Building an Anthology from Ephemera: The Legal Issues of Constructing a Political Art Archive

By Scotti Hill*

INTRODUCTION

Predating the advent of words, images have long served as an elemental tool of communication, working to describe and persuade. As the modern era’s complex political systems galvanized and alienated large masses of the globe’s population, the combination of image and text has forged a new path for the rapid dissemination of ideas. In response, political protest manifested into artistic expression, a form preferable to violence.

Attempts to preserve artifacts from political protests have been undertaken with renewed urgency. From the fight for democracy in East Asia to socio-economic and racial activism in the United States, urban areas are drowning in visual and textual evidence of dissatisfaction, reminders of the angst of political alienation. Over the past several years, political events and tragedies have also mobilized archivists hoping to preserve the emotional and historical potency of movements’ artistic output.

Spontaneous graffiti, posters and artifacts have accompanied large systematic protests, such as Occupy Wall Street and Black Lives Matter, raising concerns about the effectiveness of unauthorized artmaking. In Paris and New York, items gathered in the aftermath of terrorist attacks were collected with a sense of emotive resolution. The ephemera of political activism for these protests-posters, makeshift sculptures, graffiti, installations-have been cautiously assembled in archives. Building upon a recent New York Times commentary that investigates the increasing frequency of artifacts archives across the globe, this article explores the legal issues accompanying the preservation of political art, including how copyright, trademark, nuisance, First Amendment and vandalism claims can complicate the already murky notions of artistic authorship in political protest art.

Copyright: Is Political Protest Art Protected?

Copyright defines the possession of an exclusive legal right to literary, artistic or musical material. Normally, the creator retains copyright despite a change in ownership of the physical object. The government retains the copyright to public artworks it commissions, although under the Visual Artists Rights Act (VARA), artists can still enjoy certain protections for state owned works, including preventing the work’s destruction or removal from the site in which it is placed. As the first federal legislation of its kind, VARA effectively grants artists a moral right to protect their creations. VARA does, however establish criteria for what creations are protected, including original and exclusive works crafted from media such as paintings, photographs, sculptures and drawings.

The U.S copyright law is designed to protect intellectual property from being improperly appropriated, exploited and disseminated by third parties. U.S. copyright law’s fair use exception allows for reproduction in cases of educational commentary, criticism, reporting or teaching. In determining fair use, the individual or organization seeking to reproduce the image must articulate the underlying philosophical purpose accompanying the image and take care to not impede the original work’s potential marketability.

Generally, copyright protection for an artistic creation is broad, covering any work of original authorship crafted in a tangible medium that “possesses at least some minimal degree of creativity.” Do temporary or impermanent creations, like those used in political protests, retain the same protection?

Creators of political protest art frequently operate under the guise of anonymity, working to shape or build upon a dialogue. Such items are rarely crafted as art items, let alone designed to be exhibited after the event they are intended to address, shore up or put down. Instead of being cherished in a pristine exhibition space, works are created to be portable and destructible so that they may serve as instruments of a movement, rather than merely symbols of it. Such items include posters that loudly parade the epitaphs of the movement, sculptures symbolizing political ideals, and flyers and pamphlets that participants hand out to eager members of the public.  Most importantly, these items are intended to be shared, to elicit a desired reaction in furtherance of the larger philosophy for which they serve. The disposability of such items negates the care and attention paid to traditional artworks, decreasing the incentive to protect item through legal means. With the foregoing logic in mind, it’s seemingly unlikely that creators of political protest art can assert robust copyright protection for works not intended to survive beyond a certain event. As it stands, the record is silent on the issue of artists seeking copyright protection for works used in political protests, yet the advent of protest artifact archives may bring this once ancillary issue front and center.

Ferguson, Street Art and the Politics of Anti-Institutional Artmaking

The 2014 death of Michael Brown rendered Ferguson, Missouri a hotbed of political and social unrest. In turn, artists and intellectuals resisted a media firestorm that presented the city’s extreme political unrest in a monolithic fashion. In his communal art project, Push Forward, artist Damon Davis pasted images of raised hands in various locations throughout Ferguson. With the permission of local business owners, whose establishments had been boarded up and closed to the community, these stirring images served as visual symbols of collective solidarity. Davis’ works, and many others like it, signal an increasing acceptance of graffiti as art, with more business owners allowing their structures to serve as mediums or ‘canvases’ of expression.

In the 21st century, street artists have seized a growing spirit of dissatisfaction with cultural institutions-namely museums and galleries for which pioneering Land Artist Robert Smithson deemed “mausoleums of culture.” Now, art forms such as graffiti bring art directly to the people, and while the last decade has ushered in an unprecedented degree of cultural acceptance to the medium that was once dismissed as vandalism, this arena is still abound with legal issues such as nuisance. 

As a common law tort, nuisance claims can be either public or private, and, arise from unauthorized and inappropriate uses of one’s property. Often, nuisance claims aim to reverse the tortfeasor’s action, which has affected the property’s value or the owner’s reasonable use of land. The illegal placement of graffiti has served as a logical iteration of nuisance, with the art form existing as a literal defacement of property-regardless of aesthetic value or societal appreciation.

Still other forms of political artmaking evoke public nuisance claims, raising concerns about the viability of art rooted in illegality. VARA’s protection of public artworks is contingent on whether or not the work is of “recognized stature.”  In affirming a legal standard for unsolicited street artworks, English v. BFC&R E. 11th St LLC held that VARA fails to protect illegally placed graffiti. While not all graffiti is protest art, its ongoing popularity attests to the viability of public avenues of expression. Like many of history’s most daring and thought-provoking artworks, graffiti often dares to confront directly that which would have otherwise remained hidden.

Cataloguing Chaos: Preserving the Evidence of Terrorist Attacks in Paris, New York, and the Occupy Wall Street Movement

In the wake of major terrorist attacks in New York on September 11, 2001 and Paris on November 13, 2015, archivists began the arduous process of cataloguing thousands of items compiled in makeshift memorials throughout the cities. In such events, archivists often struggle with determining the best procedure for both collecting the items and curating overwhelming collection.

In Paris, archivists prioritize letters and drawings above other artifacts, as these items seem to harness most eloquently the human dimension of tragedy. Archivists aim to preserve these artifacts’ emotional potency, what sociologists and intellectuals consider the most telling of the collective experience spurned by the event. The donative nature of these items negates legal concerns regarding ownership, however, preservation-determining the appropriate size of a state archive or who makes these determinations remains.

In contrast to the portable ephemera in Paris, New York’s post-9/11 archivist practices were decidedly more ambitious, relying on both small tokens of grief and large sections of destroyed structures. After the city’s terrorist attack, distorted masses of the World Trade Center were quickly isolated and stored with the intent to preserve. Their sublime presence in the 9/11 museum is emblematic of a cultural reluctance to let go, as if the fragments themselves carry with them a magnetic power to retell the trauma of that day’s human loss.

In addition to terrorist attacks, socio-political insurgencies in the West have catalyzed ambitious archives and databases. From the outset, attempts to document and preserve the Occupy Wall Street Movement were undertaken by sociologists, students and organizers. Archivists have to date thousands of items-posters, signs, photographs and messages-stored in physical and digital venues. The process has engendered a fascinating degree of debate from academics and movement insiders, many of whom question the legitimacy of archives’ underlying narratives.

Starting in 2011, students at New York University’s Moving Image Archive and Preservation Program (MIAP) began collecting items presenting the media coverage of the movement. With the help of MIAP director Howard Besser, the students dubbed themselves “Activist Archivists,” uniting under the principal goal of preserving “the spirit, decentralization, self-organization, playfulness, and whimsy of this protest movement [which would otherwise] be lost to history if the media that documented this did not survive.” The archive’s role as counter of ‘real’ history presents an empowering incentive for the process of collecting, and may well persuade other movements to make similar strides in the future.

Je Suis Charlie

According to the U.S. patent and trademark office, two applications were filed for “Je Suis Charlie,” Paris’ iconic rallying cry following the 2015 Charlie Hebdo attack. Recently, the Washington Post proffered a commentary on the increasing frequency by which private individuals and businesses have applied for Trademarks in the wake of public tragedies.

As discussed in Dennis C. Abram’s article “Je Suis Public Domain,” opportunists see great economic potential in creative output, such as slogans that encapsulate the essence of collective spirit following great tragedy. Such attempts are rarely, if ever, legally recognized. U.S. law dictates that a trademark must have some connection to a good or service that is being promoted and visually identified so as to distinguish it from other similar products. 

First Amendment and Vandalism: The Case of the Illuminator Art Collective

While material items such as posters, sculptures and pamphlets evoke the classic definition of a political artifact, performance remains an apt medium for the dissemination of socio-political critiques. Inherently uncommodifiable, performance art often prioritizes the immediate interaction of participants involved in political protests over secondary documentation in the form of photographs or videos. Groups like the Guerilla Girls, the famed feminists whose performances spurned valuable dialogue regarding institutional racism and sexism within the art world, have put art activism on the map in recent decades.

Similarly, the New York City-based Illuminator Art Collective (IAC) stages political protests at famous sites such as the Metropolitan Museum of Art and the United Nations Building, where these iconic structures become the conceptual canvas upon which political critiques are projected. Using a specially designed van that holds a projector on its roof, the group projects messages and symbols meant to provoke dialogue and reveal the secrets these institutions are inclined to keep hidden. The group’s tactics reveal a curious relationship between art activism and the First Amendment, as well as how the seemingly universal definition of vandalism must be altered to adapt to new technologies and artistic visions.

