The Art Law Report

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

ABA Journal Opens Voting on “Blog 100”—Here Are My Votes

Posted in Blogs

The ABA Journal has opened voting again on its annual “Blog 100,” a roll of notable legal blogs.  I’ve submitted votes for the following blogs (in no particular order), which I have bookmarked and consult regularly.  The great thing about blogging, I have found, is the ability it gives the reader (and the blogger) to survey multiple perspectives on a subject.  So when resale royalties are under discussion, or fair use, I don’t want to read only articles that I agree with or that take the same approach that I would.  I also want to hear something I never would have thought of, and expand the conversation.

If you are so motivated, you can submit votes here (as many candidates as you like).  Good blogging takes reinforcement, and these writers (and others) deserve it.  Happy reading!

The Art Law Blog

Donn Zaretsky of Silberman and Associates offers an ever-current and often acerbic take on variety of issues, particularly copyright, VARA, fair use, and deaccessioning.  No fan of the logical flaws of what he calls the “deaccessioning police,” Zaretsky’s takes are sharp and well-informed.  Twitter:

Center for Art Law

In just a few years, Irina Tarsis has assembled an impressive clearinghouse of contributors on all issues, from museums, to copyright, to looted art.  Also a terrific place to stay current on topical events and peruse other art lawyers on the resources page.  Twitter: @itsartlaw.

Art Law & More

Tim Maxwell and Becky Shaw at Boodle Hatfield LLP in London have an impressive output on both transational and U.K. art law issues.  Twitter: @ArtLawandMore

Art Law London

Also based in London, Paul Howcroft at Fladgate LLP focuses on his expertise in English law as it relates to art matters.  Twitter: @HowcroftPaul

Dispute Resolution in Germany

Peter Bert at Taylor Wessing in Frankfurt covers all manner of dispute resolution, but I rely heavily on his timely analysis of German law, particularly in the restitution arena (in which he is experienced).  Twitter: @peter_bert.

Private Art Investor

Of general interest beyond law, this financial magazine for the art world is nonetheless very current and informed on legal issues, and in particular the financial dimension of them.  Twitter: @PrivArtInvest


Pierre Valentin, Azmina Jasani, Natalia Mikolajczyk and their colleagues provide Constantine Cannon LLP’s in-depth coverage of art and market issues, supported by a fantastic e-mail newsletter as well.


Richard Lehun and Judith Prowda have broken the mold in offering unbundled legal services and a fresh take on the world of galleries in particular.  Twitter: @stropheus.

Did Philadelphia Inadvertently Step on First Amendment and VARA in Painting Over Cosby Mural?

Posted in First Amendment, VARA

Few things have brought consensus recently more than the revulsion over the allegations against comedian Bill Cosby, a Philadelphia native.  Yet in a desire to distance itself from Cosby, the city may have crossed a First Amendment line when a well-known mural entitled “Father’s Day” that depicts Cosby was painted over.  And even if the city did not run afoul of that constitutional protection, the artist of the mural may have had under the Visual Artists Rights Act of 1990, 17 U.S.C. § 106A (VARA) rights too.  Ultimately it will come down to whether the artist or artists object to the fact or the timing of the removal—an objection that would not necessarily be any endorsement or support of Cosby (or have anything at all to do with Cosby), but which might relate more to the right of expression.

According to The Washington Post, a total of 35 women have now accused Cosby of drugging and/or sexually assaulting them.  Cosby denies any impropriety.  Institutions like Temple University and the University of Massachusetts, with which Cosby has had long affiliations, have parted ways with him.  Cosby stepped down from the Board of Trustees at Temple (where he was an undergraduate) last winter, and UMass (where he earned a Ph.D.), asked Cosby in November of last year to step down from the honorary role he had been playing in a capital campaign.

