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 leclinch@law.cardozo.yu.edu.

 

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.”Id.at 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.” Id.at 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. Id.at 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.” Id.at 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.” Id.at 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.” Id.at 139. Thompson’s proposed strategy refrains from alienating the collector because it recognizes that most collectors have “professed desires to be useful to scholars”. Id.at 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. Id.at 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. Id.at 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.

Sources:

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: “Fair and just solutions?” (2015)

By Adir Paner*

Screen Shot 2015-11-11 at 9.28.58 AMSeventy years since the end of World War II, earnest efforts to restitute property, cultural and otherwise seem to be on the rise. In addition to the millions of lives lost, displaced, peoples cobbling to make a living in new homes and new lands, many millions of pieces of property remain lost and out of the reach of their rightful private and public owners. Despite the best efforts of the allied forces when finding and administering collecting points, countless pre-war art owners, such as museums, and private families (Jewish and gentile) had property confiscated by the Nazis which was not subsequently restituted.

As objects resurface and as heirs discover their legacy, steps should be taken to expeditiously achieve an equitable solution, notwithstanding the time that lapsed. Recognizing this principle, in 1998, the U.S. Department of State and the U.S. Holocaust Memorial Museum co-hosted the Washington Conference on Holocaust-Era Assets. Delegations from forty-four nations and thirteen non-governmental organizations participated. The 1998 conference addressed various issues related to the confiscation of assets by the Nazis and others during the Holocaust, and was responsible for coining the the term “fair and just solutions,” which refers to the norm for the assessment of ownership claims to Nazi-looted art, as codified in the Washington Principles in 1998. While more than 40 nations became signatories to the Washington Principles, five nations (Austria, Germany, France, the Netherlands and the United Kingdom) went so far as to organize committees to review claims brought by claimants seeking recovery of cultural property, lost as a result of widespread and large-scale crimes committed by the Nazi regime.

Published in 2015, Fair and just solutions? is a compilation of essays presented during an eponymous international symposium at the Peace Palace in The Hague that took place in November 2012. The question mark in the title alludes to the lack of clarity surrounding this norm. What is ‘fair and just’? Many millions of people paid the ultimate sacrifice, losing more than just their valuables in the last century. Is it possible to find a fair and just solution to a problem that is much more expansive than mere loss of property? Additionally, how do we resolve competing interests of merit between victims of Nazi oppression, and the blameless institutions which acquired and cared for the art through no fault of their own?

The 2015 volume edited by Campfens, contains expert opinions aimed at evaluating the status quo in the field of non-governmental restitution claims to Nazi-looted art and at discussing the legal framework for ownership claims by heirs or dispossessed owners.

Fair and just solutions? delivers a detailed account and perspective on international claims for looted property. The editor responsible for organizing the 2012 conference in the Hague, Evelien Campfens, is a renowned attorney and historian as well as the Inaugural Director of the Dutch Restitutions Committee. For thirteen years, Campfens lead the research team and oversaw the coordination of cases and preparation of advisory opinions. Campfens’ extensive background put her in a strategic position to gather and assemble key pieces of restitution history and to offer her critique on them. 

Fair and just solutions? documents the information discussed in the conference, providing guidance for those who were unable to attend in 2012, as well as for newcomers to the field. Through the valuable contributions by attorneys and historians practicing in the U.K. and Continental Europe, a compilation of opinions by leading experts, and a discussion amongst stakeholders, Fair and just solutions? explores a way to move forward toward ultimate resolution of the Nazi-era art claims. As a result, it serves as an excellent resource for all those interested in the subject matter, including law students, educators, potential claimants, and attorneys involved in the restitution of art.

The books recurrent themes include: (1) the status quo with regard to the ‘fair and just solutions’ norm that was introduced in the 1998 Washington Principles, presented at the Washington Conference on Holocaust Era Assets; (2) the procedures available to claimants; and (3) how things stand in terms of international cooperation in expeditiously achieving a fair and just solution.