The group’s work highlights this fascinating intersection between art activism and law. On September 9, 2014, three members of the group, Kyle Depew, Grayson Earle and Yates McKee, were arrested for unlawful posting of advertisements, when they projected images on the façade of the Metropolitan Museum of Art. The images were critical of billionaire businessman David Koch, who had recently donated $65 million dollars to the museum in exchange for the museum’s public plaza being renamed after him. IAC’s projections were critical of Koch’s environmental stances, namely his denial of climate change. While parked on a public street, the van was approached by a NYPD deputy, who later seized the group’s projector equipment and arrested the three on the charge of unlawful posting of advertisements. Before these charges were formally dropped by a criminal court, the city of New York issued criminal summonses for three members. NYPL §145.30 “forbids unauthorized individuals from posting, painting or otherwise affixing to the property of another person any advertisement, poster, notice or other matter designed to benefit a person other than the owner of the property.” The law appears to be an adequate measure in protecting businesses from becoming hosts to unwanted advertisements from third parties. In instances of political protest however, does the projection of commentary on the exterior public space fit this definition? While the city of New York seemed to think so, the charges were ultimately struck down in criminal court, with IAC’s lawyer Sam Cohen rightly pointing out that a streaming projection fails to fit the standard definition of “affixing. ”

It follows that if IAC’s political projections fail to meet the definition of unlawful posting of advertisements; they similarly fail to match the legal requirements of vandalism. Vandalism is defined as the deliberate defacing or destruction of property. While it is clear that plastering a non-affixable projection to the façade of a building fails to constitute destruction, does it deface? Defacing implies the marking of a surface-though not in a severe a fashion as destruction. Therefore, IAC’s unique brand of projector activism exists as a clever exercise of first amendment free speech.

CONCLUSION

As curators and archivists undertake the arduous process of compiling artifacts for physical and digital preservation, many questions remain about the legality and posterity of protest art. What is the optimal manner by which to preserve political or artistic ephemera? Who is best situated to protect artists’ rights to create and capitalize on their own art? What do keepers of protest art see when they preserve or trade in this kind of creative output? While political upheaval and tragedy prompt inflections from diverse global communities, museum archivists and administrators as well as art dealers and collectors look to preserve the artifacts for entirely different reasons. Due to the changing and often unsettled landscape of political protest art, artists and collectors alike may find themselves in need of legal advice to obtain information about available protections and defenses.

Note: This article is reprinted with permission from Entertainment, Arts and Sports Law Journal, Summer 2016, Vol. 27, No. 2, published by the New York State Bar Association, One Elk Street, Albany, New York 12207.

About the Author: Scotti Hill is a J.D. Candidate, 2018 from the S.J. Quinney College of Law at the University of Utah. She served as a summer 2016 intern for the Center for Art Law, and she can be reached at scottiaustinhill@gmail.com.

5 Charged with Selling Non-Genuine Native Goods: A Violation of the Indian Arts and Crafts Act

*By Lillia McEnaney

Center for Art Law previously reported In Brief that, in March 2016, the U.S. Attorney’s Office in the District of Alaska charged a handful of individuals with violating the 1990 Indian Arts and Crafts Act (IACA). Following is an in depth background of the case and a discussion of relevant statutes

The Indian Arts and Crafts Act

Screen Shot 2016-08-05 at 4.07.08 PM.pngPassed in 1990, the Indian Arts and Crafts Act is a federal truth-in-advertising law that prohibits the sale of goods that incorrectly claim to be Native produced. In the United States, there are 1.9 individual Native people who are members of the 567 state and/or federally recognized tribes. If an artist or an art dealer fraudulently claims that any of their wares were produced by an individual or group of Native Americans, they are in direct violation of IACA.

The current law is based off a 1935 Act of the same name that aimed to “promote the development of Indian arts and crafts.” This original legislation also created the Indian Arts and Crafts Board (IACB). The IACB’s purpose is to enforce IACA and ensure the “genuineness and quality” of Native works on the art market. Today, the IACB has the power to refer complaints to the FBI or to the Secretary of the Interior for investigation. After reviewing the investigatory report issued by either the FBI or the Secretary of the Interior, the IACB may recommend to the Attorney General that charges be filed against individuals who violate the IACA. Additionally, the IACB can create and register trademarks that are authentically Native American or Alaskan. In 2000, Congress amended the IACA to improve its enforcement procedures.

If found guilty, an individual who violates the IACA may face up to a $250,000 fine or imprisonment for no more than five years. If found guilty of more than one charge, that person may be fined up to $1,000,000 and imprisoned for up to 15 years.

Past IACA Cases & Criticism

A 2011 Government Accountability Report showed that the IACB received approximately 650 violation complaints between 2006 and 2010. The report indicated that 150 of these complaints suggested substantial IACA violations and 117 cases needed additional investigation. After receiving a complaint, the IACB can either pass the information to the FBI, to the Secretary of the Interior, or recommend to the Attorney General that charges be filed. Despite the fact that a violation of Indian Arts and Crafts Act is a federal matter, none of these cases have ever filed in federal court.

In total, only five people in five separate cases have been found guilty of violating the IACA between 1990, the year  Congress passed the IACA, and 2010. Two of these cases were dismissed and violators in the remaining three were sentenced to either probation or up to 13 months’ jail time.

Few Indian Arts and Crafts cases result in prosecution because the IACB focuses on preventative education rather than practical enforcement of the law. Reportedly, one of the Board’s most common methods of investigation is to send a form letter to suspected offenders. The letter detailed the guidelines put forth by IACA and described the penalties of violation. 

Additionally, the U.S. Government Accountability Office (GAO) suggested that reliable and objective data on the size of the market for Indian arts and crafts is sparse. Limited market data makes it even more difficult to propose a plan to stop this practice  because it is not always easy to tell the difference between a fake and an authentic piece, even for experts. Wayne Bobrick of Wright’s Indian Art in Santa Fe has said that “[t]here are some things that are obvious, but if they do it well enough, anyone can be fooled.” Additionally, though it is most common for non-Natives to claim to be Native, it is also common for some Native Americans to buy imported goods and pass them off as their own, authentic work, according to Tony Eriacho, a Native artist and activist. Taking these factors into account, the GAO also determined that conducting a more thorough and complex study would be costly and would most likely produce similarly biased results.

One substantial criticism of the IACA is that the Act does not protect artists that do not belong to federally recognized tribes. Currently, there are approximately 250 tribes in the United States that are not recognized by the Bureau of Indian Affairs or by their respective state’s government. Artists that belong to any of these communities are not protected by the Indian Arts and Craft Act, and are not even able to market their arts and crafts as “Indian-made.” This has massive implications, as many non-federally recognized Natives are no longer able to sell their authentic wares in fear of criminal prosecution. Lack of representation here is, of course, just one of many legal disadvantages that unrecognized tribes currently face.

Case Study: Five Charged with Selling Non-Genuine Native Goods

In May 2014, a team comprised of the Department of Justice, the IACB, and the Alaska Attorney General’s Office Consumer Protection Unit began an investigation of four Alaskan business owners under the accusation of violating the Indian Arts and Crafts Act. The investigation was prompted by complaints filed by summer tourists in Alaska. The tourists were allegedly told that various bone carvings that were for sale were made by Alaskan Native peoples. This inspection, spearheaded by the DOJ, is the result of an investigation conducted by the United States Fish and Wildlife Service (USFWS) that previously found these businessmen guilty of misrepresenting their goods. An undercover USFWS agent paid $1,985 for the non-genuine pieces at the store.

The people charged include “Vinod ‘Vinny’ L. Sippy, 38, d.b.a. Diamond Island, Icy Strait, and Gemstone Heaven; Juneau resident and business operator Norma M. Carandang, 60, d.b.a. Northstar Gift Shop; Puerto Rican resident and Ketchikan business owner Gabriel T. Karim, 33, d.b.a. Alaskan Heritage; Skagway resident and business owner Rosemary V. Libert, 56, d.b.a. Lynch and Kennedy Dry Goods, Inc.; and Libert’s seasonal employee, a resident of Huntington Beach, California, Judy M. Gengler, 65.” They are charged with, according to the DOJ, “the illegal misrepresentation of bone art carvings as made by Alaska Natives or Indians, when in fact they were made by local non-native carvers.”

When brought before the court, Sippy pleaded guilty, while Carandang pleaded not guilty. Because Sippy pleaded guilty, the arraignment also served as his sentencing. He “agreed to pay a $3,500 fine, make a $3,500 donation to the IACB, distribute a public apology letter and he will serve five years of probation.”

At the time of writing, the case was pending in the U.S. District Court for the District in Alaska.

UPDATE: On September 2, 2016, Ms. Libert was found not guilty of misrepresenting Native produced art in federal court on Friday. See Libert Letter to the Editor of the Skagway News.

Conclusion

In the 21th century, enforcement of IACA and regulating markets is becoming more difficult due to the growing online economy. E-commerce websites such as Etsy and eBay have “rapidly outpaced the law.” Though IACA protective mechanisms are strong, its Board may need  to reimagine the way in which the law is enforced in today’s digital economy.

The enforcement of IACA relies heavily on the public. When purchasing Native goods, purchasers should make sure to ask their art dealer for the artist’s information and for a written certificate for authenticity. If this cannot be provided, purchasers should consider giving this information to the IACB through a formal or informal complaint. Consumer information plays a vital role in the enforcement of the IACA and in maintaining a fair market for Native communities.

Sources:

*About the Author: Lillia McEnaney is an undergraduate at Hamilton College where she is studying Archaeology and Religious Studies and was recently appointed a Casstevens Research Scholar. Lillia is a research assistant in Hamilton’s Religious Studies Department, the Blog Intern for the Council for Museum Anthropology, the Webmaster for Art/Place Gallery, a 2016 Summer Intern for the Smithsonian’s National Museum of the American Indian, and an intern for the nonprofit organization SAFE/Saving Antiquities for Everyone. Lillia may be reached at: lmcenane@hamilton.edu.

Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.

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.

This slideshow requires JavaScript.

 

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.

