How do you solve a problem like Gurlitt?

By Irina Tarsis*

As Hollywood is celebrating the 50th Anniversary of “The Sound of Music,” set in Salzburg, Austria and the public release of “Woman in Gold,” a film based on successful legal actions to recover Nazi-looted art scheduled for release April 1, 2015, the Gurlitt saga continues to permeate the media and the legal scene. The News Wires are alive with the name of ‘Gurlitt,‘ and every related court decision and legal filing is music to our ears.

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Cornelius Gurlitt (1932-2014), was born into a family of artists, art historians and musicians. He was a son of one of the four infamous art dealers who had been involved in sales of “degenerate art” and purchases of works for the Führermuseum in Linz, among other transactions during the Third Reich. In 2013, the story broke that Cornelius, who was under a tax investigation, inherited a large art trove of paintings, drawings and prints, split between his apartment in Munich, Germany and a house in Salzburg, Austria. The insiders of the German-speaking art world, and probably beyond, must have known of the collection, particularly since the 2011 Lempertz auction of the Max Beckmann’s “Lion Tamer,” that was stolen from Alfred Flechtheim during World War II and was consigned by Cornelius Gurlitt.

Having vacillated between refusing to part with his collection and agreeing to allow researchers access to determine provenance of the works, Gurlitt passed away in 2014. Reportedly, he reached an agreement with the German government regarding access to the art; however, in his Will, Gurlitt bequeathed the contested art collection to the oldest fine art museum in Switzerland, Kunstmuseum Bern. Validity of the Will was challenged by Gurlitt’s relative, Uta Werner, who reportedly had promised to make Gurlitt’s documents public.

On March 25, 2015, it has been reported that the German court reviewed the challenge to Gurlitt’s will and ruled it valid.

Only days earlier, in two separate instances, Monika Grütters, Germany’s culture minister as of December 2013, announced that she approved and signed restitution agreements to release two of the paintings, a Matisse and a Liebermann, that have been affirmatively determined months ago as to have been looted from victims of the Nazi prosecution. Matisse’s “Seated Woman” is expected to be returned to the heirs of Paul Rosenberg and Liebermann’s “Two Riders on the Beach” should be sent to the heirs of David Friedman. The agreements are expected to be approved with the Munich court that is in charge of the Will and thus the Gurlitt estate.

After much dissonance and delay, let the next movement in the Gurlitt concerto be more of restitution agreements and release of documents – “these are a few of my favorite things.”

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

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

Restitution, Repatriation and Return: When Objects Go Back; (Part 2 of 5) Restitution of Cultural Objects Taken During World War II

By Kevin P. Ray, first posted on Greenberg Traurig’s art law blog Cultural Assets on March 20, 2015.

This article is thshutterstock_35931382e second in a five-part series discussing the restitution, repatriation, and return of cultural objects. Each part addresses a different category of return. The first article in the series available here, addressed the restitution of stolen cultural objects. This article is the continuation of Part 1 and discusses developments in the restitution of cultural objects taken during World War II. The remaining articles address: (1) the restitution of illicitly excavated and/or illicitly exported cultural objects, (2) repatriation of tribal and indigenous cultural objects, and (3) the return of cultural objects removed during colonial occupation.

Museums’ Use of Technical Defenses: Von Saher and Beyond

The question of museums waiving defenses, as the AAM Standards suggest, has emerged as an important point of conflict in Nazi-era restitution cases. In a few instances, museums have filed quiet title actions against restitution claimants, asking courts to issue declaratory judgments that the museums have good title to the objects and/or the claimants’ rights have been lost due to statutes of limitations or laches. [See, e.g., Toledo Museum of Art v. Ullin, 477 F. Supp. 2d 802 (N.D. Ohio 2006); Detroit Inst. of Arts v. Ullin, No. 06-10333, 2007 WL 1016996, at *1 (E.D. Mich. Mar. 31, 2007); Museum of Fine Arts, Boston v. Seger-Thomschitz, Case No. 08-10097-RWZ, 2009 WL 6506658 (D. Mass. June 12, 2009); Museum of Fine Art v. Schoeps, 549 F.Supp.2d 543 (S.D.N.Y. 2008).] Such cases remain rare, and are controversial. [See, e.g., Grosz v. Museum of Modern Art, 772 F.Supp.2d 473 (S.D.N.Y. 2010); Simon J. Frankel and Ethan Forrest, “Museums’ Initiation of Declaratory Judgment Actions and Assertion of Statutes of Limitations in Response to Nazi-Era Restitution Claims – A Defense,” 23 DePaul J. Art, Tech. & Intell. Prop. L. 279, 281 (2013).] However, museums asserting statutes of limitations and laches defenses – what have become known as “technical defenses” – rather than allowing cases to be decided solely on the merits is not less controversial. [1]

Statute of limitations and laches[2] defenses are commonplace in stolen art litigation. [For a discussion of statutes of limitations and related issues in stolen art cases, see my earlier discussion in “Restitution of Stolen Cultural Objects,” available here.] The propriety of museums’ use of such technical defenses is highlighted in Von Saher v. Norton Simon Museum of Art at Pasadena. [Von Saher v. Norton Simon Museum of Art at Pasadena, 754 F.3d 712 (9th Cir. 2014).] Before the Second World War, Jacques Goudstikker was a preeminent Amsterdam art dealer. [See “Reclaimed: Paintings from the Collection of Jacques Goudstikker,” exhibition March 15 – August 2, 2009, Jewish Museum website, available here.] When the Nazis invaded the Netherlands in 1940, the Goudstikkers, as Jews, were endangered. They fled the country, leaving behind their possessions, including the contents of Jacques’s art gallery, which included more than 1,400 objects, including two life-size 16th-century panels by Lucas Cranach the Elder, titled “Adam and Eve.”  Jacques Goudstikker had purchased the Cranach panels at auction in 1931. The auction was titled “The Stroganoff Collection,” and included objects that had been expropriated by the Soviet government from the Stroganoff family, as well as from other owners within the U.S.S.R. The Cranach panels had not been owned by the Stroganoff family, but had been in the collection of the Ukrainian Academy of Science in Kiev.

After the Nazis occupied Amsterdam, the Goudstikkers’ possessions were confiscated, with Hermann Goering selecting ca. 800 objects for his personal collection. Many of the Goudstikker objects were retrieved by Allied forces at the end of the war and were sent to the Central Collecting Point in Munich for cataloging and processing. Allied policy was to return Nazi-looted objects to the governments of the countries from which they had been taken, reasoning that those countries were in the best position to locate the original owners and return the objects to them or to their heirs. Along with other Goudstikker objects, the Allies restituted the Cranach panels to the government of the Netherlands. However, in 1961, an heir of the Stroganoff family filed a claim against the Cranachs, and Netherlands erroneously restituted the panels to him. The heir sold the Cranach panels to the Norton Simon Museum of Art at Pasadena in the early 1970s.

Von Saher I

With Von Saher the question of whether a statute of limitations defense is appropriate in the case of Nazi-looted objects has been extensively litigated. Concerned that California’s three-year statute of limitations was presenting an unfair burden on claimants with respect to Holocaust and in Nazi-era looting cases, the California legislature extended that statute of limitations, but only for such Holocaust and Nazi-era looting claims. Marei Von Saher, the heir of Jacques Goudstikker, filed a replevin action in California in May 2007 against the museum, and the museum filed a motion to dismiss, arguing that the California statute extending the limitations period unconstitutionally intruded upon the federal government’s “exclusive power to make and resolve war, including the procedure for resolving war claims.” [Von Saher v. Norton Simon Museum of Art at Pasadena, Case No. CV-07-2866-JFW, 2007 WL 4302726 (C.D. Cal. Oct. 18, 2007).] The district court agreed, and dismissed the case. Ms. Von Share appealed the decision to the 9th Circuit Court of Appeals, which issued a decision finding the California extension of its statute of limitations unconstitutional but allowing Ms. Von Saher leave to amend her complaint to allege that her claim was brought within the existing three-year statute of limitations measured by the discovery rule. [Von Saher v. Norton Simon Museum of Art at Pasadena, 578 F.3d 1016 (2009).] That decision was reheard en banc, with the full court again holding the extended limitations period to be unconstitutional, and remanding the case to the district court to allow the plaintiff to amend her complaint. [Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954 (2010).]

Von Saher II

Following the 9th Circuit’s decision, Ms Von Saher filed an amended complaint. The California legislature amended its statute of limitations, this time avoiding the foreign affairs conflict, and providing generally that claims for the recovery of artworks must be brought within six years after “actual discovery” by the plaintiff of the current location and current possessor of the object (provided that the object has been taken within the last 100 years). The constitutionality of this limitations period was challenged in a wholly separate Nazi-confiscated art case, and the statute was upheld. [Cassirer v. Thyssen-Bornemisza Collection Foundation, 737 F.3d 613 (9th Cir. 2013).] However, the district court granted the museum’s second motion to dismiss the case, holding that Ms Von Saher’s claims were preempted by the foreign affairs doctrine. [Von Saher v. Norton Simon Museum at Pasadena, 862 F.Supp.2d 1044 (2012).] Quoting the Solicitor General’s brief with approval, the district court found that “[w]hen a foreign nation, like the Netherlands here, has conducted bona fide post-war internal restitution proceedings following the return of Nazi-confiscated art to that nation under the external restitution policy, the United States has a substantial interest in respecting the outcome of that nation’s proceedings.” [Id. at 1051.]

