Book Review: “Art Law: A Concise Guide for Artists, Curators, and Art Educators”(2016)

 

By Wylie Rechler*

Screen Shot 2017-07-27 at 11.38.45 AMEver wonder about the processes, complexities, and challenges revolving around an artist’s journey from studio to international renown? Or a collector’s campaign from inheritance to resale of an artwork with questionable title? Or a museum’s interactions with an artist’s intricate and controversial body of work so as to make it comprehensible for visitors? Michael E. Jones’ new book Art Law: A Concise Guide for Artists, Curators, and Art Educators (2016), provides a comprehensive overview of the loopholes and technicalities of the art market, including their historical transformations from it’s origin to the present day. Rich with examples and applications, Art Law compartmentalizes the often perplexing and convoluted legal concepts surrounding the art world into a digestible package of approaches. As a lawyer raised by an artist, Jones demonstrates a comprehension of the business and legal challenges artists face daily. Additionally, the author’s experiences as a “visual fine artist, art collector, consultant to museums, advisor to artists rights societies and individual artists, board trustee for an art college, author of an intellectual property rights book for artists, judge, university professor,” and more greatly contribute to his straightforward and intelligible explanations of complex and intricate notions (Preface, xi). 

 

Jones’ first chapter starts at the very beginning with “The Professional Artist’s Life”—an outlined examination chronicling the technical components of the contemporary visual artist’s career. From the importance of workspace and materials and marketing techniques, to taxes and estate planning, this chapter contains all the relevant legal concepts that apply to artists’ creative processes.  

The second chapter explores what the author terms “the gallery-auction-house-collector-major museum-complex” using examples of artists who have achieved entry into the exclusive bubble of the art market and those who have not, including … . This chapter offers an in-depth synopsis of the historical evolution of Western art through each major, instrumental artistic movement and school beginning with the Middle Ages’ concept of artist guilds. Jones then takes us to the Renaissance period—distinguished by the Medici patronage, innovations in oil painting techniques, and the importance of apprenticeships—followed by Neoclassical era’s emphasis on the academies and salons as the taste-makers of this time. Following this, we are informed about the impact of the invention of photography and innovations in printmaking. Subsequently, we are introduced to the first man to bring “financial leverage into the art market,” Paul Durand-Ruel (1831-1922) (P. 30) and the American ex-pat siblings who operated an artist salon out of their living room, Gertrude and Leo Stein. The Steins are highlighted as an example of how collectors, academics, and patrons can also serve as mentors and, thus, further impact the market for a particular artist. Jones moves on to discuss both the domestic and international impact of the 1913 Armory Show in New York City as a forum for the exchange of ideas. Here, Jones profiles collector, gallerist, and patron Peggy Guggenheim in her role as patron and taste-maker of the 20th century art world. The author notes that, after and around this time, art historians and writers—Clement Greenberg and Meyer Schapiro—also affected the market, in their capacity as artist promoters. Greenberg’s 1969 book Art and Culture grappled with the substance, significance, and historical context of Modernism in an unprecedented way. Jones concludes this chapter by discussing the emergence of photography and the Pop Art movement alongside developments within the art market, particularly the New York gallery scene. This section thoroughly details how the development of the art market paralleled each era’s art process—the medium used, the style in vogue, the training required, and the dialogue that revolved around the movement, the audience or the consumers of each new creative wave—and leans more toward being an art historical chapter as it closely examines the context of an art movement’s conception and how this shaped the art market as we know it today.

The third chapter chronicles the history of the American museum and its varying organizational structures, including incidents involving public disapproval of museum leadership. Museums appear to be a house of scholarship, exposure, and exhibition for all interested in diving deeper into cultural history of their society and that of others. Quoting the International Council of Museums (ICOM), Jones cites that museums are “in the service of society and its development… for the purposes of education, study, and enjoyment.” (47).  Quite often these instances of conflict and disapproval revolve around intolerant and disrespectful actions of the cultures of the museum’s visitors. Jones highlights the 2015 controversy concerning the Museum of Fine Arts Boston’s inviting visitors to come to the museum and dress up in a replica of the kimono worn by Camille Monet in Claude Monet’s La Japonaise. After protests and accusations of cultural appropriation and insensitivity, the museum cancelled this program and released an apology statement to those offended. Jones also discusses the broader issue of offensive objects on curated display, such as the Confederate flag. The Virginia Museum of Fine Art owned an adjacent parcel of land next door to the museum on it that it rented to the Sons of the Confederate Veterans. As it turns out the land housed a chapel which had served as the site for treating wounded Confederate soldiers during the Civil War. During their lease, the Sons of the Confederate Veterans flew a Confederate flag at the front of the building to symbolically commemorate their ancestors. The museum’s board criticized this gesture as a reversion to the promotion of the discriminatory and unjust Civil War-era ideologies of the Confederacy. The board reasoned that the front yard was the improper context for the exercising of this particular viewpoint and forced its removal. These two instances in American museum history grapple with the fiduciary responsibilities owed by a cultural institution to the public. There exists much ongoing debate over how broadly and narrowly the responsibilities of a museum should be interpreted. In addition to fiduciary duty to educate the public, Jones discusses the organizational structure of museum operations, which includes a board of directors, the adherence to the museum’s own code of ethics, and the necessity of holding onto a highly valuable art collection as a public trust.

