Believe it or not, there is so much more happening in the art law world than we can do justice in our postings. This page is dedicated to the stories that deserve your attention but may go un-featured.
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April. 2017 — Photographer and Warhol Foundation in Dispute Over Prince Screen Print
The Warhol Foundation has sued photographer Lynn Goldsmith, who claims that a 1984 screen print of Prince by Andy Warhol infringes on the copyright of her 1981 photograph of the singer. Goldsmith has stated she intends to bring counterclaims over the copyright. It seems that even posthumously, Prince just can’t avoid controversy. (TM)
April. 2017 — Multiple Flavors of Street Art Copyright
This month in street art law news: a court settlement has foiled the attempts of a developer building over a colorful 9-story mural, citing the Visual Artists Rights Act of 1990. Meanwhile, McDonald’s is under fire for including unauthorized images of Bushwick street artists leading to complications including the obvious copyright infringement, to potential claims of false endorsement, damages to work and reputation, and improper profits garnered from unauthorized use. One would think McDonald’s should be a faster learner, following the fallout from their use of Dash Snow’s work in their restaurant decor. (TM)
April. 2017 — Another Settlement in String of Knoedler Gallery Lawsuits: Casino mogul and former Ultimate Fighting Championship co-owner Frank Fertittia III has settled out of a suit against curator Oliver Wick, over the sale of a forged Rothko painting via Knoedler. (TM)
April. 2017 — The Act of Drinking Beer with Friends is the Highest Form of Art
In Orange County, California, Assemblyman Matthew Harper has drafted a bill to allow art gallery owners throughout California to serve beer and wine without a license from the state Department of Alcoholic Beverage Council. The proposal comes after a local fiasco last year in which undercover Laguna Beach officers cited five galleries for serving alcohol without a license during a First Thursdays Art Walk. Caveat bibitor! (TM)
April. 2017 — From Russia with Morality a Bill Seeking to Police Exhibition Venues
A proposed Russian bill seeks to enact fines against theaters and museums who fail to “protect visitor’s feelings,” an attempt to protect high moral values such as “patriotism, religious beliefs, national and aesthetic values.” Some commentators have contextualized the bill as an extension of the existing law protecting the feelings of religious believers. Serving alcohol w/out a license or consuming the same in museum seems not be included in the proposal. (TM)
April. 2017 — Out of Australia
The Indian High Commission has advised the National Gallery of Australia that four of its antique statues are subject to be investigated by the Idol Wing of the Tamil Nuda police. Two of the pieces were purchased from currently imprisoned dealer Subhash Kapoor, accused of smuggling more than $100 million of stolen artwork from India. Elsewhere, two Australian men have been acquitted of selling fraudulent Brett Whiteley paintings, which they had been previously found guilty of faking. (TM)
April. 2017 — The Met Considering Admission Fee for non-New Yorkers
Amidst its public multi-million dollar budget deficit and the resignation of its Executive Director, the Metropolitan Museum of Modern Art is reportedly toying with the idea of charging mandatory admission for non-New York City residents. Mayor Bill DeBlasio has endorsed the idea, calling it “fair,” although many questions remain about how this might be accomplished and what the fee would be. (TM)
April. 2017 — This Month Primer on Restitution Law:
A – German authorities are loosing the fighting in United States federal court for the possession of the Guelph Treasure, a collection of medieval German church art. Heirs of the German Jewish art dealers who sold the collection to the Dresdner Bank in 1935 are suing, claiming the sale was forced and invalid.
B – An agreement between the University of Oklahoma and the Parisian heir of the painting “Shepherdess Bringing in Sheep” has been reached. The painting will be displayed in Paris for five years, before rotating between Paris and the university in three year intervals.
C – The owner of a Nazi-looted 17th-century Dutch portrait pulled the work from auction just hours before, following anonymous threats and public outcry. The situation has lead to increased pressure for Austria to revise its restitution law, allowing the government to intervene in cases of looted art going on auction. (TM)
April. 2017 — Vivian Maier’s Estate now in Dispute with Another Collector Over Copyright and Trademark Infringement
This week, Vivian Maier’s estate filed a complaint against Jeffrey Goldstein, a Chicago art collector who sold his collection of approximately 17,500 Maier negatives to a gallery in Toronto in 2014. The estate only owns Maier’s copyrights in the photographs. Goldstein is accused of infringing on the estate’s copyrights and misleading the public about the legitimacy of prints by having registered the name “Vivian Maier Prints,” and operating the website vivianmaierprints.com without permission from the estate. The estate claims that these activities harmed the estate’s rights in the works and caused a loss of profits. The website content has now been taken down http://vivianmaierprints.com. (HD)
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Mar. 2017 — How “Banal” Jeff Koons Guilty of Plagiarism (in France)
French courts have ruled that Jeff Koons plagiarized the photography of French artist Jean-François Bauret in a 1988 sculpture called “Naked.” This is not the first time Koons, whose work often makes use of pop culture and mass-produced imagery, has lost a copyright infringement suit.
Mar. 2017 — Christie’s to Close London Salesroom and Scale Down in Amsterdam
Christie’s international auction house has announced it will close its secondary South Kensington salesroom and begin to scale back its business in Amsterdam. The closings come after a difficult year for art auction sales in 2016, which some observers have suggested indicates a cooling art market.