On appeal, the 9th Circuit reversed that decision, finding that the Dutch post-war internal restitution proceedings that resulted in the Cranachs being given to the Stroganoff heir were not adequate, and were, in fact, criticized and disavowed by the Netherlands in a reassessment in the 1990s.  The court further found that the later Dutch restitution proceedings concerning objects from the Goudstikker collection (which resulted in the return to Ms. Von Saher of several hundred objects) were not internal restitution proceedings with respect to the Cranach panels, since those panels were no longer located within the Netherlands at that time and could not be returned. The 9th Circuit rejected the Solicitor General’s position that U.S. policy supported the finality of countries’ internal restitution decisions, without further considerations. Rather, the court stated:

 “U.S. policy on the restitution of Nazi-looted art includes the following tenets: (1) a commitment to respect the finality of ‘appropriate actions’ taken by foreign nations to facilitate the internal restitution of plundered art; (2) a pledge to identify Nazi-looted art that has not been restituted and to publicize those artworks in order to facilitate the identification of prewar owners and their heirs; (3) the encouragement of prewar owners and their heirs to come forward and claim art that has not been restituted; (4) concerted efforts to achieve expeditious, just and fair outcomes when heirs claim ownership to looted art; (5) the encouragement of everyone, including public and private institutions, to follow the Washington Principles; and (6) a recommendation that every effort be made to remedy the consequences of forced sales.” [Von Saher v. Norton Simon Museum of Art at Pasadena, 754 F.3d at 721.]

While museums and their trustees certainly have a duty to protect and preserve the objects in their collections, as well as an obligation to evaluate claims made against objects that they hold,[3]the Von Saher case has become a touchstone for critics of museums’ use of technical defenses to delay or foreclose resolution of bona fide claims on their merits. In Von Saher, the parties have been in court for seven years and have not yet reached the merits.

Objects Held by Foreign Museums: The Foreign Sovereign Immunities Act

Most U.S. museums are private charitable organizations, but that is not the norm in most other parts of the world, where museums are state-owned or state-affiliated. That means that parties asserting claims for the restitution of objects held in foreign museums frequently involve questions of foreign sovereign immunity.

Generally, a foreign state is immune from the jurisdiction of federal and state courts in the U.S. [See Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486 (1983).] However, the Foreign Sovereign Immunities Act (FSIA) [28 §§ U.S.C. 1602-1611.] allows U.S. courts to exercise jurisdiction over foreign sovereigns and their agencies and instrumentalities, but only within certain statutorily-defined exceptions. Although the FSIA was not enacted until 1976, it applies to all cases filed after its enactment, regardless of when the alleged wrongdoing occurred.[ See Republic of Austria v. Altmann, 541 U.S. 677, 700 (2004)(holding that the FSIA applies to conduct “that occurred prior to 1976 and, for that matter, prior to 1952 when the State Department adopted the restrictive theory of sovereign immunity.”).] Under the FSIA, state-owned or state-affiliated museums are considered agencies or instrumentalities of their foreign sovereigns.[4]

The most commonly applied FSIA exception in cultural property restitution cases is the “expropriation exception.” [See, e.g. Altmann v. Republic of Austria, 317 F.3d 954, (9th Cir. 2002),aff’d, 541 U.S. 677 (2004); Cassirer v. Kingdom of Spain, 580 F.3d 1048, (9th Cir. 2009); Agudas Chasidei Chabad of United States v. Russian Federation, 528 F.3d 934 (D.C. Cir. 2008); Malewicz v. City of Amsterdam, 362 F.Supp.2d 298 (D.D.C. 2005).] Under the expropriation exception, a foreign sovereign (or its agency or instrumentality) is amenable to suit in U.S. courts where property has been taken in violation of international law and either (1) “that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state,” or (2) that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States.” [28 U.S.C. § 1605(a)(3).]

Foreign Sovereign-Owned Property in the U.S.

The first prong of the expropriation exception has typically been applied in cases where objects owned by foreign museums are temporarily located in the U.S. For example, in Malewicz v. City of Amsterdam, [Malewicz v. City of Amsterdam, 362 F.Supp.2d 298 (D.D.C. 2005); Malewicz v. City of Amsterdam, 517 F.Supp.2d 322 (D.D.C. 2007).] the heirs of artist Kazimir Malewicz sought the return of 14 Malewicz paintings from the City of Amsterdam, whose Stedelijk Museum had placed the paintings on temporary loan to the Solomon R. Guggenheim Museum and the Menil Collection. Amsterdam argued that because the paintings on loan were immune from seizure under the U.S. Department of State’s Mutual Educational and Cultural Exchange Program, the court should dismiss the case. The court, however, disagreed, holding that “[i]mmunity from seizure is not immunity from suit for a declaration of rights or for damages arising from an alleged conversion if the other terms for FSIA jurisdiction exist.” [Malewicz v. City of Amsterdam, 362 F.Supp.2d at 312.]

The court found that the requirements for FSIA jurisdiction were satisfied, because (1) the museum’s taking of the paintings violated international law, and (2) the paintings were present in the U.S. in connection with commercial activity. For purposes of determining whether jurisdiction exists under the FSIA, the court “need not decide whether the taking actually violated international law; as long as a claim is substantial and non-frivolous, it provides a sufficient basis for the exercise of [the court’s] jurisdiction.” For purposes of the FSIA, a taking violates international law if it is not for a public purpose, or is discriminatory, or does not provide for just compensation. The City of Amsterdam argued that FSIA takings jurisdiction cannot exist unless the plaintiffs have first exhausted local remedies. The court, however, agreed with the heirs that exhaustion of local remedies was not required because no local remedies were available to the heirs since, under Dutch law, no claim for the return of property (or damages for its taking) can be brought later than 30 years after the date of the taking. Therefore, the heirs had no remedy available to them in Dutch courts. The court found that the museum’s loan of the paintings to the U.S. museums satisfied the commercial activity requirement.

Foreign Sovereign-Owned Property Outside the U.S.

The expropriation exception’s second prong has proven to be an even more powerful tool in cultural property restitution cases, and has provided the basis for U.S. jurisdiction in many of the highest-profile cases of the last decade. They have included the restitution from the Austrian state museum of several Gustav Klimt paintings, the best-known of which is his portrait of “Adele Bloch-Bauer I” (which was then acquired by the Neue Galerie for $135 million), to the heir of the Bloch-Bauers. [Altmann v. Republic of Austria, 142 F.Supp.2d 1187 (C.D. Cal. 2001); Altmann v. Republic of Austria, 317 F.3d 954, (9th Cir. 2002), aff’d, 541 U.S. 677 (2004).] The Altmann case went to the U.S. Supreme Court and established the principle that jurisdiction under the FSIA applies to cases filed after enactment of the FSIA, regardless of when the actions that give rise to the case occurred. In fact, these cases have been instrumental in the development of FSIA jurisprudence. The case has been the subject of numerous articles and books, and is the basis for a forthcoming film, “Woman in Gold,” with Helen Mirren as Maria Altmann.

While the Altmann case was ultimately resolved by settlement, many cases seeking restitution of cultural objects held by foreign state museums or entities are on-going. These include actions by (i) heirs seeking return of a Nazi-confiscated painting currently owned by a Spanish state-affiliated museum [Cassirer v. Kingdom of Spain, 461 F.Supp.2d 1157, 1163-64 (C.D. Cal. 2006); Cassirer v. Kingdom of Spain, 616 F.3d 1019, 1032 (9th Cir. 2010); Cassirer v. Thyssen-Bornemisza Collection Foundation, No. CV 05–03459 GAF, 2014 WL 5510996, *5 (C.D. Cal. Oct. 31, 2014).] (which established the principle that the foreign state against whom suit is brought need not be the same foreign sovereign responsible for taking the property); (ii) heirs for the return of a collection of paintings, including works by Lucas Cranach the Elder, El Greco, Francisco de Zurbaran and Gustave Courbet, from the Hungarian National Gallery (which relies upon the breach of a post-war bailment agreement between the family and the museum); [de Csepel v. Republic of Hungary, 714 F.3d 591, (D.C. Cir. 2013).] (iii) a religious organization for return of a religious library and archive from the Russian State Library and Russian State Military Archive, which objects were first confiscated by the Nazis and later seized by Soviet troops and taken back to the Soviet Union (where the organization brought suit in the U.S. after Russia frustrated litigation there. The organization obtained a default judgment against Russia, and has imposed sanctions of $50,000 per day for Russia’s failure to comply with the court’s order directing it to return the objects); [Agudas Chasidei Chabad v. Russian Federation, 466 F.Supp.2d 6, 16 (D.D.C. 2006); Agudas Chasidei Chabad of U.S. v. Russian Fed’n, 528 F.3d 934, 948 (D.C. Cir. 2008).] and (iv) the Welfenschatz described earlier in this article.

The Washington Conference Principles, the museum ethics guidelines and standards, and the succession of court decisions (particularly those brought under the FSIA) have significantly transformed not only the law in the area of cultural property restitution, but perhaps more importantly, they have transformed awareness and behavior. These developments have the potential to affect a normative shift that extends beyond the historical specifics of World War II, and to change the way we think of rights and ownership of cultural property in a wide range of contexts. They are, and will continue to be, touchstones in a broader and continuing discussion.

[1] See, e.g., Jessica Schubert, “Prisoners of War: Nazi-Era Looted Art and the Need for Reform in the United States,” 30 Touro L. Rev. 675 (2014); Jessica Mullery, “Fulfilling the Washington Principles: A Proposal for Arbitration Panels to Resolve Holocaust-Era Art Claims,” 11 Cardozo J. Conflict Resol. 643 (2010); Benjamin E. Pollock, “Out of the Night and Fog: Permitting Litigation to Prompt an International Resolution to Nazi-Looted Art Claims,” 43 Hous. L. Rev. 193 (2006); Rachel Durbin, “Museums and Self-Regulation: Assessing the Impact of Newly Promulgated Guidelines on the Litigation of Cultural Property,” 18 U. Miami Bus. L. Rev. 101 (2010); Emily A. Graefe, “The Conflicting Obligations of Museums Possessing Nazi-Looted Art,” 51 B.C. L. Rev. 473 (2010); Jennifer Anglim Kreder, “Guarding the Historical Record from the Nazi-Era Art Litigation Tumbling Toward the Supreme Court,” 159 U. Pa. L. Rev. 253 (2011); Katherine N. Skinner, “Restituting Nazi-Looted Art: Domestic, Legislative, and Binding Intervention to Balance the Interests of Victims and Museums,” 15 Vand. J. Ent. & Tech. L. 673 (2013). up

