The Art Law Report

Providing timely updates and commentary on legal issues in the museum and visual arts communities

Gurlitt Collection May be Displayed Next Year, Real Progress Still Elusive as Focus Remains on Public Relations

Posted in Cultural Property, Gurlitt Collection, Museums, Restitution, World War II

After months of relative inactivity, there was news this week in the saga of Cornelius Gurlitt, the reclusive German man from whose apartments in Munich and Salzburg more than 1,280 objects were seized as part of a tax investigation, objects that came under suspicion of Nazi looting because of the privileged position held by his father Hildebrand Gurlitt.  Unfortunately, the latest news continues a string of public relations efforts that bespeak no real progress as we approach the second anniversary of the public awareness of the story.  Quite unlike the plaudits that were thrown around by many last year (though not by us) concerning Germany’s agreement with Gurlitt’s named heir, the reaction has been appropriately skeptical this time.

Representatives of the Ministry of Culture revealed this week that it intends to display next year some of the works found in the apartment of Cornelius Gurlitt nearly four years ago.  According to Der Spiegel, the exhibition will show works that may have had Jewish owners in the Kunsthalle der Bundesrepublik Deutschland (Art Hall of the Federal Republic of Germany) sometime near the end of 2016.  The office of Minister of Culture Monika Grütters told the Associated Press that the exhibition was intended to show “full transparency” in connection with Germany’s 2014 agreement with the Kunstmuseum Bern, which Gurlitt named as his sole heir and to which he bequeathed his paintings.  That will is still under challenge in court in Munich on the argument that he was not competent to make the disposition at the time he wrote the will.

At the same time, the very Task Force that has been researching the provenance collection is nearing the end of its appointment, with resulting uncertainty.  The Task Force was quickly assembled in early 2014 after the collection was made public.  To date it has identified merely four works that should be restituted, only two of which have actually been returned last I checked.  The agreement between Bavaria, the Swiss museum, and Germany, pledged to have the Task Force continue to research the remaining 1,200 some-odd objects.  Yet in the Bavarian state assembly, the Bavarian Minister of Culture responded to a Green Party question that the future of the commission was open, and “If and in what form the provenance research after December 31 will continue will be advised and decided together by the federal government and the state [Bavarian] government.” (my translation).  “If” does not mean “will,” which begs the question of what happens if the Task Force members go their separate ways.

These developments are a depressing combination.  The statement accompanying the disclosure of the exhibition plans made vague references to imminent conclusions, but that is hard to take to the bank.  As Green Party representative and cultural spokesman Sepp Dürr (a persistent critic of Bavaria’s handling) said with regard to the uncertain future of the Task Force (again my translation), “The damage could be great. . . .What is clarified is essentially nothing.  The Task Force was in the end just an alibi event.”

Strong words came from the other side of the Atlantic, too.  World Jewish Congress President Ronald Lauder told Spiegel that (my translation): “We are disappointed.  When the Task Force was erected in 2013, many people, myself included, were optimistic.  We hoped for quick results.  Yet the work of the Task Force is still far from being completed.”

Given the attention that the Ministry has devoted to its disastrous proposed revision to the cultural property law, it is not entirely surprising that it has walked into another PR failure while not paying attention.  Yet at the same time it is revealing, because going on its third year, the Gurlitt saga has always been more about PR than substance.  An exhibition with so little yet accomplished would merely underscore that unfortunate conclusion.

Art and the Digital Age, Wednesday 10/14 at the Boston Bar Association

Posted in Copyright, Events

Fresh off yesterday’s panel at the IBA annual meeting in Vienna, I will be presenting a brown bag lunch lecture next week at the Boston Bar Association.  Entitled “Art and the Digital Age,” I’ll explore what issues do digitization and a growing culture of appropriation create for the visual arts.  In an era of social media and memes, a number of pitfalls and creative possibilities may not occur to the unwary.  This talk will focus on what is and is not changing under the law, and what to look for in the future.

Particularly after learning a great deal from my co-panelists yesterday, I hope it will be an informative session.  Hope to see you there.



In Vino Veritas—Second Circuit Upholds Damages in Counterfeit Wine Koch Brother Case With Implications for Art Sales

Posted in Auctions, Authentication, U.C.C.

Koch brothers David and William are as well known for their art patronage as certain parts of the family are for political activity, and a decision yesterday by the Second Circuit involving William Koch could extend that influence.  While the case concerned two dozen bottles of allegedly counterfeit wine, the implications on terms of sale and disclaimers will be felt in sales of fine art in New York as well.


