This Thursday, on August 8, 2013, New York Federal Court Judge J. Paul Oetken dismissed Peter Paul Biro’s libel case against Conde Nast and several other media parties. Biro brought a $2 million claim against Conde Nast after they published a 16,000 word article in The New Yorker about Biro, titled “The Mark of a Masterpiece: The Man Who Keeps Finding Famous Fingerprints on Uncelebrated Works of Art.”
Judge Oetken discharged Biro’s claim on the grounds that he failed to prove “actual malice,” which according to his interpretation “does not simply connote ill will or spite” like one would hear in a schoolyard. Yet, must imply “deliberate or reckless falsification.”
Oetken wrote in his opinion: “Not only has Biro failed to provide factual allegations rendering it plausible that the New Yorker Defendants acted with actual malice, but there is evidence in the record suggesting that it is implausible that they acted with the requisite intent — most notably, the Grann Article itself.”
The New Yorker issued a statement noting: “We are delighted that the judge dismissed this meritless lawsuit against David Grann and Conde Nast. We have always maintained complete confidence in David’s meticulous reporting for his July 2010 piece, ‘The Mark of a Masterpiece.’ It is a brilliant piece of journalism and, as the Judge noted in his opinion, the article ‘appears to be the product of an enormous amount of careful and diligent research.’”
For our previous coverage visit and a more detailed analysis visit: “What’s in a Name?” Peter Paul Biro v. Conde Nast for Defamation
Sources: “Judge Rejects Art Expert’s New Yorker Lawsuit,” ArtINFO, August 2, 2013; “Forensic Art Expert’s Libel Case Against New Yorker Magazine Dismissed,” The New York Times, August 2, 2013.
Coat of arms of the House of Borghese
The dispute can be traced back to Princess Marcella Borghese, mother and grandmother of the Defendants and the founder of a cosmetics line now-owned by the Plaintiffs. The issue in dispute is who may use the name and the family history for marketing purposes.
In the 1950s, Princess Marcella co-founded a Borghese, Inc. As reported in the New York Times, “For decades, the Borghese family and the Borghese cosmetics business coexisted with little dispute.” In 1976, the rights, title and interest in the Borghese cosmetics brand, including the use of the words and phrases ‘Borghese’ were purchased by Revlon. Princess Marcella died in 2002. Her heirs, namely her son Francesco and her grandson Lorenzo, started their own beauty product lines for humans and their pets, under unrelated names, including ‘Orlane,’ ‘Elariia,’ ‘La Dolce Vita by Prince Lorenzo Borghese.’ They were however trying to capitalize on their lineage Current owners of the Borghese’ trademark warned Lorenzo that he should stop “causing any false impression in the marketplace that there is a connection or relationship between yourself and Borghese Inc. and our cosmetics products.”
Trademark law is intended to prevent consumer confusion, thus infringers of valid trademarks may be prohibited from using them. There are ample cases finding in favor of trademark holders, particularly those who’s personal names are trademarked, for example Donna Karan New York or Disney Style. However, this case is of particular interest because the purported infringers are descendants of the noble family and they do bear the actual name of Borghese.
The question is which connection would be sooner presumed Lorenzo’s with the cosmetics company founded by his grandmother, or the company’s connection to the Marcella’s family. Reportedly Marcella’s heirs have already spent about $4 million in legal fees on the case that was filled in 2010 and has yet to come to trial. Are the consumers to think that a perfume line marketing for any other name would give off a different odor?
Source: The New York Times.
Lift on Ban for Posthumous Dan Flavin Sculptures Raises Questions As To The Artist’s True Wishes And The Effect On The Present Market For His Works
The estate of Dan Flavin, contemporary artist known for his florescent light sculptures, has reversed its position on the production of posthumous versions of the artist’s fluorescent light sculptures. Until 2007, the estate did not manufacture unrealized editions.
Flavin’s process for creating works has directly impacted the way the market functions for them. He generally conceived his sculptures in editions of three or five, but would wait to create individual works until they had been sold to avoid unnecessary production and storage costs. As a result, his sculptures existed as drawings or exhibition copies until they were sold. The artist left behind more than 1,000 unrealized sculptures when he died in 1996. If produced, these could be worth tens (if not hundreds) of millions of dollars.
Stephen Flavin, the artist’s son and executor of the estate, explained the shift: “At the time, I thought that limiting the number of works in the world to what Dan sold during his lifetime, and had certificates for, actually simplified matters.” According to Stephen and reported by The Art Newspaper, two major factors contributed to the decision to lift the restriction. First, a 2004 retrospective of the artist’s work at the National Gallery of Art in Washington, DC created renewed interest in public interest. Second, the estate’s plan of opening a museum dedicated to the artist fell short due to funding shortages.
This case raises interesting questions of whether the artist’s wishes are truly being honored and what effects this shift will have for the artist’s market.
It is unclear whether the new policy is in keeping with the artist’s wishes. During the 1980s, Flavin indicated that he was not interested in posthumous production. “I would like to leave a will and testament to declare everything void in my death, and it’s not unrealistic,” Flavin said in a 1982
interview. On the other hand, others say the artist was not clear. “As far as I know… he refused to discuss what would happen [after his death],” Michael Govan explained, director of the Los Angeles County Museum of Art, who co-authored Flavin’s catalogue raisonne. Further, Stephen explained, that his father did not address posthumous editions of his works in his will.
