Art Law Report

New Publication: Éthique et patrimoine culturel—Regard croisés

Posted by Nicholas O'Donnell on February 2, 2017 at 10:56 AM

L'Harmattan has published a new volume entitled Éthique et patrimoine culturel—Regard croisés (Ethics and Cultural Patrimony: Viewpoints), which is a collection of papers presented at a conference in October, 2015 at L'Ecole du Louvre in Paris.  I spoke at the conference and submitted the full treatment of my remarks to the book entitled "Public Trust or Private Business? Deaccessioning Law and Ethics in the United States."  My co-presenters were eloquent and their expanded research and essays are well worth reading.  Copies can be ordered here.

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Topics: cultural property, Denis Michel Boëll, Ecole du Louvre, National Consultative Ethics Committee, Deaccession, Schwabinger Kunstfund, Marie Cornu, Musée de la Marine, Council of Voluntary Sales, Tehran, Baptiste Brown, Marie Berducou, Stéphane Duroy, University of Toulouse Capitole, Michel Van Praët, University of Shahid Beheshti, Philippe Durey, Arnaud Beaufort, University of Poitiers, University Western Bretagne, Nathalie Heinich, Milan, Julien Chapuis, Pinacoteca di Brera, French National Commission for UNESCO, Philippe-Henri Dutheil, University Rennes, Vincent Negri, Céline Castets- Fox, Astrid Müller Katzenburg, Sophie Vigneron, Sullivan & Worcester LLP, Events, University of Kent, Museum for Byzantine Sculpture Collections and Art, Noëlle Timbart, Dominique Jarrassé, Claire Barbillon, Gilles Ragot, University of Montreal, State Museums in Berlin, International Society For Law Research of Cultural, Edouard Planche, Emmanuelle Polack, Université Paris Sud, EY Société d’avocats, Janet Blake, Jacques Bittoun, Catherine Chadelat, Jérôme Fromageau, Vincent Gautrais, Geraldine Goffaux Callebaut, Daniel Janicot

Recap and Analysis: Responsible Art Market Initiative Launched in Geneva

Posted by Nicholas O'Donnell on February 1, 2017 at 9:35 AM

I was pleased to attend last week in Geneva “Building an Art Market for the Future—Guidelines for Countering Money Laundering and Terrorist Financing Threats” hosted by the Fondation pour le Droit d’Art (Art Law Foundation) and the Art Law Centre of the University of Geneva.  The conference was the official launch of the Responsible Art Market initiative, and offered valuable, market-focused discussion about the risks of money laundering and terrorist financing in the art market.  Refreshingly, the day’s panel discussions focused on best practices and goals, rather than the oft-heard lamentations about problems with the art market.  The implicit point that came through was a powerful one: as both private sellers and law enforcement speakers explained, art dealers are not engaged in large-scale shadowy financial dealings.  But art dealers and buyers are at serious risk of being used by criminals engaged in money laundering, which can have serious consequences.  Because willful blindness is no defense, the conference and the initiative provided valuable practical advice.

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Topics: Pierre Gabus, Anne Laure Bandle, Art Dealers Association of Switzerland, Art Law Foundation, Geneva, Sandrine Giroud, Luxembourg, Switzerland, Art Law Centre, University of Geneva, AML, Terrorist financing, Sylvia Furrer Hoffmann, Ricardo Sansoletti, Ursula Cassani, Simon Studer, Mathilde Heaton, Fondation pour le Droit d’Art, Jean-Bernard Schmid, Rakhi Talwar, Ralph Wyss, Responsible Art Market initiative, Money laundering, Stiftung Kunsthalle, Bern, Deloitte

Conference in Cambridge—“From Refugees to Restitution: The History of Nazi Looted Art in the UK in Transnational Perspective”

Posted by Nicholas O'Donnell on January 31, 2017 at 10:55 AM

I am speaking at a conference on March 23-24, 2017 at the University of Cambridge (UK) entitled “From Refugees to Restitution: The History of Nazi Looted Art in the UK in Transnational Perspective.”  My presentation will address the various national panels created in response to the Washington Conference by European countries to address claims for Nazi-looted art in state collections.  The roster of speakers is impressive (present company excluded), and it promises to be a fascinating two days.  The program is available here, and the conference website is here

