On Nonprofit Governance: The Jon Stewart Case Study

The 9/11 Memorial, or the National September 11 Memorial & Museum, is a private not-for-profit foundation, in charge of overseeing the design, fundraising, programming and operating the Memorial & Museum under construction at the World Trade Center site. New York City Mayer, Michael Bloomberg, is the current chairman of the foundation. Members of the board of directors include politicians and real estate moguls, such as Daniel R. Tishman, CEO of Tishman Construction Corporation as well as attorneys Avi Schick, Chairman of the Lower Manhattan Development Corporation, and

Robert Kasdin, Senior Executive Vice President of Columbia University.

On January 27, 2011, the foundation welcomed a new director, an entertainer as well as a political activist, Jon Stewart, the host of the Emmy-winning "The Daily Show" who used his show to promote a federal bill to provided medical benefits to those who became ill from exposure to toxic World Trade Center debris and dust.

Incidentally, also on January 27, 2011, during the public interest law week, Cardozo presented a panel dedicated to the topic of nonprofit cultural institutions entitled Lawyer for the Arts with Elena M. Paul (Executive Director, Volunteer Lawyers for the Arts); Randall Bourscheidt (President Emeritus, Alliance for the Arts); and Patricia Northrop (former Assistant Attorney General with the Charities Bureau, Office of the NYS Attorney General). The guest speakers discussed changes that have taken place in the New York City regarding funding and governance of non-profit cultural institutions. The appointment of Stewart to the 9/11 Foundation board underscores the value of promoting the needs of public interest cultural undertakings and the breadth of individuals who should come together to accomplish these goals.

For more details, read LA Times.

Nefertiti to Remain in Berlin, Natürlich

In 1913, the year Ernst Ludwig Kirchner finished his Berlin Street Scene, an Egyptian beauty came to the German capital. Now, almost a hundred years later, Egypt’s antiquities chief, Zahi Hawass, is seeking to return Nefertiti’s bust from the German foundation and the Neue Museum which displays it. The epic sculpture (left) reportedly draws over one million visitors annually.

On January 28, 2011, Berlin Mayor Klaus Wowereit refused to return the 3,400-year-young bust of the most famous ancient Egyptian queen to modern-day Egypt arguing that this important artifact, excavated by a German archaeologist in 1912, was acquired lawfully and Egypt has no legal claims to it.  However, Hawass claims that at the time of discovery, the bust was mistakenly exported, and is thus still rightfully owned by Egypt.

Egypt’s Supreme Council of Antiquities (SCA) appealed to the Prussian Cultural Heritage Foundation, which runs the Neues Museum, to return this and other archaeological and historical artifacts that have been taken illicitly out of the country. The claim for the Nefertiti’s bust is just one of the host of request made for pharaonic treasures in recent years, including the Rosetta Stone now in the British Museum.

According to Reuters, the request from Hawass is not signed by Egyptian Prime Minister Ahmed Nazif. According to Hawass, the request was approved by the Prime Minster and the Egyptian Ministry of Culture.

For more details, read ArtDaily or Reuters.
Image Source: Reuters (left); Shafe (right).

Egypt Army Does not Lose Head and Secures Cairo Museum with Pharaos Treasures after Museum is Vandalized (a little)

The ArtDaily reported that Egyptian army units secured the Cairo Museum, which houses priceless cultural heritage against looting. However, rebels were able to break into the museum on Sunday, January 30, 2011 and destroy some of the cultural objects, including about ten small statuettes and two mummies.

The Telegraph quoted Dr Zahi Hawass, the director of the museum, as saying "Demonstrators in collaboration with security forces stopped the thieves and returned the relics to the museum – but they were already damaged. Only their heads were intact."

It remains to be seen whether the work of the vandals was being directed by a dealer. According to some commentators reflecting on the looting of the Iraqi Museum in 2003, most major museums in the world, such as the Cairo Museum with their vast treasures, have "WANTED" items that may fall prey to mercenary looters during times of political unrest such as the one Egypt is experiencing currently.

CNN reported that to avoid the unpardonable looting of the Iraqi museum, many activists, including a well-known Egyptian film director Khaled Youssef had called on the army to ensure the museum was protected.

Estate Tax and Museums in 2011

Estate tax can have huge consequences for museums, which rely in large part upon bequests. In December 2010, the Obama administration signed new tax legislation into law. The new law lowers estate taxes, and may thereby have a negative effect on museums.