Back in Philadelphia, the Father’s Day-themed mural was painted in 2000 in North Philadelphia at North Broad Street and Glenwood Avenue.  It features an image of Cosby, as well those as of Martin Luther, King, Jr. and Nelson Mandela.  It was, as of this morning at least, still visible on Google Street ViewAccording to ArtNet, the mural was “managed” by the Philadelphia City Mural Arts Program.  That program’s description includes the following:

Mural Arts was first established in 1984 as part of the Philadelphia Anti-Graffiti Network’s effort to eradicate the city’s graffiti crisis. Artist Jane Golden was hired to reach out to graffiti writers and redirect their energies to constructive public art projects. In addition to addressing the problem of graffiti, Mural Arts’ collective mural-making processes proved to be a powerful tool for generating dialogue, building relationships, empowering communities, and sparking economic revitalization. In 1996, the Anti-Graffiti Network was reorganized and the Mural Arts Program became its own entity. Soon after, the nonprofit Philadelphia Mural Arts Advocates was established to raise additional funds for the program, making Mural Arts a unique public/private partnership. 

The project’s website has a wonderful gallery of murals around the city, which clearly reflect a stunning array of creativity.

According to the Philadelphia Inquirer, the Father’s Day mural had apparently been on Mural Arts’ list to be removed “for months,” but after recent public scrutiny, the organization had “decided to move it up on our list.”  That has now happened, but not before someone memorialized the accusations against Cosby by painting them over his image on the mural.

So does any of this create a legal problem?  First and foremost, the Mural Arts Project describes itself as a “public/private partnership.”  So for the purposes of the First Amendment, it may have enough of the imprimatur of state action to be regulated by the right to free speech.  Here a review is instructive.  The government need not let any of us express our views on public property, but once it allows the expression, it cannot choose among them.  That is, once a forum is made available for expressive speech, it may only enforce content-neutral restrictions.

The mural project, arguably, is just such a public forum.  And if the expedited decision to paint over the Father’s Day mural was because of what (or more precisely, who) it depicted, that is not a content-neutral restriction.  It is exactly the opposite.  And of course these principles are tested in hard cases; it is the availability of speech for unpopular ideas (or people) that the First Amendment protects.

By contrast, if the artist were either working for the city, or creating the mural for the city (as compared to with the city’s permission), then the city would be entirely within its rights to keep or dispose of the work as it sees fit.  A recent case involving a mural at a post office in Maine underscored this point.  That is to say, the government can choose to make or not make its own expressive statement, it just can’t discriminate among others’ expressive statements.

The bigger question, and the one that would also drive any VARA argument for physical integrity on the premise that the work was of “recognized stature,” is whether the artist cares.  Because if either scenario I’ve laid out is correct (that the mural was removed by the government from a public forum because of its content, or that a work of recognized stature was destroyed), it would be for the artist to complain about it.  It would be the artist whose rights—constitutional or statutory—had been affected.  There is no sign yet that the artist or artists of the mural object to the removal.

Focus of Gardner Investigation Accuses FBI of Entrapment

Posted in Museums

Robert Gentile, whom the FBI has claimed has knowledge of the whereabouts of the paintings stolen from the Isabella Stewart Gardner Museum, has moved to dismiss the indictment against him on firearms possession charges.  He argues that the current investigation was manufactured solely to pressure him into cooperating with the Gardner investigation, and is unconstitutional as a result.  He faces a tall task, but he has raised a few colorable constitutional issues.

As discussed before, Gentile’s name has come up before in connection with the Gardner theft.  He has consistently denied any knowledge of or involvement in the theft or possession of the paintings.  The FBI has said that they believe that Gentile received some or all of the paintings from a man named Robert Guarente, who is now deceased.  Guarente’s widow has supposedly told the FBI that she saw her late husband give a disputed number of paintings to Gentile.  Gentile’s home was searched in 2012.  That search did not yield the paintings.  Since then, the police have leaned heavily on Gentile.  Earlier this year, Gentile was arrested again, and his attorney called out the latest charge as a set-up at the time.

Now, in a motion to dismiss the case, Gentile has raised the temperature further.  The motion argues:

It is Mr. Gentile’s position that the instant firearms prosecution was . . . engineered solely for the purpose of coercing cooperation into the art heist investigation, rather than removing an armorer-to-felons from our midst.