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Jan. 2017 — South Korean Minister of Culture Resigns Amid Blacklist Scandal
Korean official Cho Yoon Sun resigned last week, shortly after being arrested for allegedly compiling a blacklist of nearly 10,000 artists critical of former President Park Geun-Hye. Also arrested was Kim Ki-Choon, a former chief staffer for Park’s father, president Park Chung-hee. The scandal erupts amidst a series of arrests of high-ranking officials and President Park Geun-Hye’s impeachment last December.
Jan. 2017 — Public Arts in the Trump Era
Just ahead of the inauguration of President Trump, reports circulated about his administration’s intent to eliminate the National Endowment for the Arts and the National Endowment for the Humanities in his budget. The reports have lead to a flurry of responses, with many critics noting that both offices make up a minuscule percentage of the annual budget and that they fund a diverse set of vital programs. Performance artist Karen Finley observed that Trump’s financial and cultural successes are owed to America’s history of arts and culture. This not the first time the National Endowment for the Arts has come under scrutiny, with detractors alleging that it funds obscene or inappropriate art or that it is an unwieldily and ineffective bureaucracy.
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Fall 2016 — Money, Elections and Taxes Make the Head Spin
NYTimes reports that Eric T. Schneiderman and his office are looking into presumptive presidential candidate Donald J. Trump’s nonprofit foundation. While Trump’s tax returns remain locked up, his nonprofit, the Donald J Trump Foundation INC, est. 1988 and is in operation out of Woodbury, New York has some answering to do. The Foundation was originally founded to give away proceeds from the book Trump: The Art of the Deal (1987). Decades later Trump remains the Foundation’s president.
The New York Attorney General’s Charities Bureau, which oversees regulating nonprofits in the state, has asked about a $25,000 donation the Trump Foundation made in September 2013 to “And Justice for All” — a political group connected to Florida Attorney General Pam Bondi. Other questions raised by The WashingtonPost, more directly related to #artlaw and #noprofitgovernance have to do with the Trump Foundation supposedly paying $20,000 for a six-foot-tall portrait of Trump, by Michael Israel. More recently four separate charities -the Giving Back Fund, Children’s Medical Center in Omaha, the Latino Commission on AIDS, and Friends of Veterans- reportedly claimed they never received donations that the foundation said it gifted them. (MP)
- Steve Eder, “New York Attorney General to Investigate Donald Trump’s Nonprofit,” The New York Times (Sep.13, 2016);
- David A. Fahrenthold, “Trump bought a 6-foot-tall portrait of himself with charity money. We may have found it,” The Washington Post (Sep.14, 2016);
David A. Fahrenthold, “Three of the mysteries in the files of the Donald J. Trump Foundation have been solved. Here’s what we know,” The Washington Post (Sep.13, 2016).
Summer/Fall 2016 — HEAR Act
A bipartisan groups of senators, Sens.Ted Cruz (R., Texas), Chuck Schumer (D., N.Y.), John Cornyn (R., Texas), and Richard Blumenthal (D., Conn.) are currently spearheading a new piece of legislation that will facilitate the restitution of Nazi looted artworks to Holocaust survivors in an expedited manner. The bill is titled the Holocaust Expropriated Art Recovery Act (HEAR Act) and will allow “civil claims or causes of action to recover artwork or other cultural property unlawfully lost because of persecution during the Nazi era, or for damages for the taking or detaining of such artwork or cultural property.” Holocaust Expropriated Art Recovery Act, S. 2763, 114th Cong. (2016). The Hear Act estimates that the Nazis confiscated as many as 650,000 works of art as a part of their genocidal campaign and works to build on existing efforts on the part of the U.S. government to review and rule upon claims made by survivors.
According to one of the sponsors of the HEAR Act, Senator Cruz, this piece of legislation would also draw attention to current cultural crimes, particularly ISIS’s destruction of cultural sites and artifacts throughout the Middle East. Support for the bill extends beyond Congressional walls. On June 7th, actress Helen Mirren testified before the Senate in a judiciary subcommittee hearing on the HEAR Act. Having recently portrayed Maria Altmann, a jewish woman who successfully reclaimed five works by Gustav Klimt which were looted by the Nazis, in Women in Gold, Mirren has asserted her commitment to supporting this cause. In closing, Mirren both thanked and urged Congress to take action, explaining that Congress has the power, through its actions, to rejuvenate the lives of many people.
May 2016 — Can’t Hide from the Taxman
As reported by the New York Times New York State Attorney General Eric T. Schneiderman announced a $7 million settlement with real estate developer Aby Rosen for back taxes on $80 million worth of art. Rosen failed to pay taxes accruing since 2002 by claiming the works were purchased for resale when in actuality he kept them in his personal collection – New York allows the purchaser of art to avoid taxes if the purpose of the purchase is to resell the art. DH
May 2016 — Stop Taxing Death and Disability Act
Keegan Brennen was born in 1990 with an immune deficiency coupled with learning disabilities. Despite these health-related obstacles, Brennen won his high school’s Excellence in Visual Arts award and went on to attend the New Hampshire Institute for Art. After graduating cum laude in 2012 Brennen’s health issues caught up to him. Less than a year after graduating college, and accumulating $78,000 in student loans, he died due to a brain aneurysm. Brennen’s parents applied for loan forgiveness – death is one reason for federal loan forgiveness. Unfortunately this tragic story didn’t end there.
The discharged student loan debt is taxable income and thus Brennen’s parents had to pay both Federal and State income tax, $27,000 and $6,300 respectively. In September 2014 Angus King, Junior United States Senator from Brennen’s home state of Maine, introduced a bill “Stop Taxing Death and Disability Act” that would no longer require the recipients of loan forgiveness, due to death or permanent disability, to pay taxes on the forgiven loan.
