enforcement & Effect on the Arts

Now that we understand the law and its many iterations, we can look to how it has been implemented and enforced. Not surprisingly, these greater enforcements have made arts and antiquities dealers cautious, and many have had to halt sales of all ivory until the coast is clear. Once expensive and luxurious antiquities, such as chess sets, religious idols, pianos, and violins, are all practically worthless in the eye’s of the marketplace.

On June 19, 2015, FWS crushed nearly one ton of illegally smuggled African elephant ivory in New York City’s Times Square. With this dramatic statement that the government agency dubbed #ivorycrush, the U.S. hopes to set an example to pressure Europe and China to also increase enforcement against trafficking of wildlife.

The laws (of physics) teach us that with every cause, there is an effect. While the measures taken to protect dwindling populations of elephants in no ways lacks merit, the change in law has been met with great reluctance in the art market, where ivory has historically been used for centuries as canvases for miniature portraits, inlays in decorative arts and furniture, and even as musical amplifiers in violins. Prior to the ivory crush in Times Square, FWS permitted Bryna Freyer, senior curator at the National Museum of African Art, and Terry Weisser, director of conservation and technical research as the Walters Art Museum, to evaluate the items to be crushed to determine whether any items had cultural significance worth saving from becoming a pile of ash. Of the ton of items evaluated, Freyer and Weisser saved only two items. The two “pieces of interest” were both side flutes carved in the distinctive style of a tribe in Nigeria, saved because they were recognizable and therefore require greater cultural sensitivity. While proportionately very few items in the crush had value, the fact that there was even one illustrates the conflict of the law’s environmental cause with it’s historical and cultural effects. Freyer stated to Smithsonian Mag: “When this stuff is lost, we lose a chance at better understanding the people who made the object,” adding that piecing together cultural history is like assembling a 500-piece jigsaw puzzle. “You think OK, we’ll get rid of [these pieces]. It’s not going to make a difference, because there are 498 other pieces. But you never know which is the piece that’s going to really help you understand.”

Other reports indicate that enforcement of the order and application of the exceptions are not functioning as expected. The Museum of Russian Icons was denied permits to display six Byzantine ivory reliefs loaned by the British Museum. Despite the pieces dating from the 9th to 12th century (well over the 100 year age requirement) and that they were to be imported for an educational traveling exhibition, FWS declined to issue permits and provided no concrete reason for its denial. The change in plans forced the Museum of Russian Icons to receive a loan at the last minute from the Worcester Art Museum in Massachusetts. Traveling exhibitions have no effect on the marketplace demand for ivory. Furthermore, they help educate the public on mediums formerly used in the arts, and which have since gone out of style. The report from the Museum of Russian Icons serves as a cautionary revelation that FWS and its enforcement officers may be acting contrary to the law and its amendments.



Renewed efforts to to protect African elephants are undoubtedly admirable. Legislation protecting endangered elephants from poaching and limiting the trade of ivory has long been on the books. In the years of 2012-13, reports showed that roughly 100,000 elephants were killed in Africa, revealing the inefficacy of those previous laws, and causing new efforts. However, the recent change in law has not yet shown that it can protect elephants anymore than previous laws could. Use of ivory in visual and decorative arts is a historical fact. We can learn from it and make changes for the future. Antique ivory owners and art institutions in possession of ivory-containing artifacts hardly deserve to have their assets devalued. Greater flexibility in regulation and enforcement must be found for these new laws to have their intended effect.

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*About the Author: Mia Tomijima, Brooklyn Law School alumna, is an attorney admitted to New York Bar. She received a bachelor’s degree in art history from UCLA, and has worked with museums, auction houses, and other arts non-profits. Mia was a post-graduate fellow with Center for Art Law in the Spring 2015.

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.