Whatever its failures will be, the new estate tax marks an improvement from 2010. Last year was "an anxious one for museums and all other nonprofit organizations and institutions around the country," because Congress failed to pass legislation in 2009 imposing any inheritance tax. Read about last year's failures at The Huffington Post.

In an article in this week's Art Newspaper, Martha Lufkin discusses whether or not the new tax rates for 2011 will discourage bequests to museums. Based on her analysis, charitable giving seems generally encouraged under the new law, but the incentives for giving to museums are not great. Read the article at the Art Newspaper.

The Fate of the Deux Danseuses

This year, Britain is grappling with severe funding cuts in the arts . These cuts have affected many organizations across the board. Arts Council England had its budget for 2010/11 reduced by a total of £23 million, from £468 million to £445 million. However, it is still a mystery how exactly all of these cuts will play out.

One major issue is whether the public money will be replaced with private money. As reported by the Financial Times, the Culture Secretary has just announced the launch a new program to attract funding for the arts by corporations and private donors.

If funding needs are not met, the real issue becomes whether or not Britain will be able to hold on to its glorious art collections.

One such work of art at risk is a painting by Edward Degas, Deux Danseuses en jaune. Christie's is planning to auction off the work on February 9, 2011. If the auction goes according to plan, the painting will go for £3-5 million, and will "probably go abroad." However, the Ashmolean Museum at Oxford University is trying to acquire the work before this can happen. The Museum can acquire the work if it can arrange for a private treaty sale to a UK public collection, which would have significant tax advantages. But this would still require the Museum to raise a few million pounds.

Enter the National Heritage Memorial Fund. The Fund was set up to help maintain a national collection, but its government funding is being halved from £10m to £5m a year. Although the Fund has already agreed to make a grant for the Deux Danseuses, it is unclear whether the amount will be enough to enable the work to be withdrawn from auction and sold via private treaty sale.

Earlier this month, a notable artwork by Breughel had been saved from auction when the National Heritage Memorial Fund, the National Trust, the Art Fund and members of the public raised the £2.7 million needed to keep it in the Nostell Priory [The BBC]. The reality is that the public institutions involved have very little money left to give.

As the Fund's Chief Executive said last year when the cuts were announced, "Such a significant reduction – 50% – means we face the very real prospect of seeing parts of our national heritage lost forever." [The guardian]

Read the article at The Art Newspaper
[Photo Credit: The Art Newspaper]

EASL Presents Recent Nazi-Era Looted Art Claims and Legal Rights in Life Stories

On January 24, 2011, Entertainment, Arts and Sports Law Section of the New York State Bar Association held its annual meeting at Hilton New York. The program included two panels: Nazi-Era Art Restitution: Recent Case Developments and Whose Life is It Anyway? Life Stories in Media.

During the panel dedicated to the recent art restitution cases, with Judith A. Bresler, co-author of Art Law treaties and Partner at Withers Bergman LLP (New York, NY) moderating, Donald S. Burris, Partner with Burris, Schoenberg & Walden, LLP (Los Angeles, CA) spoke about Altmann v. Austria, 335 F. Supp. 2d 1066 (C.D. Cal 2004) and Beningson v. Alsdorf, 2004 WL 803616 (Cal. Ct. App. Apr. 15, 2004). Howard N. Spiegler (Herrick, Feinstein, LLP -- NY) reviewed details of the seminal case and settlement terms of U.S. v. Portrait of Wally, No. 99-CV-09940 (S.D.N.Y. filed Jul. 29, 2010). Raymond J. Dowd, Partner with Dunnington, Bartholow & Miller, LLP (New York, NY) discussed the current state of the Bakalar v. Vavra litigation. 2008 WL 4067335 (S.D.N.Y. 2008). Simon J. Frankel, Partner with Covington & Burling, LLP (San Francisco, CA) reviewed details of MFA v. Claudia Seger-Thomschitz, No. 08-10097-RWZ (D. Mass. 2009), aff'd No. 09-1922 (1st Cir. Oct. 14, 2010) regarding ownership of Oskar Kokoschko's, Two Nudes (1913). Lucien Simmons, Senior Vice President at Sotheby's (New York, NY) explained how the Restitution Department of the auction house reacts to gaps in provenance and red flags raised by World War II ownership of consigned property as well as how Sotheby's assists art possessors and claimants resolve title disputes.


