Trailblazing in the 21st century? A Brief Summary of Poland’s Restitution Efforts for Holocaust Looted Artwork

By Adir Paner*

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War Losses, Page of the Min. of Foreign Affairs, Rep. of Poland

Situated in the center of the theatre of war during World War II (the “War”), Poland’s wartime losses of cultural goods were vast and, at the same time, exceptionally difficult to assess accurately because many of the original records were removed or intentionally destroyed by the German occupiers or Soviet troops. For this reason, the often-quoted number of 516,000 lost works of art does not reflect the true enormity of the losses sustained. One of the best known examples of a lost work is Portrait of a Young Man (1513-1514) by Raphael, a painting that was stolen from Poland by the Nazis and is regarded by many historians as the most important painting missing during the War. However, this is just one of the thousands of looted works on the list maintained by the Ministry of Culture and various national institutions tasked with recovery of Polish valuables. See Ministry of Foreign Affairs Republic of Poland “War Losses.”

In recent years, Poland seems to have become particularly active in researching and recovering looted cultural property that went missing after the War, by monitoring art auctions and seeking restitution from private and public institutions around the world. The process is time and labor intensive, and largely affected by political relations, as illustrated by one of the recent successes, the 2014 return of eighteenth century painter Francesco Guardi’s Palace Stairs. Guardi’s work was located in Stuttgart Germany and restituted to Poland by Germany’s Foreign Minister Frank-Walter Steinmeier. The painting was looted during WWII from the National Museum in Warsaw. Guardi’s painting was requisitioned in 1939 from the National Museum in Warsaw by German authorities. After WWII it was shipped to the Central Collecting Point in Wiesbaden, and transferred to the University of Heidelberg, and finally to the Staatsgalerie in Stuttgart. The 2014 handover of the painting is a visible sign of mutual trust between Germany and Poland. More importantly the transaction is evidence of the effectiveness of active dialogue and joint efforts to return looted cultural goods. See Ministry of Foreign Affairs Republic of Poland “Francesco Guardi ‘Palace stairs’ returns to Poland.”

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Jean-Antoine Houdon, Bust of the goddess Diana, (18th century)

A more recent example of a Polish restitution occurred in late October 2015 when an eighteenth century bust of the goddess Diana looted from the Royal Lazienki Palace in Warsaw by the Nazis was returned to the Polish government following an amicable resolution with Austria. The successful restitution effort was made possible through the diplomatic support offered by the Polish Ambassador to Austria, Artur Lorkowski, and the collaborative pro-bono work of the Art Recovery Group and the Polish Ministry of Culture. The Houdon bust was scheduled to be returned to the Polish government ahead of a formal restitution ceremony at the Royal Lazienki Palace in November of 2015. Though this bust is returning to its rightful owners, there are still many works of art that remain in Austria as a result of Nazi plundering, and the Polish government persists in its efforts to find and recovery all of them.

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Pieter Bruegel the Elder, The Fight Between Carnival and Lent (1559)

According to Artnet News article “Nazi Loot Claim Bruegel Painting,” Poland is currently pursuing another claim against Austria; its largest claim to date in its effort to restitute a painting by Pieter Bruegel the Elder, The Fight Between Carnival and Lent (1559). The Renaissance masterpiece, whose value is estimated at $77 million, was purportedly seized by Charlotte von Wächter, the wife of Krakow’s Nazi governor Otto von Wächter, during the German occupation of Poland. The painting is currently displayed at the Kunsthistorisches Museum in Vienna.

Art Recovery Group is facilitating the Bruegel the Elder restitution efforts. It’s CEO, Christopher A. Marinello released a powerful statement in regards to their restitution efforts: “[c]ountless objects looted by the Nazis remain unaccounted for and we encourage the art market to exercise greater diligence in establishing the true provenance of works bought and sold. Passing these problems onto the next generation is not the answer, they need to be resolved now.”

Screen Shot 2015-11-25 at 3.15.47 PMPoland’s efforts to recover their own cultural valuables is laudable and praiseworthy; however, hypocritically, Poland has not been as helpful in restituting cultural property belonging to other sovereigns. Poland is not the only nation in Europe that had artworks stolen from their collections both private and public. The sheer number of displaced property from the Soviet Union, France, the Netherlands, etc., etc., remains hard to ascertain. Austria and Germany have set examples that should encourage all nations to collaborate in the restitution of property to its rightful owners; both national and private entities that find looted art in their collections should look to the laudable examples of restorative justice set by these nations.  

Over 40 nations were signatories to the 1998 Washington Principles, where they endorsed the concept of seeking fair and just solutions to Nazi-era art claims, which would suggest that any trailblazing must be a two-way street.

*About the Author: Adir Paner is a Center for Art Law Legal Intern (Fall 2015) as a part of the Benjamin N. Cardozo School of Law Holocaust Restitution Claims Practicum.

Art Price Indices: Op Ed

Note from the editors: The subject of art investment and art as an alternative asset is of great interest to the regulators creators and collectors. Center for Art Law has published writing on related subjects before and we are delighted to be bringing an opinion on the subject of art indices from a seasoned art dealer and educator, Carole Pinto.

For additional readings on the subject of art markets, visit

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By Carole Pinto*

The boom in prices of artwork sold at auction since the financial meltdown of 2008 has led to the proliferation of articles written by people who attempt to apply the tools used to interpret the financial markets to the art market.  Much of the data provided by art dealers, advisers, consultants and fund managers, among others, is often used as a means to promote their inventory, while more objective data, such as the Mei Moses Indices and the Art Market Research, do not comprise a broad enough base to reflect significant and data driven movements (meaning in the art market).

A multitude of private equity art funds, including Philip Hoffman Fine Art Fund, The Collectors Fund and the Art Fund Association and a myriad of art advisory firms as well as advisors in the personal banking departments of financial institutions such as Bank of America, Citibank, Deutsche Bank, HSBC, JP Morgan Chase and Goldman Sachs regularly consult with high net worth clients on the advantages of including artwork in the long-term portion of their portfolio, underlining the positive aspects, but often disregarding risk of erosion of asset value over time.  The pleasure of admiring a work of great beauty combined with a potential appreciation in value over a fairly lengthy period of time has to be weighed against the illiquidity of the art market, the possibility of not recuperating the purchase price due to the high cost of getting in and out of the market (commissions of auction houses, for buyers and sellers, on average 25%), the impact that fashion and trends have on the value of a work of art, currency fluctuations and factors such as the geopolitical climate and world economic conditions.

What is the purpose of art market indices? The benefits? What analytical financial data is currently available to the public? One must keep in mind that less than 50% of all artwork sold worldwide is done so publicly, so any market data that is available is drastically skewed because it is based on publicly shared data.  To begin with, it is important to realize that the art market is not one big market, but a series of smaller markets representing over $66 billion in recorded sales annually, according to the most recent Bloomberg Business Report.  It is the largest unregulated market in the world. Contrary to the heavy regulation and transparency of the financial markets, the art market has almost no regulatory oversight. Art assets acquired by funds are not subject to the same level of investor protection measures as securities and other financial instruments. Aside from anti-fraud provisions, auction regulations, cultural property laws, and general consumer protection and contract law, there is little regulation and the art market can be used for money laundering and tax avoidance purposes.

The difficulty of regulating the market lies not only in the resistance of dealers to imposed rules, but also in the fact that works of art are not fungible, and that their value is impossible to calculate against any independent measure at any given point in time.  Two works by the same artist, executed in the same year, with the same subject matter, with comparable dimensions, in the same condition can command vastly different prices due to the quality of the work which unfortunately is not quantifiable.  

