Book Review: “A Tragic Fate: Law and Ethics in the Battle over Nazi-Looted Art”(2017)

By Jason Barnes*

Screen Shot 2017-10-25 at 4.06.39 PM.pngThe recent movie Woman of Gold and the Holocaust Expropriated Art Recovery Act enacted in 2016 reflect a steady interest in U.S. restitution of Nazi-expropriated art.  It is thus with impeccable timing that Nicholas O’Donnell’s first book— A Tragic Fate: Law and Ethics in the Battle over Nazi-Looted Art (2017), arrives on the scene, offering a treatise on the restitution of Nazi-looted art in the United States.  In it, O’Donnell describes the most important restitution-related litigation, international gatherings, and treaties in remarkable narratives that manage to stay fascinating while incorporating immense detail and nuance.

O’Donnell’s success on this front likely results from his background. He studied art history at Williams College and law at Boston College Law School. Now, he works as litigation partner at the Boston law firm, Worcester & Sullivan, where he has tried important art restitution cases, such as Philipp et al. v. Federal Republic of Germany et al., 15-cv-00266 (D. D.C.) (restitution of the Guelph Treasure).  He serves as the editor of the Art Law Report and is a member of the Art Law Committee for the New York City Bar Association.  A Tragic Fate really combines O’Donnell’s two loves—art and law—making him perfectly situated to write on the subject of Nazi-era looted art. O’Donnell is at an ease in his discussion of both the complex litigation procedural devices as well as the artists and art at issue in various cases.  His passion and knowledge of the subject are readily apparent in the monograph.

O’Donnell is at his best when telling the war stories in the battle for Nazi-looted art in the legal arena.  Most of the book is divided by restitution narratives, with each chapter covering an individual “battle” to recover an artwork through litigation.  These case-summary narratives include most, if not all, of the key restitution cases in the United States:  The Portrait of Wally (Chapter 3), Portrait of Adele Bloch Bauer (Chapter 4), the Herzog Collection (Chapter 7) and so on. It is through telling these narratives that O’Donnell explains the laws governing restitution. Any one of these individual case summaries on its own is illuminating but it is having them compiled together under one cover that makes the book particularly valuable.  It welcomes the juxtaposition of the different barriers to recovery, exposes the good-faith purchasers and jurisdictions that display a heightened hostility towards restitution claims, and shows how the obstacles to restitution claims have evolved over time.   

The author’s skill of narrative is not confined to discussing U.S. litigation. It likewise applies to his discussion of the important international gatherings that form the international framework for the restitution of Nazi-looted art.  O’Donnell spends pages analyzing the 1998 Washington Conference—the first and arguably most important gathering on the restitution of Nazi-looted art.  In his exposition of the seminal conference, O’Donnell analyzes many of the nations’ statements offered at the conference.  This tact allows O’Donnell to nicely introduce the differing ways in which nations have responded to the issue of the restitution of artwork looted during the Nazi era.  He later returns to comparative law in Chapter 19, wherein he discusses nation-based restitution regimes.  These introductions to comparative law are a welcome addition to a book primarily focused on U.S. restitution because they give the reader the necessary context to make any normative judgments on U.S. restitution or ruminate on potential reforms.

Because of the technical nature of the book and O’Donnell’s consistent preference for both detail and accuracy, A Tragic Fate may be less accessible to a non-lawyer. Chapters, especially those focusing on particular litigation cases, read very much like a brief, both in structure and language.  The book is riddled with legal jargon, cross referencing, and is written in a style that though clear, at times, feels too formal. Arguably the biggest impediment to lay readers is the immense substantive legal detail that O’Donnell covers in the book. At the same, this very feature will certainly be welcomed by law students and lawyers interested in delving into the intricacies of property restitution practice.