Chapter Four, “Acquisitions: Good Title, Theft, Forgery, and Authentication,” delves into the issues regarding the transaction of an artwork, including provenance and appraisal. Jones begins by discussing the importance of a sound provenance prior to purchasing art by providing the logical first example of clouded title—a stolen work of art. In addition to database resources, such as the UK-based for-profit Art Loss Registry, the U.S. government is constantly trying to remedy the plight of those suffering from art crimes. In response to the Isabella Stewart Gardner Museum heist (in 1990), legislation passed in the mid-1990s made it a federal crime to steal art objects both older than 100 years and worth more than $5,000 or simply worth more than $100,000. Jones explains that a theft could be made by someone close to the artist, such as a gallery assistant.  Jones moves on to discuss how each state’s statute of limitations could impact an individual bringing a claim on account of a wrongly possessed artwork. He references O’Keefe v. Snyder—a case in which artist Georgia O’Keefe sought the return of paintings she’d made years prior from an adverse possessor who had acquired it as a bona fide purchaser. Jones also highlights the 1970 UNESCO Convention, as it circulated a code of ethics with respect to participating countries’ acquisitions of art objects. Under this code, U.S. museums run by federal agencies are not to acquire art objects illicitly removed from their country of origin (61).

In addition, this chapter examines the challenges and methodologies behind art authentication. When the scholarly evidence of art experts has contradicting results or proves uncertain, those seeking to authenticate a work of art can now turn to scientific analysis. From analyzing strokes and mark-making from high resolution images of Pieter Bruegel’s drawings to testing the chemical components of Jackson Pollock’s “Matter” paintings, scientists have made great strides in developing authentication techniques. Due to innovations in authentication, there has been a rising trend in lawsuits brought against art institutions for denial or neglect of authenticity. For example, Mr. Lancelot William Thawytes brought suit against Sotheby’s London for under-estimating the value of a painting he consigned that Sotheby’s sold as attributed to a student of Caravaggio’s. Sir Denis Mahon, the buyer of the work, took several measures to restore and authenticate the painting. He ultimately found it to be a genuine Caravaggio and priced somewhere between £10 and £15 million. He paid only £42,000 for it at auction. Jones reminds his readers that the underlying risk behind all authentications is that “there is no absolutely undeniably objective nor infallible test to determine authenticity” (66).

The author appropriately dedicates the entire fifth chapter to the examination of the “ethical and legal challenges of Nazi-era art and cultural property,” organized as an overview of the evolution of confronting the impact of the Nazi regime on the highly valuable personal property of its victims (77). Jones aptly begins with the 2012 discovery of Cornelius Gurlitt’s hoard of over 1,300 artworks passed down from his grandfather, the Nazi art dealer Hildebrand Gurlitt. (Cite Vanity Fair article). Jones explains that discoveries, such as this one, reveal the great amount of work that is being done and that will need to be implemented in the  future. Two statutes enacted in 1998 by Congress were intended to help these efforts: the Holocaust Victims Redress Act promoting the return of stolen property and the Nazi War Crimes Disclosure Act ordering the declassification of Nazi records pertaining to war crimes. In addition to discussing forward-thinking legislation, Jones chronologically walks his readers through six landmark cases that demonstrate the challenges of the Nazi-era art restitution cases—Price v. United States, Menzel v. List, Solomon R. Guggenheim v. Lubell, Bakalar v. Vavra, the Portrait of Wally, and the Republic of Austria v. Altmann. Additionally, Jones highlights other instances of the repatriation of cultural property not involving Nazi-era claims. These include the Elgin Marbles from Greece, the head of King Sargon II from Iraq, a Cambodian mythical statute auctioned at Sotheby’s New York, and Native American religious and art objects on display in American institutions. Jones has managed to package a dense amount of case law and legislative information in a digestible format.

The sixth chapter details the complexities of contract formation within the context of buying, consigning, and selling art in today’s global market. From Article 2 of the Uniform Commercial Code, to the requirements of a valid contract—including offer and acceptance, consideration, etc.—Jones covers every principle of contract law that applies to the exchange of artworks. He introduces the components of Visual Artists’ Rights Act (VARA), discusses what happens when a party breaches or fails to perform their end of the bargain, and explains which remedies are available to the victim of a breach or nonperformance. The author even goes as far as to provide templates of two different kinds of commonly formed art contracts—a sample consignment agreement and a sample exhibit contract (104-116).

The following three chapters tackle the significance of artists’ rights in today’s cultural climate. First, Jones outlines the benefits and challenges of those artists seeking to enforce the reproduction rights of their artworks. The seventh chapter presents an overview of the dynamics of the circulation of “the tangible expression of an idea, not the idea itself” (119). Jones provides a brief history of the Copyright Act, including its compliance to the Berne Convention—in which American artists receive copyright protection from the approximately one hundred participating countries—and the Universal Copyright Convention—where American artists receive an additional twenty-five years of copyright protection. Jones also explains the requirements for a work to be eligible for copyright protection. For example, the creativity criterion demands that the work must be produced by “an exercise of human element” (123). The topic of copyright infringement is demonstrated through three well-known art law cases—Rogers v. Koons, Cariou v. Prince, and Leibovitz v. Paramount Pictures Corp. The eighth chapter explores artists’ rights independent of copyright laws—these moral rights “protect an artist’s non-economic interests” and apply “after the art is sold or transferred” (143). In addition to discussing how American moral rights laws for artists relate to European ones, Jones gives examples of case law within this body of law operates. See Mass. MoCA v. Buchel. The ninth chapter reviews first amendment concerns with respect to artistic expression, starting with censorship practices dating back to the sixteenth century when Pope Pius ordered artists to paint fig leaves to conceal the nudity of the figures depicted in Michelangelo’s Sistine Chapel frescoes. A more recent example that illustrates this controversy occurred when John D. Rockefeller Jr. commissioned Diego Rivera to paint a mural at Rockefeller Center. Rivera effectively breached his contract to paint a man at a crossroads by instead depicting Vladimir Lenin. Rivera was fired and the mural destroyed. The chapter also discusses the intersections of freedom of expression with defamation, obscenity, privacy violations, and trademark infringement, illustrated by the challenges faced by Robert Mapplethorpe, Arne Svenson, Robert Indiana, and more.

