Is this a coincidence, an homage, a rip off? For legal purposes - is this a copy?
For the artist to sustain some kind of claim for copyright infringement against the newspaper, she would need to show, amongst other things, proof of copying and actual copying.
Gopnik reports Sally Singer, the magazine's editor, as saying that she "had no knowledge of Meckseper's image, nor did Cass [Bird, the photographer]." Is there any proof? Gopnik also reports Meckseper's dealer, Elizabeth Dee, as saying that “the entire art world sees this as a Josephine Meckseper adaptation.”
Whose opinion has more sway in these matters - the players of the art world or the legal world?
Dee uses the term "adaptation", but the law would require "actual copying." Meckseper would need to show that original elements from her work were taken. But how original is a matchstick in the mouth? Singer suggested to Gopnik that both images are probably inspired by a 1960s image taken by photographer Melvin Sokolsky. Amy Stein, photographer and blogger, points out another similar composition featuring Jack Nicholson.
"There’s not much of a copyright issue, here, as Meckseper's dealer admits," Gopnik writes. "Artists have always riffed on each other’s work, but when the borrowing’s very close, these days it is common to give credit – to avoid just this kind of kerfuffle." While it might be a best practice in the industry to acknowledge other artists' work, it certainly wouldn't be conclusive as to any issue of fair use.
To help audience members navigate the funding process, U.S. Senator Kirsten E. Gillibrand (N.Y.) provided "A Guide to Historic Preservation, Arts & Cultural Institutions, & Tourism Funding Opportunities and Incentives." The panels discussed a number of ideas for creative projects with quantifiable elements that meet grant requirements.
The most serious concern was this month's decision by the House of Representative to cut funding to the arts. The National Endowment for the Arts was nearly cut all together. The dance community was encourage to urge their local representatives to prevent the Senate from going forward with these cuts. 'Advocacy' was a buzzword for the event.
On the panel for cultural diplomacy was a speaker from the U.S. Department of State Bureau of Educational and Cultural Affairs. The Bureau administers projects that help dance cross international borders and provides related services, including helping dance companies to obtain visas and providing information about foreign tax laws. It was suggested that, given current priorities, a dance company might have a better chance of receiving government funding if foreign policy were an element of its project proposal.
The dance community faces a number of legislative challenges, but there was energy and optimism in the air. The event was a wonderful success.
See information about the event at Dance/NYC
Also, check out Battery Dance Company's Cultural Diplomacy Toolkit
Voina, radical art group in Russia, has based its works on blurring this boundary between criminal and artistic. According to the New York Times, one of the group's recent and highly provocative art projects has recently been shortlisted for contemporary art awards by Russia's Ministry of Culture and the National Center for Contemporary Art. But artistic credibility cannot save the group from trouble with the law.
In November 2010, the Russian authorities detained three members of Voina for hooliganism. Two of the artists have not yet been released. This is despite British artist Banksy's efforts to raise money for their bail, as reported by the guardian in December. The Los Angeles Times reports that on February 22nd, one member made a complaint to the European Court of Human Rights. The artist's lawyer contests that the authorities have provided insufficient evidence to keep him in pre-trial detention.
"If the artists consider their action a piece of art, if the experts along with the audience agree with it, what it is then? Art or crime? We struggle against the authorities who are criminal indeed," The Independent quotes Alexei Plutser-Sarno, a member of Voina.
Ai Weiwei, a Chinese artist, also raises human rights concerns about the authorities of his home country. Unlike Voina, he himself is more political than his works of art. His works are not violent or obscene, and he recently exhibited work at the Tate Modern in London. Nonetheless, the Chinese authorities have restricted both his political protests and his artistic activities. Weiwei was placed under house arrest in November, as reported by Cardozo Art Law Society.
Melissa Chui, director and vice president of the Asia Society in New York, writes for Art Info, "Ai Weiwei has certainly become an international symbol of issues surrounding human rights in China, and how individuals are able to express themselves, whether through art or through the media, blogs, Twitter, and other ways of communicating."
An investigation by U.S. Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI) has resulted in the return of German art stolen during World War II. One part of a porcelain dinner service, the Nereid Sweetmeat Stand was manufactured in Meissen, Germany, from the famed Swan Service. A forensic investigation by ICE determined that the Nereid Sweetmeat Stand at the Toledo Art Museum, where it has been since 1956, was the same piece taken from what was then called the Museum of Applied Art in Dresden.
The Toledo Art Museum, which commemorated the handover in a ceremony on February 23, 2011, acquired the piece in good faith from a New York dealer. The Swan Service is known for porcelain that is uniquely large and beautiful. Pieces are also rare - only about 200 are currently know to exist. The piece is scheduled to go on display in Dresden later this year.
For more information visit newswire.com.
Still, the museum announced that it would not be selling it collections to pay off the debt. How could they, if deaccessioning for anything but collection development is a taboo in the industry and is sure to make any institution a cultural pariah?