Stephen B. Rodner, Partner at Pryor Cashman LLP (New York, NY) moderated the panel on legal transactional issues and cases dealing with depiction of life stories of real people in film, television, books and social media. Tom J. Ferber, also partner with Pryor Cashman, LLP, explained right of publicity and discussed the cases that have shaped the legal landscape on life stories in media in the recent decades, including Rogers v. Grimaldi, 875 F.2d 994, (2nd Cir. 1989) and Youssoupoff v. CBS, Inc.. 41 Misc.2d 42 (N.Y. 1963). Robert C. Harris, Partner at Lazarus & Harris, LLP (New York, NY) discussed false light claims, creation of biopics and value of well-drafted disclaimers. Richard M. Roberts (Law Office of Richard Roberts, Newark NJ) spoke about his first-hand experience of being depicted in a docudrama American Gangsters. Finally, Eric Zohn, Senior Vice-President of William Morris Agency Inc. (New York City) stressed the importance of negotiating clear terms in contracts and release agreements for both individuals who are subjects of docudramas and creators of stories depicting real people. Zohn concluded with a nod to the Borat film release agreement, having noted that while the overly-broad waiver has been criticized, it succeeded in protecting the film producers from legal claims of appropriation of likeness, defamation, or negligent infliction of emotional distress. Psenicska v. 20th Century, Nos. 08-4604-cv, 08-6053-cv, 08-4818-cv (2nd Cir. 2009).

Images: O. Kokoschko, Two Nudes; N. Sarony, Portrait of Oscar Wilde

Fabrication and Conservation

It is a well-established fact that, in general, copyright lasts for seventy years after the death of the author [17 USC 302]. However, the practices regarding fabrication and conservation of a work, after the death of the author, are not yet established at all.

This year, a symposium will be held in New York and Berlin to address fabrication and conservation techniques used on the work of Donald Judd (1928-1994). As reported by the Art Newspaper, “[These conferences] will be about asking if there are more authentic or less authentic ways to deal with Judd.”

"Things can go wrong when the artist is not there to defend or explain himself,” says Peter Ballantine, who recently held a talk titled "Donald Judd: Delegated Fabrication: History, Practices, Issues and Implications.” Things can especially go wrong when curatorial or exhibition-related decisions need to be made.

The Judd Foundation explains that Judd advocated "for the permanent installation of works by artists in carefully selected environments." So it would seem difficult to re-install his works in new locations. Nonetheless, the Tate Modern hosted a retrospective of his works in 2004. Ballantine was disappointed by some of the choices that the Tate made, and this symposium was spurred in part by that exhibition.

How can an artist's works be kept alive after the artist's death? Does an artist need to install the work himself for it to be authentic? And who determines what is authentic?! Hopefully the symposium will go some way towards establishing best practices, at least regarding the work of one artist.

Read the article at the Art Newspaper

A Merger for the Arts

There is a need for M&A Lawyers for the Arts! When an arts institution focuses on artistic success and runs into administrative difficulties, a merger with an administrative-minded body may present a wonderful opportunity to create a sustainable arts entity.

And so the Washington National Opera [WNO], facing a number of administrative difficulties and debts, has announced plans to merge with the Kennedy Center.

Placido Domingo has been acting as the General Director of the WNO since 1996, and he will allow his contract to come to an end in June. Where did the tenor go wrong? The Washington Post reports that, "[The WNO] grew too fast, without a support base broad enough to sustain the director's dreams in the long term. Domingo was also busy enough with his singing, conducting and other administrative role as general director of the Los Angeles Opera that he wasn't able to be present as a full-time fundraiser for his ambitious projects." Perhaps it is true artists do not make the best administrators. As a result of the WNO merger, which takes effect in July, the Kennedy Center will take over the opera's administrative and business functions.

What will the new structure look like? The New York Times reports that the WNO "will maintain a separate board; its endowment will be accounted for separately; and donations designated for the opera will be spent on the opera. Otherwise, the organizations’ finances will be merged." The National Symphony Orchestra made a similar affiliation with the Kennedy Center in 1986, taking advantage of the Center's infrastructure.

In any such merger, the combination of artistic genius with administrative expertise helps make an arts institution sustainable. This kind of merger was seen for the first time in the dance world at the end of 2010. Bill T Jones, a dance company, merged with Dance Theater Workshop, a dance producer. Jones said of the merger, "I would like to put [my connections and expertise] at the disposal of another entity that hopefully will have an ever-expanding cultural footprint that will also satisfy my need to participate in the world of ideas.” [Dance/USA]

It will be interesting to see what kinds of mergers will take place over the coming years and how the business and legal structures of arts institutions will develop.