In the tenth and final chapter Jones concludes by reviewing the different avenues through which artists can receive funding: federal agencies, state councils promoting the arts, crowdfunding, and foundations established either by private collectors or artists. In addition to listing examples of grant sources, Jones provides a thorough examination of the ways through which an artist could go about applying and receiving such funds. Furthermore, Jones relates back to his first chapter by including applications of the law to various disputes regarding such private foundations supporting the arts. These foundations—the Robert Rauschenberg Foundation and the Barnes Foundation, for example—have faced lawsuits ranging from fiduciary responsibilities and compensation, to partnerships with other successful foundations.

While the cases Jones makes references to cases that might not have the freshest shelf life, this is case law that should be known and understood by every individual who is considering a career in or involving art law. Jones’s constant references to historical events and the evolution of ideas provides a wonderful insight for his readers. Not only has the author successfully penned a crash course in contract law, copyright law, property law, and Western art history in one extensive yet concise two hundred-page book—but he also applies each and every important legal concept to the ever-changing, always exciting art market.

About the Author: Michael C. Jones is a professor emeritus in the University of Massachusetts Lowell College of Fine Arts, Humanities, and Social Sciences. He conducts research in areas including intellectual property law for artists, international applications of copyright law, and sports law. Art Law is his fourth publication on the topic.  

Disclaimer: Book reviews are no substitute for reading and interacting with the book reviewed.

*About the reviewer: Wylie Rechler is a Summer 2017 Legal Intern with the Center for Art Law. She is a rising 2L, J.D. Candidate at the Benjamin N. Cardozo School of Law and graduated in 2016 from Cornell University with a B.A. in art history. While at Cornell, she studied art and business abroad at the Sotheby’s Institute of Art in London. She can be reached at rechler@law.cardozo.yu.edu.

Spotlight: The Rise of Two Midwest VLAs

*By Abby Placik

The first pro bono arts organization in the United States, Volunteer Lawyers for the Arts, was established in New York City in 1969 (“VLANY”). Other robust creative communities that needed legal assistance, such as Chicago, Cleveland and other Midwestern cities soon followed. For example, a young group of lawyers formed the “Creative City Committee” in Chicago in 1972. A few years later, in the mid-1970s, a circle of local lawyers founded the Cleveland VLA as a committee of the Cleveland Area Arts Council.

These Midwestern organizations modeled their legal referral program after VLANY’s process. An applicant would write a statement with a brief description of the artist’s work or the organization’s history, the applicant’s income, and the legal problem. The most common legal issues artists listed on their applicants for legal assistance included copyright, trademark and patents; contract drafting, review, and negotiation; and landlord-tenant disputes. Most of the applicants earn a household income a little over minimum wage. VLA clients may be charged for service were a processing fee for an application and any required legal forms depending upon the specific case. 

Originally the requirements for pro bono applicants were that they were either artists or not-for-profit organizations, they were financially unable to retain an attorney and they had an income under $6,000 or, if an organization a budget under $100,000. The contemporary application process at most VLAs remains almost identical to its original form (the required personal income and organizational budget have been adjusted over time). For over forty years, VLAs have been providing legal assistance to artists, non-profit and for-profit organizations, higher education institutions and even local governments. This article explores the founding of Lawyers for the Creative Arts in Chicago and Volunteer Lawyers for the Arts in Cleveland and the development of their programs and initiatives to the present.

Chicago Lawyers for the Creative Arts (“LCA”)

Working with the Chicago artistic community, the Creative City Committee noticed a need for pro bono legal services and created the organization now called Lawyers for the Creative Arts (“LCA”). The mission of LCA was and still is, “to provide legal assistance to artists and arts organizations financially unable to retain legal counsel.” Under its first president James N. Alexander and first executive-director Thomas R. Leavens, LCA had a $38,000 budget and had fifty-three volunteer attorneys who processed 100 applications. Reflective of their commitment, Alexander and Leavens continue to help artists in Illinois through their current positions on the Honors Council of LCA.

In its early years, LCA was supported by grants from the Illinois Arts Council, the Borg-Warner Foundation, the Grant D. Pick Foundation, and individuals. Originally, LCA provided legal services to artists and arts organizations in the Chicagoland area, and clients received general explanatory material, model forms, and non-technical advice. Those interested in receiving legal assistance would fill out an application, an LCA member would review it and provide counsel at the office or over the phone. In the mid-1970s, a statistic stated that “LCA referred a total of 940 cases and [had] 87 volunteer attorneys.”

Today, LCA is an independent, non-profit §501(c)(3) corporation. Supporters of its programs have grown to include law firms, corporations, numerous foundations, governmental entities, and many individuals. As the only pro bono legal service dedicated to the arts in the state, LCA now serves clients in the art, culture, media and entertainment fields throughout Illinois. LCA has assisted individuals, for-profit and not-for-profit groups. LCA now offers legal advice pertaining to a wide array of subjects, including corporate law, commercial law, and general business advice; as well as copyright, trademark and patents, including rights clearances, licensing and fair use.

Artists, non-profit and for-profit organizations can apply on the LCA website for legal assistance at https://law-arts.org/application. According to Jan Feldman, Executive Director at LCA, the organization’s aim is to be financially inclusive in its application process. There is no minimum financial requirement–only a maximum of $35,000 household income. Feldman noted one of the challenges of meeting the needs of potential clients is the existence of a “donut hole,” meaning some applicants have above the maximum household income but cannot afford the high expenses that occur with retaining counsel in a specialized field (e.g. art and entertainment law). Despite the maximum income bar, LCA has assisted applicants over the bar who have compounded expenses (e.g. business and medical).

Today, LCA enlists more than 1800 attorneys to provide pro bono assistance to creative professionals and organizations throughout Illinois. Over the past year, LCA has held free educational events such as Legal Issues for Authors: Pen to Press Issues for the DIY Writer, Seminar: Funding for the Arts and Entertainment Law 101: Intellectual Property for Filmmakers and the Nonprofit and Tax Exemption Workshop. To support its programming, the LCA hosts an Annual Benefit Luncheon.

