WYWH: Immigration Law and the Arts – NICE WORK IF YOU CAN GET IN

 

By Katherine Jennings

 

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Photo credit: Center for Art Law.

On March 9, 2017, the Center for Art Law held an Art Law Mixer addressing the timely and provocative topic of immigration issues confronted by immigrant artists with the recent issuance of EO 13769, among other anti-immigrant measures. The 45th President commenced his presidency with a barrage of Executive Orders (EOs) including EO 13769*, which was signed by Trump on January 27, 2017, and restricted travel to the U.S. from seven Muslim-majority countries and by all refugees. This EO has had far-reaching and devastating effects on immigrants including immigrant artists. It has wreaked havoc and confusion at the borders. Antagonizing foreign dignitaries, it has quickly been met with outrage and resistance by artist activists, art organizations, and lawyers.

 

The Georges Bergès Gallery, a stylish, SoHo gallery with an international focus, was the apt and welcoming site of the two-hour event, a first Center for Art Law (the “Center”) program to address immigration issues. It was composed of a wine and cheese reception and presentation by the founders of Lehach Filippa, an immigration law firm intended to serve creative professionals, followed by a Q&A. The discussion was moderated by Irina Tarsis, founder of the Center. Attendees included lawyers, artists and law students. After a brief warm up period during which attendees were encouraged “to talk to someone you didn’t come with,” Georges Bergès, the founder of the eponymous contemporary art gallery, spoke briefly to welcome all and to talk about the global perspective of his gallery. Bergès said his goal is to find authentic artists who are working in their own cultural context.

On to the substantive portion of the evening, Tarsis introduced Alejandro Filippa, Esq. and Michael Lehach, Esq, founding partners of Lehach Filippa. Lehach and Filippa spoke about the O-1 visa, commonly referred to as the “artist visa”, and the process of applying for work permits as a foreign artist. The current political climate and the effects of the anti-immigrant executive orders from President Donald Trump was also a topic of discussion. Filippa speculated that if the current precedent of an excessive number of executive orders is any indication, we will likely see more pushback and restrictions to immigration applications and processes in the future.

In order to qualify for an O-1 visa, or artist visa, an applicant must demonstrate “extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue to work in the area of extraordinary ability.” Extraordinary ability in the field of arts means “distinction.” The Immigration Act of 1990 (Pub.L. 101-649, 104 Stat. 4978) was a national reform of immigration that, among other things, excluded artists and entertainers (as well as athletes and nurses) from qualifying for H-1B visas. Two new categories, O and P, were introduced for extraordinarily skilled foreigners in the arts and sciences. The 1990 legislation was created in response to the Immigration and Nationality Act of 1952 (Pub.L.), aka the McCarran-Walter Act, which was meant “to exclude certain immigrants from immigrating to America, post-World War II and in the early Cold War.

Clearly, both Lehach and Filippa enjoy their law practice and are competent, dedicated professionals. Their passion was evident as they spoke about the process of creating a solid application in order to achieve success in obtaining an artist visa. Advocating for their clients is predicated upon a solid application with supporting documentation. Involved in facilitating artist visas and residence applications, they represent foreign creative professionals who want to work in the US and creative organizations seeking foreign talent to work in their US office. Their clients are from diverse industries such as the performing arts, music, fashion, film, photography, design, fine art, journalism and more. These “extraordinary aliens” have included tattoo artists, dancers, and rappers. The client may seek Temporary Work Visas and /or Permanent Residence based on Extraordinary Ability.

Lehach and Filippa outlined the proof needed to establish a valid application for an artist visa. In addition to a detailed resume, the client should include all relevant documents regarding their awards, notable clients, publications and press, and work history. An applicant must provide at least eight references by professionals who can attest to the extraordinary abilities of the applicant. Noting that an applicant’s file can be huge, they also spoke about how they have to be from important and respected sources. Lehach noted that it would not do a client any good if he were to provide his private residence as a gallery that would show the applicant artist’s work. Rather, the gallery must be a well-known and established entity.

Another crucial component of the application is an itinerary of the events and activities in the beneficiary’s field of extraordinary ability. You must have a plan of what you will be doing, with whom and when, and it has to be concrete. This constitutes the Sponsorship aspect of the application. For example, the applicant must provide an established list of galleries who will show his or her work and a concomitant timeline. An Employer, an Agency, or an Agent is an acceptable sponsor. Finally, it is helpful for the applicant to have a portfolio as a physical manifestation of the accomplishments detailed in his or her resume.

Lehach and Filippa also spoke about the case of an application for an Artist Visa being rejected. They said it is much better to refile, than appeal, because the immigration agents can be fickle. Noting that it can often be difficult to decide what constitutes extraordinary ability, they said it is crucial to initially establish a solid case. Their law firm also deals with other immigration issues such as obtaining permanent residency, obtaining a green card, and asylum issues, and extension of artist visas.