More about Brennen’s case can be found at the Portland Press Herald. Senator King’s bill can be found in its entirety here. Additionally Senator King wrote an opinion piece about the bill for the Portland Press Herald in 2014. DH
Apr. 2016 — Ace is Low
On April 6, 2016 Sam Leslie, a bankruptcy trustee, took over control of the day-to-day operations of the Los Angeles based Ace Gallery when Douglas Chrismas, the founder of the Gallery, failed to comply with a court order to pay $17.5 million to settle debts. After taking over Leslie began sorting out ownership of artworks so the gallery could satisfy debts by selling what it owned. According to the New York Times one of the issues Leslie had to deal with was the fact that a computerized inventory does not seem to exist for the Ace Gallery collection which is estimated to contain around 2,750 pieces.
About a month after taking over the day-to-day operations of Ace Gallery Leslie has kicked Chrismas out. The catalyst for this was the discovery that Chrismas diverted around $17 million to Ace New York and the Ace Museum – according to The Art Newspaper Ace New York closed “over a decade ago” and Ace Museum has a “spotty exhibition history.” To make matters worse, The Art Newspaper is also reporting that Leslie said Chrismas directed his assistants to place 60 artworks from Ace Gallery into private storage. Because Chrismas has declared bankruptcy so many times even if these works are personal property he might still be in trouble.
- Jori Finkel, Millions of dollars and dozens of works diverted in Ace Gallery bankruptcy case, accountant finds, The Art Newspaper (May 23, 2016, 8:50 am), http://theartnewspaper.com/news/ace-gallery-bankruptcy-report/?utm_source=daily_may23_2016&utm_medium=email&utm_campaign=email_daily.
- Jori Finkel, Artists Fight to Get Works Back From Ace Gallery, N.Y. Times, April 21, 2016, at C1.
Apr. 2016 — Panama Papers & Ganz Sale
The Panama Papers — the leak of 11.5 million files from Mossack Fonseca, a Panamanian law firm — revealed that there may have been something nefarious behind the infamous Ganz sale at Christie’s. The Ganz collection, which was auctioned for $206.5 million at Christie’s in 1997, was seen as a catalyst for today’s art market and owed its success in part to being auctioned as a single collection with each pieces most recent provenance listing the famed art collector Victor Ganz. The collection was advertised as “fresh” meaning “no other collector or dealer had been offered these works.” Yet, the Panama Papers reveal that the ownership may have passed briefly to British billionaire Joe Lewis, who entered into a secretive agreement with Christie’s and acted as a third party guarantee, thereby ensuring the auction’s success and benefiting Lewis and the auction house. SE
Spring 2016 — Hidden Idol hits Asia Week
This spring New York Times reported about multiple law enforcement’s efforts to quash illegal sales of looted artworks offered for sale during the Asia Week New York. The efforts were a result of the Operation Hidden Idol, a nine year investigation into antiquities smuggling. The Manhattan district attorney’s office led by Cyrus R. Vance has collaborated with federal officials to orchestrate warranted raids and seizures to reobtain illegally smuggled antiquities from abroad. Many items have been returned to their home countries. In the past, prosecution of art dealer smugglers was rather rare, however Mr. Vance hopes to implement sterner policy and has stated, “If you don’t send the message, you don’t deter others…Antiquites raiding is not an acceptable business model.”
Mar. 2016 — Five Charged with Selling Non-Genuine Alaskan Native Artworks
On March 3, 2016, the U.S. Attorney’s Office in the District of Alaska charged five individuals with violating the Indian Arts and Crafts Act. Four business owners and an employee were accused of selling fraudulent native artworks at shops in Juneau, Ketchikan, and Skagway, Alaska. The whale and walrus bone carvings were misrepresented as artworks carved by Alaska Natives artists. Not only were these items produced by non-Native Alaskan artists, but one of the works at issue was allegedly manufactured in Cambodia. Assistant U.S. Attorney Jack Schmidt noted that “Congress adopted the [Indian Arts and Crafts Act] as a “truth-in-marketing law” and such misrepresentations and practices are unacceptable.
The maximum penalty for violating the Indian Arts and Crafts Act is one year in prison and a $100,000 fine.
Mar. 2016 — Lawyers’ Committee for Cultural Heritage Preservation Seventh Annual Conference
On March 25, 2016, the Lawyers’ Committee for Cultural Heritage Preservation (LCCHP) co-sponsored its Seventh Annual Conference with the Fordham Art Law Society. The conference, titled Looted Art and Cultural Property; Current Controversies, Future Resolutions was held at the Fordham University School of Law in New York, NY. The conference featured the following panels:
- The Parthenon/Elgin Marbles: New Perspectives on a Centuries-Old Dispute, moderated by Leila Amineddoleh;
- Recent Developments in Cultural Heritage Restitution Cases: Where Are We and Where Are We Going?, moderated by Elizabeth Varner;
- Conflict-Related Looting and Destruction of Cultural Property: Is Current Policy Working?, moderated by Channah Norman; and
- What is Digital Cultural Heritage and What Can It Do?, moderated by Thomas Kline.
More information about the event, including speaker names and short bios, may be found on the conference website.
Mar. 2016 — Blockchain – So Contemporary!