The substantive content alone favors those with some formal legal education. The introduction quickly breezes through important aspects of U.S. restitution law, including discussion of statute of limitations rules such as discovery and demand-and-refusal.  But this introduction functions more as a refresher for those far removed from law school than a sufficient exposition for someone never introduced to those concepts before.  This criticism applies with even greater force to later discussions of complicated legal concepts, such as the Act of State Doctrine, Bernstein letters, general versus specific jurisdiction, Foreign Sovereign Immunities Act (FSIA), Federal Tort Claims Act (FTCA), and so on. 

In the midst of the case summaries, O’Donnell also opts to go into immense detail on the procedural nuances of the various cases – the different iterations of the lawsuit, how the parties have changed over time, jurisdictional issues.  For instance, in the chapter on Femme en Blanc (Chapter 3, pp 79-82), O’Donnell discusses the motions practice of the various litigants, including procedural decisions like a §1404 venue transfer request.  It’s noble that O’Donnell focuses on the procedural minutiae which oftentimes prove very important for ultimate success in trial.  But one wonders if the benefit of accuracy and detail is outweighed by decreased accessibility.  O’Donnell tries to militate against this unfortunate result by consistently defining terms and including a nice glossary and index to the end of his monograph. 

A Tragic Fate is an educational journey – well worth undertaking.  The book is well-researched and written with the clarity one would expect from an effective advocate and proponent of restitution of Nazi-era looted art.  The book will serve as good educational resource to law students and practitioners interested in learning more about this particular area of art law or simply general litigation in the United States; or those looking for mere entertainment by some incredible stories on some very important artwork.

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

About the reviewer: Jason Barnes is a third-year JD candidate at Columbia Law School. He is serving as the Fall 2017 Legal Fellow with the Center for Art Law.  His note on the Holocaust Expropriated Art Recovery Act is forthcoming in the Columbia Journal of Transnational Law.  He can be reached at

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

Book Review: “Art and Business: Transactions in Art & Cultural Property” (2016)

By Marine Leclinche*

Art and Business coverWith every new publication on the subject of art law we are pleased to note the developments and growth of the field, as well as acknowledge new authors tackling the subject.

In his introduction, to Art and Business Kevin P. Ray, a Chicago-based attorney who specialized in art and cultural heritage and financial services at Greenberg Traurig, LLP, explains that this book is not intended to be exhaustive but rather to “provide an introduction to what people need to know when entering into transactions that involve art”. Indeed, the goal is deftly accomplished by the book that provides a comprehensive and concise presentation of the transactional issues and challenges encountered in the global and developing art market. While the author wishes for his book to be of interest to artists, collectors or attorneys, it can also be added that this book is definitely worth reading for students graduating from law school or art school. Even if art law is now an accepted practice area, and law schools are more and more willing to train students to this field, this textbook is a good reminder of the diversity of the subject. Art law encompass many diverse issues in addition to copyright and infringement.

Ray’s examination of the art law field is divided into ten chapters. Of the ten chapters, the first seven introduce readers to the basics of art transactions where art deals are involved, namely: cultural property, intellectual property, art trade, authenticity or title, but transactions in the art world are not always mere question of copyright infringement, title or authenticity, there can be restrictions on materials, or preemptive rights among countries that can complicate international business relationships for example. Ray uses the last three chapters to synthesize the themes of art finance and art-secured transactions, areas which may be less familiar to some art professionals

The book also contains two Appendices on restrictions applicable to art and cultural property. Appendix A provides information about the type of restrictions (e.g. export or import restriction) applicable to art and cultural property and their legal sources (national laws and regulations), and categories of objects to which these restrictions could apply. The second list categorizes restrictions according to market sectors (e.g. for Impressionist and Post-Impressionist, restrictions could apply on materials, on exports or on imports)

The first chapter “Art and Cultural Property in the Law” is a good introduction to understanding how art has been defined throughout centuries. The role of art in our societies has changed throughout time and discoveries of new techniques or materials and so has its definition. While this chapter is more conceptual at first, the author is able to quickly guide the reader towards legal status of art. For the author, the legal definition of art is essential for at least two areas: customs classification and copyright and intellectual property.