The presentation was followed by a lively question and answer session. Both presenters showed obvious delight in their chosen field and were quick to address each question thoughtfully. One interesting tidbit revealed during the Q&A was that under the right circumstances there is even a provision for bringing an artist’s muse into the country on a visa. As for the immigration ban that instigated the theme of the evening, “a judge sitting on an Island in the Pacific” ruled it unenforceable.

*Note that on February 3, 2017, EO 13769 was given a temporary restraining order in a decision from the Ninth Circuit of the Court of Appeals. EO 13769 was revoked as of 3/16/17.

About the Author: Katherine Jennings is a lawyer and contemporary realist oil painter living in New Jersey. She has a B.A. in History from Duke University and a J.D. from Fordham University School of Law where she was an Associate Editor of the Fordham International Law Journal. Having practiced intellectual property and immigration law, she is also certified as an Art Law Mediator with VLA. She was recently accepted into the Copyist Program at the Metropolitan Museum of Art and her work may be viewed at www.katherinejenningsfineart.com.

 

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.

Case Review: Rybolovlev v. Bouvier

By Chris Michaels*

Amadeo Modigliani, Nu Couche au Coussin Bleu (1916)

Amedeo Modigliani, Nu Couche au Coussin Bleu (1916)

A criminal complaint filed in the principality of Monaco on January 12, 2015 sent shockwaves through the international art market. In it, Russian oligarch Dmitry Rybolovlev, businessman and owner of the AS Monaco football club, reportedly alleged fraud and money laundering against Yves Bouvier, a Swiss art dealer and president of Natural Le Coultre S.A., a storage business operating freeports in Geneva, Luxembourg, and Singapore. Bouvier was detained in Monaco in February and his assets were frozen by a Singapore court in March.

The dispute erupted following a pre-New-Years-eve conversation between Rybolovlev and Sandy Heller, Steven Cohen’s art advisor. During their conversation, Heller informed Rybolovlev that Cohen, a billionaire hedge fund manager, sold a Modigliani from his collection to an anonymous buyer for $93.5 million. Unbeknownst to Heller, Rybolovlev had recently purchased the Modigliani from Bouvier for $118 million, which represented a markup of more than $24 million that went to Bouvier.

This case not only highlights the tax implications surrounding freeports, which allow for luxury goods to be stored and sold tax-free, but also emphasizes the need for greater transparency in private sales. Commonly, private sales of art, especially those of high value, are shrouded in secrecy. Confidential components of private sales typically include identity of the parties, purchase price, as well as commissions collected by dealers. A problem for collectors arises when collectors and dealers enter into an agreement whereby a net return price is set, which guarantees the amount that the selling collector will receive for the art. The issue here is that the seller may never know the actual final selling price for the art and/or the amount of the commission received by the dealer. In Rybolovlev’s case, this situation was reversed, as he, the buyer, found out the “real” final selling price post-sale. As an aside, it would be interesting to know if Steven Cohen was aware of either the price Rybolovlev paid for the Modigliani or the commission paid to Bouvier. I would speculate that he did not.

To solve the problem of unreasonably inflated commissions, transparency is paramount in private art sales. When collectors and dealers enter into consignment agreements, it is imperative that the agreement include terms that specifically outline the total commission to be collected by the dealer OR that the selling collector agrees to the net return price and also agrees that the dealer may collect any commission that is above the net return price. Handling the issue of commissions in private sales will alleviate any concerns of dealer impropriety that may arise after a sale.

According to the April issue of The Art Newspaper, a temporary order against Bouvier disallows sales of personal assets worth up to $550m and asks Bouvier to surrender Mark Rothko’s No 6 (1951) as a collateral to his would-be-debt to Rybolovlev if the court finds that the transaction was unconscionable.

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About: Chris Michaels is a litigation attorney in the Philadelphia office of the Atlanta, GA-based law firm, Cruser & Mitchell, LLP, where he actively pursues his interest in the field of art law. He may be reached at (267) 888-2842, cmichaels@cmlawfirm.com, or on Twitter @CMichaelsartlaw.

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

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

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

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

by Merve Stolzman

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

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

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

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

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

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

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

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

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

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

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

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

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

Spotlight: Arts Law Centre of Australia

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Funding Public Art with Brick and Mortar: The Success and Failure of “Percent for Art” Laws

Jorge Luis Rodriguez, Growth (1985)

Jorge Luis Rodriguez, Growth (1985)

By Emma Kleiner*

Although the thought of East Harlem in 1985 may not immediately spark considerations of aesthetics and community, that was the location and date of the first Percent for Art Project in New York City. In that year, Jorge Luis Rodriguez’s Growth was unveiled there in the East Harlem Artpark, a sculpture dedicated to the intersection of nature and man. Funding for public art works historically came from various sources, including private donors and nonprofit organizations. However, since 1982, New York City’s Percent for Art (PFA) law mandates that one percent of the budget for certain building projects be set aside for public art. Former New York City Mayor Ed Koch, who initiated the law, stated: “For generations to come, it’s a wonderful thing, and I’m very proud of that.” This type of public art law has been mirrored across the nation by many cities and states, and this article analyzes the structure of what makes a successful Percent for Art law. 