Hopi Restitution Suits: Questions of Standing and Rights

By Lindsay Voirin, Esq.*

Center for Art Law previously reported that the Hopi Tribal Council partnered with the Holocaust Art Restitution Project (HARP) to file suit against France’s board of auctions for refusing to stop the sale of sacred Hopi objects, having concluding that Native American tribes lack legal standing to bring a cultural claim in France. The partnership was at once unexpected and tactically sound. In this article, we review the background for the case and the procedural history

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Source: Sacred Hopi and Acoma objects are displayed at the Drouot auction house in Paris prior to auction, June 10, 2015. REUTERS/JACKY NAEGELEN

Sacred objects as displayed at the Drouot auction house prior to June 2015 auction. Source: Reuters/Jacky Naegelen.


The controversy concerns Hopi artifacts that are religious objects necessary for the use and the continuation of the Hopi religion by present day adherent. Known as kwaa tsi, and sometimes described as “katsina friends,” these artifacts are offered for sale by French auction houses, despite protests and lawsuits filed by the Hopi Tribe to enjoin the sales.

The katsina friends go through a ceremonial process of deification whereby they embody spiritual life. They then become a “Katsina” and serve as a messenger to the spiritual domain for rain and life blessings. Katsina friends are used during katsina religious ceremonies.These artifacts are considered sacred objects and objects of cultural patrimony and cannot be transferred, sold, conveyed or removed from the tribal land without permission of the Hopi Tribe. However, recently they have been included in at least six auctions in France between 2013 and 2015.

Every time kwaa tsi are offered for sale, the Hopi Tribe objects vehemently, yet their pleas remain disregarded. Therefore, the Tribe representatives have turned to administrative and legal mechanisms to attempt to enjoin the sales since 2013. The Hopi Tribal Council has filed suits in French civil courts on various occasions preceding the sales, including in April 2013, December 2013, and June 2014. Unfortunately, these judicial attempts to enjoin the sales have been unsuccessful. Furthermore, administrative petitions to the “Conseil des Ventes” (“CVV”), a French regulatory body tasked with overseeing auctions in France, have also failed. In its decisions, the CVV repeatedly held that the Hopi Tribe did not have the legal capacity to sue in France.

Article 27, United Nations Declaration on the Rights of Indigenous People (2007)

Article 27, United Nations Declaration on the Rights of Indigenous People (2007).

Internationally, the 2007 United Nations Declaration on the Rights of Indigenous People (UNDRIP) sets forth rights of indigenous people such as the right to be free from discrimination in the exercise of their rights. The current French laws have not yet been interpreted to allow an indigenous tribe or individual leader of a group to have a legal existence or standing to bring a cultural claim in French court.

In order to succeed in stopping the sales in France, the Hopi claimants have to first prove that they have standing to bring a cultural claim in a French court. The strategy of partnering with an non-government organization (NGO) to effectuate legal standing is not a new strategy. The Hopis previously partnered with Survival International France, an NGO that helps tribal people defend their land and protect their livelihood. In that instance, the court acknowledged standing but dismissed the claim on the grounds that Survival International could not legally represent the Hopis to sue for repatriation of the masks.

In both the previous 2014 case and in the instant case brought by the Ciric Law Firm on behalf of the Hopis and HARP to enjoin the sales of the Hopi artifacts, the CVV dismissed the cases on the basis that the Hopis lack standing. In fact, the CVV held that no Native American group qualifies for legal standing to bring a cultural claim in France. Moreover, the Board refused to consider evidence that legal title could not have vested in subsequent possessors of the masks. Article 1-5-1 of the Board’s Code of Ethics for Auction Houses stipulates that auction operators have a duty to investigate the provenance of objects sold. When faced with requests to apply Article 1-5-1 and require that that the provenance of the objects be considered, the Board refused, finding that the auction house acted in good faith.