Italian Prosecutor Ferri Interviewed About Recovery of Antiquities

In its January issue, the ArtNewspaper published excerpts of Fabio Isman's interview with Paolo Giorgio Ferri, state prosecutor in the Marion True case (Marion True on her Trial and Ordeal).  Ferri is now an "expert in international relations and recovery of works of art" working with Italian Ministry of Culture to curb theft of antiquities.

Ferri's answers to questions such as 1) what was his first investigation into illegal excavations; 2) what does the Italian Ministry of Culture know about the scope of plundering of antiquities in Italy; 3) what is the role of UNESCO; 4) what are the shortcomings of Italian legislation and 5) which antiquities are most difficult to retrieve, are available here.

Boy George gives Bishop of Porfyrios of Neapolis an Icon

In 1985, Boy George, the former Culture Club singer, bought an icon from an art dealer in London. At the time it did not matter where the icon came from and how it got to England. In January 2011, he agreed to return the icon to the Church of St. Charalambos (New Chorio-Kythrea, Cyprus) from where it was stolen more than 25 years earlier.  Following Turkey's invasion of northern Cyprus hundreds of cultural valuables were illegally exported to entice foreign collectors.

BBC quoted the artist as saying that he was "happy the icon is going back to its original rightful home....  I look forward to seeing the icon on display in Cyprus for the moment and finally to the Church of St Charalambos from where it was illegally stolen."

BBC also reported that Bishop Porfyrios of Neapolis, upon receiving the icon, expressed "joy and gratitude." According to the Bishop, this gesture had "contributed to the efforts of the Church of Cyprus for the repatriation of its stolen spiritual treasures".


For a fascinating autobiographical account of a Dutch art dealer who frequented Cyprus and trafficked in looted artifacts, read Michel van Rijn's Hot Art, Cold Cash.

Seller's beware -- Landlords Never Sleep

The story is simple: one New York City landlord, Mark Arrow, had been unable to collect $21,000 (+) in rent from his former Manhanttan tenant, Biond Fury.  Fury is a collector and seller of  memorabilia, including items related to the Beatles and Marilyn Monroe.  In January, he sold a suit worn by the late John Lennon through Braswell Galleries for $46,000. 

As the ArtDaily reported, Arrow's  prospects of collecting unpaid rent brightened when he learned of the sale. Now, Arrow has sued the gallery for a part of the proceeds in an effort to satisfy his rent debt.

Temporary Return Is No Small Victory: Mexico Negotiates over Moctezuma's Headdress

The headdress attributed to the last Mexico ruler is on display in Austria. For three years, the Mexican Ministry of Foreign Affairs (SRE) and the National Institute of Anthropology and History (INAH) have been negotiating for the return of the headdress before the Austrian Government.
 
ArtDaily called it "an unprecedented collaboration project between museums headed towards a better understanding of the headdress, which efforts have been intensified during the administration of President Felipe Calderon."

Zimmerli returns Grien

On January 14, 2011, the Zimmerli Art Museum returned a portrait by Hans Baldung Grien, “Portrait of a Young Man” (1509) (right) to Simon Goodman, grandson of Friedrich and Louise Gutmann, Holocaust victims and previous owners of the painting.

Heirs were looking for the painting since 1946.
In 2009, Goodman found the lost long painting in  a 1983 catalogue raisonné of the artist by the noted German art historian Gert von der Osten.

“The restitution of World War II-era artwork is one of the most important legal and moral issues facing museums today, and we at Rutgers and the Zimmerli took the Goodman family’s claim most seriously,“ says Suzanne Delehanty, Director. “We have devoted almost a year to researching the case.”

The painting is consigned with Christie's to be auctioned off on Jan. 26 (presale est. $200,000 to $300,000).

For more information about the painting and its provenance, see ArtDaily.

Spotlight: Commission for Art Recovery (NY)

The Commission for Art Recovery is a non-profit organization which seeks justice for Holocaust victims of Nazi art theft. It encourages provenance research for works of art whose ownership histories show gaps in the years between 1933 and 1945.

The Commission also supports events that highlight restitution efforts  and strive to facilitate policy changes internationally.  In 2011, the Commission will co-sponsor the Restitution Conference at Cardozo.
 The Commission maintains a website to documents various pilot restitution cases and summarize important conferences dedicated to the topic of Nazi-looted art and its recovery efforts.