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

By Elizabeth Weber, Esq.*

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

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

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

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

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

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

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

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


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

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

Sources:

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

Spotlight: UNESCO and the World Heritage Convention

By Lindsay Dekter*

We must construct the defenses of peace in the minds of women and men.
-UNESCO Motto

A look at the history, framework, and impact of UNESCO’s World Heritage Convention and the work of the World Heritage Committee following UNESCO’s seventieth birthday this past November.

image 1.png

Krakow, Poland, Historic Center, was amongst the first designated sites and the Celsus Library, Ephesus, Turkey, was amongst most recently designated sites. Left image by Ludvig14 / Right image by Benh LIEU SONG

Historical Background

In reaction to the destruction of two world wars, the United Nations, established in 1945, identified the need for an intergovernmental organization with values anchored in peace making and collaboration. The goal of founding such an organization was to unite heterogeneous social and political regimes worldwide in order to prevent the future occurrence of atrocities like those experienced during the first half of the twentieth century. With that in mind, 37 countries founded the United Nations Educational, Scientific and Cultural Organization (UNESCO) in the months following the end of the Second World War; within a year, twenty countries, including Egypt, Canada, Turkey, the United States, the United Kingdom, and China, ratified the Constitution of UNESCO, and met at the first General Conference of UNESCO in November of 1946 in Paris. UNESCO gained more international support in the 1950s and 1960s when additional countries throughout Asia, Africa, and Europe became members. Seventy years after its inception, UNESCO continues to garner international approval from both long-time and new members, the most recent of which include Montserrat (2015) and Anguilla (2013). Today UNESCO has 195 Member States.

image 2

Distribution of UNESCO Member States by region / Image courtesy of UNESCO

UNESCO was responsible for a number of important global initiatives in its infancy, including recommendations that Member States make primary education “compulsory and universal,” and the extension of international copyright protections. Beginning as early as 1960, UNESCO realized a series of worldwide campaigns and conferences focused on environmental and cultural heritage protection, marking the beginning of the organization’s tenure in a more than half-century-long endeavor in preserving place.

UNESCO and World Heritage

Although UNESCO was officially established in the 1940s, it was not until was 1972 that the General Conference of UNESCO adopted The Convention concerning the Protection of the World Cultural and Natural Heritage. That Convention emerged out of growing international concern for the protection of humanity’s shared natural and cultural heritage, which had become threatened, or in some cases altogether destroyed, by increasing globalization and urbanization during the mid-twentieth century. Four years after adopting the Convention, UNESCO formed the World Heritage Committee (pursuant to Article 8 of the 1972 Convention) to oversee its implementation, allocate monies from the World Heritage Fund (pursuant to Article 15), and consider nominations for inscription on the World Heritage List. The Committee has met annually since 1977 in order to discuss sites on the World Heritage List. During the annual meeting, the Committee reviews the preservation and management of inscribed sites and adds or removes sites from the World Heritage List; any sites in danger are added to the List of World Heritage in Danger. The Committee additionally concerns itself with programs aimed to increase States Parties’ involvement in the protection of cultural and natural heritage, and also amends or creates new programs and policies that ensure the ongoing success of the Convention’s goals.

The World Heritage Committee itself is made up of 21 representatives from various signatory nations who are elected during the ordinary session of the General Conference of UNESCO. Members of the Committee can serve for six years, though most elect to serve for only four. 191 countries and territories have signed the World Heritage Convention to date (almost all of UNESCO’s members), meaning they have committed to preserving World Heritage sites located within their political boundaries as well as their national (non-UNESCO inscribed) heritage. The most recent countries/territories to ratify the Convention include Brunei and Palestine (2011), Singapore (2012,) and The Bahamas (2014). The first included the United States in 1973, followed by nine countries including Australia, Bulgaria, Iraq, and Sudan in 1974. 1975 and 1992 were the two biggest years for new signatories, with 10 and 9 new countries ratifying the Convention, respectively.

Identifying World Heritage

What qualifies as World Heritage is defined in Article 1 and 2 of the World Heritage Convention. In short, and informally, UNESCO’s definition of World Heritage includes the natural or cultural wonders of the world (or a combination of the two). More formally, and drawing from the language of Article 1 of the World Heritage Convention, cultural heritage worthy of inscription on the World Heritage List includes: architectural monuments and/or monumental works of art; groups of buildings, connected by geography or style; cultural landscapes that are a mix of monumental art, architecture, and nature; or archaeological sites. Pursuant to Article 2 of the World Heritage Convention, natural heritage includes: physical, geological, physiological, and/or biological formations or groups of such formations; areas that represent the habitat or of threatened animals and plants; or sites of considerable value to science and conservation, or that represent places of considerable beauty. Any site that is considered World Heritage, natural or cultural, must demonstrate “outstanding universal value from the point of view of history, art or science,” or “outstanding universal value from the historical, aesthetic, ethnological or anthropological point of view.”

Outstanding Universal Value is precisely the operative principle guiding States Parties in selecting sites for consideration as additions to the World Heritage List. There are ten criteria under which a site can be understood as having Outstanding Universal Value, outlined in the Operational Guidelines for the Implementation of the World Heritage Convention. For a site to be eligible for inscription on the World Heritage List, it must represent at least one of the ten criteria, which includes qualities like creative genius, uniqueness, associations with events, people, or places of historical importance, natural phenomena, aesthetic importance, habit preservation, cultural traditions, and so on.

In addition to Outstanding Universal Value, the Committee considers the integrity and authenticity of a site, as well as how the site will be managed and protected. Integral to site management is a State Party’s ability to demonstrate legislative or other regulatory protective frameworks at either the national or local level, as well as plans for monitoring and reporting changes and activity at the site. Each year the Committee considers no more than 45 nominations for review, with priority given to unrepresented or underrepresented States Parties and/or underrepresented types of heritage. No State Party may submit more than two nominations at one time, or one natural and one cultural heritage nomination.

Nominating World Heritage

The nomination process begins well before the official dossier is compiled and submitted to the Secretariat by a State Party. A site is only considered for nomination once a State Party creates and submits a tentative list of properties that interested parties (NGOs, INGOs, government agencies, cultural groups, and other stakeholders) agree exhibit Outstanding Universal Value per the World Heritage Convention and Operational Guidelines. The Tentative List must be submitted at least one year prior to the submission of an official nomination, and a nomination can only be submitted for a site that appears on the list. Once the Tentative List is submitted, it is up to the State Party to revise the list, although the Committee recommends States Parties update tentative lists every ten years.

Following the submission of a Tentative List, the State Party must then complete the official dossier for its nominated site. A complete nomination includes the following nine components:

  • Identification of the property;
  • A description of the property;
  • The justification for inscription (paragraph 77 of the Operational Guidelines);
  • A description of the state of conservation of the site and any factors that affect the site;
  • Plans for protection and management;
  • Monitoring plans;
  • All documentation relating to the site (drawings, maps, archival documents, photographs);
  • Contact information for the site’s authority;
  • The signature of the State Party (nominator).

Recognizing that States Parties may require assistance during the nomination process, the World Heritage Committee offers support by providing samples of successful dossiers, examples of robust legal protections and management plans, and direction and information for accessing archival or other documentary material; templates are also provided for organizing documentary material. Additionally, and upon request, the Secretariat will review draft dossiers and provide comments to the nominating State Party prior to official submission.

image 3

 Map of all UNESCO designated World Heritage Sites as of 2015 / Image by NordNordWest

Once complete, the dossier is registered by the Secretariat and then passed on to the appropriate cultural or natural resources Advisory Body, either ICOMOS (International Council on Monuments and Sites) or IUCN (International Union for Conservation of Nature and Natural Resources). One of three recommendations is then made: inscribe the site to the World Heritage List; do not inscribe the site to the World Heritage List; or refer or defer for further research, explanation, or documentation. A successful nomination usually takes one and a half years from the time the dossier is registered to when a site is inscribed to the World Heritage List. The process cannot be completed in a shorter timeframe due to the requirement for registering a site on the Tentative List and the time required to conduct thorough site-specific research. Furthermore, a successful nomination often requires coordination between local, national, and international stakeholders, which in itself can be a multi-year process.

The World Heritage List

The World Heritage List was created in 1978 as a primary function of realizing the protection of world heritage under the World Heritage Convention. Per Article 11 (2) of the Convention, the World Heritage Committee must maintain and publish an up-to-date list of sites. The first sites were inscribed to the World Heritage List in 1978—12 in total—and included the Historic Centre of Kraków (Poland), Aachen Cathedral (Germany), Yellowstone National Park (United States), and Simien National Park (Ethiopia), to name a few. Today there are 1031 total sites that represent 163 States Parties, 24 of which were added during the 39th session of the World Heritage Committee in Germany in July of 2015.

Screen Shot 2015-12-23 at 12.54.09 PM

Aachen Cathedral, Germany, and Simien National Park, Ethiopia, were amongst the first twelve sites inscribed to the World Heritage List in 1978. Left image by Ministry of Building and Transport / Right image by Christof Schenck

The benefits of inscription are numerous and can include financial support, advocacy, physical conservation, economic development opportunities, international awareness, and political protection, amongst others. One of the earliest inscribed sites, the Pyramid Fields from Giza to Dahshur in Egypt, added to the World Heritage List in 1979, benefited from the expertise, financial support, and political influence of inscription when infrastructure development threatened the site’s integrity in the mid 1990s. Following evaluation, reporting, and reminders of Egypt’s obligations to protect the site as a signatory of the World Heritage Convention, UNESCO successfully negotiated development alternatives with the Egyptian government to preserve the integrity and Outstanding Universal Value of the site. The World Heritage Convention has been successfully used as a political and regulatory tool numerous times over the last four decades as evidenced by sites like the Royal Chitwan National Park in Nepal, where UNESCO challenged a river diversion project that would have threatened wildlife protection, and the Old City of Dubrovnik, where UNESCO provided financial support and professional expertise to repair historic buildings damaged by war in the early 1990s. Had these sites not been inscribed on the World Heritage List, their preservation would have been more difficult and certainly not realized in such an effective and quick way, if at all.