New York City’s Percent for Art Program remains one of the strongest in the nation as it strives to bring public art to all corners of the city. Other states, counties, and municipalities around the nation with similar laws include: Chapel Hill, North Carolina; New Haven, Connecticut; Pittsburgh, Pennsylvania; Philadelphia, Pennsylvania; Oro Valley, Arizona. The laws in these cities follow the PFA theme but vary in terms how each program and disbursement is structured and carried out. For example, in some cases, as with the law in New York City, only municipal or City-funded construction projects are mandated to abide by the PFA law, but in other cases, as with the law in Oro Valley, Arizona, public art is compulsory for “all new non-residential and public development projects.” While some public art laws have flourished, like the one in New York City, others have floundered and never gained a strong foothold in the community, like the one in Pittsburgh.

One main feature of a PFA law that affects its ability to succeed is whether the law creates an automatic set-aside for public art or whether the funding must be actively requested. The divide between these types of PFA laws has become particularly apparent in Pittsburgh. The Pittsburgh ordinance, passed in 1977, ceased being enforced about twenty-five years ago, when the city “began including a public-art line item, of about $50,000, in its annual budgets.” Pittsburgh’s PFA law, which requires publicly funded construction projects to set aside 1% of the cost for public art, has gone unenforced for years, and the public started to petition for the law’s enfoncement. One of the main critiques of Pittsburgh’s law is that it became essentially unenforceable because, as reported by the Pittsburgh City Paper in August 2014, the law “requires the department head overseeing a given construction project to actively request artwork for that project — seldom a priority, especially in cash-strapped times.” A possible solution is to make the arts funding automatic, instead of asking for an artwork-funding request that is unlikely to appear in economically difficult times. As a result of Pittsburgh’s PFA law, the community at large has suffered from a deficit of public art and “lost out on thousands, perhaps millions of dollars [worth of art].” The systemic failure of PFA law in Pittsburgh has deprived a city of many public arts projects, and created a situation in which a complete overhaul of the PFA ordinance is necessary in order to enforce any percent for art projects.

In contrast to the situation in Pittsburgh, Oro Valley in Arizona has developed a robust public art law that does not allow developers to shirk the public art requirement. In Oro Valley, the public art law, which has been on the books since 1997, states, “[p]ublic art is a required element for all new non-residential and public development projects.” To aid developers in finding artists and commissioning artwork, Oro Valley’s website contains a public art inventory, which includes the budget for various public art project and the artists’ contact information. The centralization of data has helped Oro Valley’s PFA law to succeed. While making the public art set-aside mandatory in Pittsburgh’s PFA law would be a big step towards enforceability of the law, it would also be necessary to create a database of information about public art in the city. Many developers may have never interacted with public art in the past and may find it daunting to discover and hire an artist. By creating a centralized database with that information, however, developers may be more encouraged in approaching the public art component of their development.

James Turrell, The Color Inside, 84th Skyspace (2008)

James Turrell, The Color Inside, 84th skyspace (2008)

In considering the success and failure of PFA laws, it is critical to be mindful of the many communities that may be impacted by these laws. For example, many Texas universities, including University of Houston, Texas Tech University Systems, University of North Texas, and University of Texas at Austin, have instituted percent for art policies to invigorate the public arts community and cultural landscape on campus. As state legislatures across the country have slashed funding for public universities, oftentimes aimed at cutting the arts and humanities, PFA laws remain a viable way for a public university to inject its campus with an aesthetic component. The strong PFA laws in Texas are stunning examples of how PFA laws can be important for securing public art. The state’s public universities have become some of the most vocal and visual supporters of the law. Several prominent artists have been funded through this program to contribute to the aesthetic landscape of public universities in Texas. James Turrell, who skyrocketed into the public eye over the last few years due to three major retrospective exhibits, recently installed a skyspace at University of Texas at Austin. The universities’ adoption of PFA laws suggest that a strong statewide PFA law that applied to public institutions, including universities, which are chronically underfunded in the arts, could generate the opportunity to for public institutions to grow art collections.

As states, counties, and municipalities struggle to establish strong PFA laws, lawmakers must consider the ultimate enforceability of such laws. The shortcomings of Pittsburgh’s law are good examples of how a PFA law ought to be structured in an enforceable way or risk reaching a tipping point where it is habitually ignored by developers. In contrast, the example provided by Texas demonstrates how the success of a PFA law can bring together different segments of the community to appreciate artwork to which they might not otherwise have access. 

Select Sources:

About the author: Emma Kleiner is a second-year student at Stanford Law School.