[2] Laches is an equitable defense “designed to promote diligence and prevent enforcement of stale claims” by those who have “‘slumber[ed] on their rights.’” Gull Airborne Instruments, Inc. v. Weinberger, 694 F.2d 838, 843 (D.C.Cir.1982).  To invoke the defense of laches to bar a claim, a defendant must demonstrate that (1) “the plaintiff has unreasonably delayed” in asserting its claim, and (2) “there was ‘undue prejudice’ to the defendant as a result of the delay.” Jeanblanc v. Oliver Carr Co., No. 94–7118, 1995 WL 418667, at *4 (D.C. Cir. June 21, 1995). up

[3] See, e.g., Patty Gerstenblith, “Acquisition and Deacquisition of Museum Collections and the Fiduciary Obligations of Museums to the Public,” 11 Cardozo J. Int’l & Comp. L. 409 (2003)(noting that “Use of either the laches defense or the discovery rule will necessitate a lengthy trial that would consume museum resources.  It will lead to losses in terms of finances, efforts of staff, and, in many cases, negative publicity.  It is thus reasonable for a board of trustees to determine that its chances of retaining an art work through litigation and use of these affirmative defenses are not likely to succeed and thus to seek settlement, while saving the expense of litigation.”). up

[4] See Cassirer v. Kingdom of Spain, 461 F.Supp.2d 1157, 1163-64 (C.D. Cal. 2006) (holding that the Thyssen-Bornemisza Collection Foundation is an agency or instrumentality of the Kingdom of Spain, because it arranged and was a party to the original loan of the artworks, contributed toward the purchase price paid for the artworks, provided a facility to house the artworks, paid the cost of refurbishing that facility, and Spain’s governmental ministers were required to form part of the Collection’s directors); de Csepel v. Republic of Hungary, 714 F.3d 591, (D.C. Cir. 2013) (the Hungarian National Gallery); Agudas Chasidei Chabad of United States v. Russian Federation, 528 F.3d 934 (D.C. Cir. 2008) (Russian State Library and Russian State Military Archive); and Altmann v. Republic of Austria, 142 F.Supp.2d 1187 (C.D. Cal. 2001) (Austrian Gallery which was formerly an agency or instrumentality of Austria and was subsequently privatized). up

Attacks Against Cultural Heritage Abroad Raise Questions at Home

by Melissa (YoungJae) Koo*

Just about a month after the attack at Charlie Hebdo journal and a deadly shooting at a kosher supermarket in Paris, five teenagers are detained in France for desecrating as many as 250 gravestones in a cemetery in a rural town in eastern France, where many Jews are buried. This incident again calls to mind concerns about violations against art and cultural property and the increasing anti-Semitism in France and elsewhere. According to Professor Richard Weisberg, the Walter Floersheimer Professor of Constitutional Law at the Benjamin N. Cardozo School of Law and a White House appointee to the Commission on the Preservation of America’s Heritage Abroad, the recent troubling desecration event in France has been on the Commission’s radar. It is one of many desecrations of Jewish sites in Europe that have historically happened in Central and Eastern Europe. Although it is not clear whether the motivation of the grave desecration was based on anti-Semitism, the commission has assumed that anti-Semitic sentiment was a major driving force in the actions, Professor Weisberg stated.

Weisberg indicated that the act of vandalism is punishable by criminal law; however, he added that although France as well as the rest of Europe needs to further educate younger generations, there is always a possibility of anti-Semitic incidents happening time to time. To counter other future similar acts, the Commission on the Preservation of America’s Heritage Abroad has been supporting maintenance of sites like graveyards even if there is no desecration, if the sites are important to American constituents. The Commission also has been working with European governments and private groups, both Jewish and non-Jewish, to educate people to prevent desecration.

In addition, Weisberg’s recent article “Even in the wake of Charlie Hebdo, France’s Jews are living in peace” in the New York Daily News points out the overreaction of media, especially in the U.S., toward anti-Semitism in Europe. Weisberg mentioned that despite sometimes being criticized, French government officials “stand[] in solidarity with [their] Jewish population.” The French government has expressed vocal and politically courageous statements in support of the Jewish community as well as abhorrence toward such anti-Semitic incidents, both on national and local level. Indeed, the French Prime Minister Manuel Valls went on record to address his citizens after the January attacks in Paris to underscore that “[a] Jew who leaves France is a piece of France that is gone” to discourage an exodus. The French government’s support of the Jewish community and outcry over destruction of cultural patrimony respond to ongoing issues with extreme right winged, old forms of anti-Semitism in France. In a similar fervent fashion, the French President François Holland has criticized recent ISIS attacks against cultural institutions such as the Tunis museum, attacked by gunmen on March 18 that left 23 people dead, among them 19 tourists from different nations.

Hate crimes that resulted in desecration of a burial place in France also run parallel to the recent extremists’ attacks on cultural sites in Iraq, Syria, Tunisia and elsewhere. As the world leaders denounce such acts, attacks against museums, cemeteries, and cultural properties that affect culture heritage and people in the community, sadly, continue.

*** The author wants to express special thanks to Professor Richard Weisberg for his time and kindness during the interview.

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

 

 

Restitution, Repatriation and Return: When Objects Go Back; (PART 1 of 5) Restitution of Stolen Cultural Objects

By Kevin P. Ray, first posted on Greenberg Traurig’s art law blog Cultural Assets on February 25, 2015.

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An important and frequently misunderstood development in the law of art and cultural property in recent decades has been the elaboration in national laws, international instruments, and customary international law of the rights of individuals, groups, nations or other entities to obtain the return of cultural objects that were taken from them, their ancestors or predecessor, or their territory at some point in the past. I have previously discussed differing views on the repatriation of certain types of cultural property and the discussion is available here. This article is the first in a five-part series discussing restitution, repatriation, and return of cultural objects.  Each part addresses a different category of return: (1) restitution of stolen cultural objects, (2) restitution of cultural objects taken during World War II, (3) restitution of illicitly excavated and/or illicitly exported cultural objects, (4) repatriation of tribal and indigenous cultural objects, and (5) the return of cultural objects removed during colonial occupation.

Restitution of Stolen Cultural Objects

Of what I identify as the five categories of claims for the return of cultural objects, the simplest of these, conceptually, is where the object has been stolen.  We instinctually understand why the original owner would want the stolen object returned.  Popular culture is sometimes ambivalent, though, regarding the theft of art as both glamorous and, to some extent, unserious.  Art, in this context, is a luxury good.  The art heist is a familiar film trope, generally light-hearted (i.e., Gambit(Michael Caine and Shirley MacLaine, 1966, remade in 2012, with Colin Firth, Cameron Diaz, and Alan Rickman), Topkapi (Maximilian Schell, Melina Mercouri, Peter Ustinov, Robert Morley, and George Segal, 1964), How to Steal a Million  (Peter O’Toole and Audrey Hepburn, 1966), or The Thomas Crown Affair (Steve McQueen and Faye Dunaway, 1968, remade in 1999, with Pierce Brosnan and Rene Russo), though sometimes considerably harsher (i.e., Headhunters (Aksel Hennie, Synnove Macody Lund, and Nikolaj Coster-Waldau 2011) and Trance (James McAvoy, Rosario Dawson, and Vincent Cassel, 2013)).  In its light-hearted variation, the art heist is perpetrated by a dashing, raffish thief (often a playboy, engaged in a dual life).  After plot complications and reversals, the thief, on the verge of his (or her) identity being revealed, outwits the lumbering authorities, and escapes with the artwork, and usually his (or her) romantic interest.  The harsher variation, after complications and reversals, typically ends less happily.

Off-screen, art theft is less dashing and less romantic, and it often involves (at some level) criminal networks.  Among the highest-profile thefts from museums are: (1) the brief theft of the Mona Lisa from the Louvre in 1911, taken by museum handyman Vincenzo Peruggia, who attempted to return the painting to Italy (the irony being that the painting had never been unlawfully removed from Italy); (2) the 1990 theft of 13 works (including paintings by Rembrandt, Vermeer, Degas and Manet) from Boston’s Isabella Stewart Gardner Museum,  which remains unsolved and the works unrecovered, although the FBI has identified persons of interest in the case, all of whom have ties to organized crime; (3) the 2002 theft of two paintings from Amsterdam’s Van Gogh Museum, in which thieves entered the museum through the roof; the thieves were later arrested and convictedof the theft, but the paintings have not been recovered; and (4) the 2012 theft of seven paintings (including works by Freud, Gauguin, Matisse, Monet and Picasso) from Rotterdam’s Kunsthal Museum, taken by a group of Romanian thieves, and allegedly incinerated by the mother of one of the thieves to destroy evidence after the group had been arrested.

Museums are not the only targets of art theft.  Cultural objects are perhaps even more frequently taken from private collections and other types of historic and cultural institutions.  A few recent examples highlight how most art thefts are not the glamorous, highly-planned affairs of film, but tend to be crimes of opportunity, often by those who simply happen (for different purposes) to have access to the objects.  In 2009, 12 paintings, including works by Marc Chagall, Chaim Soutine, Arshile Gorky, and Diego Rivera, were stolen from a residence in southern California.  Nine of the paintings, reportedly valued at $12 million, were later recovered. In 2011, a 12th century illuminated musical manuscript, the Codex Calixtinus, was discovered missing from the Cathedral of Santiago de Compostela. The manuscript had been taken by a former electrician, who had been engaged in an on-going series of thefts from the cathedral, having taken, in addition to the manuscript, more than €2.4 million in cash.  The thief was recently convicted and sentenced to a10-year prison term. Still another workman (another electrician, even) with opportunistic access to artworks has also made news recently, although the theft occurred decades ago.  An electrician who worked for Pablo Picasso at his house in Mougins, France, and the electrician’s wife, are currently on trial for stealing 271 artworks from the Picasso house, which the couple then stored in their garage for 37 years.  The Picasso works are valued at between €60 and €80 million.