Screen Shot 2015-12-23 at 12.57.49 PM

Royal Chitwan National Park and the Old City of Dubrovnik received political and financial support for preservation thanks to inscription. Left Image by Casper Tybjerg / Right Image by Francesco Bandarin

The List of World Heritage in Danger

An integral component for thwarting unwanted change to world heritage sites—change that is incongruent with the World Heritage Convention—is the List of World Heritage in Danger. The List of World Heritage in Danger is a function of the World Heritage Convention, Article 11 (4), that allows the Committee to monitor and respond to both “ascertained” and “potential” danger at inscribed sites (Paragraphs 179 and 180 of the Operational Guidelines). It “is designed to inform the international community of conditions which threaten the very characteristics for which a property was inscribed on the World Heritage List, and to encourage corrective action.” Corrective action is manifested in a variety of ways, depending on the threat, the site, and other factors, and can include launching an awareness campaign or reconstruction of a damaged site. Although States Parties are supposed to inform the World Heritage Committee of threats to a site’s Outstanding Universal Value, UNESCO welcomes dialogue about these issues from any person or organization. There are currently 48 sites on The List of World Heritage in Danger (roughly 5% of inscribed sites). A site is removed from the List of World Heritage in Danger only once the appropriate measures have been taken to restore the site’s heritage value, or when its Outstanding Universal Value has been or will be altogether destroyed with no plan for remedy. In the latter case, which is very rare, the site is removed from the World Heritage List.

Screen Shot 2015-12-23 at 1.02.22 PM

Hatra, Iraq, and Old City of Sana’a, Yemen, both added to the List of World Heritage in Danger in 2015, and likely destroyed (at least partially) during conflict and/or acts of terror in the region this year. This information, unfortunately, has not been updated in UNESCO’s database or documents. Left Image by Véronique Dauge / Right Image by Jean-Jacques Gelbart

Since the inception of the World Heritage List, only two sites have been delisted. The first, the Arabian Oryx Sanctuary in Oman, was delisted in 2007 following increased poaching and habitat destruction within the conservation area; the second, the Dresden Elbe Valley, was added to the List of World Heritage in danger in 2006 and delisted in 2009 following a plan to construct a four-lane bridge through the center of the landscape. In both cases the Committee worked with the States Parties to find some resolution, but determined that the Outstanding Universal Value inherent to each site had been or would be destroyed by the respective countries’ decisions. The List of World Heritage in Danger is an integral component of the Convention that allows the Committee to exercise its power over site management, but is not without limitations. For example, some sites have been on the list since the 1980s and 1990s, while other sites on the List have been completely destroyed.

Conclusion

The World Heritage List has been generally successful at promoting the preservation of inscribed sites. Indeed, inscription on the World Heritage List gives States Parties access to financial support and international conservation campaigns, and gives them greater access to specialist knowledge through international partner organizations, which in theory contributes to better preservation and site management. Like the Pyramid Fields in Egypt mentioned previously, many sites have benefited from inscription on the World Heritage List over the last four decades, including the Archaeological site of Delphi in Greece, where development was thwarted in favor of inscription, or the safeguarding of Venice, UNESCO’s longest running campaign and inspiration for the creation of the World Heritage Convention. Even sites believed to suffer irreparable damage like the Old City of Mostar or the mausoleums recently destroyed in Timbuktu have benefited from inscription, drawing the attention and support of the international community for reconstruction.  

The world has recently witnessed the shortcomings of the World Heritage Convention, however, which is particularly evident at many sites in the Middle East that, despite inscription, could not be saved from complete destruction. The Temple of Baalshamin. the Temple of Bel, and the Arch of Triumph, all located in the ancient city of Palmyra in Syria, or Hatra in Iraq, are just a few of the many UNESCO-inscribed World Heritage sites destroyed by the Islamic State. The list grows when sites destroyed by other militant groups or acts of war are included, such as Aleppo in Syria, or when the Tentative List is considered, where sites awaiting inscription to the official World Heritage List have already been obliterated (the Ancient City of Nineveh in Iraq, for example) . Despite numerous international campaigns that sought to prevent damage to these sites, the lack of political influence from the world’s foremost heritage preservation organization was made abundantly clear, and its inability to mandate preservation and assist States Parties in protecting their sites has frustrated many. The situation has reached the point that many individuals and small organizations are now leading monitoring and response projects rather than UNESCO itself. In fact, UNESCO has yet to update any information about the aforementioned sites (and others in danger) on their website. Certainly the protections and resources inscription affords should not be minimized since positive outcomes are evident, nor should the knowledge, intentions, or contributions of individuals working within UNESCO. Yet the limitations of the World Heritage Convention, particularly with regard to its inability to protect heritage in times of conflict, or the lack of authority it wields in sanctioning States Parties who fail to comply, have become increasingly visible as global hostilities intensify. In light of these trends the efficacy of UNESCO and the World Heritage Convention in promoting peace and preservation outside of times of peace does seem minimal, if not entirely impossible. While the ideology of the Convention is proactive in nature, its power, it seems, is in its ability to treat a wound rather than prevent it.

image 10

Temple of Bel, Palmyra, before and after satellite images of Islamic State led destruction. This site was added to UNESCO’s List of World Heritage in Danger in 2013, and despite numerous international campaigns, could not be saved. Image courtesy of The Times.

To that end, and as the result of the recent and unprecedented destruction of World Heritage sites, the influence and value of UNESCO, particularly the cultural arm responsible for the World Heritage Convention, has come under considerable scrutiny. Perhaps the recent Islamic State led destruction of UNESCO World Heritage sites (and other war-related destruction in the region) will one day be counteracted by virtue of inscription like the sites in Mostar and Timbuktu. While certainly reconstruction is not the ideal method of heritage preservation, recent events elucidate a systemic failure in UNESCO’s ability to proactively protect world heritage when it is most vulnerable, and instead points toward its capacity and proficiency for triage post-conflict. Considering, though, the powerful language of UNESCO’s Constitution that elaborates a commitment to peace, collaboration, and mutual respect and welfare on a global level, it is obvious the organization’s initiatives and members were not intended to simply observe and respond to world affairs once the air has cleared, but to instead lead through the haze. With that in mind, it may be time to reevaluate UNESCO’s international influence generally. More specifically, and with the knowledge of more than forty years of practice, it is almost certainly time to revisit the World Heritage Convention in order to establish what it is actually capable of achieving, and whether authoritative leadership is an improbable fantasy or feasible reality. Whatever the case, adjustment to either doctrine or practice (or both) is necessary.

Select Sources:

  • World Heritage Centre, Operational Guidelines for the Implementation of the World Heritage Convention, UNESCO, file:///Users/Home/Downloads/document-57-1.pdf (July 8, 2015).

*About the Author: Lindsay Dekter is a Center for Art Law Intern (Fall 2015) and a graduate student at New York University in the Program in Museum Studies. She holds a BA in Cultural Geography and an MS in Historic Preservation. Her current studies focus on museums and legal issues, cultural heritage policy and preservation, ethics, provenance research, and restitution.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Any views or opinions made in the linked article are the authors alone. Readers are not meant to act or rely on the information in this article without attorney consultation.

The National Historic Preservation Act at 50: A Look at the Historic Preservation Movement in the United States

By Lindsay Dekter*

The current heritage climate, which sees the seemingly endless circulation of heart-wrenching images of the destruction of cultural heritage in the Middle East, or the recent ICC prosecution that serves as a reminder of the destruction of cultural heritage in Mali in 2012, can at times make it difficult to remember the significance of work done by heritage professionals, the power of heritage policy, or the field’s achievements more generally. By retreating momentarily from the current global heritage crisis we can appreciate one such success–the National Historic Preservation Act–in the United States, where celebrations in honor of the 50th anniversary of the country’s national heritage legislation have already begun. Highlighted below are some of the important milestones, groups, and laws that informed the National Historic Preservation Act’s creation and content, as well as an overview of one of the Act’s most powerful tools: the National Register of Historic Places.

Next year marks the golden anniversary of the National Historic Preservation Act, and celebrations are occurring nationwide to honor the landmark legislation (no pun intended).  Festivities have already begun in New York, where events surrounding the anniversary of the New York City Landmarks Law of 1965 are taking place. Two programs scheduled for October alone are sure to impress, including the Transit Museum’s exhibition “New York’s Transportation Landmarks,” which celebrates all things historic and transit in the five boroughs (closing November 1, 2015), or the recent New York City Bar sponsored “History in the Making: The New York City Landmarks Law at 50,” a one-day conference held on October 26, 2015 that brought together experts to discuss the past, present, and future of the New York City Landmarks Law.

For those municipalities or jurisdictions not celebrating a landmarks law anniversary, Preservation50, a coalition of national, state, and local preservation groups managed by Cultural Heritage Partners and the Heritas Group, is coordinating and connecting events to commemorate 50 years of the National Historic Preservation Act (NHPA) throughout the United States. These events, while meant to celebrate the history of federal landmarks legislation, also aim to connect leaders in the field for strategic planning that will ensure the continued success of the National Historic Preservation Act into the future.

Legislating Preservation Activity in the United States

The twentieth century proved itself a particularly hostile period for America’s historic and natural treasures. Although the country’s heritage had suffered losses during the early twentieth century, the losses to the built environment in particular intensified during the post-war period, when cities experienced acute changes in both the use and perception of place and space, the result of new practices in manufacturing and urban planning and redevelopment, as well as suburbanization, to name a few. The threat toward and actual destruction of historic and natural sites leading up to and during the mid century saw the founding of numerous historic preservation groups throughout the country that sought to address issues locally. One such group, established in 1920, was the Preservation Society of Charleston. In 1931, the Society, prompted by the recent U.S. Supreme Court Euclid v. Ambler Realty Company decision, was integral to establishing the first preservation-related zoning ordinance in the United States (in Charleston) that specifically addressed the protection of built heritage. Following the Euclid decision, municipalities were enabled to create similar zoning ordinances that regulated use and would protect historic structures. The primary means of doing this was through the designation of an historic district, which remains a popular tool for protection today. In the case of Charleston this was made manifest through the creation of the Old and Historic District, which not only demarcated a specific geographic area for protection, but authorized the establishment of a specialized, managing group–in this case the Board for Architectural Review–who oversaw (and continues to oversee) all changes to buildings within the District’s borders, whether alterations or new construction. The Board has the authority to approve or reject any proposed changes in the district, a procedure mirrored in similar ordinances nationwide.

