Student Note on Orphaned Works and Cultural History

Brianna Dahlberg has posted a student note on orphaned works and access to cultural history in the Southern California Review of Law & Social Justice. From the abstract:

Orphan works are copyrighted works whose owners are difficult or impossible to find. They include a vast number of old works in museums, archives and libraries that are not being commercially exploited by rights holders because they are out-of-print, unpublished or anonymous, but nonetheless have cultural or historical significance. However, if the institutions cannot locate the rights holders, they cannot publish or publicly display these works without risking a copyright infringement lawsuit should the rights holders come forward in the future. This Note addresses a new aspect of the orphan works problem: its disproportionate impact on works created by racial and religious minorities, women, Native Americans and other indigenous people, and the poor. Locating rights holders for early-twentieth century works by these groups tends to be especially difficult for a variety of reasons. Minority and poor white musicians were routinely excluded from performing rights organizations until the 1940s and were less likely to register their copyrights. Women and minority visual artists often created their works apart from the established gallery system, and their artworks tend to be less exhibited and well-known. The identifying information for folk art and traditional Native American art is often lost. As a result, many of these important works remain locked away in archives and inaccessible to the public. This Note proposes a solution to the orphan works problem with the goals of promoting broader cultural access and participation in mind. I evaluate four potential approaches, and conclude that the Nordic countries’ solution of extended collective licensing would best serve the goal of promoting access to cultural works of disadvantaged groups while fairly compensating rights holders who do come forward.

Three arrested in connection with thefts from Musee d'Art Moderne

In May 2010 five works were stolen from the Musee d'Art Moderne near the Eiffel tower. Now three individuals are being detained in connection with the thefts, though the works are still missing. From AFP:

The Pigeon with Peas, Pablo Picasso, 1911-12

The three, a woman suspected of taking part in the theft and two people suspected of handling stolen goods, were arrested and charged over the robbery of the five paintings, by Henri Matisse, Pablo Picasso, Georges Braque, Ferdinand Leger and Amedeo Modigliani, and placed in custody on September 16, the official said. A lone burglar sheared off a gate padlock and broke a window to get into the city-run Musee d'Art Moderne in the brazen operation during the night of May 19 last year. The paintings were found to be missing just as the museum, a major tourist attraction near the Eiffel Tower, was about to open. Paris mayor Bertrand Delanoe later said one of the museum's alarms had been "partly malfunctioning" since the end of March, and that it was still awaiting repair when the thieves struck.

Student Note on the Visual Artists Rights Act

A part of the installation under dispute between Mass. MoCA and Christopher Buchel 

Elizabeth M. Bock has a student note in  the Michigan Law Review on the Visual Artists Rights Act. From the Introduction:

In 2010, the Court of Appeals for the First Circuit confronted the novel question of when moral rights protections vest under the Visual Artists Rights Act. In Massachusetts Museum of Contemporary Art Foundation, Inc. v. Büchel, the First Circuit determined that the protections of the Visual Artists Rights Act begin when a work is “created” under the Copyright Act. This Note argues that this decision harms moral rights conceptually and is likely to result in unpredictable and inconsistent decisions. This Note proposes instead that these statutory protections should vest when an artist determines that his work is complete and presents it to the public. This standard is more consistent with the history of moral rights. Additionally, public access is necessary to justify a treatment of art different from that of other types of property, and it is a more essential component of moral rights than an artist’s feelings of connection to his work. Finally, the legislative intent behind the Visual Artists Rights Act and the reasoning in previous judicial decisions are more accurately reflected by a public disclosure standard. Utilizing “creation” as a vesting point for moral rights is not supported by the history of the Visual Artists Rights Act and will result in uncertainty and inconsistency in future decisions.

Institute of Art and Law Events in New York and London

The Institute of Art and Law will be putting together a panel in New York on art recovery and later a "Study Forum" on Art and Antiquities Law in London. Both are highly recommended, and well-worth the small fees. Here are the details:

New York – 16^th November

New Dimensions in Art Recovery –

a joint conference

convened by IAL and Herrick Feinstein LLP

Claims against possessors of art continue to proliferate. The impulse to unravel transactions in stolen art has inspired new legal maneuvers and defenses. While museums are obvious front-line defendants, the legal risks and ethical pressures also affect private collectors, governments, recovery agencies and insurers. They also provide unprecedented opportunities for claimants.

The aim of this seminar is to inform practicing lawyers and museum staff about initiatives that are being taken to diversify the practice of art recovery in a trans-Atlantic context. Eminent practitioners from the US and the UK will report on  approaches to litigation within each jurisdiction to highlight the differences and similarities between them.

Full programme available here – reserve a place here or email us at info@ial.uk.com

London, Saturday 26^th November 2011

Art and Antiquities Law – a Study Forum

At this Study Forum a panel of specialised speakers will examine aspects of the law relating to art and antiquities, including criminal law (theft, handling, money laundering, the Dealing in Cultural Objects (Offences) Act), contract (formation, exclusion and limitation clauses), international conventions.