OXFAM Volunteer Recovers and RETURNS a 16th-century Venitian Publication

What would YOU do if you found one of the two known surviving copies of the 1556 Italian History of the Dukes of Ferrara, Commentario Delle Cose di Ferrara? Hopefully, you too would return it to its rightful owner. 

OXFAM volunteer Andrew Chapman, a rare book specialist for the charity's bookshop in St. Giles, returned the book the Royal Society, one of the world's most eminent and the oldest academy in continuous existence.  The Oxford Time reported that this book once belonged to Thomas Howard, the Duke of Norfolk in 1681. Apparently, it was one of the first books to form the Royal Society’s library.The book was identified by a small library stamp, reading "Royal Soc." Nobody knows when it was removed from the library, but it could have been as early as 1681.


This was not the first important find for Chapman. In 2008, he identified the first edition of Rumour at Nightfall by Graham Green with sold for £15,000 in auction. To learn more about such news-worthy OXFAM finds, see OXFAM news release.

Fairey & Fair Use

Shepard Fairey supporters will be glad to know that AP's lawsuit against him is finally over. Anyone out there seeking clarification on Fair Use will have to wait for the next lawsuit.

Fairey used a photograph of President Obama to create his iconic "HOPE" image. In 2009, he sought a declaration from the court that he had not infringed AP's copyright in the photograph. AP countersued, claiming that, actually, he did infringe its copyright.

The parties released a statement last week, announcing that they have settled. The terms of the settlement were not disclosed. To avoid future disputes, Fairey agreed to seek a license before using any more AP photos. ArtInfo reports that there will now be, in effect, a commercial partnership between the parties. Thus, the parties have entirely avoided legal clarification of fair use.

So, can artists use news service images? For political commentary? AP still hasn't settled with Obey Clothing, so perhaps not for T-Shirts.

Read the article at the Washington Post.

The Case of the Charitable Forger

A forger is generally portrayed as a greedy figure. He has just enough technical skill to imitate a real artist's creative genius, and then he capitalizes on the success of the original artist for his own financial gain.

Mark Landis presents a rather different figure. First of all, he often poses as a Jesuit Priest. Second, Landis doesn't make any money from these artworks. "Unlike most forgers, he does not seem to be in it for the money, but for a kind of satisfaction at seeing his works accepted as authentic."

His story is a bit like a twisted version of the Thomas Crown Affair, with none of its glamour. Landis forges works, typically by lesser-known artists, and then donates them to museums under fake names and elaborately concocted provenance. In one instance, Landis donated a fake Paul Signac work to the Memphis Brooks Museum. After seven years, word began to circulate about a phony art donor, and the truth of the work became known. Memphis Brooks later displayed the fake out of public interest. According to Helen Stoilas, a reporter for the Art Newspaper, the work was not totally without merit. "You can see his technical skill. The watercolors, especially the Signac, there's a confidence in them."

According to Stoilas, research has uncovered a history of what appear to be fraudulent gifts going back 20 years(read the Art Newspaper piece from 2010 here).

The issue now is what kind of legal action could be taken against Landis. The New York Times reports that Robert K. Wittman, a former FBI agent who ran the agency’s art-crime team, has been working informally on behalf of some of the museums. However, any duty to prevent fraud on the public, by exhibiting forgeries as authentic works, currently remains with the museums themselves.

Read the article at The New York Times

Digitizing Europe's Cultural Heritage

The European Commission launched Europeana in 2008, in order to create a digital archive of cultural materials. Jennifer Baker reports that Europeana currently offers free access to more than 15 million digitized books, maps, newspapers, paintings, photographs and other artifacts. Those involved with the project are aiming to turn Europeana into the main digital resource for cultural materials in Europe and is going up against Google.

On Monday, the Commission released the latest report, "the New Renaissance". For this report, three experts were asked to give constructive suggestions as to how the Commission can trigger a "Digital Renaissance" in Europe. According to the New York Times, the experts encouraged the Commission to turn Europeana into " the central online reference point for European cultural heritage." The experts also advised the Commission to limit ownership of digitized materials to seven years.

The experts were really saying that Google should not be the reference point for European cultural heritage. Google Books is seen as the main competitor to Europeana, despite making major concessions in a round of negotiations last year regarding Google Books. Google can only digitize public domain material in Europe (pre-1870 works), and libraries are allowed to commercially reuse Google scans after only fifteen years (see EurActiv).

By shortening the period from 15 years to 7, the Commission is making further attempts to prevent Google from having some kind of monopoly on cultural resources.