Future attempts to sell Hopi artifacts at French auction houses will likely be faced with similar suits and requests to enjoin the sales. It seems unlikely that the CVV or the French civil courts will change their position without a change in legislation. As for a legislative solution, the CVV has the power to set forth proposals for legislative and regulatory changes. Recently, a strong faction of advocates for repatriation of Hopi artifacts has begun to lobby government officials. The simple solution is for France to recognize and accept Article 27 of UNDRIP, which requires the State to establish and implement a process to adjudicate the rights of indigenous peoples pertaining to their land, territories and resources. Only upon legal recognition of the Hopis can the French Board and French civil court begin to adjudicate the Hopis claims requesting injunction of future sales and repatriation of sacred artifacts.


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*About the Author: Lindsay Voirin is a patent attorney and current student at NYU Wagner School of Public Service, where she is working toward a Master in Public Administration. Her career interests include intellectual property, technology, international development and human rights law.

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: Washington Area Lawyers for the Arts’ Event “Galleries 101 – Law for Visual Artists” (DC)

By Elena Kravtsoff, Esq.*

Screen Shot 2015-09-23 at 3.43.43 PM Screen Shot 2015-09-23 at 3.44.04 PM





In the middle of summer, on July 21, 2015, Washington Area Lawyers for the Arts’ (WALA) Visual Arts Subcommittee hosted “Galleries 101 – Law for Visual Artists,” at the Hamiltonian Gallery. WALA is a non-profit organization that supports the artistic community in the DC area by offering continued education, advocacy and legal services. The Hamiltonian Gallery, in addition to its exhibition space, boasts programs dedicated to the advancement of careers of emerging artists. Incidentally, this Gallery hosted a Center for Art Law event in DC in 2014.

The event in July, with an equal number of artists and of lawyers as guest speakers, was open to the general public and attracted many WALA members and Hamiltonian affiliates. The panelists included Cynthia Gayton, founder of the Arlington-based law firm Gayton Law, who is also experienced in the gallery business; Missy Loewe, attorney by training who is the CEO and president of Washington ArtWorks, a Maryland organization that offers classes, workshops, exhibits, and outreach programs that benefit local artists; as well as two DC-area visual artists, Luis Peralta and Jay Coleman.

“Galleries 101” panelists addressed a variety of topics pertinent to artists who already display or plan to show their art in galleries, each contributing their own unique perspective. Gayton kicked-off the event by discussing common issues arising in contracts between artists and galleries. She started by covering the basics of contract law and then focused on issues pertaining  to artists, for example, encouraging artists to ensure that galleries agree to market the artists and promote their work. Gayton then addressed the legalities of photographing works of art on display, and the subsequent use of those images by artists and galleries, also touching on the ever-elusive fair use. Loewe instructed artists on the importance of documenting and keeping records of their art, such as when it was made, the price, and its location, in order to be protected should the art be stolen or should a gallery fail to pay an artist for a sale.  

The presentations given by the visual artists were practical and drew from the artists’ personal experience of working and negotiating with galleries and other spaces that displayed their art. Peralta spoke of his partnering with a gallery and taking a more active part in the promotion of his art and his brand. He emphasized that artists must be business-minded and have the mind-set of entrepreneurs. Coleman relayed his experience of displaying his art is places other than galleries—such as cafes—and associated upsides and pitfalls. He encouraged artists to educate themselves and always come prepared to a negotiation with a space that will be displaying their work.  

Following the event, Gayton observed that the “panel selection was great,” and that she was impressed with “how positive and helpful everyone was.” Gayton, a long time volunteer with WALA and a regular presenter, observed that “[t]his audience, in particular, were knowledgeable about the issues and had substantive questions.” Loewe opined that the location and set-up of the event were “terrific,” and that her fellow presenters were “very friendly and extremely well-versed in their topics areas.” As to the audience, Loewe found that “[t]he reaction to the presentation and the questions asked during and after showed this is a community of people hungry for information, knowledge, and eager to ‘do right’ and listen and learn from others.” Peralta said that he enjoyed sharing his experiences as an artist and entrepreneur, as well as his philosophy that “artists should view themselves and operate as a business.” Peralta was also glad to learn from his fellow panelists, and recommended that DC-area artists take advantage of the workshops and attorney resources that WALA provides.