William Koch sued Eric Greenberg, Zachys Wine & Liquor Stores, and Zachys Wine & Liquor Auctions, alleging that the defendants knowingly sold Koch 24 fake bottles of Bordeaux at a 2005 auction.  Among those wines that Koch alleged were not what they were represented to be, were an 1811 Château Lafite Rothschild, 1864 and 1865 Chateau Latour, and a 1921 magnum of Pétrus.  Specifically, Koch alleged that Greenberg had specifically been told by an expert at Sotheby’s that the wines were inauthentic, yet consigned them for sale anyway.  Moreover, Koch alleged, Greenberg had pursued the company that sold him the wines on that very basis, and reached a settlement.  Koch discovered all this when he hired the very same expert, who noted the same bottles she had seen in Greenberg’s cellar after Koch had purchased them.

The claims were for common law fraud (namely, that Greenberg had knowingly made a false statement of fact on which Koch reasonably relied), negligent misrepresentation, and a violation of § 349 and § 350 of the New York General Business Law, New York’s consumer protection statute and false advertising statute, respectively.  Greenberg countered that Koch’s agreement to purchase the property “as is” mooted any other claims, and expressly overrode any warranties under the Uniform Commercial Code, including of “merchantability, fitness for a particular purpose, correctness of catalogue description, size, quality, condition, rarity, importance, provenance, exhibition history, literature, previous storage condition or historical relevance of any property.”  Greenberg argued, relying on the U.C.C., that this provision and Koch’s ability to inspect the wine extinguished any warranties.

A jury awarded Koch $12.4 in 2013—$12 million of which comprised punitive damages—which the trial judge reduced to $1.15 million ($711,622 of which were punitive damages).  Post-trial, Koch settled with Zachys.  Greenberg appealed to the Second Circuit.

In a summary opinion, the Second Circuit affirmed the District Court’s verdict and judgment.  Regardless of the merits of the U.C.C./”as-is” argument, the appeals court found, disclaimers will not absolve a seller of intentional fraud.  The jury having found that Greenberg had “peculiar knowledge” about the authenticity and provenance of the wine, an appeals court will not revisit that factual conclusion absent a “complete lack of evidence,” nor that Koch’s reliance was unreasonable as a matter of law.  Appeals courts are extraordinarily deferential to jury verdicts on the question of facts, and so it was here.

By now you may be rubbing your eyes and asking if we’ve rebranded as the Wine Law Report.  We have not, but the point is that as tangible property, the same U.C.C., contract, and fraud principles apply to fine art.  Indeed, if you did a find and replace one the above substituting “art” for “wine,” it would be the same.  Greenberg and Zachys had excellent disclaimer language, which as they eloquently argued, is enforceable.

But that is a question of contract.  And whether for wine, or fine art, or cars, or anything else that has unique value, sellers cannot avoid specific knowledge to the contrary if they proceed to sell an object as a particular thing.  In one sense “tell the truth” is not complicated or controversial advice (the appeals court stated “Given the evidence that the defendant intended to sell counterfeit wine, at auctions aimed at the public, no manifest injustice exists in the imposition of a punitive damages award”), but it can be more complicated than that.  It also counsels caution in surveying the range of facts known to the seller.  Make sure that the disclosures and statements don’t aren’t mutually exclusive with what you know.

Stephan Templ, Chronicler of Nazi Looting in Vienna, Set to Begin Jail Term Over Supposed Omission in His Mother’s Holocaust Restitution Claim

Posted in Restitution, World War II

As I prepare for a trip to Vienna for next week’s International Bar Association Annual Meeting, there is some topical restitution news, but it is hardly good.  The imminent incarceration of Stephan Templ, a journalist and historian, for the omission of another relative from his mother’s application for Holocaust compensation, is as bizarre as it is disheartening.  One hopes that a pardon, his last available recourse, will soon be forthcoming.


In the evolving world of European state museums’ confrontation with Nazi-looted art in their collections, Austria is a centrally important example.  Ensconced for years in the “first victim” myth, it was unwillingly and unhappily at the forefront of the resurgence in the 1990s of attention to the fate of looted art.  Between the Portrait of Wally affair, in which Egon Schiele’s paintings were seized in late 1997 while on loan to the Museum of Modern Art, to the refusal to return Gustav Klimt’s Portrait of Adele Bloch-Bauer and other paintings to Maria Altmann, to decades of application of a restitution law that returned title to the heirs of victims of persecution, Austria was a byword in many circles for a regressive approach.

Austria has tried to set an impressive example since then.  It amended its restitution law to confirm that the export prohibition was itself confiscatory.  It established a Restitution Committee to handle claims that rivals any in terms of output (its recommendations number in the hundreds), and which has often taken a refreshingly (but sadly rare) common-sense approach to uncertainty, concluding in one example concerning botanical drawings in the Natural History Museum that a gap in provenance between a Viennese Jewish owner and Baldur von Schirach did not require the heirs to prove persecution.  The thing spoke for itself, as we say.  And there was plenty of criticism of this year’s recommendation not to return the Beethoven Frieze, but certainly compared to the direction that the Limbach Commission in Germany has been heading, the Austrian restitution record in the last 15 years is generally (in my opinion) cause for optimism.