Also still up for debate is what effect the estate’s decision will have on the existing market for the artist’s work. This is reminiscent of an issue raised at the end of 2012, when the Andy Warhol Foundation decided to sell its collection of Warhol’s works, releasing many new pieces into the market and making dealers, auction houses, and collectors alike uneasy as to the effects this decision would have on the value of their works. In Flavin’s case, Govan believes that a split will develop between the posthumous pieces and the ones made when Flavin was alive. He guesses that “if you own a 1960s mercury Flavin fixture, which is an artifact of the time with a perfect certificate, the market is going to decide it is more valuable.” On the other hand, institutional buyers are less likely to be concerned with a work’s resale value. Evelyn Hankins, a curator at the Hirshhorn explained that for conceptual artists like Flavin “the object itself isn’t what you are acquiring… the concept is what matters.”
Source: The Art Newspaper
By Peninah Petruck
This May, a Tyrannosaurus Bataar skeleton, nearly complete, arrived home in Mongolia. This first ever cultural repatriation to Mongolia is the stuff of a film caper, including an arrest for international smuggling, possession of stolen property, and making false statements. See our original coverage in “Fossils Dealer Wants his Dinosaur Skeleton Back.”
The good guys are: Preet Bharara, the Southern District’s US Attorney, John Morton, the US Immigration and Custom Enforcement’s (ICE) as well as Tsakhia Elbegdorfj, Mongloian President; the villain is Eric Prokopi, a Florida collector-dealer, now facing up to seventeen years in prison and a $250,000 fine. As part of a plea agreement, he consented to the forfeiture of the Bataar skeleton as well as other fossils (two other Bataars, and Sauroluphus and Ovriaptor skeletons). The Bataar is 70 million years old, but its recent travels began when paleontologists discovered it in the western Gobi Desert, somewhere between 1995 and 2005.
In March, 2010, Prokopi and his co-conspirators arranged for the skeleton to be imported to the US from Great Britain. Its import documentation contained several false statements as to its actual description, place of origin, and value. Before its scheduled sale by a Texas based auction house, a Texas district court granted the Mongolian government a Temporary Restraining Order, which prohibited the Bataar’s auction, sale or transfer. But the sale went through, (for over $1,000,000), contingent on the outcome of any court proceeding filed on behalf of the Mongolian government.
In May, 2012, President Elbegdorfj requested that the Southern District’s US Attorney, file for a forfeiture of the Bataar, a “rare national treasure.” And in June, in response to the Attorney’s civil forfeiture action, the court issued a warrant to ICE to seize the skeleton. Finally, this February, Judge Kevin Castel entered a judgment for forfeiture of the skeleton and its return to Mongolia. And during a special ceremony (held near the United Nations in New York City) the US handed over the Bataar to the Monglian government, which plans to establish a museum to showcase the Bataar and other recently recovered fossils.
The original verified complaint seeking the Bataar’s forfeiture was filed under 18 U.S.C. § 45 and 981(a)(1)(c); and 19 U.S.C. §1595. 18 U.S.C. §545 states: “merchandise introduced into the United States in violation of this section…. shall be forfeited.” That complaint alleged claims for forfeiture, not only against Prokopi’s Bataar, but also for an Hadrosaur skeleton, offered for sale at the Chait Gallery; an Oviraptor matrix, recovered from a home in Gainesville, Florida; another Hadrosaur skeleton, recovered from a barn in O’Brien, Florida and; an Oviraptor, recovered from a residential dwelling in Archer, Florida. Included in the allegations were references to Mongolian law, its cultural heritage and its criminal laws, which prohibit personal ownership of items of cultural significance. Also the allegations established probable cause for issuing the warrant, stating that the Gobi desert is a “fertile source of dinosaur relics,” and that the fossils were stolen from Mongolia. The amended complaint cited paleontological reports which found unequivocally that the Bataar was from Mongolia. Prokopi and his fellow defendants chose not to answer the complaint.
Apparently, the investigative work of the ICE as well as the forfeiture unit of the US Attorney’s office was irrefutable. No wonder, President Elbegdorfj stated: “Our two countries are separated by many miles, but share a passion for justice and a commitment to putting an end to illegal smuggling.”
Sources: Press Release, May 6, 2013 S.D.N.Y.; Verified Complaint, 13 CV 0857; Verified Complaint, 12 CV 4760; “US Gives Dinosaur Back to Mongolia,” May 6, 2013, phys.org.
By participating in any sale, you acknowledge that you are bound by these terms and conditions.
On January 25, 2013 the Royal Canadian Mounted Police in Halifax Region (RCMP) posted an article on their website seeking help from the public to identify a number of items that were seized from a residential home in Fall River, Nova Scotia.
Also in January, in an interview with Michael Moosberger, Manager at the Archives and Special Collections at Dalhousie University Library and accompanying article, CTV News reported that the items were seized after RCMP Officers had stopped John Mark Tillman, in order to ensure that he was “complying with court-imposed conditions” stemming from a previous unrelated incident. It was this stop that led to the discovery of a rare letter, dating back to 1758, written by the British General James Peter Wolfe (1727-1759). The letter, addressed to Wolfe’s uncle, is dated just days before the siege of Louisbourg and describes plans for this important military offensive.
After discovering the Wolfe letter, police then searched Tillman’s house in Fall River, where, as described by reporter Kayla Hounsell, they discovered over a thousand historically important and valuable items including “rare books, documents, paintings and antiques” which had been stolen from various institutions including “libraries, museums and personal collections.” The estimated value of the stolen items at that time was about $1 million.
In the interview, Moosberger confirmed that Tillman spent much of his time in the Archives of the University (as well as at other institutions), posing as a researcher. He was well known to many, including Moosberger himself.
In March 2013, CBC News reported that another individual had been arrested in the Tillman case. What led police to the second man was a stolen letter written by the first President of the United States, George Washington, dating prior to the American revolution. It was confirmed that this letter, like the one written by General Wolfe, also came from the Archives collection at Dalhousie University.