Cleveland Volunteer Lawyers for the Arts (“VLA”)

In the 1970s in Cleveland, Nina Gibans, a renowned advocate for local art and artists, was the Executive Director of the Cleveland Area Arts Council (“CAAC”). She partnered with William R. Joseph, a prominent attorney and backer of nonprofits, to form the Cleveland Volunteer Lawyers for the Arts (“VLA”).  The original mission of the CAAC and VLA, “was to disseminate information to local artists to give them the best opportunity to succeed.” A legacy of the program under the CAAC is “City Canvasses,” a series of ten murals that were painted on blank building walls throughout the city, and some can still be seen today. Artists involved in the project included Ray Domingo, Mort Epstein, Joe Hruby, John Morrell, Edwin Mieczkowski, Julian Stanczak, Jody Trivision, Susan Todys, Phyllis Sloane and Elijah Shaw. Mort Epstein’s electric outlet (1974) on the side of the Union building on Euclid Ave. pictured six black and white electrical outlets representing Cleveland State University’s commitment to diversity. John Morrell’s “Life Is Sharing the Same Park Bench” (1969) on the east side of the Superior Building on Rockwell Ave. facing E. Ninth St. depicts four figures of different races and sexes sitting next to each other on a park bench. This image is also the logo of the Association for the Advancement of Social Work With Groups. The murals are a testament to Cleveland artists and CAAC’s contributions to and engagement in community activism.  

In an interview, Gibans remarked that artists were in desperate need of counsel in basic business skills at the time of the VLA’s founding. Gibans went on to work extensively with many notable local institutions and authored The Community Arts Council Movement: History, Opinions and Issues, a significant work about arts administration.  In the past, VLA was known for its Saturday breakfast presentations on topics such as leasing, gallery agreements, sales and intellectual property protection. The CAAC disbanded and VLA became a committee under the Cleveland Bar Association (now Cleveland Metropolitan Bar Association “CMBA”). In the late seventies, “the Cleveland VLA [numbered] approximately twelve attorneys and accountants who [met] several times a year and [were] on call to provide legal counseling and accounting services.” In its early years, VLA provided accounting as well as legal services and hosted workshops for lawyers and artists.

Today, the Cleveland VLA is also a non-profit §501(c)(3) corporation, a pro bono program under the CMBA. It is mainly supported by the Cleveland Metropolitan Bar Foundation. The contemporary mission of VLA elaborates its original mission under the CAAC to “facilitate access to legal services for Northeast Ohio artists and arts organizations, including pro bono legal representation and referrals to income-eligible artists and arts organizations in all disciplines; [d]evelop educational resources for and build a living network of the region’s lawyers, artists, and arts organizations; and [a]dvocate for a strong and vibrant arts community.” VLA serves clients mainly in northeast Ohio who are artists or non-profit art organizations. Artists and art organizations can apply on the CMBA website for legal assistance. The CMBA has expanded to its clients free public law-related education programs and social events with attorneys who are interested in the arts.

Concluding Remarks

From its early years, VLANY was a recipient of a Challenge Grant from the National Endowment of the Arts. The Challenge Grant program required organizations to raise three dollars from private sources for every federal dollar with a goal “to promote long term stability and independence for the nation’s cultural institutions.” This grant allowed VLANY to meet its increased operating costs and develop research tools in art law. In turn, VLANY was able to increase its programming and, over time, the idea of pro bono legal assistance for the arts spread across the country. Most importantly, the Challenge Grant permitted VLANY to help artists and art organizations achieve stability and independence through legal aid.

Thanks to the creation of the VLA network, artists and art organizations have had access to affordable legal assistance for over forty years now. Chicago’s LCA and the Cleveland VLA carry out the work of VLANY in their missions to provide counsel on relevant issues, referrals to local attorneys, educational workshops and resources and a network of aid in their respective regions. It goes to say that VLAs are a valuable asset to major American arts communities and every donation is valued, not the least of which is the federal funding.

Selected Sources:

  1. Legal Referrals Show Increase, 2 ART & L. 1, 1,7 (1976).
  2. History, LAWYERS FOR THE CREATIVE ARTS, https://law-arts.org/history (last visited May 19, 2017).
  3. Chicago’s L.C.A., 2 ART & L. 1, 6 (1976).
  4. Supporters, LAWYERS FOR THE CREATIVE ARTS,  https://law-arts.org/supporters (last visited May 19, 2017).  
  5. History, LAWYERS FOR THE CREATIVE ARTS, https://law-arts.org/history (last visited May 19, 2017).
  6. Author’s phone interview with Mrs. Gibans (May 18, 2017).
  7. AMERICAN INSTITUTE OF ARCHITECTS. CLEVELAND CHAPTER.  ET AL., CITY CANVASES: CLEVELAND (Cleveland, Cleveland Area Arts Council 197-?).
  8.  95-year-old Cleveland artist updates historic diversity mural for tedxcle, FRESHWATER, http://www.freshwatercleveland.com/forgood/mortepstein041212.aspx (last visited May 24, 2017).
  9. Grant Segall, John F. Morrell painted “Park Bench” mural, CLEVELAND.COM, http://www.cleveland.com/obituaries/index.ssf/2010/04/john_f_morrell_painted_park_be.html (last visited May 24, 2017).
  10. From a correspondence on May 17, 2017 with Jessica Paine, Assistant Dir., Cmty. Programs & Info., Cleveland Metro. Bar Found.
  11. About VLA., 3 ART & L. 6, 7 (1977).
  12. Volunteer Lawyers for the Arts, CLEVELAND METROPOLITAN BAR ASSOCIATION, http://www.clemetrobar.org. (last visited May 19, 2017).
  13. About VLA, 3 ART & L. 6, 6 (1977).