The book is divided into eleven chapters, each contributed by a different author, including inter alia the former U.S. Special Envoy for Holocaust Issues, Douglas Davidson, expert advisor to the U.K. Spoliation Advisory Panel Professor Norman Palmer, and former counsel to the Dutch Parliament Rob Polak. Opening with Campfens’ account of the “Old and New Rules for Looted Art” which analyzes instruments of soft and hard international law, the book progresses through important concepts highlighted by other experts.

The book also contains intriguing interviews with claimants. One such contribution entitled “Ultimately the Applicant Needs to Feel that Justice has Been Done,” recapitulates an interview with two great-grandchildren of Samuel van den Bergh, who describe their claims for a Persian medallion carpet in the Netherlands. It is a rare opportunity for restitution historians and pupils to learn of first hand experiences in the restitution process.  

In the introduction, Campfens points out that it is impossible to thoroughly explore all topics related to Holocaust restitution, such as the differences between the approach of different nations to restitution claims. Notwithstanding Campfens disclaimer and the relatively brief nature of the volume, the detailed appendices provide valuable sources for obtaining more information. Featured are several declarations, resolutions, and governmental acts pertinent to the restitution of confiscated property (e.g., Washington Principles on Nazi-confiscated Art, UNESCO Declaration of Principles Relating to Cultural Objects Displaced in Connection with the Second World War etc.) The general layout of the book spotlights the key documents in the development of international restitution law.

The lists of hard law (binding legal obligations in the international arena), procedure and legal instruments that appear within the chapters as well as in the addendum to the volume may be dull at times, but it is necessary to analyze the statutory impediments and distinguish legal procedures amongst other things for this book to accomplish its informative purpose. The issue is mostly alleviated by the book’s structure; Campfens is careful to include only material that she found essential to the understanding the restitution process.

Owing to the fact that Fair and just solutions? is a compilation of articles by multiple authors, the chapters may be pertinent to a diverse readership. Additionally, editors organized the book in short paragraphs with headers, making it simple for the reader to follow. Each chapter is supplemented with a brief conclusion, either commentary by the editor or key points summarized by the contributing authors, which makes for a useful dénouement—summarizing key points. Overall, Fair and just solutions? serves as a readable and informative reference on the evolution of the law on restitution, an analysis of international practice, and suggestions for future approaches to Holocaust-related claims.

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From the Editors: On December 2, 2015, Evelien Campfens will discuss the book and the recent cases involving restitution efforts at the first international Art Law Mixer in London. The event will be held at Stephen Ongpin Fine Art Gallery. For additional details please visit our calendar of events or contact Center for Art Law.

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*About the Author: Adir Paner is a Center for Art Law Legal Intern (Fall 2015) as a part of the Benjamin N. Cardozo School of Law Holocaust Restitution Claims Practicum.

Book Review: “Visual Arts and the Law: A Handbook for Professionals” (2013)

By Irina Tarsis, Esq.*

“I want to do something splendid…

I think I shall write books.”

Louisa May Alcott

Historically, introducing art law to lawyers and artists, not to mention law and non-law students, used to be a challenge. The majority of artists and lawyers were perplexed by the idea of ‘art law,’ now an accepted practice area that touches upon private as well as public law, national and international art business, and art making. Therefore, a handful of attorneys have grappled with the task of composing textbooks, which would serve as suitable introduction to the discipline.

Screen Shot 2015-07-10 at 5.28.23 PMThe 2013 offering from the former chair of the Entertainment, Arts & Sports Law Section of the New York State Bar Association, Judith B. Prowda, who is a Senior Lecturer at Sotheby’s Institute of Art teaching Art Law and Ethics, is an excellent teaching tool to present information about artists’ rights and art market relationships in a clear and engaging tone. Her “Visual Arts and the Law: A Handbook for Professionals” (the “Handbook”) is a comprehensible if not comprehensive primer for the uninitiated. It is part of the Handbooks in International Art Business series. Like an art history work, the Handbook is peppered with the familiar names of Calder, Monet, Schiele, and Serra. Like a law textbook, it is devoid of art reproductions. The only visual decoration that the publisher allowed in this text are the three symbolic images on the cover — Portrait of a Lawyer (1866) by Paul Cezanne, Tilted Arc (1981) by Richard Serra, and Egon Schiele’s Portrait of Wally (1912). The lack of illustrations is regrettable because an art law textbook, unlike other legal publications, stands to benefit from having reproductions of the works that have shaped and given rise to the discipline. The images used for the cover merely scratch the surface of the wealth of imagery that imbues the art law discipline. Luckily, the attorney who authored this Handbook succeeded in penning a clear bird’s-eye view of the discipline.

