WYWH: Immigration Law and the Arts – NICE WORK IF YOU CAN GET IN

 

By Katherine Jennings

 

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Photo credit: Center for Art Law.

On March 9, 2017, the Center for Art Law held an Art Law Mixer addressing the timely and provocative topic of immigration issues confronted by immigrant artists with the recent issuance of EO 13769, among other anti-immigrant measures. The 45th President commenced his presidency with a barrage of Executive Orders (EOs) including EO 13769*, which was signed by Trump on January 27, 2017, and restricted travel to the U.S. from seven Muslim-majority countries and by all refugees. This EO has had far-reaching and devastating effects on immigrants including immigrant artists. It has wreaked havoc and confusion at the borders. Antagonizing foreign dignitaries, it has quickly been met with outrage and resistance by artist activists, art organizations, and lawyers.

 

The Georges Bergès Gallery, a stylish, SoHo gallery with an international focus, was the apt and welcoming site of the two-hour event, a first Center for Art Law (the “Center”) program to address immigration issues. It was composed of a wine and cheese reception and presentation by the founders of Lehach Filippa, an immigration law firm intended to serve creative professionals, followed by a Q&A. The discussion was moderated by Irina Tarsis, founder of the Center. Attendees included lawyers, artists and law students. After a brief warm up period during which attendees were encouraged “to talk to someone you didn’t come with,” Georges Bergès, the founder of the eponymous contemporary art gallery, spoke briefly to welcome all and to talk about the global perspective of his gallery. Bergès said his goal is to find authentic artists who are working in their own cultural context.

On to the substantive portion of the evening, Tarsis introduced Alejandro Filippa, Esq. and Michael Lehach, Esq, founding partners of Lehach Filippa. Lehach and Filippa spoke about the O-1 visa, commonly referred to as the “artist visa”, and the process of applying for work permits as a foreign artist. The current political climate and the effects of the anti-immigrant executive orders from President Donald Trump was also a topic of discussion. Filippa speculated that if the current precedent of an excessive number of executive orders is any indication, we will likely see more pushback and restrictions to immigration applications and processes in the future.

In order to qualify for an O-1 visa, or artist visa, an applicant must demonstrate “extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue to work in the area of extraordinary ability.” Extraordinary ability in the field of arts means “distinction.” The Immigration Act of 1990 (Pub.L. 101-649, 104 Stat. 4978) was a national reform of immigration that, among other things, excluded artists and entertainers (as well as athletes and nurses) from qualifying for H-1B visas. Two new categories, O and P, were introduced for extraordinarily skilled foreigners in the arts and sciences. The 1990 legislation was created in response to the Immigration and Nationality Act of 1952 (Pub.L.), aka the McCarran-Walter Act, which was meant “to exclude certain immigrants from immigrating to America, post-World War II and in the early Cold War.

Clearly, both Lehach and Filippa enjoy their law practice and are competent, dedicated professionals. Their passion was evident as they spoke about the process of creating a solid application in order to achieve success in obtaining an artist visa. Advocating for their clients is predicated upon a solid application with supporting documentation. Involved in facilitating artist visas and residence applications, they represent foreign creative professionals who want to work in the US and creative organizations seeking foreign talent to work in their US office. Their clients are from diverse industries such as the performing arts, music, fashion, film, photography, design, fine art, journalism and more. These “extraordinary aliens” have included tattoo artists, dancers, and rappers. The client may seek Temporary Work Visas and /or Permanent Residence based on Extraordinary Ability.

Lehach and Filippa outlined the proof needed to establish a valid application for an artist visa. In addition to a detailed resume, the client should include all relevant documents regarding their awards, notable clients, publications and press, and work history. An applicant must provide at least eight references by professionals who can attest to the extraordinary abilities of the applicant. Noting that an applicant’s file can be huge, they also spoke about how they have to be from important and respected sources. Lehach noted that it would not do a client any good if he were to provide his private residence as a gallery that would show the applicant artist’s work. Rather, the gallery must be a well-known and established entity.