Read the story at The New York Times.

Exit Through the Gift Shop: Anonymous Art & Attribution

Graffiti is a curious art form. Works of graffiti are usually ignored, or worse, criticized for invading our public space and often destroyed. For example, a whitewashing of an outdoor mural has caused protesting in Los Angeles (see ArtInfo).This is in contrast to advertising, which not only invades but dominates public space, and which we largely accept (for more on this, see NYC-based PublicAdCampaign).

However, a few graffiti artists have earned our respect. Perhaps the most renowned of graffiti artists is "Banksy". He travels around the world, marking up public spaces with humorous images that are simple and often feature appropriated elements. Who he is, what his modus operandi is, and where he'll go next are all difficult to pin down. Despite his fame and admiration, he remains aloof and anonymous.

Exit Through the Gift Shop, a documentary released in Spring 2010, went some way to unmasking the figure, but only some way. Anthony Lane, reviewing the film in New Yorker, notes that Banksy's fan base is actually "unceasingly piqued by his anonymity." Accordingly, the film is vague in its acknowledgments. Banksy remains obscured, and no writer or director is even given credit.

The film has come under attack for being a hoax. In response to those charges, Banksy issued a rare statement to blogger AJ Schnack, of All Wonderful Things, that the film is true.

Now, one filmmaker involved has stepped forward to demand credit for his contribution to the work. Joachim Levy, a Swiss filmmaker, claims to be the editor of the film-within-the film. This raises interesting issues about legal rights to attribution. Levy told the New York Times that the anonymity of graffiti is not appropriate for other art forms:

“Street art is free, it’s for everyone, and you can go and put a graffiti on someone else’s graffiti. It’s kind of street law. But you can’t apply street art law to films, and just say, hey, let’s do what ever we want.”

Banksy has not yet responded to Levy's charges. Regardless of what he says - can we trust an artist that appropriates, withholds information, defaces public space, and remains anonymous?

Read the latest at the New York Times.

A DaVinci Deal De-coded

A High Court in London has ruled that two art dealers took an unlawful commission on the sale of a work by Leonardo DaVinci.


The Accidia Foundation hired Luxembourg Art Ltd. to find buyers for "Madonna and Child with St. Anne and a Lamb". Luxembourg then hired Simon C Dickinson Ltd., art dealers, for assistance.

According to New Law Journal, Luxembourg had a secret agreement with Dickinson that the dealers could keep any profits from the sale above US$6 million. This is known as a "net return price" agreement and, although common in the art world, is the subject of much criticism by the court.

When the work sold for US$7 million, Dickinson kept US$1 million. However, Accidia was told that the sale price was only US$6m and understood that Luxembourg and Dickinson were splitting an agreed commission.

The dealers have been held liable to Accidia for a partial reimbursement of the commission fee (minus costs of restoring the drawing). According to the Art Newspaper, "the court found that [Dickinson] had been “unwise” not to check that the seller had authorised the arrangement. This judgment is therefore likely to have major ramifications for the London art trade." This ruling places the duty on dealers to ensure that selling owners are fully aware of fee arrangements.

For a full breakdown of the complex and unlawful arrangement, read the article at the Art Newspaper.

Cleopatra's Kneedle Does not Weather Well in NY

New York is abuzz with the news that Zahi Hawass, Secretary General for Egypt's Supreme Council of Antiquities, is threatening to take back an iconic obelisk in Central Park unless New York City takes steps to restore hieroglyphics that are almost completely worn away.  The obelisk, one of a pair, has been in its present place since 1881.  Its sister needle stands in London on the Victoria Embankment.  Both date back about 3,500 years.

Hawass has been quoted as saying that "The stone obelisk "has been severely weathered over the past century" with no effort made to conserve it.  ... I have a duty to protect all Egyptian monuments whether they are inside or outside of Egypt.... If the Central Park Conservancy and the City of New York cannot properly care for this obelisk, I will take the necessary steps to bring this precious artifact home and save it from ruin."

In a statement released on January 4, 2011, (reprinted here) Hawass reiterated his commitment to preservation and may be repatriation of the obelisk:

... Because one of the main focuses of my tenure as Secretary General has been the conservation and protection of Egyptian antiquities, I feel it necessary that I fight for the restoration of this obelisk. Today I sent a letter to the president of the Central Park Conservancy and the Mayor of New York City asking for their assistance in caring for this artifact. ...