Whether taken from museums or from private collections, when stolen objects are sold, they are moved through progressively higher-level intermediaries, cleansing them of information about the original owner and the circumstances of the theft.  [See Interpol website, frequently asked questions] With the passage of time, the stolen object is sold (possibly several times), and the current owner may have innocently purchased the object, with no inkling that its history is tainted.  This situation is sometimes spoken of as involving “two innocents” – the original owner from whom the object was taken and the good faith purchaser with no knowledge of the theft.[1]

Typical of such cases is Solomon R. Guggenheim Foundation v. Lubell, in which the Guggenheim Museum sought return of a 1912 gouache by Marc Chagall that had been taken from the museum’s storage area by a mailroom employee in the late 1960s.  While the museum had discovered the gouache was missing during a periodic inventory, it did not notify law enforcement of the theft, concerned that publicizing the theft would drive it underground and make its recovery unlikely.

The gouache was purchased by art collectors, the Lubells, from a gallery in 1967, and displayed it in their apartment for many years.  The museum discovered that the Lubells owned the gouache in 1985, and wrote to the Lubells, demanding its return.  In the litigation that followed, the Lubells argued that the museum had no right to the gouache because New York’s three-year statute of limitations for the return of stolen objects had run.  Just as states have different statutes of limitations that cut off a property owner’s right to sue for the return of a stolen object (to discourage stale claims), states also have different rules governing when a cause of action for recovery accrues and the limitations period begins to run.  In the U.S., there are three approaches to when a cause of action for replevin accrues, and each approaches gives different weight to the rights of the original owner and the rights of the current possessor.  In the most favorable to the rights of the current possessor, the statute of limitations begins to run at the time of the theft.  Most states, however, apply the “discovery rule,” under which the limitations period begins to run only when the original owner learns the location of the object and the identity of the current possessor.[2] New York, however, is still more protective of the rights of the original owner, and applies the “demand and refusal” rule, so that the limitations period does not begin to run until the original owner makes demand upon the current possessor for the return of the object and the current possessor refuses that demand.

In Lubell, however, the trial court applied a variation on New York’s demand and refusal rule, requiring that the original owner show that it had diligently attempted to locate the object.  The trial court granted the Lubells’ motion for summary judgment, holding that “in order to avoid prejudice to a good faith purchaser, demand cannot be unreasonably delayed and that a property owner has an obligation to use reasonable efforts to locate its missing property to ensure that demand is not so delayed.”  In so doing, the trial court relied on a prior decision by the United States Court of Appeal for the Second Circuit, DeWeerth v. Baldinger, which had required diligence on the part of an original owner.  The DeWeerth court had reasoned that:

“A rule requiring reasonable diligence in attempting to locate stolen property is especially appropriate with respect to stolen art. Much art is kept in private collections, unadvertised and unavailable to the public. An owner seeking to recover such property will almost never learn of its whereabouts by chance. Yet the location of stolen art may frequently be discovered through investigation.”

In Lubell, the New York Court of Appeals ultimately rejected both the trial court’s holding and the Second Circuit’s holding in DeWeerth.  The court held that “[o]ur case law already recognizes that the true owner, having discovered the location of its lost property, cannot unreasonably delay making demand upon the person in possession of that property.  Here, however, where the demand and refusal is a substantive and not a procedural element of the cause of action . . . it would not be prudent to extend that case law and impose the additional duty of diligence before the true owner has reason to know where its missing chattel is to be found.”

Statutes of limitations are not the only form of limitation that may apply, since many countries apply prescription periods that operate to vest title in good faith purchasers (even of stolen objects) after a designated period of time. Since cultural objects frequently cross borders, the mere fact that suit is brought in a jurisdiction (like the U.S.) that does not have such prescription periods and in which even a good faith purchaser cannot obtain good title to a stolen object, does not mean that such a period will not apply.  In Winkworth v. Christie, Manson & Woods Ltd, certain artworks were stolen from a collector in England and were taken to Italy, where they were sold to an apparently innocent purchaser. [See  Winkworth v. Christie, Manson & Woods Ltd., [1980] Ch. 496 , [1980] 1 All E.R. 1121].  Later, that purchaser consigned the artworks to an auction house in London for sale.  The collector from whom the objects had been taken brought suit in England for their recovery.  Under English law, a thief cannot transfer good title, and had English law applied to Mr. Winkworth’s case, he would have prevailed and the objects would have been returned to him.  However, the court determined that the question of whether the seller had obtained good title to the objects when he purchased them in Italy was governed by Italian (not English) law.  Under Italian law, a good faith purchaser can obtain good title even to stolen objects.

A similar case arose in New York, where the Greek Orthodox Patriarchate of Jerusalem sought recovery of the Archimedes Palimpsest, a 10th century manuscript, which had been taken from Patriarchate at some point in the past.[See The Greek Orthodox Patriarchate of Jerusalem v. Christie’s, Inc., No. 98 Civ. 7664(KMW), 1999 WL 673347 (S.D.N.Y. Aug. 30, 1999)].  The manuscript’s current possessor was the heirs of a French civil servant, who had acquired it in France in the 1920s.  Under French law, a good faith purchase obtains good title to a stolen object after 30 years.  The heirs consigned the manuscript to an auction house in New York, and the Patriarchate brought suit there.  As in Winkworth, the Archimedes court found that the question of whether the French civil servant’s heirs had good title to the manuscript was governed by French law, not U.S. law.

Although courts have tightened the availability of statute of limitations defenses in stolen art cases, current possessors of stolen (or allegedly stolen) art are increasingly making use of the equitable defense of laches, which operates very similarly to statutes of limitations in cutting off an original owner’s right to bring suit for the recovery of an object if (i) the original owner has unreasonably delaying bringing suit, and (ii) that delay has resulted in prejudice to the current owner (chiefly, resulting in lack of evidence or witnesses).  Many of the most significant developments in the application of laches defenses in recent art cases have been in the area of claims for the restitution of cultural objects that were taken (by the Nazis or otherwise) during World War II, and so I will discuss those developments more fully in the next installment of this series.

[1] See Menzel v. List, 267 N.Y.S.2d 804, 809 (Sup. Ct. 1966) (“The resolution of these problems is made the more difficult in view of the fact that one of two innocent parties must bear the loss.”),modified, 279 N.Y.S.2d 608 (App. Div. 1967) (per curiam), modification rev’d, 246 N.E.2d 742 (N.Y. 1969).  See also Ashton Hawkins, Richard A. Rothman, and David B. Goldstein, A Tale of Two Innocents: Creating an Equitable Balance Between the Rights of Former Owners and Good Faith Purchasers of Stolen Art, 64 Fordham L. Rev. 49 (1995). Available here.   up

[2] See, e.g., O’Keeffe v. Snyder, 416 A.2d 862 (N.J. 1980)(applying New Jersey’s version of the discovery rule, which requires the original owner to diligently pursue the object); Naftzger v. American Numismatic Society, 49 Cal.Rptr.2d 784 (Cal. Ct. App. 1996)(applying California’s discovery rule, which does not mandate due diligence on the part of the original owner). up

God Made Idiots: The Vandalism and Theft of Public Art

by Kristen Pionati

“In the first place, God made idiots. This was for practice. Then he made school boards.” –Mark Twain

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Mark Twain’s grave before and after the theft. (Star-Gazette)

In his 1897 book Following the Equator: A Journey Around the World, Mark Twain (born 1835, died 1910) wrote that “In the first place, God made idiots.” Even today education and upbringing continues to escape those who steal and vandalize art. Theft and vandalism of art are as old as time, but most of us like to think that here and now in the United States, graves are not desecrated and, if our city pays an artist for unique public works, they are not immediately stolen. However, we are wrong to assume these crimes only happen in faraway times and places. Some recent instances of theft and vandalism demonstrate the failure in our assumption and highlight the potential motivation behind those acts.

The granite pillar on Mark Twain’s tomb in Elmira, New York is 12 feet tall, or “mark twain” if you are a steamboat captain calling out a two fathoms measurement. Originally the pillar featured a 12 by 12 inch bronze plaque with Twain’s likeness in profile created and installed by local artist Enferd Anderson in 1937. However, sometime between Christmas and the New Year at the end of December 2014, someone brought a ladder to Woodlawn Cemetery and removed the plaque from its position towards the top of the pillar. The Cemetery Superintendent, Bryce Cuyle, told Elmira’s Star-Gazette he did not believe the plaque was stolen because of its “scrap value” but rather because “of who it was.” Cuyle went on to say he expected “someone will start chirping about this on social media.” Fortunately, if the original is not recovered, Twain expert Kevin MacDonnell has a plaster cast of Anderson’s work that could be used to restore the pillar according to the Star-Gazette.

Perennially reprehensible, theft of art extends to public works as well. For example, last summer, also in New York, vandals stole most of the street signs created by artist Ryan McGinness. In 2014, New York City commissioned McGinness to create abstract signage for city streets. The end result was fifty oblong red signs that look like traditional signage from a distance but upon closer view have bold graphic designs unique to each sign. In the first three weeks after the signs went up, nearly forty had been stolen. The Department of Transportation launched a full-scale investigation into the theft, seeking security footage from local businesses and government buildings where the signs were placed. The city replaced many of the stolen signs, but had not replaced all fifty as of August. No arrests were made in connection with the signs’ disappearances.

Similarly, last March a Memphis, Tennessee man stole a 4 foot by 3 foot statue by Ted Rust, the former director of the Memphis College of Art. The 350 pound statue, called “The Acrobat,” normally on view in a park, was stolen from a studio’s yard, where it was undergoing repairs and was kept covered by a tarp behind a locked fence and two heavy chain locks. Police found “The Acrobat” after pieces of the sculpture were recognized at a scrap metal yard. The scrap yard had paid the thief $300 for the pieces taken from the sculpture. Intact, the sculpture was worth $65,000. Wayne Barnes, 49, was arrested and charged with theft of property over $60,000 and vandalism between $10,000 and $60,0000.

These crimes occur across the world. Just this month, a six-foot fiber glass and stainless steel statue of Manannán Mac Lir, the Celtic God of the Sea, disappeared from a mountainside in County Derry in Ireland. The sculptor, John Sutton, who also worked on HBO’s “Game of Thrones,” expressed his shock following the theft to the BBC. According to Sutton, it would have taken many men with angle grinders several hours to remove the statue from its base and from the mountaintop where it was displayed. Police are investigating a “religious aspect” to the crime. Left behind in place of the statue was a wooden cross that said “You shall have no other gods before me, likely a reference to the pagan nature of the statue. Fortunately, the Limavady Borough Council voted to replace the statue after people from all around the world offered to contribute to the creation of a new statue. The Council acknowledged that it will be more careful in ensuring the replacement artwork is less vulnerable to theft.