All this makes the news about Stephan Templ this week especially distressing.  Templ and Tina Walzer are the co-authors of Unser Wien: “Arisierung” auf österreichisch (Our Vienna: “Aryanization” Austrian Style) (2001), a meticulous cataloguing of the expropriation of Jewish property (real estate in particular, including some distressingly familiar landmarks).  The book (which is in German, but there is a good English language review here), is a must-have for any informed library about restitution.  Not surprisingly, it was not beloved by all in Austria (and Templ has written far more critically about Austria’s restitution record than I have).  Templ’s story of late sounds like fiction, however.

One of the buildings stolen from its Jewish owners was a sanatorium near the Ringstrasse owned by Templ’s relatives, Lothar Furth and his wife.  At the Anschluss in March 1938, Furth was subjected by the sanatorium’s concierge (his employee) to participate in one of the the humiliating “Reibpartie” (“Scrubbing Parties”) that broke out around the city, in which Jews were forced to clean the sidewalks with toothbrushes in front of leering and menacing mobs.  (As an aside, this sordid chapter is the subject of an excellent video installation outside the Albertinaplatz called “The Missing Image” by Ruth Beckermann.  (If you look at the far left of the first photograph accompanying the Der Standard article when the exhibit was revealed in March, you can actually see me).  The Furths committed suicide the next day.

Templ’s mother Helene was a descendant of the Furths’ grandparents.  After the sanatorium was restituted in 2010 to 39 heirs of Lothar Furth, the heirs decided to sell the building. Helene (herself a Holocaust survivor), had Templ file her claim for her share.

Elisabeth Kretschmer, Templ’s aunt, was advised by the bank disbursing the proceeds that she had missed out by failing to file a claim.  Kretschmer complained to Viennese prosecutor Kurt Hankiewicz that she had been misled.

At that point, Hankiewicz indicted Templ for failing to list his aunt as a potential heir when he made the claim on behalf of his mother.  The state argued that Templ had defrauded the Austrian Republic because Kretschmer might have given up her inheritance to the state.  Apart from the logical absurdity, in actual fact Kretschmer told the Austrian court that she would never have renounced her share of the proceeds.

Templ argued, not surprisingly, that he wasn’t representing anyone else and had not claimed to speak for all the heirs; he was filing a claim for his mother.  Nonetheless, Templ was convicted last year.  No other claimants (who presumably also, and understandably, did not identify Kretschmer) were prosecuted.
The outcry was considerable, including from Eva Blimlinger, who led the Austrian restitution commission, who said:

Nobody can understand it, but when you isolate the case, it’s clear that the whole thing is stupid. Nowhere is it written that it is obligatory to list other heirs. So that’s the part that is the duty of the General Settlement Fund to look up and see if there are other heirs. It’s not the duty of Stephan Templ or his mother.

It seemed rational to hope that reason would prevail, but it was not to be.  Reports are that Templ is set to begin shortly or has begun serving a one-year sentence.  Apparently a presidential pardon is his only remaining hope.

For their part, Templ and his legal team are not taking this lying down.  On his website, attorney Robert Amsterdam writes the following about his client and the publication online of the recommendations of the National Fund of the Republic of Austria for Victims of National Socialism, under the title “Did Austria Try to Cover Up Exculpatory Evidence Against Stephan Templ?” (exculpatory evidence meaning evidence that tends to exonerate or show the innocence of someone) :

By law, the National Fund is under an obligation to publish all recommendations online. . . .

Mr. Templ, the investigative journalist that he is, was able to track down the paper copy of this one single missing decision. Interestingly, it contained a very important case precedence. In the penultimate paragraph of decision WA1/2007, the following is written:

In this regard, it should be merely be mentioned that a criminally (or otherwise) sanctioned obligation of an heir to reveal in probate proceedings the existence of other heirs does not exist. Only a wrong statement during a formal questioning in the matter, as for instance in the recording of the death could have relevance.

The implication is clear: the omitted passage is a statement of the law about the obligation of one heir to disclose the existence of another (i.e.,. none).  As a logical proposition, it is completely inconsistent with the prosecution.  As a legal matter, some caveats are important.  First, it is a statement of one government agency, which is not the law.  Second, it would not necessarily bind other agencies (just as would be the case here if the Department of Justice made a statement, it would not compel a court to rule a certain way).  I would not characterize that as exculpatory evidence so much as potential inconsistency, but it’s a minor distinction.  Regardless, if deliberately removed from public view, it is certainly odd at best.  Amsterdam also published an advertisement in Der Standard today that concludes in a call to Austrian citizens (my translation):

Since April 25, 2013, no one has produced any evidence that Stephan Templ did anything in any respect illegal when he applied for restitution for his mother.

