Borrowing Art Made Easy, Maybe

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The new Foreign Cultural Exchange Jurisdictional Immunity Clarification Act clarifying the 1965 Immunity from Seizure Act, 22 USCS § 2459, seems to take the old adage – Beg, borrow or steal – to heart where the interests of American museums, if not necessarily the American public, are concerned. No doubt, lives of curators in American cultural institutions have been complicated by the fears of litigation and hesitance to loan art manifested by government-owned foreign art institutions. Supposedly loans requests have been denied once too often and the Association of American Museum directors lobbied for a new legislation plugging the gaping hole in the iron clad Immunity from Seizure Act, a hole created by the application of the Foreign Sovereign Immunity Act, 28 USCS § 1605, to problematic art loans thanks to the 2005 Malevich decision, 362 F.Supp.2d 298 (2005).

In short “The new bill, sponsored by Senators Dianne Feinstein, Democrat of California, and Orrin Hatch, Republican of Utah, would in effect overturn the judge’s decision and bar lawsuits, except those related to art looted by the Nazis or their agents. The bill would cover loans from the state-owned foreign museums like the Louvre or the Prado, but not private ones.”

Perhaps. But the American public should ask, is this in our best interest? Do we want to protect possessors of stolen property and enjoy site of objects taken from their rightful owners under unsavory, how is that for a sanitized word, circumstances? Is there so little other art in the world that can be borrowed without putting our perceptions of right and wrong aside for a temporary show? There are always competing interests and the decision whose interest ought to prevail should not be made lightly.

One one hand there is the 1965 law that protects temporary loans of art works of cultural significance. 22 USCS § 2459 reads in part “[w]henever any work of art or other object of cultural significance is imported into the United States from any foreign country, pursuant to an agreement entered into between the foreign owner or custodian thereof and the United States or one or more cultural or educational institutions within the United States providing for the temporary exhibition or display thereof within the United States at any cultural exhibition, assembly, activity, or festival administered, operated, or sponsored, without profit, by any such cultural or educational institution, no court of the United States, any State, the District of Columbia, or any territory or possession of the United States may issue or enforce any judicial process, or enter any judgment, decree, or order, for the purpose or having the effect of depriving such institution…”
On the other hand Foreign Sovereign Immunity Act limits immunity in cases where any sovereign holds property rights, “in violation of international law …  and 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…”

A venn diagram of the two laws shows an overlap and thus protection from legal action for privately owned institutions and threat of litigation to government owned institutions. The new Act is clearly sensing a discrepancy in treatment of different categories of lenders. Is the proposed solution fair?

Lady Justice is blind. Let her keep her eyes closed to the magnificent if pirated art works that are on the walls of the institutions outside of the United States and decide which interests outweigh: entertainment and aesthetics of many or rightful property rights of the few. If she does sneak a peek at the contested canvases and sculptures, she too may be seduced and tip the scales in favor of the museums.

For additional commentary read The New York Times.

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