One reason these crimes involving public art keep occurring may have to do with the medium—metal. Rising values for scrap metal have caused thefts, including theft of public art, to rise. For example, the BBC reports that in the United Kingdom, many metal public works are being placed in storage while fiberglass copies are put in their place. This plan may be a good one because the scrap metal value of sculptures is significantly less than the value of the art. Worse, as the Memphis example above serves to demonstrate, in stealing the art thieves often have to destroy it. If the work is large enough, as Rust’s was, the thief must break it into smaller pieces to remove it from its place and convincingly sell it as scrap metal.

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The site of John Sutton’s Manannán Mac Lir statue before and after its theft. (BBC)

There are several ways the law is equipped to deal with theft of public art and artworks displayed in the open. They will be discussed in turn in the following sections.

Theft

Those found to have stolen art may be simply charged with theft. Model Penal Code § 223.2 defines theft as the unlawful taking or unlawful exercise of control over the movable property of another with the intent to deprive the person of that property. Under MPC § 223.1, if a stolen work of art is worth more than $500, that theft charge would be a felony charge. Once caught, the thief of the Mark Twain plaque would be subject to the New York Penal Law § 155.05, which bears nearly identical language to the MPC and takes a broad view in its definition of property. Wayne Barnes, similarly, was subject to Tennessee Penal Code § 39-14-105, which makes theft of property valued between $65,000 and $250,000 a Class B felony.

However, relevant Penal Laws do not extend to specifically protect public art commissioned and owned by the government. There seem to be very few laws specifically covering the theft of government property, including taking and vandalism of art. Many state penal codes explicitly outlaw the theft of property pertaining to public utilities like gas, water, electric, or sewer systems without specifically addressing other real property. Curiously, South Carolina is an exception. Section 16-13-330 of the South Carolina Code specifically prohibits the stealing or damaging of works of literature or art. The South Carolina statute takes a broad view of art and includes works of art in a “library, gallery, museum, collection, exhibition or belonging to or in the care of any department or office of the State or local government, or belonging to or in the care of a library, gallery, museum, collection or exhibition which belongs to any incorporated college or university or which belongs to any institution devoted to educational, scientific, literary, artistic, historical or charitable purposes.” Unfortunately, the statute defines the crime only as a misdemeanor, punishable by a fine not to exceed $100 or thirty days in jail, both clearly insignificant punishments when the art destroyed and stolen can be priceless.

Vandalism

Vandalism laws provide another source of punishment. In the New York penal code, vandalism is contained within the criminal mischief laws in Article 145. Under that Article, a person can be charged with several degrees of criminal mischief, requiring intentional or reckless damage of the property of another. The four degrees of criminal mischief differ in the value of the damage done to the property and determine whether the crime will be classed as a misdemeanor or felony. The state could also charge someone with criminal tampering, which is a misdemeanor unless a person tampers with a public utility. Most relevant to the theft from Twain’s grave, Article 145.22-3 prohibits cemetery desecration, including the theft of any real property from the grave whose value exceeds $250. Tennessee’s vandalism statute is similar. It prohibits the intentional cause of damage or destruction to property of another, including public property. Vandalism is graded identically to theft, resulting in a Class B felony for Wayne Barnes.

Scrap Metal Regulations

Finally, in order to combat thieves selling scrap metal, there are laws which govern scrap metal processors or junk dealers. In New York, General Business Code Articles 6 and 6-C respectively require junk dealers and scrap metal processors to be licensed with the state. Both junk dealers and scrap processors must keep a record of the person selling the metal, their address, and contact information. In both cases, the person must provide identifying information about the metal, either when they purchased the metal or a description of when, where, and from whom the property was obtained. The Institute of Scrap Recycling Industries (ISRI) is a Washington, D.C. based trade association dedicated to raising awareness about the theft and sale of scrap metal. It targets law enforcement agencies, prosecutors, recyclers, and legislators to help develop a comprehensive program to address the problem of metal theft. ISRI even runs a website, ScrapTheftAlert.com, that allows users to report metal thefts and subsequently notifies other users in the area so they can contact law enforcement if they have additional information. That site has led to over 200 arrests and the recovery of $1.4 million in scrap metal of all kinds, not necessarily all from stolen art.

The vandalism of Mark Twain’s grave and the theft of Ryan McGinness’ New York City street signs are just two examples of the countless number of idiotic, senseless actions taken against art, often because that art is made of metal. As the prices for art and metal scrap continue rising, we can expect to learn of more and more illegal takings of artworks more prized for their provenance, aesthetic and cultural value than their salvage wroth. These basic crimes are brazen acts that destroy art, its value, and rob the community of valuable cultural experiences but they are not without redress. Stewardship of public works and memorials as well as outreach to the metal scrap facilities may help reduce the irreversible loss of cultural artifacts. Existing law may need to be revised to deliver more exacting and weighty consequences to more effectively punish offenders and deter others from committing similar acts.

 Selected sources:

About the author: Kristen is a recent graduate of Villanova University School of Law where she pursued her interest in art law in her research, at the Tulane-Siena Institute for International Law, Cultural Heritage, & the Arts, and at the National Cultural Heritage Law Moot Court Competition at the DePaul University College of Law.

Je Suis Public Domain

by Dennis C. Abrams*JeSuisCharlieTM2

On January 7th in Paris, an Islamist terror attack at the headquarters of the satirical magazine Charlie  Hebdo resulted in the deaths of twelve people. It was immediately apparent that the attacks were carried out in retaliation for the magazine’s cartoons depicting the Prophet Muhammad. Shortly after the shooting, Joachim Roncin, a Parisian who works for the French magazine Stylist, posted a defiant message on Twitter with the text “Je Suis Charlie” (which translates to “I Am Charlie”). Although Roncin’s Twitter account had only 400 or so followers at the time, “Je Suis Charlie” quickly became a global rallying cry for freedom of expression and solidarity against terrorism. The phrase, which according to Roncin, means “I am free, I am not afraid,” went on to become one of the most popular news-related hashtags ever on Twitter.

Since Roncin originally coined the phrase, there have been attempts by several parties, including Roncin himself, to establish and protect rights to “Je Suis Charlie.” A day after the attack, Yanick Uytterhaegen, a Belgian man, filed an application with the Benelux Office for Intellectual Property to use the phrase in Belgium, Luxembourg and the Netherlands in association with a variety of goods including things such as sporting goods, stationery, cleaning supplies and footwear. France’s National Industrial Property Institute received at least fifty applications to register the phrase as a trademark but announced less than a week after the attack that none of the applications would be granted. At least two trademark applications were also filed in the United States and one in Australia in the days that followed. Both the Australian and Belgian applications have since been withdrawn while the American applications are pending review.

There are several reasons why applicants are ill-advised to attempt to have “Je Suis Charlie” and similar slogans registered as trademarks and why offices which rule on these applications are unlikely to grant them. As Roberto Ledesma, a former Trademark Examiner at the United States Patent and Trademark Office (USPTO), explained on his blog, EverythingTrademark.com, in addition to subjecting themselves to public scrutiny and criticism, applicants will likely find their applications rejected and their time and money wasted.

Applications for trademark rights in slogans associated with tragedies and social causes has become something of a trend recently. For example, attempts were made to register “Boston Strong” after the Boston Marathon bombings, “Hands Up, Don’t Shoot” in relation to the unrest in Ferguson, Missouri, “I Can’t Breathe” following the death of Eric Garner at the hands of the New York Police Department and “Ice Bucket Challenge” at the height of the viral video fad which promoted awareness of Lou Gehrig’s disease. Such applications are often viewed unfavorably as attempts to commodify and capitalize on tragedies. Illinois woman Catherine Crump has been called “shameless” for attempting to trademark “I Can’t Breathe” and Jezebel writer Jia Tolentino added a taunt, “[s]ee you in hell, Crump!” The ALS Association also withdrew its application for “Ice Bucket Challenge” amid controversy.

Trademark applicants for “Je Suis Charlie” are especially likely to face scrutiny because trademarking the phrase would have the counterintuitive effect of restricting the use of a slogan which, in the aftermath of the attack on a periodical, has become emblematic of the rights to freedom of expression and freedom of the press. According to The Independent, Yanick Uytterhaegen was predictably the target of a vilifying Twitter campaign (here are just a few examples of reactions on social media) before withdrawing his application for “Je Suis Charlie.”

A sampling of “Je Suis Charlie” merchandise available online compiled by RTL Nieuws.

Even if public backlash, whether justified or not, is insufficient to deter prospective applicants, registration is not likely to be granted either in the United States or elsewhere. As Ledesma reminds us, trademarks exist to serve as source identifiers for goods and services. Slogans such as “Je Suis Charlie” are so ubiquitous and noncommercial that consumers will not associate them with a particular source of goods but with the cause, issue or event to which they refer. Applications to register “Boston Strong,” “Hands Up, Don’t Shoot,” and “Occupy Wall Street” were all rejected by the USPTO on these grounds.

Registering “Je Suis Charlie” would face an additional roadblock because “Charlie” is a reference to Charlie Hebdo. Lanham Act § 2(a) bars from registration a trademark which falsely suggests a connection between a trademark and other persons, institutes, entities, ideas and so on. Ledesma’s article cites the applications for “Justice 4 Trayvon,” “MH17,” and “Linsanity” which were rejected by the USPTO on the grounds that they suggested connections to the estate of Trayvon Martin, Malaysia Airlines and Jeremy Lin respectively. Once the USPTO inevitably rejects an application for such a trademark, the applicant will have spent a minimum of $225, assuming the cheapest application option and no legal assistance.

