WWYH: “Eyes on the NYC Department of Cultural Affairs” and Changing Policies

By Heather DeSerio*

On February 28, 2017, the New York State Bar Entertainment, Arts and Sports Law’s Fine Art’s Committee (EASL) hosted a brown bag lunch with Kristin Sakoda, Deputy Commissioner and General Counsel of the New York City (NYC or the “City”) Department of Cultural Affairs (DCLA or Department). Sakoda is a veteran at the DCLA and runs an all-female department of three attorneys. She presented to a room full of lawyers working in the arts about the DCLA’s mission the types of legal issues involved in the agency’s work, and the DCLA’s involvement in shaping the cultural policy of the City. Attendees of the event also learned about how the City administers and manages public art initiatives from the perspective of a lawyer, and the policies that shape the City’s arts-related initiatives.

Background

The creation of the Department of Cultural Affairs has an interesting story about how it became the DCLA that exists today. In 1869, a group of citizens proposed that NYC should build a museum for natural history, which led to the construction of the American Museum of Natural History. Afterwards, a number of museums began construction around the city. Next, followed the formation of an 11-member panel Art Commission in 1898, that oversaw the proposal and installation of permanent works of art, architecture, and landscape architecture on NYC owned property. Around 1934, then-mayor of NYC Fiorello La Guardia, appointed a Municipal Art Committee to advise the City on ways to stimulate New York’s cultural life during the hardships of the Great Depression. The Committee used funds from the Works Progress Administration, the emergency Relief Bureau, and other foundations. It wasn’t until 1968 that the DCLA was created within NYC’s Parks Department. In 1976, under the direction of Mayor Abraham D. Beame, the DCLA became its own department that existed separately from the Department of Parks and Recreation with its own commissioner. This was done so that the needs of the growing DCLA could be met and the Parks Department could better focus on providing for the Parks and Recreation initiatives.  

About the DCLA

The DCLA serves an important function in a city known for being one of the biggest cultural centers in the world. The annual budget on the Mayor’s Office website indicates that the DCLA is the nation’s largest municipal funder of the arts in the United States. During their 2017 fiscal year, their expense budget was $84.81 billion and a capital budget of $14.0 billion through 2018. (For more information about different breakdowns and allocations of funding for New York City see the annual budget by clicking here.)

The Department plays a pivotal role in encouraging and supporting public funding of art, artist residencies, and provides many grants to artists and institutions throughout the metropolitan area. This support contributes to New York’s diverse and robust cultural scene.

The DCLA has three primary funding divisions that provide support for the arts community. First there is the the Program Services Unit, which administers funds to groups that provide cultural experiences for NYC’s residents and visitors. The second funding division is the Cultural Institutions Unit that provides operational support (in the form of unrestricted operating grants and the payment of all energy bills – heat, light and power) for 33 major cultural institutions occupying City-owned buildings or land, such as the Metropolitan Museum of Art. The third division is the Capital Projects Unit (CPU), which provides capital in the form of grants for the design, construction, and equipment for those institutions and other cultural groups in City-owned and non-City-owned facilities. The Capital Projects are funded from the NYC’s Capital budget.

Among their other projects, the DCLA administers New York City’s program Percent for Art, which makes art accessible to the public and visible throughout NYC by commissioning and acquiring art for display in public spaces. As the title of the program implies, 1 percent of the City’s capital is made available for the commission of or acquisition of a public piece of art. There are currently over 400 acquired works displayed around NYC. Click here to view a map of all the public artwork on display that was funded through the Percent for Art Program.  A couple familiar works include the Frederick Douglass Memorial, located in Central Park West and the Triumph of the Human Spirit monument in Foley Square (near the court houses downtown). On February 15, 2017, NYC’s Office of the Mayor released a statement that Mayor de Blasio recently signed off on an increase to the Percent for Art program in the amount of 1% of the first $50 million as indicated in the bill, Intro. 1296-A.

