Foreign Affairs Doctrine Preempts Von Saher's Claim Again

"It is again with great reluctance that the Court concludes that plaintiff's claims are preempted by the foreign affairs doctrine, realizing the effect that this decision may have on victims of the Holocaust and their descendants," U.S. District Judge John F. Walter wrote in regards to the amended claim to recover Nazi-era looted art. The claim was brought by Marei Von Saher, granddaughter of the famous Dutch art dealer, Jacques Goudstikker against a California museum that purchased a work in dispute in the 1970s.

This is a second order to dismiss Von Saher's claim to recover a diptych attributed to Lucas Cranach the Elder, now on display at the Norton Simon Museum in Pasadena, California. The painting was in the Goudstikker collection since 1931; it was looted by the Nazis after Germany invaded the Netherlands.

The decision seems to be the final chapter to the valiant efforts by the Goudstikker's heirs, dating back to 1996. Having failed to recover the painting or its value from the Dutch government, Von Saher, sued the Norton Simon Museum in 2007 for the painting, basing her claim on state law which extended the statute of limitations for recovery of Holocaust-era looted art until 2010.

In his opinion of March 22, 2012, Walter wrote "plaintiff's action seeks to trump and interfere with United States foreign policy, by relying on an entirely different remedy for the restitution of Nazi-looted art, i.e. the laws of the state of California... if the court were to allow plaintiff's claims to proceed, the court undoubtedly would be forced to review the restitution decisions made by the Dutch government and courts, including for example whether plaintiff's claims had in fact been 'settled.... Such a determination by the court would seriously undermine the federal government's policy of respecting the finality and outcome of the Dutch government's restitution proceedings and would potentially implicate the act of state doctrine. Allowing plaintiff's action to proceed would have more than incidental effect in conflict with express foreign policy of the national government."

For the latest update on the case, read Courthouse News Service or Walter's opinion in Marei von Saher -v- Norton Simon Museum of Art at Pasadena, et al., CV 07-2866-JFW (JTLx) (D. Calif., March 22, 2012). For procedural history, read Supreme Court Nonplussed by Claimant Endeavor to Recover Art in Von Saher v. Norton Simon Museum of Art.

Astor's Estate out of Probate

The last Mrs. Astor of New York died in 2007. A five-year dispute over her estate (which will and revisions to probate), ended in the Westchester Country Surrogate court on March 28, 2011. Now, millions of dollars are free to be distributed to charities such as the Metropolitan Museum of Art (the Met) and the New York Public Library (the NYPL), Carnegie Hall, the Pierpont Morgan Library and Prospect Park of New York.

The details of the settlement were made public by the State Attorney General Eric Schneiderman. They included a reduced amount to be given to Astor’s son, Anthony Marshall, who was convicted of elderly abuse and taking advantage of his mother old age to influence the content of her will, appeal pending.

Once the funds are distributed, the Charities Bureau of the New York State Office of the Attorney General will step in to make sure Mrs. Astor’s last wishes will be honored by supervising the charitable organizations that receive her bequest. President of the NYPL, Anthony Marx, Director  and CEO of the Met, Thomas Campbell, and others have complemented the settlement.  According to Schneiderman, the settlement which is mainly based on the 2002 will, the Met and the NYPL may receive as much as 25% of the amount going to charity.

Sources: The NYTimes Obituaries; The Art Daily. 

Angola Joins UNESCO's "Convention for the Protection of Cultural Property in the Event of Armed Conflict"

On Tuesday, February 7, 2012, Angola was added to UNESCO's "Convention for the Protection of Cultural Property in the Event of Armed Conflict." The African nation will officially enter into the Convention three months following this date, on May 7, 2012.

The "Convention for the Protection of Cultural Property in the Event of Armed Conflict" was originally adopted in 1954, following the unprecedented destruction of cultural heritage during World War II. It is the first international treaty dedicated to the protection of cultural heritage in the event of warfare and armed conflict. The Convention was adopted with a Protocol, which prohibits export of cultural property from occupied territory and requires that such property be returned to the state from which it was removed.