The 1926 Euclid v. Ambler decision set an important precedent for preservation when it found that certain regulations imposed for public welfare are constitutional under the Fourteenth Amendment as a viable public interest, and did not constitute a taking under the Fifth Amendment. Plaintiff Ambler Realty Company, a firm in possession of valuable land in the town of Euclid, Ohio (a budding suburb of Cleveland), claimed that the town’s recent zoning ordinances which established regulations for activity (commercial, manufacturing, residential) and height significantly reduced the value of their lands by restricting how they used it, amounting to a “[deprivation] of liberty and property without due process of law.” In defense, the town of Euclid asserted its right to manage municipal zoning and felt the plaintiff’s charge was premature, in that zoning does not by default lower the value of land. Applying the doctrine of nuisance, the Supreme Court sided with Euclid, finding that zoning was a perfectly legitimate extension of the village’s police power rather than a violation of Ambler’s property rights, because such regulation served the public good.

With the help of local preservation organizations and activists, similar ordinances were adopted by other municipalities from the 1930s onward. In 1937, New Orleans became the second city in the United States to adopt a preservation-specific zoning ordinance. New Orleans’ and Charleston’s ordinances, and others like it, provide a regulatory framework intended to mitigate change to or impact on built heritage within a district or overlay through a review process. Although the mechanism that triggers review varies from place to place, generally any changes within the physical boundaries of the area under protection–alterations to extant buildings within a district, proposals for demolition and/or new construction, or the addition or subtraction of historic resources from within the physical boundaries of the area under protection–are cause for consideration and action by a municipality’s heritage managers. At the very least such ordinances outline the boundaries of the area under protection, identify a regulatory entity and its power, and include instructions for any proposed changes within the district.

Today place-specific preservation ordinances are responsible for the protection of some of the country’s most cherished historic buildings and town centers, including the Vieux Carré, part of New Orleans’ early eighteenth-century French Quarter, Savannah, Georgia’s famous squares and parks, and the area surrounding the Alamo in San Antonio, Texas. The efficacy of these ordinances and their adoption throughout the United States during the early and mid-twentieth century has been central to influencing state and federal legislation addressing the protection of historic sites and, as previously noted, continue to be a primary tool for preservation planning in America.

Vieux Carré street scene, photo by Byron Fortier, courtesy of the National Park Service

Vieux Carré street scene, photo by Byron Fortier, courtesy of the National Park Service

Forsyth Park, Savannah, courtesy of the National Park Service

Forsyth Park, Savannah, courtesy of the National Park Service

 

The preservation of America’s heritage in the first half of the twentieth century was not limited to local efforts. Federal legislation to protect America’s “historic landmarks, historic or prehistoric structures, and other objects of historic or scientific interest” actually began in 1906 with the Act for the Preservation of American Antiquities, which created penalties for the destruction of cultural heritage and marked the beginning of a national effort to identify heritage sites for preservation. Shortly thereafter a new arm of the Department of the Interior was established–the National Park Service–to facilitate the protection of the national monuments designated by the President under the power of the 1906 Antiquities Act. Because the Antiquities Act applied only to federal lands, new legislation was passed in 1935 that bolstered the protection of the country’s cultural heritage. The Historic Sites Act extended the protection offered by the Antiquities Act and declared it “national policy to preserve for public use…and benefit of the people of the United States” sites located on both public and private lands. The Act also called for the survey and inventory of “historic sites, buildings, and objects of national significance,” managed by the National Park Service, thereby increasing the bureau’s reach in the effort to protect monuments, sites, and buildings of national significance through commemoration.

Although by mid century both local and federal legislation was in place to protect historic resources in the United States, the loss of natural and cultural heritage continued. Noting this, and as an attempt to unify the regulations and activities of local groups throughout the nation (and apply further protections where none existed), a small group that included David E. Finley, Jr., first director of the National Gallery of Art, formed and established the National Trust for Historic Preservation in October of 1949. (Interestingly, the National Gallery of Art, itself established in 1937 and opened in 1941, is not listed on the National Register of Historic Places, though it sits on the landmarked National Mall and on National Park Service land.) The National Trust for Historic Preservation (NTHP) was modeled loosely on the National Trust for Places of Historic Interest and Natural Beauty in England, founded in 1895 and given legal power by 1907. The National Trust for Historic Preservation aimed to “facilitate public participation in the preservation of sites, buildings and objects of national significance or interest.” The main activities of the Trust were to include acquiring and managing national historic sites (called National Trust Historic Sites) and liaising with preservation partners throughout the country. As of 2015, the National Trust has designated and is responsible for managing 27 sites, including Mies van der Rohe’s Farnsworth House in Illinois, Drayton Hall, the oldest preserved plantation house located in South Carolina, Acoma Sky City, a nearly thousand-year-old example of Pueblo architecture in New Mexico, and Touro Synagogue, the country’s oldest synagogue dating to 1763, located in Newport, Rhode Island. The Trust’s mandate has since expanded to include additional activities such as preservation advocacy, funding, and education and outreach, thanks to the 1966 National Historic Preservation Act (NHPA). Adopted on October 15, 1966:

The National Historic Preservation Act (NHPA), 16 U.S.C. §§ 470a to 470w-6, is the primary federal law governing the preservation of cultural and historic resources in the United States. The law establishes a national preservation program and a system of procedural protections which encourage the identification and protection of cultural and historic resources of national, state, tribal, and local significance.

Recognition of the importance of the federal government’s involvement in preserving the nation’s “irreplaceable heritage” (Section 1(b)(4)) was a vital gesture at this time, with municipalities struggling to effectively respond to numerous threats against the built environment. The 1963 demolition of McKim, Mead, and White’s Pennsylvania Station in New York City is perhaps one of the most well known losses during this time, and catalyzed the campaign for a national regulatory framework. With the NHPA came specific federal and state preservation policies and responsibilities as well as, and most importantly, the formalization of site commemoration that was begun with and integral to the Historic Sites Act. With the NHPA, protective landmarking was realized through the National Register of Historic Places.

Pennsylvania Station 1911, New York (demolished 1963), courtesy of Wikimedia Commons

Pennsylvania Station 1911, New York (demolished 1963), courtesy of Wikimedia Commons

Garrick Theater (Schiller Building) circa 1900, Chicago (demolished 1961), courtesy of Wikimedia Commons

Garrick Theater (Schiller Building) circa 1900, Chicago (demolished 1961), courtesy of Wikimedia Commons

The National Register of Historic Places

The National Register of Historic Places, per Section 101 (a)(1)(A) of Title 1 of the National Historic Preservation Act, is “composed of districts, sites, buildings, structures, and objects significant in American history, architecture, archaeology, engineering, and culture.” There are currently over one million sites listed on the National Register of Historic Places. Sites are added to the Register through nominations prepared by individuals or organizations, which upon completion are reviewed and either approved or rejected by the State Historic Preservation Officer (or SHPO). The SHPO is the local administrative arm of the National Park Service that operates in each state and oversees implementation of the 1966 NHPA. Each state and U.S. territory has its own SHPO, located in the capital city.

The nomination process begins with determining a site or district’s eligibility for listing, determined by the historical or architectural significance of the site, age (generally 50 years or older), and authenticity, or the site’s ability “to illustrate significant aspects of its past” through the physical characteristics that existed during the period of the site’s significance. The National Park Service has created a number of Bulletins to assist in preparing a nomination, as well as templates and examples of successful submissions. Although laborious, the process is straightforward enough that one does not need special training or knowledge to nominate a property for landmark status and protection.

Once the nomination dossier is complete, the preparer submits it for review by their SHPO, who then contacts the owner of the nominated property (or owners in a district), to obtain permission to move forward with the nomination. This step is crucial because without owner consent, the nomination cannot proceed and the benefits of listing, such as increased consideration for protection from harm or demolition, are not afforded to the property or properties nominated. In an effort to balance private property rights with governmental protection of property, the ultimate decision to landmark nationally is retained by the property owner, which complicates using the Register as a reactive preservation tool. Designation is viewed as problematic by some because of the regulations imposed by landmark status–whether national or local–which can be seen as antithetical to development and progress. For this reason, the National Register is not typically the most appropriate tool for reactive preservation, since it is unlikely an owner who wishes to redevelop or demolish his or her property would impose regulations against him or herself.

However, many municipalities have responded to this issue by implementing local laws that circumvent owner permission. One example is the New York Landmarks Law, which authorizes the Landmarks Preservation Commission to designate local landmarks through a review process that includes public hearings and commentary followed by a vote for approval or rejection by the Commission. It is therefore the Commission who decide a site’s status rather than the property owner. While the regulations that govern each municipality differ, this illustrates the important role local law plays in supporting and supplementing the National Historic Preservation Act.

Fortunately, many property owners realize the benefits of a National Register listing, including government funding, tax benefits, preservation education programs, and formal commemoration, and agree to the designation. Removal of a building or site from the National Register of Historic Places is rare, although possible, with only an estimated two percent of all properties removed in the Register’s history. The National Park Services estimates there are over 90,000 individual listings (districts and sites) on the National Register of Historic Places that amount to over one million total properties. As of 2012, fewer than 1800 sites had been removed. Properties can be removed from the National Register at any time and for any reason, which further complicates using the National Register as a tool of protection. A listed property can be sold to a developer, for example, and there is no mechanism in place on the national level to stop the new property owner from altering or diminishing the historic significance of a site, or demolishing the site altogether. However, there are tools that when used in conjunction with formal commemoration strengthen protections on historic properties in perpetuity (or in some cases a designated period of time). A common and straightforward protection is a facade or conservation easement, which essentially grants certain property rights related to use and appearance to a designated governmental or non-governmental preservation organization (the easement-holding organization). This powerful tool is equally beneficial to property owners as it can often be claimed as a tax deduction.