WALA’s biannual Creative Entrepreneurship Series, which consists of six workshops on topics relevant to artists, including intellectual property law, tax strategies, and negotiation strategies, takes place in September and October. Anyone who is interested in attending this series as well as WALA’s other educational events should visit in order to stay up to date and become involved with the organization.

About the Author: Elena Kravtsoff is an attorney based in Washington, DC. She is a volunteer with the Washington Area Lawyers for the Arts’ (WALA) Education Committee. She may be reached at

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

WYWH: Forgeries and Fakes from “Fakes, Forgeries and Looted and Stolen Art”


Ken Perenyi’s autobiographical keynote. NYUSCE program June 2015. Copyright Center for Art Law.

By Lindsay Dekter*

Following a multi-year investigation between 2011 and 2014, East Hampton art forger John Re was sentenced in May 2015 to five years in prison after nearly a decade of defrauding art collectors. Re passed off more than 60 paintings attributed to artists such as Jackson Pollock and Willem de Kooning, amounting in a combined loss of roughly $2 million by his victims. Shortly after Re’s sentencing, New York University’s School of Professional Studies held its 2nd annual Art Crime and Cultural Heritage Conference in New York, dedicating one of the three days to the issue of art forgery.

One speaker, Meredith Savona, discussed the Re phenomenon and how people fall victim to these con artists. Others speakers addressed current issues regarding expert witness testimony and expert immunity, while New York State Senator, Betty Little, discussed an amendment to the New York Arts and Cultural Affairs Law that aims to strengthen legal protections for authenticators. The NYU program, co-organized by Jane C. H. Jacob of Jacob Fine Art, Inc. and the Art Recovery Group, included a controversial keynote address entitled Art Crime Scene: Forger Talks about Forgery, delivered by Ken Perenyi. Perenyi’s presentation included images of major auction house catalogues containing his forged landscapes, still lives, and period paintings, and was followed by a bemused round of applause. Questions and comments from the audience, particularly art lawyer John Cahill of Cahill Partners LLP, and art expert James Martin of Orion Analytical LLC, expressed outrage with the damage forgeries inflict on the art market and art historical scholarship. Cahill went so far as to offer pro bono services to those with possible and plausible Perenyi claims. Martin indicated that while stylistically Perenyi’s work is very strong, chemical analysis of his materials is an easy way to identify his work as inauthentic.

Although nothing new to the art world, both Re’s case and NYU’s conference highlight the damage art forgery causes, both to commerce and the historical record. Speakers at the NYU conference, like Meredith Savona, the FBI agent who filed the June 2014 complaint against Re, impressed upon the audience the importance of vigilance in preventing and identifying these crimes.

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

The New Frontier of Cultural Property Protections: When Acquiring Cultural Objects Supports Terrorism

By Timur Tusiray*

Collage of Headlines

Collage of Headlines featuring recent looting and destruction of cultural heritage in the Middle East areas under the ISIL control.

The United States Anti-Terror Act, 18 USC 2331, et seq. (“ATA”or the “Anti-Terror Act”), a potent anti-terrorism law (enacted in 1991) often used to prosecute financial institutions and other organizations, has now been identified as a tool to pursue individuals who operate in the cultural property market for materially supporting foreign terrorist organizations (“FTO”). In relevant parts it reads “Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned…” (18 U.S.C. § 2339B(b)). The implications of such a development are wide-ranging, and understanding them will be key for practitioners and individuals active in cultural property acquisitions.

Recent tumultuous events involving the illicit looting and trafficking of cultural objects from Syria and Iraq by the so-called Islamic State of Iraq and the Levant (“ISIL” formerly known as ISIS), an FTO, have many wondering how the illicit traffic of cultural heritage may be checked. The question is made more urgent by the tragic beheading of Professor Khaled al-As’ad, a university professor and former general manager of antiquities and museums in Palmyra, and the destruction of historic temples in the same region.