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

Cuba on My Mind: Legal Implications of Accessing Cuban Art

by Lesley Sotolongo, Esq.Screen Shot 2015-01-09 at 9.10.55 AM

Following the rise to power of Fidel Castro in 1959, a declining economy made preserving Cuba’s cultural property and accessing contemporary artworks increasingly difficult. Because of the Communist regime, the U.S. embargo was ratified in 1962 causing Cuba’s cultural heritage to suffer and art works to be illegally exported into the U.S.  Furthermore, the embargo prohibited U.S. museums from exchanging information relating to its conservation efforts with the Cuban government. Despite the high demand for Cuban fine art worldwide, contemporary Cuban painters were not allowed to sell their paintings to the U.S. or to work with auction houses such as Christie’s or Sotheby’s. In fact, Cuban artists have basically no freedom of speech rights evidenced by recent arrests of more than a dozen artists and activists prior to their participation in an open-mic performance planned in Havana’s Plaza de la Revolucion. (Read about Cuban activists arrests in December 2014). Thus, access to Cuban artworks in the U.S. has been significantly curtailed due to the bureaucratic obstacles for both Cubans and Americans. Recently, President Obama has taken executive action to restore diplomatic ties with Cuba and has called on Congress to formally overturn its sanctions, effectively ending the 55 year embargo. Until Congress takes further action the embargo is still in effect.

Wilfredo Lam Exhibit (MA)Still, there have been some Cuban art exhibitions in the U.S. Last year, the McMullen Museum of Art at Boston College organized an exhibit titled “Wilfredo Lam: Imagining New Worlds” with works by this important Cuban artist contextualized as an international figure in 20th-century art history. Furthermore, Abel Barroso, Jorge López Pardo, J. Roberto Diago, Meira Marrero and José Toirac are the headliners of “Permutations: Contemporary Cuban Art at Pan American Art Projects” in Miami, FL. The show reflects on the various strategies that the artists use to comment on social and political realities in Cuba as well as in a broader global context.

In fact, Cuban pieces are increasingly sought out by collectors, fueling illegal exports of their works from Cuba. According to David D’Arcy writing for The Art Newspaper, a missing Havana painting discovered in a Miami art gallery last year increased the toll of works stolen from Cuba’s National Museum of Fine Art in Havana to 95 works. The theft of Eduardo Abela’s painting, Carnaval Infantil, was originally housed at the Museum of Fine Arts in Havana. Cuban officials from the National Council of Cultural Heritage stated that the works were cut directly from their frames while in storage, making it difficult to detect the theft. The statement made by the Cuban government indicated a willingness to work with proper authorities inside or outside of Cuba in order to alert museums, galleries, auction houses and others of similar thefts. This case is significant because art theft is relatively rare in Cuba given that museums are tightly guarded and artwork is usually inspected by the Cuban military officers before it leaves the country. The Cuban government has become increasingly aware of this problem and is anxious to find a solution to reclaim its valuable works. However, Cuba’s suffering economy and current laws in the U.S. make this a difficult task.

One legal exception makes it feasible for artworks to be exported from Cuba. Marco A. Gonzalez, Jr., Esq., a partner at Nicoll, Davis, & Spinella LLP, sat down with Center for Art Law to discuss some relevant U.S. law and the ongoing effects of the embargo. Gonzalez explained a little-known exception to the U.S. embargo for cultural assets. Under the Cuban Assets Control Regulations § 515.206(a) information and informational materials are exempt types of transactions stating in part,

“the importation from any country and the exportation to any country of information or informational materials as defined in § 515.332, whether commercial or otherwise, regardless of format or medium of transmission, are exempt from the prohibitions and regulations of this part except for payments owed to Cuba for telecommunications services between Cuba and the United States.”  31 C.F.R. § 515.206(a) (West 2013).

Under § 515.332, the term information and informational materials includes, (1) Publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD ROMs, artworks, news wire feeds, and other information and informational articles. Specifically, artworks must be classified under Chapter subheading 9701, 9702, or 9703 of the Harmonized Tariff Schedule of the United States. Unlike cigars or rum, which are considered commercial products, the U.S. government classifies Cuban artworks as cultural assets, and thus it is legal for Americans to bring artworks that are included under this law into the U.S. However, this is not always a great idea because the crime of counterfeiting of works and falsifying authentication has become a problem in Cuba. Thus, travelers should be aware of the possibility that they might not be getting what they bargained for.

Since 2003, traveling to Cuba from the U.S. has been highly restricted and now President Obama wishes to ease those restrictions. Previously, only religious, educational, and cultural groups could legally travel to Cuba, and with specific permission from the U.S. State Department. Recently, there were several attempts in the 112th Congress aimed at rolling back the Obama Administration’s actions easing restrictions on travel and remittances, but none of these were approved. Several legislative initiatives were also introduced that would have further eased or lifted such restrictions altogether, but no action was taken on these measures.