Conclusion

While the roughly 90,000 sites listed on the National Register of Historic Places are certainly cause for celebration as the 50th anniversary of the National Historic Preservation Act draws near, historic preservation remains a contentious issue in the United States, and one that is fraught with contradictions that stem from the country’s ever-evolving identity. Despite the legal protections in place on both the national and local levels, and despite the many groups working to protect America’s history, progress and growth at times remain in opposition to history, memory, and heritage preservation, much like fifty years ago when the Act was adopted. The Act has helped to balance the interests of development and preservation, and to raise awareness about the importance of protecting the country’s heritage, which has been realized more expressly through supporting legislation like local landmarks laws, zoning ordinances, and property easements at the municipal level. The challenge of the first fifty years of the NHPA has been responding to threat through identifying, documenting, and designating historic sites on the National Register of Historic Places, while at the same time connecting a nationwide network of preservation professionals through state and federal programs. The next fifty years of preservation in the United States is sure to be at least as challenging, since leaders in the field must continue to balance responses to threats with the legislative tools available to them, while at the same time repositioning preservation as a field that is not limited to rules and regulations.

Select Sources:

*About the Author: Lindsay Dekter is a Center for Art Law Intern (Fall 2015) and a graduate student at New York University in the Program in Museum Studies. She holds a BA in Cultural Geography and an MS in Historic Preservation. Her current studies focus on museums and legal issues, cultural heritage policy and preservation, ethics, provenance research, and restitution.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Any views or opinions made in the linked article are the authors alone. Readers are not meant to act or rely on the information in this article without attorney consultation.

 

The International Criminal Court Takes on Attacks on Cultural Heritage, But is it Enough?

By Timur Tusiray*

Screen Shot 2015-10-13 at 11.39.07 AM

ICC Press Release, Sept. 30, 2015.

On September 26, 2015 Nigerian authorities surrendered Ahmad Al Faqi Al Mahdi to the International Criminal Court (“ICC” or “the Court”) pursuant to an ICC arrest warrant issued September 15, 2015, charging him with war crimes in connection to the destruction of historic and religious monuments in Mali in 2012. This is the first major case brought by the Prosecutor of the ICC, Fatou Bensouda, since her appointment to this position in 2012, and the first case brought before the ICC to focus solely on the destruction of cultural heritage as a war crime. The warrant and subsequent arrest come as positive developments in the world of cultural heritage protections. However, this case is not likely to be the “gamechanger” some may expect it to be in the future prosecution of the world’s worst cultural property offenders.

Background

The warrant alleges that Al Faqi was a brigade commander in Ansar Dine, a fundamentalist Islamist militant group with ties to al-Qaeda. The warrant also alleges that over a 10-day period in 2012 Al Faqi committed the war crime of intentionally directing attacks against buildings dedicated to religious and historical monuments. Specifically, that he was involved in the destruction of the Sidi Yahia mosque and nine mausoleums in Timbuktu. This case is the first charge resulting from Bensouda’s three year investigation into the conflict in Mali, resulting from Mali’s self referral to the Court on July 13, 2012.

However, this is not the first prosecution of cultural destruction as an international crime. In most recent times, the International Criminal Tribunal of Yugoslavia (“ICTY”) has been one of the primary contemporary international courts to have addressed charges connected to the destruction of religious and historic structures. For example, the ICTY Tadiç case was the first that found the prohibition on attacking cultural property also applied to non-international armed conflicts, while cases like Kardić & Čerkez and Jokiç have further fleshed out individual liability for cultural and religious destruction.

Timing of the Arrest

There has already been criticism of Al Faqi’s arrest, claiming that it targets a mid-level perpetrator rather than the actual leaders of these different armed groups, and more specifically, that the arrest focuses on the crime of cultural heritage destruction over other more serious allegations of murder, torture, and rape occurring during the same period of time in Mali.

Harvard law professor Alex Whiting’s recent article on JustSecurity.org, makes a persuasive case as to the likely reasons for this specific arrest. First, the destruction of cultural heritage is not only a serious crime itself, but is oftentimes linked to some of the gravest crimes perpetrated during times of armed conflict. For example, as cited by Whiting, in the ICTY Krstić Case, the Trial Chamber discussed the connection between genocide and the destruction of culture stating, “The Trial Chamber however points out that where there is physical or biological destruction there are often simultaneous attacks on cultural and religious property and symbols of the targeted group as well, attacks which may legitimately be considered as evidence of an intent to physically destroy the group.” (Krstić, para. 580)

Second, this arrest may be indicative of the limitations inherent in the ICC. With the lack of funding to prosecute every alleged perpetrator, the Court must be strategic in its prosecutions. Furthermore, the jurisdictional limitations of the Court makes them reliant on the cooperation of other nations to deliver suspects for trial. In this case, after three years of investigations, this opportunity to prosecute Al Faqi may have been the best and strongest case presented to the ICC thus far, and one they could not justify refusing.

Finally, this arrest brings to the forefront of the public conscious the destruction of cultural and religious structures during armed conflict as an international crime. This is particularly relevant as the global community has become increasingly concerned and involved in preventing the loss of heritage over the past several decades. While this type of destruction is as old as humanity, over the past several years the call for action has reached a critical mass in lieu of the loss of heritage tied to the invasions of Afghanistan and Iraq, and with the current rise of ISIS and their highly publicized destruction of historic and religious sites and objects under their control.

Application to Contemporary Cultural Heritage Destruction

The case against Al Faqi likely is not the turning point against the contemporary loss of cultural heritage that some may expect it to be. The arrest warrant alleges only the war crime of attacks on cultural heritage, and does not touch upon certain crimes against humanity, such as persecution, which are oftentimes tied to heritage destruction. Furthermore, beyond the issue of the ICC’s limited funding and capacity to robustly prosecute the world’s international crimes, two immediate issues present themselves as roadblocks to the Court’s ability to tackle the loss of heritage as a war crime: (1) personal jurisdiction of the Court; and (2) the subject matter jurisdiction of the Court on war crimes, and its narrow definition of the crime of intentionally attacking protected structures (i.e. religious, historic, medical).

These difficulties can be better highlighted by using Syria as a case study. Over the last year alone ISIS has been on a relentless campaign to destroy historic and religious sites and artifacts across Syria and Iraq. In September of 2015 alone, they destroyed Roman temples in Palmyra, Syria, and they continue to be engaged in the highly industrial looting and international sale of artifacts connected to these sites. Furthermore, ISIS is not the only party active in this field, with Syrian government forces, other militia groups, as well as intervention by foreign militaries (Saudi Arabia, Turkey, the U.S. and Russia) adding to this destruction. Additionally, many of these actors in the Syrian conflict are not parties to the Rome Statute, and therefore are not subject to the jurisdiction of the Court. Among them include Syria, as well as Saudi Arabia, Turkey, the U.S. and Russia. The Rome Statute is the founding treaty of the ICC, which obligates States Parties’ to the treaty to cooperate with the Court’s activities. The ICC would, and indeed has had, significant issues with getting jurisdiction over perpetrators of international crimes in Syria. Even with personal jurisdiction, the Court may not be able to prosecute these perpetrators for war crimes based on the basic definitions of cultural crimes in the Court’s statute as discussed below.

ICC Personal Jurisdiction

Personal jurisdiction is the power of the Court to try specific individuals. Under the ICC Statute, there are three methods in which the ICC has jurisdiction over nationals of non-parties to the ICC Statute.

  1. The ICC may prosecute non-party nationals when the situation is referred to them by the UN Security Council.
  2. Non-party nationals may be prosecuted when they have committed crimes on the territory of a State Party, or of a non-State Party who has accepted the jurisdiction of the Court.
  3. The non-State Party has explicitly consented to the jurisdiction of the Court.

Last year, the UN Security Council already tried to pass a resolution to refer Syria to the ICC, but was vetoed by both Russia and China. With Russia’s recent interventions in Syria and their UN Security Council veto power, UN referral seems less and less likely. Furthermore, the foreign countries most involved in the conflict are also not parties to the Rome Statute, and have not submitted to the jurisdiction of the Court. At this point in time, the ICC could presumably prosecute nationals of State Parties fighting for the various forces on the ground in Syria (e.g. French or British ISIS fighters), but this would likely not encompass the worst of the perpetrators of these alleged international crimes. Finally, the Assad regime will never explicitly consent to the personal jurisdiction of the Court, as it would expose the leaders in the regime to liability for their well-documented crimes committed during this conflict.

ICC Subject Matter Jurisdiction on Cultural Heritage War Crimes

Even with personal jurisdiction, the subject matter jurisdiction of the ICC on war crimes likely limits the Court’s ability to prosecute the equally serious looting of these sites. Subject matter jurisdiction limits the Court’s ability to hear cases to specific international crimes. Details on the specific crimes that the ICC has the power to hear and try can be found in the Rome Statute.

Al Faqi is only being charged for the war crime offence of attacking protected sites during armed conflict. The specific article detailing this offence incorporates very generic rules, the language of which reflects the Hague Regulations of 1907, which lists specific protected properties. The article reads as:

Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives.

This crime would likely not apply to the widespread looting and sale of “moveable” artifacts, of which has been extremely well recorded as perpetrated by ISIS, Assad’s forces, and other rebel groups in Syria and elsewhere, because it only applies to “immovable” protected structures.

However, the Rome Statute’s war crimes section does allow for the crime of seizure or appropriation of property under Article 8(2)(a)(iv) and 8(2)(b)(xiii), as well as the offence of pillaging (Article 8(2)(b)(xvi) and 8(2)(e)(v)). That being said, only the crime of pillage could likely be used to charge acts against “moveable” property, because again the first two provisions on seizure are usually interpreted as referring to “immoveable” property.

Pillage is considered to have occurred when public or private property has been unlawfully stolen or acquired. In the context of ISIS and various rebel groups, this war crime would be the best approach to prosecute their looting and sale of objects. However, prosecuting equally as culpable members of Assad’s regime may prove more difficult, as prosecutors would have to prove that the regime unlawfully stole property owned by the regime itself. The complexities abound.