The second chapter is dedicated to intellectual property and copyright laws. The author uses cases in order to illustrate the challenge of ‘copyrightability’ and the purpose of infamous fair use doctrine and moral rights. The last section of this chapter concerns artists’ resale rights and sums up very well the origin of the rejection by U.S. copyright law and the difficulties to create or maintain a bill on resale royalty.

The third chapter explores the question of cultural property, a complex issue that has been first used in the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict (the “Hague Convention”). While the Hague Convention includes both movable and immovable cultural property, it applies only during periods of armed conflicts.

In 1970, the UNESCO Convention, eventually addressed the issue of protecting cultural property in peacetime and targeted specifically moveable cultural property which makes it more relevant, according to the author, to art trade and transactions discussed in his book.   As explained by the author, source countries (“countries that were the location of ancient civilizations, many of which are former colonies”) started to advocate for a convention that could regulate the removal of some objects during colonials period by market countries (“important centers of the art and cultural property trade […] which are former colonial powers”). Nevertheless it seems that the effectiveness of the 1970 UNESCO Convention was put into question, those doubts led to the creation of the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects adopted in 1995. This Conventions applies to international claims for the restitution of stolen cultural object and the return of cultural objects, but it has been ratified by less states than the 1970 UNESCO Convention meaning that “it has limited applicability for most art transaction”.

One of the most famous examples of a continuing dispute over tangible cultural property concerns the Parthenon Sculptures (formerly called the Elgin Marbles). The Parthenon was constructed between 447 and 432 B.C.E and served originally as a temple to Athena. The temple was used for diverse purpose such as: a Greek Orthodox cathedral (5th century C.E, a Roman Catholic cathedral (in 1204), a mosque in 1458 or a military center in 1687. It suffered several destructions by fire and bombardments. Several sections of the book are dedicated to the dispute over the ownership of the Parthenon sculptures off and on since the 1832 Greece independence. Since Greece formally demanded for the Parthenon sculptures return in 1982, England and Greece decided to use cultural diplomacy instead of trial threats. A disagreement still remains concerning Lord Elgin alleged permission to remove the sculptures. In 1799 Lord Elgin was appointed British ambassador to the Ottoman central government in Constantinople, and supervised “a team of artisans and workmen to travel to Athens to make drawings and plaster casts of Greek sculptures and architectural fragments”. The outcome of this venture was that upon the obtention from the Ottoman government of document of permission for access to the Parthenon, part of the sculptures were removed from Athens and later brought to the British Museum in London. The obvious legal issues concern the issuance of the alleged removal permission of the Ottoman government. If the two countries achieve to agree on the return of the sculptures several issues would persist such as the running of statute of limitations and implementation of international laws.

Another interesting reference in the chapter on cultural property concerns Native American cultural heritage and its protection by US domestic laws. The Kennewick Man saga shows how much a legal definition can sometimes be too rigid in an evolving world of historical discoveries. After the discovery of a human skull and bones near Kennewick, Washington, on federal lands, the remains were sent first to an anthropologist for analysis and upon discovery that they were approximately 9,000 years old, further scientific studies were planned. Five tribal groups opposed these further studies and demanded the remains to “be turned over for reburials”. The scientists excavated the Kennewick Man based on the 1979 Archaeological Resources Protection Act (ARPA) and argued that it was not “Native American” remains according to the 1990 Native American Graves Protection and Repatriation Act (NAGPRA) governing among other things the treatment, repatriation and disposition of Native American human remains. A claim was brought in the US District Court for the District of Oregon to avoid restitution. It was held in 2004 that Kennewick Man’s remains were not “Native American” human remains according to the NAGPRA. Last but not least, a publication in the scientific journal Nature determined that according the genetic sequencing of Kennewick Man’s genome, it was “more closely related to modern Native Americans than to any other living population” and especially to the Colville Tribe, who claimed formerly for the restitution of the remains. The Kennewick Man is still currently in the custodial care of the Burke Museum in Seattle.