“We are planning our way out of this,” said Executive Director Maria Ann Conelli Conelli. Now, the museum announced that it will stage an off-site exhibition in Italy during the Venice Biennale, starting Jun. 1 2011, which may indeed prove the best alternative. According to New York Times, the museum will display works by African-American artists at the Fondacio dei Tedeschi.
Source: ArtInfo; Bloomberg.
During the U.S.-led invasion of Iraq looting of the Iraqi National Museum received significant media coverage. Last summer, the U.S. Attorney's Office in Delaware recovered 25 Iraqi artifacts from a California antiquities dealer. On Friday, the items were formally repatriated. In a brief ceremony, U.S. Attorney for Delaware Charles M. Oberly III presented them to Iraqi Ambassador to the United States Samir Sumaida'ie. Over 150,000 items were looted from the Iraqi National Museum in 2003. Sumaida'ie said this was one step in the long process of reassembling Iraq's cultural heritage.
For more information see delawareonline.com
As the Economist points out, a number of artists have displayed impressive entrepreneurship throughout history. They can change the art market around them by targeting new customers, opening up new channels of distribution, and finding more cost-effective methods of production. For example, Damien Hirst bypassed art dealers and sold his works directly at auction. The effects of his use of an auction house in the primary art market are still being felt.
Artists have also demonstrated a creative ability to respond to technological innovations. The Economist notes that "modern artists adapted to the arrival of photography, a technology that could have made them redundant." Artists have embraced new technologies as new media for creating art, and also as new business tools for marketing art.
An online VIP (Viewing in Private) art fair debuted at the end of January 2011. The fair suffered problems as the technological features could not keep up with the number of visitors and demands. However, the Financial Times considered it an overall success. Griselda Murray Brown declared that "commerce is now more global than ever, and the art world both bigger and – when the technology allows – better connected."
Kinetica Artfair expanded on the usual kinds of art that could be sold via the art fair model. The fair, which took place at the beginning of February 2011, hosted galleries and artists that display "kinetic, electronic, robotic, sound, light, time-based and multi-disciplinary new media art, science and technology." Nicole Campoy-Leffler at the Huffington Post asks if this fair represents "The Future of Art?"
Despite the current economic climate, Christie's reported the highest sales for an auction house, ever, in 2010. Katherine Ryder at the Wall Street Journal reports that Christie's attributes much of its success to these innovations in the art market, "with more auctions, new customers, private sales and growth in online auctioneering. "
ArtInfo reports that investors are starting to play the art market game. It seems more about business and less about art. "Some analysts believe that the increasing readiness of investors — rather than art lovers — to sink money into art are turbo-charging a boom that might lead to new busts."
As the art market changes, the laws that affect each aspect of the market process, from production to transfer of title, may need to be re-examined. For example, what legal duties will be placed on sellers to regulate prices?
Read one examination of the art market at the Economist.
Today, it is not uncommon for American teenagers to have T-Shirts and posters bearing this image. Are these Western teens supporters of Che's communist ideas? Probably not. Do they know that the image has become the symbol for revolutionary groups in Colombia and Mexico? Um, does it matter if they don't? It seems that the image of Che has come to stand for something of its own in our pop culture.
However, the Independent reports that Fitzpatrick has "decided it is time to prevent it being used for 'crass commercial purposes'." In an attempt to take back control, Fitzpatrick has applied for documentation to prove his ownership of the copyright of the image. If he is successful, he plans to transfer copyright to Guevara's relatives.
His probability of success is limited by the fact that the image is actually based on a photograph taken by Alberto Korda. Clancco makes an interesting comparison of Fitzpatrick with Shepard Fairey.
Do such pop-art reproductions of photographs taken for newspapers constitute copyright infringement? Do they involve sufficient transformation to avoid infringement and merit copyright protection? Furthermore, once an artist has allowed his work to be circulated, how can he later attempt to assert copyright?
Read the article at the Independent
Igor Vitalievich Savitsky, a Russian artist, went to Karakalpakstan in 1950 as the artist in the Khorezm Archeological and Ethnographic Expedition. He stayed after the dig and began collecting art and cultural objects from the local people. Shortly thereafter he began collecting works of the Russian avant garde, which the Soviet authorities were then banishing and destroying, and bringing them back to Karakalpakstan. Today, the Savitsky collection remains in the Karakalpak Museum.
The surprising collection was, perhaps, first brought to the attention of the New York art world in 1998 by Stephen Kinzer's article in the Sunday New York Times. There had been an exhibition of a few hundred pieces in a medieval convent in Caen, France. Kinzer says in the documentary that he expected a few New Yorkers choked on their English muffins a little when they saw the piece.
Although the collection no longer faces the threat of destruction from the Soviets, it is now faces a much bigger threat - nature. The Soviets accidentally drained the local water body, the Aral sea, and now the region faces severe extremes of hot and cold. It is difficult for the works to survive in such conditions. And like every other museum, maintaining adequate funds is also a problem. However, even though the majority of works can't even be displayed, the director of the museum wouldn't dream of selling a single piece. Her commitment to keeping items in the collection is interesting in light of the deaccessioning debates in New York.