Elsewhere, 75 scholars sent a letter last week to Austria’s ambassador to the United States demanding his release.  It reads:

Dear Ambassador Manz,

As scholars who have written or taught about the Holocaust or other genocides, we are deeply troubled by the impending imprisonment of an Austrian Jewish historian and journalist who exposed Austria’s failure to return Jewish property seized during the Nazi era.

The crime of which Mr. Templ has been convicted, and sentenced to one year in prison, was his omission of the name of an estranged relative from his application for the return of his family’s seized property. This matter could have been resolved by the Templ family in civil court. The Austrian government’s decision to intervene by prosecuting and jailing Mr. Templ will be seen as an extreme overreaction to Mr. Templ’s important book, Our Vienna: Aryanization Austrian-Style, which criticized Austria’s policy concerning the restitution of Jewish property.

Please convey to President Heinz Fischer our urgent request that he reconsider his rejection of Mr. Templ’s appeal against his prison sentence. 

Templ has provided an invaluable service to historians and heirs.  Even if the case against him is not subjectively in retaliation for his scholarship, the chilling effect of the prosecution is profound.  Here’s hoping he is released soon.

Symposium: “Ethics and Cultural Patrimony – Viewpoints,” in Paris October 20-21, 2015

Posted in Conservation, Cultural Property, Deaccession, Events, Restitution

I am looking forward to participating next month in a symposium entitled :”Ethics and Cultural Patrimony: Viewpoints” at L’Ecole du Louvre in Paris on October 20-21, 2015.  The event is organized by L’Institut Droit Ethique Patrimoine (Institute of Law, Ethics and Heritage), in partnership with l’Institut d’Etudes de droit public (Institute of Public Law Studies) and l’Ecole du Louvre, and take place at the Ecole du Louvre, Palais du Louvre, porte Jaujard, place du Carrousel, 75001 Paris.  The conference website (with registration) can be found here, and the brochure can be opened here.

I will speak about the ethics of deaccessioning in the United States, with Marie  Cornu (director of research at the National Center of Scientific Research and a member of the national French commission for UNESCO), who will address the ethics of the export of cultural patrimony.

The overall program is as follows, begging forgiveness for my poor French translation.  Hope to see you in Paris!


Tuesday October 20, 2015


Chaired by Dominique Jarrassé (Professor of History of Contemporary Art, Bordeaux University Montaigne)


Durey Philippe (Director of the Ecole du Louvre)

Bittoun Jacques (president of Université Paris Sud)

Janicot Daniel (president of the French National Commission for UNESCO)

Introduction: The ethical issues of cultural heritage; UNESCO’S Viewpoint

Edouard Planche (Programme Specialist, Division of Cultural Expressions and Heritage)

UNESCO Perspective of a Lawyer

Stéphane Duroy (Professor of Public Law, University Paris Sud)

Perspective of a Practitioner

Denis Michel Boëll (general heritage curator, Musée de la Marine, member of the ICOM Ethics Committee)

Ethics and Artification

“The Artification” of Ethics

Nathalie Heinich (CNRS Research Director, Arts Research Centre and the language)

“Artification” and Raw Art

Baptiste Brown (lecturer in History of Contemporary Art, University Rennes)

“Artification” Ethics and the Art Market

Chadelat Catherine (president of the Council of Voluntary Sales) and Sophie Vigneron (senior lecturer, University of Kent)


Chaired by Stéphane Duroy (Professor of Public Law, University Paris Sud)

Ethics and patrimonial documents

Ethical Challenges of the Cultural Heritage of Documents

Dominique Jarrassé

The Cultural Heritage of Architectural Archives

Gilles Ragot (Professor of History of Contemporary Art, University Montaigne Bordeaux, former head of Architectural Archives of the twentieth century)

Ethics and Patrimonialisation of Cultural Practices (Intangible Heritage)

Ethics of Intangible Cultural Heritage

Lafferière-François Julien (Professor Emeritus, University Paris Sud)

Implementation of Ethical Issues of Intangible Cultural Heritage

Janet Blake (senior lecturer in law, member of the UNESCO Chair for Human Rights, Peace and Democracy, University of Shahid Beheshti, Tehran)

Ethics and Sponsorship

Ethics of Patronage

James Bradburne (Director, Pinacoteca di Brera, Milan)

Ethics and Practice of Patronage

Philippe-Henri Dutheil (former president, partner and non-profit sector director, EY Société d’avocats)

Legal Tools of the Ethics of Patronage

Geraldine Goffaux Callebau (Professor of Private law, University Western Bretagne / Université Paris Sud)



Chaired by Marie Cornu (director of research, member of the Center for Scientific Research, member of the French National Commission for UNESCO