Capitalizing on “Je Suis Charlie” and similar slogans may also be unfeasible in Europe. Belgian attorney Paul Maeyaert suggests that applications for such slogans can be rejected on moral grounds for their “free riding on a catastrophic happening.” More specific to the rallying cry at issue, attempting to monopolize “use of a slogan incorporating one of the main rights of the Convention for the Protection of Human Rights and Fundamental Freedom (i.e. freedom of speech)” could be grounds for the rejection of an application of “Je Suis Charlie.” Other European attorneys point out that a European trademark office could refuse registration “on the grounds of being disparaging or offensive” or “contrary to public policy or accepted principles of morality” due to their intent to capitalize on a tragic event. Outcomes would ultimately be determined by whether the trademark office in question considered the mark “below the accepted principles of morality” in their jurisdiction. As such, registration determinations could vary between jurisdictions. An ill-fated application in Europe may also cost registrants even more than in the U.S.; Yanick Uytterhaegen, for example, would have been required to pay a minimum of roughly $270 in the Benelux.

Fortunately, the social consequences of applying for trademark rights in transcendent, topical rallying cries would be discouraging enough for most people. But there will always be those who feel that the potential for profit makes such applications worthwhile. These profiteers should closely monitor the fate of the two American applications to trademark “Je Suis Charlie.” When these pending applications are inevitably rejected or withdrawn, they will join the ranks of the many similar applications which met the same fate and prospective exploitative registrants will be forced to reconsider their position.

Selected sources:

Selected resources:

About the author: Dennis C. Abrams, Legal Intern with Center for Art Law, is a 3rd year student at Benjamin N. Cardozo School of Law, with an interest in intellectual property, media, art, entertainment, and sports law. He can be reached by e-mail.

The European VAT: Good for Tax Revenue, Bad for the Commercial Art Market?

by Elizabeth R. Lash, Esq.

As an American, one might be forgiven for assuming that Europe, with its traditional support for the arts (at least, as a cultural phenomenon), would be equally supportive in its tax regime for the same. While in some limited instances, the European Union continues to provide a more favorable regime for the independent artist, the trend towards an ultimately higher value-added tax (“VAT”) on the sale, import and export of artwork, particularly with respect to art sold by galleries and in the resale market, may discourage the growth of an EU-wide commercial art market in comparison with more favorable tax regimes outside the EU.

VAT was initially intended to be used as a single tax rate applicable to all goods and services across all European Union member states. While the standard rate was originally set at 15% in 2006, member states could theoretically request reduced rates in one or two categories, set at no less than 5%. In reality, as each member state negotiated the terms of its entry into the EU, the list of categories has expanded to at least 21, with rates above and below the standard rates (which already varies from 17% to 27%), along with multiple categories of rates below 5% (zero rates, “parking rates” (i.e., rates negotiated with entry into the EU), and super reduced rates). As well, categories of rates are inconsistently drawn, from too narrow to overly broad: it includes, among others, such categories as printed books, e-books, cultural institutions, household cleaning, sporting facility use, bicycles, and writers and composers.

When it comes to artwork, VAT rates vary widely, ranging from 5% (Malta) to 25% (Sweden) (although there is a reduced rate for independent artists’ sales). In addition, VAT may be calculated on the margin (i.e., the difference between the original sale price and the purchase price), instead of under the standard or reduced rate (whichever is applicable to artwork in that particular member state). In a number of member states, the VAT may be set at multiple rates: one for independent artists; another for galleries and dealers; and still another for the import or export of art.

Further complicating this picture, the EU Commission may not only pressure (or even sue) a member state as to the categories for which reduced rates are permitted, but may also regulate individual tax cases affecting artists and collectors. One example in particular is the Flavin case, whose outcome confounded the international art community (and sets an unfavorable precedent in future, similar circumstances). In 2006, a British gallery (named the “Haunch of Venison”) imported two well-known American conceptual artists’ sculptures: Dan Flavin’s light sculpture, and Bill Viola’s video installations. The former consisted of several tubes of fluorescent lights, while the latter consisted of several audio-visual productions playing on various projection screens. The British customs office imposed a 20% rate instead of the reduced 5% rate for artwork. However, upon appeal to the British VAT and Duties Tribunal (the “Tribunal”), the reduced rate was re-instituted in 2008.

But despite this local regulator’s final decision (with no further appeal by the parties to the EU courts), the EU Commission weighed in anyway with its own regulation, issued in September 2010, which specifically overturned the Tribunal’s decision, ostensibly to effectuate the uniform taxation rules on imported goods. The EU Commission found that it was not the installations themselves which constituted artwork, but the results of such installations, whether of the “light effect” of Dan Flavin’s light sculpture, or the videos screened on Bill Viola’s video installations. Thus, in effect, the EU Commission found that the installations should have been taxed just as if a hardware or electronics store had imported lightbulbs and video components. For conceptual artists, this represented a major blow to the sale in and import of their artwork into Europe.

Then take Germany. Germany formerly assessed a reduced VAT of 7% on sales of art (other than photography). However, due to pressure from the EU Commission, which had opened proceedings against Germany regarding this reduced rate category, Germany passed legislation to raise the rate to 19%, effective January 1, 2014 (Germany’s standard VAT rate since 2007). In response, German federal legislators passed a national directive that permitted the tax to be assessed on only 30% of the purchase price, relying in part on an exception to the VAT directive that had been used in France for several years. But the application of this directive was restricted less than a year later by the German states to artwork priced under 500 Euros, and a few other categories, essentially undercutting the law’s essential purpose—to provide a more favorable rate for the commercial art market. Meanwhile, artists selling out of their studios remain subject to the 7% rate. While this may be acceptable for those select artists who sell out of their own studios, it does not bode well for those who are represented by galleries.

In 2014, in another instance of muddying the tax waters, the French government increased VAT on the sale of art in France from 7% to 10%, while still permitting imports of non-EU artwork to be taxed at 5.5%. Only a year later, the French legislators acknowledged this inconsistency, and reduced the VAT on direct sales by French artists to 5.5%, effective January 1, 2015. Meanwhile, in Spain, the current VAT on artwork was raised from 8% to 21% in September 2012, initially as part of the general rate assessed on goods and services related to “culture.” Within a year, after much hue and outcry, Spain decreased the rate again to 10%. Meanwhile, in Italy, the VAT on the sale and import of artwork is still 22%.

The dust may eventually settle on the various VAT rates and their application, but the newest wrinkle is a regulation (Council Implementing Regulation (EU) No 1042/2013) which changes how VAT is assessed—from the place of supply to the place of purchase. While this does not affect traditional visual artists and sculptors, it does impact those who are considered to supply services or goods digitally to consumers—for instance, freelance website designers. The regulation, effective January 1, 2015, requires such businesses to assess VAT based on the country of the purchaser, rather than the VAT of their own country, placing yet another burden on artists in figuring out the application of VAT—even though the regulation was meant, in part, to apply to the likes of e-retailers such as Amazon.com.

In light of the fluctuations in tax rates and their applications, with the ultimate trend inching towards a uniformly high VAT rate, the art market looks nowhere near as enticing in the EU as it does in those countries and locales not subject to the vagaries of the VAT rate debate. In the U.S., for instance, no VAT exists (although, of course, the U.S. does have a sales tax), and there is no import duty assessed on original works of art. Hong Kong does even better—it has no sales tax, import tax, or export tax on artwork. To some degree, the numbers back this up: according to an annual study conducted by Arts Economics for the European Fine Art Foundation, in 2013, the U.S. accounted for 38% of the global market by value, while the EU as a whole dropped 3% points to 32%. (The UK ranked separately at 20%–perhaps not a surprise in light of its 5% reduced VAT rate on artwork, the Flavin case notwithstanding.) Moreover, in the EU itself, the numbers for those member states with the highest VATs declined or remained the same. And while Hong Kong and Singapore did not rank individually as the top winners in 2013 (having perhaps to do with factors other than VAT or customs duties), still, such figures may show in part the effect of applicable tax regimes.

Then there are the so-called “free ports,” located around the globe, which have become popular as a way to store works of art intended primarily as an investment. A free port is essentially a tax haven: artwork may be shipped directly to the free port, and as long it is stored there, VAT will not be assessed on the import. (Of course, once the work is shipped outside the free port to its new destination, any applicable tax will be assessed.) An additional benefit for potential purchasers (depending on the local laws applicable to the free port) is that VAT may not be assessed on any sales of artwork made within the free port—at least not until the artwork has left the free port. (So, hypothetically speaking, if a sale has been made, but the work never leaves the free port, VAT will never be assessed.) Arguably, the art fair Art Basel became popular just for that reason, having made its initial home base in a Swiss free port. As of right now, there are free ports located in Switzerland, Luxembourg, Singapore, and Beijing. (One of the best indications of how popular the Singapore free port has become is that Christie’s auction house now has an office located there.)

The EU Commission has previously expressed that VAT rates are not to be used to control social and economic policy in the EU, and clearly is increasingly attempting to pressure member states, whether through regulation, litigation, or other alternative avenues, to raise VAT rates to a uniformly high rate. However, in the face of global competition, one can only wonder what this trend may mean for the EU in the future as a major player in the commercial art markets.

 

Sources:

About the Author: Elizabeth R. Lash, Esq., serves as in-house counsel at Kroll, where she focuses on reviewing agreements relating to cyber security and data breach notification.

DISCLAIMER: This article was prepared by Ms. Lash in her personal capacity; the opinions are the author’s own, and do not reflect the view of Kroll Associates, Inc. or of its affiliates.

Lessons learned from the Sacking of the Summer Palace in China: Diplomacy and Restitution Revisited

One day two bandits entered the Summer Palace. One plundered, the other burned….Before history, one of the two bandits will be called France; the other will be called England…I hope that a day will come when France, delivered and cleansed, will return this booty to despoiled China. Meanwhile, there is a theft and two thieves.

– Victor Hugo, “The Sack of the Summer Palace”

by Merve Stolzman

Built between 1750 and 1764 during the Qing dynasty, the Yuanmingyuan Garden in Beijing, commonly known as the Old Summer Palace, was a masterpiece of imperial garden design. A variety of halls, pavilions, palaces, temples, bridges, fountains, lakes, and hills dotted across this “Garden of Gardens.” The buildings within it were elaborately carved and decorated, and housed thousands of Chinese paintings, antiquities, and other works of art. However, in 1860, during the Second Opium War, British and French forces looted and burned down the Old Summer Palace.