Do the museum owners have a duty, legal or moral, to use best efforts to share this collection with the public, both national and international? Would such a duty be fulfilled by selling the works to museums with more visitors, by moving the collection to a more accessible location, or by improving the conditions of the museum? The filmmakers expressed the hope that the documentary would bring further attention to the collection and its needs.
The Desert of the Forbidden Art at the MoMA
Through new x-ray technologies, it has been discovered that chrome yellow, a bright yellow pigment often used by Van Gogh, contains chromium atoms that turn brown in the presence of sunlight. "Van Gogh intended to make his paintings more yellow, but nature is making them more brown," says Professor Koen Janssens of Antwerp University in Belgium.
Scientists have suggested that museums should keep paintings in darker, cooler conditions, to prevent or delay the reverse oxidation process that turns the pigment brown. But can any artist foresee how his or her works will change over time? An artist certainly cannot foresee how perceptions about the work will change. Why should later generations attempt to freeze an artist's works and fix them at a moment in time?
Preventing further change is not a very offensive conservation effort. Perhaps the more interesting issue will be whether or not the scientists and historians attempt to recreate the original yellow (but without any finnicky chromium atoms). Ella Kendriks, of the Van Gogh Museum, said: "This type of cutting-edge research is crucial to advance our understanding of how paintings age and should be conserved for future generations."
Read Steve Connor's article on "Why Van Gogh is Entering his Brown Period" at the Independent.
Also, this blog recently addressed some of these these issues in an article about the fabrication and conservation techniques used on the work of Donald Judd.
On Feb. 17, 2011, Mayor Michael R. Bloomberg, Kate D. Levin, New York City Cultural Affairs Commissioner, and Frank J. Sciame, the Seaport Museum’s chairman for the last four years, met at City Hall to look at museums financial records and to speak about the future of the museum. Apparently, Mr. Sciame has lent the museum $3 million since 2010 to cover operating expenses like payroll. Was that a right move for a board member or not?
- 2004 -- library building closed; collection of 2 million artifacts excavated in Lower Manhattan deaccessioned; budget reduced by $1 million;
- 2005 -- antique ships offered for adoption;
- 2008 -- museum runs a deficit of $1 million, with budget or about $5.2 million;
- 2010 -- Sciame loans museum $1.5 million;
- 2011 -- ?
Furlough -- temporary layoff; leave without pay.
Jasper Johns received the Presidential Medal of Freedom, the nation's highest civilian honor, on February 15, 2010. The famous artist was among 14 individuals who President Obama said "reveal the best of who we are and who we aspire to be." Other recipients included former President George H.W. Bush, Yo-Yo Ma, and Maya Angelou.
For a complete list and more information vista artdaily.org.
Causes of Action:
- breach of fiduciary duty;
- breach of warranty;
- negligent misrepresentation;
- conversion of the frame the Drawing was in when it was delivered to Christie's.
Facts: In 1997, Marchig consigned a pen-and-ink Drawing in an Italian frame to Christie's for sale. It was examined by Francois Borne, an old master drawings expert who attributed it to a German master drawing "in the taste of the Italian Renaissance." The drawing, cataloged as "German, 19th Century," was sold in 1998 for $21,850 without its frame. In 2009, more than a decade later, the Drawing was attributed to Leonard da Vinci. According to the complaint, now the Drawing is valued at over $100 million.
- Under the New York law, a plaintiff seeing to recover monetary damages for a breach of fiduciary duty must file suit w/in 3 yrs from the time the cause of action accrues. N.Y. C.P.L.R. 214 (4). Here, the cause of action was precluded by the statute of limitations that expired in 2000 or 2001.
- The limitation period for the breach of warranty claim varies between 4 and 6 yrs and the claim was brought untimely unless Plaintiff could prove grounds for tolling the applicable statute of limitations. N.Y. C.P.L.R. 213 (2)
- Statute of limitations to file a claim for negligence is 3 years within the time the injury is suffered. N.Y.C.P.L.R. 214 (4). Again, court held that events underlining the negligence claim took place no later than 1998.
- Cause of action for negligent appraisal or representation accrues on the date of the alleged misrepresentation and the statute of limitations to bring a claim is 6 years. N.Y.C.P.L.R. 213 (1).
- The New York statute of limitations for conversion and recovery of chattels is three years. N.Y. C.P.L.R. 214(3). And while the person who's property had been converted first needs to make a request for it and the possessor refuse to return it to start the statute of limitation, the true owner cannot unreasonably delay to make the demand.... You can see where this is going.