Another key program administered by the DCLA is Materials for the Arts (MFTA). It was  created in 1978. MFTA provides nonprofit and educational organizations with free supplies to support and grow art programs citywide. The program is headquartered in a large warehouse owned by DCLA in Long Island City, New York. MFTA collects reusable materials from a host of donors, and distributes them free of charge to qualifying non-profit arts organizations, City agencies, public schools, and social, health and community service organizations that have arts programs in New York City. Individual artists qualify only if they are financially sponsored by a non-profit organization. Once an entity qualifies, they can request a shopping appointment for materials at the MFTA warehouse or can obtain items through their online listing database. The MFTA also provides training for teachers on how to creatively reuse the donated materials and integrate them into art projects. The MFTA has distributed free supplies to more than 1,900 member organizations and public schools and collected more than 1.2 million pounds of high quality reusable goods valued at $5.8 million from over 1,685 donors, according to the DCLA’s website.

The Department has many new initiatives that focus on increasing support for art institutions and artists. For instance, one of these new initiatives involves integrating art into city services involves placing individual artist to partner with DCAS in the Public Artists in Residence (PAIR) program. There is also the IDNYC Cultural Partnerships where the City offers NYC residents a free ID card that has the benefit of providing free one year membership to venues throughout the five boroughs such as the Museum of Modern Art, the New York City Ballet, the Bronx Zoo, and many more. These programs provide the public with increased  access to art programs to foster art education and more opportunities for residents to become members of cultural institutions to gain free access to museums, zoos, aquariums, and much more.  

DCLA’s Legal Counsel

The DCLA’s legal department provides guidance and support for most of the programs that the DCLA offers. More cultural institutions, museums, government, for profit and nonprofit should take note of the number of attorneys working for the DCLA. There are at least three attorneys that work together to provide support for all of DCLA’s initiatives in conjunction with the NYC Law Department. DCLA’s General Counsel handles a wide variety of issues for the City such as employment law, contracts, artist rights, leases, licensing, and legislative drafting.

The legal department at the DCLA also focuses on the City’s interest in artist rights under the 1990 Visual Artists Rights Act (VARA), 17 U.S.C. § 106A. This provision is relevant when the DCLA commissions or agrees to purchase a work of art to be displayed publicly. Artists who are commissioned by the DCLA or who sell their artwork to the City should be aware of their “VARA rights.” This is because the artist’s moral rights in the artwork are impacted when the agreement is a work for hire agreement or the City includes provisions that indicate that the City has right to control the work or remove it for safety reasons. See, this previous article VARA, Back to the Rescue of Public Art in NYC written by Irina Tarsis of the Center for Art Law, for more information about VARA rights and provide an example of issues that an artist can face with public art agreements.

The DCLA attorneys also work with city council and provide guidance in drafting legislation for the Percent for Art Legislation program by making policy decisions for the department. The lawyers at the DCLA also carefully watch issues at the national level because decisions at the federal level can impact their Department. This is especially true as the new administration is taking office and making significant changes.

Federal Funding and the DCLA

Funding for exhibits is not the only problem that cultural institutions will face. On March 16, 2017, the United State’s Office of Management and Budget, released the proposed Budget for 2018 making it clear that the current administration wants to eliminate funding for the National Endowment for the Arts (“NEA”). The state and local Department of Cultural Affairs across the country face an important question about how they will be impacted by the proposed budget cuts to the NEA. Sakoda pointed to the fact that the federal budget trickles down to the state and then to the city. If the funding received by the State is reduced by the Federal Government it will in turn have a dramatic effect on the amount of available funds that the City receives from the State. Accordingly, the reduced budget the City will receive from the State will be reflected in the City’s reduced funding for grants to artists and cultural institutions. This will result in a decline in funding for exhibitions, art development, art organizations, and other art initiatives. There will also be a reduction in the acquisition of public art, and cultural institutions will be impacted significantly at the local level if the federal budget is reduced.