Another crucial component of the application is an itinerary of the events and activities in the beneficiary’s field of extraordinary ability. You must have a plan of what you will be doing, with whom and when, and it has to be concrete. This constitutes the Sponsorship aspect of the application. For example, the applicant must provide an established list of galleries who will show his or her work and a concomitant timeline. An Employer, an Agency, or an Agent is an acceptable sponsor. Finally, it is helpful for the applicant to have a portfolio as a physical manifestation of the accomplishments detailed in his or her resume.

Lehach and Filippa also spoke about the case of an application for an Artist Visa being rejected. They said it is much better to refile, than appeal, because the immigration agents can be fickle. Noting that it can often be difficult to decide what constitutes extraordinary ability, they said it is crucial to initially establish a solid case. Their law firm also deals with other immigration issues such as obtaining permanent residency, obtaining a green card, and asylum issues, and extension of artist visas.

The presentation was followed by a lively question and answer session. Both presenters showed obvious delight in their chosen field and were quick to address each question thoughtfully. One interesting tidbit revealed during the Q&A was that under the right circumstances there is even a provision for bringing an artist’s muse into the country on a visa. As for the immigration ban that instigated the theme of the evening, “a judge sitting on an Island in the Pacific” ruled it unenforceable.

*Note that on February 3, 2017, EO 13769 was given a temporary restraining order in a decision from the Ninth Circuit of the Court of Appeals. EO 13769 was revoked as of 3/16/17.

About the Author: Katherine Jennings is a lawyer and contemporary realist oil painter living in New Jersey. She has a B.A. in History from Duke University and a J.D. from Fordham University School of Law where she was an Associate Editor of the Fordham International Law Journal. Having practiced intellectual property and immigration law, she is also certified as an Art Law Mediator with VLA. She was recently accepted into the Copyist Program at the Metropolitan Museum of Art and her work may be viewed at www.katherinejenningsfineart.com.

 

WYWH: Knoedler Trial Uncut (Week 2)

By Center for Art Law Team

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Source: The New York Times (Feb. 8, 2016).

Another exciting and riveting week has passed in Courtroom 318, where District Judge Paul Gardephe is presiding over the trial in the case brought by Domenico and Eleanor De Sole against Ann Freedman, Knoedler Gallery, and 8-31 Holdings and others. Over a course of about 15 years, Knoedler sold almost 40 works brought to the Gallery by Glafira Rosales. She admitted following a grand jury investigation and an indictment that all of the works she handled were forgeries. The Gallery earned about $80 million on the transactions involving Rosales trove and transferred over $20 million of that amount to its parent company, 8-31 Holdings, before closing to the public in November 2011. Both Knoedler Gallery LLC and 8-31 Holdings Inc. are incorporated in Delaware and were operating out of 19 E 70th Street, a stone’s throw away from the Frick Museum and other art institutions of the City.

As some art attorneys like to say, judges want to give opinions in art related cases. So who is presiding over the first Knoedler trial?

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1. Meet the Judge:

Judge Gardephe is a graduate of Columbia Law School who was nominated to the Southern District of New York in 2008 by George W. Bush. He has handled a number of fraud cases and high profile cases but the Knoedler cases appears to be the first arts related case on Judge Gardephe’s docket. Throughout the Knoedler trial, Judge Gardephe has been thoughtful in his consideration of objections and evidence admittance as well as diligent in his management of the trial. During the jury selection, Judge Gardephe underscored the civic duty that the members of the jury are called upon to perform and was very reluctant to accept mundane reasons presented by the would-be jurors in hopes of getting out of service.

Judge Gardephe has been making rulings in the Knoedler case for months leading to the public trial. Thus in his decision from September 2015 De Sole v. Knoedler Gallery LLC, No. 12 CIV. 2313 PGG, 2015 U.S. Dist. LEXIS 134146 (S.D.N.Y. September 30, 2015), he denied a summary judgement motion in part because he found that the movement of funds from Knoedler Gallery to its parent holding company 8-31 Holdings may be deemed siphoning of resources and thus ruled that 8-31 Holdings must remain a party to the dispute – on October 9, 2015 Judge Gardephe issued another opinion De Sole v. Knoedler Gallery LLC, No. 12 CIV. 2313 PGG, 2015 U.S. Dist. LEXIS 138729 (S.D.N.Y. October 9, 2015), explaining the reason for denying summary judgment. Specifically, he found that a reasonable jury could find an “overall element of injustice or unfairness,” in observing corporate distinction between Knoedler Gallery LLC and 8-31 Holdings LLC, the parent company of the Knoedler and Hammer Galleries.