Nevertheless, Americans still cannot simply book a flight and head to Cuba. In order to travel to Cuba the traveler must book the trip with a Cuban travel agency that has an official license from the U.S. State Department. While the tour may include stops at museums or historic sites, purely recreational activities such as visiting the gorgeous beaches are prohibited from tour itineraries. Thus, travel and bringing home artwork is possible with the exercise of caution.

Whether exported illegally or not, the fact is that Cuban art remains coveted despite the trade embargo that might very well be overturned in the near future. Thus, the art world awaits the feasibility of obtaining works created by Cuban artists not only to increase accessibility to Cuban cultural production in the U.S., but also to allow for repatriation of many stolen and misplaced works.

Sources:

Cuban Assets Control Regulations, § 515.

D’Arcy, David, “Stolen paintings from Havana turn up in Miami,” The ArtNewspaper (Mar. 2, 2014 ) available at http://goo.gl/R4wM73

About the Author: Lesley Sotolongo is an intellectual property attorney. She may be reached at Lesley.Sotolongo@law.cardozo.yu.edu.

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

Case Review: Schoeps v. Free State of Bavaria (June. 2014)

By Chris Michaels*

P. Picasso, "Madam Soler" (1903)

P. Picasso, “Madame Soler” (1903)

 

On 27 June 2014, Judge Jed. S. Rakoff of the Southern District of New York issued an order finding that the court did not have subject matter jurisdiction to decide on the merits a Nazi-era looted art case. This case was brought by the heirs of the late Jewish banker, Paul von Mendelssohn-Bartholdy, against the Free State of Bavaria for a Picasso painting titled, Madame Soler.

The plaintiffs in this case, Julius H. Schoeps, Britt-Marie Enhoerning, and Florence von Kesselstatt, argued that Mendelssohn-Bartholdy was forced to part with his artwork in 1934 after two years of Nazi persecution. He transferred possession of Madame Soler to art dealer Justin K. Thannhauser, who remained in possession of the painting for the next 30 years. In 1964, Thannhauser, who at that time had relocated to New York City, met with Halldor Soehner, a Senior Curator of the State Paintings Collections Munich, an entity operating under the Bavarian State Ministry for Education and Cultural Affairs (the “Ministry”). Soehner’s New York trip was pre-approved by the Ministry.

Upon Soehner’s return to Germany in June of 1964, Soehner and Thannhauser began planning their next meeting, which was to take place in Europe. Soehner then sought approval from the Ministry for the meeting with Thannhauser, which occurred in France in August of 1964. The Bavarian Ministry approved Soehner’s trip to France to conduct negotiations and in an August 1964 letter to Soehner, Thannhauser confirmed the purchase of Madame Soler by the Bavarian State Paintings Collections. The purchase was publicized in the museum publications as well as local news outlets. The purchase price of the painting was 1,775,000 Swiss Francs. Additionally, the Letter Agreement between the two was signed in Europe, which the court surmised was an attempt by Thannhauser to avoid U.S. taxes, and the painting was located in Switzerland at the time of the sale. Further, a Lichtenstein entity “EBA, Vaduz,” which was controlled by Thannhauser, transferred the painting to the Bavarian State Paintings Collections and received payment on behalf of Thannhauser.

The issue decided by the instant order was whether jurisdiction over the Free State of Bavaria was appropriate under the Foreign Sovereign Immunities Act (“FSIA”).  Under the Act, jurisdiction over a foreign state is allowed in three circumstances:

  1. where a plaintiff’s claim is “based upon” “a commercial activity carried on in the United States by the foreign state”;
  2. where a plaintiff’s claim is “based upon” “an act performed in the United States in connection with a commercial activity of the foreign state elsewhere”; or
  3. where “an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere causes a direct effect in the United States.”

Here, the Court ruled that the FSIA could be circumvented because the exceptions to allow jurisdiction over a foreign sovereign and its entity did not apply under any of the above circumstances where no agreement between Soehner and Thannhauser for sale of the painting was reached in New York and where Soehner did not take any concrete action toward the purchase of the painting until his return to Germany. With respect to the first prong of jurisdiction under the FSIA, the Court found that the merits of this suit, should they be reached, were not “based upon” Bavaria’s acquisition of the painting, “let alone activity in the United States.” The Court points out that the essence of Plaintiff’s complaint is that the title to the painting never rightfully passed to Thannhauser because the painting was consigned by Mendelssohn-Bartholdy as a forced transaction.

Thus, the Court ruled, the merits of the case would necessarily focus on the circumstances of the forced sale. The Court went on to note that Bavaria would not even be the defendant in the case “but for the fact that Bavaria purchased the painting from Thannhauser in 1964.” The Court held, among other things, that this “but for” reasoning was insufficient to satisfy the FSIA’s “based upon” requirement.

With respect to the second prong, the Court held that it is “generally understood to apply to non-commercial acts in the United States that related to commercial acts abroad.” This prong was deemed inapplicable by the Court, however, because the Plaintiffs’ failed to argue that any non-commercial acts by Bavaria formed the basis of the suit.