The concern for the obelisk is valid.  The irreparable damage to the surface of the stone is clearly visible by an untrained eye.

Source of images: top; bottom.

WikiLeaks and Art Law?! Black Swan Affair Gets Wind to its Sail

On January 6, 2011, Bloomberg news reported that Florida-based deep-sea explorer, Odyssey Marine Exploration, is using documents released on WikiLeaks to force the U.S. government out of their legal battle with Spain over a shipwreck treasure -- 17-tons of gold and silver coins.

Wikileaks, supposedly revealed that the U.S. State Department had offered to help Spain's side in the matter in exchange for help in returning a multimillion-dollar painting — seized by World War II-era Nazis — to a U.S. citizen.

To remind you of the dispute: in 2007, Odyssey discovered a sunken Spanish galleon off the cost of Portugal, in international waters of the Straits of Gibraltar at a depth of approximately 1100 meters. Statement regarding Odyssey Appellate Brief made in May 2010 describes Odyssey's actions, i.e. efforts to document the site and remove the treasure.  Odyssey named the trove "The Black Swan." However, Spain claims it to be the Nuestra Senora de las Mercedes, a Spanish warship that exploded in 1804 due to an engagement with the British.

Odyssey's findings were contend by two sovereigns (Spain and Peru) as well as twenty-five descendants of those aboard the Mercedes and the salvage company itself. Spain's position was as following: the shipwreck was unquestionably the remnants of the Mercedes; Spain had not abandoned its sovereignty of the vessel and thus under applicable treaties and Executive Branch directives, Spain's warship should be accorded the same respect as those of the United States." 22 Fla. L. Weekly Fed. D 128, *3.

The Republic of Peru, which came into existence after 1804, "asserts a "conditional claim" to "all of its property and patrimony," namely that specie minted in or produced from ore extracted from Peruvian territory. *6-7. On its own behalf, Odyssey, argued that their finding were not those of the Mercedes but an amalgamation of shipwrecks none of which were the Mercedes.

In 2009, Federal Court ruled for Spain. Odyssey Marine Exploration, Inc. v. Unidentified, 2009 U.S. Dist. LEXIS 119088 (M.D. Fla. June 3, 2009). The opinion is being appealed.

A copy of Odyssey motion urging Middle District Court of Florida "to throw out a "friend of the court" brief by the U.S. government supporting Spain" is not available yet.  According to the Associated Press the State Department had no immediate comment.

Additional articles available from Auction Central News and  Typically Spanish.

Old World Keeps Art Close

The ArtDaily.org reported that the Art Fund, the National Trust and National Heritage Memorial Fund (NHMF) raised enough, or £2.72 million, to keep Pieter Brueghel the Younger’s ‘The Procession to Calvary’ (on the left) in the UK.

Koons' Balloons

Jeff Koons has sent cease and desist letters to Park Life, a gallery in San Francisco, for selling dog balloon-shaped bookends.

Does the appropriation artist have the exclusive right to sell things in the shape of balloon animals? Read the article at ArtInfo.

See a comparison of one of Koons' Balloon Dog (1994-2000) sculptures and one of the possibly infringing bookends at Techdirt

Conservation of Cultural Heritage: Babylon

The American invasion of Iraq happened in 2003, but Babylon and the ancient ruins of Mesopotamia have suffered from neglect and mistreatment for much longer than that. Today, international agencies and the American and Iraqi governments are working together to preserve the cultural heritage of Babylon.

In 2004, after the invasion, the World Monuments Fund began collaborating with Iraq’s State Board of Antiquities and Heritage "to assess the conditions of the site and develop a list of priority conservation projects to stabilize the archaeological ruins." One goal of the project, "The Future of Babylon: Conserving Iraq's Cultural Heritage," is to help secure a World Heritage nomination for Babylon.

In October of 2008, the Department of State launched the Iraq Cultural Heritage Project. According to the New York Times, this November the Department announced a new $2 million grant to begin work to preserve the site’s most impressive surviving ruins.

The conservation efforts seem largely geared towards tourism and exploitation, which is reportedly causing some dispute between the various parties involved. Is it about cultural and historical understanding, or is it about economic viability? Should one country implement and control conservation efforts of the cultural heritage of another country?

See this Tour of Iraq's Ancient Sites, by Steven Lee Meyers, Stephen Farrell, and Shiho Fukada. The writers of the article acknowledge that the conservation efforts will open the sites up to tourists, but they will also re-open them for Iraqis, "whose engagement with the ancient past has been obliterated by the more recent past." However, conservation of the old is a new concept, and local "existential threats" facing these monuments, such as looting, still persist.