Complaint: Marchig et al. v. Christie's Inc., No. 10 Civ. 3624 (S.D.N.Y. Aug. 13, 2010)
Decision: Marchig et al. v. Christie's Inc., 10 Civ. 3624 (S.D.N.Y. Jan. 31, 2011)
She overcame the financial obstacles by obtaining a grant from the 2010 County of Orange Arts Grant Program, and seeking additional funding from Kickstarter. She overcame creative obstacles by turning the project into a contest, and seeking submissions from local artists. She thought there would be no legal obstacles. There was never any intention to put up offensive art. Furthermore, Gold was told by local officials that no ordinances would prevent her from putting up a mural on private property.
But when she presented her idea to the community, the Village Board put a halt to her project. As an obstacle, the Board passed Local Law No. 2 of 2010: “The creation and or display within the Village of Greenwood Lake of public art is prohibited.” It will expire, on May 1st. Unfortunately this is the same day that her grant ends.
What to do with public space is always a sensitive issue, and public art presents many challenges. As the New York Times reports, "Board members concluded that a board including professional artists and experts was needed to review artwork in a community not exactly awash in it." Most sensitivities arise over offensive art being placed in the public forum. In 1934, Rockefeller famously destroyed Diego Rivera's mural at the Rockefeller Center for being too political. Last year, the Los Angeles Museum of Contemporary Art censored a street artist's commissioned mural for being offensive. Public Ad Campaign goes so far as to use acts of civil disobedience to 'reclaim' public space by painting over advertising. A local community art project, however, seems unlikely to offend. Indeed, Gold's use of the mural space as a gallery wall was critically "well-received."
Facing fines and the prospect of having the works torn down, Gold has filed suit in federal court, claiming that the town has violated her right to freedom of speech and has placed an unconstitutionally broad prohibition on freedom of expression.
Read the article at the New York Times
Who owns the ancient Egyptian mummy Mask of Ka-Nefer-Nefer? The mask, which belonged to a noble woman who lived over 3,000 years ago, was found in 1952. The museum, which bought it in 1998, is seeking to enjoin seizure by U.S. authorities.
The museum, represented by Jeffrey Simon with Husch Blackwell in Kansas City, says it conducted a thorough investigation of the mask’s provenance before purchasing it. Moreover, they assert, the U.S. cannot show probable cause that the mask was stolen, smuggled, or otherwise clandestinely entered the United States. The museum urges that Egyptian law allowed for the personal and private ownership of Egyptian antiquities when the mask was discovered. And, even if it was stolen, they says the five-year statute of limitations under the Tariff Act of 1930 has run.
For more information visit Courthouse News Service.
The event was directed toward applicants for NYFA's BUILD [Building Up Infrastructure Levels in Dance] grant program. BUILD grants are available to smaller dance companies in New York.
Five panel discussions were held throughout the day-long session. The panelists discussed practical issues and current developments in the areas of copyrighting dance, collaborations and licensing of Intellectual property, legacy planning, social media, and the advantages and the different business entities available. These discussions were led by illustrious speakers from a variety of law firms and arts organizations, including ASCAP, Lincoln Center, and the Martha Graham Dance Company.
There are a number of legal issues facing smaller dance groups. What are the benefits of incorporating as a 501(c)(3)? When should they acquire synchronization licenses and master recording licenses for their dance pieces? Who owns the copyright in a dance? Further information on these issues can be found on the websites for Dance Heritage Coalition and Dance/NYC. And the host organizations, NYFA and EASL, suggested that similar events may be held in the future - so keep on your toes...!
What? Museums usually fight claims for return before they start packing their collections for restitution. In this instances, the Brooklyn Museum simply decided that "its closets were too full, overstuffed with items acquired during an era when it aimed to become the biggest museum in the world."
The National Museum of Costa Rica accepted the offer and now has to raise about $60,000 to pay packing and shipping costs.
Truth be told, the Brooklyn Museum will keep some "of the most valuable pieces, including gold and jade animals and anthropomorphic figurines and pendants..." as long as the museum does not overextend itself. According to the Brooklyn Museum’s chief curator the decision comes at the time when museum's budget is strained.
Earlier this month, Hawass admitted to attempts at theft and damage to about 70 objects but he revised his earlier statements that there were no stolen pieces and added that "the Egyptian army and police would question a group of looters already in custody about the missing artifacts." Sadly, Hawass no longer considers Egypt's museums and archaeological treasures to be safe. For the list of stolen artifacts, visit Hawass' blog.
For earlier reports about the Egypt's Museum, read Egypt Does not Lose Head and The State of Egyptian Antiquities Today.
Arts advocates are concerned that the legislative proposal may be amended to fully eliminate the NEA during floor debates. To learn more about the campaign to prevent the sever budget cuts and ensure that the NEA survives, click here. NEA's core programs include: Access to Artistic Excellence, Challenge America: Reaching Every Community, Federal/State Partnerships, and Learning in the Arts. NEA funds dance, design, folk & traditional arts, literature, local arts agencies, media arts, multidisciplinary, museums, music, musical theater, opera, presenting, theater, and visual arts.
“. . . The preservation will help future generations understand the social, political, and cultural history in the United States and abroad, as seen through the eyes of these two legendary photographers,” said Willis E. Hartshorn, Ehrenkranz Director, ICP.