In the Handbook, Prowda synthesizes information about the basics of copyright and focuses on issues affecting visual arts, such as moral rights, commissions, auctions, expert opinions and title disputes. Consequently, this publication is best suited for artists, students in art and business management, appraisers and gallery employees as well as members of the general public that wish to learn about different aspects of art market as it is affected by the law. The target audience probably excludes those training for legal practice and the active members of the legal bar who already represent artists and galleries as their clients.

As a self-imposed objective, Prowda wished to “give her reader some “context and insights into the most salient legal issues of the day affecting art.” Therefore she organized the materials in the order of what happens with visual artworks from creation to sale in the primary market and again in secondary market. The structure of each section offers historical foundation and recent manifestations of specific legal issues associated with appraisal, authentication, theft, and auctions.

The Handbook is divided into three sections: 1) Artists’ Rights; 2) Artists’ Relationships; and 3) Commercial Aspects of Art, with twelve chapters unevenly split between these topics.  Contemplated as “a tour d’horizon of the complex questions raised in the field of art law,” with some attention given to the law in different countries — U.K., France, Germany as well as the U.S., in her preface Prowda acknowledges that she is covering the material through a U.S.-trained lawyer’s lens as well as looking at limited number of topics. Prowda revisits many classic legal examples: what is art according to Brancusi v. United States (U.S. 1928), and what is copyrightable per Burrow-Giles Lithographic Co. v. Sarony (U.S. 1884). The narrative is easy to follow and it flows well from one example and concept to another. The Handbook tackles the big picture and glosses over nuances and gray areas that emerge in numerous related transactions and disputes.   

First section explores Artist’s Rights, namely freedom of expression, including historical overview of obscenity law, right of privacy and publicity, principles of copyright, including its duration, requirements, exclusive rights, infringements, defenses and spends some time discussing fair use exception, including a brief mention of the recent 2nd Circuit fair use case Cariou v. Prince. Here, Prowda spends considerable time exploring moral rights in Europe, the U.K. and the U.S., dating back to France in the 19th century and moving forward to the 1990 enactment of the Visual Artists Rights Act in the United States, and the case law that emerged subsequently. Repeatedly, the Handbook follows a formula of introducing a concept and explaining its origins, past applications and the current state of applicability. Thus, readers who are interested in limited moral rights in the United States or the variety of fair use cases decided by courts in different jurisdictions would need to go beyond the distilled information offered in the Handbook to learn more about the VARA cases, such as Mass MOCA v. Buchel or the different circuits’ applications of the fair use exception to copyright infringement claims.

Second section of the Handbook is dedicated to the artist’s relationships with dealers, collectors and art commissioners. Here, Prowda focuses on fiduciary duties owed to artists and their heirs; she explains relevant sections of the New York Arts and Cultural Affairs Law that deals with consignment of art for sale. Rarity of written contracts and pitfalls of oral contracts are featured prominently in discussion of disputes related to Georgia O’Keeffe or the Estate of Jean-Michel Basquiat. This section certainly would have benefited from offering guidelines for working with attorneys and advisors as well as grant-giving agencies such as the New York Department for Cultural Affairs, which administer public commission. As is, the section is brief and is best summarized as following: due to fact specific and unique relationships between each artist and her dealer or the art commissioner, each negotiation and partnership needs to be carefully reviewed and monitored throughout the relationship.

Third section moves away from the creative process to explore the commercial side of art disposition through the secondary market, collection development, art theft and issues of authenticity. It explores questions surrounding legal title and includes a discussion of good faith purchases of art works. Author underscores the importance of clear and corroborated provenance, duties of different parties involved in art transactions, obligations and rights of creditors, an array of warranties that may accompany change of ownership and technical defenses to combining ownership of art with legal title.