Ethics of Restoration

Challenges of Identity and Memory

Marie Berducou (honorary lecturer in art history, Université Paris, former director of the Department of Restaurateurs, National Heritage Institute)

The Ethics of the Conservation of Damaged Works in Berlin in 1945

Julien Chapuis (Deputy Director, Museum for Byzantine Sculpture Collections and Art, State Museums in Berlin)

The Ethics of the Conservation of Human Remains

Noëlle Timbart (conservative heritage, in charge of Egyptian and Oriental antiquities, Center for Research and Restoration of Museums of France)

Ethics and Digitization

Ethical Issues of Digitization (Sorting, Selection, Censorship)

Céline Castets- Fox (Professor of Law, University of Toulouse Capitole, member of the University Institute of France)

Ethics of Digital Broadcasting

Arnaud Beaufort (director of services and networks, National Library of France)

The North American Approach: the Ethics of Digitization and Broadcast

Gautrais Vincent (Professor of Law, University of Montreal)


Chaired by Philippe Durey (director of the Ecole du Louvre)

Ethics and restitution of looted works

Ethical Issues of Restitution of Stolen Works

Astrid Müller-Katzenberg (Doctor of Law, Lawyer, Berlin)

Update on the Implementation of Ethical Issues in the Restitution of Works

Emmanuelle Polack (French expert of the Task Force “Schwabinger Kunstfund,” [Gurlitt] researcher, National Institute of Art History)

Ethics and the Restitution of Human Remains

Statement on the Ethics of the Restitution of Human Remains

Michel Van Praët (member of the National Consultative Ethics Committee, member of the National Scientific Commission of collections)

Ethical Issues in the Return of Human Remains

Vincent Negri (Researcher, Centre national de la recherche scientifique)

Ethics of the Removal from Collections

Ethics and Deaccessioning

Nicholas M. O’Donnell (partner, Sullivan & Worcester LLP)

Ethics and the Export of Cultural Heritage

Marie Cornu


Conclusions of a Lawyer

Fromageau Jérôme (Honorary Dean, President of the International Society For Law Research of Cultural Heritage and Art Law)

Conclusions of an Art Historian

Claire Barbillon (professor History of Contemporary Art, University of Poitiers, research team, École du Louvre)

Irony is Dead: PETA Sues for Copyright Infringement on Behalf of the Animal in the “Monkey Selfie”

Posted in Copyright, Litigation

In a year that began with the vagaries of Left Shark, we have our most bizarre art law story of 2015—so far.  Last year, the United States Copyright Office released a public draft of the Third Edition of the Compendium of U.S. Copyright Office Practices.  Among the new items that leapt out at practitioners was the section of examples of non-copyrightable works, which included “A photograph taken by a monkey.”  The Copyright Office was inspired to include this example because of a 2011 photograph taken by British nature photographer David Slater.  A crested black macaque picked up Slater’s camera and pressed the shutter button, and the result became known as the “monkey selfie.”  While as I said at the time, I thought the point was debatable to the extent that Slater could intentionally have left the camera within reach of the animal the same way that leaving something exposed to nature could still result in a copyrightable work, the question was obviously (I thought) limited to whether or not Slater could restrict reproduction of the work as the author.

News broke today that we are fully through the looking glass, however.  People for the Ethical Treatment of Animals, or PETA, have filed a lawsuit in the Northern District of California against Slater and his publisher Blurb, and a U.K. company named Wildlife personalities.

monkey selfie

The lawsuit makes the following claim on behalf of the macaque in question, “Naruto” (last name unknown):

Naruto has the right to own and benefit from the copyright in the Monkey Selfies in the same manner and to the same extent as any other author. Had the Monkey Selfies been made by a human using Slater’s unattended camera, that human would be declared the photographs’ author and copyright owner. While the claim of authorship by species other than homo sapiens may be novel, “authorship” under the Copyright Act, 17 U.S.C. § 101 et seq., is sufficiently broad so as to permit the protections of the law to extend to any original work, including those created by Naruto. 

The claim of authorship by species other than humans is not “novel.”  It is completely unsupportable.  First and foremost, as if it needed saying, the Copyright Act repeatedly refers to authors and owners in the context of “natural persons.”  Webster’s dictionary defines “person” as:

1.  a human being, whether an adult or child:

Even hesitantly taking the claim at face value, a passerby who picked up a camera and took a picture inadvertently would absolutely face a tall hurdle claiming copyright: in issuing the Compendium, the Copyright Office has already said that copyright can only attach to “fruits of intellectual labor” that are “founded in the creative powers of the mind.”  Pure accident does not meet that test.  So while I still think Slater had a better copyright argument than the Copyright Office allowed, PETA’s analogy fails.

Additional and appropriately outraged commentary on the Complaint can be found here.  You can be certain we will keep an eye on this one.