As a final note, this section only considers the complexities of charging war crimes against these alleged perpetrators. The ICC also has the option of trying the destruction and sale of cultural heritage as part of a crime against humanity, such as persecution, or even use it to prove the crime of genocide. Even so, the issues surrounding personal jurisdiction would still apply.

Conclusion

While the arrest and prosecution of Ahmad Al Faqi Al Mahdi is welcome news for those working to protect our global cultural heritage, the ICC is currently limited as a tool to prosecute some of the worst perpetrators of cultural heritage destruction in our world today. However, the Al Faqi case does allow the Court to interpret their jurisdictional mandates specifically on this topic, but only time will tell as to its true future impact.

Select Sources:

*About the Author: Timur Tusiray is a recent graduate of USC Gould School of Law, specializing in art and cultural heritage laws, human rights, and IP laws. He is currently an Orfalea-Brittingham Fellow at the Clinton Foundation. He may be reached at timurtusiray@gmail.com, or on twitter @TimurTusiray

Disclaimer: This article is being produced in the author’s individual capacity and does not reflect the views of his employer. This article is intended as general information, not legal advice, and is no substitute for seeking representation.

The New Frontier of Cultural Property Protections: When Acquiring Cultural Objects Supports Terrorism

By Timur Tusiray*

Collage of Headlines

Collage of Headlines featuring recent looting and destruction of cultural heritage in the Middle East areas under the ISIL control.

The United States Anti-Terror Act, 18 USC 2331, et seq. (“ATA”or the “Anti-Terror Act”), a potent anti-terrorism law (enacted in 1991) often used to prosecute financial institutions and other organizations, has now been identified as a tool to pursue individuals who operate in the cultural property market for materially supporting foreign terrorist organizations (“FTO”). In relevant parts it reads “Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned…” (18 U.S.C. § 2339B(b)). The implications of such a development are wide-ranging, and understanding them will be key for practitioners and individuals active in cultural property acquisitions.

Recent tumultuous events involving the illicit looting and trafficking of cultural objects from Syria and Iraq by the so-called Islamic State of Iraq and the Levant (“ISIL” formerly known as ISIS), an FTO, have many wondering how the illicit traffic of cultural heritage may be checked. The question is made more urgent by the tragic beheading of Professor Khaled al-As’ad, a university professor and former general manager of antiquities and museums in Palmyra, and the destruction of historic temples in the same region.

In light of these events, on August 25, 2015 the FBI released an unusual one-page alert calling for art and antiquities market leaders to aid in the international effort to prevent the sale and import of artifacts from ISIL-controlled Syria and Iraq. While such a call for cooperation echoes ongoing efforts by national and international governments and agencies to stem the flow of finances and support to ISIL, the document briefly highlights the Anti-Terror Act as an avenue of recourse for leveraging substantial civil and criminal penalties against those buying or trading in objects coming from hot zones in the Middle East. (Readers should note that the FBI document erroneously cites the law as “18 U.S.C. § 233A” instead of “18 U.S.C. § 2339A”).

The brevity with which the FBI mentions the ATA in its August 25th document, belies the potential for this law to become a robust tool in the fight against the illicit trade. Among other things, the ATA gives standing to American nationals who were victims of terror attacks, to sue those who knowingly provided material support to an FTO, or to terrorist activities, including raising funds for FTOs. (18 U.S.C. § 2339B).  With prescribed penalties ranging from fifty thousand dollars per infraction in civil cases, to life imprisonment in criminal cases, practitioners in the field would be wise to become familiar with the evolving case law around the ATA, especially with recent developments in the U.S. Court of Appeals for the Second Circuit.

In September 2014, in the case of Linde v. Arab Bank, 269 F.R.D. 186 (E.D.N.Y. 2010), a jury found Arab Bank guilty of several offenses under the ATA, including aiding and abetting terrorism by knowingly allowing tens of millions of dollars to flow through their accounts to the families of Hamas terrorists. More recently, in Weiss v. National Westminster Bank, PLC, 768 F.3d 202 (2d Cir. 2014) (“NatWest”), the Court of Appeals found that under the ATA, plaintiffs need only show that the bank had knowledge of, or exhibited deliberate indifference to, whether or not it maintained bank accounts that transferred funds to a charity organization that funneled money to Hamas. In both cases, a bank managed accounts that transferred cash to a “middle-man” organization, which in turn provided funds for both terrorist organizations and legal charitable activities. Victims of the terrorist organizations won rulings in their favor against third-party entities operating as middlemen for the FTO.

These Second Circuit cases set forth the following rules:

  1. Causation – A defendant’s acts “were a substantial factor in the sequence of responsible causation,” and that the “injury was reasonably foreseeable or anticipated as a natural consequence” of those acts. (Linde)
  2. Scienter Requirement – Defendant “knew or was deliberately indifferent” to whether the “middle-man” organization provided material support (financing) to a terrorist organization, irrespective of whether that support actually aided terrorist activities. (Weiss)
  3. Fungibility of Money – Acknowledged earlier rulings that the specific money provided to the charities from the bank did not need to directly fund terrorist activities. Instead, merely providing funds to an organization that may have applied it to both legal, and terror organization activities was sufficient to show material support of a terrorist organization. (Weiss)
  4. Applicability of Foreign Laws – Found that US laws can be applied to extraterritorial actions, and govern the applicability of the ATA, preempting foreign law. (Weiss)

These new rules highlight the expanded reach of the ATA, while the facts of these cases mirror the current structure of the illicit market in cultural property, making it directly applicable to the latest developments in international cultural property acquisition and trade.

The traditional pattern of cultural property circulating in the illicit market – often utilized by designated FTOs – is shown to work in four stages, as identified by Peter B Campbell: (1) looting; (2) trafficking by organized criminal or terrorist networks from source nations abroad; (3) laundering of objects to give them false provenances, typically through legitimate internationally-connected dealers; and (4) entry into the legal market. Each step is a sphere of activity, and there may be multiple actors within each sphere. ISIL has utilized this same traditional market structure, using well-established smuggling routes throughout Jordan, Turkey and Lebanon to sell objects to intermediary dealers who legitimize the objects, and sell through legal channels to buyers in the West. These channels may range from high-end antiquity dealers, to objects sold by individuals through online marketplaces. For example, earlier this year a Syrian coin from around 500 BC was being sold on eBay with dirt still caked on it, and was widely reported by various news sources, including the Guardian, as potentially being excavated from ISIL controlled territories.

In a contemporary development, as reported by David Kohn in the New Yorker, ISIL has also begun to take control of the intermediary steps, reportedly involved from the first stage of extraction to the final sale and exit of cultural property from their controlled territories. In some cases, there have been reports that ISIL representatives are establishing direct, one-on-one relationships with buyers in the West. (see Russell Howard, et al., Digging In and Trafficking Out: How the Destruction of Cultural Heritage Funds Terrorism)

The international community has already taken some well-publicized steps to denounce and curb this trade. The UN Security Council has passed resolutions banning all trade in antiquities from Syria and Iraq, while certain EU nations have increased their import controls for such objects. In the U.S. this year, the Protect and Preserve International Cultural Property Act was reintroduced, and has passed in the House. The Bill would, among other things, restrict imports of cultural property from Syria.

Even with this increased scrutiny, many of these transactions continue to occur, and are imperfectly addressed under traditional domestic laws (e.g. the National Stolen Property Act, 18 U.S.C. §§ 2314 and 2315; U.S. war crimes statute 18 U.S.C. § 2441(c)). However, as seen with the banks in the highlighted ATA cases, the burden of proof for wrongdoing has been significantly diminished, making successful litigation under the ATA a real possibility in the art and antiquities market. Under the ATA theory, members of the class harmed by the FTO’s activities would have to prove that an institution or collector buying a cultural object, provided some value to an intermediary (or directly to an FTO itself) knowing that object was trafficked by, or for an FTO. Or even simply showing that they were deliberately indifferent to the supply chain providing such an object would be sufficient. This is a low bar to be met with the increased media coverage, and academic and law enforcement scrutiny in the region.

Finally, the reach of the ATA is almost limitless. So long as there is some personal or financial harm suffered by a U.S. national from an act of terror, a cause of action can be brought under the ATA by the said individual, their estate or heirs against any defendant for both domestic and extraterritorial actions solely under U.S. law. (18 U.S.C. § 2333(a)). This article merely addresses regions encompassed by the conflicts in Syria and Iraq, the ATA would apply to any place in the world with operating terrorist organizations or activities as defined under the statute.

While the looting of cultural property to fund violence is a decades old practice unlikely to abate soon, the increasing global scrutiny on ISIL and the wide-reach of the FTO activities, the recent develops in the Second Circuit interpreting the ATA, and the FBI’s warning of liability under ATA seems to indicate the Anti-Terror Act’s future potential as an unexpected tool for curbing the illicit trafficking of cultural property.

Select Sources:

About the Author: Timur Tusiray is a recent graduate of USC Gould School of Law, specializing in art and cultural heritage laws, human rights, and business law. He is currently an Orfalea-Brittingham Fellow at the Clinton Foundation. He may be reached at timurtusiray@gmail.com.

Disclaimer: This article is being produced in the author’s individual capacity and does not reflect the views of his employer. This article is intended as general information, not legal advice, and is no substitute for seeking representation.

ISIS Cultural Destruction: In Brief

By Mia Tomijima*

Screen Shot 2015-05-08 at 3.31.39 PM

War and political takeovers define history, but are also often responsible for erasing it. The devastating effects of these feuds result in the destruction of cities, people, and culture. Political leaders often make it a goal of destroying cultural heritage as a way of rewriting history and imparting their political, religious or ideological beliefs upon the civilization they are taking over. As the Nazis did during World War II, ISIS has emerged as the most recent group to destroy cultural heritage to further its ideology.