In the October 9, 2015 opinion, Judge Gardephe also noted that Freedman enjoyed a significant financial fallout from the sale of the Rosales  forgeries. Notably, between 1998 and 2007 Freedman profit sharing percentage increased three times to a total of 30% of the Knoedler Gallery’s operating income. In 2007,  Freedman was paid more than $1.3 million in 2007.

2. Questions to Answer:

Before the trial and certainly as various art experts, accountants and researchers have been testifying at trial, the questions mount: Did Ann Freedman and the Knoedler Gallery know that they were selling forgeries? Or were they fooled along with the rest of the art world? These are the questions that everyone who is watching the trial as it unfolds both in courtroom and on the pages of the the newspapers is asking, and the jury may have a chance to answer them in the coming weeks, unless the parties settle before the verdict. On Sunday, February 7, 2016, two weeks into the trial, Ann Freedman settled with the De Soles. The terms of this settlement have not been disclosed; however, Freedman was expected to testify on Tuesday, February 9, 2016.* (Note: Freedman did not testify on February 9th).

3. What happened during the second week in De Sole v. Knoedler et al.,:

Monday, February 1, brought the conclusion of testimony from Eleanor De Sole as well as testimony from Christopher Rothko. Mrs. De Sole testified that she accepted the provenance that Ann Freedman and Knoedler provided because Freedman was the representative of one of the oldest and most reputable galleries around and “that should have said it all.” Freedman provided the De Soles with a list of experts who had viewed the work. The list served as a clever marketing tool to imply that individuals including David Anfam, E.A. Carmean, Irving Sandler, and Christopher Rothko authenticated the work. Even though Mrs. De Sole was not personally familiar with any of these people (she stated that the only name she was familiar with was Christopher Rothko), she was impressed with the line up and trusted its representation.

Due to his lineage, a celebrity witness, Christopher Rothko was next on the stand. Christopher, the son of Mark Rothko testified that he never authenticates his father’s work, as this “requires specific expertise” that he does not believe he possesses. He viewed the De Soles’ work, as well as other Rosales works, and may have described them as “beautiful” or “pristine” but he did not authenticate them or give permission for his name to be on any lists used in connection with the work. On cross, Rothko admitted to giving countless presentations about his father’s works as well as writing articles and organizing exhibitions related to Rothko. The dichotomy in the art market created by the fear of giving a negative opinion about a work of art and being brought to court to answer for the opinion has discouraged not only individual scholars but also authentication foundations from giving categorical rulings about the attribution of art works (See a previous article about the disbanding of the Keith Haring Foundation art authentication committee).  Rothko admitted that he directed Freedman to consult an art conservator for expertise regarding technique, paints and other physical qualities of the works attributed to his father. Freedman consulted Dana Cranmer (who testified on January 29). A memorable quote from the day: “On the basis of … research, a strong case can be made for authenticity or lack of authenticity of any given work.”A picture of Christopher Rothko leaving the courthouse appeared in The New York Times the following day. The decision to publish a photograph of this witness was not based on his Rothko expertise but rather on him being a genuine Rothko.

The second Rothko expert, David Anfam, was feeling less at ease on the stand and at times would proclaim certain statements or practices as “outrageous.” He is the author of the 1998 Rothko Catalogue Raisonne entitled Mark Rothko: The Works on Canvas and he, too, emphatically indicated that he does not provide authenticity for sale purposes. According to Anfam, the mysterious collector who was the source of the paintings was based in Switzerland and Jewish, and had considerable links to Mexico. Incidentally, the pedigree of Mr. X (or Secret Santa, a.k.a son of the collector, who was the purported source of the Rosales paintings) was unclear and changed multiple times. He was described as a sole heir to his father’s collection, and  as one of two children––at one point, he supposedly had an estranged brother and at another he had a sister. Anfam had the honor of informing the jury about “art transparency” (photograph of a work of art) and “Park Avenue Armory” (an annual show in the NY armory until recently). At one point, Anfam admitted that Freedman did most of the talking but as to the substance of her statements he described them as “a lot of nothing.”