On March 8, 2016 the law firm Davis Wright Tremaine LLP hosted a panel about Blockchain and the arts. For those of you haven’t read David Honig’s article on digital art, blockchain is a decentralized ledger hosted on multiple servers. Blockchain has many different applications when it comes to the artistic world and the panelists discussed how it could impact the music and visual arts world.
While most of the panelists discussed the implications of blockchain to digital media Robert Norton of Verisart discussed how blockchain can be used in conjunction with physical art. This led to a question by a member of the audience, who happened to be a wine collector, about whether other technology was better suited to insure authentication in physical media since the blockchain ledger and the object are not integrated.
If you want to learn more about blockchain the event organizers host a blog, Creative Block (chain), where they report on news surrounding the blockchain and even have a primer to educated the uninitiated. DH
Mar. 2016 — Door to Door Performing Art or Fake Art Scam
Move over eBay, according to Malvern police in the United Kingdom, an Eastern European female has scamming people in the Pickersleigh area by knocking on doors, selling artwork (photocopies) between 10 and 15 Euros each. The Pickersleigh Safer Neighbourhood Team is advising people to remain on guard, specifically elderly or vulnerable individuals.
The crime fighters in the region are being vigilant. They want to find the predators preying on the vulnerable community members and achieve justice. The spokesperson urged, “If you have any doubt who is at your door, don’t answer it.” JP
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Feb. 2016 — Museum Asks Federal Court to Determine Rightful Owner of Loaned Work
On behalf of the Birmingham Museum of Art, the City of Birmingham, AL (the “City”) has asked the U.S. District Court for the Northern District of Alabama, Southern Division to determine the rightful owner of a loaned work of art. The Museum seeks to return “Shinnecock Hills” by William Merritt Chase to the work’s rightful owner – however, the Museum cannot do so until the court determines exactly who that party is out of the six alleged part-owners of the piece, who are also co-defendants in the action.
The work has been in possession of the Museum since August 2006 and is taking up valuable space in climate-controlled Museum storage. The complaint states that the museum has limited storage space and resources to store art and, further, that “[c]ontinued storage of the Painting is negatively impacting the ongoing operations of the Museum as the space in which the Painting currently is stored is required for other uses.” Accordingly, the City also seeks $11,000 from the defendants as compensation for storing the painting from August 2006-February 2016.
Case No. 2:16-cv-00333-SGC is currently pending. EKW
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Jan. 2016 — Gurlitt Provenance Research/Project “Provenienzrecherche Gurlitt”
The German Lost Art Foundation is taking over the provenance investigations of the Gurlitt Art Collection. The “Schwabinger Kunstfund” task force failed to investigate the entire collection in the period allotted, and there is much work still do to analyze the true origins and ownership of artworks in the Cornelius Gurlitt’s possession. More than three years after the discovery of the trove, ongoing “research efforts will focus on determining the provenance of works which have not yet been conclusively clarified. Of primary interest are works for which there is a suspicion that they went missing as a result of Nazi persecution or for which such claims have been made.”
The project team is headed by Dr. Andrea Baresel-Brand, and funded by the German Federal Government Commissioner for Culture and the Media. One day the research findings are expected to “be published in German and English following their evaluation by the review experts.”
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Oct. 2015 — Armenian Genocide Restitution
The J. Paul Getty Museum and the Western Prelacy of the Armenian Apostolic Church of America reached an agreement regarding the ownership of eight pages of a 13th-century illustrated manuscript that was taken from the Catholiosate of Cilicia during the Armenian Genocide, between 1915-1923. The agreement settles a $105 million lawsuit filed against the museum in 2010, whereby the Armenian Church is the rightful owner of the illuminations and the Museum a long-term steward of the loaned pages.
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Sept. 2015 — ICC and Cultural War Crimes
The International Criminal Court (ICC) to review charges against, Ahmad al-Faqi al-Mahdi for the destruction of cultural heritage in Mali, under the jurisdiction granted by the 2002 Rome Statute. This “represents an important step forward in the fight against impunity, not only in Mali but also in the broader Sahel and Sahara region of Africa, whose populations have in recent years been subjected to unspeakable crimes,” said Fatou Bensouda, Prosecutor of the International Criminal Court. In the same statement, Bensouda acknowledged the gravity of attacks against cultural heritage and the importance of standing up to this destruction. The next hearing for the case is scheduled for January 18, 2016.
Sept. 2015 — Migrating Benefits of Dismaland: lumber to France from UK, labor from France to UK
Famous street artist Banksy has announced that the various construction materials, “timber and fixtures” used in Dismaland, a pop-up exhibition that has been described as a twisted version of Disneyland, will be sent to the Calais “Jungle.” Dismaland was on display from August 21, 2015 until September 27, 2015 in Weston-super-Mare, Somerset England. The exhibition featuring 61 artists, including Banksy and Damien Hirst, attracted over 150,000 visitors. In addition to the approximately £450,000 ($682,000) made from the sale of £3 ($4.55) admission tickets required for everyone over the age of 5, the exhibit brought in an estimated £20 million ($30.3 million) to Weston-super-Mare in tourist funds. At least one of the exhibits at Dismaland was a social commentary about the current migrant crisis in Europe. Banksy’s decision to ship the construction materials from Dismaland to a series of refugee camps located near Calais, France is another poignant comment on the social disparity.
