TheArtLawReviewEdition1-1

Preface

We have been practising art law since before it became a field, having started in the early 1970s. We believe our own professional journeys serve to illustrate some of the ways this area of law has grown and developed, so we would like to briefly share some of our experiences.

Larry first entered this field as a summer associate at the firm of Botein, Hays, Sklar and Herzberg in 1969. On reporting for duty at this first legal job, he was introduced to a brilliant attorney, who ended up serving as a revered mentor for both of us for many years to come, Harry Rand. Harry was representing the Weimar Art Museum, located in what was then East Germany, which was seeking to recover two paintings by Albrecht Dürer that were taken during the Second World War by US soldiers from a castle in which the paintings had been placed for safekeeping. East Germany (officially the German Democratic Republic), which owned the museum, sued a negligence lawyer residing in Brooklyn, New York, who had purchased the works from a US soldier who appeared at his door one day in 1946.

As it turned out, this was the first case of a foreign sovereign suing in the United States to recover cultural property. It involved many legal issues that took some 15 years to resolve finally in favour of East Germany, to which the paintings were ordered to be returned. The legal principles established in the Weimar Museum case continue to be cited in cases involving the recovery of artwork and other cultural property, especially those relating to the statute of limitations, and Weimar Museum stands as one of the iconic cases in this area of law.

During the pendency of the case, Howard joined Botein and started a professional relationship with Larry that has spanned many decades.

Our success in the Weimar Museum case and the publicity surrounding it attracted the interest of the Republic of Turkey, which was in a dispute with the Metropolitan Museum of Art (the Met) regarding a remarkable collection of ancient jewellery and other artefacts on display in the Met, which had been looted from caves in Turkey many years before. It turned out to be one of the leading cases involving the restitution of antiquities looted from foreign sovereigns, which led to a worldwide interest in trying to prevent such looting from countries around the world.

We sued the Met on behalf of Turkey and a six-year litigation ensued, largely spent defending dismissal motions brought by the Met on the grounds of the statute of limitations and other technical defences. But after we got past all that time-consuming and expensive motion practice, we then commenced the long discovery process, whereby we obtained information from the Met’s own files about its knowledge of the objects’ provenance or history, and its conduct in acquiring them. Nonetheless, the case presented significant obstacles for us. It was, after all, one of the first major cases brought against a major museum by a foreign government to reclaim looted cultural property. Indeed, at the time of its inception, most commentators were openly questioning how a previously undiscovered and undocumented collection of antiquities could be identified as having been looted from Turkey, let alone recovered.

However, we did prevail and the antiquities, known as the Lydian Hoard, were returned to Turkey in 1993 and exhibited at one of the great Turkish antiquity museums, the Museum of Anatolian Civilizations in Ankara, where it was greeted with great interest and excitement by Turkish visitors to the museum as well as those from other countries. We were privileged to visit the museum when the objects were displayed there, and we cannot adequately describe the excitement displayed by the Turkish viewers. Once the director revealed to them that we and our colleagues had assisted the government in securing the return of the objects, many people came over to thank us personally for helping to ensure that this important part of their heritage had been returned, to be viewed and appreciated by the Turkish people. The Lydian

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Hoard case is considered by many as the starting point for the efforts by art-rich countries to reclaim their cultural property, which have continued and increased to this day.

As that case was ending, Botein closed shop and we joined our current firm, Herrick, Feinstein. We brought what was now a growing caseload of restitution work to Herrick, which until that time was a very successful firm that had no experience with art law. Indeed, there were still only a very few attorneys who regularly practised in this area of law.

By the mid 1990s, we were certainly known as art lawyers, particularly in the area of restituting looted antiquities to their country of origin. But then, for various reasons, the world’s attention started to turn back to the Nazi era before and during the Second World War, and it became clear that the Nazis not only committed the most horrendous crimes against humanity, but they also committed the most extensive theft of cultural property in modern human history. As restitution experts, it was a natural fit for us to become involved in cases brought to recover artworks looted by the Nazis so that they could finally be returned to the families of the victims of the Holocaust. We would like to briefly mention two of those cases.

We were retained to handle one of the first important cases involving Nazi-looted art, representing the family of an art dealer who escaped from Austria after having had one of her paintings stolen by a Nazi agent. The painting by Egon Schiele is known as Portrait of Wally. The case started when the Wally was seized from the Museum of Modern Art (MoMA) in New York by state and then federal prosecutors after it was brought to the United States as part of an exhibition of work by Schiele in the collection at the Leopold Museum in Vienna.