On Tuesday, February 2, Plaintiffs’ attorneys began by wrapping up David Anfam’s testimony, which focused on his opinions about the Rosales works and how his impressions evolved as he learned more and more about the collection Rosales brought to Knoedler Gallery. Anfam considers himself to be the foremost expert in abstract expressionism and has authenticated Rothkos in the past. He saw dozens of the Rosales works and did not raise doubts as to their authenticity. In 2008, he wrote to Knoedler that the works were “99.99% okay” and he just couldn’t “see how anyone but the artists could have produced such a cache.” However, in 2012, he told an FBI investigator that such a large collection “strains all credibility,” later saying that he possessed information in 2012 that he did not have in 2008, such as the number of the works, the IFAR investigation of Jack Levy’s Pollock, and the results of Jamie Martin’s forensic tests.  Anfam emphatically denied giving Freedman permission to use his name in connection with any sales. By the same token, he probably never specifically asked her not to use his name in connection with the business transactions either.

Next on the plaintiffs’ witness list was Dr. Stephen Polcari a retired art historian whose expertise lies in abstract expressionism of the 1930s, 40s, and 50s. He has written books, received multiple fellowships, and taught courses in modern art and abstract expressionism at multiple universities. His testimony centered around his time working as an “independent contractor” at Knoedler Gallery, where he would curate exhibitions and write essays about works he saw at Knoedler. He would evaluate the style and meaning behind these works. Polcari testified that he thought the works he was writing about were authentic, or else he would not have written about them. In terms of the provenance of the works, his information came from Freedman, and he found this convincing simply because the works were in the Knoedler Gallery. Notably, Polcari read an email from an upset Ann Freedman, who told him that she was “kicked out the door” of the Knoedler Gallery “without so much as a goodbye.”

A small amount of Dr. Polcari’s testimony concluded the morning of Wednesday, February 3, but the stars of the day were Frank Del Deo, Jack Flam, and Martha Parrish. Mr. Del Deo, an art dealer in New York, worked at Knoedler from 1999 until 2011, and was the President and Director from 2009 until 2011. While at Knoedler, he sold 100-200 works, none of them from the Rosales collection. He testified that the standard profit for the gallery was anywhere between 5 and 100 percent on works the gallery owned and 20 and 30 percent for works they did not own, but the profits were “considerably higher” for the Rosales collection. These profits would be over 100 percent on occasion. Mr. Del Deo’s testimony contained many references to attorney-client privilege, but he stated that he left the Gallery employment in 2011, before the gallery closed, after speaking with a lawyer and sought other employment.

Next witness, Dr. Jack Flam, is an art historian who concentrates on Motherwell and Matisse. A close friend of Motherwell’s, he spent summers in his studio and serves as the President of the Dedalus Foundation. He has never authenticated a Rothko and was never asked to. He could not recall seeing the De Soles’ painting and was “very surprised” to learn that his name was included on the list that accompanied the De Soles’ work. Dr. Flam spoke rapidly about David Herbert and said that Freedman kept coming back to the Herbert story, but upon seeing a reproduction of a purported Motherwell in the Rosales collection, he believed it was a fake. When he looked four images of purported Motherwells and later saw one at Dana Cranmer’s studio he “strongly” believed they were fake, and expressed his opinion to Ann Freedman and Knoedler Gallery on several occasions, though E.A. Carmean disagreed with him.

Martha Parrish, a retired art dealer in New York and Palm Beach who helped draft the Art Dealers Association of America (“ADAA”) code of ethics, also testified on Wednesday. Ms. Parrish stated that dealers “run like hell” when an individual comes to them with a large collection of unknown works to sell below market price. She also informed the jury that cash is not a customary way to pay for a work on consignment (plaintiffs stressed that Rosales was paid in part by check, with cash below $10,000, and out of the country wire transfers). As to the usual range of profit on consigned works, Ms. Parrish testified that it ranges between 10% and 20%. In some instances, Knoedler’s profit was more than 700%. She stated that good provenance could be used as a selling tool and emphasized the importance of being transparent with prospective purchasers––presenting something as a fact that is not known to be fact is “not acceptable.” On cross examination and on its face, the practices actually followed by dealers may not be as transparent or stringent as this witness indicated through her testimony, which is the reason why the art market is notoriously opaque and all experts agree to that fact if little else.