Read the New York Times article here.

In The Hunt for Falt: ICE seizes two paintings from New York Auctioneers

Federal authorities seized two Julian Falt paintings stolen by the Nazis from The National Museum in Warsaw, Poland.  Paintings were offered for auction at two separate auction houses: Christie's and Doyle.  In the news release issued by ICE, "according to the complaint filed on Dec. 15 in Manhattan federal court, in August 1944, the German S.S. Obersturmbannfuhrer Benne Von Arent took over the Polish National Museum and confiscated the most valuable items in the museum's possession, including "The Hunt" and "Off to the Hunt."

Polish government alerted ICE to the auctions featuring Falt's paintings and after ICE conducted an investigation into the paintings, the U.S. Attorney's Office for the Southern District of New York filed a civil complaint against the paintings seeking their forfeiture as  stolen property imported into the United States in violation of law.

Falat (b. 1853 in Tuliglowy, Poland - d. 1929) is known for his hunting and landscape paintings. His works are of particular importance to the Polish art historians because they were singled out for displayed at the Society for the Encouragement of Fine Arts in Warsaw, Poland at the turn of the last century.

   

Round Three: Grosz v. MOMA Decision Petitioned for Rehearing and/or Rehearing En Banc

On December 16, 2010, New York Court of Appeals affirmed holding in Grosz v. MoMA that the three-year statute of limitations had passed by the time suit was brought denying plaintiff's equitable tolling claim.  Works in dispute, currently at the Museum of Modern Art in New York, include Hermann-Neisse with Cognac, Self-Portrait with Model, and Republican Automatons all by a German painter George Grosz.  Conditions of acquisition are undisputed whereas MoMA is seen as an innocent purchaser of stolen goods.

Under New York State Law, "[a]n innocent purchaser of stolen goods becomes a wrongdoer only after refusing the owner's demand for their return." The contention is whether MoMA refused to return the paintings to the claimants in satisfaction of the "demand and refusal" rule or not. All parties agree that MoMA refused to return the works, yet they disagree as to the time of the refusal. Petitioners contend that MoMA did not refuse until 2006, while the Disrict Court found that "constructive refusal" took place on July 20, 2005.  Correspondence between the claimants and the museum, submitted as evidence, shows that negotiations between the parties were protracted and open-ended generating confusion as to the true intentions of the museum trustees.

Proponents of restitution on the merits, such as the Commission for Art Recovery, believe that this decision "may be a departure from previous New York art-recovery cases that hinged on the statute of limitations defense. The "New York rule" (set out in Menzel v. List, a NY decision from the 1960s) requires that a suit to recover stolen property be filed within three years of the original owner discovering its whereabouts, demanding its return, and being refused. Subsequent cases in New York courts and in Federal Courts in the state have tested and clarified many aspects of this rule."

On December 29, 2010, plaintiffs filed a petition for rehearing and hearing en banc alleging that the trial court’s reasoning and the court of appeal's ruling confuse the well-settled understanding of "what behavior constitues a "refusal."" Specifically, the claim for rehearing states that Court of Appeals Panel "turned New York’s “demand and refusal” doctrine on its head, permitting misleading behavior by a possessor of stolen property to cause a forfeiture of the true owners’ rights."

Repatriation at the Brooklyn Museum

While it is becoming more common for museums in the western world to return antiquities to their country of origin, it is still rather uncommon for such museums to do so by choice, without any legal obligation.

Nonetheless, the Brooklyn Museum is attempting to return objects exported from Costa Rica by the founder of the United Fruit Company at the end of the 19th century. The Museum is also facing some uncommon difficulties in so doing.

For over a decade, the Brooklyn Museum has been culling its collection, in an effort to dispose of those items which are not being exhibited. Having decided that these Costa Rican objects are not being utilized, they were offered to the National Museum of Costa Rica. It took some time to get the National Museum to accept, and now taking it is taking more time for the National Museum to raise the $59,000 needed for shipment.

According to Kate Taylor at the New York Times, the Director of the National Museum of Costa Rica said that,

"there were no legal issues surrounding the Brooklyn Museum’s ownership of the objects, since they left the country before a 1938 Costa Rican law restricting export of archaeological artifacts. Still, she said, she looked forward to repatriating the pieces whenever the museum could find the money."

Read the article at the New York Times