Even though it took more than 10 years for the Portrait of Wally case to be finally resolved, it had an enormous influence from the moment it started. The fact that a loaned artwork at MoMA could be seized by US government authorities sent shock waves throughout the world and was a major factor in causing governments, museums, collectors and families of Holocaust victims to focus their attention on Nazi-looted art. Less than a week before the scheduled trial, the case was settled on three major terms:

athe Leopold Museum paid the family US$19 million, reflecting the true current value of the painting, in return for the surrender of their claim;

ba ceremony and exhibition was held at the Museum of Jewish Heritage in New York for three weeks before Portrait of Wally was returned to Austria; and

cthe Leopold Museum agreed that signs would be permanently affixed next to Portrait of Wally at the museum and wherever it might be exhibited anywhere in the world, explaining the true facts of the painting’s ownership history.

Shortly after the Portrait of Wally case commenced, we assisted the sole living heir of the renowned Dutch art collector and dealer, Jacques Goudstikker, to recover an extraordinary collection of Old Master paintings that had been looted during the Second World War by Herman Goering, who was second only to Hitler in the Nazi regime. With the adoption in 1998 of the Washington Principles, a non-binding international convention that for the first time brought together 44 nations in an effort to foster the restitution of property looted during the war, the Netherlands adopted a new restitution regime designed to right the wrongs of the past. To make a very long story very short, we assisted Marei von Saher in her Dutch restitution proceedings, and in 2006 we were able to effect the return of 200 works to her.

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We also became involved in major art restitution cases brought against foreign sovereigns, which involved the Foreign Sovereign Immunities Act, a law that has been used in numerous cases since then as the basis for suing foreign sovereigns to recover artworks in their possession.

Over the years, we have also developed a wide-ranging practice in non-restitution art disputes, from simple breach of contract cases to more complex disputes involving dealers, collectors, artists and other art world stakeholders covering a wide range of disputes including trademark and copyright infringement, defamation, moral and visual rights, breach of warranty, misattribution, tax and trust matters, valuations, appraisals, experts and auctions.

We also became involved in the transactional side of art law. This aspect of our practice expanded when our restitution clients began asking us to handle transactions involving the sale and other disposition of major artworks and collections we had recovered for them. The transactional side included not only private treaty sales and auction sales, but also estate planning, providing tax advice, assisting not-for-profit entities, planning nationwide and international loans and exhibitions, and advising banks and collectors on using artworks as collateral for bank loans, among many other cutting-edge art law issues.

A sampling of the varied transactional matters we have been privileged to work on is a microcosm of the range of transactional matters that specialist art lawyers came to handle as the international art market expanded. To name but a few: we represented the Neue Galerie in New York in the acquisition of the famed Woman in Gold painting by Gustav Klimt, depicted in the film of that name, which has become the Mona Lisa of that museum’s collection, regularly attracting huge numbers of visitors; we represented the European Fine Arts Foundation (TEFAF) in the creation of its New York Fall 2016 Art Fair; we represented the Malevich heirs in numerous auction sales during the course of 15 years, including the US$60 million sale of Suprematist Composition (1916), which set a world record for Russian art; we represented the Estate of Frances Lasker Brody in the historic sale of its art collection at Christie’s (the highlight of which was a Picasso masterwork, Nude, Green Leaves and Bust, which sold for a then auction record of US$106.5 million); we represented a private art collector in one of the largest transfers of Mesoamerican art to a museum, and advised the collector’s foundation dedicated to the study and advancement of Mesoamerican art; and we conducted an internal investigation on behalf of an internationally recognised art gallery concerning the authenticity of certain paintings bought and sold by the gallery.

Turning now to this Review, we open the volume with substantive chapters that present an overview of current and significant issues in some important areas of art law:

acultural property disputes;

bthe art market;

cart authentication;

dart and technology;

einternational copyright issues;

fmoral rights; and

grecent trends in art arbitration and mediation.

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We then present reports on recent art law developments in 21 key countries. Each country’s report gives a review of hot topics, trends and noteworthy cases and transactions during the past year, then examines in greater depth specific developments in the following areas: art disputes, fakes, forgeries and authentication, art transactions, artist rights, trusts and foundations, and finally offers some insights for the future.

We hope you enjoy reading all of these excellent contributions.