Chapter five and six respectively called “Questions of Authenticity and Questions of Titles” provide essential definitions that help novice readers not to confuse attribution and authenticity, or provenance and provenience. Authenticity of an artwork has always been subject to suspicion and leads more and more to expensive and largely media-covered litigations where the art authentication experts are left to the anger of purchasers or owners. Just this year, Sotheby’s auction house filed two lawsuits, one in the UK and one in the US to recover funds from the consignor’s of artworks they found to have been forgeries. Ray explains very well in chapter five the strange fascination that art theft and forgery create in the media and among the public, analyzing extensively the story and proceedings of the Knoedler & Company case.

In the chapter concerning art ownership and title, the author decided to tackle the issue of stolen art, first explaining the moral aspect of the question that has been a classic subject of a large number of movies (Gambit in 1966, remade in 2012, or How to Steal a Million also in 1966). As stated by the author, most of the time this subject is romanticized but in reality involves much more complicated issues with the common law principle of nemo dat and problems of statutes of limitation.

The author very appropriately dedicated a fair amount of pages on the issue of Nazi-Looted Art providing a good explanation of the various challenges: emotional, geographical and time-related and the legal basis for past and current cases. That said, a more complete review of art law cases involving Nazi-era looted restitution cases is in order.

The three last chapters are the most technical and also challenging chapters of this book, for non-finance trained professionals. The author addressed art sale transactions from the standpoint of both the U.S. Uniform Commercial Code (UCC) and the UN Convention on Contract for the International Sale of Goods (CISG). This part is very useful as the author makes straightforward comparison between the two legal documents and demonstrates their respective benefits and weakness. Chapter 9 “Secured Transactions” treats art as a “quasi-asset class for investment” and discusses, once again, the lessons from the following cases: Lindholm v. Brant 925 A.2d 2048 (Conn. 2007) and Salander O’Reilly Galleries, LLC bankruptcy cases to illustrate his explanations. The last short chapter deals with international trade in art and especially exports restrictions and preemptive rights. The example of the sale of the 1733 portrait of Ayuba Suleiman Diallo by Hoare of Bath at Christie’s in 2009 is given to show the limitation that a country can impose on the exportation of an artwork that is considered  a national treasure. It was requested from the buyer: the Qatar Museums Authority to submit a request for an export license to which the UK exercised its preemptive rights in order to enable British museums to acquire it. Eventually the National Portrait Gallery and the QMA reached an agreement for a loan of the painting.

The author decision to provide a selection of case decisions and legal materials, helps the readers to put some more abstract concepts back in context or remember famous cases concerning forgeries. Nevertheless the book could become quickly outdated on these points because of new developments in pending cases or evolution of laws.

On the book shelf of the art law publications Art and Business appears an up to date and an informative reference that offers simultaneously to its readers a very good introduction on basic issues rose by art law and the art business, and thanks to the author expertise, more specialized chapters concerning art transactions and sales, that will provides great sources for less experienced lawyers. Ray’s book is clear, and provide numerous and well-researched footnotes to help readers to deal with a particular topic in depth. Published by the American Bar Association (ABA), despite its price ($199.95), this book makes a valuable addition to a reference library for any art professionals.

Disclaimer: This article presents general information and is not intended as legal advice or substitute to reading Art and business.

*Marine Leclinche is a Spring 2017 Legal Intern with Center for Art Law. She is a LL.M candidate at Benjamin N. Cardozo School of Law. She earned a degree in Intellectual Property Law in France, and now focus her studies on art and fashion law. Ms. Leclinche can be reached at

Book Review: “Possession: The Curious History of Private Collectors from Antiquity to the Present” (2016)

