Arts and cultural heritage law research nonprofit.

In Brief – 2015

October 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.

September 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.

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

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

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

August 2015

ISIS Path of Destruction Continues 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

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

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

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

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

Specific Performance The 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

June 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.

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.

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.

April 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.

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.

March 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.

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.

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.

February 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.

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.

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.

January 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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