The NEA Chairman, Rocco Landesman was quoted by Art Daily as saying “Art and culture are the expression of our shared values as a society and serve as our collective heritage. [The ICP] treasures remind us who we are as a people and often inspire us to be even more—that is, to exercise even greater creativity.” Here is looking at NEA for decades of ongoing support of the arts and cultural treasures.
The long running dispute as to "whether they would or they would not" was resolved in favor of Peru, when in November 2010, Yale issued a statement that the school was" pleased and proud to have reached an accord with the Government of Peru which is now in the stage of being formalized. Under it, as an expression of good will and in recognition of the unique importance that Machu Picchu has come to play in the identity of the modern Peruvian nation, Yale will return, over the next two years, the archaeological materials excavated by Hiram Bingham III at Machu Picchu . . . by the Yale-Peruvian Scientific Expedition of 1911."
According to Art Daily, "San Antonio Abad University in Cuzco will create a center to house the more than 5,000 objects and fragments. The center, to be located in an Incan palace and operated under joint direction by both universities, will include a museum exhibit for the public and a research area for collaborative investigations by the two institutions and visiting scholars."
The story began in 2008, when Peru authorities filed a federal lawsuit demanding Yale University return the artifacts taken by the Yale scholar Hiram Bingham. Republic of Peru v. Yale University, No. 3:09-CV-01332 (D. Conn. Oct. 9, 2009); transferring No. 1:08-CV-02109 (D. D.C. July 30, 2009. The claim accused Yale of fraudulently holding the relics for decades.
The end of the dispute is a beginning of a new relationship between the Ivy League school faculty and students who plan to visit the center for training, research and field work, and Peruvian faculty and students who would come to Yale on exchanges. The Yale Peabody Museum of Natural History stands to receive a small number of artifacts for display. And they lived happily ever after.
The rule reduced maximum number of vendors allowed in each spot: 49 in Central Park, 18 in Union Square, 9 in Battery Park, and 5 on the High Line. According to one of the suit, the artists contend the new rules violate New York State and New York City human rights laws, and contradict New York City Local Laws and the Administrative Code.
A copy of the Appellate Court's Order is available here.
What are other sources saying about this: Central Park Portrait Exchange; A Walk in the Park;
"What's in a name?" A rose by any other name would smell as sweet, or so we're told, but artists might argue that a work displayed under any other name would not be sweet at all. Attribution, the right of an artist to have his or her name attached to his or her work, is a moral right, and also a legal right under the Visual Artists Rights Act [17 USC 106A(1)(a)].
Over the years, however, it has been customary for museums to display works of Native American art without naming the individual artists. Instead, the works are classified by and attributed to tribes. It seems a logical curatorial practice at first, helping viewers to place works in their social, ethnic, geographic, and historical context. Even contemporary artists belong to tribes, or movements. However, imagine every work by Damien Hirst or Tracey Emin were simply displayed under the name, "Young British Artist." Or every Picasso simply identified as "French Impressionist." It would offend our sensibilities.
Dan Monroe, Director of Peabody Essex Museum acknowledges that most museums "continue the practice of labeling historical Native American in relation only to tribe simply because it has long been 'standard' practice. Few museums have given thought to the meaning and significance of this practice though none would consider labeling Western art in the same manner."
Therefore, The Denver Art Museum has boldly announced that it will begin displaying all of its Native art works with the names of individual artists, where such information can be found. This comes as part of a re-installation of its Native American Indian art galleries. In a New York Times article by Judith Dobrzynski, this announcement is heralded as "a revolution in museum practice."
This announcement may have a ripple effect across the museum industry. “Recognizing that Native American art was made by individuals, not tribes, and labeling it accordingly, is a practice that is long overdue," Monroe told the Times.
The ripple effect may even spread into other areas of the art world. In response to Dobrzynski's article in the New York Times, a dealer who advises Christie's reports, "in the Native American auction at Christie's two weeks ago, we made a conscious effort to identify and write about the individual artists."
It will be interesting to see whether these works will now be viewed more as "Art" rather than as objects of cultural heritage. Such changes in perception may even impact the practices in displaying works by contemporary Native artists. Under the Indian Arts and Crafts Act of 1990, an artist will only be deemed a "Native American" if it is enrolled in a federally or state recognized tribe, or has been certified by such a tribe. But who should set these definitions and how should museums respond? What's in a name, anyway?
Read the New York Times article here.
And read Judith Dobrzynski's follow-up posts at Real Clear Arts here and here.
Denver Art Museum
*George Walkus, Kwakwaka'wakw, Four-faced Hamat'sa Mask, about 1938. Native arts department acquisition fund.
*Norval Morrisseau, Ojibwa/Anishnaabe, Unititled (Snakes), about 1968–70. Native arts department acquisition fund.