There are also major differences between collecting and investing in art one is a passion and the other profit.  Typically, investors in the stock market are advised to diversify their portfolio in order to mitigate risk, since some stocks prices rise while others tend to underperform.  Even though many art collectors have eclectic tastes, their approach is not to buy a basket of artwork a few Impressionist paintings, some old Masters, Chinese porcelain, etc.–but to concentrate on a few artists or types of art that appeal to them.  

The increase in sheer wealth of the top .01% of the worlds population in India, China, Russia, and North and South America has created a bifurcation in the market, resulting in a widening spread between blue chipartwork by well-known artists and the rest of the market. Many of these active players investin art in the same way they invest in other hard assets such as precious stones and metals, as well as real estate, reducing their exposure to currency and political or economic risk. Exponential growth in the market means a lot more players in the field, with a greater risk for mistakes where provenance, ownership and authenticity are concerned. In addition, there are more middlemen in the market today, leading to a diffusion of responsibility when it comes to authentication of a work of art.

In light of the aforementioned caveats, there are a number of specific factors that have to be taken into careful consideration when contemplating art as an investment vehicle:

Artwork traditionally has to be held for a minimum of 10 to 15 years before realizing potential profits. The notion of flipping art for a quick profit is highly risky and is reserved for a select group of savvy dealers. Additional costs associated with buying art include storage, transportation and insurance, appraisal for tax purposes, and buyer and seller premiums.

The lack of liquidity in the art market makes it difficult to unload a work of art for quick cash. One must keep in mind the high cost of entry and exit from the auction market, with a commission of 25% for both buyer and seller, means a work of art has to increase by at least 50% before profits can be realized. Fashion and trends cause tremendous fluctuations in the valuation of works of art. What was considered hotten years ago might have fallen out of fashion, and collectors have to sometimes wait years before the item they want to sell becomes popular once again. It is difficult to assess the value of a work of art at any point in time given the impossibility of obtaining sales data from an important segment of the market, private dealers. This lack of data (price information is available for less than half of all artwork sold) combined with a lack of transparency of the market impacts the validity of any market data analysis.  

There are a few tools that have been made available to the public that try to analyze trends in the art market. Art indices provide a limited tool, and as such it is important to understand what data they include and what they leave out. Art indices are informal records of prices for a select group of works sold at auction, and are not subject to any kind of external scrutiny or regulation.  As an exercise demonstrating this, one only has to subscribe to any number of companies that compile data obtained from the public market, and carefully read the information pertaining to what the numbers actually reflect.  

Art indices also fail to include works that do not sell at auction, which reflects a number of art works that could exceed 50% of those presented at auction. Indices tend to track only the most successful art sales, and do not take into account artwork that is not considered valuable enoughto be resold.

Screen Shot 2015-11-16 at 11.14.59 AMThe Mei Moses Family of Fine Arts Indices, named after two New York University professors, Jianping Mei and Michael Moses, has high name recognition, a long history and a broad base that covers over 30,000 repeat sales. They publish a World All Art Index as well as seven indices representing different categories of collecting. The information is updated annually, though Mei Moses recently indicated that a semi-annual update for the World Wide Art Index will soon be made available according to online information. Quarterly tracking estimates for these indices based on this year’s results are also available. It is noteworthy that the Mei Moses indices do not take into account transaction costs (shipping, insurance, sales tax, buyer/seller premiums), and they only reflect the prices of artwork that has turned around twice in the marketplace.  The source of information is data from Sothebys and Christies, but does not include online sales.  Furthermore, access to the Mei Moses indices is subscription based, costing anywhere from $100 to $250 year.

Another source, Art Market Research, which has existed since 1985, publishes 500 indices covering a variety of categories including vintage wine, Old Masters, jewelry, etc. Some of the data is published in the Wall Street Journal, the Financial Times, BusinessWeek and the Economist, but a complete listing is available to online subscribers. Here too, sale prices that result from online purchases are not made available, meaning the data are less representative of the broader market than prior to online transactions. The existence of online sites limits the information available to collectors in their quest for asset valuations, and combined with a growing number of private sales (both by dealers and auction houses playing the role of dealers) means price comparison is becoming more difficult and less meaningful for understanding market trends.

Artnet indices, again only available to subscribers, cover Contemporary, Impressionist and Modern art. Subscribers can also access artist-specific indices or indices devoted to a subset of an artists work. Citadel Art Price Index includes the results from seven auction houses, but given the multitude of smaller auction houses around the world, the results appear to reflect a very limited dataset.

Sites such as Art Price and Art Net rarely indicate whether a work of art was offered privately before coming to auction and therefore is not fresh to the market, which puts downward pressure on the price. They do not indicate whether or not a dealer is cornering the market, therefore pushing prices up. It is imperative to know key players in the market in order to understand why certain prices are obtained for specific artworks. Price guarantees made by auction houses to sellers are also not indicated, nor are factors such as the geopolitical climate or world economic conditions, all of which have an impact on the art market.

Historically auction houses and other private entities have maintained indices for internal use, which are not available to the public at large. For example, in the mid 1970s, Sothebys auction house attempted to create such an internal index, which was used as a marketing tool to entice clients to purchase art sold there. Then as now, data available was limited to public sales and sales conducted by Sothebys in private transactions.

An integral part of data missing from the indices is how important the aesthetic quality, the intrinsic beauty of a work, is to its valuation. Financial and statistical tools overlook art history–the period in the artists life during which a work was created, the social, political and artistic movements that influenced its creation, or factors impacting the artists personal life–all of which contribute to the artistic creation and works reception in the marketplace. Those choosing a brand name artist without reference to the quality of the work and advice from dealers and experts in the field are exposing themselves to additional risks.   

In the opinion of this author, art should be purchased for the purpose of pleasing the eye, as food for the soul. The great art collector Paul Mellon once described collecting art as an investment in pleasure, a treasure for the eye.” Those who believe that price charts and tabulated data alone can serve as a fireproof guideline for investors could benefit from considering art for both its financial and cultural capital.

About the Author: Carole Pinto is a private dealer and art advisor who teaches a course on the Art Market at Hunter College. She is a regular contributor to the Fine Art Connoisseur magazine. Her work experience includes curatorial work at the Metropolitan Museum of Art and Brooklyn Museums, art investment at Sothebys, Corporate Finance at Salomon Brothers and consulting at the New York State Council on the Arts.

Case Review: Galin v. Kunitake Hamada (2015), or Legal Storm over “Ice Storm”

By Elizabeth Weber, Esq.*
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In early September 2015, a former Tennessee news anchor who invested in Andrew Wyeth’s Ice Storm [the Painting] sued a Japanese art dealer in the Southern District of New York over the proceeds from the Painting’s May 2015 sale at Christie’s. The investor, Reed Galin, purchased a one-third interest in Ice Storm from his childhood friend and college roommate, now-disgraced art dealer David Ramus, in the late 1980’s.

The controversy over Ice Storm began in 1989 when Ramus bought the painting from Christie’s for $319,000 to be financed via an extended payment plan. Under the terms of the plan, Ramus would have to pay Christie’s one-third of the final bid price plus the buyer’s premium by June 23, 1989, another one-third of the final bid price by July 24, 1989, and the remaining one-third by August 23, 1989. About one month later, Galin entered into a written agreement to purchase an interest in Ice Storm from Ramus for just over $106,000. According to the complaint, Ramus “agreed that neither the Painting, nor any interest in it, would be sold or transferred to anyone, without [Galin’s] prior knowledge and consent.” Complaint at 5, Galin v. Hamada, No. 1:15-cv-06992 (S.D.N.Y. 2015). Soon thereafter, Ramus sold another one-third interest in Ice Storm to Don Sentell. Galin had prior knowledge of and consented to the one-third interest sale to Sentell.