Upon information and belief, Thursday, February 4, began with Victoria Sears Goldman, provenance researcher and an art historian, followed by a brief and uncomfortable testimony by Edye Weissler, a former Knoedler employee, taking the stand. Ms. Weissler performed research at Knoedler along with Melissa De Medeiros and E.A. Carmean. She attempted to establish a connection between David Herbert and the works that were coming into Knoedler from Glafira Rosales. Forensic analyst James Martin next took the stand. Mr. Martin does art examination work for FBI, US Attorney, Christie’s, Sotheby’s, and conservators, among others, in a private studio using the same methods and technology as museums. He has analyzed about 5000-8000 art works and taught courses on paint analysis. He was first hired by Knoedler in 2008 to evaluate 2 Motherwells, which he determined were not created in the 1950s, as they were purported to have been. Martin testified that he told Freedman and Knoedler to exercise caution when dealing with these paintings. He later examined the De Soles’ work and 15 other works sold through Knoedler. Martin concluded that all of the Rosales works were deliberate fakes. He described in great detail the process that he used to evaluate these works as well as the tools involved.

Martin’s testimony concluded on the morning of Friday, February 5, with more description about the process that he used to evaluate the De Soles’ work, a process that he said Knoedler’s competitors have been coming to him with artworks for since 2004. Forensic accountant Roger Seifert was the next person to be questioned. Mr. Seifert’s testimony concerned three topics: a profitability analysis of Knoedler from 1994 to 2011, the amount of profit sharing earned by Freedman from the Rosales sales, and whether or not 8-31 Holdings benefited from the Rosales sales. Mr. Seifert concluded that Knoedler would not have been profitable without the Rosales sales (the data showed that they would have lost about $3.2 million from 1994-2011), Freedman earned $10.4 million in profit sharing, and 8-31 Holdings benefited from these sales, as the income from Knoedler was included in their consolidated earnings. Between 1994 and 2008, works from Rosales were sold by Knoedler for about $70 million, bringing the gallery $32.7 million in net income.

The Knoedler demise and the subsequent lawsuits against it, its employees and shareholders highlight the power that experts wield in creating an aura of legitimacy. In the case of the Rosales forgeries, peppering correspondence with references to recognized authorities was enough, at least for a while, to compensate for an auspicious lack of documentation. The theme that emerged during the trial was that just because a work looks like a Pollock (Rothko, Motherwell, etc.), it is not necessarily a “Real McCoy.”

4. Food for thought:

Is there an ethical, if not legal, responsibility in the academic or art market community to ask probing questions regardless of context (reputable gallery or museum, renowned seller, collector, family member, curator)? At the end of the week, it seems that only cold, hard facts in accounting and science are able to light fire under the cool demeanor of the crème de la crème of the art world.

Disclaimer: Reading WYWH articles is no substitute to attending art law trials, programs and exhibitions in person. After all, picture is worth a thousand words, even if it’s a fake.

Select Sources and Suggested Readings:  

WYWH: Washington Area Lawyers for the Arts’ Event “Galleries 101 – Law for Visual Artists” (DC)

By Elena Kravtsoff, Esq.*

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In the middle of summer, on July 21, 2015, Washington Area Lawyers for the Arts’ (WALA) Visual Arts Subcommittee hosted “Galleries 101 – Law for Visual Artists,” at the Hamiltonian Gallery. WALA is a non-profit organization that supports the artistic community in the DC area by offering continued education, advocacy and legal services. The Hamiltonian Gallery, in addition to its exhibition space, boasts programs dedicated to the advancement of careers of emerging artists. Incidentally, this Gallery hosted a Center for Art Law event in DC in 2014.

The event in July, with an equal number of artists and of lawyers as guest speakers, was open to the general public and attracted many WALA members and Hamiltonian affiliates. The panelists included Cynthia Gayton, founder of the Arlington-based law firm Gayton Law, who is also experienced in the gallery business; Missy Loewe, attorney by training who is the CEO and president of Washington ArtWorks, a Maryland organization that offers classes, workshops, exhibits, and outreach programs that benefit local artists; as well as two DC-area visual artists, Luis Peralta and Jay Coleman.