In her treatment of auction houses, Prowda lists various services and duties auctions have to their clients and then she focuses on the seminal 1986 Cristallina v. Christie’s decision that “resulted in significant changes in auction laws and redefined auction practice in New York.” In that case, the auction house was accused of fraudulent misrepresentation in violation of its fiduciary duty to the consigner by failing to assess market conditions. The third section is also used as a vehicle to discuss the antitrust price-fixing scandal that embroiled both leading auction houses in the early 1990s. Prowda briefly introduces the main players and the circumstances of the Sherman Act violations.

The second-to-last chapter of this section explores briefly the subject of expert opinions as they pertain to art appraisal and authentication. In light of the recent legal actions brought against art experts, this section is of great importance to those engaged in creating catalogue raisonnés and labeling art as fakes or forgeries. Prowda explains fiduciary duties owed by experts and explains risks and legal liabilities that may attach to actions of authenticators and appraiser. This section includes discussion of the main legal cases involving opinions on art and its value, including but not limited to the 1929 Hahn v. Duveen decision, as well as Ravenna v. Christie’s (2001) and Double Denied, an antitrust case against the Andy Warhol Foundation decided in 2009.

Finally, the Handbook tackles the temporally, geographically and emotionally-complicated questions regarding title problems related to stolen art, with emphasis on war plunder and Nazi-era looted art. Given the vast body of cases and alternative dispute resolution mechanisms dedicated to solving issues related to Nazi-era looted art, the treatment of this subject in the Handbook merely scratches the surface of the questions and outcomes related to art restitution claims. Prowda chooses to focus on three cases as main illustrations of related issues, specifically U.S. v. Portrait of Wally which was ultimately settled in 2010 for $19 million, Guggenheim Foundation v. Lubel (NY, 1991) and Bakalar v. Vavra (2nd Cir. 2010). However, other important trends affecting the art displaced during the Nazi-period are excluded. For example, the late 1990s and early 2000s case sequence involving American art museums proactively seeking to quiet title through declaratory judgments aimed at keeping possession of once-looted artworks is omitted entirely, as is the discussion of the numerous foreign advisory commissions that review restitution claims brought against public institutions by heirs in France, England, Germany, Austria and so on.

The Handbook ends with an admission that in the 21st century, there are ongoing and profound changes in the production and consumption of art and thus the legal system is continuously tested. The author admits she wanted her readers “to situate themselves within [law, art and commerce] discourse.” She certainly succeeds in giving a long view on perennial important topics even as case law and legislation continue offering new examples and challenges.

Art law is a growing and developing practice area and by definition textbooks and handbooks tend to become outdated as soon as they are submitted to print because of the subsequent developments. This Handbook is no exception. While Prowda talks about Nazi-era looted art, as well as authentication issues such as the threat of litigation that affect authentication boards and commissions, there is understandably no reference to the Gurlitt art trove which was made public in 2013 nor the infamous demise of the Knoedler Gallery in 2011, formerly the oldest art gallery in the United States that was found out as selling forgeries. The first of almost a dozen claims for breach of warranty and negligent misrepresentation against the gallery, its owners and staff were filed as early as 2011; however, the reverberating effect of the downfall was not fully felt until much later. Other materials missing from the Handbook include laws governing the antiquities trade, and questions dealing with import/export of art containing ivory and other problematic materials.

The Handbook would have been more authoritative and easy to use for the legal community if the references and citations were not relegated to endnotes at the end of the volume but appeared at the bottom of the page as footnotes or at least following each chapter. Nevertheless, the Handbook intends to situate its users or reader within various art law related discourse and it accomplishes that task very well. Whether the book inspires students to become art lawyers and thus dive into the specific issues more deeply remains to be seen.

Prowda supplements her writing with a brief bibliography which reads as a “Who is who in Art and Law.” All the usual suspects are represented: Leonard D. DuBoff, Patty Gerstenblith, John Henry Merryman, David Nimmer, Pierre Leval, Judith Bresler, as well as Michael Bazyler, Lawrence M. Kaye and Ronald D. Spencer. Again, just like the Handbook itself, the bibliography offers a sound but basic set of tools. For non-lawyers, the glossary of legal terms is a non-exhaustive list of terms that may or may not need explanation. It includes Latin phrases (e.g., caveat emptor and lex loci), substantive terms (e.g., subpoena and contract), relationships (e.g., fiduciary and agency), causes of action and rights. The concept of due diligence is explained here but good faith purchase is not.