A version of the present day “jungle’ was initially established by the Red Cross in 1999 but it was disassembled by French Authorities. The latest iteration of the Jungle sprang about in 2009 and, according to a July 2015 Telegraph article, currently houses 3,000 refugees, most of whom are seeking entrance to and work opportunity in the United Kingdom. If not a prank, the materials from Dismaland may be used to build shelters for the refugees, who are mostly from the Middle East and East Africa. According to CNN, Banksy has not spoken to or requested permission from Calais officials to ship the construction materials to the Calais Jungle. DH
Sept. 2015 – Red Flag: Kapoor in Provenance
Following an 18-months review, the Toledo Museum of Art has decided finally to send four art objects (out of the dozens investigated) back to the Repubic of India. The objects identified as ripe for restitution include a stone stele of Varaha Rescuing the Earth, a bronze sculpture of Ganesha, a gold and enamel pandan box of Mughal origin and a watercolor depicting Rasikapriya from the Samdehi Ragini. These works of art were purchased from the infamous dealer Subhash Kapoor, between 2001 and 2010. The Museum decided to send these pieces back to the country of origin having determined that the provenance had been forged or could not be verified. The United States Department of Justice is currently conducting an investigation into whether Kapoor illegally imported and stole these pieces of art as well as others. Details. DH
Sept. 2015 – For profits for Nonprofits (with profits)
A French communications company, Agenda, organized this years annual Communicating the Museum Conference, held in Istanbul from September 9 to the 12. Subjects covered during the Conference included museum branding and curating on social media with keynotes about redefining museums for the twenty-first century and the mainstream acceptance of contemporary art. The Conference also played host to a number of excursions, for an added price, including private tours of the Hagia Sophia and the Istanbul Underground as well as a trip to Gallipoli and Troy. The conference was founded in 2000 and has been held in a different city and country each year. Past host cities include in Paris, Valencia, Turin, Rotterdam, Madrid, Venice, Malaga, Vienna, Düsseldorf, New York, Stockholm, and Sydney and Melbourne. DH
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Aug. 2015 — ISIS PATH OF DESTRUCTION CONTINUES IN PALMYRA
ISIS militants continue wanton destruction of alleged “anti-Islamic” artifacts and architecture in Palmyra, Syria, an ancient city and UNESCO World Heritage Site dating back to the second millennium BC. Satellite imagery from Boston University confirmed that militants destroyed three tower tombs of historic and religious significance—the Jamblique, Elhbel and Kithot tombs, erected in 83 CE, 103 CE, and 44 CE. The destruction comes on the heels of two recent attacks on the Temple of Baal Shamin and the 2,000 year old Temple of Bel, located just west of Palmyra. Prior to ISIS’ seizure of the ancient city in May, Syrian officials evacuated the museum and hundreds of objects to undisclosed locations for safekeeping. Syrian antiquities officials reinforced certain sites with concrete, but the use of heavy explosives has inevitably posed challenges for groups such as the Syrian Observatory for Human Rights. According to Maamoun Abdulkarim, Director of the Directorate General of Antiquities and Museums in Syria, “This is the beginning of the complete loss of Palmyra.” LK
Aug. 2015 — 25-years-old Surveillance Video
The FBI released an Isabella Stuart Gardner Museum surveillance video from 1990 in attempts to identify a suspect who may have been involved in the historical heist. The video shows a visitor being allowed into the museum during in the middle of the night by a security guard exactly 24 hours before the theft. IT
Aug. 2015 — UK SAINTS AND US DRAGONS
The US Fish and Wildlife Service denied immunity and permission to import a loan of ivory religious works from The British Museum for a temporary exhibition at the Museum of Russian Icons in Massachusetts. The exhibit entitled “Saints and Dragons: Icons from Byzantium to Russia” would have displayed artworks created sometime between the 9th and the 12th Centuries; therefore the Federal Ivory Trafficking Ban should not have undermined the loan of pieces that have never been seen in the US before. IT
Aug. 2015 — GERMAN PROTECTION OR EXPROPRIATION
German Minister of Culture defended the proposed Cultural Property Protection Act, an update to the Act to Prevent the Exodus of German Cultural Property (1955/2007). The proposed act would appoint a committee to reviews Germany-related sales of artworks or artifacts valued above 150,000 euro and older than 50 years old. The proposed law would try to curb the illegal sale of antiquities and keep “national treasures” in Germany. However some artists and dealers, including Gerhard Richter (b. 1932) who’s career spans six decades are objecting to the proposed law because it may create “an international sales embargo.” IT
Aug. 2015 — Restitution efforts: Who’s Next?
Sindiko Dokolo, a Gongolese art collector and businessman is seeking to return African art back to the African continent. As the New York Times reports, Dokolo is tailoring his quest to the works removed from African Museums during the colonial era. Later this year, the German Chancellor Angela Merkel will hand over a stolen Durga idol to the Indian Prime Minister Narendra Modi. IT
Aug. 2015 — SPECIFIC PERFORMANCE
Civil Court in Rotterdam found that an oral agreement for a commissioned work between a dealer and an artist was valid and subject to specific performance. An art collector Bert Kreuk, claims he commissioned an art work from an “early blue chip” artist, Donh Vo but instead of a large installation (of cardboard boxes), Vo sent him only one gilded Budweiser box. Having labeled Kreuk an “art flipper,” the artist plans to appeal the ruling; he is refusing to create anything for the collector. Judge Pauline Adriana Maria van Schouwenburg-Laan held that Vo had to complete the commission within one year, or be fined up to 350,000 euros, the amount Kreuk allegedly paid Vo’s gallery in the first place. The Decision can be found here. This and other international art law cases are listed in our Case Corner (below). IT
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Jun. 2015 — Hopi Tribe Restitution
Since 2012, the Hopi tribe has attempted to stop French auction houses from selling items that belong to the tribe. Recently, the Hopi Tribal Council partnered with the Holocaust Art Restitution Project, which generally focuses on Nazi looted artifacts, in a legal dispute against the Conseil des Ventes, the regulatory body that oversees French auctions. The Hopi tribe has requested sacred artifacts belonging to the tribe be taken off the market, but the auction house claims that the Hopi Tribe does not have legal standing to assert this demand. According to Hopi tradition, the items sold in France are owned by the entire community, and therefore cannot be owned by private collectors or institutions. Tribal state and federal law only allows for sacred objects to be passed within the tribe and sales in the market of the Hopi artifacts constitutes selling stolen property.The Hopi tribe has prohibited sales of communal objects since they were first in contact with non-Natives, but continue to struggle to reclaim their sacred artifacts. The most recent sale of the sacred objects claimed by the Hopi tribe to have taken place in France was June 10, 2015.