Lawrence M Kaye and Howard N Spiegler

Herrick, Feinstein LLP

New York

December 2020

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Part I

GENERAL PAPERS

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Chapter 1

CULTURAL PROPERTY DISPUTES

Leila A Amineddoleh1

ITURBULENCE IN THE ART WORLD IN 2020

iControversies in cultural institutions

The year 2020 has been a turbulent one for art and cultural heritage, in large part because of two major global events: the covid-19 pandemic and the Black Lives Matter movement. The pandemic has led to major financial concerns for cultural institutions around the world, leading some museums to close permanently. Most surviving institutions have experienced intermittent periods of closure and a significant loss of revenues and donations. With budget concerns looming overhead, museums now face challenging financial decisions and must evaluate their current programming and acquisitions. In some instances, some institutions have made the difficult decision to deaccession, or sell, works of art from their permanent collections. The Association of Art Museum Directors (AAMD) generally prohibits this practice unless certain requirements are met, such as sales proceeds being used solely for art acquisitions. However, during an economic or global health crisis, particularly one a global scale, it may not be feasible for institutions to abide by these restrictions. The loss of revenue during covid-19 lockdowns made it impossible for museums to maintain their budgets, compensate employees and properly care for the items in their collections. This troubling scenario led the AAMD to temporarily loosen its restrictions, announcing that museums would not be penalised for deaccessioning art ‘to pay for expenses associated with the direct care of collections’.2 This measure, which started in April 2020, will be in effect for two years. Notably, the Brooklyn Museum took advantage of the new guidelines and consigned 12 works for sale at Christie’s in October 2020, in a high-profile sale.3

In addition to the past year’s fiscal challenges for cultural institutions, ethical considerations have also played a prominent role. International debates concerning controversial donors and gifts, the composition of museum boards and the ethics of displaying and collecting art and cultural heritage all took place. Museums faced protests related to the funds obtained from donors with problematic pasts, such as the Sackler family, which has been criticised for its role in the US opioid crisis. As the owners of the Purdue Pharma company, the family has been viewed as being responsible for deceiving the public about the safety of OxyContin, a highly addictive painkiller that has led to thousands of deaths and crippling drug addiction across multiple states. The family’s role in manufacturing the

1Leila A Amineddoleh is the founder of Amineddoleh & Associates LLC.

2https://aamd.org/for-the-media/press-release/aamd-board-of-trustees-approves-resolution-to-provide- additional.

3www.nytimes.com/2020/09/16/arts/design/brooklyn-museum-sale-christies-coronavirus.html.

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drug also led to the growth of vast wealth and donations to high-profile cultural institutions in the United States and abroad. Although the Sackler name has been scrutinised for years now, the fallout from Purdue Pharma’s closure4 has led to fervent calls for the removal of ‘toxic philanthropy’ from cultural institutions. Some museums, such as the Louvre and Tate Modern, have already removed the Sackler name from their walls,5 and other institutions may follow suit.

Another debate in the cultural realm over the lack of diversity in art institutions has been intensified by the Black Lives Matter movement calling for more diverse museum boards. Black trustees at art museums have joined forces to form the Black Trustee Alliance for Art Museums in an effort to recruit more Black directors, collect works by Black artists and to cultivate Black curators.6 Although more diverse than they were five years ago, museum leadership roles and boards are still predominantly white. Employees at museums across the United States have demanded more diversity and representation within the institutions and for these establishments to eradicate racism from within their organisations.7 This lack of diversity is also reflected in museum collections. The aim of initiatives such as the Black Trustee Alliance is for increased diversity on museum boards and the hiring of a more diverse group of curators to lead to a change in acquisition determinations and the allocation of funds. Yet these discussions have an effect beyond the Black community. Advocates have alleged that museums violate ethical practices concerning Native American objects when curators fail to confer with tribal representatives prior to their display. It is also derogatory for museums to refer to indigenous art as ‘primitive’ or ‘tourist art’ rather than fine art.8 The controversies surrounding these artefacts are broader than those surrounding visual arts as they also affect performance arts companies and venues.9 The art world can expect ongoing discussions for years to come as institutions continue to diversify their programming and attempt to accurately and respectfully represent diverse cultural backgrounds.

ii The repatriation of artefacts

Although present for decades, the call to return looted artefacts has intensified during the past year. The debate encompasses difficult discussions about artefacts taken during periods of armed conflict or colonialism, or those removed in contravention of national or international laws. Amid criticism about the development of museum collections as a result of violence and colonialism, a number of institutions have returned artefacts to origin nations (the places from which the objects were removed). For example, the Netherlands recently announced it would repatriate thousands of items from its museums to the former colonies from where they were forcibly taken. In January 2020, the Netherlands returned 1,500 historical

4The company faces three criminal charges and has agreed to pay US$8 billion in penalties; www.cnn.com/2020/10/21/business/purdue-pharma-guilty-plea/index.html.