In light of these events, on August 25, 2015 the FBI released an unusual one-page alert calling for art and antiquities market leaders to aid in the international effort to prevent the sale and import of artifacts from ISIL-controlled Syria and Iraq. While such a call for cooperation echoes ongoing efforts by national and international governments and agencies to stem the flow of finances and support to ISIL, the document briefly highlights the Anti-Terror Act as an avenue of recourse for leveraging substantial civil and criminal penalties against those buying or trading in objects coming from hot zones in the Middle East. (Readers should note that the FBI document erroneously cites the law as “18 U.S.C. § 233A” instead of “18 U.S.C. § 2339A”).

The brevity with which the FBI mentions the ATA in its August 25th document, belies the potential for this law to become a robust tool in the fight against the illicit trade. Among other things, the ATA gives standing to American nationals who were victims of terror attacks, to sue those who knowingly provided material support to an FTO, or to terrorist activities, including raising funds for FTOs. (18 U.S.C. § 2339B).  With prescribed penalties ranging from fifty thousand dollars per infraction in civil cases, to life imprisonment in criminal cases, practitioners in the field would be wise to become familiar with the evolving case law around the ATA, especially with recent developments in the U.S. Court of Appeals for the Second Circuit.

In September 2014, in the case of Linde v. Arab Bank, 269 F.R.D. 186 (E.D.N.Y. 2010), a jury found Arab Bank guilty of several offenses under the ATA, including aiding and abetting terrorism by knowingly allowing tens of millions of dollars to flow through their accounts to the families of Hamas terrorists. More recently, in Weiss v. National Westminster Bank, PLC, 768 F.3d 202 (2d Cir. 2014) (“NatWest”), the Court of Appeals found that under the ATA, plaintiffs need only show that the bank had knowledge of, or exhibited deliberate indifference to, whether or not it maintained bank accounts that transferred funds to a charity organization that funneled money to Hamas. In both cases, a bank managed accounts that transferred cash to a “middle-man” organization, which in turn provided funds for both terrorist organizations and legal charitable activities. Victims of the terrorist organizations won rulings in their favor against third-party entities operating as middlemen for the FTO.

These Second Circuit cases set forth the following rules:

  1. Causation – A defendant’s acts “were a substantial factor in the sequence of responsible causation,” and that the “injury was reasonably foreseeable or anticipated as a natural consequence” of those acts. (Linde)
  2. Scienter Requirement – Defendant “knew or was deliberately indifferent” to whether the “middle-man” organization provided material support (financing) to a terrorist organization, irrespective of whether that support actually aided terrorist activities. (Weiss)
  3. Fungibility of Money – Acknowledged earlier rulings that the specific money provided to the charities from the bank did not need to directly fund terrorist activities. Instead, merely providing funds to an organization that may have applied it to both legal, and terror organization activities was sufficient to show material support of a terrorist organization. (Weiss)
  4. Applicability of Foreign Laws – Found that US laws can be applied to extraterritorial actions, and govern the applicability of the ATA, preempting foreign law. (Weiss)

These new rules highlight the expanded reach of the ATA, while the facts of these cases mirror the current structure of the illicit market in cultural property, making it directly applicable to the latest developments in international cultural property acquisition and trade.

The traditional pattern of cultural property circulating in the illicit market – often utilized by designated FTOs – is shown to work in four stages, as identified by Peter B Campbell: (1) looting; (2) trafficking by organized criminal or terrorist networks from source nations abroad; (3) laundering of objects to give them false provenances, typically through legitimate internationally-connected dealers; and (4) entry into the legal market. Each step is a sphere of activity, and there may be multiple actors within each sphere. ISIL has utilized this same traditional market structure, using well-established smuggling routes throughout Jordan, Turkey and Lebanon to sell objects to intermediary dealers who legitimize the objects, and sell through legal channels to buyers in the West. These channels may range from high-end antiquity dealers, to objects sold by individuals through online marketplaces. For example, earlier this year a Syrian coin from around 500 BC was being sold on eBay with dirt still caked on it, and was widely reported by various news sources, including the Guardian, as potentially being excavated from ISIL controlled territories.