Finally, under the third prong, the court noted that two requirements must be satisfied to confer jurisdiction: 1) “there must be an act outside the United States in connection with a commercial activity of [Bavaria] that cause[d] a direct effect in the United States and (2) [plaintiffs’] suit must be based upon that act.” The Court held that the elements of this prong were not satisfied where plaintiffs’ only arguments were that Bavaria’s purchase of the painting would have a negative impact on the New York art market and that Bavaria’s activities furthered a conspiracy to evade United States taxes. The Court, therefore, dismissed the lawsuit for lack of jurisdiction.

Plaintiffs were represented by Thomas J. Hamilton and John J. Byrne, Jr. of Byrne, Goldenberg, and Hamilton, PLLC of Washington D.C., and Defendant was represented by Andreas A. Frischknecht, James M. Hosking, and Andrew L. Poplinger of Chaffetz Lindsey, LLP of New York.

Sources:

  • Opinion and Order, Schoeps v. Free State of Bavaria, Case No. 13 Civ. 2048 (JSR) (S.D.N.Y June 27, 2014).
  • The Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(2).

About the Author: Chris Michaels is a litigation attorney in the Philadelphia office of the Atlanta, GA-based law firm, Cruser & Mitchell, LLP, where he actively pursues his interest in the field of art law. He may be reached at (518) 421-7238, chriswmichaels@gmail.com, or on Twitter @CMichaels88.

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

Rap as Evidence in Criminal Cases or an Assault on Artistic Expression?

By Elena Kravtsoff, Esq.*

In 2005, a man named Lamont Peterson, an alleged drug dealer, was victim to a shooting that left him paralyzed. The weapon, a 9-millimeter gun, was never recovered, but several cell phones—including one that was later linked to one Vonte Skinner, an aspiring rapper—were found on the scene of the shooting. Reportedly, both Peterson and Skinner were part of a team of drug dealers whose members were equipped with 9-millimeter guns.  Nine days after the shooting, Skinner was arrested and his rap lyrics were found in the backseat of the car he was driving. While Skinner did not deny being at the scene of Peterson’s shooting, there may have been other individuals who reportedly had motive to harm Peterson within the vicinity of the crime scene. The shooter’s identity remains unconfirmed.

During at least one of two independent jury trials (the first jury was unable to reach a verdict), the prosecution extensively read Skinner’s explicit rap lyrics to the jurors in order to establish motive and intent, even though the lyrics were written from months to years prior to the shooting. The second jury found Skinner guilty of attempted murder, aggravated assault resulting in serious bodily injury, and aggravated assault with a deadly weapon. The judge ruled to incarcerate Skinner for thirty-five years.

Skinner appealed the indictment of the Superior Court of New Jersey, Burlington County, and in 2012, the Superior Court of New Jersey, Appellate Division found the prosecution’s use of his rap lyrics as evidence to be inappropriate. To guide its analysis, the appellate Court relied on a four-pronged test that establishes the conditions under which “bad-act evidence” can be admitted: (1) The evidence of the other crime must be admissible as relevant to a material issue; (2) [t]he evidence must be similar in kind and reasonably close in time to the offense charged; (3) [t]he evidence of the other crime must be clear and convincing; and (4) [t]he probative value of the evidence must not be outweighed by its apparent prejudice. In Skinner’s case, the “other crime[s]” were the violent acts described in his rap lyrics, that is, acts that he may or may not have committed.

On appeal, the Court focused on factors one, three, and four. In regards to the first, the Court determined that the admission of the lyrics to prove motive and intent was inappropriate because both of these were already established: Skinner, who was reportedly the “muscle” of the team, had motive to go after Peterson, who had been involved in a dispute with the team leader, Rothwell, while intent to kill was evidenced by the brutality of the shooting: Peterson was shot seven times in his head, neck and abdomen, so the shooter was clearly looking to end his life. In its analysis of the third factor, the Court concluded that “[w]hile [Skinner’s] lyrics describe similar crimes against unknown persons and some [of the lines in his song] mention Tech-9s, a gun of the same [caliber as the one] used to shoot Peterson, other than Peterson’s unsubstantiated assertion the defendant acted as Rothwell’s enforcer, there was no evidence that defendant did any of the acts he wrote about in his lyrics or had any knowledge of the subject matter of his work beyond what might be seen in a violent movie.” As to the fourth prong, the Court stated that “[e]ven if we were to conclude that the lyrics had some permissible probative value, given the volume of graphic, highly inflammatory and extremely prejudicial lyrics, we would conclude that the probative value was overwhelmingly outweighed by the risk of prejudice.”