Like many African nations, Angola has endured unspeakable hardships. The country has suffered decades of bloody civil wars, in which millions were killed and more than one third of the country's population was displaced. International attention was eventually turned to the conflict and to the role played by the illegal diamond trade in funding the war. In recent years, the country's crude oil production has led to greater economic growth and development, but most Angolans still live in poverty.

Perhaps Angola's participation in the UNESCO Convention will not only protect its cultural heritage, but may also bolster the country's economic and social development. In 2007, UNESCO held a three-day conference in Mbanza Kongo attended by international experts on preserving the cultural heritage of the war-torn nation. Angola has a rich history and the conference focused specifically on the Kingdom of Kongo, which was dominant in west central Africa until the Portuguese landed in the late 15th century. During the conference, Boaventura Cardoso, the Angolan Minister of Culture, made an appeal for the preservation and valuing of the national cultural heritage to enable current and future generations to learn about their history. Also at the conference, Claudia Harvey, UNESCO's representative for sub-Saharan Africa, stated that "cultural heritage can contribute the country's sustainable development and poverty eradication, stimulate the full participation of communities, preserve sites of the cultural heritage, and facilitate the appreciation of intangible aspects and their economic benefits."

Read UNESCO's "Convention for the Protection of Cultural Property in the Event of Armed Conflict"

Eden Burgess (DC) and Jan Hladik (Paris) Visit Big Apple

Spring is an exciting time in New York: people wear slightly less black, streets look cleaner thanks to flowers, and art law blossoms. Last year, Cardozo ended its Art Law semester with an all day Cultural Heritage and Human Rights Symposium. This year, we may be outdoing ourselves. Four speakers in March. This week alone, Cardozo played a host to two special guests who practice art and cultural heritage law outside the Capital of the World.

On March 26, 2012, L. Eden Burgess, senior attorney with Andrews Kurth LLP came from the Capital of the United States to address New York law students about pros and cons of practicing art law outside of New York. Her talk focused on cases such as Vineberg v. Bissonnette, 529 F. Supp. 2d 300 (D.R.I. 2007), aff’d, 548 F.3d 50 (1st Cir. 2008) and State of Baden-Württemburg v. Shene, 04-cv-10067-TPG, 2009 WL 762697 (S.D.N.Y. March 23, 2009). There seemed to be no cons for attorneys, their spouses and kids with better priced real estate, easier public school admission, shorter commutes, more flexible hours of work and ease of coming to New York if some matter requires the trip.

Eden's practice areas are litigation and dispute resolution, primarily in the areas of cultural property, museum and art law. She spends most of her time working from her DC office but clients and matters may be situated all around the United States, New York not excluded.

*** 

On March 27, 2012, Jan Hladik, the Acting Chief of the Cultural Heritage Protection Treaties Section, Division for Cultural Expressions and Heritage of UNESCO gave an insightful presentation about the UNESCO mission, the 1954 Hague convention and the purposes for the two protocols. He also touched upon limited opportunities for students to intern with UNESCO on project by project basis. 


Hladik, on his way from his home town, the Capital of France to Washington DC to present a paper at the American Society of International Law, admitted that in light of the recent budget cuts, UNESCO is unlikely to be hiring full time attorneys in a foreseeable future. But then again, who is?! 


While engaged in a cross-Capital exchange of experiences and insights, Burgess and Hladik reminded New Yorkers aspiring to practice art law that the issues of restitution, abandonment, human right and preservation are much more widespread and universal than one island or even five boroughs.

Gangsters with Taste: Robert Gentile and the Notorious 1990 Boston Art Heist

Reputed mobster Robert Gentile was denied bail in federal court yesterday, partly in the hopes that he may have information about one of the 20th century's most infamous art heists. Gentile was being held in a Rhode Island prison for selling prescription drugs. At a hearing in U.S. District Court in Hartford, Connecticut on Tuesday, Assistant U.S. Attorney John Durham told the court that federal authorities had reason to suspect that Gentile was involved in or had knowledge about a notoriously unsolved art theft in 1990, in which thirteen works of art were taken from Boston's Isabella Gardner Stewart Museum.

