$150 Million worth of art in the trash?

Stolen to order?
Nature Mort au Chandelier, Fernand Léger, 1922

Last week it was reported that three individuals were arrested in connection with the theft of five works from the Musée d'art Moderne in Paris. The thefts took place in 2010 and there were reports that the museums alarms had been malfunctioning for months. Well the thieves may have had a very easy time stealing the art. There are reports that the five stolen works were destroyed, and that one of the works was stolen to order:

Detectives said that while they remained sceptical about his account, they could not "totally rule out" this catastrophic scenario. The destruction of such landmark masterpieces would be a major blow to international art heritage. The first to be arrested was a Serb known only as Vrejan T, 43, nicknamed "Spiderman" and who was detained days after last year's heist over a separate art theft from a chic Paris apartment. Under questioning, the suspect reportedly recounted how he loosened screws in a window at the Art Deco Palais de Tokyo housing the museum, returned a few nights later to remove the frame and sliced through a padlock on an iron grille. He had initially gone there only to steal a Léger work to order, he said, but once inside, was "surprised" when the burglary alarm failed to sound. Being a "veritable art lover," the Serb told police he then wandered around for another hour, eluding 30 closed circuit cameras to cherry pick four other masterpieces. "He found the Modigliani the most beautiful of all," a judicial source told the JDD. Vrejan T reportedly told investigators he had stolen the Léger for Jean-Michel C, 56, an antiques dealer with a shop called Antiquités Bastille. He was arrested in May for selling other stolen art works.

As a wise Museum Security Director once said: 'shit happens'. Lets hope this is the statement of a desperate defendant, and the paintings are still safe. This underscores the point that tracking down art thieves is a delicate proposition. They have a very big piece of collateral, in this case five important works of art. If you prosecute the thief too harshly, you run the risk of destroying what you were after. Of course the best way to prevent this destruction would have been better basic attention to security.

1. Henry Samuel, £100m masterpieces stolen from French museum “crushed by rubbish truck,” The Telegraph, October 9, 2011, http://www.telegraph.co.uk/culture/art/art-news/8816634/100m-masterpieces-stolen-from-French-museum-crushed-by-rubbish-truck.html (last visited Oct 10, 2011). 

The other stolen works:

La Pastorale, Henri Matisse, 1906

L'Olivier pres de l'Estaque, Georges Braque, 1906

The Pigeon with Peas, Pablo Picasso, 1911-12

La femme a l'eventail, Amadeo Modigliani

   

Symposium on litigation and cultural property in Geneva

On November 11 at the University of Geneva the Art-Law Centre will organize a symposium titled "Litigation in cultural property: judicial and alternative means of international dispute resolution". The event boasts a prestigious array of speakers, I'm sorry I'll be teaching here in Houston. Here are the details:
Program 11.11.11(web)

Student Essay on NAGPRA and 'culturally unidentified' human remains

Matthew Birkhold has won the National native American Law Students Association's 10th annual writing competition with an assay published in the William Mitchell Law Review. From the Introduction:

In recent years, NAGPRA’s characteristic equilibrium has fallen out of balance. In an effort to restore the law’s equipoise, the Department of the Interior published a new final rule, effective May 14, 2010, delineating procedures for the disposition of culturally unidentified Native American human remains in the possession or control of museums and federal agencies. In this attempt, however, the new law swung too far. By evaluating the new rule’s impact on culturally unidentified human remains, this article interrogates the notion that the new regulation is an “important step toward fulfilling the intent of Congress as expressed in NAGPRA.” Because NAGPRA itself is silent on the appropriate disposition of culturally unidentified remains, the only guidance about the intent of the new law comes from the legislative history of the Act, the Department of the Interior, and the courts. Each source establishes NAGPRA as human rights legislation designed to protect Native Americans’ rights and demonstrate respect for remains while achieving an agreeable counterpoise between the competing interests of the Native American and scientific communities.

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