In a contemporary development, as reported by David Kohn in the New Yorker, ISIL has also begun to take control of the intermediary steps, reportedly involved from the first stage of extraction to the final sale and exit of cultural property from their controlled territories. In some cases, there have been reports that ISIL representatives are establishing direct, one-on-one relationships with buyers in the West. (see Russell Howard, et al., Digging In and Trafficking Out: How the Destruction of Cultural Heritage Funds Terrorism)

The international community has already taken some well-publicized steps to denounce and curb this trade. The UN Security Council has passed resolutions banning all trade in antiquities from Syria and Iraq, while certain EU nations have increased their import controls for such objects. In the U.S. this year, the Protect and Preserve International Cultural Property Act was reintroduced, and has passed in the House. The Bill would, among other things, restrict imports of cultural property from Syria.

Even with this increased scrutiny, many of these transactions continue to occur, and are imperfectly addressed under traditional domestic laws (e.g. the National Stolen Property Act, 18 U.S.C. §§ 2314 and 2315; U.S. war crimes statute 18 U.S.C. § 2441(c)). However, as seen with the banks in the highlighted ATA cases, the burden of proof for wrongdoing has been significantly diminished, making successful litigation under the ATA a real possibility in the art and antiquities market. Under the ATA theory, members of the class harmed by the FTO’s activities would have to prove that an institution or collector buying a cultural object, provided some value to an intermediary (or directly to an FTO itself) knowing that object was trafficked by, or for an FTO. Or even simply showing that they were deliberately indifferent to the supply chain providing such an object would be sufficient. This is a low bar to be met with the increased media coverage, and academic and law enforcement scrutiny in the region.

Finally, the reach of the ATA is almost limitless. So long as there is some personal or financial harm suffered by a U.S. national from an act of terror, a cause of action can be brought under the ATA by the said individual, their estate or heirs against any defendant for both domestic and extraterritorial actions solely under U.S. law. (18 U.S.C. § 2333(a)). This article merely addresses regions encompassed by the conflicts in Syria and Iraq, the ATA would apply to any place in the world with operating terrorist organizations or activities as defined under the statute.

While the looting of cultural property to fund violence is a decades old practice unlikely to abate soon, the increasing global scrutiny on ISIL and the wide-reach of the FTO activities, the recent develops in the Second Circuit interpreting the ATA, and the FBI’s warning of liability under ATA seems to indicate the Anti-Terror Act’s future potential as an unexpected tool for curbing the illicit trafficking of cultural property.

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About the Author: Timur Tusiray is a recent graduate of USC Gould School of Law, specializing in art and cultural heritage laws, human rights, and business law. He is currently an Orfalea-Brittingham Fellow at the Clinton Foundation. He may be reached at

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

Cosby’s “Conversations”: How Should Museums Decide What is in the Public’s Best Interest?

cosby 2

By Debra S. Friedmann*

Part of the core mission of the majority of museums is to educate the public. One way they achieve this is by using a range of informative literature: signs and labels to accompany a painting, an exhibition or a show. Some museums default to what has been coined the “tombstone label,” which includes minimal and basic identifying information such as the name of the painting, dimensions, materials, the artist, and an approximate date for when the work for art was made. Others have attempted to introduce technological innovation, a fundraising method, to the museum experience by providing limited information near a piece on a sign or label, and then using iPads and iPhones to offer an extended explanation on the piece. These decisions are deliberate choices made by museum curator for the purpose of educating the visitors. At times however, museum goers disagreed with the extent of the story the curators chose to tell.