The details of the heist resemble a movie plot. The theft involved thieves disguised as police officers, museum guards bound with duct tape, and the seamless removal of hundreds of millions of dollars of masterpieces, including Vermeer, Rembrandt, Manet, and Degas. The crime has remained a mystery for years.

But now, the FBI believes that Gentile may have been involved or have knowledge of the heist. Authorities believe that Gentile was involved in a group of thieves in the early and mid-1990s, who could have been responsible for or known about the theft. Also, Philadelphia mafia family's Capo Robert Luisi--who was arrested a decade ago--told investigators that Gentile and the members of his crew were responsible for several elaborate robberies, including a scheme in which they raided armored trucks transporting cash from Connecticut's Foxwoods Resort Casino.

A. Ryan McGuigan, Gentile's lawyer, pleaded with the court to release the ailing mobster, who is 75-years-old and walks with a cane. McGuigan claimed that Gentile was being mistreated in the hopes that he will divulge information he does not possess. "What is happening... is that the government is asking to set a punitive bond, to keep him uncomfortable, to torture him." McGuigan asked the court not to punish a "sick old man."

Nevertheless, District Judge Robert Chatigny denied the mobster bail, saying he was too dangerous to be released.

Foreign Cultural Exchange Jurisdictional Immunity Clarification Act from the House to the Senate

On March 19, 2012,the U.S. House of Representatives passed the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act. This legislation, introduced by Judiciary Committee member Rep. Steve Chabot (R-OH) and co-sponsored by Rep. John Conyers (D-MI), Rep. Lamar Smith (R-TX), and Rep. Steve Cohen (D-TX), seeks to protect foreign artwork on loan to American museums by clarifying a part of the Foreign Sovereign Immunities Act (FSIA). Next stop, the Senate.

Source: http://thehill.com/blogs/floor-action/house/216649-house-to-protect-foreign-artwork-except-artwork-stolen-by-nazis

For a more detailed analysis of the bill, read http://culturalheritagelawyer.blogspot.com/2012/03/us-house-passes-foreign-cultural.html.

Jerusalem Court Spares Palestinian Heritage

A Palestinian village of Lifta was one of about 400 historic Arab towns and villages recorded in Biblical times and in use before 1948. A mosque and dozens of stone homes, vacant since1948, were threatened by property developers who wished to demolish the historic site.  A court in Jerusalem on February 6, 2012, ruled against the the Israel Lands Authority's bid to sell the ancient village and found that demolition of this site would be counter to the "sound conservation studies."

Source: The ArtNewspaper, March 2012.

Loan no More, Turkey Improvises on the Russian Play Book

Earlier this month, The Art Newspaper reported that Turkey is refusing to lend objects to the leading American and British museums because these museums hold disputed objects in their collections. Turkish Ministry of Culture banned loans to the Metropolitan Museum of Art in New York (the Met) and the British Museum in London.

This week, the Met is opening a new show, "Byzantium and Islam,"scheduled to run from March 14th through July 8th, 2012. Turkey has a long Islamic tradition and Istanbul, Turkey's largest city formerly known as Constantinople is situated on the footprint of the ancient Byzantium. However, none of the loaned works for the show are coming from the Turkish museums. Instead the Met is borrowing artifacts from Athens. The same picture emerges from the British Museum's efforts to organize "Hajj: Journey to the Heart of Islam," in light of the loan ban.

The strategy is sound, before discussing loans for exhibitions, the Turkish government wants to sort out issues over claimed and heretofore un-restituted antiquities that were acquired by museums under questionable circumstances. Thus, it appears that while possession is but nine-tenth of the law, refusing to return disputed objects does not always satisfy the mission of an educational institution, such as the V&A or the Museum of Fine Arts. In the long run, museums are better off resolving title issues in order to present best possible exhibitions to the public.

Czech Artist Jailed for Refusal to Pay Fines for Subversive Public Art Project

In an act that has angered many, Czech artist Roman Tyc has been jailed for refusing to pay fines in relation to his controversial public art work Semaphores. In 2007, Tyc used stencils to replace the green and red signals on 50 streetlights at major intersections in several cities with sardonic images, such as a man urinating, a figure hanging from a rope, a crucifixion victim, and even a man defecating. Tyc was charged with vandalism and was recently ordered to pay 80,000 korunas in damages ($4,260 USD) and 60,000 korunas in fines ($3,200 USD). Tyc agreed to pay the damages but was jailed for his refusal to pay the fines.