Carnival New Orleans News reported that "Intellectual property law dating back to the nation’s founding dictates that apparel and costumes cannot be copyrighted, but Tulane University adjunct law professor Ashlye Keaton has found a way around that by classifying them as something else- as works of art.
The first test for the Indians who have copyrighted the new costumes they will wear this year will come at Mardi Gras. The Indians revamp or completely remake their suits every year, and the copyright takes effect at the first public showing. . .
Once the costumes are copyrighted, which can be done online for $40, the Indians can either sue people who sell photos of them or try to negotiate licensing fees with photographers either before or after the pictures are taken."
Hours of work and hundreds of dollars go into the making of these vibrant costumes and the artist are hoping to share a part of the revenue through licensing.
Source of the image: Creole Wild West.
The recent political upheaval in Egypt is not without effect on the country’s cultural property. Reports of theft, vandalism, and looting have resulted in calls for international law enforcement to guard against illegally trafficked cultural artifacts. In the States, the agency charged with seizing illegally imported cultural property is the U.S. Customs and Border Patrol. The agency relies on various federal acts when seizing cultural property.
Under the National Stolen Property Act (NSPA), authority for seizure is granted when the item is valued at $5,000 or more, when the item is known to have been stolen, when it is covered under Egypt’s patrimony law 117, or when it is transported over the American border. This poses some significant problems. For example, an artifact may have significant value to archeologists but this may not be reflected in its market value thus preventing seizure.
Authorities using NSPA rely on Title 19, the portion of federal law that contains customs statutes, and Title 18, the criminal code that contains the NSPA. Both are used in conjunction with the McClain/Schultz doctrine, a court defined rule which considers the patrimony laws of foreign nations.
Title 19’s Cultural Property Information Act (CPIA) focuses on whether an artifact was stolen. Unlike the NSPA, the low monetary value of an article does not prevent seizure, but there are other problems. Some artifacts may have been stolen so recently that they are not inventoried or government leaders may not be inclined to report looted artifacts.
Additionally, the Archeological Resources Protection Act (ARPA) permits seizure when items are trafficked in foreign commerce in violation of state or local law. However this type of seizure may not survive a legal challenge and is not even listed in the customs’ agent handbook.
Because of the shortcomings in these rules some advocate for the adoption of additional measures. One option is an Emergency Protection of Egyptian Cultural Antiquities Act, pursuant to 19 U.S.C. § 2603 of the CPIA. The act could focus the attention on Egyptian cultural heritage at risk and meet due process requirements while permitting the seizure of cultural objects under less constrictive circumstances.
Suspected stolen, looted, or trafficked culture artifacts can be reported to the Customs Border Protection over the Internet at https://apps.cbp.gov/eallegations/ or by telephone at1-800-BE-ALERT.
For a more in-depth explanation visit Rick St. Hilaire's blog.
"The legal dispute centers on the so-called Schneerson Library, a collection of 12,000 books and 50,000 religious documents assembled by the Chabad-Lubavitch Hasidic movement over two centuries prior to World War II, and kept since in Russia. The Chabad organization, which is based in Crown Heights, Brooklyn, has been trying to regain possession of the library, saying that it was illegally held by the Soviet authorities after the war. . . .
In 1991 a court in Moscow ordered the library turned over to the Chabad organization; the Soviet Union then collapsed, and the judgment was set aside by the Russian authorities. The Russian government now says it wants to preserve the library for Russian Jews and scholars. . . .
In recent years the organization has taken its case to court in the United States, and on July 30, 2010, Royce C. Lamberth, a federal judge of the United States District Court in Washington, ruled in favor of the Chabad organization, ordering Russia to turn over all Schneerson documents held at the Russian State Library, the Russian State Military Archive and elsewhere. Russian officials, saying that an American court had no jurisdiction, had refused to participate in the proceedings. Judge Lamberth handed down an ex parte decision in favor of the Chabad organisation on [date] which the Russian Foreign Ministry denounced it as a violation of international law. . .
Whether or not "an American court had [a] right to get involved in a case concerning Russian assets on Russian soil" remains to be seen, in the mean time, artworks may become hostages. According to one attorney for the Chabad organization it might ask a court to "confiscate art from Russia as a kind of legal hostage." The threat is hardly serious because the Federal law, 22 U.S.C. 2459, Immunity from Seizure Act, protects works of cultural significance vetted by the State Department from seizure.
In 2010, Ascalon sued the federation and the Harrisburg Department of Parks and Recreation in federal court in July under the Visual Artists' Rights Act (VARA), 17 USC 106A, alleging that the federation hired a contractor to refurbish the monument and that the contractor removed Ascalon's name off the sculpture. VARA allows creators of public display art to protect their works from alterations.
On February 7, 2011, the federation and Ascalon issued a joint statement saying that the federation will allow Ascalon to replace the stainless steel wire with rusty steel wire and put his name back on his sculpture.
Parts of the Joint Statement read:
SETTLEMENT REACHED IN CASE UNDER THE VISUAL ARTISTS RIGHTS ACT OF 1990 (VARA), ASCALON v. DEPARTMENT OF PARKS AND RECREATION, et al.