Henry Ossawa Tanner (1859–1937) Study of an Arab (1897) Collection of Camille O. and William H. Cosby Jr. Photograph by Frank Stewart “Conversations Considered”

In a recent incident, on November 9, 2014, the Smithsonian National Museum of African Art in Washington, DC, opened an exhibit entitled “Conversations: African and African American Artworks in Dialogue,”on view through January 24, 2016. According to the Museum, the majority of the works on display are a part of its permanent collection; however, a third of the exhibit is on loan from Camille and Bill Cosby. In light of the controversy surrounding Bill Cosby, many museum goers have raised objections to the loan from the (in)famous actor due to the surge of dozens of rape allegations against him.

In order to keep the exhibit on display while simultaneously addressing the public outcry, the Museum posted an explanatory notice, both next to the exhibition and on their website. The notice explains that while the National Museum of African Art “in no way condones Mr. Cosby’s behavior,” the pieces from his personal collections are displayed because of their artistic value and because of the importance of the artists who made them, including Joshua Johnston, Henry Ossawa Tanner, Ousmane Sow, Eldzier Cortor, and Gerard Sekoto. The artwork featured in the exhibit, the museum claims, is meant to engage in the powerful stories and experiences of African and African American people, and should therefore be available to the public for educational purposes. To address the public concern and foster the Museum-visitor  dialogue, the Museum also invited people to express their thoughts and comments in a visitor’s book or by e-mail.

Would the museum have acknowledged allegations of illegal activity by the donor next to the exhibit had there not been a public outcry on the matter? In this instance, articles about the owner’s transgressions have splashed across pages in newspapers, magazines, tabloids, and internet sources, making it common knowledge. Recently, thirty-five of Cosby’s alleged victims appeared in a powerful photograph publicising the allegations on the cover of New York Magazine just a week after his 2005 deposition was released. Whereas all too often artworks are displayed without relevant information about their complex histories; which in turn removes the work from its context and results in a one-dimensional interpretation of its historical importance, in this instance individuals coming to the Museum are encouraged to actively participate in the conversation and engage with the exhibit in a complex and thoughtful manner

One example of an active obligation to educate the public about the history of an artwork occurred at the conclusion of the seminal case US v. Portrait of Wally, that lasted more than a dozen years. There,  the parties agreed on a settlement whereby the heirs released their claims to a Schiele painting after being paid 19 million dollars by the Leopold Museum in Austria. As an integral part of the settlement, the Austrian museum was also obligated  to display in perpetuity a wall label narrating the ownership of the work and the tragic trajectory it took from the home of its pre-war Jewish owner into the hands of Austrian museums. In the case of Schiele’s portrait, the label now provides history about the painting’s provenance and journey as an object, a history that enriches and contextualizes the work beyond what is perceived on the surface. For each artwork thus labeled there are hundreds of thousands of artworks looted from source countries or stolen during armed conflict  that currently sit on display in museums without any mention of their journies. In the case of Nazi-era loot, where heirs may be tied up in litigation trying to get their stolen property back, museums seek to quiet title claiming, insisting that the educational value to the public overrides private interests. By hiding problematic provenance information from public audiences, museums mislead the very audience they claim they aim to enrich and educate.

As for the Cosby controversy, was putting an added label next to this temporary exhibit done simply to calm the public, or was it also an element of the self-imposed responsibility to educate the public? Not all sensitive stories receive the same degree of publicity, but that should not be a reason for any museum to exclude the history of a piece, why it became part of a museum exhibition, and what controversies surround the work. As we have discussed in an earlier piece, Museums have the burden of serving as a moral compass of the society. Current events and art exhibits inspire and create a dialogue and an exchange of ideas which arguably lasts beyond the five to thirty seconds one spends looking at a piece as reported by museum researchers worldwide.