*About the Author: Abby Placik is a J.D. candidate at Case Western Reserve University School of Law. Prior to law school, she worked as an administrative assistant at Lawyers for the Creative Arts in Chicago, Illinois. She received her B.A. in History of Art from Bryn Mawr College in 2015. She can be reached at abby.placik@case.edu.

Disclaimer: This article is intended for educational purposes only and is not meant to provide legal advice. Any views or opinions made in the linked article are the authors alone. Readers are not meant to act or rely upon the information in this article and should consult a licensed attorney.

WYWH: Recap of “Art, Law and Crisis of Connoisseurship Conference”

By Marie H. Kramer*

Screen Shot 2015-12-10 at 5.28.08 PM.pngOn Tuesday, December 1, 2015, the conference titled, “Art, Law and Crises of Connoisseurship” took place at The Society of Antiquaries of London, Burlington House, London, UK. It was an international conference organized by ArtWatch UK, the Center for Art Law and the London School of Economics Cultural Heritage Law (UK). The program featured nineteen speakers, including artists, art historians, scientists and lawyers from Western and Central Europe as well as the United States, discussing how the ‘eye’ of the connoisseur interacts with art history and law. The conference was divided into three parts.

Part I: The Making of Art and the Power of Its Testimonies

Michael Daley, Director of ArtWatch UK and one of the program organizers, opened the conference with his essay “Like/Unlike; Interests/Disinterest,” which focused on the 1991 trial of Professor James Beck in Italy. Columbia U. Art History Professor Beck was accused of aggravated criminal slander (which carried a possible three year imprisonment) for his critical comments on a restoration of the sculpture, an effigy of Ilaria del Carretto in Lucca Cathedral. Beck had opined that the restorer ruined the sculpture by stripping its ancient patina to remove scratches and covering it with oil to create a new, shiny surface. Beck was ultimately acquitted of the charges setting precedent for the protection of future criticism of art restoration. After the trial, Beck and Daley joined forces to set up ArtWatch International, an organization dedicated to advocate for the protection of art against harmful restoration. The full story of the trials can be found in the book, Art Restoration: The Culture, the Business and the Scandal, co-written by Beck and Daley, which also includes criticism of the cleaning of Michelangelo’s Sistine Chapel frescoes. Daley showed examples of the restoration effects on the Sistine Chapel, where delicate layers of shadow that the master painted himself, were removed under the guise of ‘cleaning’ off dirt deposits.

Next, Euphrosyne Doxiadis, a Greek painter and scholar, spoke about her three decades of research and criticism of the Rubens attribution of Samson and Delilah in the National Gallery in London. Her research of the provenance and the work revealed engravings and other painted ‘eye witnesses’ (copies made of the original Samson and Delilah painting by Rubens) that she contends do not match the version currently hanging in the National Gallery. Additionally, using her artist’s eye and the availability of high-resolution digital photographs, she observed visible differences in brush strokes from known Rubens paintings, as well as the use of different pigments. This is especially important because Rubens only used different red pigments to shade and highlight his red areas, rather than the white pigment used to lighten the red dress of Delilah in the National Gallery version. Now, still, Doxiadis continues to struggle to get her opinions heard and recognized by the National Gallery.

Jacques Franck, a French art historian and painter trained in Old Master techniques, explained “[w]hy the Mona Lisa would not survive modern day conservation treatment.”  Franck, who is a recognized authority on Leonardo da Vinci, has conducted an extensive investigation of the techniques used by Leonardo, especially his ‘sfumato’ (‘smoky finish’) method, in which colors and shades melt into one. Franck, who believes he has discovered how Leonardo accomplished this technique based on his years of personal experimentation, explained to the conference attendees that Leonardo applied ultra-thin layers of glaze and pigment to make his transitions, each layer only a few micrometers thick. Franck suggests that, clearly, modern conservation techniques that ‘clean’ off any of these thin layers of glaze would destroy the Mona Lisa and other Leonardo masterpieces.

With a continued focus on Leonardo Da Vinci, Ann Pizzorusso discussed the master’s work from the perspective of a geologist. Pizzorusso is a US professional geologist and a Renaissance scholar. She explained how geology can be used as a tool for determining attribution. Specifically, she noted that Leonardo was renown, not only as an artist, but also as a scientist. Leonardo carefully studied geology and botany, making extensive drawings of the world around him. Comparing the Virgin of the Rocks compositions hanging in the Louvre and in the National Gallery of London, Pizzorusso noted some odd differences. She could plainly identify the various rock formations in the Louvre version, but not so with the National Gallery version. Additionally, she noted that the plants in the National Gallery version, according to a botanist she consulted, were imaginary – not the precise petals and foliage of actual plants – a mistake she doubts Leonardo would ever make. Thus, she questions the attribution of the painting in the National Gallery.

Robin Clark, Sir William Ramsay Professor Emeritus at University College London, an inorganic chemist and spectroscopist, gave a fascinating discussion of the use of Raman microscopy (RM) to identify pigments in the palette of artwork. He explained how every pigment has a distinct pattern of scattered photons that can be seen after focusing a laser beam through a microscope—collectively referred to as its Raman spectrum. This unique pigment identifier is invaluable in determining the composition of the pigments and can give tremendous insight for authenticating and dating artwork, as well as conservation and restoration.