“Galleries 101” panelists addressed a variety of topics pertinent to artists who already display or plan to show their art in galleries, each contributing their own unique perspective. Gayton kicked-off the event by discussing common issues arising in contracts between artists and galleries. She started by covering the basics of contract law and then focused on issues pertaining  to artists, for example, encouraging artists to ensure that galleries agree to market the artists and promote their work. Gayton then addressed the legalities of photographing works of art on display, and the subsequent use of those images by artists and galleries, also touching on the ever-elusive fair use. Loewe instructed artists on the importance of documenting and keeping records of their art, such as when it was made, the price, and its location, in order to be protected should the art be stolen or should a gallery fail to pay an artist for a sale.  

The presentations given by the visual artists were practical and drew from the artists’ personal experience of working and negotiating with galleries and other spaces that displayed their art. Peralta spoke of his partnering with a gallery and taking a more active part in the promotion of his art and his brand. He emphasized that artists must be business-minded and have the mind-set of entrepreneurs. Coleman relayed his experience of displaying his art is places other than galleries—such as cafes—and associated upsides and pitfalls. He encouraged artists to educate themselves and always come prepared to a negotiation with a space that will be displaying their work.  

Following the event, Gayton observed that the “panel selection was great,” and that she was impressed with “how positive and helpful everyone was.” Gayton, a long time volunteer with WALA and a regular presenter, observed that “[t]his audience, in particular, were knowledgeable about the issues and had substantive questions.” Loewe opined that the location and set-up of the event were “terrific,” and that her fellow presenters were “very friendly and extremely well-versed in their topics areas.” As to the audience, Loewe found that “[t]he reaction to the presentation and the questions asked during and after showed this is a community of people hungry for information, knowledge, and eager to ‘do right’ and listen and learn from others.” Peralta said that he enjoyed sharing his experiences as an artist and entrepreneur, as well as his philosophy that “artists should view themselves and operate as a business.” Peralta was also glad to learn from his fellow panelists, and recommended that DC-area artists take advantage of the workshops and attorney resources that WALA provides.

WALA’s biannual Creative Entrepreneurship Series, which consists of six workshops on topics relevant to artists, including intellectual property law, tax strategies, and negotiation strategies, takes place in September and October. Anyone who is interested in attending this series as well as WALA’s other educational events should visit http://www.waladc.org in order to stay up to date and become involved with the organization.

About the Author: Elena Kravtsoff is an attorney based in Washington, DC. She is a volunteer with the Washington Area Lawyers for the Arts’ (WALA) Education Committee. She may be reached at elena.kravtsoff@gmail.com.

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

WYWH: “Managing Risk in Art Transactions” June 2015 (NYC)

By Debra S. Friedmann*

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In June, as part of a continued series of Art Law related events, the law firm of Herrick, Feinstein LLP hosted a morning panel-discussion entitled “Managing Risk in Art Transactions,” dedicated to consignment, authenticity and title risks. Panelists included Laura Patten, with Art Crime Program, FBI, Judy Pearson, President at ARIS Title, Annelien Bruins, Chief Operating Officer at the Tang Art Advisory, Stephen D. Brodie, Partner at Herrick, Feinstein, and Dina Friedman, from JP Morgan. Underscoring the inherent risks in any transaction involving valuable art, this panel addressed several preemptive steps people can take to  protect their assets and what signs to look out for when assessing the trustworthiness of a business partner, including art dealers, authenticators, advisors, etc

Laura Patten of the FBI Art Crime team took the lead in discussing risks that may arise from personal relationships in art transactions. Specifically, she offered some clues on how to recognize a con-artist. Using field information gathered from speaking to con-artists, Patten presented what was coined the “exploitation cycle.” These criminals, she explained, are calculating. They vet their victims, learn how to gain one’s trust and confidence, and then disappear once the crime has been executed. Patten warned that a key characteristic to be aware of in personal relationships is the point where the criminal tests the potential victim. It is at this juncture that the would be victim might notice suspicious or strange activity and should address those concerns immediately. Most likely, if the con-artist senses that he is being found out, he will disappear.