Theft is defined in section 322(1) of the Code and its punishment determined based on whether or not the amount stolen exceeds five thousand dollars pursuant to section 334. If the theft is over five thousand dollars, the penalty is a maximum of ten years imprisonment, while the penalty for theft under five thousand dollars is either a maximum of two years imprisonment based on subparagraph 334(b)(i) or (ii) a summary conviction. The same sanctions apply to those convicted for the section 354 offence, namely, possession of property obtained by a crime based on section 355 of the Code. In the case of trafficking property obtained by crime (sections 355.2 and 355.4), the maximum imprisonment for subject value exceeding five thousand dollars is fourteen years based on paragraph 355.5(a), and a maximum of five years or summary conviction based on subparagraphs 355.5(b)(i) and (ii) respectively, if the value is under five thousand dollars.
Unfortunately, Tillman’s case is not unique. Canada has become infamous for being a “dumping ground” for the international black market of stolen art and cultural heritage.
In 2011, Joshua Knelman, journalist and author of Hot Art: Chasing Thieves and Detectives through the Secret World of Stolen Art wrote an article for the Globe and Mail that highlighted the evolution of the only art theft investigation unit in Canada, located in Quebec. In the article, Knelman estimated that in Quebec alone, the “crimes related to the black market are worth about $20-million annually;” and interestingly, “statistics” were not available for the other provinces. Further, he reported that between the years of 2004-2007, the Quebec unit (comprising of three investigators at the time that the book was written) opened 300 new cases.
Art theft is not what most of us fantasize it to be, à la Thomas Crown Affair, as per an interview with Knelman. Rather, there is dense criminal activity related to art theft including organized crime groups – such as the Hells Angels biker gang – using art as a “criminal currency” and for the purpose of money laundering.
Knelman noted that the largest art theft in Canadian history remains the 1972 museum heist in Montreal at the La Musée Des Beaux Arts. That incident saw the disappearance of eighteen paintings, taken by three masked individuals. That taking resulted in a roughly $2 million loss; seventeen of the paintings remain missing. One of the stolen works entitled Landscape with Cottages, was painted by Rembrandt Harmensz Van Rijn (1606-1669), and valued at one million at the time of the theft. It estimated to be worth over twenty times that amount today.
In the past few years, there have been several high profile art thefts across the country including the taking of three works from an art gallery in Toronto’s Yorkville neighborhood in 2012, painted by the Group of Seven artists Frank Johnston (1888-1949) and Arthur Lismer (1885-1969) and Montreal artist Sylvia Lefkovitz (1924-1987). This incident follows a 2011 theft of eleven paintings from a Toronto area gallery (five of them painted by Group of Seven artists).
* * *
In April 2013, CBC News confirmed that Tillman was denied bail and would have to remain in jail until his trial. Further, they reported that the total number of recovered artifacts had reached about 3,000 and that Tillman had already been charged with forty offences. The Crown Prosecutor in the case mentioned that it would be “likely that additional charges will be laid in the future” based on ongoing investigations.
Canadian Criminal Code RSC 1985, c C-46; Dan Phelan, “1972: Art heist at the Montreal Museum of Fine Arts” CBC Digital Archives (4 September 1972), http://www.cbc.ca/archives/categories/arts-entertainment/visual-arts/visual-arts-general/art-heist-at-the-montreal-museum-of-fine-arts.html; Police Seek Public Help in Identifying Stolen Items, Halifax Regional Municipality, N.S. (25 January 2013) Royal Canadian Mounted Police, http://www.rcmp-grc.gc.ca/ns/news-nouvelles/releases-communiques/13-01-25-112503-eng.htm; Kayla Hounsell & Rick Grant “Police Recover Artifacts Stolen from N.S. archives, Province House” CTV News (22 January, 2013), http://atlantic.ctvnews.ca/police-recover-artifacts-stolen-from-n-s-archives-province-house-1.1125074; “Stolen George Washington Letter Leads to Halifax Arrest” CBC News (4 March 2013), http://www.cbc.ca/news/canada/nova-scotia/story/2013/03/04/ns-stolen-artifacts-second-arrest.html; Joshua Knelman, “Police Cracking Down on a Hotbed of Hot Art in Quebec” Globe and Mail (20 September 2011), http://www.theglobeandmail.com/news/national/police-cracking-down-on-a-hotbed-of-hot-art-in-quebec/article594976/?page=all; Anna Maria Tremonti, “The World of Stolen Art” (23 September 2011) CBC The Current, http://www.cbc.ca/thecurrent/episode/2011/09/23/the-world-of-stolen-art/; Jacques Gallant, “Group of Seven Paintings Stolen from Yorkville Art Gallery” Toronto Star (31 August 2012) http://www.thestar.com/news/gta/2012/08/31/group_of_seven_paintings_stolen_from_yorkville_art_gallery.html; “Man Denied Bail in Stolen Artifacts Case” CBC News (11 April 2013) http://www.cbc.ca/news/canada/nova-scotia/story/2013/04/11/ns-tillman-denied-bail.html; Greg Quill, “Canada Dumping Ground for Stolen Art” Toronto Star (26 March 2010), http://www.thestar.com/entertainment/2010/03/26/canada_dumping_ground_for_stolen_art.html; McMichael Canadian Art Collection, The Collection – The Group of Seven http://www.mcmichael.com/collection/seven/; Galit Rodan, “Group of Seven Paintings Nabbed in Toronto Art Gallery Heist” Toronto Star (11 July 2011) http://www.thestar.com/news/crime/2011/07/11/group_of_seven_paintings_nabbed_in_toronto_art_gallery_heist.html; Douglas & McIntyre “Joshua Knelman” http://www.dmpibooks.com/author/joshua-knelman; Sylvia Lefkovitz http://sylvialefkovitz.com/index.php.