The basic legal point is this: police and prosecutors have considerable discretion in investigating and catching criminal behavior.  When government involvement in an investigation “shocks the conscience,” however, it may be grounds to dismiss the charges against a defendant.  The defendant bears the burden to prove that it is more like than not that an indictment or charge was procured through “outrageous government conduct.”

The conduct underlying the prosecution is what led to the current motion.  A confidential informant met with Gentile, and the subject of obtaining a firearm was allegedly discussed.  That conversation allegedly led to an interaction at Gentile’s home involving the exchange of money for a weapon.  After the government revealed its intention to prosecute the weapons charge (but before he was arrested), argues the motion, it immediately suggested that unless he cooperated with the Gardner investigation, the government would have “considerably less flexibility.”  Gentile was soon arrested and indicted.

Gentile bears a heavy burden to dismiss an indictment, procedurally.  The challenge he will face is that he may well be right about the motivations, but it may not matter to the result.  If, as alleged, Gentile possessed a weapon that was forbidden by virtue of his prior conviction, the reason for the FBI’s interest in prosecuting that will likely not dissuade the judge from allowing the prosecution to continue.  Put another way, if the FBI can plausibly argue that they instigated the conversation with the confidential informant for any legitimate reason, Gentile may be stuck defending himself.  Which, if Gentile is correct, will lead to the relatively absurd result of a manufactured prosecution to procure information he does not have.

The motion, for its part, suggests that “the Government [is] engineering and directing the criminal enterprise that it is prosecuting from start to finish.”  Tellingly, Gentile has to argue from two cases in which similar motions were denied.  Sting operations, standing alone, are hardly unusual or unconstitutional.  Gentile’s lawyer, however, does a skillful job of extrapolating the argument of psychological coercion, which has been held to be outrageous conduct under certain circumstances.

Indictments are rarely dismissed, but Gentile has clearly fired his first shot about how he intends to defend himself, and he makes a persuasive case that the entire confidential information exchange was planned only because of the Gardner case.

25 years later, the paintings seem no closer to discovery.

Senate Appropriations Committee Bill Would Give Strong Backing To State Department on Holocaust-Era Assets

Posted in Legislation, Restitution, World War II

The United States Senate Appropriations Committee has passed its annual State Department appropriations bill, and it includes a strong instruction on Holocaust-era looted assets.  The bill, entitled the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2016 (S. 1725) was accompanied by the Committee’s report, which would direct the State Department to include in an annual report an assessment of U.S. domestic law and foreign countries’ status on their compliance with the Washington Principles and the Terezin Declaration.  As the World Jewish Restitution Organization (WJRO) and the Conference on Jewish Material Claims Against Germany (Claims Conference) observed last year, that progress is mixed, at best.  This is a budget bill, meaning it is just the first step in allocating resources for the U.S. government in the year to come (in this case, for the State Department).

This is a significant development for a few reasons.  First, it is a legislative statement about the United States’ role in the issue of Holocaust-era looted property—not just here, but around the world.  As last week’s furor over the German cultural protection law shows, even proposed legislation can have an effect (to wit: Georg Baselitz’s withdrawal of his works from German museums, and Gerhard Richter’s threat to do the same).  Second, it empowers further the very important Office of the Special Envoy for Holocaust Issues, a desk within the State Department that carries the imprimatur of the 1998 Washington Conference on Holocaust-Era Assets, which was itself hosted by our State Department.  And lastly, it seeks out additional, affirmative steps for improvement.  Given the unusual position of the U.S. relative to other Washington Conference countries—i.e., that the role of government is more complicated because it does not hold much of the property in dispute, unlike most of the European countries involved—it is a bold step.  It is still just an appropriations bill, but one worth watching nonetheless.