HARRISBURG, PA –In July 2010, the New Jersey artist David Ascalon filed an action in U.S. District Court for the Middle District of Pennsylvania asserting that his rights under the federal Visual Artists Rights Act of 1990 (VARA) had been violated with respect to a sculpture he created for the Jewish Federation of Greater Harrisburg: a Holocaust Memorial on the banks of the Susquehanna River in Pennsylvania’s state capital, which was installed in 1994. The complaint alleged that Ascalon’s rights under VARA, which limits how an artwork may be altered or disposed of, were violated by restoration of a decaying element of the original sculpture in which a rust-colored “barbed wire” serpentine element was replaced with stainless steel.
The substance of the settlement provides the sculpture will be retrofitted in a manner that upholds the artist’s original intent at minimal costs to the defendants. The original artist shall be provided access to the sculpture to remake the “barbed wire” serpentine element in a highly durable rust-colored steel, and the original artist’s name shall be restored to the sculpture. The parties are pleased that future generations will be able to view the restored Memorial and remember and pay proper respect to the 12 million souls that perished at the hands of agents of intolerance, the Nazi Regime.
The attorney for David Ascalon is Jason B. Schaeffer, Esq. of J.B. Schaeffer Law, LLC of Cherry Hill, New Jersey. The attorney for the Federation is Harvey Freedenberg of McNees Wallace & Nurick LLC of Harrisburg.
According to Dickinson’s spokesman: “Following the Accidia judgment, our lawyers have been instructed to issue proceedings against Ms Luxembourg and her associated companies for full indemnity for the company’s loss.” Luxembourg’s legal representative told The Art Newspaper: “Luxembourg Art Ltd trusted Simon C. Dickinson when it agreed in writing that it was acting for the buyer.”
Westfield, et al. v. Federal Republic of Germany -- FSIA schields Germany from defending the case on the merits
The heirs alleged that Westfield attempted to flee Germany with his art collection but his passport had expired and he was unable to get a visa from the United States. He was arrested in 1938 and sentenced to prison for three and a half years and fined Reichmarks 300,000 for some alleged currency violations. Around the same time, the District Attorney's Office in Dusseldorf ordered that Westfield's art and tapestry collection be sold to satisfy the fine. The collection was sold by Lempertz, the German auction house on December 12 and 13, 1939. Westfield was killed in 1943. His heir discovered that the Boston Museum of Fine Arts was seeking information about Walter Westfield, in relation to a painting in its collection of Dutch Masters in 2004. Through the Museum, the heir learned how his uncle's art collection was confiscated and sold at auction.
After the heirs filed a lawsuit in Tennessee state court against the German government, Germany removed it to federal court and filed a motion to dismiss for lack of subject matter jurisdiction based on the Foreign Sovereign Immunities Act, 28 U.S.C. 1602 et seq. (2006). 2009 U.S. Dist. LEXIS 65133 (M.D. Tenn., July 28, 2009).
The district court granted Germany’s motion to dismiss, holding that the heirs’ claims were barred by the Foreign Sovereign Immunities Act [FSIA], and do not fall within the exception for acts in connection with commercial activity. On appeal, the court found that the heirs' argument denying a sovereign act was not persuasive finding that "sovereigns were historically entitled to absolute immunity and the [FSIA] was intended to codify the "restrictive theory" of sovereign immunity, waiving immunity only in certain limited situations."
The Court of Appeals agreed that Westfield's treatment and demise "constituted an abuse of police and prosecutor powers by the German government at the time, were nonetheless the acts of a sovereign..." Even though the court agreed that it "should not recognize Westfield's fine and imprisonment," it felt compelled to respect acts of a sovereign. The court based its regrettably decision on its jurisdictional limitations imposed by "Article III of the Constitution and the statutes Congress enacts."
The full opinion is available here.
The report suggests that applying business start-up financing models, such as the community microfinance, venture capital or development bonds, could help preserve and protect the Israel's thousands of archaeological sites and provide local and national economic growth.
It proposed a number of financial solutions, including:
- Community microfinance, building on the example of Lawrence Coben's Sustainable Preservation Initiative, could help local communities leverage loans, philanthropic donations and direct equity to finance targeted development.
- Israel's tremendously successful venture capital market is a valuable source of potential funding for culture heritage cluster development, linking archaeological preservation with the tourism, small business, retail and even technology sectors.
- Relatively low-risk archaeological development bonds provide long-term project financing for preservation and can be funded by a variety of revenue streams, including antiquity leasing, media content and intellectual property and even artisan craft and replica merchandise.
Since when does our neighbor to the north has a Department of Canadian Heritage's Movable Cultural Property Program? and, more importantly what is it?