In an article with a cheeky title and a noble purpose, Raymond J. Dowd, Partner with Dunnington Bartholow & Miller LLP argues that the procedural or “technical” defenses, such as the statute of limitation or laches, should not be available in disputes involving art looted during World War II. He specifically targets art works of European provenance that entered the United States after 1932 and were created before 1946.
Statute of limitations imposes a term limit to bring a claim for a specific cause of action, here replevin or conversion (money for the stolen object or recovery of the object itself). Laches is a defense for defendants who may be prejudiced by plaintiff’s efforts to recover, in this instance stolen or lost art. Over the last decade, museums and collectors have been turning to technical defenses to avoid reviewing facts surrounding ownership of art displaced during World War II.
A PDF of Dowd’s “Nazi Looted Art and Cocaine: When Museum Directors Take it, Call the Cops is available from Rutgers J. Law & Religion.
– Excuse me, how much watch?
– Near six.
– Such much?
– For whom how…
Incidentally, this joke was appropriated from the the cult film Casablanca (1942), where two Germans are discussing time in “English”.
But back to art and cultural heritage law, which are also sometimes funny. Here are some of the good, bad and not funny jokes to be enjoyed at their expense:
- A painting attributed to Andy Warhol is bought for $185,000. Before it is offered for sale again, it is presented to the Andy Warhol Art Authentication Board and ultimately it is stamped “DENIED” not once but twice. Collector, whose property is thus defaced and devalued, sues. The court finds in favor of the Board but the victory that comes with a price tag of about $7 million. As the Andy Warhol Foundation stops authenticating Warhol Art, the comically inclined wonder, didn’t the Foundation know that all good jokes must have three parts, and thus the painting should have been stamped three times?! Read: Authentication Committees Disband.
- Fossilized bones of a T. bataar dinosaur, that died in the Cretaceous period, are improperly imported into the United States. Hundreds of hours chiseling and assembling bones of different dinosaurs from different places together result in a forfeiture of the newly assembled skeleton and a return of the beast to Mongolia. It should have been Siberia for a better punchline! Read: Fossils Dealer Wants his Dinosaur Skeleton Back.
- Art works gifted to the Brooklyn Museum by a long-time deceased Colonel turn out to be fakes. However, they may not be deaccessioned easily because all of the trustees of the estate of the sad colonel are deceased as well. In other words, they’ve gone extinct! [That was a dinosaur reference. Do you get it?!] Read: Of Brooklyn Museum, Colonel and Cy Pres.
- A new textbook on Cultural Heritage Law priced at half a thou dollars. Now, that’s a good one!
Contributors to this volume include the deans of art law and the leaders of cultural heritage protection. To name but a few: Lawrence M. Kaye, Partner with Herrick Feinstein (NY), Patty Gerstenblith, professor at DePaul Law School (IL), Lyndel Prott, former Director of UNESCO’s Division of Cultural Heritage (Australia). The volume’s editor is Professor of law and Director of International Programs at the Willamette University College of Law. In all seriousness, I am sure it is a worthy reference but who can afford it?! The collectors who now have fewer Warhols and dinosaur bones to acquire? Perhaps, this anecdote would make for a good MasterCard commercial:
Source: Amazon.com; Elgaronline.
Chinese-born, French-naturalized artist Zao Wou-ki died on April 9 2013 in Switzerland. Less than one months later, his family members, his third wife Françoise Marquet and his son from the first marriage Jia Ling Zhao, are already fighting over control of his art and estate. Specifically, they are seeking guardianship of his unsold paintings, estimated worth in excess of 500 million Euros.
As a victorious gladiator whose triumph would be feted with “Die Now!” chant from the spectators, at the time of his death, Zao Wou-ki, 93 and diagnosed with Alzheimer’s, was the highest selling living Chinese artist. He passed away three days after setting a record by selling one of his paintings for $4.7 million at Sotheby’s Hong Kong auction on April 6, 2013.
Given that Zao Wou-ki was one of the best known and most prolific contemporary Chinese artists; clearly control of his estate is worth the fight.
Native Chicagoan, de Grazia died on April 11, 2013 at the age of 86. He taught at Benjamin N. Cardozo School of Law for 30 years, between 1976 and 2006, and he defeated government bans on sexually explicit books and movies. He described himself as defending “morally defiant artists” against “reactionary politicians and judges.” Some of the highlights from his career include challenging the seizure of a rare volume of Lysistrata* before it was destroyed by the Postal Service as well as overturning the ruling that Henry Miller’s novel Tropic of Cancer may not be published in the United States.
“A fascinating and unusual decision of first impression (published only in French) from the European Court of Human Rights (ECHR) involves the rights of photographers to use photographs taken at French fashion shows. Under French law, the fashion houses own the copyrights to any photos taken at a show. In the case, Ashby Donald and others v. France [ECtHR (5th section), 10 January 2013], the Court clarified for the first time that a copyright infringement conviction based on illegally reproducing or publicly communicating copyright protected material can be deemed an interference with the rights of freedom of expression and information under Article 10 of the European Convention.”