Further details available here or to reserve a place, click here or email us at info@ial.uk.com 

5 Years

Five years and counting, thanks for reading:

http://illicit-cultural-property.blogspot.com/2006/09/from-buddha-to-scream.html

Frescoes to Return to Cyprus from the Menil

The Byzantine Frescoes on Display at the Menil

Some cultural repatriation news from my neighborhood. The Menil has announced that it will return the byzantine mosaics  frescoes currently housed in a custom-built chapel here in Montrose in Houston. In 1983 Dominique de Menil was offered frescoes from Cyprus. After a rigorous due diligence inquiry, it was discovered that the mosaics had been looted from Cyprus. And in a groundbreaking move, she worked with the theft victim, the Greek Orthodox Church of Cyprus to purchase the mosaics, to restore the damage done to them when they were looted. The mosaics have been displayed since 1997, but next year they will return to Cyprus to go on display in a new museum, though they sadly cannot be returned to the original church, for fear it might be disturbed again.


Menil Director Josef Helfenstein announced in a letter:

After more than two decades in Houston, the beloved Byzantine frescoes will go back to Cyprus in 2012. While this moment is bittersweet, the story of these frescoes—from their rescue, to their long-term loan to us, and now to their return—very much reflects the essence of the Menil Collection, its focus on the aesthetic and the spiritual, and our responsible stewardship of works from other nations and cultures

When we consider when this decision took place, in the 1980s during an era in which so many wealthy collectors bought so much looted art, this long-term lease and 'rescue' of the frescoes really stands apart and should be commended.

I haven't read this in any of the reporting on the Menil, but I've wondered whether there is other art at the Menil which might have been acquired under suspect circumstances. In the antiquities room in the Menil there are a number of works also purchased during this period which might be suspect—red-figured vases, small pre-historic carvings of deities, cycladic figurines. The kinds of objects that were ubiquitous in the market in the 1970s and 1980s, and which we now know were likely looted. These objects may have been lawfully acquired, but its an indication of just how many objects were looted and sold to collectors at this time, and how far law, policy, and behaviors have changed. So I'll cheer the return of these mosaics, and their responsible stewardship but I also wonder, should other objects go back?

The Original Location of the Frescoes in Cyprus

1. Douglas Britt, Houston’s Menil is returning holy artworks to Cyprus - Houston Chronicle Houston Chronicle (2011), http://www.chron.com/life/article/Houston-s-Menil-is-returning-holy-artworks-to-2186452.php#photo-1621133 (last visited Sep 27, 2011).
2. Bill Davenport, Space-Age Chapel Will Need New Art: Menil’s Byzantine Frescos a Go-Go Going Glasstire (2011), http://glasstire.com/2011/09/24/space-age-chapel-will-need-new-art-menils-byzantine-frescos-a-go-go-going/ (last visited Sep 27, 2011).
3. Elisabetta Povoledo, Menil Collection Is to Return Frescoes to Cyprus, New York Times (2011), http://www.nytimes.com/2011/09/24/arts/design/menil-collection-is-to-return-frescoes-to-cyprus.html?_r=1 (last visited Sep 27, 2011).
4. Kelly Crow, Houston’s Menil Collection to Return Frescoes to Cyprus The Wall Street Journal (2011), http://online.wsj.com/article/SB10001424053111903703604576587072924927678.html (last visited Sep 27, 2011).

Footnotes

The Cardo Maximus in Apamea in Syria

• Widespread looting in Libya has not taken place, but perhaps not enough attention has been paid to Syria, where several sites in the city of Apamea have been vandalized and looted according to Syria's news agency.
• The Minneapolis Institue of Arts announced last week that it will repatriate a "star" krater to Italy which appeared in Medici polaroids, and was acquired in 1983 by Robin Symes.
• The Getty will repatriate two objects to Greece, unsolicited. Does that mean James Cuno is 'kindler and gentler'? David Gill thinks this "makes sense", and as usual has more questions (but no answers).
• ARIS announces a global art fund (Artemundi) will use title insurance as "part of its standard risk management protocol".
• Applications for the VLA's Art & Law Residency Program are due Oct. 17.
• The story of Montreal's art-theft unit:

On a two-week trip to Paris, Mr. Lacoursière found himself loitering in the Musée d’Orsay and the Louvre, which were in so many ways the exact opposite of his beat at home where he toured the dirtiest corners of the human psyche. He returned to Montreal, vowing to find a way to incorporate his long-time love of art with his police work. So he enrolled in an art history night course at a local university.

•  Lee Rosenbaum is fired up that the city of Denver is selling four works by Clyfford Stills but did not give public institutions enough time to purchase the works (here's my remedy). 
• A Goya found, under a Goya.
• A Renoir has been stolen here in Houston.
• A terrific profile of Sada Mire who is uncovering a rich array of rock art in Somalia:

She has a fellowship in the department of art and archaeology at the School of Oriental and African Studies in London and is head of the department of antiquities in the breakaway territory of Somaliland, in the north-west region of Somalia. She is the only archaeologist working in the region.

It's a remarkable journey for a girl who fled Mogadishu in 1991, aged 14, as Somalia descended into the chaos of civil war. Driving her forward is the urge to uncover and preserve a cultural heritage that has been systematically looted, both in colonial times and more recently by warlords trading national heritage for guns.