5https://news.artnet.com/art-world/sacklers-name-museum-met-1917814.

6www.nytimes.com/2020/10/09/arts/design/black-trustees-art-museums-diversity.html.

7https://hypebeast.com/2020/9/art-museums-steps-to-address-racism-exclusive-interviews.

8id.

9www.washingtonpost.com/entertainment/theater_dance/challenged-to-examine-their-white-bias-some- theater-companies-are-taking-on-diversity--from-the-top/2020/09/16/4d094120-f6a1-11ea-a275- 1a2c2d36e1f1_story.html; https://news.psu.edu/story/633085/2020/09/24/arts-and-entertainment/ center-performing-arts-shares-statement-and-plan; https://lincolncenter.org/lincoln-center-at-home/ message-on-our-commitment-to-change.

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artefacts to Indonesia.10 According to Hilmar Farid, the Director General of the Ministry of Education and Culture of Indonesia, ‘This is the first time in the history of Indonesia that Indonesian cultural objects or artefacts that were taken [to the Netherlands] are returned . . . Hopefully this paves the way for the return of objects in other European museums.’11 The Dutch nation also committed to the return of objects to another former colony, Sri Lanka. However, repatriation is complicated due to a lack of information about the rightful owners of the repatriated goods. The Netherlands is struggling with whether to return the objects to the nation of Sri Lanka or to the descendants of the original owners. This is made more challenging given the scant historical record supporting facts around the objects’ prior ownership and the exact circumstances of their removal.12

Conversations about repatriations are occurring all over the world in light of the global Black Lives Matter movement, protests over controversial monuments and the recognition that some museums are comprised of colonial takings. While some institutions may have noble intentions of returning controversial objects, it is sometimes difficult to identify the rightful owners. For instance, borders and governmental entities have changed during the decades or centuries that have passed since the objects were transferred from their original location. One prominent group of works in the restitution debate that has attracted attention during the past few decades is the Benin Bronzes.13

The Benin Bronzes are perhaps the best known works of art from West Africa. A group of over a thousand masterful creations by the Edo people, the works were fashioned between the thirteenth and eighteenth centuries. They decorated the royal palace of the Kingdom of Benin (today part of modern-day Nigeria). However, most of the works were looted in 1897 by British forces during a punitive expedition14 that took place during the ‘Scramble for Africa’.15 As a result, 200 of the Benin Bronzes were transferred to the British Museum while the rest were purchased by cultural institutions and private buyers in Europe and the United States. According to Dan Hicks, curator of the Pitt Rivers Museum at the University of Oxford, approximately 160 museums around the world currently possess objects forcibly taken from Benin.

Since gaining independence in 1960, Nigeria has continued to demand the repatriation of the Benin Bronzes.16 The nation’s fight for repatriation has gained widespread attention during the past few decades as museums have returned other culturally significant artefacts to origin nations. Nigerian officials believe repatriations are imminent as international protests raise awareness of historical cultural thefts from Africa and their negative impact on African

10www.thejakartapost.com/news/2020/01/07/netherlands-returns-1500-historical-artifacts-to-indonesia.html.

11id.

12www.reuters.com/article/us-netherlands-colonial-artwork/dutch-ready-to-give-back-seized-colonial-art-but- to-whom-idUSKBN26Y1A8.

13The name is a misnomer as the pieces are mostly made of brass, while some are made of a mixture of other materials, including bronze, wood and ceramic.

14The expedition was in retaliation for the massacre of British officials who entered Benin City, against warning, during a ritual.

15The period between 1885 and 1914 when European colonisers partitioned the largely unexplored continent of Africa into protectorates, colonies and ‘free-trade areas’.

16www.cnn.com/2018/11/26/africa/africa-uk-benin-bronze-return-intl/index.html.

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communities that have no access to artistic or historical depictions of their heritage.17 The nation is readying a new museum to display the valuable objects once they are repatriated, signalling its commitment to providing local communities with access to these unique pieces.