Greek billionaire shipping magnate, Basil Goulandris died in 1994. His wife died in 2000. The couple owned a large billion-dollar worthy collection of art that was kept in their Alpine chalet in Gstaad, Switzerland. Bloomberg News reports that one of Goulandris’ heirs, Aspasia Zaimis, is seeking to recover parts of the Goulandris collection that were sold in 1985, which at one time contained works by Picasso, Monet, Degas and Cezanne. Although the sale took place when both Mr. and Mrs. Goulandris were still alive, claimant has been quoted as saying “I believe with all my heart that the paintings were part of my inheritance.” Zaimis is a legatee under Elisa Goulandris’s will. Another beneficiary of the same will is the Elisa Goulandris Foundation, now under an investigation by the Swiss authorities.
The account of the allegations reads like fiction: a Greek heiress, masterworks sold to a Panamanian company, a cyphered will, an art historian/executor of the will suspect of falsifying titles of ownership, Swiss privacy laws, a death on a yacht, etc.
To learn more details about the Goulandris mystery, read “Greek Heiress Suis After Chalet’s Picassos, Monets Vanish.”
On February 1, 2013, New York celebrated the centennial anniversary of the Grand Central Terminal. It is arguably the most famous train station in the United States. Today nobody in his right mind would consider taking this beautiful landmark down. However, in the 1970s Grand Central was under real threat of demolition; it could have followed the tragic lead of the original Pennsylvania Station that was demolished fifty years ago, in 1963.
The survival of the majestic Grand Central Terminal in the heart of Manhattan is a testament to historic preservation. In 2013, we also mark the 50th anniversary of the demolition of the original Beaux-Arts building of the Pennsylvania Station and the 35th anniversary of the historic Supreme Court decision that saved Grand Central and others from destruction. In 1978, the United States Supreme court held that cities have the right to protect their historic buildings. The decision limited owner’s ability to sell or develop their property but it protected American landmarks and “legitimized preservation efforts” in the United States. It was not a unanimous decision, with Justices Rehnquist and Stevens dissenting.
Following are excerpts from the 1978 decision of Penn Central Transportation Company versus New York City:
- This case involves the application of New York City’s Landmarks Preservation Law to Grand Central Terminal (Terminal). The Terminal, which is owned by the Penn Central Transportation Co. and its affiliates (Penn Central), is one of New York City’s most famous buildings. Opened in 1913, it is regarded not only as providing an ingenious engineering solution to the problems presented by urban railroad stations, but also as a magnificent example of the French beaux-arts style.”
- On August 2, 1967, following a public hearing, the Commission designated the Terminal a “landmark” and designated the “city tax block” it occupies a “landmark site.” The Board of Estimate confirmed this action on September 21, 1967. Although appellant Penn Central had opposed the designation before the Commission, it did not seek judicial review of the final designation Grand Central Station, one of the great buildings of America, evokes a spirit that is unique in this City.
- “It combines distinguished architecture with a brilliant engineering solution, wedded to one of the most fabulous railroad terminals of our time. Monumental in scale, this great building functions as well today as it did when built. In style, it represents the best of the French Beaux Arts.”
- On January 22, 1968, appellant Penn Central, to increase its income, entered into a renewable 50-year lease and sublease agreement with appellant UGP Properties, Inc. (UGP), a wholly owned subsidiary of Union General Properties, Ltd., a United Kingdom corporation. Under the terms of the agreement, UGP was to construct a multistory office building above the Terminal. UGP promised to pay Penn Central $ 1 million annually during construction and at least $ 3 million annually thereafter. The rentals would be offset in part by a loss of some $ 700,000 to $ 1 million in net rentals presently received from concessionaires displaced by the new building. Appellants UGP and Penn Central then applied to the Commission for permission to construct an office building atop the Terminal.
- Two separate plans, both designed by architect Marcel Breuer and both apparently satisfying the terms of the applicable zoning ordinance, were submitted to the Commission for approval.
- The first, Breuer I, provided for the construction of a 55-story office building, to be cantilevered above the existing facade and to rest on the roof of the Terminal.
- The second, Breuer II Revised, 17 called for tearing down a portion of the Terminal that included the 42d Street facade, stripping off some of the remaining features of the Terminal’s facade, and constructing a 53-story office building.
- The Commission denied a certificate of no exterior effect on September 20, 1968. Appellants then applied for a certificate of “appropriateness” as to both proposals. After four days of hearings at which over 80 witnesses testified, the Commission denied this application as to both proposals.
- The Appellate Division held that the restrictions on the development of the Terminal site were necessary to promote the legitimate public purpose of protecting landmarks and therefore that appellants could sustain their constitutional claims only by proof that the regulation deprived them of all reasonable beneficial use of the property.
- …to the extent appellants have been denied the right to build above the Terminal, it is not literally accurate to say that they have been denied all use of even those pre-existing air rights. Their ability to use these rights has not been abrogated; they are made transferable to at least eight parcels in the vicinity of the Terminal, one or two of which have been found suitable for the construction of new office buildings. Although appellants and others have argued that New York City’s transferable development-rights program is far from ideal, 35 the New York courts here supportably found that, at least in the case of the Terminal, the rights afforded are valuable. While these rights may well not have constituted “just compensation” if a “taking” had occurred, the rights nevertheless undoubtedly mitigate whatever financial burdens the law has imposed on appellants and, for that reason, are to be taken into account in considering the impact of regulation.
Sources: Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (U.S. 1978); New York Times; ArtDaily.
|Image of Baron Herzog’s study with El Greco paintings.|
On January 23, 2013, Judges David B. Sentelle, David S. Tatel and Stephen Fain Williams of the U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments on appeal pertaining to an important art restitution claim dating back to World War II. Originally, the case was brought by David de Csepel and other heirs of the famous Hungarian art collector Baron Mor Lipot Herzog, whose collection included paintings by van Dyck, Velazquez, El Greco and the Impressionists, was stolen by the Nazis during World War II. Some of the Herzog paintings are now housed in the Hungarian museums and the heirs are seeking possession of almost 50 such paintings with an alleged value of $100 million.