Jun. 2015 — Foreign Cultural Exchange Jurisdictional Immunity Clarification Act
The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act was reintroduced by Rep. Steve Chabot, R-OH, on February 11, 2015. It was passed in the House of Representatives on June 9, 2015. The original bill proposed in 2014 was designed to secure art loans and protect the loaners from litigation in American courts. The current bill, H.R. 889, seeks to ensure immunity to foreign governments that agree to display artifacts or other culturally significant items in the U.S. It intends to create the super immunity by categorizing exhibition or display agreements as non-commercial transactions, thereby establishing immunity to litigation. Under the proposed bill, the Executive Branch would continue to decide whether a work considered for an international loan into the United States has cultural significance, however the new bill explicitly excepts works seized by Nazis or their allies from attaining immunity. The amendment is meant to reassure foreign countries that works brought into U.S. museums will be returned, and lenders would not be subjected to personal jurisdiction in American courts (see for example the Malevich case). The proposed bill comes in the aftermath of the Russian Federation enforcing an exhibition loan boycott following the Chabad case, and the State Department discouraging the McMullen Museum at Boston College from applying for immunity for the Havana Museum, which is handling outstanding claims made by U.S. citizens for property seized in Cuba after Castro came to power. Meanwhile, the Association of Art Museum Directors has remained noticeably silent without any mention of the Clarification Bill in their recent commentaries about legislation that affects art museums.
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May 2015 — Cultural Property – Elgin Marbles
The government of Greece declared it would not bring the battle over the Elgin marbles to court. After the British Museum declined UNESCO’s offer to help with restitution mediation, and a team of human rights lawyers in London (including Amal Clooney) suggested bringing suit as the best chance for retrieving the priceless sculptures, the Greek cultural minister’s response to not pursue legal action comes as a surprise. Instead, Greece will continue to use diplomacy in hopes that one day the marbles in Britain will reunite with the ones in Greece.
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Apr. 2015 — Art$/Fund$
The disconnection between artists not being able to collect resale royalty in the United States and the limits imposed on the donation of art works by artists to the museums are at a stark contrast with the trend of purchasing art as an asset class. Recent discussions about Art as Investment are further supported by the proliferation of art funds and endorsement from renowned asset managers such as Laurence D. Fink. Little support is mustered for sharing financial windfalls with the artists.
Apr. 2015 — Cultural Property – Smuggling Ring
New York art dealer Subhash Kapoor was arrested back in 2011 for trafficking stolen antiques, and is now on trial in India, accused of operating a $150 million smuggling ring. For over 30 years Kapoor ran the New York based gallery Art of the Past, and is now accused of steeling thousands of ancient artifacts from religious institutions in India, which he then sold through a separate import/export business to numerous museums. His sister, girlfriend and gallery manager have also been indicted by the Manhattan District Attorney’s office. Recently the Peabody Essex Museum in Salem, Massachusetts, announced it will be turning over a work titled “Maharaja Serfoji II of Tanjavur and his son Shivaji II” in connection with the Department of Homeland Security’s ongoing investigation. It is unknown whether the museum will get its money back.
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Mar. 2015 — Cultural Property – Interpol
In response to the recent devastating attacks by ISIS on cultural heritage sites across Iraq, Interpol organized a three-day symposium in Lyon, France, to discuss the destruction of and illicit sale of stolen works. The organization is studying ways to protect locations and objects of historical value from such attacks moving forward, and has already developed a number of tools to assist both the police as well as public and private institutions, in the process of detecting and identifying stolen art.
Mar. 2015 — Cultural Property Under Attack by the Islamic State
ISIS has recently directed much of its ruinous activity towards cultural heritage targets in Iraq. The terrorist group is responsible for ransacking Mosul’s Central Library and burning about 100,000 books and manuscripts, in addition to destroying statues and other works with sledgehammers and power tools, before moving on to destroy ruins at the ancient city of Hatra. The destruction is said to extend to museums, libraries and universities across Mosul and other areas. Several governmental bodies and organizations have taken steps to address these cultural cleansing acts including the recent announcement by the US that efforts would be made to spare cultural heritage sites in the fight against ISIS, and the UN Security Council’s resolution to curb traffic of illicit antiquities from the region to prevent ISIS from profiting off the sale of stolen art works.
