Archive for the ‘art law’ Category

The Moral Commitment to Return Artwork Wrongfully Taken By the Nazi Regime

May 1, 2019

 

 

pisarro-museo

The painting at issue, as shown on the collections pages of the Thyssen-Bornemisza National Museum.

 

The moral commitment to return an impressionist painting sold under coercion was undermined by the law of Spain, according to a report by the Art Newspaper. The painting at issue, Camille Pissarro’s Rue St. Honoré of 1897, was forcibly sold by the original Jewish owner for a mere $360 so that she could obtain an exit visa to escape Nazi Germany.

The 1976 sale of the painting in New York to Baron Hans Heinrich Thyssen-Bornemisza raised “numerous red flags” said the judge in the case. Nonetheless, the U.S. Second Circuit Court of Appeals determined that Spanish law applied.  According to the decision, Spanish law requires that the buyer, Thyssen-Bornemisza, had to have “actual knowledge” of the earlier wrongful acts to effectively nullify the current ownership. The court did not find that there was actual knowledge of the earlier coerced sale, and therefore decided that the painting is owned by the Thyssen-Bornemisza National Museum of Spain.

Thyssen-Bornemisza National Museum, according to the museum’s website, originally consisted of “Europe’s largest private art collection.” The collection was purchased by the government of Spain and moved to Madrid in 1992. The painting was apparently purchased by Spain in either 1992 or 1993 from Baron Hans Heinrich Thyssen-Bornemisza.

Although Thyssen-Bornemisza National Museum already issued a “refusal to return the painting,” the judge’s statement implies that the right thing for the museum to do would be to return the painting to the heirs of Lilly Cassirer Neubauer. Given the prior refusal, this seems doubtful.

Spain is a signatory to the international commitment to return Nazi looted artwork, known as the Washington Principles. However, Artnet reports that Spain is one of a handful of countries that has “made the least effort towards upholding the Washington Principles and returning looted works.” The question is whether Spain will step up now and honor its “moral commitments” or not.

 


The Art Newspaper | Laura Gilbert May 1, 2019. https://www.theartnewspaper.com/news/thyssen-bornemisza-collection-can-keep-a-painting-that-the-nazis-stole-us-judge-rules

Thyssen-Bornemisza Museo Nacional https://www.museothyssen.org

Washington Conference Principles on Nazi Confiscated Art, 1998, Bureau of European and Eurasian Affairs, U.S. Department of State https://www.state.gov/p/eur/rt/hlcst/270431.htm

It’s Been 20 Years Since the Creation of the ‘Washington Principles’ to Return Nazi-Looted Art, Artnet | Sara Cascone, Nov. 27, 2018  https://news.artnet.com/art-world/washington-principles-nazi-looted-art-agreement-turns-20-1403614

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What a Nightmare: SOPA H.R. 3261

January 18, 2012

As the subject of today’s protests across the internet, SOPA – the Stop Online Piracy Act – is a appalling piece of proposed legislation.  The full text of the proposed Act is here.

SOPA has a savings clause designed, in theory, to prevent its provisions from violating Constitutional rights.

FIRST AMENDMENT- Nothing in this Act shall be construed to impose a prior restraint on free speech or the press protected under the 1st Amendment to the Constitution.  (SOPA, Section 2 (a) (1) emphasis added).

Yet, provisions of the bill seem to present a clear potential for the prior restraint of speech–in violation of the First Amendment.  For example, this  includes SOPA’s provisions for the use of Search Engines to essentially censor content within 5 days of a court’s order–a restraining order that can be issued prior to a full review, trial, or hearing.

INTERNET SEARCH ENGINES- A provider of an Internet search engine shall take technically feasible and reasonable measures, as expeditiously as possible, but in any case within 5 days after being served with a copy of the order, or within such time as the court may order, designed to prevent the foreign infringing site that is subject to the order, or a portion of such site specified in the order, from being served as a direct hypertext link. (SOPA, Sec. 2 (c)(2)(B) emphasis added).

A search engine company served with the restraining order must remove links to the website within 5 days.  In other words, the search engine is required to exclude the allegedly infringing site from being found in a Google search, e.g.,–essentially hiding the content from the public.

SOPA would enable a  court to issue an restraint order before any trial or hearing has occurred–in other words, before there has been a determination of whether or not the defense of fair-use may apply.  Therefore, if it turns out later that the material was not an unlawful infringement, if it was a parody for example, then the court order would have effectively restrained protected speech without due process.

As a reminder…the First Amendment ensures that: “Congress shall make no law…prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press…” (Emphasis added).

It may be that the Act is almost self-canceling on the point of Congressional interference with speech rights.  Despite the savings clause, the bill is not narrowly drawn and there does not appear to be sufficient limitations to prevent a potential restraint of protected speech.  If it passes, SOPA seems sure to promote an avalanche of expensive and time consuming litigation.

Just a few more provisions to ponder (with emphasis and some comments added):

(a) Definition– For purposes of this section, a foreign Internet site or portion thereof is a `foreign infringing site’ if–

(1) the Internet site or portion thereof is a U.S.-directed site and is used by users in the United States;

(2) the owner or operator of such Internet site is committing or facilitating the commission of criminal violations punishable under section 2318, 2319, 2319A, 2319B, or 2320, [criminal copyright infringement] or chapter 90 [protection of trade secrets/intellectual property rights], of title 18, United States Code; and

(3)  the Internet site would, by reason of acts described in paragraph (1), be subject to seizure in the United States in an action brought by the Attorney General if such site were a domestic Internet site.

(SOPA, Sec. 102, emphasis and bracketed comments added).