Chinese emperors restored the gardens, first in 1886 and then in the early 1900s, and the government designated it as a public park in 1924. Nevertheless, over 150 years later, thousands of looted Chinese artifacts remain on display in foreign museums around the world, such as the British Museum and Château de Fontainebleau. (Read about recent (Mar.1, 2015) theft of “Asian” artifacts from Chateau de Fontainebleau here). Some, however, have found their way back home.

In February 2014, the KODE Art Museum in Bergen, Norway entered into a trilateral agreement with a Chinese businessman, Huang Nubo, and Peking University to return to China seven marble columns that once decorated the Western-section of the Old Summer Palace for permanent displayed at Peking University. The columns were part of a 2,500-piece collection of Chinese antiquities housed at KODE. Johan Wilhelm Normann Munthe, a collector of Chinese artifacts who settled in China in 1886, donated the collection to the KODE between 1907 and 1935, but how he obtained the looted columns remains a mystery.

International law mandates the restitution of illicitly exported cultural artifacts to their states of origin. Article 7(b)(ii) of the UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (“1970 Convention”) requires states parties to recover and return cultural property within their territory that was illegally exported out of the territory of another state party, should that state request restitution. As of January 2015, 127 states have ratified this convention, and enacted national legislation giving effect to the obligations contained within.

One such example is the Australian Protection of Movable Cultural Heritage Act (1986). Part II, Division 2 of this legislation provides that where a foreign country’s moveable cultural property was illicitly exported and subsequently imported into Australian territory, the government can seize the property and return it to that country. The export of the property in question from the host state must have been prohibited at the time of export. While this provision is permissive, Australia has implemented it on several occasions to honor restitution requests from foreign governments. It has set up bilateral agreements with the Republic of Korea and China’s State Administration of Cultural Heritage regulating the import, export and return of the cultural property of those countries. The government has also accepted several standing requests for seizure and return of illegally exported artifacts from countries such as Argentina, Egypt, Cambodia, and Greece.

Notably, in September 2014, the Australian government complied with India’s request for the return of two statues of Hindu deities stolen from temples in Tamil Nadu. The National Gallery of Australia bought one in February 2008 from New York-based art dealer, Subhash Kapoor. The Art Gallery of New South Wales bought the other in 2004 from the same dealer. India Kapoor is currently on trial in India for allegedly stealing many antiquities, including the two statues, and smuggling them out of India.

While Australia’s conduct illustrates how the international restitution regime can effectively be implemented, the Norwegian-Chinese context exposes a gap in the legal regime. This gap centers on the non-retroactive nature of the 1970 Convention and national restitution laws. Both Norway and China are parties to the 1970 Convention. However, the convention does not contain any provisions that apply it retroactively to cultural artifacts that were smuggled out of the territory of a state party before the convention came into force. Recognizing this, UNESCO set up the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation (“ICPRCP”) in 1978. This permanent advisory body, comprised of twenty-two UNESCO member states that rotate every four years, encourages and helps facilitate bilateral negotiations between UNESCO member states for the restitution of cultural property of “fundamental significance” illicitly exported out of the host country before 1970. ICPRCP also advises on mediation and conciliation procedures to the member states concerned. However, in order for the host state to request the restitution of cultural property through the ICPRCP mechanism, it needs to initiate bilateral negotiations with the other member states concerned. These negotiations also must have stalled or failed before the request. Since 1983, the ICPRCP has assisted in six successful restitution negotiations.

Norway’s restitution laws, found primarily in § 23a of the Cultural Heritage Act (1979), require that Norway return unlawfully exported cultural objects to their state of origin. However, it is important to acknowledge that the KODE case is not one where the cultural artifacts in question were unlawfully exported. Section 9 of the Regulations on the export and import of cultural objects defines unlawful export in part as “any export from the territory of a State in breach of this State’s legislation on the protection of cultural objects.” KODE acquired the columns between 1907 and 1935, and the Law of the People’s Republic of China on the Protection of Cultural Relics, which governs the export of movable Chinese artifacts, was first enacted in 1982. Consequently, Munthe did not export the Old Summer Palace columns illegally because there were no laws at that time that regulated their export. The timing of KODE’s acquisition of the columns prevents China from obligating Norway to return its national treasures through the 1970 Convention or Norway’s restitution laws. Moreover, unlike Australia, Norway has not entered into a bilateral restitution agreement with China. In effect, the existing framework does not provide China with a legal basis to claim restitution of its cultural objects looted before the mid-to-late 1900s.

Whether China and Norway attempted to negotiate the return of the columns is unknown, and given that diplomatic ties between both countries have been frozen since 2010, it is unlikely that Norway and China would have initiated bilateral negotiations over the return of the columns. These circumstances prevent China from soliciting the ICPRCP’s help in resolving the matter, since, as mentioned above, the intergovernmental body requires the two states concerned to have initiated bilateral negotiations, and these negotiations need have failed or been suspended, before requesting the cultural property’s restitution through the ICPRCP’s mechanism.

In the context of the seven columns at KODE, China’s inability to compel Norway to restitute its artifacts through legal or diplomatic measures is not problematic because KODE agreed to return the columns to China through private negotiations. Such mechanisms are potentially effective alternatives to legal claims or bilateral agreements between governments, and China has benefitted from them on several occasions. For instance, French billionaire, François-Henri Pinault, purchased two bronze heads, one of a rat and the other of a rabbit that were once part of a fountain clock in the Old Summer Palace, and donated them to the National Museum of China. However, these private agreements are contingent on the will of museums and individuals to enter into such arrangements, which may be difficult to obtain. The Chinese government explicitly recognized this in its 2011 periodic report to UNESCO on its implementation of the 1970 Convention. In response, it has attempted to negotiate the return of its cultural property with foreign museums. Such efforts are commendable and necessary.

International and domestic law have set up an enforceable framework for the return of illicitly exported cultural property. However, this regime has failed to address the restitution of artifacts stolen and imported into other countries before the early twentieth century. The laws that regulate the modern import and export of stolen cultural property will likely never be applied retroactively. After all, non-retroactivity is a fundamental legal principle, particularly in the international context where states are only bound by the laws to which they agree. For this reason, it is important for states, and the rest of international community, to support and promote bilateral negotiations, voluntary donations and/or private restitution agreements. In the absence of mandatory obligations to restore looted objects to their state of origin, such arrangements are essential to the success of the international restitution framework, and may spearhead efforts to promote restitution at the national and international level.

Note from the Editors: Despite the wide acceptance of the 1970 Convention, United Nations Security Council still finds it necessary to issue Special Resolutions to prevent illicit traffic in cultural property. See for example, UN Security Council Resolution 2199.)

Sources:

About the Author: Merve Stolzman is a third-year law student, American University Washington School of Law; she is the current Symposium Editor of the American University International Law Review. Her areas of interest include: international humanitarian law, the use of force, cultural heritage law, international investment law, and international development law.

Spotlight: Arts Law Centre of Australia

Screen shot 2015-02-24 at 4.08.25 PMby Melissa (YoungJae) Koo*

From the Editors: Given that Center for Art Law has been keenly interested in the legal services available to artists not only within the United States, but also around the world, this time we would like to turn our attention to a unique organization in Australia that has been offering legal assistance to a diverse art client base on the other side of the world for more than 30 years.

 * * *

Australia has been a unique and dynamic place for art and the art market, albeit often overshadowed by giant markets of the United States, United Kingdom, and France. According to Adrian Newstead, Director of Coo-ee Aboriginal Art Gallery, collecting has been growing in Australia, especially centered around Australian Aboriginal art. The growth of secondary market of art sales backed by escalating online sales and overseas dealerships in Australia is also matched by signs of “revival in primary gallery sales and the spectacular success” of Australian urban artists such as Danie Mellor and Tony Albert. Recently, there is a movement among Australian Victorian art gallery owners to create a national peak body for visual arts galleries, spurred by the scandal over stolen antiquities at the National Gallery of Australia. Such recent reports of Australian art and art market news pose questions on the interests of creators of art in the country, known for its unique landscape especially surrounding the Aboriginal art.

As a not-for-profit, Arts Law Centre of Australia (“Arts Law”) is Australia’s leading independent center for the performing and visual arts, operating out offices in Sydney. Center for Art Law has reached out to Robyn Ayres, Executive Director of the organization via email. According to Ayres, Arts Law has been dedicated to empowering artists and creators, protecting their rights and helping to ensure they are fairly rewarded for their creative work since its establishment in 1983. The organization is akin to several state based nonprofit organizations in the United States that provide pro bono legal services to artists such as Volunteer Lawyers for the Arts in New York or New Jersey Volunteer Lawyers for the Arts, which we featured here.

Funding for Arts Law Centre of Australia comes primarily from various governmental as well as nongovernmental agencies. The Australia Council, the Australian government’s arts funding and advisory body, has been the leading financial backer of the organization. Other governmental sponsors include Australian State and Territory governments through their art agencies, Screen Australia, Department of Aboriginal Affairs WA, Screen NT, and Film Victoria. Non-governmental organizations such as Copyright Agency and Phonographic Performance Company of Australia also help funding for the organization.

According to their recently renewed website, Arts Law mainly provides artists and arts organizations with extensive resources and legal services of the range of arts related legal and business matters including but not limited to contracts, copyright, business structures, defamation, insurance, employment, and taxation. Ayres adds that Arts Law’s primary services are around providing such information for the creative communities through the information hub, which boasts rich in-house information such as a variety of legal information sheets and guides, seminar papers from relevant third parties, for example, the Australian Copyright Council, and sample agreements, case studies, eBooks, and videos to name a few. It also publishes a quarterly newsletter art+LAW.

With the team of 7 full-time and 5 part-time staffers, headed by Robyn Ayres as Executive Director, about 240 pro bono legal practitioners as well as a number of law firms located in all Australian States and Territories assist the organization in the provision of the document review service, and daytime volunteers such as law students, law graduates, and qualified lawyers also assist the team. Ayres stated that Arts Law also has an internship program for periods of 3 weeks to 6 months, which regularly takes interns from Australia as well as around the world including the US, Canada, and France.