The writer of this review would argue that the subtitle “ Handbook for Professionals” is a confusing description of the text contained within. Perhaps it is the formula imposed by the publisher, however, unlike the guide for collectors, investors, dealers and artists co-authored by Judith Bresler and Ralph E. Lerner, a two-volume $200+ opus akin to Nimmer on Copyright, or Law, Ethics and the Visual Arts volume by John Henry Merryman et all, Prowda’s textbook is a general introduction/a primer for newcomers. It does not bore those lacking the technical training or stamina to work through legal analysis and exhaustively shepardized citations, rather it is a carefully composed teaching tool that ushers its reader at a comfortable pace through fascinating and varied legal history. Professionals would need to dig deeper into each subject; however, given the paucity of affordable basic textbooks for students learning about art law, this volume is an excellent option for any art law professor seeking to introduce countless areas for study and further exploration. Perhaps it should have been titled “A Handbook for Future Professionals.” The Handbook may be coupled with select case decisions and legislative material for an effective introduction to the fascinating field that concerns art, art history and law.

Prowda’s Handbook is a tool designed to further adoption and acceptance of art law, and given its modest price in comparison with other art law publications, it is a worthy addition to any mentor or art law instructor’s reference library. It is a solid stepping-stone to further popularizing the art law discipline.

Cited Cases:

  • Bakalar v. Vavra, 619 F.3d 136 (2d Cir. 2010).
  • Brancusi v. United States, 54 Treas. Dec. 428 (1928).
  • Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 4 S. Ct. 279, 28 L. Ed. 349 (1884).
  • Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013).
  • Cristallina v. Christie’s, 117 A.D.2d 284, 502 N.Y.S.2d 165 (App. Div. 1986).
  • Guggenheim Found. v. Lubell, 77 N.Y.2d 311, 567 N.Y.S.2d 623, 569 N.E.2d 426 (1991).
  • Hahn v. Duveen, 234 N.Y.S. 185, 133 Misc. 871, 133 Misc. Rep. 871 (1929).
  • Lagrange et al v. Knoedler Gallery, LLC et al, 1:2011cv08757 (S.D.N.Y. Dec. 1, 2011).
  • MA MUSEUM, CONTEMP. ART FOUN. v. Buchel, 593 F.3d 38 (1st Cir. 2010).
  • Ravenna v. Christie’s Inc., 289 A.D.2d 15, 734 N.Y.S.2d 21 (App. Div. 2001).
  • Serra v. US General Services Admin., 847 F.2d 1045 (2d Cir. 1988).
  • Simon-Whelan v. Andy Warhol Found. for the Visual Arts, Inc., 2009 W.L. 1457177 (2009).
  • US v. Portrait of Wally, 105 F. Supp. 2d 288 (S.D.N.Y. 2000).

About the Author: Irina Tarsis, Esq., specializes in art law, provenance research and cultural heritage law. She may be reached at itsartlaw@gmail.com.

Disclaimer: This article presents general information and is not intended as legal advice.

Reprinted with permission from: Entertainment, Arts and Sports Law Journal, Spring 2015, Vol. 26, No. 1, published by the New York State Bar Association, Albany, NY.

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 youngjae.koo@law.cardozo.yu.edu.

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

All Things Come in Threes: Hope reviews Three Recent Publications on Art Forgery

Charles Hope writing for The New York Review of Books, examines three monographs about art forgery.  The books reviewed include Jonathan Keats’ Forged: Why Fakes Are the Great Art of Our Age (Oxford University Press, 197 pp., $19.95); Thierry Lenain’s Art Forgery: The History of a Modern Obsession (Reaktion, 383 pp., $55.00), and Ken Perenyi’s  Caveat Emptor: The Secret Life of an American Art Forger (Pegasus, 314 pp., $27.95).