Unbeknownst to Galin, Ramus had already sold 100% interest in Ice Storm to the Coe Kerr gallery in New York City later in 1989 in exchange for another painting, Children in the Wood, by Frank Weston Benson. However, Ramus continued to assure Galin that he was actively searching for an Ice Storm buyer throughout the early 1990’s, blaming the years of stagnation on the slow art market.

In a separate proceeding, Ramus was indicted and tried by the U.S. Attorney in the U.S. District Court for the Northern District of Georgia for fraud and conversion arising out of his fraudulent art dealings with a number of individuals, Galin being one of them. The Georgia case culminated in Ramus’s conviction and sentencing to a federal prison in 1996. United States v. David S. Ramus, No. 1:95-CR-199-01 (N.D. Ga. 1996). As it turns out, Ramus had sold a number of paintings in his possession without the knowledge of the piece’s owners, nor did Ramus pay the owners for the sale of their property.  Because Ramus sold Ice Storm without Galin’s knowledge nor did Galin receive any proceeds of the sale, Galin was officially designated a victim of Ramus’s crimes by the U.S. Attorney. Although Ramus’s property interest in Ice Storm was extinguished through bankruptcy proceedings and the other co-owner, Sentell, extinguished his rights as a Settling Creditor, Galin acted as a non-Settling Creditor in the 1990s proceedings. (Note: A non-Settling Creditor does not settle the outstanding debts at issue in a bankruptcy proceeding.) Accordingly, by acting as a non-Settling Creditor, Galin did not waive his rights to pursue a property interest in Ice Storm piece. Unlike other pieces that Ramus fraudulently converted, Ice Storm was never recovered by the authorities.

When Ice Storm appeared on consignment through Christies the identity of the consignor was left out. In his complaint, Galin indicates that he searched for Ice Storm for years, contacting art dealers in an attempt to locate the piece. Finally, in May 2015, Galin learned that the painting was being offered for auction at Christie’s by Tokyo-based art dealer Kunitake Hamada. Hamada purchased Ice Storm in December 2013 from K.K. Shinoda Bijutsu in Tokyo. See Memorandum of Law in Support of Defendant’s Motion to Dismiss, Galin v. Hamada, No. 1:15-cv-06992 (S.D.N.Y. 2015). 

Galin contacted Christie’s, which then reviewed Galin’s claims. As a result, Galin, Christie’s, and Hamada all agreed to allow Christie’s to sell Ice Storm and instead focus any assertion of rights on the proceeds from the sale only, and not the actual painting. The parties agreed to allow the sale of Ice Storm to proceed to preserve the painting’s market value, and determine competing claims later. The business decision aligned with the theory that by withdrawing a piece from sale, followed by litigation over it may damage the value of the work. Ice Storm sold for $820,000 (plus $169,000 as the buyer’s premium.) The net proceeds from the sale total $803,600 after deductions.Currently, the proceeds from the sale are being held by Christie’s pending the outcome of this litigation to be disbursed pursuant to a court order.

This action is before the U.S. District Court for the Southern District of New York because the Southern District has subject matter jurisdiction over all the parties through diversity because the plaintiff is not domiciled in the same state as any of the defendants and the amount in controversy exceeds $75,000. Further, the complaint alleges that the court retains in rem jurisdiction over Ice Storm because Hamada claims an interest in the piece, which is currently located in New York state. In the complaint, Galin asserts his right to an equitable lien on the sale proceeds of Ice Storm. Galin further seeks the imposition of a constructive trust on the proceeds of the sale. A constructive trust is an equitable remedy used by courts to prevent unjust enrichment and, in this case, would result in Hamada paying the proceeds of the sale to Galin.

Hamada subsequently moved to dismiss Galin’s claim for failure to state a claim upon which relief may be granted.  See Motion to Dismiss and Memorandum of Law in Support of Defendant’s Motion to Dismiss, Galin v. Hamada, No. 1:15-cv-06992 (S.D.N.Y. 2015).  In the motion, Hamada asserts that “a dealer in Ramus’s position can pass good title to a third-party with respect to goods entrusted by a seller in Galin’s position, even if the dealer acts with larcenous intent toward the seller.”  Memorandum of Law in Support of Defendant’s Motion to Dismiss at 1, Galin v. Hamada, No. 1:15-cv-06992 (S.D.N.Y. 2015).  Accordingly, argues Hamada, because Galin entrusted Ice Storm to Ramus, Ramus could pass good title to the Coe Kerr Gallery despite of Ramus’s unlawful conduct, and Galin has no claim against Hamada for the proceeds of Ice Storm’s sale.

Attorney for plaintiff is Richard A. Altman. Attorneys with Cahill Partners LLP are representing the defendant.


  • Galin v. Hamada, No. 1:15-cv-06992 (S.D.N.Y. 2015).
  • In re David S. Ramus, No. A94-77777 (Bankr. N.D. Ga. 1997).
  • United States v. David S. Ramus, No. 1:95-CR-199-01 (N.D. Ga. 1996).

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

Book Review: “Fair and just solutions?” (2015)

By Adir Paner*

Screen Shot 2015-11-11 at 9.28.58 AMSeventy years since the end of World War II, earnest efforts to restitute property, cultural and otherwise seem to be on the rise. In addition to the millions of lives lost, displaced, peoples cobbling to make a living in new homes and new lands, many millions of pieces of property remain lost and out of the reach of their rightful private and public owners. Despite the best efforts of the allied forces when finding and administering collecting points, countless pre-war art owners, such as museums, and private families (Jewish and gentile) had property confiscated by the Nazis which was not subsequently restituted.

As objects resurface and as heirs discover their legacy, steps should be taken to expeditiously achieve an equitable solution, notwithstanding the time that lapsed. Recognizing this principle, in 1998, the U.S. Department of State and the U.S. Holocaust Memorial Museum co-hosted the Washington Conference on Holocaust-Era Assets. Delegations from forty-four nations and thirteen non-governmental organizations participated. The 1998 conference addressed various issues related to the confiscation of assets by the Nazis and others during the Holocaust, and was responsible for coining the the term “fair and just solutions,” which refers to the norm for the assessment of ownership claims to Nazi-looted art, as codified in the Washington Principles in 1998. While more than 40 nations became signatories to the Washington Principles, five nations (Austria, Germany, France, the Netherlands and the United Kingdom) went so far as to organize committees to review claims brought by claimants seeking recovery of cultural property, lost as a result of widespread and large-scale crimes committed by the Nazi regime.

Published in 2015, Fair and just solutions? is a compilation of essays presented during an eponymous international symposium at the Peace Palace in The Hague that took place in November 2012. The question mark in the title alludes to the lack of clarity surrounding this norm. What is ‘fair and just’? Many millions of people paid the ultimate sacrifice, losing more than just their valuables in the last century. Is it possible to find a fair and just solution to a problem that is much more expansive than mere loss of property? Additionally, how do we resolve competing interests of merit between victims of Nazi oppression, and the blameless institutions which acquired and cared for the art through no fault of their own?

The 2015 volume edited by Campfens, contains expert opinions aimed at evaluating the status quo in the field of non-governmental restitution claims to Nazi-looted art and at discussing the legal framework for ownership claims by heirs or dispossessed owners.