Mar. 2015 — Authenticity
U.S. District Judge Denise Cote dismissed a suit against The Keith Haring Foundation (“Foundation”), in the U.S. District Court for Southern New York, alleging that the Foundation rejected authenticity of about 80 art works and subsequently refused to review additional evidence in favor of authenticity. Plaintiffs also alleged that the Foundation refused to authenticate the works in part because it wanted to keep the number of authenticated Haring works low in order to increase the value of those pieces in its own possession. The dismissed claims include antitrust violations, false advertising, and separate claims made under New York state law. Details.
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Feb. 2015 — Restitution Matters
Despite recent easing of US trade restrictions with Cuba, restitution of fine art seized by Cuba in the 1960’s is still no closer. Cuba has taken the position that the art in question was not stolen and similarly has made no efforts to facilitate its return. Some predict that rising demand, and increasing popularity of Cuban art will lead to the sale of seized works, and point out that sales of Cuban art abroad began shortly after the first seizures. Cuba also seized industrial, commercial, and private property from US citizens; claims which now function to block museum loans between the US and Cuba. Details.
Feb. 2015 — CAA’s fair use guideline
The College Art Association released its “Code of Best Practices in Fair Use for the Visual Arts” earlier this month, although it is hardly accurate to call it a “code.” Targeted toward the visual arts community, the publication does not provide the reader with hard and fast rules by which to abide, it is perhaps best to describe it as a guideline. Five chapters of the pamphlet covers five basic areas in which a fair use defense may arise: “Analytic Writing,” “Teaching about Art,” “Making Art,” “Museum Uses” and “Online Access to Archival and Special Collections.” Despite covering the area in which a fair use defense is least likely to be available, the “Making Art” section is the briefest of the five and contains such obvious advice as “Artists should avoid suggesting that incorporated elements are original to them.” Despite its shortcomings, the guideline at least provides a basic understanding of this area of the law to artists in an era where using digital tools to appropriate existing works into one’s own work is becoming increasingly common. The full text is available here.
Feb. 2015 — Cultural Matters
Since 1966, the National Historic Preservation Act (NHPA) has shaped the preservation of America’s historic and cultural heritage legacy in every corner of the nation, and generated widespread social and economic impacts. It stabilizes neighborhoods and downtowns, contributes to public education, attracts investment and creates jobs, generates tax revenues, supports small business and affordable housing, and powers America’s heritage tourism industry. Publicly-owned historic properties, from community landmarks to federal facilities and national parks, also maintain community pride and identity, contribute to local and regional economies through their operation and maintenance, and foster a variety of public uses.
Preservation50 is the United States’ effort to plan, celebrate, and learn from the achievements and challenges of the NHPA’s first five decades and to assure historic preservation’s vibrant future in America. Please check out the website (www.preservation50.org) and follow us on Facebook, Twitter and Instagram to learn how you can get involved with this historic celebration.
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Jan. 2015 — Je suis Charlie.
On January 7, offices of a satirical weekly magazine in Paris “Charlie Hebdo” were attacked by armed terrorists leaving many wounded and 12 people dead. Among those who died were respected and influential caricature artists. Center for Art Law condemns this terrible act of unpardonable violence and stands in support with all creative people fighting radical elements, hypocrisy and injustice. Details. IT
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Dec. 2014 — 9th Cir. Avant-garde
This month, the 9th Circuit reheard en banc the resale royalty right case brought against auction houses by a handful of artists and artists’ estates. Enjoy the resale royalty right hearing here. IT
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Sept. 2014 — What’s fair in “Fair Use”?
This month the U.S. Court of Appeals for the Seventh Circuit decided that alleged illegal use of a copyright protected photograph was in fact fair under 17 U.S.C. 107. (Kienitz v. Sconnie Nation LLC, No. 13-3004, 2014 WL 4494825 (7th Cir. Sept. 14, 2014)). More importantly, the court criticized the Second Circuit’s ruling in Cariou v. Prince, 714 F.3d 694 (2nd Cir. 2013) due to excessive credence given to the “transformativeness” of the use as a matter of law. Given the apparent split in the Circuits on how to interpret fair use and transformative quality of appropriating in light of the limiting copyright holders rights to creative derivative works, the legal and artistic community would appreciate some guidance from the Supreme Court, in due time. Details.
Sept. 2014 — REMIX
British Invasion continues with creators of Culture Label organizing a three-day summit to talk about culture, entrepreneurship and technology. Hosts for the program: Google, MoMA and Bloomberg. Intended audience: museum curators and administrators as well as computer engineers, marketing experts, investors and lawyers. Details.
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Aug. 2014 — Corcoran et al
Museum community and the T&E Bar are eagerly following blow by blow developments surrounding Corcoran Gallery in Washington, DC. As this oldest privately owned art collection in DC is looking for a new home and financial baking, purists lament the inevitable changes that any modification or merger of the collection would spell to the Last Will and Testament of the collection’s founder. Details.
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Jul. 2014 — Pollock he is not!
John Re, an East Hampton-based painter was accused of painting and selling fake Pollock works. It has been reported that collectors who purchased Re-Pollock’s invested almost $2 million. Details.
Jul. 2014 — Take Two
Norton Simon Museum seeks a rehearing or a do over in its efforts to keep Lucas Cranach’s diptych “Adam and Eve.” Eve might have wanted to have a do over also, after she (allegedly) took a bit of the forbidden apple. Details.
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Jun. 2014 — It’s elementary, Watson!