Screen Shot 2016-07-07 at 12.07.49 PMBy Nina Mesfin*

While museums today seem to be gradually withdrawing from the purchase and sale of artworks on the private art market, private collectors have been able to capitalize upon fewer competitors in the field. As collectors are finding more acquisition opportunities, it is more imperative than ever that collectors demonstrate prudence in their purchases. Erin L. Thompson’s Possession: The Curious History of Private Collectors from Antiquity to the Present, published on May 24, 2016, analyzes private art collectors’ developing psyche and motivations through time in an attempt to combat the looting and trafficking of antiquities. While Thompson is not the first scholar to address these ongoing issues, her approach is fresh. Lorenzo de’ Medici, scion of an immensely powerful Italian family in the 15th century, Queen Christina of Sweden (1626-89), Thomas Howard, the Earl of Arundel in the end of the 16th century and Thomas Herbert, the eighth Earl of Pembroke in the early 18th century, both British, and early 20th century American industrialist J. Paul Getty are just some of the art collectors, all of whom possessed important art collections in their respective times, that Thompson introduces to readers throughout the course of the book. Utilizing historical anecdotes and provocative caricatures, Thompson constructs a new framework through which her non-exclusive audience can analyze and begin to understand illicit art dealings, their ancient underpinnings, and their contemporary implications viewed through the lens of the art collector.

Thompson begins her book by providing working definitions of such basics as “collectors” and “antiquities,” ensuring that the book is accessible to a wide audience. She also states her objective clearly: to investigate “the motives of antiquities collectors” in order to “help stop the ongoing looting and destruction of archaeological sites that currently supplies the market for collectible antiquities.” 2. Clear in the author’s aim and equipped with relevant terms, the reader is well-prepared to delve into Thompson’s exploration of the private collector’s internal motives. In the first two chapters, The Powers and Perils of the Antique: The Birth of Collecting and Collecting Identities, Thompson discusses how the objects one chooses to collect come to represent one’s identity. Collectors, therefore, are simultaneously constructing vast collections and personas. Thompson uses case studies, such as King Attalus I, who inherited Pergamon in 241 BCE and acquired Greek antiquities in order to ensure the kingdom’s “place in history,” to illustrate these points. Her use of case studies is an asset to her critique of private collecting because the case studies provide concrete examples of the effects collectors can have on the ways future generations understand past cultures. In addition to making the issues raised in Possession more tangible, these case studies and historical anecdotes establish multiple narratives, making Possession an engaging read, even for those already well-versed in art and artifact history.

Thompson then launches into a discussion of two issues that continue to plague the art market and private collections: restoration and forgery. In Chapter Three, entitled “By Means of a Little Castration”: Restoration and Manipulation, Thompson seamlessly progresses from the evolution of art restoration (superficial to invasive) into her analysis of art forgeries. Thompson describes Henry Blundell (1724-1810), an English collector who castrated a statue of Hermaphrodite, to illustrate just how “blurred was the line between restoration and forgery.” 49. As Blundell was having his statue restored, he ordered art restorers to castrate the piece. Thompson posits that the physical castration of the piece, or its “moralistic manipulation,” transformed what would have been a restored art piece into a forgery. 45. “Forgeries reveal collectors’ desire and motivation even more clearly than restoration,” she claims, and “[a] restoration must begin from some actual and perhaps unwieldy fragment of the past. A forgery can exactly mirror what the collector wishes were true about the past and his connection it.” 67. Thompson makes the point that although this “era of manipulative restoration” might be over, it is still hard to assess whether artifacts today look as they did in antiquity, challenging both the premium placed on authenticity and the definition itself. Perhaps the only thing that is indisputably authentic about a piece is the unique relationship between the piece itself and its collector. 

Thompson’s analysis of restored pieces versus forgeries is meant to provide insight into the collector’s infatuation with artifacts. What was, and continues to be so appealing about collecting is that it affords the collector an opportunity to craft his or her own narrative. Collectors are so motivated by their desire to defy the realities of the present that they not only seek to restore the past, but to reforge it in their own light. By comparing restoration to forgery, Thompson highlights the collector’s ever-increasing obsession with cultural artifacts because these artifacts allow collectors to refashion history, granting them authority over the past. Thompson explains that emphasizing the collector’s relationship with his or her artifacts may be a help to cultural heritage because “the collector’s love of the past must be understood and harnessed if we are to be able to have a past to love at all.” 182. In other words, Possession functions under the premise that in order to eradicate an issue, one must appreciate its complexity. The objects which scholars and other authorities on antiquities seek to preserve today are embedded in this collection history. In order to fully appreciate and save these objects, we must appreciate that history as well.