In the 2011 decision, the District Court Judge Ellen Segal Huvelle granted in part defendants’ motion to dismiss heirs’ claims and denied recovery of 11 of the contested paintings. Then as now, attorneys for the Republic of Hungary argued that the claims were barred by the applicable statute of limitations, the act of state doctrine, the political question doctrine, and the doctrine of international comity.
The transcript of the oral arguments is not available yet. However, on appeal, attorneys for the Hungarian government allegedly argued that U.S. Courts lacked jurisdiction to hear the original claim. Attorneys for the appellees countered that U.S. court had jurisdiction to hear this claim not only because it concerned U.S. citizens but also because the Hungarian courts acted “unjustly” by denying legitimate return claims. From the original complaint, Hungary “has a long history of avoiding accepting responsibility for its acts of genocide during World War II and has consistently avoided any meaningful attempt to restitute property—and especially art—belonging to Hungarian Jews.”
One of the intriguing but flawed arguments made by the lawyers for the government of Hungary last week was that the claim ought to be heard by the International Court of Justice (ICJ). However, as the Statute for the ICJ regarding competences of the Court reads, ” Only states may be parties in cases before the Court.” Chapter II, Article 34.
Chief Judge Sentelle has been quoted as asking repeatedly “What makes this an appropriate case for the courts of the United States?… Everything that happened, happened in Hungary, right?…We’re not a world court.” With the US efforts to offer alternative dispute resolution forum for Nazi-era looted art claims exhausted, American courts remain a popular forum to hear these cases as claimants seek just and fair solution more than seven decades after the theft.
Attorneys representing Appellants: Thaddeus J. Stauber and Emily Crandall Harlan, Nixon Peabody LLP.
Attorneys representing Appellees: Michael S. Shuster, Holwell Shuster & Goldberg LLP; Agnes Peresztegi; Alyssa T. Saunders.
Museums loath to admit that some objects that they hold have dubious provenance or questionable title. From time to time, it is inevitable that one or two pieces may need verification of ownership. In the case of the J. Paul Getty Museum this little house cleaning, verification process will affect 45,000 objects.
Co-author of “Chasing Aphrodite,” Jason Felch, wrote an article about Getty’s plans; it appeared in the January 19, 2013 issue of LA Times. He writes: “In the wake of a scandal over its acquisition of looted antiquities, the J. Paul Getty Museum is trying to verify the ownership histories of 45,000 antiquities and publish the results in the museum’s online collections database. The study, part of the museum’s efforts to be more transparent about the origins of ancient art in its collection, began last summer, said Getty spokesman Ron Hartwig.”
Allegedly, Getty abandoned acquisition of ancient art, but the existing holdings will consume “unparalleled resources” before and if historians succeed in uncovering their provenance history.
Read the full story about the collection with so many objects acquired with problematic ownership here.
The Symposium was hosted by the Dutch Restitution Committee, known as The Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War. Many European countries, not only the Netherlands, rely on advice issued by national commissions tasked with processing claims and recommending to the cultural ministries whether particular contested property should be returned to the claimants or retained by the museums as good title owners. In his role as the Special Envoy, Davidson is “responsible for developing and implementing U.S. policy pertaining to the return of Holocaust-era assets to their rightful owners, compensation for wrongs committed during the Holocaust, and Holocaust remembrance.”
What did prompt the United States to consider having an ADR forum for resolving World War II art claims in the first place? In 2009, galvanized by the Prague conference and in response to the growing number of Nazi era art-related claims brought in the United States (Museum of Fine Arts v. Serger-Thomschits, 2009 U.S. Dist. LEXIS 58826 (D. Mass. Filed Jan. 22 2008); Detroit Inst. Of Arts v. Ullin, 2007 U.S. Dist. LEXIS 28364 (E.D. Mich. March 31, 2007); Toledo Museum of Art v. Ullin, 477 F. Supp. 2d 208 (N.D. Ohio 2006)), domestic attorneys, politicians and academics began in earnest discussing the dispute resolution models adopted in Europe in hopes of finding an alternative forum to resolve domestic Holocaust-era related disputes.
In the fall of 2009, U.S. Department of State hosted a series of town hall meetings in Washington, DC to discuss the viability of creating an advisory commission in the United States. In November of 2009, Ambassador J. Christian Kennedy, then the United States Special Envoy for Holocaust Issues, circulated the first draft of a proposal for forming such a panel. He solicited and received comments from the trial attorneys, academics and museum counsel. The comments were mixed, for example, during the second annual Art Litigation and Dispute Resolution Institute, held in New York on November 20, 2009, a group of panelists debated the merits of the proposal. The panelists included Ambassador Kennedy, Charles A. Goldstein, of counsel for Herrick Feinstein and Director of the Commission for Art Recovery, Prof. Jennifer Kreder, NKU Salmon B. Chase College of Law, and Prof. Edward Gaffney, Valparaiso Law School. Goldstein argued that the European models, such as the U.K. Spoliation Advisory Panel and the Dutch Commission are not adoptable to the American legal landscape, because most European museums are almost exclusively government-owned, their the restitution or compensation decisions require government action, where is in the United States, most museums are private non-profit organizations and a federal or state decision to deaccessioning something would be unconstitutional as seizure of property. Kreder and Gaffney were more optimistic about benefits of a U.S. Advisory Panel.