The full text of the language in the Committee report reads:

Holocaust Era Assets.–The Committee directs the Secretary of State, with the assistance of the Office of the Special Envoy for Holocaust Issues, to include within the first Annual Report on International Religious Freedom submitted not later than 180 days after the date of the enactment of the act an assessment of national laws or enforceable policies in, as appropriate, foreign countries regarding the return of or restitution for wrongfully confiscated or transferred Holocaust era assets and compliance with the objectives of the 2009 Terezin Declaration on Holocaust Era Assets and Related Issues, to include: the return to the rightful owner of any property that was wrongfully confiscated or transferred to another individual by Nazi, Nazi collaborator, or Communist regimes (if return of such property is no longer possible, the provision of comparable substitute property or the payment of equitable compensation); the return to Jewish communities of any religious or communal property that was stolen as a result of the Holocaust or subsequently nationalized by Communist regimes; the use of the Washington Conference Principles on Nazi-Confiscated Art, agreed to December 3, 1998, in settling all claims involving publically and privately held movable property; the mechanism for and demonstrable progress on the resolution of claims for United States citizen Holocaust survivors and United States citizen family members of Holocaust victims; and recommendations for actions to be taken by the country, and the United States Government, to improve country progress on the return of or restitution for wrongfully confiscated or transferred Holocaust era assets.

Germany Walks Back On Proposed Cultural Property Law

Posted in Cultural Property, Legislation, Museums

After sharp criticism of the proposed strengthening of Germany’s cultural property and heritage protection law, German Minister of Culture Monika Grütters told Die Welt yesterday that she is reevaluating the proposal.

The revised text removed completely the provision concerning territorial inviolability, and promises to refine further the definition of what is cultural property, and what is not (perhaps prompted by the discussion that an Andy Warhol painting, for example, might nonetheless somehow be declared to be German cultural property).

In addition, lenders will have an opt-out clause, which would allow them to decide for themselves whether they want the classification of their permanent loans as national treasures or not.

Further, the previous suggestion that works more than 50 years old and worth at least €150,000 would be revised to 70 years and €300,000, respectively.

Perhaps most constructively, Grütters’s revised proposal invites comment and contribution on what, exactly, is worthy of cultural property protection.

Munich Court Requests Psychological Opinion Concerning Gurlitt’s Competence to Make Will

Posted in Gurlitt Collection, Restitution, World War II

Even as we creep up on the anniversary of the theatrical announcement of an agreement between Bavaria, Germany, and the Kunstmuseum Bern concerning the bequest of Cornelius Gurlitt, the court challenge by Gurlitt’s family is by no means over. News came this week that the Munich court overseeing the appeal of the initial denial of the will challenge has requested an expert opinion concerning Gurlitt’s psychological state.

When Gurlitt died in 2014, he named the Swiss museum both as the recipient of his substantial art collection, as well as his legal heir. The 2014 agreement was targeted at resolving the question about which works were looted by the Nazis, a question that has now been on the Bavarian authorities’ plate for more than three years. Whether under the auspices of the Task Force as originally constituted, or pursuant to the 2014 agreement, only four work’s provenance have been resolved, and only two have been returned.

The will challenge will not affect those four cases; the Gurlitt family disclaimed any claim to those looted works. But clearly the whole notion of the Bern bequest and the city and museum’s plans for a substantial influx of major works of art—even if many of the works currently in the authorities’ works were eventually to be returned to victims and/or heirs—cannot proceed while the meaningful chance exists that the entirety of the collection may never even get there.

Since the will contest was filed, I have viewed it as a serious effort. Gurlitt was a man who was suddenly thrust on the world stage and, given his public behavior at least, was totally unprepared for it. Many of his statements and reaction raise at the very least a reasonable question about whether he was in touch with what was really going on (about which the claimants previously submitted their own expert opinion). If he was not, then his impromptu decision to disinherit his relatives in favor of a museum with which he had no connection whatsoever raises some eyebrows.

The will contest was dismissed in the first instance relatively summarily by the Amtsgericht. The family appealed to the Oberlandesgericht in Munich. This week, that court retained an independent psychologist to address Gurlitt’s testamentary capacity.