Anish Kapoor in Versailles: Requiring Removal of Graffiti Turns Into Compelled Speech

Posted in First Amendment, Graffiti Art

Back in June, sculptor Anish Kapoor installed the sculpture Dirty Corner on the grounds of the famous palace there.  Kapoor, who can’t seem to avoid public controversy over his work, saw the sculpture first become the object of debate with regard to its form itself, specifically, the suggestion that the shape of the large work was anatomical.  Kapoor coyly fostered speculations about what it was meant to represent, but ultimately demurred that his “work has multiple interpretive possibilities.”  With recent vandalism and a court order that he remove the graffiti, however, the story has turned into one more about free expression and compelled speech.  So far, it does not have a happy ending.

The story might have ended with the initial furor about titillation as a debate about decency, expression, and obscenity, but that was not to be.  At least three times over the summer, the sculpture was vandalized with spray-painted phrases such as “SS blood sacrifice,” “Queen sacrificed, twice insulted,” “the second RAPE of the nation by DEVIANT JEWISH activism” and “Christ is king in Versailles,” written in French.  It was quite shocking.  French Prime Minister François Hollande condemned the vandalism as “hateful and anti-Semitic,” and French Minister of Culture Fleur Pellerin said that it as “no more or less an act which reveals a fascist vision of art.”

Kapoor at that point made an interesting choice.  After the first act of vandalism was removed, Kapoor declared that he would leave the remainder in place.  I am convinced that nothing should be removed from these slurs, from these words which belong to anti-Semitism that we’d rather forget,” he said.  “From now on, in the name of our universal principles, these abominable words will become part of my work, they will overlay it and stigmatize it.”  Kapoor explicitly linked his decision to the refugee crisis in Europe, criticizing France for its response to that situation.

That too, however, was not the end of the story.  After Kapoor stated his intention to leave the artwork as is, a local politician named Fabien Bouglé filed a complaint with the public prosecutor against Kapoor and Catherine Pégard, president of the Palace of Versailles, alleging that the defendants were complicit in the anti-Semitic statements by failing to remove them.

This week, to the surprise of most, the French court ordered the graffiti removed.  Kapoor was incensed, saying to The Art Newspaper:

From my perspective, this [the court decision] is a triumph for the racists. The right thing is to carry on. . . .  We will start working on Monday [21 September]; this will be an act of transformation which turns the nastiness into something else. I want something active, not reactive.

Shortly after making the statement, The Art Newspaper updated its report to say that black sheets had been placed over the sculpture, covering it entirely.
Kapoor is British, but as an American lawyer the story certainly stands out in contrast to what one would expect under U.S. First Amendment law (which of course has no application here, this is purely a thought exercise).  But like our ruminations on cultural property laws, it’s a reminder that even in an interconnected world things can be very different.

The reason the story jumps out is as an issue of compelled and restricted speech.  Under the First Amendment to the U.S. Constitution, the government cannot choose among expressive messages.  Further, under the doctrine of prior restrain, a court will be extremely leery of silencing any kind of speech—but particularly political speech—unless compelling reasons of safety or law (e.g., copyright) justify otherwise.  Further, once the government creates a public forum, it cannot select which expression to permit based on its content.  That is why American Nazis and Ku Klux Klan rallies are permitted so long as they are peaceful (and why, despite what you may have heard, the Confederate Flag is in no way illegal or prohibited, it simply no longer flies at the South Carolina State House).

The suggestion that Kapoor was adopting the anti-Semitic graffiti for its content is ridiculous, of course, but that is entirely beside the point from the standpoint of free speech.  Kapoor was free to make his initial expressive work.  Some people found it offensive.  Kapoor was not permitted to take an expressive stance on a development outside his control.  His intention was to leave the juxtaposition, a contrast daring the viewer to come to terms with what had happened.  The court order said otherwise, which in my view is a form of compelled speech, without question.  His response, if accurately reported, is pitch perfect short of civil disobedience: the black sheets show that the absence of truly free expression is the absence of expression.  Yahoo! has since reported that the entire sculpture is being covered in gold leaf.

The Kapoor story reminds me again of an episode in my own experience.  In the fall of 1993 artist David Hammonds was an artist in residence and completed an installation of his Yardbird Suite at the Williams College Museum of Art, where was then an undergraduate (and a work-study security guard to boot).  At the same time, he installed a work entitled Rock Fan on the main gathering point on campus, near the freshman quad and the dining hall.  Rock Fan, which consisted of a large boulder with electric fans affixed all over it, elicited the usual sniggering about “what does it mean?” and a surprising amount of anger, á la Richard Serra’s Tilted Arc (as an aside, the rage that public art provokes is a source of enduring fascination).