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Topics: Wiesbaden, London, Holocaust Art Restitution Project, Paris, Art Recovery Group, Constantine Cannon LLP, Emily Löffler, Pierre Valentin, Events, Johannes Nathan, Karlsruhe, Marc Masurovsky, Sotheby's, Nicholas M. O'Donnell, Emmanuelle Polack, Leopold Museum, Frankfurt, Jewish Claims Conference, Victoria Louise Steinwachs, Debbie De Girolamo, Tabitha I. Oost, Bianca Gaudenzi, Jewish Museum Prague, Robert Holzbauer, Tessa Rosebrock, Staatliche Kunsthalle, Laurel Zuckerman, Shlomit Steinberg, Richard Aronowitz-Mercer, Maike Brueggen, Nathalie Neumann, Simone Gigliotti, Royal Holloway University of London, Anne O. Popham, Ulrike Schmiegelt-Rietig, Isabel von Klitzing, Landesmuseum Mainz, Michaela Sidenberg, Mary Kate Cleary, Institut National d’Histoire de l’Art, Fluchtgut, Diana Kostyrko, Elizabeth Campbell, University of Denver, Evelien Campfens, Leiden University, Angelina Giovani, Jennifer Gramer, Agata Wolska, Nathan Fine Art GmbH, Potsdam, Friederike Schwelle, Art Loss Register, Provenance Research & Art Consulting

Fake News, Fake Art?  Richard Prince Disavows Work Depicting Ivanka Trump

Posted by Nicholas O'Donnell on January 13, 2017 at 10:32 AM

There has been much discussion about the impact of the Presidential election on the art market, amidst much generalized anxiety about "fake news."  What about "fake art?"  Never one to be behind the curve, artist Richard Prince has stepped into the spotlight (to the extent he left).  Declaring that one of his controversial “New Portraits” works of Instagram posts of others that was sold to Ivanka Trump is “fake” and that he “denounce[s]” it, Prince raises interesting questions about what the legal ramifications of such a repudiation might be.  In this instance he has apparently refunded Ms. Trump’s money, but following on last year’s surprising Peter Doig trial (surprising that it got to trial, not that Mr. Doig won), a hypothetical artist making such a declaration might have some vulnerability under both common law, if not under the Visual Artists Rights Act of 1990, 17 U.S.C. § 106A (VARA)

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Topics: Richard Prince, Patrick Cariou, Visual Artists Rights Act of 1990, Art Market Monitor, VARA, Twitter, 17 U.S.C. 106A, Ivanka Trump

Geneva Event: Building an Art Market for the Future—Guidelines for Countering Money Laundering and Terrorist Financing Threats

Posted by Nicholas O'Donnell on January 9, 2017 at 11:45 AM
The Fondation pour le Droit d’Art (Art Law Foundation) is a Geneva-based group that sponsors exploration of important topics at the intersection of art and law.  Over the last few years, often in collaboration with the Art Law Centre of the University of Geneva, they have explored with particular skill a number of complex questions about the commercial components of the international art market.  As we have touted before, their events are routinely of the highest quality.  I am pleased to note the following upcoming event on January 26, 2017 at artgenève, which I am very much looking forward to attending (the program is in English).  Registration is available here.  Hope to see you there! 
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Topics: Pierre Gabus, Anne Laure Bandle, Art Law Foundation, Geneva, artgenève, Sandrine Giroud, Lalive, Events, University of Geneva, Ursula Cassani, Riccardo Sansonetti, Simon Studer, Mathilde Heaton, Responsible Art Market, Fondation pour le Droit d’Art, Marc-André Renold, Jean-Bernard Schmid, Rakhi Talwar, Ralph Wyss, RAM

Jurisdictional Law Hailed as Impetus to End Russian Art Loan Embargo that is Actually Unaffected by that Law