The report is not expected until at least October, with no clear time table for the court’s reaction to it after that. Given reports about the financial strain that the uncertainty has caused the Bern museum, this development will no doubt exacerbate them.

European Cultural Protection Laws and Export Licenses—the Atlantic Gulf Widens

Posted in Cultural Property, Legislation

Germany has proposed a revision to its cultural protection legislation that would further restrict exports of objects more than 50 years old.  While worries that it is the equivalent to state expropriation are overblown, it does indicate a mindset that is in many ways incompatible with the modern art market—even if it is only an effort to harmonize German and EU law.  The struggles of Germany’s efforts to keep pace with other centers of art trade may only be compounded if this becomes law.

A concept foreign (literally) to many Americans, most European countries have cultural property laws.  They restrict, to various degrees, the extent to which certain cultural objects can leave that country. Fundamentally, they reflect a policy that certain things innately belong in the place of their creation and significance, whether a Roman antiquity in Italy, or a Joshua Reynolds painting in England.  Generally speaking, each country has a process for designating an object as cultural property of this sort, after which the responsible cultural ministry has the final say over whether it may leave the country.  Particularly where the person proposing the export owns it and lives elsewhere, that permission will often be lacking.  Exhibition loans are a different matter, since they are by definition temporary and not intended as a first step towards putting the object into a foreign marketplace.

From an American sensibility, these laws are entirely odd.  With our primacy of private property and its attendant rights, most Americans would find the idea that the government could restrict to whom a painting could be sold as offensive, if not confiscatory.  But there is no 5th Amendment in Germany forbidding regulatory takings, after all.  And, to be fair, the scope and length of cultural history in European countries simply exists on a different scale.  With that said, it also gives governments a tool for manipulation that they are often not shy about using to leverage or coerce what they want, including the effective destruction of a an object’s market value because of the restriction.

Germany’s minister of Culture, Monika Grütters, recently gave an interview with the Frankfurter Allgemeine Zeitung (in German) to address some of the concerns with the proposed revisions.  Among her key points:

  • The proposed law would require export permission for any object with a value of €150,000 or more and which is more than 50 years old.
  • The law is intended primarily to bring Germany into alignment with other EU law.
  • The reason: “Because we actually want to hinder the possibility that cultural property which may be nationally significant can leave Germany without the knowledge of the responsible authorities and, as a result, need to be repurchased with significant tax money.” (my translation).

Remarkably, when asked about the designation of a Warhol painting as German cultural property, Grütters extemporized a bit and suggested that the context would drive the result, in the view of experts.  There is, she revealed, a 5-member board in each of the 16 Bundesländer.

The proposal underscores a key tension (not unique to Germany) between the desire to be a center of cultural history and a center of cultural commerce.  The restrictive view on the former is fundamentally incompatible with the latter.  Even if the reactions are a bit exaggerated (as is often the case), this proposal would put German in the camp of those looking backwards, not forwards.

U.S. Museums and Looted Art—Is it Whether you Win or How you Play?

Posted in Museums, Restitution, World War II

A recent report by the World Jewish Restitution Organization (WJRO) has made strong criticisms of American museums with respect to their handling of Nazi-looted art claims.  In particular, the report criticizes the assertion of timeliness defenses such as statutes of limitations.  The report focuses in particular on cases involving the Museum of Fine Arts, Boston, the Norton Simon Museum in Pasadena, the Toledo Museum of Art, and the Fred Jones, Jr. Museum at the University of Oklahoma.  There is no state control over the vast proportion of art in America the way there is in most European countries, and thus, no possibility of singular, nationalized approaches.  In response to the report, some of the museums mentioned have defended their strategies, though in some cases the players are talking past each other.  What is undeniable is that whether as a function of the nature of U.S. museums (largely private, rather than public), it is hard to say there is a coordinated approach to the issue, good or bad.  The report is lengthy and detailed, and well worth a read in depth that space here does not permit.  In some ways, the question it poses boils down to this: is determining the historical truth the obligation of everyone involved or is there some room to prevail without addressing the larger issues?