Rock Fan

(Rock Fan in happier days.  Your author as a confused undergraduate happily not pictured)

After several weeks however, in the days before the annual Homecoming football game against Amherst College, something more serious happened.  Vandals doused the entire sculpture in purple paint.  Everyone was quick to point fingers; purple being the color of both Williams and Amherst, convenient scapegoats and plausible deniability abounded.  It was, to put it mildly, terribly embarrassing for both esteemed liberal arts institutions.

What reminds me of it now, however, is not just the vandalism, it was Hammonds’s response.  That is to say, he chose to leave it as is.  Had there been any effort to compel him to do otherwise, the outcry would have been enormous.

Backwards, Not Forwards: German Cultural Ministry Submits Revised Cultural Heritage Protection Law

Posted in Cultural Property, Guelph Treasure, Museums, Restitution

After two months of scathing criticism, the German Ministry of Culture has submitted a watered-down, but still problematic, revision to its Cultural Heritage Protection Law.  Back in July, Minister of Culture Monika Grütters announced the initial proposal to amend Germany’s law, or Kulturgutschutzgesetz.  The revision, however, is optical at best, and seems targeted only to soften criticism while still taking a regressive view of cultural property that is more at home in the 18th century than the 21st.  It will probably pass, to the detriment of forward thinking art market players who will move their trade elsewhere.

Germany, like most European countries, already has provisions under which a piece of property cannot leave the country without the Ministry’s permission.  The July draft would have tightened that even further, and applied to objects as young as 50 years old and worth at least €150,000—and not necessarily only German works.

The response was unanimously critical.  Art market players pointed to the risk they would take by bringing art into Germany.  Even someone with clear title would risk plummeting value if the government declared its intention to restrict the object’s movement.  And the idea that works by Andy Warhol might be declared German cultural patrimony raised more than a few eyebrows.  Worse yet, German artists like Georg Baselitz and Gerhard Richter vocally objected to the law.  Baselitz withdrew all his loaned work from German museums, and Richter intimated that he might follow suit.

Last week, the Ministry changed course, at least slightly and released a statement on September 15, 2015 to go along with the actual draft itself (both still available only in German, as far as I can tell).  In the statement, the Ministry offers several explanations about the draft:

Approval Procedures for Export: the statement noted that under EU law, an export permit for “particularly high quality” cultural objects has been required since 1993 to any country outside the EU (e.g., Switzerland or the U.S.).  The revision would add a requirement for a permit to other EU countries, for paintings older than 70 years and valued at more than €300,000.

The statement stressed the law’s inapplicability to contemporary work, and to any living artist (no doubt a nod to Richter and Baselitz).

The Ministry stressed that export permission would be granted “quickly” is there is no “suspicion” that the object is cultural property or has illicit ownership history.

Distilled to its essence, however, the new draft is a difference of only 20 years and roughly $200,000 in value.  The attention in the statement devoted to attempting to analogize the current draft to other European countries strikes a somewhat defensive tone.  The actual draft law frames the “problem” as one of compliance with UNESCO and the fiscal obstacles of keeping cultural property in Germany.

As we noted back in July, all of this still begs the larger policy question: what purpose does this serve?  There is no question that European countries have, and will continue, to support restrictive cultural property laws that would never advance to the discussion stage here in the United States.  That is not to say the U.S. is right and the Europeans are long; the scope of the timeline of European cultural objects is geometrically longer (taking aside indigenous North American cultural objects, which are addressed in a different statutory framework, the Native American Graves Protection and Repatriation Act, or NAGPRA, most significant among them).

But what, exactly, is the principle behind drawing geographical lines around the cultural output of the first third of the twentieth century in particular?  Given the way the maps of Europe looked in 1900, and then 1918, and then 1945, is this a wise effort?  Art of the 19th and 20th century is not in need of some ancient protection; it has been moveable personal property in a sophisticated market throughout its existence.  This may come down to a Transatlantic perspective difference, but identifying the export of art based on the ethnicity of its origin is just not the problem the law claims it is.

And finally, even if there good reasons for cultural export bans generally (of which, the reader can see, I’m unpersuaded), the opportunity for specific mischief is troubling.  Readers will know that my clients are involved in litigation with the Stiftung Preussischer Kulturbesitz, an entity under control of the Ministry, which despite claiming ownership of the Guelph Treasure took the added step of declaring it cultural property supposedly subject to the ban in February.  The Guelph Treasure is, from an art historical perspective, clearly part of the cultural heritage of Germany—as a matter of art analysis.  But that declaration is meaningless; if the SPK were the rightful owner, the designation would oblige the ministry to ask permission for export from…itself.  Of course the designation is not intended for that, it is intended to strip claimants from the chance to export, just as Austria did for years before laudably recognizing that kind of export ban as compensable looting.

Art is a commodity, whether we like it or not.  Pretending otherwise is like advocating mercantilism in an era of trade.  It belongs to the past.