Unfortunately Segolene Bergeon-Langle, France’s Honorary General Curator of Heritage and a member of the Louvre’s preservation and conservation committee, was unable to attend the conference, but she provided her remarks, and Daley presented her main points about the relationship between science and art. She contends that scientific analysis can cause restorers to overlook the original artists’ formulations. For example, during the restoration of Leonardo da Vinci’s The Virgin and Child with Saint Anne, in the Louvre, the Louvre’s international advisory committee on the restoration concluded that there was blanching (whitening) of a layer of varnish due to moisture or ageing that needed to be removed. Bergeon-Langle strongly disagreed, recognizing that the whitened area was not a later varnish to be removed, but was original to the painting – and perhaps a device used by the painter. She resigned from the restoration advisory committee in protest to the removal of the varnish and ‘over-cleaning,’ which left a visibly brighter composition. As an advocate for responsible stewardship, she contends that different fields of science and connoisseurship need to work together, so that the proper scientific questions are asked, and to permit art connoisseurs to work with scientists to collaboratively analyze and understand the true meaning of the results.

Michel Favre-Felix, a French painter and President of ARIPA (Association for the Respect of the Integrity of Artistic Heritage), discussed how some art restorers have dramatically changed certain works of art because they failed to look at the testimony of historical copies. One of the restorations he discussed was Veronese’s The Pilgrims of Emmaüs. The original, painted in 1560, had been changed more than once over the past 450 years; but there had been engravings made over the course of history, as well. Each restoration made changes that compounded prior mistakes. For example, a restoration in the 1950s deemed that the neckline on the cloak worn by the Pilgrim Luke was an overpaint from the 19th century, and removed it, notwithstanding an 18th century engraving showing that very neckline. These errors and others were compounded again in the Louvre’s more recent 2003-2004 restoration. The piece today makes a good example for the study of art restoration and perhaps, what not to do.

Kasia Pisarek, an independent art historian and research specialist on attribution in London, discussed modern attribution, specifically, the case of La Bella Principessa, a chalk and ink drawing on vellum depicting the profile of a girl appearing to be 15th century. It was recently attributed as a lost drawing by Leonardo da Vinci, but Pisarek proposed several arguments against such a finding. For example, she questioned the story that the vellum came from the Sforziad manuscript in Warsaw, noting that, among other problems, the hole punches that would have held the vellum sheet in place do not match the supposed original source of the drawing, the Sforza family album, which has five holes. Additionally, she discussed how the style and technique of the drawing are very different from Leonardo’s, but that several of his works and a sculptured bust by Cristoforo Romano might have been the sources for the drawing. The controversy will continue—indeed, convicted art forger Shaun Greenhalgh has recently claimed that he forged this “Leonardo” modeled after a girl he knew in 1975.

The first part of the conference was concluded with a brief discussion and a Q&A moderated by one of the conference organizers, Irina Tarsis, of Center for Art Law. A heated discussion ensued surrounding La Bella Principessa’s attribution that could only be categorized as a battle of experts.

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Part II: Righting the Record – Diverse Experts as Authority

Tatiana Flessas, professor of cultural heritage law at the London School of Economics and one of the conference organizers, introduced the early afternoon speakers, starting with Brian Allen, Chairman of the London Old Master dealers Hazlitt Ltd. Allen discussed what he termed ‘the new art history’—a change in the teaching of connoisseurship, especially in the UK, since the 1980s. He has noticed that universities are focusing on the social history of art, and not training art history students to differentiate artists by their stylistic traits. The effect is that fewer art historians will be able or willing to make attributions, and forgeries can be missed.

Peter Cannon-Brookes, former museum curator with strong interests in conservation and security, presented his essay, “Reconciling Connoisseurship with Different Means of Production of Works of Art.”  He follows Brian Allen’s discussion of the change in connoisseurship and how well modern art historians and connoisseurs really understand art from long ago. He questioned whether the more modern analysis of art—post-war era art to the present—could apply to art created in the past, and the processes used throughout the ages.   

Continuing with the theme of the changing nature of connoisseurship, Charles Hope, former Director of the Warburg Institute, discussed how modern connoisseurs have been unable or unwilling to support their basis for attributions. Often, two types of connoisseurship are at odds with one another: that based on expertise acquired over a long time and that based on using historical evidence and reason. In more distressing terms, Hope highlighted the fact that decisions about attribution are not based on the actual evidence to support the attribution, but left to a decision by vote.

Martin Eidelberg, Professor Emeritus of art history at Rutgers University, next discussed how science alone will not solve authentication issues, that there needs to be a collaboration among different disciplines in addition to extensive time for study. While creating a catalogue raisonné of the paintings of Watteau, he discovered how the provenance and scientific analysis of the paintings were not always a reliable means to determine accurate authorship and could lead to various misattributions.

Robin Simon, Editor of The British Art Journal and Honorary Professor of English, UCL, explained his discovery of multiple fake paintings, which were hanging in the MCC (Marylebone Cricket Club). Simon discovered that a single artist, between 1918 and 1948, painted over fifty paintings depicting cricket matches that purportedly dated from the 16th-20th centuries. After outing the pictures, they were removed from the MCC and quietly given to dealers, although a few fakes still remain in the MCC. Interestingly, Simon learned that the fake paintings were later sold to a wealthy collector who believed them to be authentic. So, the fakes have worked in two swindles.

A guest lecturer at the LSE and Director of the Art Law Foundation, Anne Laure Bandle, discussed her PhD paper on the sale of sleepers at auction and the liability of the auction house in such dealings. She focused on the notable Thwaytes suit against Sotheby’s for negligent advice regarding the value of The Cardsharps—allegedly missing the current expert attribution to Caravaggio. The High Court ruled in favor of Sotheby’s, finding that it had met its due diligence by using highly qualified experts who reasonably concluded that the quality was not sufficient to indicate a Caravaggio, rather than just a ‘follower.’

The next speaker, Elizabeth Simpson, Professor at the Bard Graduate Center in New York, departed from the field of fine arts to discuss the use of connoisseurship in the study of ancient art. Specifically, she explained how the ‘eye’ of the connoisseur has been used to identify the artists of ancient Greek artifacts. For example, by studying the stylistic traits of ancient Greek vases, scholars have been able to determine that two separate artists created works on two sides of the same vases – the Lysippides Painter (black-figure technique) and the Andokides Painter (red-figure). Connoisseurship also reunited disconnected ivory pieces stored in the Metropolitan Museum of Art into the ancient chair or throne from which they came. The ivory pieces had been excavated without any record of the source or context of the figures. An investigation of the pieces and comparison to similar ivories with known provenance revealed how they fit together and their source (Anatolia). 