Whether yo like it or not, Sherlock Holmes’ character is no longer protected by copyright. Two Herrick, Feinstein LLP attorneys began their reviewed the recent 7th Circuit Appeal decision as following: “It didn’t take much deducing for the Court of Appeals for the Seventh Circuit to rule on June 16th that Sherlock Holmes and Dr. Watson, the famous character sleuths created by Sir Arthur Conan Doyle in the early 19th century, are in the public domain and free for public use. The resolution of this closely-watched copyright dispute has significant implications for the creation of future works featuring the Holmes and Watson characters because most aspects of these characters, according to the Seventh Circuit, are now “fair game.” …”
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May 2014 — Graduations!
Center for Art Lawapplauds its writers who are graduating this spring — Ariel Greenberg (Cardozo), Lesley Sotolongo (Cardozo), Nora Choueiri (Fordham), and Joshua Greenfield (Albany)!
May 2014 — Museum: Musee Picasso (Paris) has been closed for renovation for almost five years — with reopeninfg delayed again until after the high tourist season, the French government let go the Museum director of 20+ years. Reportedly, in her defense Anne Baldassari, wrote a 44-page letter about her tenure… As the summer is heating up, so is the debate about the politics over who get’s to lead once-reopened museum.
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Mar. 2014 — Museum: The Association of Art Museum Directors (AAMD) issued sanctions against the Maier Museum of Art (Randolph College, Lynchburg, VA) following its deaccessioning and sale of a George Bellows’ painting. Reportedly, proceeds from the $25.5 million purchasing price will go to the college’s operating fund. According to the AAMD “sale of works of art from museum collections for such purposes is a violation of one of the most fundamental professional principles of the art museum field.” Randolph College museum is not one of the 232 members of AAMD. In response, college stated that ” College’s Board of Trustees is also charged with protecting the interests of this college and our future.” The sanctions ask AAMD members to suspend loans of artworks to and any collaboration with the Maier Museum of Art. Notably, no sanctions for failing to research and report provenance of art works in the AAMD member collections issued to date.
Mar. 2014 — Art works linked to Hildabrand Gurlitt, a German art dealer and historian who traded and collected art during the Nazi era, keep reappearing following the discovery of the vast art trove in possession of Cornelius Gurlitt, Hildabrand’s son. Consisting of more than a thousand works by Marc Chagall, Paul Klee, Henri Matisse, and Pablo Picasso, and others, that were kept hidden in Germany and Austria, it was confiscated by Bavarian authorities.
Predictably, Cornelius was not the only one in possession of paintings his father acquired under questionable circumstances. A number of these paintings are hanging in German museums today. Others like, Jules Pascin’s L’Atelier du Peintre Grossman, were acquired through forced sale. Paskin’s painting for example left Gurlitt’s possession sometime between 1945 and 1972, when it was offered for sale at Christie’s in 1972, ultimately resting in the hands of Joel and Carol Honigberg. A restitution claim by the believed original owner Julius Ferdinand Wolff’s heirs is a possibility.
Read: David D’Arcy, “Painting acquired by Gurlitt turns up in Chicago home,” The Arts Newspaper, March 2014, at 4.; Philip Oltermann, “Picasso, Matisse and Dix among works found in Munich’s Nazi art stash,” The Guardian, November 6, 2013.
Mar. 2014 — Last year in March, half of the officers in charge of the Cy Twombly Foundation filed a suit against the Foundation’s financial advisor for unauthorized investment fees. The dispute between the Foundation directors is now settled.
“The settlement – involving Ralph E. Lerner, a prominent art-world lawyer and one of the foundation’s four directors; and another director, Thomas H. Saliba, a financial adviser – was approved on Thursday night in chancery court in Delaware. The full terms of the settlement are confidential, but they involve Mr. Lerner and Mr. Saliba resigning their positions, and Mr. Lerner dropping a lawsuit he had filed in the same Delaware court asking a judge to intervene in the foundation’s dispute, saying that it had become deadlocked.”
Read: Settlement Reached in Cy Twombly Foundation Lawsuit (TNYT, March 14, 2014).
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Feb. 2014 — The Toledo Art Museum announced its plans to to review dozens of works received and purchased from the New York dealer Subhash Kapoor between 2001 and 2010. The Toledo Museum of Art was one of many institutions that acquired materials from Kapoor, including a Ganesh a figure from India. While Kapoor pled guilty to selling stolen property, the Toledo Museum is one of the first to disclose its acquisitions — gifts and purchases from the dealer.
Feb. 2014 — “Then there were 15” On Feb. 16, 2014, Maximo Caminero, an artist living in Miami, visited the Perez Art Museum Miami and vandalized an Ai Weiwei vase installation. He was recorded picking up one of the 16 vases in “Colored Vase” series, holding it in his hands and then dropping to the floor…. “the video shows him calmly putting his hands into his pockets and strolling off.” Caminero, alleged he was protesting museum’s preferential treatment of foreign artists over local talent; he was arrested for criminal mischief, he is out on a bail and facing prison sentence. The vase was covered by insurance In response to the allegations of protest, The New York Times quoted Ai Weiwei as saying “he should choose another way, because this will bring him trouble to destroy property that does not belong to him.” Chinese artist loaned the works to the Miami museum; the remaining vases are due to travel to Brooklyn Museum next.*
Read: Nick Madigan, “Behind the Smashing of a Vase: An Artist Says the Destruction of Ai Weiwei’s Work was a Protest” TNYT, Feb. 19, 2014
* In 2012, Tate Britain organized an exhibit “Art Under Attack: Histories of British Iconoclasm.” Let’s talk about having such an exhibit in the United States about National and International attacks on art for various speech reasons.