One of the most concerning issues with the federal cutbacks for the NEA is the federal insurance program that the NEA provides for exhibitions. There is a common requirement in loan agreements that museums must take out insurance for artwork displayed in an exhibit. Insurance is commonly provided by the NEA’s federal insurance program. This federal insurance program plays a huge role in providing insurance for artwork and without it many exhibits would never happen in the United States because major museums across the country would be unable to get insurance on their own for the amount required to put on large exhibits. The New York Observer’s article The Masterpiece Trade: Meet the U.S. Agency That Makes Museum Blockbusters Possible noted the role the federal insurance program plays in bringing major exhibits to museums by pointing out that the Museum of Modern Art displayed a statement that indicating that the recent “‘Henri Matisse: The Cut-Outs’ exhibit from October 12, 2014–February 10, 2015, was ‘supported by an indemnity from the Federal Council on the Arts and the Humanities.’”

For more information about the role that the NEA plays in the arts in the United States please read the article, The Legislative History of NEA and NEH, written by Emily Lanza.

Conclusion

Not only with the programs the DCLA manages trickle down to artists, institutions, and organizations, even public schools will feel the effects of this blunder because they would not receive materials from the Material for Arts Program. Artists will feel the shift in the federal government’s agenda in a dramatic way and be left with little financial assistance to spur creativity and care for artwork outside of the patronage system. It will have a stifling effect on creativity, and a failure to fund the NEA will reduce the number of important exhibitions, development of important non-profit organizations, leasing and acquisition of equipment, and reusable materials for public schools that help provide the public with motivation to develop and come up with new works to be displayed and interacted with.

Without the support and expertise of the DCLA, there is a big question that plagues the future of many publicly funded organizations, institutions, and art projects. The programs that the DCLA department funds are all susceptible to be reduced in proportion to the amount of funding received from the federal government. The policies and legislative initiatives could be altered as well. At this time, there is concern about whether the proposed budget or reduction in NEA funding will be approved by Congress. There are also discussions regarding an approved budget cut’s impact among members of the legal community that work within the creative organizations and individuals.

Helpful Sources

*About the Author: Heather DeSerio (NYLS, JD Class 2017) is a Spring 2017 Legal Intern with the Center for Art Law. In her studies, she is concentrating in Intellectual Property Law. Prior to law school, she worked as a fine artist and received a Bachelor of Fine Arts in Painting from Ringling College of Art and Design. She can be reached at heather.deserio@law.nyls.edu.

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

WYWH: You’ve Been Served – “Gerhard Richter Painting” and German Cultural Heritage Protection Law

By Elizabeth Weber, Esq.*

Screen shot 2015-04-17 at 2.41.44 PMOn February 3, 2016, the “You’ve Been Served” dinner and a movie event was hosted by the Brooklyn Law School Art Law Association. Attendees included attorneys, artists, art dealers, and students. The film screened, Gerhard Richter Painting, is a documentary that provides a glimpse, deliberately and slowly, into the life and artistic processes of visionary German artist Gerhard Richter. In the film, director Corina Belz highlights Richter’s creative process and allows viewers to watch Richter work on art in real-time. Interspersed in the film are clips from Richter’s youth, in which he discusses his views on art and life, which may or may not have changed for the artist over the course of his long and prolific life. The film attempts to provide viewers an intimate view of Richter’s past and his present: his escape from Eastern Germany at the age of 28, his trove of family photos that have an ambivalent effect on the artist, who wonders, “Who is this woman?” as he points to an image of his mother and wonders “Should I throw all of these away?” when trying to organize the photo trove in chronological order. In the film, Richter observed how American audiences tend to be more direct in commenting on his work, with one observer calling his gray series the English term for “scheisse.”

Following the screening of the  film, a partner in Sullivan & Worcester’s Litigation Department in Boston, Nicholas O’Donnell, led a discussion about German cultural heritage law. Mr. O’Donnell, who is the editor of the firm’s Art Law Report blog and an attorney working on a number of art law matters involving Germany – including the Restitution claim for the Guelph Treasure – discussed the hotly contested 2015-2016 German Cultural Heritage Protection Law. The first draft of this legislation proposed that all objects of national importance older than 50 years and valued at €150,000 or more must be granted an export license by the German government to leave German soil. A subsequent draft revision amended the value threshold, raising it from €150,000 to €300,000 and increasing the object’s age from 50 to 70 years. Additionally, the revision states that works of living artists may qualify as objects of national importance only with the artist’s permission. Having written about the proposed revisions already, O’Donnell described the law as archaic in a time when the art market is expanding beyond geographical national borders and becoming part of the larger global economy.