 The Attorney General can commence an action under SOPA simply “on notice” to the following:

 (A) to the registrant of the domain name of the Internet site…

 (B) to the owner or operator of the Internet site…

(C) in any other such form as the court may provide, including as may be required by rule 4(f) of the Federal Rules of Civil Procedure…

(Sec. 102 (b)(3)).

Updated/revised 1/18/2012

Lawsuits Over Unpaid Artist Royalties

November 1, 2011

Whenever a work of fine art is sold and the seller resides in California or the sale takes place in California, the seller or the seller’s agent shall pay to the artist of such work of fine art or to such artist’s agent 5 percent of the amount of such sale.   (California Civil Code §986(a)).

As the New York Times reported today, as a class action plaintiff, Chuck Close  is suing auctioneers Sotheby’s, Christie’s and eBay in relation to the section of the California Art Resale Royalties Law quoted above. If an art seller resides in California, the obligation to pay the royalty may include sales that occurred outside of the boundaries of California as well, and potentially, some sales of American artwork that may have occurred outside of the country.

According to the report, two related lawsuits for failure to pay royalties to artists seek disclosure of the identities of art sellers–including sellers who live in California– and by extension, seek to identify sellers who did not pay the required 5% royalty to artists on profitable sales.   Knowledge of seller identities is critical for enforcing the law and ensuring that artists’ rights to the royalty payment have not been violated.  The information concealed by the auctions is, as attorney Eric George noted, “the very information necessary to know whether a royalty is due.”

The same article also notes that only a shockingly small sum of art royalties have been paid under the law– a mere $328,000 over 34 years.  Clearly not all who should have paid did so.

See Artuntitled.com for more information about the California Art Resale Royalties Law.

Friction as Artists File Suit Over Resale Royalties” by Patricia Cohen, New York Times, November 1, 2011.

California’s Art Resale Royalties

September 19, 2011

In regards to yesterday’s posting, one concern is the effect that such corporate oriented changes to Federal artist rights would have on similar state laws.   Depending upon the scope of a Federal law, it could potentially preempt (override) an overlapping state law.  If so, it would be particularly detrimental to California artists who already have a right to receive royalties upon the resale of their artwork.

The California Arts Council (CAC) is the agency that manages the art resale law.  Here’s a seller’s guide about paying the royalties, when it is required and how to do it.  A few of main points are that the sale must occur in California and that the seller has experienced a gain in the sale.  The resale royalties are only required when the artist is a U.S. citizen or an established California resident, and is still living or no more than 20 years have passed since the artist’s death.  Another condition is that the artwork is sold for more than $1000 or exchanged for property with a fair-market value of the same or more.  If the artist or heirs cannot be found by the seller, the California Arts Council holds the funds on behalf of the artist for 7 years.  If the funds are not retrieved, then they eventually revert to CAC for the purpose of public arts projects.

See:  The California Arts Council (http://www.cac.ca.gov) and especially the section on the resale royalties law.

CAC’s list of artists who have not claimed their resale royalties.  (Interestingly, it includes some well-known names).

Backhanding Artists’ Rights

September 18, 2011

A for-profit corporation proposes profit increasing legislation under the guise of artists rights:

The Art Newspaper reports that a corporation known primarily for its copyright licensing business is lobbying Congress in support of Federal legislation that would create art resale royalties. Artists have sought a law whereby subsequent sales of a physical artwork would mandate a small royalty fee to the artist of the work.  Generally, such fees are only paid during the lifetime of the artist of the artwork.  However, this is not necessarily the goal or result of the Federal legislation now.   It is apparently proposed  under the guise of artists rights or droit de suite, but in this case, it belies the probable aim of the proposed law– the increase of corporate profits.

The lobbying effort is apparently supported by the Artists Rights Society, which despite its name is not a grassroots or artist-based rights organization.  Rather, Artists Rights Society is a for-profit company whose primary business is copyright licensing.  Artists Rights Society, Inc., (ARS) is listed on the New York Department of State website as a (for profit) business corporation.

Not to confuse the proposed law with, for example, the California resale royalties law, the ARS supported Federal legislation apparently has a drive-a-truck-through-it sized exception for galleries and dealers.  In other words, galleries and dealers would not have to pay the resale royalty to artists.

Although this author strongly supports resale royalties for artists, I particularly oppose the ARS supported legislation because it would be detrimental to most working artists and because it excludes the primary generators of potential royalties– galleries and dealers.  The ARS supported legislation is far too exclusionary and would not benefit any artists whose work is sold by a gallery or dealer.  This would likely subject only auctions and private party hand-to-hand sales to the royalty payment, the later of which are somewhat atypical and often unreported.  The legislation seems designed to primarily benefit ARS and the like, rather than average artists, and seems to be geared in part towards ARS’ side business of artist representation.  In other words, it appears that as ARS (and other such businesses) may be the true recipients of the royalty payments gained from art sales.  It certainly isn’t clear if ARS would pay the revenue to any of the (living) artists that it may represent, but it seems not.  It would be interesting to see the terms of ARS’ representation contracts.

The Art Newspaper says, quoting John Henry Merryman in part:

“The rights collecting associations, the principal lobbying force for enacting the resale right in the US and abroad, would break out the champagne and dance in the streets,” if the resale law was made legal.

Legislation that provides for a Federal resale royalty should be for the interest of the average visual artist, as real support for the progress of the arts, rather than as profit for the exclusive few and corporate business interests.  (See U.S. Constitution, Art. I. § 8 (8)).  Progress in the arts depends upon artists, not licensing companies.  I do not support this legislation and I encourage artists to not settle for a so-called rights law that does not protect or adequately recognize their interests.