Specifically, the organization provides legal advice to artists and arts organizations in two main ways: telephone legal advice sessions, either on pro bono or low bono schedule, and more in depth document review sessions available for subscribers. Similar to US-based volunteer lawyer organizations such as New Jersey Volunteer Lawyers for the Arts mentioned above, before providing legal services, the organization determines financial need of a would-be client through their means test. Individuals or arts organizations who do not meet the means test are asked to subscribe and pay a fee ranging from $140 to $500. Subscribers are entitled to two document review sessions and five telephone legal services in the twelve month subscription period, which are valued at over $4,200 Australian Dollars.

Following example illustrates how the organization’s volunteer lawyers help out artists in Australia. When a sculptor was shocked by a letter sent by a Sydney council asking him to stop working on his commissioned sculpture in front of a public library without getting paid, he contacted Arts Law to find out his rights. Although he communicated with the council about the commissioned work via emails, he did not have any formal written contract with the council. A volunteer lawyer from Arts Law advised him that even though there was no formal written contract between the sculptor and the council, it is likely that a binding contract exists between them from a number of documents, and oral and written conversations. During a document review session, the volunteer lawyer drafted a letter of demand to the council outlining that the council was bound by a contract and that it owed the artist money in exchange for the commissioned sculpture. Consequently, the council paid the outstanding amount to the artist.

Furthermore, the organization also offers dispute resolution mechanisms and referrals to accounting services. Ayres also mentioned that Arts Law provides a variety of educational programming throughout Australia, delivering more than 80 lectures, seminars, and workshops, including a webinar program. It also has been instrumental in developments such as the introduction of resale rights and moral rights in Australia, she added.

Arts Law also has been at the forefront of championing Australian artists’ rights with an extensive advocacy agenda on the basis of its “artists first” policy approach. According to Ayres, Arts Law submitted suggestions for changes to the Designs Act in Australia arguing that artists should not lose copyright protection of the work if it is industrially applied. Also recently in 2014, Arts Law argued against the Australian Law Reform Commission’s report on Copyright in the Digital Economy, which recommended amongst other things that Australia introduce a fair use exception in their Copyright Act, similar to the U.S. Ayres stated that the organization argued against such exceptions as it would “erode artists’ rights and broaden the scope for unlicensed use of artists’ works” and recommended that the “current fair dealing exceptions strike an appropriate balance.” See their response here. Also notably, Ayres stated that Arts Law does not agree with the current Australian resale royalty rights scheme as it is only payable on second sale after the law was introduced, rather than payable on all resales.

Perhaps most uniquely, a special program Arts Law offers is Artists in the Black, which caters specifically to Australian Aboriginal artists and Torres Strait Islander artists and art communities. The name “Artists in the Black” refers to an expression “to be in the black,” meaning to be financially profitable and not in debt, or not “in the red.” Introduced in 2004 after the organization observed overwhelming cases of the “rip-offs and exploitation of Indigenous artists” and realized specialized service for them is in need, the program now consists of 15-20% of the organization’s legal work, showing that the considerable amount of legal service provided by the organization is attributed to serving Indigenous artists and their art community, according to their website. Among other achievements through this special program, in 2013, Arts Law successfully advocated for the repeal of Western Australian intestacy laws, which discriminated against Aboriginal people in the State. According to Ayres, the program has also included advocacy on the world stage at the World Intellectual Property Organization’s Intergovernmental Committee (WIPO IGC) meetings about the “need for an international instrument to protect indigenous knowledge and culture.” Arts Law has also made submissions to the Australian government and contributed to the discussion on the better protection of the Indigenous Cultural and Intellectual Property (ICIP) through reform of legislation.

The Artists in the Black program also promotes a new pro bono program called “Adopt a Lawyer,” which partners Aboriginal and Torres Strait Islander community art organizations with an experienced law firm for a three-year partnership. By creating one-on-one relationships between the Aboriginal art organizations and a single law firm, the organizations in need can directly benefit from more timely access to legal advice from the designated firm, and the law firms can enjoy a closer relationship and understanding of Australia’s Indigenous culture and community. For example, through this program, Mowanjum Aboriginal Art & Culture Centre, which represents artists of the Worrora, Ngarinyin, and Wunumbal language groups, is paired with an international law firm Ashurst. Such a program, specially designed for aboriginals who might not have access to legal and business resources related to their art, is unique to this Australian organization, exemplifying the diversity of Australian artists and the organization’s commitment to all of them.

Arts Law Centre of Australia seems to be one of the few examples worldwide where there is a concerted effort to assist artists in navigating the legal and business realm. Ayres stated that although Arts Law does not have any formal relationships with organizations outside of Australia, it occasionally makes informal referrals to “sister” organizations and works with law firms that have global network for the benefit of Australian artists. She also expressed that the organization would be interested in exploring the possibility of more reciprocal arrangements. In the upcoming Spotlight, Center for Art Law will examine the work of Institute for Art and Law in the United Kingdom and Korean Artists Welfare Foundation in South Korea and Arts and Law in Japan. As Arts Law Centre of Australia continues its work 30 years after inauguration, other countries and attorneys worldwide should take notice and aim to set up similar services for their creative community.

Sources:

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

Artists’ Use of Drones Endangered

From KATSU's Remember the Future, 2015. Source: http://theholenyc.com/2015/01/02/katsu/

From KATSU’s Remember the Future, 2015.
Source: http://theholenyc.com/2015/01/02/katsu/

By Dennis C. Abrams*

Since the Federal Aviation Administration (FAA) first authorized the use of unmanned aircraft in 1990, noncommercial operation thereof has been relatively unregulated. As a result, artists in the United States have long had free rein to utilize drones in their artwork. However, this freedom may come to an end before the end of 2015. The Chairman of the House Transportation and Infrastructure Committee, Representative Bill Shuster, R-Pa., said in December of 2014 that Congress would prioritize overhauling aviation policy and reauthorizing FAA programs in 2015. In January The Art Newspaper reported that the FAA is planning to submit new restrictive drone regulations to Congress by September.

Drones have become relatively affordable and available to lay consumers over the past few years; the DJI Phantom, the world’s bestselling drone model, is now available for $479 on Amazon.com. As such, the proportion of drone operators who are artists has been increasing relative to the original user base of aviation enthusiasts. Notorious for pushing boundaries of the permissible and possible, artists have used drones as a subject of art (such as in James Bridle’s political commentary “Drone Shadow”), an instrument to create art (as in works by Addie Wagenknecht and KATSU) and a medium in and of themselves (for example, Alex Rivera’s “LowDrone” and Bart Jansen’s taxidermy). Drones have been useful to artists working in different media and fields including photography, painting, audio-visual art and live performances (as in shows by Cirque du Soleil and Japanese dance troupe Eleven Play).

While drones do present exciting means of expression previously unavailable to most artists with modest budgets and little technical training or interest, these drone operators do recognize the unique challenges and risks posed by using the aircraft in their artwork. For example, in 2014, Brooklyn-based graffiti writer KATSU, who has long been on the cutting edge of graffiti innovation, having previously invented the highly influential fire extinguisher spray can, developed a graffiti drone – a quadcopter with an attached aerosol can. Although he has yet to perfect his graffiti drone, he has expressed an intent to use the aircraft to bring his unique brand of art to otherwise inaccessible areas in public view hundreds of feet above the street. However, KATSU’s work may be for naught if the FAA’s forthcoming regulations ground his drone before it can revolutionize the graffiti world. In an interview with Bard College’s Center for the Study of the Drone at a 2014 showing of his drone-created paintings, KATSU acknowledged the novel dangers of using the technology in graffiti, explaining that his traditional graffiti only involves risking his own safety whereas a major concern of using drones is “losing control and having it fly down and hit a woman in the head, or…kill someone.” In addition to injury prevention, the FAA has interests in national security, air traffic control and privacy which could be advanced by regulating noncommercial drone use.

Indeed, the line between commercial, regulated use and recreational, unregulated use of drones can be difficult to identify in the art world. If an operator pilots a drone for use in taking photographs for her own amusement and then later sells those photographs for a modest sum, is she a recreational operator a commercial operator?

Some, such as art critic and journalist Benjamin Sutton, have speculated that the new legislation would eliminate such gray areas by applying the same rules to commercial and noncommercial operation. The legislation may also codify the FAA’s voluntary safety standards for drone operation which, among other suggested “best practices,” encourage operators to not fly near people or crowds, to keep their drones below 400 feet, to give way to full-scale aircraft and to not hesitate to ask for assistance from air traffic control towers in flying safely. The regulations might additionally confine operation to daylight hours.

Commercial drone operation is not absolutely prohibited, however. Under Section 333 of the FAA Modernization and Reform Act of 2012, unmanned aircraft can be used for commercial purposes only if they are granted a certificate of airworthiness by the FAA. In order to grant permission for commercial operation under Section 333, the FAA requires that the operation does not pose a threat to other airspace users or to national security, that there is an “observer” separate from the pilot, that the aircraft remain within sight at all times and that the pilot has at least an FAA Private Pilot certificate and a current medical certificate. To date, the FAA has received 342 requests for Section 333 exceptions and has granted only twenty-four. There is also an exception under Section 334 of the Act allowing federally funded entities, referred to in the statute as “public entities,” to operate drones, which could theoretically allow for continued drone usage in public arts projects.

Until further details come to light, the effects on the art world of the forthcoming legislative revisions are still very speculative. If it were to approach noncommercial drone use the same way that commercial use is handled under current regulations, it would be very difficult for private artists to employ drones in their artwork without running afoul of FAA regulations. However, if the legislation were to only codify the voluntary safety standards, it would not likely be very restrictive of artists’ ability to utilize drones to a reasonable extent.

Selected Source:

  • FAA’s general homepage for drone info: Unmanned Aircraft Systems, Fed. Aviation Admin., http://www.faa.gov/uas/ (last modified Feb. 04, 2015).

About the Author: Dennis C. Abrams, Legal Intern with Center for Art Law, is a 3rd year student at Benjamin N. Cardozo School of Law, concentrating in intellectual property, media, art, entertainment, and sports law. He can be reached at denniscabrams@gmail.com.

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