Tyc's actions and the subsequent response of the Czech judiciary sparked heated debate. Some consider Tyc's work mere seditious destruction of public property. Indeed, Tyc has described his work--and even his imprisonment--as revealing the state as "a dumb, repressive machine." Tyc also belongs to Ztohoven, a subversive artist collective that seeks to short-circuit official communication networks in order to dismantle their power. The most infamous example of their work was when they hacked into the Czech public television station CT2 and broadcasted fabricated images of nuclear explosions.

Others herald Tyc's work as courageously fostering important public discussion. Indeed outraged fans and supporters have picked up where Tyc left off; people in many Czech cities have been placing black stickers over traffic lights in homage to the artist's work. Additionally, more than 6,000 supporters have signed a petition demanding his pardon and release. In another show of support for Tyc, supporters have also brought cakes they had baked to Prague's Pankrak prison when he was taken there in late February.

Many also feel that the government's actions here are hypocritical. As local businessman, Petr Vidensky, explained "it's really disturbing that the Czech president decides to pardon real criminals and that an artist has to spend time in prison."

Watch a video of Roman Tyc installing "Semaphores": http://www.youtube.com/watch?v=dr9ji_k1AH4

Shepard Fairey Pleads Guilty to Criminal Contempt

Another installment in the protracted legal saga surrounding Shepard Fairey occurred last week in New York Federal District Court. The Los Angeles artist pled guilty to criminal contempt for concealing and destroying evidence during the lawsuit between Fairey and the Associated Press. The suit centered on Fairey’s alleged infringement of the AP’s copyrighted photograph of Barack Obama to create his iconic “Hope” poster for the president’s 2008 campaign. Fairey and the AP settled this civil suit out of court last year, in part agreeing to split proceeds from a line of merchandise based on Fairey’s poster.

In spite of this settlement, Fairey still faced criminal charges for his less-than-honorable conduct in relation to the suit. Initially, Fairey sued AP, seeking a court declaration that he did not violate their copyright when he designed the poster. The media cooperative countersued, claiming that Fairey infringed the copyright of their legally protected photograph. Fairey first claimed that he used a different photograph of Obama, but later admitted that this was a mistake, which he had tried to conceal by destroying documents and fabricating evidence. In court last Friday, Fairey said that he was ashamed of these actions, and his lawyer, Daniel Gitner, stated that his client “cooperated fully” with the government and took “full responsibility” for his actions.

The artist could face up to six months in jail, as much as a year of supervised release, and a maximum fine of $5,000. Sentencing is set for July 16.

Has Reality TV Gone Too Far? Spike TV's American Diggers Angers the Archaeological Community

Living up to its moniker, Spike TV's new show American Digger has indeed 'spiked' quite the controversy. Set to air in March, the show, which resembles the National Geographic Channel's Diggers, features former pro-wrestler Ric Savage as host and his team digging up "target-rich" historic battlefields and archaeological sites in search of archaeological relics to sell for profit.

The show has caused an outcry from scholars, historians, curators, and archaeologists nation-wide, who have expressed their frustration by circulating a petition called "Looting Our Collective Past." The petition, which has gained 11,000 signatures, articulates the concerns of the archaeological and historical communities: that the show glorifies looting of historical sites and that irreplaceable historical information be lost forever as a result of the show's haphazard excavation tactics.

Many members of the archaeological and historical community have spoken out publicly. Jack Gary, director of Archaeology and Landscapes at Poplar Forest, expressed his concern, pointing out that archaeological recovery of artifacts is "painstaking, careful work." Gary further explains that "a lot of information is lost, not only in the removal of these objects, but also in the techniques used by these groups." For example, the "diggers" use metal detectors to search for buried metal objects, such as bullets, canon balls, buttons, and buckles. This clumsy and destructive practice often produces many holes, disturbing provenance and crucial archaeological data. Further, Iowa's state archaeologist John Doershuk posted to American Cultural Resource Association's listserve, lamenting that "the most damaging thing about this show is that no effort was made to document where anything came from or discussion of associations--each item was handled piece-meal."