While the lyrics that were read to the jury where quite lengthy and can be found in full in the appendix of the Appellate Division’s decision, this excerpt (which omits racial epithets) is representative of Skinner’s rap:

“But these [people] keep testin’ my weapons. I hold my head just to keep from stressin’; Got Beef, I can spit from a distance for instance; a [person] wouldn’t listen so I hit him with the Smithen; hauled off 15 rounds, seven missed him; Two to the mask and six to the ribs, lifted and flipped him. The safe street squad found him, half his shell missin. I play my position, fall back and watch [people] keep my enemies real. Close to my twin bitches, hollow heads in the back of they throats mercury drippin’. They spit sickness, poison a [person] right when they clip him. They don’t call me Threat for nothin’, so pay attention.”

The Court’s analysis, albeit turning out in Skinner’s favor, does not actually address the prosecution and trial Court’s violation of Skinner’s freedom of expression. The Court’s decision implies that if all of the factors are in place, rap lyrics (and, by extension, poetry, painting, or other creative works) could be presented to a jury as evidence of the defendant’s motive and intent—or, more generally, as “bad act evidence”—obfuscating the fact that expressive conduct deserves First Amendment protection.

The appellate Court does briefly touch upon this matter by questioning whether a Court may correctly deduce the rapper’s—artist’s—intended meaning:

“Without a competent explanation by a person with some expertise in the area, the judge and jury are left to speculate about this lyric’s meaning. [Citation omitted]. Moreover, we do not know whether an expert in the area would explain that rap lyrics are a vehicle through which writers commonly convey horrific things in a graphic way to point out the tragedy of street violence and thereby diminish it. If that is the case, then such lyrics have no relevance but extreme prejudice.”

The brevity and superficiality of the Court’s discussion notably contrasts with how the ‘meaning’ of numerous paintings and sculptures is sought and intensely debated by museum-goers and academics. In fact, art’s appeal largely lies in the multitudes of interpretations that it coaxes out. Is the issue here that the Court, prosecution, and the jury do not view rap music as “art,” on par with Andy Warhol’s “Car Crash scenes” or Marcel Duchamp’s urinal? United States case law makes clear that art is expression that deserves First Amendment protection. Can a court in a criminal case rightfully decide what is and what isn’t artistic expression by failing to concede that, at the very least, a First Amendment analysis is warranted when rap lyrics are introduced as evidence?

In its Skinner v. State amicus brief to the Supreme Court of New Jersey, the New Jersey chapter of the American Civil Liberties Union (ACLU), a non-profit organization whose mission is to protect individual rights and liberties, picks up where the appellate court abruptly left off. It argues that the meaning of the lyrics are speculative, and that the lyrics—no matter how offensive they might be—may very well be a way to express the tragedy of street violence. The ACLU references a number of authors—including Tricia Rose and Andrea Dennis— who wrote about rap music and made the point that while rap music is often written in the first person, it is often an exaggerated, fantastic and unrealistic way for the author to express a cultural, political and social commentary on urban black culture. Which would mean, by extension, that rap music is not an admission of guilt but a chronicle, or a personal interpretation, of a rapper’s reality.

The ACLU adamantly opposes admitting “fictional, artistic expressions” into evidence because rap music is deserving of First Amendment protection, no matter how distasteful it might be to some. The ACLU further argues that given the political and social commentary that is often found in rap music in general and in Skinner’s lyrics in particular, his expressive conduct is a “matter of public concern,” which makes it even more deserving of First Amendment protection, again despite (and perhaps because) of the “offensive, outrageous, and inappropriate” language.

The ACLU argue that ascribing motive and intent to Skinner based on his lyrics is like ascribing Raskolnikov’s motive and intent to his creator Fyodor Dostoyevsky, or regarding the “confession” in “Bohemian Rhapsody as that of Freddy Mercury (“Mama, I just killed a man…”), or indicting Johnny Cash for having “shot a man in Reno just to watch him die” according to “Folsom Prison Blues.” Thus the ACLU brings forth different styles of music to illustrate the absurdity of interpreting rap literally without consideration of its expressive, artistic nature. By extension, what if the police officers found a stack of paintings in the defendant’s car, and these painting were depicting graphically violent scenes? Would it have been appropriate for the prosecution to display the paintings in front of the jury during the trial in order to use them as evidence of the defendant’s motive and intent?

What if an artist was producing paintings that depicted women, apparently prostrated after an attack, while a serial killer was on the loose in the artist’s city? Walter Sickert was apparently not suspected—much less accused or brought to trial—of being “Jack the Ripper” despite his “Camden Town Murder” paintings while he was still alive. Despite wide criticisms, however, contemporary crime novelist Patricia Cornwell is convinced that Sickert was in fact the infamous killer, in large part because of his artwork’s motifs (see Summer Afternoon, or What shall we do for the Rent?, The Camden Town Murder, or What shall we do about the Rent?,  and L’Affaire de Camden Town). Reportedly, she even referred to Sickert’s Jack the Ripper’s Bedroom as a “painted confession,” and expended many resources to convince the world that her theory about Sickert is correct.