Fair and just solutions? delivers a detailed account and perspective on international claims for looted property. The editor responsible for organizing the 2012 conference in the Hague, Evelien Campfens, is a renowned attorney and historian as well as the Inaugural Director of the Dutch Restitutions Committee. For thirteen years, Campfens lead the research team and oversaw the coordination of cases and preparation of advisory opinions. Campfens’ extensive background put her in a strategic position to gather and assemble key pieces of restitution history and to offer her critique on them. 

Fair and just solutions? documents the information discussed in the conference, providing guidance for those who were unable to attend in 2012, as well as for newcomers to the field. Through the valuable contributions by attorneys and historians practicing in the U.K. and Continental Europe, a compilation of opinions by leading experts, and a discussion amongst stakeholders, Fair and just solutions? explores a way to move forward toward ultimate resolution of the Nazi-era art claims. As a result, it serves as an excellent resource for all those interested in the subject matter, including law students, educators, potential claimants, and attorneys involved in the restitution of art.

The books recurrent themes include: (1) the status quo with regard to the ‘fair and just solutions’ norm that was introduced in the 1998 Washington Principles, presented at the Washington Conference on Holocaust Era Assets; (2) the procedures available to claimants; and (3) how things stand in terms of international cooperation in expeditiously achieving a fair and just solution.

The book is divided into eleven chapters, each contributed by a different author, including inter alia the former U.S. Special Envoy for Holocaust Issues, Douglas Davidson, expert advisor to the U.K. Spoliation Advisory Panel Professor Norman Palmer, and former counsel to the Dutch Parliament Rob Polak. Opening with Campfens’ account of the “Old and New Rules for Looted Art” which analyzes instruments of soft and hard international law, the book progresses through important concepts highlighted by other experts.

The book also contains intriguing interviews with claimants. One such contribution entitled “Ultimately the Applicant Needs to Feel that Justice has Been Done,” recapitulates an interview with two great-grandchildren of Samuel van den Bergh, who describe their claims for a Persian medallion carpet in the Netherlands. It is a rare opportunity for restitution historians and pupils to learn of first hand experiences in the restitution process.  

In the introduction, Campfens points out that it is impossible to thoroughly explore all topics related to Holocaust restitution, such as the differences between the approach of different nations to restitution claims. Notwithstanding Campfens disclaimer and the relatively brief nature of the volume, the detailed appendices provide valuable sources for obtaining more information. Featured are several declarations, resolutions, and governmental acts pertinent to the restitution of confiscated property (e.g., Washington Principles on Nazi-confiscated Art, UNESCO Declaration of Principles Relating to Cultural Objects Displaced in Connection with the Second World War etc.) The general layout of the book spotlights the key documents in the development of international restitution law.

The lists of hard law (binding legal obligations in the international arena), procedure and legal instruments that appear within the chapters as well as in the addendum to the volume may be dull at times, but it is necessary to analyze the statutory impediments and distinguish legal procedures amongst other things for this book to accomplish its informative purpose. The issue is mostly alleviated by the book’s structure; Campfens is careful to include only material that she found essential to the understanding the restitution process.

Owing to the fact that Fair and just solutions? is a compilation of articles by multiple authors, the chapters may be pertinent to a diverse readership. Additionally, editors organized the book in short paragraphs with headers, making it simple for the reader to follow. Each chapter is supplemented with a brief conclusion, either commentary by the editor or key points summarized by the contributing authors, which makes for a useful dénouement—summarizing key points. Overall, Fair and just solutions? serves as a readable and informative reference on the evolution of the law on restitution, an analysis of international practice, and suggestions for future approaches to Holocaust-related claims.

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From the Editors: On December 2, 2015, Evelien Campfens will discuss the book and the recent cases involving restitution efforts at the first international Art Law Mixer in London. The event will be held at Stephen Ongpin Fine Art Gallery. For additional details please visit our calendar of events or contact Center for Art Law.

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*About the Author: Adir Paner is a Center for Art Law Legal Intern (Fall 2015) as a part of the Benjamin N. Cardozo School of Law Holocaust Restitution Claims Practicum.

Seeing Double: Nearly Identical Photograph Sparks Copyright Controversy

By Loren Pani*

Imagine the following scenario: You go on vacation with a group and take a gorgeous photo of some natural object. Mere seconds later, someone, standing almost exactly where you were standing, takes a photo of the same natural object. Years later you submit the photo for a contest, win the contest, then promptly find out that someone has claimed that you might be infringing their copyright. If this sounds far-fetched, it shouldn’t because it happened to a British student in 2006 who took a photo of an iceberg in the Patagonia ice fields. This begs the question:


Center for Art Law, Oct. 21, 2015.


Center for Art Law, Oct. 21, 2015.


Can you have a successful claim for copyright infringement if the photo is not copied, but is nearly identical?


Almost from the time that photographs were considered copyrightable subject matter they were challenged in court. In Burrow-Giles Lithographic Co. v. Sarony, the defendants argued that photographs were neither writings (as specified in Article 1, Section 8 of the United States Constitution) nor works of authorship since they involved a mechanical process. The Court upheld the copyrightability of photographs and concluded that they were both writings and works of authorship. For purposes of the Copyright Act, anyone deemed an “author” of a photograph is able to sue for infringement under Section 501. “Whether a particular photograph has been infringed will, of course, be determined by the ordinary substantial similarity test, tempered by the fact that a photographer may not obtain exclusive rights over the object depicted—ruling out any claim of infringement when another photographer reshoots the same object or scene without copying plaintiff’s originality over the mood evoked by the photograph or a scenes a faire.” The court in Leigh v. Warner Bros., Inc. noted that there is a relatively narrow scope of protection for photographers who takes images of natural objects and scenes. Often, photographers make the claim that they are responsible for the “mood” of a particular photograph, which includes lighting, shading, timing, angle, etc. For example, in the case of Sahuc v. Tucker, plaintiff claimed that defendant infringed upon plaintiff’s copyright. The photographs at issue involved the famous St. Louis Cathedral in New Orleans shrouded in mist and taken from the same angle. The court noted that although plaintiff made a valid effort to show that the two photos were identical, slight variations of the photographs lead to the conclusion that they were not substantially similar.

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Photograph by Marisol Ortiz Elfeldt, Nov. 6, 2006.

Photograph by Sarah Scurr, Nov. 6, 2006.

Photograph by Sarah Scurr, Nov. 6, 2006.

In the case of the photographs of the iceberg, it is clear that both of the photographers captured a different image and that the British student did not make a photocopy or reproduction of the other’s photograph. Furthermore, since it is a natural object, neither would be able to claim copyright on the iceberg itself. Therefore, a claim for copyright infringement would fail even though the images were nearly identical. To give protection to the photograph would open up a Pandora’s box of issues and would invite baseless lawsuits into court from people who claimed that someone else infringed their copyright. Even worse, it would force governments to make certain natural and man-made objects off-limits to photographs as some countries have done with their national treasures. Going forward, as long as a photographer doesn’t go to pains to recreate the “mood” of a particular scene, there should be no issues of copyright infringement. It is only in those rare circumstances that photographers have a viable copyright infringement claim.

Selected Sources:

About the Author: Loren Pani, a volunteer with Center for Art Law, recently graduated from Brooklyn Law School and is now working for the firm of Alter, Kendrick & Baron, LLP as a music copyright attorney (pending admission to the New York Bar).

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.