Apparently, Canadian Heritage is a government sponsored entity responsible for "national policies and programs that promote Canadian content, foster cultural participation, active citizenship and participation in Canada's civic life, and strengthen connections among Canadians." It is occupied with conservation and preservation of heritage, work of museums and galleries, cultural spaces, traveling exhibitions, import and export of cultural artifacts and provides funding opportunities to museums unable to acquire important cultural treasures without the public support.
Under the Canadian Cultural Property Export and Import Act, which regulations the export of certain classes of cultural property, the Minister of Canadian Heritage may dispense funds to assist certain national institutions to purchase objects deemed of cultural importance for which export permits have been refused, or which are located outside Canada and are related to the national heritage. Excerpts of the Act are available here.
If anybody asks how you found out about this, say that a little bird told you. To find out more about the scope and the breadth of the Programs under the Canadian Heritage rubric, visit their website.
For more information about the Vase, please see ArtDaily.
Image: Ptarmigan Vase. Photo: © Sotheby’s New York.
Admission: $15 for adults; $10 for students, seniors, and Institute members
The Matisse Foundation was created by the widow of Pierre Matisse, a successful New York art dealer and the son of painter Henri. Since its inception in 1995, the Foundation has focused its donations in the art community and has aimed "to foster excellence in all aspects of art appreciation." An on-line legal resource seems to be an unlikely donee. However, lawyer's services are integral to the art market, and the accessibility of these services is a major issue for artists.
Art is rarely perceived as being 'tainted' by law, except in sexy areas like copyright infringement and restitution of cultural property. However, real artists do need help with more mundane issues, such as filing for non-profit status, leasing studio space, negotiating contracts, consigning works to galleries, and licensing media. Ask the Lawyer provides information on a variety of these practical topics. The site "grows out of VLA’s experience in speaking with, and helping, thousands and thousands of arts community members over the past 40 years and is an extension of VLA’s call center, the Artlaw Line."
On the one hand, an online service gives artists access to vital information. On the other hand, delivery of legal information in this manner raises concerns, and the site is prefaced by a hefty set of terms and conditions. Should artists who use the site feel confident in independently making fair use assessments or in negotiating contracts with parties that might have an unfair advantage? Of course artists should not be foolishly emboldened, but such democratic platforms do equip them with powerful tools.
"They are serving a community that is very anxious to get these services," says Robert H. Horowitz, president of the Matisse Foundation. Easier access to these services provides more time and flexibility for the important stuff, the art itself. It will be interesting to see how the artistic community will be empowered and how the art market will be changed by these new mechanisms that are being developed by lawyers and artists together.
Read the article at the Wall Street Journal
This recalls the famed Brancusi embarrassment, when, in 1928, Constantin Brancusi successfully defended his now-iconic Bird in Space (1919) against a U.S. Customs duty on the sculpture because the assessors considered his bird a propeller blade. Brancusi v. United States, 54 Treas. Dec. 428 (Cust. Ct. 1928). For Flavin, the Value Added Tax (VAT) Tribunal in London heard the dispute in December 2008 and held that Flavin’s works of art were indeed sculptures, subject to discount import rates. However, the victory of the art mavens was short lived.
Another artist similarly affected is Bill Viola, who works with video installations and sound environments. According to his own website, “Viola’s video installations—total environments that envelop the viewer in image and sound—employ state-of-the-art technologies and are distinguished by their precision and direct simplicity.” Viola, too, is renowned for his contributions to the contemporary art world.
To reduce shipping costs and prevent damage, works of Viola and Flavin, as well as many other contemporary artists, have to be turned off and boxed before they are shipped from gallery to gallery and from a collector to an auction house. The EU commission, however, reasoned that while “the individual components or the whole installation, when assembled, can be considered as a sculpture…[they] have been slightly modified by the artist, but these modifications do not alter their preliminary function of goods.” In May 2010, Sotheby’s sold Flavin’s Monument for V. Tatlin (1969) for $1.4 million. Assuming Flavin did not modify the florescent bulbs enough to alter their “preliminary function,” the price alone indicates that the fixtures are not used for lighting offices. However, the logic of the regulation suggests that people are buying florescent bulbs that, standing alone, are worth the price paid at auctions. This would make for very expensive replacement bulbs.
The regulation is binding on all the EU member states. With the art market up in arms, where dealers and collectors stand to lose hundreds of thousands of pounds and euros to customs fees, the regulation is likely to be challenged in national courts or before the European Court of First Instance in Luxembourg. No such claims have been filed yet; the Regulation has been in force since September 3, 2010.
The new portal powered by Google allows you to "explore museums from around the world, discover and view hundreds of artworks at incredible zoom levels, and even create and share your own collection of masterpieces." More accurately, you may explore 17 museums in 9 countries, including the Uffizi Gallery (Florence), the State Tretyakov Gallery (Moscow), the Freer Gallery of Art (DC), Van Gogh Museum (Amsterdam), and Alte Nationalgalerie (Berlin).
To see how the "Behind Scenes" of the project, watch and wonder. With the wintry mix fluttering over New York, why bother leaving home at all? The world's greatest art is at your eye-tips.