The Guiding Principles

The report surveys several litigations in recent years in the context of the Washington Principles on Nazi-Confiscated Art from the eponymous 1998 conference, and the 1999 guidelines promulgated by the American Alliance of Museums (AAM, formerly the American Association of Museums).  This is a sensible framework, because that era—now 15 years go and quickly receding—set the stage for much of the status quo today.

The Washington Conference on Holocaust Era Assets resulted in the principles to which more than 40 nations committed, and urged the identification of Nazi-stolen art, and the commitment of resources to researching and restituting them.  The oft-cited Principles are not a treaty, however, and they are not typically the law of the participating countries (including and in particular the United States).  But they certainly established an aspirational standard, and the museum community was soon behind.  The Association of Art Museum Directors (AAMD) also published in 1998 the Report of the AAMD Task Force on the Spoliation of Art during the Nazi/World War II Era (1933-1945).  Interestingly, the WJRO report makes only passing reference to the AAMD response, focusing more on the AAM’s (this may be because the AAM governs the overwhelming majority of American museums, while the AAMD covers a subset of art museums’ directors).

But the AAMD was the first of the two organizations to respond with a Task Force Report, and in hindsight the response has aged very well from an analytical standpoint.  It urged member museums to research their existing collections (something I was myself charged with doing at the museum where I worked at the time), and consider further acquisitions and gifts carefully under a higher standards of provenance.  It advised the following:

1.  If a member museum should determine that a work of art in its collection  was illegally confiscated during the Nazi/World War II era and not restituted, the museum should make such information public.

2.  In the event that a legitimate claimant comes forward, the museum should offer to resolve the matter in an equitable, appropriate, and mutually agreeable manner.

3.  In the event that no legitimate claimant comes forward, the museum should acknowledge the history of the work of art on labels and publications referring to such a work.

This puts the onus on the museum, no two ways about it.  It encourages the museums to take the initiative, find out potentially uncomfortable information, and do the right thing.  My own view remains that these observations are perhaps the best example of what doing the right thing means, and in that respect they were prescient for their time.  In the execution, however, not everyone is happy.

The Litigations

I view the litigations cited by the report fall as consisting of two important categories, though the report is not organized in this way.  The first category is where the parties do not dispute that the art in question was, at one point, looted by the Nazis.  The ongoing claims by the Cassirer family against the Thyssen-Thyssen Bornemisza Collection for Rue St. Honoré, après-midi, êffet de pluie by Camille Pissarro, and Léone Meyer’s claims for La Bérgère (also by Pissarro) at the Fred Jones, Jr. Museum discussed in the report fall into this category.  At the end of the day, this presents the museum with an unavoidable question: does it want to fight to keep something that was taken as a result of persecution?  In many cases, as we have seen, it may be able to do so.  Should it?  The WJRO report suggests the question is not a difficult one, those museums clearly disagree.

The other category is where the parties very much disagree over whether the art in question was looted or not.  The claim against the MFA for Two Nudes by Oskar Kokoschka, and against the Toledo Museum of Art over Paul Gaugin’s Street Scene in Tahiti fall into the latter.  Here, the decision point for the museum is much, much harder.  What does it know about the history?  How clear is the case for persecution?  What if it’s a toss up?  Is winning justified no matter the manner in which it is achieved?

The basic point of the report is this: the Washington Principles and industry ethics encourage resolution of any disputes in a fair way and on the merits.  A win on statute of limitations grounds—in either of the above categories—avoids an answer to that question.

In the end, much of the takeaway depends on one’s starting point.  The following statements are both true: 1) no American museum has ever persuaded a court that a contested work of art was not looted; 2) no claimant has ever won a contested judgment against an American museum over a potentially looted work of art.  The recent Cassirer result (which, to be clear, is on appeal) is, in fact, a rare substantive decision on the merits about ownership—even though the painting was looted—just under Spanish law, not U.S. law.  The MFA’s decision to sue for title to the Kokoschka, by contrast, shortcut a lengthy battle over a work that the museum was convinced had been sold voluntarily, but the outcome was not a ruling on whether the painting had been sold under duress.