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The remaining chapters in the first half of Possession continue to focus mainly on the historical underpinnings of art collections. However, starting with Chapter Seven: The History of Looting and Smuggling—and What They Destroy, Thompson begins weaving in contemporary scandals and juxtaposing them against the historical accounts of infamous collectors she discussed in earlier chapters. Here, she reaches the crux of her argument: that informing modern collectors that their relationship with the contemporary illicit art market, similar to those of past collectors, perpetuates artifact looting and trafficking and thus cultural heritage devastation. Private collectors, even those pure in intention, are complicit in the destruction of the past they so desperately seek to preserve. Using the tools with which they were provided in the first half of Possession, readers can begin engaging in dialogue pertaining to antiquities trafficking and looting, more specifically how to most effectively preserve history through antiquities. Thompson uses the past to educate readers on the power private collectors wield over our understanding of history, urging her audience to recognize that society today stands at a critical juncture in the realm of cultural heritage given the new wave of destruction occurring all over the world, especially in the Middle East. By presenting issues pertaining to cultural heritage vis-a-vis art collecting, Thompson pushes readers to reassess how norms established in the private art market can negatively manifest in preservation efforts.

Chapter Eight: Collectors’ Failed Justifications for Looting and Smuggling introduces readers to some of the difficulties archeologists and other scholars have found in trying to persuade private collectors to stop collecting. Thompson laments society’s failure to acknowledge that collecting practices are deeply embedded in a social network. In order to communicate the ill-effects of collecting to the collector himself–in the hopes of shaping his or her behavior–one must understand that for the collector, “[l]ove for the members of the network is put into conflict with love for the past.” 139. Thompson’s proposed strategy refrains from alienating the collector because it recognizes that most collectors have “professed desires to be useful to scholars”. 173. Thompson acknowledges the collectors’ power and proposes treating them as allies as opposed to ostracizing them from the antiquities world. Despite the eccentricities of the figures Thompson describes, it is clear that like archaeologists and scholars, collectors also value the past. In Chapter 9: Collecting to Save the Past, Thompson suggests ways to mediate the differences between scholars and other authorities seeking to preserve antiquities. Perhaps one of the more provocative suggestions is rethinking attitudes toward touch. 179. In other words, Thompson points to the fact that many private collectors relish the intimate relationship that touch fosters between them and their objects, suggesting that individual collectors may be more inclined to stop collecting if public institutions allowed patrons to physically handle objects.

Possession is a well-crafted piece of writing in which the author, who earned her art history Ph.D. from Columbia University and her J.D. from Columbia Law School, takes her readers on a historical journey through the evolution of private art and artifact collecting. Although the balance between her own analysis and the carefully selected accounts of “history’s most infamous collectors” may seem to favor the latter, each anecdote is highly entertaining and provides the reader with a strong foundation for her later analyses. Thompson’s writing is elegant and provides the reader with a breadth of history and a valuable survey of the private art market. More importantly, Thompson demonstrates how the atrocities being committed against antiquities and cultural heritage sites today are rooted in history because “[w]e have not yet outgrown our beliefs in the power of antiquities, and the efficacy of destroying them to control these powers,” citing the demolition of the Buddha in the Bamiyan Valley of Afghanistan. 22. Thompson immerses her readers in the world of antiquities, one that knows no temporal boundaries, and by the end of Possession, readers cannot help but to develop a stake in contemporary art market debates.


Erin L. Thompson, Possession: The Curious History of Private Collectors from Antiquity to the Present (2016).

About the Author: Nina Mesfin is a Summer 2016 legal intern at Center for Art Law. She is a rising junior at Yale University majoring in Ethnicity, Race and Migration and concentrating in Art, Literature and Narratives of Race and Ethnicity. Nina is also a scholar in the Yale Multidisciplinary Academic Program in Human Rights.