There was little talk about the Panel/Commission since 2009. Three years later, Davidson was asked to comment on the U.S. progress in creating an advisory entity “to deal with ownership disputes over Nazi-confiscated art in the United States.” Polite and circumspect (“Like many things that involve the large and disparate and in many ways unique country I come from, this is not so simple a subject. I doubt I can do this topic justice in the brief time allotted to me today, either”), Davidson tried to paint a picture of the “current thinking within the United States Government in regard to this controversial topic.”
He admitted that in 2009 there was a basic agreement that a U.S. Commission would provide an ADR forum to allow claims for lesser value objects be brought against the current possessors without claimants incurring high litigation costs. “We have not yet, however, come up with a model of a commission – what qualifications commissioners should have, how they would be appointed, where in the federal government structure the commission would fit, what its exact responsibilities would be, how it would be funded.”
Davidson came short of admitting that the idea of forming a U.S. Commission was rejected permanently. He listed many impediments both financial and institutional that all but make a U.S. Commission impossible to create and operate. He identified the following impediments:
- the unique nature of the American system of government, aka the “Federal Government,” without a Ministry of Culture. “Given our history, traditions, and inclinations, it also strikes me as highly unlikely that we will create such a cabinet department any time soon.”
- privately owned museums; “As the website of the American Alliance of Museums laments, “Only a small (and shrinking) percentage of America’s 17,500+ museums receive federal funding of any kind.” Whereby European museums are government owned and sponsored, they are more likely to follow orders from their proper governments. There is less direct control over the American museums.
- location of the displaced art, “the amount of art displaced between 1933 and 1945 and still in Europe is also considerably larger than the amount of displaced art now in the United States.
- inability to locate the commission in the United States Department of State (despite the fact that there is a Cultural Property Advisory Committee under the Department of State already).
In his presentation, Davidson was frequently and at length quoting Ambassadors Kenned and Stuart E. Eizenstat. For example:
1. In regard to the damage to cultural property in the most recent conflicts, e.g. in Syria, Mali and other countries around the world, WAC expresses its serious concern at the ongoing disregard by States as well as conflict parties, state and non-state, of the instruments of international humanitarian law and subsequent principles to protect cultural property.
2. WAC states that intentional destruction of the cultural property of others – constituting a basic tangible aspect of cultural heritage and identity – is increasingly becoming a central element and high priority target in armed conflicts, and the cultural cleansing of whole regions as a prime goal of warfare, which has to be considered as an aspect of ethnic cleansing and a crime in terms of international humanitarian law.
3. WAC calls on all States to ratify the various instruments of international humanitarian law to protect such cultural property, above all the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague 1954) and its two Protocols (1954 and 1999) as well as the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Paris 1970) and others; to swiftly and efficiently implement them into national legislation and in the sense as originally intended by the conventions, and to observe and enforce them.
4. WAC calls on non-state actors involved in armed conflicts to observe the principles of these international conventions and of customary international law; to respect the cultural property of others, and to refrain from negligently or intentionally destroying or damaging cultural property during conflict.
5. WAC voices its concern about the increasing use by States of private military/security companies in armed conflicts and calls on such States as well as on above said companies to ensure that the principles of international law in general, and such international law concerning cultural property protection in particular, are observed by such companies.
6. WAC reminds individuals as well as conflict parties – state and non-state actors including private military/security companies – that destruction of cultural property has served as a basis for criminal tribunal prosecutions following both World War II and the Yugoslav Wars and that destruction of cultural property in armed conflict will continue to serve as a basis for criminal prosecution.
7. WAC calls on the United Nations to include the principles of cultural property protection in the authorization of any forces deployed under UN mandate; to ensure that cultural property protection is integrated into all Rules of Engagement of forces deployed under UN mandate; to require pre-deployment training in cultural property protection of such forces in general, and of their officers in particular, deployed under UN mandate, and to create the position of expert/liaison officers for cultural property protection in such forces deployed under UN mandate. WAC calls on States that participate in missions under UN mandate to do their utmost to preserve cultural heritage in the areas subject to this mission. WAC further calls on other multinational, international, intergovernmental, supranational etc. treaty organizations, under whose auspices forces may be deployed into conflict areas, to adopt the same principles listed here.
8. WAC calls on the United Nations to explicitly prohibit trade in cultural materials illegally removed from all areas of conflict and occupation (as it did during the Iraq war of 2003).
9. WAC calls on all States and actors – considering the Second Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict – to refrain from any interference with cultural heritage – that is to refrain from cultural property preservation, conservation, renovation, archaeological excavation and other forms of such work – in occupied territories, except where strictly required for salvage purposes.
10. WAC calls on all nations and actors to respect the pluralistic religious and cultural heritage of their regions and, in particular, to preserve historic structures, religious buildings and other forms of cultural property of minority groups located within their territory.
11. WAC calls on market nations – considering the First Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict and Article 11 of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property – to prohibit the import of cultural objects from areas subject to armed conflict and military occupation and – further considering the principles of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property – to prohibit the import in any way of cultural objects whose provenience is not clearly and thoroughly proven according to best practice international standards.
12. WAC calls on all States that suspended their funding of UNESCO to resume its funding, which constitutes the basic requirement for the fruitful and pacifying work of UNESCO in general and its cultural heritage work in particular.
13. WAC calls on all States Parties to the Second Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict and moreover to all States Parties to the said Convention to regularly and substantially meet their obligation to contribute to the Fund for the Protection of Cultural Property in the Event of Armed Conflict established in Article 29 of the Second Protocol.
14. WAC calls on all scholars, in particular its members, to study the instruments of international law that protect cultural property, to consider them in their scholarly work where appropriate, to promote them within their communities and towards the governmental authorities in their home countries, and to carefully and responsibly use them and to refrain from abusing them in a polemic mode.