ISIS (or ISIL), shorthand for the Islamic State of Iraq and Syria, is a group of militants that have taken over parts of Iraq and Greater Syria (Syria, Lebanon, Turkey, and Jordan) and claim to represent Muslims worldwide. ISIS emerged during the summer of 2014, and quickly drew media attention with video recorded beheadings of journalists, and other reported massacres.394410_img650x420_img650x420_crop

Alarming reports from the archaeological community show that ISIS militants are now attempting to impose their ideology by demolishing cultural sites in Northern Iraq, including the Mosul Museum, the ancient city of Hatra, and other Assyrian capitals. The systematic public destruction of cultural property politically motivated to attract media attention is also considered to be a war crime under the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. In addition to the senseless destruction, ISIS is also selling Assyrian antiquities on the black market, using the proceeds to fund their campaign. Center for Art Law recently wrote on one such report of an Assyrian statue head emerging in the U.S., and the U.S. Attorney’s Office’s response to bring civil forfeiture proceedings on behalf of war-torn countries.

ISIS affiliation is even claiming responsibility over a recent attack in Texas, involving a shooting that occurred outside a cartoon contest of Prophet Mohammed in Texas (however no formal proof of affiliation of the shooters has yet to be shown). There has been great discussion in the archaeological, legal, and political communities over the destruction of cultural property in Iraq and Syria, including this Yale News conversation with Assyriology Professor Eckart Frahm, and this Democracy Now interview of Columbia University’s Near Eastern and East Mediterranean art and archaeology Professor Zainab Bahrani, who has consulted UNESCO on such matters.

On February 12, 2015, UN Security Council adopted Resolution 2199 to try to curb traffic in looted Syrian and Iraqi artifacts sold by ISIS members. In response to this call for action, French President François Hollande and members of the United States Congress recently issued statements in support of protecting cultural patrimony from the ISIS occupied territories. On April 26, 2015, the US House Committee on Foreign Affairs proposed a bill, H.R. 1493 Protect and Preserve International Cultural Property Act, which would, among other things, “require the Department of State to designate a department official to coordinate the efforts of the federal government to protect international cultural property… and develop strategies to reduce the illegal trade in such property and to assist countries in protecting their heritage sites and preventing looting and theft of cultural property.”

At an emergency meeting in July 2014, UNESCO’s Director General Irina Bokova stated “humanitarian and security concerns are inseparable from culture. Protecting the lives of people, their cultural heritage and identity go hand in hand,” and pledged that “UNESCO will continue mobilizing the United Nations Organization and the whole international community to safeguard Iraq’s cultural heritage with particular emphasis on the fight against illicit trafficking in cultural property.”

Sources:

*About the Author: Mia Tomijima is a recent graduate of Brooklyn Law School, where she received a certificate in intellectual property and served as Chair of the Art Law Association. She received a bachelor’s degree in art history from UCLA, and has worked with museums, auction houses, and law firms on both coasts. Mia is a post-graduate fellow with Center for Art Law. 

WYWH: Review of “Successes and Challenges Facing the Return of Stolen Art and Cultural Heritage Property”

By Mia Tomijima*

On April 21st, New York Law School’s Center for International Law presented the Otto L. Walter Lecture entitled “Successes and Challenges Facing the Return of Stolen Art and Cultural Heritage Property.” The guest speaker for the evening was Sharon Cohen Levin, Chief of the Money Laundering and Asset Forfeiture Unit in the Criminal Division of the United States Attorney’s Office for the Southern District of New York. According to the U.S. Attorney’s Office website, Levin and her Asset Forfeiture Unit “pioneered the use of federal forfeiture laws to recover and return stolen art and cultural heritage property.” The event was well-attended and received by approximately 50 people, who came to hear Ms. Levin discuss the many famous art law cases that her office has handled over the past two decades, and the investigatory and legal strategies used for each one. A week later, on Monday, April 27, the New York Times broke the news that Levin is leaving the forfeiture unit and the Attorney’s Office after 29-years of tenure to join a private law firm, WilmerHale.

Sharon Cohen Levin image

In her opening remarks, Levin talked about her unit that uses forfeiture laws to locate and seize proceeds derived from criminal activities and then distributes them back to victims and appropriate law enforcement agencies. She provided an overview of the relevant forfeiture laws that she uses in her work, including 18 U.S.C. §981 (Civil forfeiture) and 18 U.S.C. §542 (Entry of goods by means of a false statement), among others. Levin described how it is illegal to “knowingly” move stolen property, and how her office is able to show intent through false customs statements and declarations. It is through this inventive use of preexisting law that her office was able to return over 100 items, ranging from fine art by Basquiat and Rembrandt, to ancient gold platters, and even a complete dinosaur skeleton.

The audience listened intently as Levin talked about a number of the cases that her office has handled. The survey started with U.S. v. An Antique Platter of Gold, 184 F.3d 131 (2d Cir. 1999), a case involving a gold phiale that was improperly excavated in Italy and smuggled into Switzerland. Thereafter, the phiale was flown to a buyer in the US. Levin explained that under Article 44 of Italy’s patrimony law, antiquities found and removed from Italian ground after 1902 belongs to the nation, a law that provided the basis for the U.S. government to bring an action on behalf of Italy. The 1999 decision was groundbreaking (no pun intended) because it set precedent that false statements on a customs documents serve as a basis for forfeiture. After the court ordered the forfeiture of the phiale, a twin phiale in the Metropolitan Museum of Art was also returned to Italy.

c6988-kohkerstatueatsothebys

Next, Levin discussed her work on the case U.S. v. a 10th Century Cambodian Sandstone Sculpture, 12 Civ. 2600 (GBD) (S.D.N.Y. 2013). This action sought the forfeiture of the Duryodhana statue, which was removed from the Prasat Chen Temple at Koh Ker in Cambodia in 1972 and was being auctioned at Sotheby’s in 2013. Like the Antique Platter of Gold case, the U.S. Government in the Koh Ker statue case was able to bring a forfeiture action on behalf of the Kingdom of Cambodia under Cambodian national ownership laws. The invoice and customs declaration form from 2010 misleadingly listed the statue as “Koh Ker style,” while Sotheby’s knew the statue had been taken directly from Koh Ker. While the auction houses in this case vehemently defended the interests of its consignor to sell the work, the lucky break in Levin’s investigation was finding records from the now-defunct UK auction house Spink that provided clear information on how the Duryodhana was transported from Cambodia via Thailand, to Belgium and then to the United Kingdom. The fact that the statue had missing feet and that the feet were still in situ at the temple only underscored its illicit removal. Levin said she even traveled to Cambodia to interview one of the looters involved in the actual removal of the item from the temple back in the 70’s, and she described his remorse in desecrating the Temple. The Duryodhana, along with two similar statues at the Met and one at the Norton Simon Museum, were all returned to Cambodia with ceremony in 2013 and 2014.

Levin briefly described her work on the case involving the forfeiture of a full Tyrannosaurus Bataar skeleton. In U.S. v. Tyrannosaurus Bataar Skeleton, 12 Civ. 4760 (PKC) (S.D.N.Y. 2012), the U.S. Attorney’s office used Mongolian cultural heritage laws to bring an action on its behalf. In this case, Eric Prokopi, a commercial paleontologist, excavated the dinosaur remains, reconstructed parts of the skeleton and put it up for auction in New York, where the skeleton was seized. As with all of the cultural heritage forfeitures, the crux of the investigation was to develop a record to show that this item originated in the country demanding its return. For the Tyrannosaurus Bataar, Levin built this proof of origin with affidavits provided by helpful paleontology experts.

Levin also described her office’s work in returning looted objects from currently war-torn countries, such as Iraq and Syria, which included her work on the case of U.S. v. One Iraqi Assyrian Head, 13 C.V. 5015. In the Q&A session following the lecture, Levin explained that in order for her office to return objects, the U.S. government must have diplomatic relations with the source country. As an example, her office is holding onto forfeited objects from Iran, until the day when diplomatic channels are bridged and the cultural valuables can be returned.

$19 million settlement frees "Portrait of Wally" after 13 year of legal disputes

In conclusion, Levin talked about U.S. v. Portrait of Wally, 663 F. Supp.2d 232 (S.D.N.Y. 2009), a landmark case that broke open the floodgates for other art restitution cases involving Nazis-era looted art. (Please see here for a more complete description of this case). Levin noted that the critical evidence in the case was the detailed letters between the original owner of the Schiele portrait, Jewish art dealer and collector Lea Bondi Jaray, and Rudolph Leopold, the Austrian collector who insisted that he was the rightful owner of the portrait, that documented their relationship and interactions. Additional evidence was developed from the trial testimony of Leopold himself. The case that lasted more than a decade was settled for the reported amount of $19 million dollars and a promise to display “Portrait of Wally” with an explicit wall label describing the civil forfeiture proceeding. Levin joked that this may be the only time a piece of art uses the word “forfeiture” in its description.

Less than a week after her lecture ended, the New York Times ran a story about Sharon Levin leaving the U.S. Attorney’s office to join a private law practice at the firm of WilmerHale. On Monday, April 27th, WilmerHale announced that it has hired Levin as a partner in the Financial Institutions Practice of its New York office. Accompanying the announcement, Ms. Levin told the New York Times “I had bigger cases that involved more complex issues, but ‘Portrait of Wally’ was special. [It] enabled me to use today’s forfeiture laws to correct a historical injustice.” With the Levin era at its end, art and cultural heritage restitution advocates wonder whether her successor will be as interested in and dedicated to the pursuit of art and cultural heritage matters. The helpful precedent and the ongoing need remain.

Select Sources:

*About the Author: Mia Tomijima is a recent graduate of Brooklyn Law School, where she received a certificate in intellectual property and served as Chair of the Art Law Association. She received a bachelor’s degree in art history from UCLA, and has worked with museums, auction houses, and law firms on both coasts. Mia is a post-graduate fellow with Center for Art Law. 

Disclaimer: This and all articles are intended as general information, not legal advice, and offer no substitution for seeking representation.