Art Price Indices: Op Ed

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

For additional readings on the subject of art markets, visit

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By Carole Pinto*

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

By Elizabeth Weber, Esq.*
Screen Shot 2015-11-12 at 12.10.59 PM
In early September 2015, a former Tennessee news anchor who invested in Andrew Wyeth’s Ice Storm [the Painting] sued a Japanese art dealer in the Southern District of New York over the proceeds from the Painting’s May 2015 sale at Christie’s. The investor, Reed Galin, purchased a one-third interest in Ice Storm from his childhood friend and college roommate, now-disgraced art dealer David Ramus, in the late 1980’s.

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

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

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

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

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

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

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

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


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

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

Seeing Double: Nearly Identical Photograph Sparks Copyright Controversy

By Loren Pani*

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


Center for Art Law, Oct. 21, 2015.


Center for Art Law, Oct. 21, 2015.


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


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

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

Photograph by Sarah Scurr, Nov. 6, 2006.

Photograph by Sarah Scurr, Nov. 6, 2006.

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

Selected Sources:

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

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

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

By Rebecca Krishnan-Ayer *

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

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

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

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

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

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

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

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

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


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

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


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

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

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

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

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

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

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

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

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

UK Copyright Amendment Provokes Controversy in the Art and Design World

By Christopher Visentin*

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

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

Egg (1958)

Arne Jacobsen, “Egg Chair” (1958).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Robin Day, “Polypropylene Chair.”

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


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

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

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

By Irina Tarsis, Esq.*

Magritte, "C’est ci ne pas un Pipe."

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

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

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

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

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

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

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

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

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

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

Select Sources:

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

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

By Irina Tarsis, Esq.*

“I want to do something splendid…

I think I shall write books.”

Louisa May Alcott

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cited Cases:

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

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

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

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

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

by Tess Bonoli*

CPAC collage

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

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

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

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

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

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

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

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

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

Selected Sources:

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

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice readers are not meant to act or rely on the information in this article without attorney consultation.

Hold your Horses: Art Authenticators Not Protected Yet

By Irina Tarsis, Esq.*

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

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

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

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

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

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

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

Act to Amend New York Arts & Cultural Affairs Law:




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

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

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