15. WAC invites all scholars, in particular its members, to actively get involved in UNESCO affiliated NGO-work fostering cultural property protection whenever and wherever feasible and appropriate, in particular via ICOM, ICOMOS, and Blue Shield.
The Recovery of a Henri Matisse is a Victory for the Art Loss Register and a Reminder that Art Theft is Increasing
|Henri Matisse’s Le Jardin recently recovered
by the Art Loss Register.
When Henri Matisse’s Le Jardin was stolen from the Museum of Modern Art (Moderna Musset) in Stockholm on May 11, 1987 it was believed to be a total loss. The painting is now on its way home to Sweden after 25 years thanks to the Art Loss Register (ALR).
Charles Roberts, owner of Charles Fine Art, is also being lauded for his due diligence. When a Polish collector approached Roberts to inquire about selling Le Jardin, he searched the ALR database and identified the painting.
Roberts notified the ALR and its director, Christopher Marinello, stepped in personally to begin negotiations with the Polish collector. Marinello is keeping the exact details private, but told the BBC “No payments were made, no arms were broken.” He happily noted: “Let’s just say this was a Christmas present for the people of Sweden.” Kristen Ek, the spokeswoman for the Museum of Modern Art Stockholm, agreed: “It is fantastic that the painting has turned up again. It was stolen so long ago that really we had almost given up hope.”
The recovery is a significant victory for the ALR, the largest international private database of stolen, missing, and looted artwork. At an International Foundation for Art Research (IFAR) lecture in December, Marinello strongly reiterated that art thefts are on the rise and that diligence is increasingly important. Following drug trafficking, money laundering and arms trading, art theft is the most lucrative blackmarket activity internationally. Current predictions are that the sale of stolen art now totals over $7 billion every year. Unfortunately, only five to ten percent of stolen artwork is recovered.
|Christoper Marinello, director of the Art
Loss Register, proudly displays
the recovered Matisse.
Robert Wittman, former Senior Investigator and Founder of the FBI National Art Crime Team (ACT) and author of Priceless: How I Went Undercover to Rescue the World’s Stolen Treasures, stressed at IFAR’s December lecture that art thieves are not Pierce Brosnan from the “Thomas Crown Affair” or Cary Grant from “To Catch a Thief.” Most thieves know nothing about art. Our recent coverage on the recovery of two Henry Moore sculptures illustrates just this. Liam Hughes and Jason Parker both pleaded guilty of stealing two Henry Moore bronzes worth $930,000 from the grounds of the Henry Moore Foundation. At their sentencing in December, Carlo Coccarro, the lawyer representing Parker and Hughes, argued that the sculptures were stolen because of their easy access. In reference to Moore’s Working Model for a Sundial, he stated: “It was never the intention to take it for artistic value.” The Daily Mail reported that Parker and Hughes were not aware that the two pieces had any market value and sold them as scrap metal.
Public awareness of art theft only becomes a news story after a major incident. On March 18, 1990, the theft at the Isabella Stewart Gardner Museum captivated international audiences. Paintings by Vermeer, Rembrant, Degas and Manet worth over $500 million disappeared overnight. The heaviest loss was arguably The Concert, one of only 36 known Vermeer paintings. The theft continues to fascinate the public 23 years later.
|Vermeer’s The Concert stolen from
the Gardner Museum in 1990.
Art thefts have grown with the economic downturn in 2007. The Wall Street Journal reported that between 2007 and 2008 thefts increased from 14,981 to 16,117. The numbers for 2012 are, as yet, unavailable, but the continuing budget cuts at museums and the increasing sophistication of thieves only compound the trend. Many museums can no longer afford to maintain security systems, let alone update them. In addition, the method of art theft has changed. Although there are exceptions, modern thieves now rob museums by force using weapons, rather than the old school manner of sneaking into museums by the cover of darkness. According to the International Council of Museums (ICOM), thieves are now raising the stakes.
The Museum of Modern Art in Stockholm is still missing three Picasso paintings and one Braque stolen in 1993. If you have any information contact the ALR, the FBI Art Crime Team or Interpol.
Sources: The Wall Street Journal, The Isabella Stewart Gardner Museum: Theft Overview, The Daily Mail, BBC, The Art Loss Register, International Foundation for Art Research “Anatomy of an Art Sting” Lecture, Center for Art Law. Images from BBC, The Art Loss Register and the Isabella Stewart Gardner Museum.
The tides have turned for The Andy Warhol Foundation (the Foundation). On December 12, 2012, ArtInfo announced that the Foundation recovered $4.6 million plus interest from their insurer, the Philadelphia Indemnity Insurance Company (PIIC). Judge O. Peter Sherwood of the New York Supreme Court dismissed PIIC’s petition for summary judgement and ordered the company to pay up.
|Under dispute: 350BC Mausoleum of Halicarnassus at the British Museum.|
Turkey is taking aggressive action once again. They are pressuring museums to return all antiquities removed from the country immediately. As discussed in the Center for Art Law’s previous post, museums in the United States and Europe argue that Turkey is partaking in what they call “cultural blackmail.”
On December 8th, The Guardian reported that Turkey is undertaking a new campaign: filing a suit in European court claiming the British Museum is violating Turkey’s human rights by failing to return the 350BC Mausoleum of Halicarnassus. This is the first time that human rights law will be used in a repatriation case, and has potential to establish a key precedent for all cultural heritage cases in the future.
Remzi Kazmaz, a lawyer representing the Turkish town of Bodrum (the original location of the Mausoleum of Halicarnassus), said in an interview with The Guardian: “We thank the British authorities and the British Museum for accomodating and preserving our historical and cultural heritage for the last years. However, the time has come for these assets to be returned to their place of origin.”