On the other hand, neither American Digger nor Diggers violates federal or state regulations against unlawful obtainment of antiquities. Shana Tepper, Spike TV spokesperson, who has publicly defended the show, pointed out that it is not shot on public land. The teams on the shows dig only on private property. A landowner's approval makes it legal, and landowners may do as they wish with artifacts found on their land.

But lawful or not, what are the implications of this type of entertainment, which appears to glorify irresponsible excavation practices? The concern is that these shows will lead to a new generation of fortune hunters, harkening back to an era when archaeologists raided, rather than studied, sites. Archaeologist Steve Lekson of the University of Colorado, Boulder eloquently summarizes the concerns of many in the archaeological community:

"Two hundred years ago, archaeology was a treasure hunt—finding fabulous things for museum collections. But we learned long ago that archaeological sites were really books to be read, pages of history. We can learn a great deal about pasts we would otherwise never know, by studying sites themselves and artifacts (simple or spectacular) in their original contexts at sites. When treasure hunters loot sites, ripping artifacts out of the ground, we lose any chance of understanding context—what was with what, its date, how it was used, what it can tell us about history—all so somebody can have a trinket on their mantelpiece."

For more information: Archaeologists Protest 'Glamorization' of Looting on TV,
Archaeologists Against New Relic Hunting Shows

Suitable for Suing -- Good one

To learn how a 55-years old art dealer, Glafira Rosales, brought down the oldest art gallery in New York, read The New York Times article by Patricia Cohen.

Global Art Conflict in New York

Cambodia has asked the United States government for help in recovering a thousand-year-old statue of a mythic warrior that sits in limbo at Sotheby’s in New York and that some experts believe was looted amid the convulsions of the Vietnam War and the killing fields of the Khmer Rouge.

For the full story, read The New York Times article byTom Mashberg andRalph Blumenthal.

Pitching an idea to e-Textbook Publishers: Trademarks through NY Restaurants

In case you missed it, there is a new book out dedicated to the mathematical beauty and geometry of pasta (George Legendre and Stefano Grazini's Pasta by Design, not to be confused with The Geometry of Pasta by Caz Hildebrand and Jacob Kenedy). It contains formulas for shapes and cooking pointers for preparing ziti, fiori and conchiglie. It was a commercially-viable idea which lead to0 many of my intelligent, and single-minded (a.k.a. nerdy) friends acquired copies of this cookbook.

How does one go from having a good idea to successful execution? As a student in my trademarks class, I was struck by at the number of cases involving restaurants that allowed our professor to illustrate concepts such as concurrent use, see Dawn Donut v. Har's Food Store (1959), dress infringement, see Taco Cabana v. Two Pesos, Inc (1992), problems with registration, see City of New York v. Tavern on the Green (2010), and abandonment, see ITC Limited v. Punchgini (2007). If only the entire textbook could contain nothing but restaurant-involving cases, it may be printed on glossy paper with mouthwatering illustrations, addresses of the establishments still in business, and may be recipes of their most popular dishes. Who wouldn't want to keep this textbook long after the law school days are over?! Otherwise, students like myself, quickly and without regret, sell used Trademarks textbook. But a restaurant guidebook with a legal flavor could generate its own following among the graduated and employed.

My idea to author Restaurant Guide to Intellectual Property Textbook surfaced again when a federal judge refused to dismiss a lawsuit by international photographer who claimed that the Vapiano Restaurant used her work to create a "sleek Italian dining concept." See our earlier post on this case.

It resurfaced during the panel on Trending Topics in Licensing and Branding presented by the Entertainment, Arts and Sports Law Section of the New York State Bar Association in January. Trademarks through Restaurants textbook can be available on an e-reader. It can be made into an app, similar to the "Our Choice" interactive app based on Al Gore's book allowing the users (or are they still readers?) to use interactive info-graphs to provide a new informational experience. If by blowing into your iPad port you can generate electricity for the device you can surely explain false association and registration requirements. As of March 1, 2012, the appetite for a textbook using only food and restaurant cases to describe trademark concepts has not been satisfied.