Guy Isnard, a police official, curating an exhibition of fakes in Paris, 1955. Photo by Robert Cohen for Time-Life.

Hope begins: “The existence of a market for any kind of valuable object almost always encourages the production of counterfeits. It happens with drugs, banknotes, and designer handbags. It also happens with works of art. But whereas counterfeiting banknotes or other documents has always been considered a crime, attitudes toward art forgery have changed greatly over time, as Jonathon Keats and Thierry Lenain explain in their recent books. Keats provides a succinct, intelligent, and very readable summary of the subject, concentrating on some of the most famous modern art forgers, while Lenain, in a notably learned and wide-ranging text, goes into more detail and is more concerned with the broader implications of his topic.”

For the full text of the review visit TNYROB.

Source: Charles Hope, “The Art of the Phony” The New York Review of Books (Aug. 15, 2013).

List price of “Cultural Heritage Law”: $465.00 [No Joke]

Such much! Some enhanced appreciation of one’s own cultural heritage comes from learning about it in a new language, if not in a new book. Let me share a “Russian” joke with you:

— Excuse me, how much watch?
— Near six.
— Such much?
— For whom how…

Which means:
«What time is it?»
«Almost six»
«So late?!»
«It depends.»

Incidentally, this joke was appropriated from the the cult film Casablanca (1942), where two Germans are discussing time in “English”.

But back to art and cultural heritage law, which are also sometimes funny. Here are some of the good, bad and not funny jokes to be enjoyed at their expense:

  • A painting attributed to Andy Warhol is bought for $185,000. Before it is offered for sale again, it is presented to the Andy Warhol Art Authentication Board and ultimately it is stamped “DENIED” not once but twice. Collector, whose property is thus defaced and devalued, sues. The court finds in favor of the Board but the victory that comes with a price tag of about $7 million. As the Andy Warhol Foundation stops authenticating Warhol Art, the comically inclined wonder, didn’t the Foundation know that all good jokes must have three parts, and thus the painting should have been stamped three times?!  Read: Authentication Committees Disband.
  • Fossilized bones of a T. bataar dinosaur, that died in the Cretaceous period, are improperly imported into the United States. Hundreds of hours chiseling and assembling bones of different dinosaurs from different places together result in a forfeiture of the newly assembled skeleton and a return of the beast to Mongolia. It should have been Siberia for a better punchline! Read: Fossils Dealer Wants his Dinosaur Skeleton Back.
  • Art works gifted to the Brooklyn Museum by a long-time deceased Colonel turn out to be fakes. However, they may not be deaccessioned easily because all of the trustees of the estate of the sad colonel are deceased as well. In other words, they’ve gone extinct! [That was a dinosaur reference. Do you get it?!] Read: Of Brooklyn Museum, Colonel and Cy Pres.
  • A new textbook on Cultural Heritage Law priced at half a thou dollars.  Now, that’s a good one!
Why is that funny? If you don’t get it, let you me try to explain. I just came across a new publication, entitled Cultural Heritage Law (of the International Law Series). It is edited by James A. R. Hafziger and it sells on Amazon, with a 9% discount as of May 9, 2013 for the whooping $421.65. Yes, such much! It is a hardcover, probably still in its first edition (no wonder) and over 850 pages long. 

Contributors to this volume include the deans of art law and the leaders of cultural heritage protection. To name but a few: Lawrence M. Kaye, Partner with Herrick Feinstein (NY), Patty Gerstenblith, professor at DePaul Law School (IL), Lyndel Prott, former Director of UNESCO’s Division of Cultural Heritage (Australia). The volume’s editor is Professor of law and Director of International Programs at the Willamette University College of Law. In all seriousness, I am sure it is a worthy reference but who can afford it?! The collectors who now have fewer Warhols and dinosaur bones to acquire?  Perhaps, this anecdote would make for a good MasterCard commercial:

Fake Andy Warhol — $185,000;
Legal treatise on Cultural Heritage Law — $465.00;
2 hrs of blogging  — $100;
Appreciating your cultural heritage — Priceless.

Source: Amazon.com; Elgaronline.