The legislation sparked outrage throughout the art world. Some artists, like Richter, and other art market experts condemned the act, with some experts portending the destruction of the German art market should the act come to pass. Mr. O’Donnell noted that other artists, including Georg Baselitz, went so far as to withdraw loaned works from German museums in protest of the law.

It was noted that other EU countries have export limitations on cultural valuables, including France and Italy, among others, and that Germany may be using these countries’ laws and overarching EU law as justification for its Cultural Heritage Protection Law. Indeed, the European Economic Community, one of the three founding pillars of the European Union, issued a regulation in 1993 that set uniform export controls for EU member countries. This regulation, titled “On the Export of Cultural Goods,” stated that “[t]he export of cultural goods outside the customs territory of the Community shall be subject to the presentation of an export license.” Accordingly, Germany’s Cultural Heritage Protection Law narrowed the geographic scope of the EU regulation by decreasing the acceptable export zone from the entire EU to Germany only.

A press release issued by the German Press and Information Office of the Federal Government acknowledged the EEC regulation, stating that “[s]ince 1993, EU law has required permits to export relevant cultural property outside the EU, for example to major art markets in Switzerland and the U.S.” The press release further indicates that “the German law sets more generous terms” than the aforementioned EU law.

Additionally, German authorities have characterized the law as an attempt to keep illegally-imported artifacts, especially those sold by ISIS to finance terrorist regimes, from being imported into and subsequently purchased and sold on German soil. Professor Monika Grütters, Germany’s Minister of State for Culture, stated that “[i]n view of the barbaric destruction of cultural heritage in the Middle East and many other areas of crisis and civil war, this move was long overdue, demanded by ethics and morals and by our identity as a nation of culture.”

During the Q&A session with Mr. O’Donnell, the discussion included possible loopholes within the  law, what permits for below market pricing and selling goods on the illicit black market. In addition, O’Donnell commented on the ramifications of the law vis-a-vis restitution claims that are currently pending against German institutions and individuals. Namely, would the law disallow the export of objects that qualify as “national treasure” after a restitution claimant succeeds in proving that property was looted from the family during the Nazi-era? It’s possible – if the draft German Cultural Heritage Protection Law passes this year, all works produced before 1946 (70 years before 2016) would be categorized as artifacts possibly restricted from export .

Cultural heritage issues are not exclusive to antiquities and remain a pervasive issue for contemporary artists. Different interests come into play between the governments seeking to protect and preserve their cultural identity and those who disseminate art to the international community. Although it is vitally important to protect cultural objects, governments must weigh the benefits derived from restricting the export of cultural patrimony against the curtailment of artists’ and art dealers’ rights. Namely, governments should take into account the far-reaching effects of cultural patrimony laws before restricting the flow of goods into the market to avoid the negative backlash that naturally follows such regulations.


Center for Art Law would like to thank Tess Bonoli and all the members of the Brooklyn Law School Art Law Association for their generosity and enthusiasm for the program. Many thanks to all who attended this event, with special thanks to Nicholas O’Donnell for his illuminating discussion of German cultural heritage issues.

About the Author: Elizabeth Weber is a lawyer living in Brooklyn, NY.  She graduated from the University of Florida Levin College of Law, where she received her certificate in Intellectual Property Law and served as an active member of the Art Law Society and the Journal of Technology Law and Policy. She is the Spring 2016 Postgraduate Fellow with Center for Art Law.

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Disclaimer: Reading “Wish You Were Here” a/k/a “WYWH” articles is no substitute to attending art law events, trials and programs. This and all http://www.itsartlaw.com articles are for educational purposes only. Readers should not construe or rely on any comment or statement in this article as legal advice. In case of legal questions, readers should seek a consultation with an attorney.