If Cosby’s exploits are reason enough to place a sign qualifying the nature of a loan, surely museums that display stolen works should acknowledge that certain pieces are subjects of litigation or how looted art came to their institution. If museums believe that the educational value of showing these works trumps other concerns (tax breaks, stopping illicit excavation, looting, poaching, theft, etc.) than the public deserves the full story, not the abridged version.

Select Sources:

  • Elkins, James. “How Long Does It Take To Look at a Painting?” The Huffington Post., 8 Nov. 2010. Web. 18 Aug. 2015.
  • “Research – Articles & Other Readings – Visual Thinking Strategies.” Research – Articles & Other Readings – Visual Thinking Strategies. Visual Thinking Strategies, n.d. Web. 18 Aug. 2015.
  • Rosenbloom, Stephanie. “The Art of Slowing Down in a Museum.” Editorial. The New York Times, 9 Oct. 2014. Web.
  • Russick, John, and Andrea Michelbach. “Excellence in Exhibition Label Writing Competition 2013.” American Association of Museums – U.S. (n.d.): n. pag. Web.
  • Serrell, Beverly. Exhibit Labels: An Interpretive Approach. Walnut Creek: Alta Mira, 1996. Print.

*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

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.

Summertime and the Art Buyin’ is Easy: Asking Questions about Art Transactions


Screen shot 2015-08-06 at 11.49.43 AMBy Daniel S. Kokhba, Esq.*

In the art market, a work of art is often carefully scrutinized and questioned by collectors and their agents concerning its style and substance. The art sale, however, may receive far less careful review. Given the prevalence of fraud, conflict of interest and lack of transparency in such transactions, one should adopt the habit of asking hard and direct questions before committing to a deal – particularly concerning price and associated fees.

While a buyer often intuitively knows to ask for the price of a work of art or service, the basis for the asking price, and a discount, the inquiry should not end there.

In the event that the  price of a work  is especially low relative to market, a buyer should ask the seller why. In some cases it may well be that the market commands a reduced price (e.g., unsold inventory, comparable sales). On the other hand, a buyer should be aware that  bargain basement prices often serve as red flags for lack of authority (or title) to sell, the possibility of  forgery or other fraud.  See Davis v. Carroll, 937 F.Supp.2d 390 (S.D.N.Y. 2013).

Screen shot 2015-08-06 at 11.52.19 AMA buyer should also consider and ask (i) who, aside from seller, stands to gain financially in connection with a sale and (ii) whether the sale price is being split with anyone else. The identity and financial interests of undisclosed third parties will help a buyer better understand all of the parties involved in the transaction . Fee splitting and/or sharing arrangements commonly inflate the price of a work of art.

A buyer should also ask about any costs closely or peripherally associated with the transaction.  Novice and sophisticated collectors alike often overlook and fail to consider storage, insurance, shipping, framing, appraisal, and other associated expenses. If the buyer intends to resell the work, brokerage fees and income tax may be added to the list of expenses. Such expenses will invariably add to the total cost of the transaction and accordingly are considerations that a buyer should be cognizant of in order to get a fuller picture of the transaction.

Awareness of these possible costs will lead to asking questions that will shed more light on, inter alia, the inner workings of the transaction, which are often not advertised at the time of sale. The answers will typically invite further inquiries, providing the buyer with pertinent information.. It happens far too often that referral fees, multiple party fees, and other foreseeable and associated costs and expenses are disclosed only after the deal has been made.  Dodging a shady deal rather than trying to get out of one after the fact  will avoid the possibility of dispute, litigation and further expenses.Taking on an assertive role as a buyer and conducting the appropriate level of independent research should be the approach taken in any transaction involving artwork.

*About the Author: Daniel S. Kokhba, Esq. is a Partner at Kantor, Davidoff, Mandelker, Twomey, Gallanty & Kesten P.C. and focuses his practice in the areas of art law and business law.  He may be reached at or 212-682-8383

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

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).


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.