Part III: Wishful Thinking, Scientific Evidence and Legal Precedent

During the final portion of the program, participants discussed the implications of expert connoisseurs and science in the courtroom.

Irina Tarsis, an art historian, New York attorney, Founder and Director of Center for Art Law, and one of the program organizers, contextualized the litigation involving the renown Knoedler Gallery. Although of impeccable reputation, the Knoedler closed after more than 160 years in business in the face of at least ten lawsuits against the Gallery for selling forgeries. The Gallery sold over fifty paintings, many of which were thought to be by well-known abstract expressionists. They had been consigned by Glafira Rosales, who has now admitted to the forgeries. Thus, the question is, what was the duty of the Gallery to ensure appropriate authentication?  Interestingly, Tarsis reported that none of the museum purchasers have brought suit yet. Several of the private collectors who have brought suit have settled. Thus, the issue of a gallery’s due diligence regarding authentication and attribution in these matters has not been decided by the courts. The question also remains whether there is insurance coverage for all of the remaining claims and potential claims. The usual insurance policy may cover theft or damage to works of art, but not necessarily for loss due to misattribution. Further, the Knoedler may have a policy covering errors and omissions by its staff, but unlikely covering acts of fraud. The message is clear that collectors and dealers cannot rely on the representations of even a highly reputable gallery alone, without performing their own due diligence into authentication to protect themselves. Between December 1st and December 10th, one of the two Knoedler cases slated to go to trial in the January 2016 was settled.

Nicholas Eastaugh, Founder/Director of Art Analysis and Research Ltd., London, discussed the science of analyzing fine arts – the term he uses is ‘technical art history and materials science.’  He performs chemical analyses of the materials used in a painting and searches for anomalies in those paintings. For example, he analyzed Red Picture With Horses, supposedly a 1914 painting by Campendonk, but found titanium white pigment, which was not available at that time, evidencing a forgery by Wolfgang Beltracchi. He also uses high resolution digital imaging, X-rays and ultraviolet fluorescence to see below the painted surface. Earlier sketches and drawings (pentimenti) can show the true artist’s creative process in altering the composition along the way, rather than someone who is simply making a copy.

Megan E. Noh, Associate General Counsel of Bonhams, discussed recent legal trends in authentication disputes. One important change is that artists’ foundations and authentication boards have disbanded or stopped issuing certifications of authenticity. For example, there are no longer boards to authentic works by Basquiat, Warhol or Lichtenstein. This trend is coupled with increased litigation concerning authenticity. Modern litigants rely more on scientific evidence, but it often becomes a battle of the experts. Authenticators, however, are understandably cautious in giving opinions for fear of liability. Noh suggested some possible solutions, such as indemnification agreements or ‘no sue’ agreements to protect authenticators. In New York, there is an attempt to amend the Art and Cultural Affairs Law to protect authenticators by requiring enhanced pleading by plaintiffs filing suit against authenticators, and fee shifting requirements for the prevailing party. Favorable case law may also help reduce liability for authenticators.  Indeed, since the conference, a French court has overturned a 2013 judgment that required art expert Werner Spies to reimburse a collector for the price of a work that turned out to be another Beltracchi forgery, but that Spies authenticated as genuine in a catalogue raisonné. The French court held that an authenticator for a catalogue is not to be held to the higher standard of care as that of an expert consulted in the sale of a work.

Conclusion:

This fascinating conference brought together international experts in various fields of art, art history, science and law. The speakers recognized that controversy abounds as experts continue to reach different opinions regarding attribution of works of art, as well as what efforts to make to properly conserve works of art. As the value of art generally rises, the stakes are high. Disagreements over attribution are increasingly brought into the courts, where the battle of the experts in connoisseurship and science is left to the decision of judges and juries (those furthest from the art world). The eye of an experienced connoisseur, who can distinguish artistic styles, is still desperately needed. The ability to perform such a close inspection and analysis should be supplemented by modern scientific advances, but should never be replaced. Papers from the conference are being prepared for publication in 2016. In the meantime, the take away from the conference is to do due diligence and seek unbiased opinions for authentication or intervention in art handling from a combination of sources, including connoisseurs and scientists.  The conference also raised topics that warrant further exploration, such as ethical guidelines for conservators and how to seek and determine a consensus in opinions.

Suggested Readings:

About the author: Marie H. KramerPennsylvania attorney living in the United Kingdom, studying art and cultural heritage law. She can be reached at marie@kramerlegalbriefs.com 

Boston Raphael: Legal Art History

20140311143536713_0001By Belinda Rathbone*

In 1969, my father, Perry T. Rathbone, then Director of the Museum of Fine Arts, Boston (the MFA or the Museum), bought a previously unknown painting by Raphael from an elderly art dealer in Genoa. Attributed to one of the great artists of the Italian Renaissance, this portrait of a young girl was to be the crown jewel of the MFAs centennial year: 1970. But questions about the legitimacy of its exportation from Italy, compounded by widespread doubts about its attribution to Raphael, almost immediately turned this celebratory event into a tragic fiasco. For my father, it spelled the unraveling of his distinguished thirty-two year career as a museum director. In the then emerging field of art law, the Boston Raphael became a landmark case.