Posted by Nicholas O'Donnell on January 6, 2017 at 12:39 PM

With reports that Russia is considering abandoning the nearly five year old embargo on loans of cultural artifacts into the United States, the cited connection between that willingness and the recent passage of the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (FCEJICA) bears closer scrutiny that it has received to date.  If the unnecessary embargo were to come to an end it would be welcome news, but Russia’s claim that the new law is the reason is hard to square with the history of the issue.  It cannot be stated emphatically enough that the new law makes Russian art loans no more or less safe from seizure than they were before, because the law governing seizure of cultural objects (the Immunity from Seizure Act, or IFSA) has not changed.  Russia’s penchant for framing the question as something for which it needed protection is thus frustrating because it is simply incorrect.  The Russian loan embargo has been political theater from the time in began in 2012 in retaliation after Russian defendants lost a key litigation in Washington, DC, and the new law was passed in response to events that had nothing to do with Russia. 

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Topics: Alfred Flechtheim, Russia, 22 U.S.C. § 2259, Foreign Sovereign Immunities Act, 28 U.S.C. 1605(a)(3), FSIA, IFSA, Immunity from Seizure Act, Chabad, Welfenschatz, Malevich v. City of Amsterdam, Foreign Cultural Exchange Jurisdictional

Gurlitt Bequest to Kunstmuseum Bern is Upheld

Posted by Nicholas O'Donnell on December 15, 2016 at 9:48 AM

Cousin Had Challenged His Capacity to Make a Will Shortly Before 2014 Death

After a two-year legal battle, the Oberlandesgericht in Munich has upheld the dismissal of Uta Werner’s challenge to the will made by Cornelius Gurlitt in 2014 that designated the Kunstmuseum Bern as his heir, including the bequest of his controversial painting collection.  Less than six months after it was revealed in November 2013 that the Bavarian authorities had seized 1,280 objects from his Schwabing home in Munich, Gurlitt wrote a will that designated that his entire collection would go to the Swiss museum.  Barring some extraordinary appeal, the bequest will now be final and the collection will go to Switzerland.  While lifting considerable uncertainty about the fate of the collection as a whole, this development does not address the lack of clarity about the process by which the objects that are suspected of having been looted by the Nazis will be examined or returned.

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Topics: Bayern, Hildebrand Gurlitt, Cornelius Gurlitt, Nazi-looted art in Munich, SZ, Uta Werner, Nazi-looted art, Oberlandesgericht, Munich, Sueddeutsche Zeitung, Gurlitt, NS Raubkunst, Catrin Lorch, Free State of Bavaria, Kunstmuseum Bern, Washington Principles, Jörg Häntzschel, Bürgerliches Gesetzbuch (BGB)

Art Advisors are Not Always Fiduciaries—Lawsuit over Cady Noland "Log Cabin" Dismissed

Posted by Nicholas O'Donnell on December 14, 2016 at 2:25 PM

The ongoing saga between Yves Bouvier and Dmitri Rybolovlev over Bouvier’s sale to the Russian billionaire of Leonardo’s Salvator Mundi (and a recent preemptive suit by Sotheby’s against the original sellers of the work to Bouvier) has cast unusual scrutiny over the often-private relationships between art dealers, art advisors, and their clients.  Chief among the issues between Bouvier and Rybolovlev is whether Bouvier’s resale to Rybolovlev at an allegedly markedly higher price than Bouvier purchased it for constitutes self-dealing by a trusted agent, or the time-tested adage of buy low, sell high.  This is a question of great significant for obvious reasons: in private sales the collector is often relying on the expertise of the art professional.  In any fiduciary relationship, however, it is axiomatic that the fiduciary agent (like an attorney or a trustee) cannot enrich himself at the expense of the beneficiary.  Whether Bouvier is indeed a fiduciary is a fiercely debated question for another day.