Several of the panelists discussed the dynamics of the art market and what features make art transactions particularly vulnerable to crime. Investment in art, as opposed to real estate for example, is unique because of the relatively  limited regulatory framework imposed on art sales. The only paperwork associated with the sale of artwork is provenance material, such as bills of sale, exhibition history, etc, but even then it is significantly limited if it does exists at all. Panelists agreed that this lack of record keeping may be a result of the “handshake culture,” which leaves ambiguity in the limitations of the agreement. For example, if a donor supplies a museum with several pieces from a private collection, tens of years down the line the heirs of the original donors may claim that the donation was temporary, to be returned upon the donor’s passing, while the museum may have understood the pieces to be gifts, now belonging to the museum. Without clear documentation to prove the details of the  initial agreement, the parties are likely to be stuck in a lengthy dispute.

Other difficulties identified by the speakers were matters of forgeries and authenticity. The wealth and art advisors on the panel reviewed several steps to take before making a purchase. For example, where a seller of a work of art offers limited  provenance accounts, it is necessary for the buyer to do extensive research instead of simply relying on the word and the reputation of the seller. It is possible that all information available is provided, but as the Tang advisor explained, many buyers fail to take even the preliminary steps before acquiring title insurance to protect themselves. Such steps include conducting research  about the history of a piece, looking at stolen art databases for the piece in question, and watching for regular market value. As the expression goes, if it is too good to be true, it probably is.

Stephen Brodie, partner at Herrick, Feinstein LLP addressed some of the other art related types of cases: art investments, inheritance issues as well as logistics in handling and storing art People buy art for any number of reasons, one of which is simply because it is an investment that is or has the potential to be worth a substantial amount of money. These investments can be the point of contention in cases involving trusts and estates, import export claims, and storage claims. Here too, the lack of regulation associated with works of art can often lead to ambiguity of ownership and criminal activity. Art assets can be used as collateral in transactions, some of these legal, others  not. Brodie explained that this is significant because the lack of regulation in this field and art related crimes spread to other popular areas of law, and are not just confined to stealing art or forgeries.

The take away from the June program is very simple. Just as there are many delights/joys for those engaged in art transactions, there are many risks as well. For oblivious buyers, the risks may outlast their thrill of acquisition. Thus to avoid having acute pangs of buyer’s remorse, risk awareness and assessment should be a part of the exercise.

The next Art Law event in the Herrick/The Art Newspaper partnership, is scheduled for September 30, 2015. Moderated by Jane Morris, editor of The Art Newspaper, the September program is entitled “Challenges of Loaning Works of Art” Panelists for the event will be announced shortly. Keep an eye on the Center for Art Law Calendar of Events for updated information.

Selected Resources:

  • Herrick, Feinstein LLP – Herrick, Feinstein is a leading firm with a prominent practices in art and cultural property law. It handle all types of art litigation and alternate forms of dispute resolution, and also actively represent and counsel clients in corporate and commercial art law matters. 
  • Art Title Protection Insurance (ATPI)The ARIS ATPI® policy is a title insurance policy structured to address the chain of title and lien risks inherent in art as a form of personal property. The ARIS policy insures against two risk categories: Art Provenance/Chain of Title Risks and “Classic” Title Risks such as Security interests and Creditor liens. A Spotlight on ARIS is available here
  • Federal Bureau of Investigation Art Theft ProgramThe FBI has a dedicated Art Crime Team of 15 special agents, supported by three special trial attorneys for prosecutions. It also runs the National Stolen Art File, a computerized index of reported stolen art and cultural properties for the use of law enforcement agencies across the world. 
  • Tang Art Advisory – Tang Art Advisory advises private and corporate collectors on buying, selling and managing their art assets. Services include: due diligence before the purchase; selling consultations; negotiates for clients and art management. 

About the Author: Debra Friedmann, Center for Art Law  Legal Intern (Summer 2015) is a rising second-year law student at the Georgetown University Law Center. She received a B.A. in History and Studio Art from Brandeis University. Debra may be reached at dsfriedmannATgmailDOTcom.

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