The National Historic Preservation Act at 50: A Look at the Historic Preservation Movement in the United States

By Lindsay Dekter*

The current heritage climate, which sees the seemingly endless circulation of heart-wrenching images of the destruction of cultural heritage in the Middle East, or the recent ICC prosecution that serves as a reminder of the destruction of cultural heritage in Mali in 2012, can at times make it difficult to remember the significance of work done by heritage professionals, the power of heritage policy, or the field’s achievements more generally. By retreating momentarily from the current global heritage crisis we can appreciate one such success–the National Historic Preservation Act–in the United States, where celebrations in honor of the 50th anniversary of the country’s national heritage legislation have already begun. Highlighted below are some of the important milestones, groups, and laws that informed the National Historic Preservation Act’s creation and content, as well as an overview of one of the Act’s most powerful tools: the National Register of Historic Places.

Next year marks the golden anniversary of the National Historic Preservation Act, and celebrations are occurring nationwide to honor the landmark legislation (no pun intended).  Festivities have already begun in New York, where events surrounding the anniversary of the New York City Landmarks Law of 1965 are taking place. Two programs scheduled for October alone are sure to impress, including the Transit Museum’s exhibition “New York’s Transportation Landmarks,” which celebrates all things historic and transit in the five boroughs (closing November 1, 2015), or the recent New York City Bar sponsored “History in the Making: The New York City Landmarks Law at 50,” a one-day conference held on October 26, 2015 that brought together experts to discuss the past, present, and future of the New York City Landmarks Law.

For those municipalities or jurisdictions not celebrating a landmarks law anniversary, Preservation50, a coalition of national, state, and local preservation groups managed by Cultural Heritage Partners and the Heritas Group, is coordinating and connecting events to commemorate 50 years of the National Historic Preservation Act (NHPA) throughout the United States. These events, while meant to celebrate the history of federal landmarks legislation, also aim to connect leaders in the field for strategic planning that will ensure the continued success of the National Historic Preservation Act into the future.

Legislating Preservation Activity in the United States

The twentieth century proved itself a particularly hostile period for America’s historic and natural treasures. Although the country’s heritage had suffered losses during the early twentieth century, the losses to the built environment in particular intensified during the post-war period, when cities experienced acute changes in both the use and perception of place and space, the result of new practices in manufacturing and urban planning and redevelopment, as well as suburbanization, to name a few. The threat toward and actual destruction of historic and natural sites leading up to and during the mid century saw the founding of numerous historic preservation groups throughout the country that sought to address issues locally. One such group, established in 1920, was the Preservation Society of Charleston. In 1931, the Society, prompted by the recent U.S. Supreme Court Euclid v. Ambler Realty Company decision, was integral to establishing the first preservation-related zoning ordinance in the United States (in Charleston) that specifically addressed the protection of built heritage. Following the Euclid decision, municipalities were enabled to create similar zoning ordinances that regulated use and would protect historic structures. The primary means of doing this was through the designation of an historic district, which remains a popular tool for protection today. In the case of Charleston this was made manifest through the creation of the Old and Historic District, which not only demarcated a specific geographic area for protection, but authorized the establishment of a specialized, managing group–in this case the Board for Architectural Review–who oversaw (and continues to oversee) all changes to buildings within the District’s borders, whether alterations or new construction. The Board has the authority to approve or reject any proposed changes in the district, a procedure mirrored in similar ordinances nationwide.

The 1926 Euclid v. Ambler decision set an important precedent for preservation when it found that certain regulations imposed for public welfare are constitutional under the Fourteenth Amendment as a viable public interest, and did not constitute a taking under the Fifth Amendment. Plaintiff Ambler Realty Company, a firm in possession of valuable land in the town of Euclid, Ohio (a budding suburb of Cleveland), claimed that the town’s recent zoning ordinances which established regulations for activity (commercial, manufacturing, residential) and height significantly reduced the value of their lands by restricting how they used it, amounting to a “[deprivation] of liberty and property without due process of law.” In defense, the town of Euclid asserted its right to manage municipal zoning and felt the plaintiff’s charge was premature, in that zoning does not by default lower the value of land. Applying the doctrine of nuisance, the Supreme Court sided with Euclid, finding that zoning was a perfectly legitimate extension of the village’s police power rather than a violation of Ambler’s property rights, because such regulation served the public good.

With the help of local preservation organizations and activists, similar ordinances were adopted by other municipalities from the 1930s onward. In 1937, New Orleans became the second city in the United States to adopt a preservation-specific zoning ordinance. New Orleans’ and Charleston’s ordinances, and others like it, provide a regulatory framework intended to mitigate change to or impact on built heritage within a district or overlay through a review process. Although the mechanism that triggers review varies from place to place, generally any changes within the physical boundaries of the area under protection–alterations to extant buildings within a district, proposals for demolition and/or new construction, or the addition or subtraction of historic resources from within the physical boundaries of the area under protection–are cause for consideration and action by a municipality’s heritage managers. At the very least such ordinances outline the boundaries of the area under protection, identify a regulatory entity and its power, and include instructions for any proposed changes within the district.

Today place-specific preservation ordinances are responsible for the protection of some of the country’s most cherished historic buildings and town centers, including the Vieux Carré, part of New Orleans’ early eighteenth-century French Quarter, Savannah, Georgia’s famous squares and parks, and the area surrounding the Alamo in San Antonio, Texas. The efficacy of these ordinances and their adoption throughout the United States during the early and mid-twentieth century has been central to influencing state and federal legislation addressing the protection of historic sites and, as previously noted, continue to be a primary tool for preservation planning in America.

Vieux Carré street scene, photo by Byron Fortier, courtesy of the National Park Service

Vieux Carré street scene, photo by Byron Fortier, courtesy of the National Park Service

Forsyth Park, Savannah, courtesy of the National Park Service

Forsyth Park, Savannah, courtesy of the National Park Service


The preservation of America’s heritage in the first half of the twentieth century was not limited to local efforts. Federal legislation to protect America’s “historic landmarks, historic or prehistoric structures, and other objects of historic or scientific interest” actually began in 1906 with the Act for the Preservation of American Antiquities, which created penalties for the destruction of cultural heritage and marked the beginning of a national effort to identify heritage sites for preservation. Shortly thereafter a new arm of the Department of the Interior was established–the National Park Service–to facilitate the protection of the national monuments designated by the President under the power of the 1906 Antiquities Act. Because the Antiquities Act applied only to federal lands, new legislation was passed in 1935 that bolstered the protection of the country’s cultural heritage. The Historic Sites Act extended the protection offered by the Antiquities Act and declared it “national policy to preserve for public use…and benefit of the people of the United States” sites located on both public and private lands. The Act also called for the survey and inventory of “historic sites, buildings, and objects of national significance,” managed by the National Park Service, thereby increasing the bureau’s reach in the effort to protect monuments, sites, and buildings of national significance through commemoration.

Although by mid century both local and federal legislation was in place to protect historic resources in the United States, the loss of natural and cultural heritage continued. Noting this, and as an attempt to unify the regulations and activities of local groups throughout the nation (and apply further protections where none existed), a small group that included David E. Finley, Jr., first director of the National Gallery of Art, formed and established the National Trust for Historic Preservation in October of 1949. (Interestingly, the National Gallery of Art, itself established in 1937 and opened in 1941, is not listed on the National Register of Historic Places, though it sits on the landmarked National Mall and on National Park Service land.) The National Trust for Historic Preservation (NTHP) was modeled loosely on the National Trust for Places of Historic Interest and Natural Beauty in England, founded in 1895 and given legal power by 1907. The National Trust for Historic Preservation aimed to “facilitate public participation in the preservation of sites, buildings and objects of national significance or interest.” The main activities of the Trust were to include acquiring and managing national historic sites (called National Trust Historic Sites) and liaising with preservation partners throughout the country. As of 2015, the National Trust has designated and is responsible for managing 27 sites, including Mies van der Rohe’s Farnsworth House in Illinois, Drayton Hall, the oldest preserved plantation house located in South Carolina, Acoma Sky City, a nearly thousand-year-old example of Pueblo architecture in New Mexico, and Touro Synagogue, the country’s oldest synagogue dating to 1763, located in Newport, Rhode Island. The Trust’s mandate has since expanded to include additional activities such as preservation advocacy, funding, and education and outreach, thanks to the 1966 National Historic Preservation Act (NHPA). Adopted on October 15, 1966:

The National Historic Preservation Act (NHPA), 16 U.S.C. §§ 470a to 470w-6, is the primary federal law governing the preservation of cultural and historic resources in the United States. The law establishes a national preservation program and a system of procedural protections which encourage the identification and protection of cultural and historic resources of national, state, tribal, and local significance.