A recent dismissal in New York of a case about Cady Noland’s Log Cabin provides some welcome guidance on the contours of these relationships in the eyes of the law.  The finding that the defendant owed no exceptional duty to the plaintiff is a significant pushback against the expansive view of agency that Rybolovlev, among others, has advocated.  The decision clarifies that interaction with an expert does not elevate that expert to a position of undivided loyalty.  Rather, the terms of the relationship must be on of special trust and confidence.  The duties of actual fiduciaries are not changed by this decision, but it will help professionals and collectors understand who is, and who is not, filling that role. 

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Topics: Cady Noland, Visual Artists Rights Act of 1990, VARA, conversion, breach of fiduciary duty, Yves Bouvier, Log Cabin, Dimitry Ryobolovlev, unjust enrichment, 17 U.S.C. 106A, Brett Shaheen, Janssen Gallery, Michael Janssen, Scott Mueller, Marisa Newman Projects, Wilhelm Schurmann

Looted Art Legislation—HEAR Act and Foreign Cultural Exchange Jurisdictional Clarification Act Set to Become Law

Posted by Nicholas O'Donnell on December 12, 2016 at 2:40 PM

Congress has passed and President Obama is expected to sign two bills related to looted art and the availability of U.S. courts to hear disputes over them.  The Holocaust Expropriated Art Recovery (HEAR) Act of 2016 and the Foreign Cultural Exchange Jurisdictional Clarification Act (FCEJCA, for lack of a handy acronym) were both passed without objection both the House of Representatives on December 10, 2016, and are expected to be signed by President Obama shortly.  The HEAR Act is a major shift in the law of Nazi-looted art claims specifically, while the FCEJCA is controversial but unlikely to have a broad impact one way or another.  It is perhaps most remarkable that in an era of unique partisanship and political polarization, members of Congress from both parties and the President agreed on anything, let alone unanimously (sponsors include such unusual allies as Ted Cruz, Richard Blumenthal, John Cornyn, and Charles Schumer).

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Topics: Legislation, Guelph Treasure, Alfred Flechtheim, Russia, Nazi-looted art, Foreign Sovereign Immunities Act, 22 U.S.C. § 2459, FSIA, expropriation exception”, NS Raubkunst, Restitution, World War II, State Hermitage Museum, Charles Schumer, Immunity from Seizure Act, Chabad, 28 U.S.C. § 1605, John Cornyn, Welfenschatz, Holocaust Expropriated Art Recovery Act, Richard Blumenthal, Ted Cruz, Foreign Cultural Exchange Jurisdictional, Mikhail Piotrovsky, Politico, Anita Difanis

Heirs of Nazi-Persecuted Art Dealer Alfred Flechtheim Sue Bavarian Museums

Posted by Nicholas O'Donnell on December 6, 2016 at 11:20 AM

Paintings by Beckmann, Gris and Klee Valued at Nearly $20 Million That Once Belonged to Flechtheim Are at Issue in New York Lawsuit

Sullivan & Worcester LLP has filed suit against Bavaria and its state museums in U.S. District Court in Manhattan on behalf of our clients Dr. Michael Hulton and Mrs. Penny Hulton, heirs to the renowned and persecuted Jewish art dealer Alfred Flechtheim.  The Hultons have asked the United States District Court for the Southern District of New York to restitute several paintings by Max Beckmann, Paul Klee, and Juan Gris that are now in the possession of the German federal state of Bavaria, Adolf Hitler’s and the Nazi party’s homeland, and its Bavarian State Paintings Collections (known in German as the Bayerische Staatsgemäldesammlungen, or BSGS).  We are aided in this case by our co-counsel Markus Stoetzel and Mel Urbach, Esq.

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Topics: Frankfurter Allgemeine Zeitung, Cornelius Gurlitt, Deutschlandradio. Deutsche Presse Agentur, Monuments Men, Nazi-looted art, Foreign Sovereign Immunities Act, Max Beckmann, Markus Stoetzel, Mel Urbach, Paul Klee, FSIA, Gurlitt, NS Raubkunst, Restitution, Bavaria, Sullivan & Worcester LLP, World War II, Alfred Flechteim, Bayerische Staatsgemäldesammlungen, Dr. Michael Hulton, Juan Gris, George Grosz

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