Disclaimer: Reading this book or its review is no substitute for getting your legal questions answered by a trained attorney.

Book Review: Elizabeth T. Russell’s “Arts Law Conversations”

From the editors: Case reviews, event reviews and now book reviews. Center for Art Law frequently receives notices of upcoming publications and accepts books for review. In addition to the list of Publications, we are happy to offer comments about some of the recently published materials on the subject of law and visual arts.

Arts Law Conversations

By Melissa (YoungJae) Koo*

Elizabeth T. Russell’s Arts Law Conversation: A Surprisingly Readable Guide for Arts Entrepreneurs (Ruly Press, 2014) (the “2014 Guide”) is a must-read for young arts professionals and students who call themselves artists or creators across all forms. As stated by the author in the Preface, the 2014 edition is a revision of the award-winning 2005 Art Law Conversations: A Surprisingly Readable Guide for Visual Artists. Note from the previous book’s title that while the 2005 version focused on “Art” and “Visual Artists,” the new book included “Arts” and “Arts Entrepreneurs” in response to those creative entrepreneurs who felt that the previous version did not cover non-visual artists’ legal issues.

From a soon-to-be-graduating law student’s perspective, the book is an excellent legal resource for people in the creative communities. The book should not be taken as legal advice, however, as it is “intended to provide accurate information regarding the subject matter,” reminded by the author on the first page of the book. What is most remarkable about this book is its wealth of legal information broken down in everyday language—anyone who is not familiar with legalese could enjoy reading it. As an added bonus, this book is humorous and witty, making it a truly delightful read. This reviewer could not help but wish for other  casebooks used in law school to have been as entertaining and as informative.

The 2014 Guide consists of fifty-two “Arts Law Conversations,” divided into four sections: I. Navigating the Legal System, II. Intellectual Property, III. Contracts, and IV. Business Issues You Might Have Overlooked. Each conversation explores a topic or a legal issue that art creators could face in a script-like hypothetical conversation form, bullet points, Q&A form, or a mixture of them. First and foremost, the book opens with a conversation called “First Thing First: The United States Constitution.” In bullet points, the author narrates the background and content of the Constitution in plain English, reminding readers of the foundation of the laws in the country. The second conversation introduces readers to the concept of jurisdictions and venues, possibly the first thing new law students learn in civil procedure class, through a hypothetical conversation between an artist in conflict with a gallery and her lawyer friend.

As the first two conversations of the book give readers a glimpse of the entire book, the author endeavors to engage readers to follow and clearly understand complexities of laws or concepts that could even be challenging to law students. Throughout the book, names of important concepts are bolded and main points are separately headlined on the side of pages, aiding readers’ understanding and refreshing what they have read. Some conversations also have a practical section called “YOU TRY,” encouraging readers to engage with the material, for example, by looking up a landmark case or other important facts not discussed in conversations. Although I wished that the section had an answer key somewhere in the book, the practical exercises allow readers to interact with the legal topic. The book also provides information on how to conduct legal research for people who are not in the legal field, making it genuinely artist-friendly. In addition to the appendix section of indexes, table of cases, and Bill of Rights, the book has an extensive glossary section where it lists definitions of concepts discussed in the book, which would be helpful for readers.

The book discusses not only relevant intellectual property laws for creative people, but it also lays out important tips about contracts. For example, the author explains commissioning agreements and goes over details about fine art consignment agreements, referring to UCC and various state statutes that artists should be aware of. Arts entrepreneurs are also reminded of other important business issues that could intertwine with legal matters such as organizing business, taxation, and collection. As if the author could read the minds of creative entrepreneurs, she comprehensively covers a variety of topics that has anything to do with law, which could be daunting to non-legal professionals. Creative people who want to protect their hard work or want to start their own business using their creative skills could truly benefit from this brilliant book. For law students or lawyers, this book is a great review of trademark, copyright, contracts, and corporations law.

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

Disclaimer: Reading this book or its review is no substitute for getting your legal questions answered by a trained attorney.