Recognition of the importance of the federal government’s involvement in preserving the nation’s “irreplaceable heritage” (Section 1(b)(4)) was a vital gesture at this time, with municipalities struggling to effectively respond to numerous threats against the built environment. The 1963 demolition of McKim, Mead, and White’s Pennsylvania Station in New York City is perhaps one of the most well known losses during this time, and catalyzed the campaign for a national regulatory framework. With the NHPA came specific federal and state preservation policies and responsibilities as well as, and most importantly, the formalization of site commemoration that was begun with and integral to the Historic Sites Act. With the NHPA, protective landmarking was realized through the National Register of Historic Places.

Pennsylvania Station 1911, New York (demolished 1963), courtesy of Wikimedia Commons

Pennsylvania Station 1911, New York (demolished 1963), courtesy of Wikimedia Commons

Garrick Theater (Schiller Building) circa 1900, Chicago (demolished 1961), courtesy of Wikimedia Commons

Garrick Theater (Schiller Building) circa 1900, Chicago (demolished 1961), courtesy of Wikimedia Commons

The National Register of Historic Places

The National Register of Historic Places, per Section 101 (a)(1)(A) of Title 1 of the National Historic Preservation Act, is “composed of districts, sites, buildings, structures, and objects significant in American history, architecture, archaeology, engineering, and culture.” There are currently over one million sites listed on the National Register of Historic Places. Sites are added to the Register through nominations prepared by individuals or organizations, which upon completion are reviewed and either approved or rejected by the State Historic Preservation Officer (or SHPO). The SHPO is the local administrative arm of the National Park Service that operates in each state and oversees implementation of the 1966 NHPA. Each state and U.S. territory has its own SHPO, located in the capital city.

The nomination process begins with determining a site or district’s eligibility for listing, determined by the historical or architectural significance of the site, age (generally 50 years or older), and authenticity, or the site’s ability “to illustrate significant aspects of its past” through the physical characteristics that existed during the period of the site’s significance. The National Park Service has created a number of Bulletins to assist in preparing a nomination, as well as templates and examples of successful submissions. Although laborious, the process is straightforward enough that one does not need special training or knowledge to nominate a property for landmark status and protection.

Once the nomination dossier is complete, the preparer submits it for review by their SHPO, who then contacts the owner of the nominated property (or owners in a district), to obtain permission to move forward with the nomination. This step is crucial because without owner consent, the nomination cannot proceed and the benefits of listing, such as increased consideration for protection from harm or demolition, are not afforded to the property or properties nominated. In an effort to balance private property rights with governmental protection of property, the ultimate decision to landmark nationally is retained by the property owner, which complicates using the Register as a reactive preservation tool. Designation is viewed as problematic by some because of the regulations imposed by landmark status–whether national or local–which can be seen as antithetical to development and progress. For this reason, the National Register is not typically the most appropriate tool for reactive preservation, since it is unlikely an owner who wishes to redevelop or demolish his or her property would impose regulations against him or herself.

However, many municipalities have responded to this issue by implementing local laws that circumvent owner permission. One example is the New York Landmarks Law, which authorizes the Landmarks Preservation Commission to designate local landmarks through a review process that includes public hearings and commentary followed by a vote for approval or rejection by the Commission. It is therefore the Commission who decide a site’s status rather than the property owner. While the regulations that govern each municipality differ, this illustrates the important role local law plays in supporting and supplementing the National Historic Preservation Act.

Fortunately, many property owners realize the benefits of a National Register listing, including government funding, tax benefits, preservation education programs, and formal commemoration, and agree to the designation. Removal of a building or site from the National Register of Historic Places is rare, although possible, with only an estimated two percent of all properties removed in the Register’s history. The National Park Services estimates there are over 90,000 individual listings (districts and sites) on the National Register of Historic Places that amount to over one million total properties. As of 2012, fewer than 1800 sites had been removed. Properties can be removed from the National Register at any time and for any reason, which further complicates using the National Register as a tool of protection. A listed property can be sold to a developer, for example, and there is no mechanism in place on the national level to stop the new property owner from altering or diminishing the historic significance of a site, or demolishing the site altogether. However, there are tools that when used in conjunction with formal commemoration strengthen protections on historic properties in perpetuity (or in some cases a designated period of time). A common and straightforward protection is a facade or conservation easement, which essentially grants certain property rights related to use and appearance to a designated governmental or non-governmental preservation organization (the easement-holding organization). This powerful tool is equally beneficial to property owners as it can often be claimed as a tax deduction.


While the roughly 90,000 sites listed on the National Register of Historic Places are certainly cause for celebration as the 50th anniversary of the National Historic Preservation Act draws near, historic preservation remains a contentious issue in the United States, and one that is fraught with contradictions that stem from the country’s ever-evolving identity. Despite the legal protections in place on both the national and local levels, and despite the many groups working to protect America’s history, progress and growth at times remain in opposition to history, memory, and heritage preservation, much like fifty years ago when the Act was adopted. The Act has helped to balance the interests of development and preservation, and to raise awareness about the importance of protecting the country’s heritage, which has been realized more expressly through supporting legislation like local landmarks laws, zoning ordinances, and property easements at the municipal level. The challenge of the first fifty years of the NHPA has been responding to threat through identifying, documenting, and designating historic sites on the National Register of Historic Places, while at the same time connecting a nationwide network of preservation professionals through state and federal programs. The next fifty years of preservation in the United States is sure to be at least as challenging, since leaders in the field must continue to balance responses to threats with the legislative tools available to them, while at the same time repositioning preservation as a field that is not limited to rules and regulations.

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

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


WYWH: Art Law Issue Spotting at the “New York Comic Con” (NYC)

By David Honig*

View from above of a small section of the showroom floor

New York Comic Con (“NYCC”) took place earlier this month, October 8-11, 2015 at the Jacob Javits Center. In addition to christening the new 7 train subway stop at 34th street and 11th avenue, which opened on September 13, 2015, NYCC celebrated its tenth anniversary with comics, panels, parties, games and of course cosplay. ”Cosplay” (costume play) is when someone dresses up as a character from a tv show, movie, comic or anime.

NYCC is not simply an opportunity to dress up, brows new publications, and meet the artists and writers behind works such as Saga, Batman, Afterlife with Archie, Daredevil and The Wicked + The Divine. Each year NYCC’s organizers invite producers, publishers, actors and anyone tangentially related to comics to tackle important subjects in the realm of these multi billion dollar industries. In 2015, panelists discussed the new books being put out by both major and independent publishers, diversity in comics and the comics industry ranging from racial diversity to sexual diversity of both characters and creators, legal issues, and the artistic value of comics in the greater cultural context. For example, two panels were dedicated to Will Eisner (1917-2005), who, along with Jack Kirby (1917-1994), is arguably the most important and influential figure in comics. Eisner’s importance is especially true when looking at his impact on transforming the comic book medium into a recognized art form.