What all this highlights is that in the United States, the lack of (and perhaps the inability to have) an overarching ministry or approach means that timeliness defenses remain the path of least resistance for museums that want to keep their art—whatever their individual motivations(which I’m not suggesting here should be impugned).  Some museums (the MFA in particular) have invested considerable resources in making a more transparent provenance research process, and its recent track record on pursuing answers to historical questions is exemplary (and had resulted in many restitutions without litigation).  That transparency is essential, because without it, the claimants are left with “we’ve looked into it and we’re right,” which not many people are going to accept.

And when the parties cannot agree?  Litigation will continue to fill the vacuum without a larger approach.  Is that possible?  The WJRO clearly thinks that the AAM (or someone else) should fill that role.

Museum Denied Exhibition Loan of Byzantine Ivory from British Museum That Should Have Been Permitted

Posted in Customs, Immunity from Seizure Act

The Museum of Russian Icons in Clinton, Massachusetts, has apparently been told by the U.S. Fish & Wildlife Service that it will not be receiving the anticipated loan of a Byzantine ivory relief of the Death of the Virgin for the exhibition “Saints and Dragons: Icons from Byzantium to Russia.”  This no doubt springs from the new U.S. policy on ivory, but even under that stringent approach, the temporary import for a cultural exhibition should have been permitted.  The museum may have recourse, but it has apparently made a backup plan for another object to round out the show.  The case still serves as a useful framework to consider the new legal reality. This is also a real shame, because it is the second time in the last few years that the museum (which is an absolute gem, founded privately in 2006 by art collector and industrialist Gordon B. Lankton) has been affected by international contretemps (the first relating to the Russian exhibition loan embargo arising out of the Chabad case).

Ivory is an endangered species whose import and export is controlled by the Convention on International Trade in Endangered Species of Wild Flora and Fauna (“CITES”).  CITES has schedules of materials that vary depending on the animal’s rarity and level of endangerment.  “Appendix I” specimens are the most tightly controlled, and include African elephant ivory.  Appendix I specimens are not flatly banned from the United States, but the CITES permitting process in both the exporting and importing country determine if an item can enter the United States.  CITES Appendix I specimens (not limited to African elephant ivory) are eligible for, and do, receive CITES permits for cultural exchanges and exhibits.  Appendix II includes Asian elephant ivory, and still highly regulated.

But in 2014, the Obama Administration issued an Executive Order to tighten imports even further.  Under the National Strategy for Combating Wildlife Trafficking & Commercial Ban on Trade in Elephant Ivory, all commercial trade in elephant ivory is prohibited.  The rationale advanced for this is effectively for the purpose of eliminating any possible black market supply because the endangerment and poaching of African elephants has reached an acute stage not seen since the 1980s.  First, it is impossible to determine if a specimen is Asian or African elephant without testing the material itself, in a way that cannot be repaired (i.e., taking a piece of it).  If, the thinking goes, all ivory can be eliminated from the marketplace, the market collapses and incentives for poaching are reduced.  The Fish & Wildlife Service has argued articulately that crackdowns had a positive effect on the elephant crisis of the 1980s.  As an aside, that crisis did not involve the huge demand from China that now drives a significant portion of the ivory trade, but one presumes that leading by example is at least part of the goal even if the macroeconomics don’t play out as intended.

With all that said, this loan was not a proposed import for commercial purposes, it was an import for cultural exchange purposes.  The relief would have entered the United States, gone on display, and returned to the United Kingdom.  It almost certainly would have been granted immunity from seizure under the Immunity from Seizure Act, 22 U.S.C. § 2459, eliminating any concern it could be interfered with (and entered the market as private property as a result) before leaving the United States.

It is a curious result and one that bears watching for repetition.  The new ivory policy is what it is, with good faith reasons, but this certainly seems beyond even that.  Museums should anticipate and strategize for any incoming ivory loans.