At the time, Italian export laws established in 1939 stipulated that any work of art considered an important piece of the nations cultural heritage could be exported only after the state itself was given a two-month option to acquire it.  Furthermore, if the right was not exercised, a hefty 30% export tax was imposed on any potential buyer from outside of Italy.  This law effectively paralyzed the Italian art trade for important works, and the Art Dealers Association of Italy fought the export tax for years, without success. However, an unknown or unpublished work stood a reasonable chance of legal export. Though technically speaking an important work of art, whether known or not, should have been registered with the Italian government, it was unusual for private owners to volunteer such information. The result was that countless works of art in private hands remained unregistered, including the Boston Raphael. Dealers and foreign collectors alike took advantage of this gray area of the law; while they weighed the odds, the only certainty they could rely on was that once the object was safely outside Italy, Italian law did not apply. As explained by art law specialist John Merryman in Law, Ethics, and the Visual Arts, although the offended nation could punish the smuggler, if it could catch him, and might have the power to confiscate the illegally exported article if it should be returned to the national territory, it could not expect the foreign nation to punish the smuggler or seize and return the object. With the Museum Boards approval, Rathbone agreed to pay art dealer Ildebrando Bossi $600,000 for the painting, drawing on the previously untapped Charles Bayley Fund, which was earmarked for the purchase of an important painting.

Unfortunately for the MFA, contemporaneously with the acquisition, Italys top art sleuth, Rodolfo Siviero [1911-1983], was looking for a high profile export case to burnish his diminishing reputation before he retired. Almost as soon as the picture was unveiled in Boston, Siviero began his investigation into its source, working through a network of art historians in Italy. Before long he had traced the picture to Bossi in Genoa, who already had a reputation for illicit art smuggling. Siviero also began to question the U.S. Customs agents to track the paintings recent arrival in Boston. At the same time, as if there was not enough for the Museums administration to worry about, experts on both sides of the Atlantic began questioning the paintings attribution to Raphael.

With scandal looming, Rathbone and the trustees of the MFA were now faced with a dilemma: how to quell both Sivieros accusations of smuggling, as well as questions from U.S. Customs agents who had been consequently alerted. Seeking legal counsel, they hired the Washington D.C. law firm of Covington & Burling (Covington), whose lawyers at first reassured them that they had operated within the law. What they did not know at that time was that MFA curator Hanns Swarzenski, who had hand carried the picture to Boston from Genoa, had neglected to declare it when he came through customs in September 1969. While there was and still is no import duty to pay on an object over 100 years old, the painting should have been declared. This technicality, which under regular circumstances would have been considered a minor omission, would end up costing MFA its first and only Raphael.

On the morning of 7 January 1971, U.S. Customs agents, armed with a search warrant, entered the Museum without warning and seized the painting. Because of its fragile nature and the below freezing temperatures outside, the MFAs head conservator was able to persuade them to leave it in the Museum in a vault under the customs seal. One week later a registered letter arrived from U.S. Customs informing the Museum that it was liable for a penalty of $1,200,000 (the estimated domestic value of the painting, even though the penalty twice exceeded what MFA paid in the end) for Swarzenskis  failure to declare the painting at Customs in violation of the provisions of section 1497, Title 19, United States Code. Soon afterward Rathbone and Swarzenski appeared before a grand jury in Boston to determine if they had conspired to defraud the U.S. government.

Meanwhile lawyers from Covington in collaboration with Ropes & Gray in Boston hammered out a nine-page petition for the mitigation of fines and release of the painting from Customs, arguing that The penalty proposed is extremely severe, particularly when the government has no revenue at stake such disastrous consequences should not be visited upon the museum because of the failure of one employee to declare a non-dutiable painting.

The fine was reduced from $1.2 million to $5000, and no indictment was returned from the grand jury. No treaty existed requiring the U.S. to return the painting, an action that could only be considered as an act of generosity. The UNESCO convention of 1970, which the U.S. had joined other signatories in adopting, had broken ground on new agreements between nations on the means of prohibiting and preventing the illicit import, export, and transfer of ownership of cultural property, but these were far from codified when the picture left Italy in 1969. However, in a meeting called on short notice when Rathbone was traveling abroad in the summer of 1971, the MFA trustees voted to voluntarily return the painting to Italy.

Soon after a formal agreement between the MFA trustees and assistant U.S. Treasury secretary Eugene Rossides, the painting was escorted on a flight to Rome in September 1971, and received by the triumphant Siviero. The MFA was never reimbursed for the money they had already spent on the painting, about $350,000 USD, for another unfortunate piece of timing was that the elderly Genoese art dealer, Ildebrando Bossi, died in prison awaiting trial for illegally exporting the Raphael. The Italian government had seized his assets and apparently felt no obligation to refund the MFA.

Many questions remain about this curious case. Most importantly: was the painting an authentic Raphael, and therefore an important piece of Italys cultural heritage? Based on its consignment to storage in the Uffizi Gallery in Florence since the early 1980s, it would not seem so. Were the MFA Trustees meeting their fiduciary responsibility in returning the disputed painting with no promise of a return on their investment, and its attribution in question?

The case of the Boston Raphael served to heighten awareness of the need for more consistent policies between nations on the export of works of art. The UNESCO convention of 1970 sought to reconcile values of cultural property and the promotion of free trade, breaking ground for bilateral or multilateral agreements on the export laws pertaining to works of art and antiquity. In recent years high profile cases involving illegally excavated antiquities bought by American art museums have brought these issues to the foreground and led to a more vigilant regulatory environment. The Boston MFA is one of the few museums to employ a full time provenance researcher and earlier this year the Museum announced that it would be returning eight antique sculptures to Nigeria after confirming that they had been stolen before making their way onto the United States art market and acquired by the Museum.

About the Author: Belinda Rathbone is a biographer and fine arts journalist. She is the author of Walker Evans: A Biography, and The Guynd: A Scottish Journal.

For the full story of the Boston Raphael read her forthcoming book, The Boston Raphael, Boston: David R. Godine, which reviews the circumstances behind the acquisition and return of the painting, the various conflicting motivations behind the key players in the episode, and the questionable inevitability of its outcome.