Cosplayers dressed as DC Comics characters gather for a group photo outside the Javits Center

The panels, “75 Spirited Years: Will Eisner & the Spirit” and “Will Eisner: Champion of the Graphic Novel,” were hosted by Geppi’s Entertainment Museum (the “Museum”) to coincide with an exhibit hosted in Baltimore celebrating the 75th anniversary of the Spirit, a character created by Eisner. One of the panels discussed the Museum exhibit as well as Eisner’s life and his impact on the industry. Panelists included Karen Green, the graphic novel librarian at Columbia University, as well as Denis Kitchen, founder of the Comic Book Legal Defense Fund [CBLDF].

CBLDF is a non-profit organization established in 1986, dedicated to freedom of speech. Through donations the CBLDF helps pay for attorneys fees for cases related to first amendment issues and comics. In addition to helping comic readers, publishers and authors obtain legal services CBLDF also fights censorship.

CBLDF, had multiple representations at NYCC, in addition to having a booth on the showroom floor where signed copies of books created by famous supporters were sold, CBLDF hosted parties and panels The topics of this year’s CBLDF panels were banned comics and censorship.

Indeed, manifestations of art law, issues involving creative visual output and the law are not rare in the comics realm.  In addition to the predictable copyright, licensing, trademark and First Amendment disputes, other cases that have stemmed from the comics may be related to such unlikely practice areas as patent law. One striking example took place just this year, on June 22, 2015 when the Supreme Court of the United States decided Kimble v. Marvel Entertainment, LLC., a patent law case related to Spider-Man. In 1990 Stephen Kimble was awarded US Patent No. 5,072,856 titled “Toy web-shooting glove.” The abstract of the patent is as follows,

The combination of known components to produce a new toy shooting apparatus. A toy that makes it possible for a player to act like a spider person by shooting webs from the palm of his or her hand. The webbing material consists of string foam delivered from a hidden pressurized container through a valve incorporated into a glove worn by the player. A trigger mechanism enables the player to activate the valve at will by the exercise of pressure with the fingers of the hand wearing the glove.  


Patent drawing of the apparatus

After independently inventing the “Toy web-shooting glove” and obtaining a patent Kimble tried to license or sell his patent to Marvel so it could create a line of toys modeled off of Spider-Man’s web shooters – the device Spider-Man created to shoot webs out of his hands. Marvel declined to license Kimble’s invention but went ahead with creating a line of toys modeled off of Spider-Man’s web shooters which it called the “Web Blaster.”

Kimble sued Marvel claiming its line of “Web Blaster” toys infringed his patent. Marvel and Kimble eventually settled the patent infringement suit and Marvel agreed to purchase the patent from Kimble and pay him a royalty on all future sales. The contract between Kimble and Marvel stated that Marvel would pay a royalty fee to Kimble but there was no specified end date, meaning Marvel would have to pay a royalty to Kimble for every “Web Blaster” sold even after the patent expired and stopped conferring exclusive use on its holder. Unbeknownst to Kimble or Marvel at the time they entered into the contract, a 1964 Supreme Court decision, Brullotte v. Thys Co., held that a patentee, the person who holds or initially obtains a patent, cannot receive royalties for a patent after the patent term expires. The patent term expires after a statutory period, currently 20 years after filing for all patents filed after June 8, 1995, at which point the information in the patent is dedicated to the public and the holder of the patent can no longer claim exclusive use. (From the Editors: more about art and patent law coming soon).

After discovering Brullotte, Marvel sought and received a declaratory judgment stating that it did not have to pay Kimble royalties after the patent term expired, even though the contract between Marvel and Kimble outlined an agreement to the contrary. Kimble appealed this decision all the way up to the Supreme Court. The ultimate issue in the case was whether the Supreme Court should overrule Brullotte in spite of stare decisis – a doctrine that says precedent should be followed and only overturned when absolutely necessary. Not only did the Supreme Court rule in favor of Marvel but it did so in such a way as to invoke one of Marvel’s most famous comics – Amazing Fantasy No. 15.

Amazing Fantasy No. 15, written by Stan Lee with art (or “pencils” in the comics world) by Steve Ditko, was published on August 10, 1962 introducing the world to Peter Parker and his alter ego – the Amazing Spider-Man. The final panel in the 1962 lead story ends on a somber image: Spider-Man’s back as he is walking through a concrete jungle with the moon high in the sky and a caption which includes the now famous phrase: “WITH GREAT POWER THERE MUST ALSO COME — GREAT RESPONSIBILITY!”

Screen shot 2015-10-26 at 1.17.55 PM

© Marvel Comics, 1962

It seems that in the Court’s view, the power to overturn cases and change the law is akin to Peter Parker’s Spider-Man powers; as such in the closing paragraph of the majority opinion Justice Kagen cites the famous phrase above to illustrate why Brullotte should not be overturned. Where Spider-Man has the responsibility to use his powers to save anyone and everyone, the Supreme Court must use its power to overturn cases sparingly and only do so when stare decisis allows.

There must be a comic fan clerking at the Supreme Court, because in addition to quoting Amazing Fantasy 15, the majority opinion in Kimble makes a reference to the 1967 song “Spider-Man,” written by Paul Francis Webster and J. Robert Harris for the animated television series of the same name. The court made this reference while discussing the fact that the contract between Marvel and Kimble contained no end date and that the contract seemed to suggest Marvel would have to pay royalties “for as long as kids want to be like Spider-Man (by doing whatever a spider can).”

The Supreme Courts cite to Amazing Fantasy is just another in a long line of victories in establishing the value of comic books and the transformation of comic books into a recognized art form. What was once thought of as a curiosity for children has slowly evolved and become more accepted into mainstream culture. While visionaries like Will Eisner might have imagined a day that his art was hanging up in museums and being collected by Ivy League universities most of his contemporaries did not.

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

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

The International Criminal Court Takes on Attacks on Cultural Heritage, But is it Enough?

By Timur Tusiray*

Screen Shot 2015-10-13 at 11.39.07 AM

ICC Press Release, Sept. 30, 2015.

On September 26, 2015 Nigerian authorities surrendered Ahmad Al Faqi Al Mahdi to the International Criminal Court (“ICC” or “the Court”) pursuant to an ICC arrest warrant issued September 15, 2015, charging him with war crimes in connection to the destruction of historic and religious monuments in Mali in 2012. This is the first major case brought by the Prosecutor of the ICC, Fatou Bensouda, since her appointment to this position in 2012, and the first case brought before the ICC to focus solely on the destruction of cultural heritage as a war crime. The warrant and subsequent arrest come as positive developments in the world of cultural heritage protections. However, this case is not likely to be the “gamechanger” some may expect it to be in the future prosecution of the world’s worst cultural property offenders.


The warrant alleges that Al Faqi was a brigade commander in Ansar Dine, a fundamentalist Islamist militant group with ties to al-Qaeda. The warrant also alleges that over a 10-day period in 2012 Al Faqi committed the war crime of intentionally directing attacks against buildings dedicated to religious and historical monuments. Specifically, that he was involved in the destruction of the Sidi Yahia mosque and nine mausoleums in Timbuktu. This case is the first charge resulting from Bensouda’s three year investigation into the conflict in Mali, resulting from Mali’s self referral to the Court on July 13, 2012.

However, this is not the first prosecution of cultural destruction as an international crime. In most recent times, the International Criminal Tribunal of Yugoslavia (“ICTY”) has been one of the primary contemporary international courts to have addressed charges connected to the destruction of religious and historic structures. For example, the ICTY Tadiç case was the first that found the prohibition on attacking cultural property also applied to non-international armed conflicts, while cases like Kardić & Čerkez and Jokiç have further fleshed out individual liability for cultural and religious destruction.