Restitution of Constable Painting at the Tate Moves Ahead Again

Posted in Museums, Restitution, World War II

After putting on hold its prior recommendation back in March of this year, the United Kingdom Spoliation Advisory Panel has recommended that the Tate Gallery in London should return Beaching a Boat, Brighton by John Constable to heirs of Budapest-based (and Jewish) Baron Ferenc Hatvany.  The Art Newspaper reports that the Spoliation Panel concluded that the 1946 export license at issue in the springtime uncertainty (located from the Budapest Museum of Fine Arts) was insufficient to overcome the conclusion that title to the looted painting had not passed lawfully.

Export License

(the export permit, as depicted in the September 10, 2015 decision)

This is a notable announcement, in particularly because it applies the application of doubt in favor of the claimant, not the reverse.

As reported last year by The Art Newspaper:

Hatvany had bought Beaching a Boat, Brighton at a Paris auction in 1908. In 1942, when Budapest was threatened with Allied bombing, he put many of his paintings in bank vaults for protection, although other pictures remained in his two main residences. Two years later, after the German invasion of Hungary, Hatvany went into hiding, where he remained until Soviet troops entered the country in February 1945. At that point, Red Army soldiers looted the bank vaults.

Beaching a Boat, Brighton was donated to Tate in 1986 by a Mrs P.M. Rainsford, who had acquired it in 1962. That same year, it was owned by a Mr Meyer, who sold it to the London dealer Leger, and it then went to the Broadway Art Gallery in Worcestershire, which sold it to Rainsford. All parties appear to have been acting in good faith.

The U.K., like the United States, generally will not allow a good-faith purchaser to acquire title of an object that was stolen.  Hungary and other Continental countries take the opposite view, such that if there were a good faith purchase on the Continent before it got to England, the heirs might be out of luck (contrasted with if the thief had imported it into the U.K.).  In its first recommendation, however, the Spoliation Panel went even further, criticizing the Tate for its provenance research.

Then, this year, the 1946 export permit from Hungary raised the possibility that there might have been an intervening good faith purchaser.  If the painting were looted in 1942, then acquired and exported in good faith by a third party (particularly after the war), that transaction could, under certain circumstances, extinguish the legal title claim of Hatvany’s heirs.  Good faith purchase is necessarily a fact-intensive query, and the presumption matters quite a bit.  If, having been looted, one assumes that any transaction thereafter was illicit until proven otherwise, it would be difficult to interfere with the heirs’ claim absent compelling proof.  If, on the other hand, one puts the heirs to the burden of proof to disprove good faith, there too it would be a hard task to meet.

The Spoliation Panel was particularly interested in the idea that there was no indication of provenance research as part of the export license procedure.  Put another way, one cannot assume good faith acquisition if one cannot be sure that that purchaser at least considered the ownership history.  The Spoliation Panel concluded:

On the balance of probabilities he [Hatvany] had not recovered it [the Constable] after it was looted and that the export licence was being sought by persons who were either ignorant of its pre-1944 provenance or, knowing it, were sufficiently confident that the work would not in all likelihood be identified as formerly part of the Hatvany collection.

Happiest of all, this avoids an uncomfortable collision between whether the Tate could keep the painting, and whether it should do so.

Appraisers Association of America Art Law Day at NYU, November 6, 2015

Posted in Events

I always look forward to registering for Art Law Day: Current Legal Issues for Appraisers, Attorneys, and Collectors hosted by the NYU School of Professional Studies and the Appraisers Association of America (in connection with the AAA annual meeting).  This year’s schedule has been announced, and as usual it is excellent.  Hope to see you there.

Keynote Presentation:

The Islamic State War on Culture in Syria and Iraq

Michael Danti, American Schools of Oriental Research Cultural Heritage Initiatives


How Globalization of the Art Market Affects the Legal Landscape of Art Transactions

Judith Pearson, ARIS Title Insurance Corporation, Howard Spiegler (moderator), Herrick, Feinstein LLP, Massimo Sterpi, Studio Legale Jacobacci & Associati, Elizabeth von Habsburg, Winston Art Group

Ethics for Art Appraisers and Advisors

John Cahill (moderator), Cahill Partners LLP, Heather Gray, Elysium Management LLC, Ronald Minkoff, Frankfurt Kurnit Klein & Selz, P.C., Robert Suiter, Winston Art Group

The Thin Line Between Love And Hate: Art, Marriage & Divorce

Gary S. Castle, Anchin Block & Anchin LLP, Amy Goldrich (moderator), Cahill Partners LLP, Adria Hillman, Adria S. Hillman, Attorney At Law, P.C., Ann-Marie Richard, Gurr Johns

Demystifying the Freeport

Marnin Michaels, Baker & McKenzie Zurich, Linda Sandell, Huntington T. Block, Lori Spector (moderator), Lori Spector Fine Art, Inc., Diana Wierbicki, Withers Bergman LLP