Not surprisingly, many came to Sickert’s defense. London art dealer Andrew Patrick reportedly stated—after bemoaning Cronwell’s apparent destruction of a Sickert as part of her quest to prove that the artist was Jack the Ripper—that “[e]veryone knows this stuff about Sickert is nonsense. He loved these dramatic titles, and to play with the idea of menace” (emphasis added).

Jonathan Jones, an art blogger, writes:

Cornwell’s accusation burns out Sickert’s real achievements and irradiates him as an artist. Here is a bold painter who was not afraid to put sex and sleaze into his art at a time when most British artists were timid and repressed. He dares the radical urban danger that artists in Paris were so alive to. Why does that make him a likely serial killer?

Adjust for place, time and other specifics, replace “painter” with “rapper,” “sex and sleaze” with “life on the streets,” and this might as well be a defense of rap artists whose lyrics are being used as evidence against them in criminal trials.

The Appellate Division in the Skinner case, as well as other courts in similar cases (the ACLU allegedly identified eighteen other decisions that debated the admissibility of rap lyrics into evidence without considering First Amendment implications) did not view Skinner’s lyrics as artistic expression, and therefore apparently acquiesced to the notion that an individual’s art is a reliable way to determine in a legal setting the interworking of his or her mind. Ethics and effectiveness of this approach leave much to be desired. After all, wasn’t Adolf Hitler’s artwork replete with idyllic and peaceful landscapes?

Sources:

About the Author: Elena Kravtsoff is an attorney based in Washington, DC. She may be reached at elena.kravtsoff@gmail.com.

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

Artists Appeal California Resale Royalty Act Invalidation

Artistic and legal minds want to know “Does the California Resale Right Act  (the “Act”) violate the Commerce Clause of the United States Constitution, U.S. Const, Art. I, sec. 8, cl.3?” This is but one of the questions on appeal before the 9th Circuit Court of Appeals following the June 6, 2012 district court decision in Estate of Robert Graham v. Sotheby’s.

More specifically, the questions posed in the 70-page Appellant’s Opening Brief ask “Whether the district court prejudicially erred in holding that the Act impermissibly requires that, when a work of original fine art (as defined in the Act) is sold in California or out of state by a seller who resides in California, the seller or the seller’s agent must pay the artist 5% of the sale proceeds,” and “Whether the district court prejudicially erred in holding that the entire Act (as opposed to portions or applications of the Act) violates the Commerce Clause, and in refusing to apply an express severance provision set forth in the Act.”

Appellants are prepared to argue that in fact the Act is Constitutional under the Commerce Clause because a state may impose levy-collection burden on sellers both domestic and out-of-state so long as the seller has a physical presence or a nexus to the state imposing the levy.” Moreover, in their opinion, the Act is Constitutional under the Four-Part Commerce Clause Test established by the Supreme Court precedent.

While the Act does not intend to regulate commerce outside of California and as Appellants aver it’s economic impact is only felt by California Residence in California Transactions, the lower court invalidated it entirely instead of severing the offensive language in the Act. The Act however includes a severance provision, and while the district court relied on the legislative history to invalidate the Act, it did not honor the severance provision encapsulates into the ultimate language of the act which intended for “all lawful applications of the Act to survive if some others “foundered.”

The Appellants’ Brief was filed on February 28, 2013 and Appellees (Sotheby’s, Christie’s and Ebay) are now expected to submit their brief(s). Given that the two action houses filed comments with the U.S. Copyright Office against a federal resale royalty act, their response is likely to mention that:

“The Auction Houses believe that there is no reason to adopt a federal resale royalty right in the United States and many important reasons not to. … Copyright in the United States, however, is primarily economic in nature, grounded in the constitutional mandate “[t]o promote the progress of science and the useful arts.” U.S. CONST., Art. 1, § 8, Cl. 8. Under the U.S. model, copyright law seeks to balance the author’s incentive to create new works against the public interest in accessing and using such works. A resale royalty right would upset this balance by likely reducing the prices paid to artists in the primary market for their works, as discussed below, while providing artists with little or no additional incentive to create. In particular, it would interfere with the first sale doctrine, …” and the California Act violates Article I, section 9 of the Constitution because it intends to imposing a Bill of Attainder on a small business unit by “singling out … [an entity] for legislatively prescribed punishments…”

Ebay, having submitted its own comment to the U.S. Copyright Office, is likely to argue property rights and the first sale doctrine, which alienates personal property rights to goods once there is consideration paid for them, meaning once money is exchanged between two willing and legitimate parties, property rights passes to the buyer.

Attorneys for the Appellants are Eric George and Ira Bibbero with Browne, George Ross LLP, and Irving Greines and Gary Rowe with Greines, Martin, Stein & Richland LLP.

Sources:  Case Nos. 12-56067, 12-56068, 12-56077 (Consolidated), Paul D. Clement, Comment to the U.S. Copyright Office on behalf of Christie’s and Sotheby’s; Simon Frankel, Comment to the U.S. Copyright Office on behalf of Christie’s and Sotheby’s; Ebay Comment.