Timing of the Arrest

There has already been criticism of Al Faqi’s arrest, claiming that it targets a mid-level perpetrator rather than the actual leaders of these different armed groups, and more specifically, that the arrest focuses on the crime of cultural heritage destruction over other more serious allegations of murder, torture, and rape occurring during the same period of time in Mali.

Harvard law professor Alex Whiting’s recent article on, makes a persuasive case as to the likely reasons for this specific arrest. First, the destruction of cultural heritage is not only a serious crime itself, but is oftentimes linked to some of the gravest crimes perpetrated during times of armed conflict. For example, as cited by Whiting, in the ICTY Krstić Case, the Trial Chamber discussed the connection between genocide and the destruction of culture stating, “The Trial Chamber however points out that where there is physical or biological destruction there are often simultaneous attacks on cultural and religious property and symbols of the targeted group as well, attacks which may legitimately be considered as evidence of an intent to physically destroy the group.” (Krstić, para. 580)

Second, this arrest may be indicative of the limitations inherent in the ICC. With the lack of funding to prosecute every alleged perpetrator, the Court must be strategic in its prosecutions. Furthermore, the jurisdictional limitations of the Court makes them reliant on the cooperation of other nations to deliver suspects for trial. In this case, after three years of investigations, this opportunity to prosecute Al Faqi may have been the best and strongest case presented to the ICC thus far, and one they could not justify refusing.

Finally, this arrest brings to the forefront of the public conscious the destruction of cultural and religious structures during armed conflict as an international crime. This is particularly relevant as the global community has become increasingly concerned and involved in preventing the loss of heritage over the past several decades. While this type of destruction is as old as humanity, over the past several years the call for action has reached a critical mass in lieu of the loss of heritage tied to the invasions of Afghanistan and Iraq, and with the current rise of ISIS and their highly publicized destruction of historic and religious sites and objects under their control.

Application to Contemporary Cultural Heritage Destruction

The case against Al Faqi likely is not the turning point against the contemporary loss of cultural heritage that some may expect it to be. The arrest warrant alleges only the war crime of attacks on cultural heritage, and does not touch upon certain crimes against humanity, such as persecution, which are oftentimes tied to heritage destruction. Furthermore, beyond the issue of the ICC’s limited funding and capacity to robustly prosecute the world’s international crimes, two immediate issues present themselves as roadblocks to the Court’s ability to tackle the loss of heritage as a war crime: (1) personal jurisdiction of the Court; and (2) the subject matter jurisdiction of the Court on war crimes, and its narrow definition of the crime of intentionally attacking protected structures (i.e. religious, historic, medical).

These difficulties can be better highlighted by using Syria as a case study. Over the last year alone ISIS has been on a relentless campaign to destroy historic and religious sites and artifacts across Syria and Iraq. In September of 2015 alone, they destroyed Roman temples in Palmyra, Syria, and they continue to be engaged in the highly industrial looting and international sale of artifacts connected to these sites. Furthermore, ISIS is not the only party active in this field, with Syrian government forces, other militia groups, as well as intervention by foreign militaries (Saudi Arabia, Turkey, the U.S. and Russia) adding to this destruction. Additionally, many of these actors in the Syrian conflict are not parties to the Rome Statute, and therefore are not subject to the jurisdiction of the Court. Among them include Syria, as well as Saudi Arabia, Turkey, the U.S. and Russia. The Rome Statute is the founding treaty of the ICC, which obligates States Parties’ to the treaty to cooperate with the Court’s activities. The ICC would, and indeed has had, significant issues with getting jurisdiction over perpetrators of international crimes in Syria. Even with personal jurisdiction, the Court may not be able to prosecute these perpetrators for war crimes based on the basic definitions of cultural crimes in the Court’s statute as discussed below.

ICC Personal Jurisdiction

Personal jurisdiction is the power of the Court to try specific individuals. Under the ICC Statute, there are three methods in which the ICC has jurisdiction over nationals of non-parties to the ICC Statute.

  1. The ICC may prosecute non-party nationals when the situation is referred to them by the UN Security Council.
  2. Non-party nationals may be prosecuted when they have committed crimes on the territory of a State Party, or of a non-State Party who has accepted the jurisdiction of the Court.
  3. The non-State Party has explicitly consented to the jurisdiction of the Court.

Last year, the UN Security Council already tried to pass a resolution to refer Syria to the ICC, but was vetoed by both Russia and China. With Russia’s recent interventions in Syria and their UN Security Council veto power, UN referral seems less and less likely. Furthermore, the foreign countries most involved in the conflict are also not parties to the Rome Statute, and have not submitted to the jurisdiction of the Court. At this point in time, the ICC could presumably prosecute nationals of State Parties fighting for the various forces on the ground in Syria (e.g. French or British ISIS fighters), but this would likely not encompass the worst of the perpetrators of these alleged international crimes. Finally, the Assad regime will never explicitly consent to the personal jurisdiction of the Court, as it would expose the leaders in the regime to liability for their well-documented crimes committed during this conflict.

ICC Subject Matter Jurisdiction on Cultural Heritage War Crimes

Even with personal jurisdiction, the subject matter jurisdiction of the ICC on war crimes likely limits the Court’s ability to prosecute the equally serious looting of these sites. Subject matter jurisdiction limits the Court’s ability to hear cases to specific international crimes. Details on the specific crimes that the ICC has the power to hear and try can be found in the Rome Statute.

Al Faqi is only being charged for the war crime offence of attacking protected sites during armed conflict. The specific article detailing this offence incorporates very generic rules, the language of which reflects the Hague Regulations of 1907, which lists specific protected properties. The article reads as:

Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives.

This crime would likely not apply to the widespread looting and sale of “moveable” artifacts, of which has been extremely well recorded as perpetrated by ISIS, Assad’s forces, and other rebel groups in Syria and elsewhere, because it only applies to “immovable” protected structures.

However, the Rome Statute’s war crimes section does allow for the crime of seizure or appropriation of property under Article 8(2)(a)(iv) and 8(2)(b)(xiii), as well as the offence of pillaging (Article 8(2)(b)(xvi) and 8(2)(e)(v)). That being said, only the crime of pillage could likely be used to charge acts against “moveable” property, because again the first two provisions on seizure are usually interpreted as referring to “immoveable” property.

Pillage is considered to have occurred when public or private property has been unlawfully stolen or acquired. In the context of ISIS and various rebel groups, this war crime would be the best approach to prosecute their looting and sale of objects. However, prosecuting equally as culpable members of Assad’s regime may prove more difficult, as prosecutors would have to prove that the regime unlawfully stole property owned by the regime itself. The complexities abound.

As a final note, this section only considers the complexities of charging war crimes against these alleged perpetrators. The ICC also has the option of trying the destruction and sale of cultural heritage as part of a crime against humanity, such as persecution, or even use it to prove the crime of genocide. Even so, the issues surrounding personal jurisdiction would still apply.


While the arrest and prosecution of Ahmad Al Faqi Al Mahdi is welcome news for those working to protect our global cultural heritage, the ICC is currently limited as a tool to prosecute some of the worst perpetrators of cultural heritage destruction in our world today. However, the Al Faqi case does allow the Court to interpret their jurisdictional mandates specifically on this topic, but only time will tell as to its true future impact.

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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 IP laws. He is currently an Orfalea-Brittingham Fellow at the Clinton Foundation. He may be reached at, or on twitter @TimurTusiray

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

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. 

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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.