Other UK museums have also been called to task to return looted artefacts to Africa18 and other nations.19 Some critics have also used this opportunity to demand the repatriation of the Parthenon Marbles, violently removed from the Parthenon over two centuries ago and displayed at the British Museum ever since.20 The trend in France is the same, as the nation has also been at the forefront of discussions about looting from African countries.21 The Sarr-Savoy report, published in 2018, was a major step in this direction. Similarly, US institutions are restituting looted or questionably acquired items. In one case, the University of Pennsylvania’s Penn Museum has removed a collection of human skulls from view and has vowed to repatriate or rebury the skulls.22

IIPRIVATE CULTURAL HERITAGE DISPUTES

iNazi-looted art

The theft and destruction of art committed by the Nazi Party is unparalleled in modern history, and thus legal systems around the world are still grappling with ways to return property to rightful owners and compensate those who suffered losses. One of 2020’s most watched art disputes involves a rare and valuable collection of religious works that was purportedly sold under duress during the Nazi era. Although the sale occurred in the 1930s, prior to Nazi control of Germany, the heirs filed suit against the Republic of Germany in the United States to recover the items. The US Supreme Court agreed to hear Philipp v. Federal Republic of Germany,23 a case that will have far-reaching consequences for Holocaust-looted art claims. The litigation concerns the Guelph Treasure, one of the most important collections of medieval German ecclesiastical art. It was named after the House of Guelph, which had owned the works since 1671. The princely house sold the collection, then comprised of 82 objects, to a consortium of four Jewish art dealers, for 7.5 million Reichsmarks in 1929. During the following years, a number of items from the collection were sold to private collectors and museums.

In 1935, the remaining 42 pieces of the collection were sold for 4.25 million Reichsmarks to agents of Hermann Göring.24 Göring then presented the Guelph Treasure as a gift to Hitler and it was displayed in the Bode Museum in Berlin, where it remains to this day. The largest German ecclesiastical collection owned by a public institution, the Treasure belongs to the

17www.reuters.com/article/us-global-race-nigeria-bronzes/nigeria-expects-more-benin-bronze-returns-as- soon-as-next-year-idUSKBN27S25V.

18www.theafricareport.com/48536/ethiopia-the-fight-to-repatriate-artefacts-is-far-from-over/.

19www.theguardian.com/world/2020/apr/14/exeter-to-repatriate-blackfoot-regalia-to-siksika-nation.

20https://metro.co.uk/2020/11/04/stephen-fry-asks-uk-return-elgin-marbles-from-british- museum-13534742/; https://news.artnet.com/art-world/greece-parthenon-marbles-1870500.

21www.theartnewspaper.com/news/black-lives-matter-movement-is-speeding-up-repatriation-efforts.

22www.art-critique.com/en/2020/07/penn-museum-to-return-skulls-held-in-the-morton-cranial-collection/.

23Philipp v. Federal Republic of Germany, 925 F.3d 1349 (D.C. Cir. 2019) (petition of cert. granted 2 July 2020).

24Göring, one of the most powerful figures in the Nazi Party, was an art collector who acquired portions of his collection by pressuring owners to sell their property.

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Prussian Cultural Heritage Foundation (SPK). However, heirs of the consortium’s members have brought their claims before courts in the United States, alleging that the sale to Göring was made under duress.

In 2008, heirs of the consortium contacted the SPK seeking the restitution of the Treasure. The SPK’s internal investigation determined that the collection had been acquired legally. In 2014, the parties brought their dispute before the German Advisory Commission for the Return of Cultural Property Seized as a Result of Nazi Persecution (the Commission), an arbitration commission specialising in Nazi-looted art determinations. The Commission rejected the restitution claim based on the economic situation at the time of the sale; namely, the imminent Great Depression. During the arbitration, the heirs asserted that Jews were aware of their vulnerability under Nazi rule at the time, which led the consortium to sell the works. The SPK asserted that the Prussian state paid a fair market price for the works and so the consortium was compensated fairly. However, sales by Jewish German vendors occurring after 1933 are generally presumed invalid due to coercion, as the Nazis were already politically active during this period.

Finally, in 2015, three heirs of the consortium filed suit in the United States against Germany and the SPK, alleging that the Treasure had been sold under duress for one-third of its actual value and contending that the Prussian state discouraged other potential buyers from purchasing the works. Generally, foreign sovereigns are immune from suit in the United Sates under the Foreign Sovereign Immunities Act (FSIA). However, parties can overcome the presumption of immunity by proving that one of the FSIA’s enumerated exceptions applies. Here, the heirs asserted that two exceptions applied: the commercial activity exception and the expropriation exception. The commercial activity exception dictates that sovereigns are not immune for engaging in activities in the United States that are commercial in nature.25 The expropriation exception grants US courts jurisdiction over a foreign state when a dispute involves the taking of property in violation of international law, which has a commercial nexus with the United States.26

In March 2016, Germany filed a motion to dismiss under the FSIA, the international law principle of comity, forum non conveniens, and the expiry of the statute of limitations. Following the passage of the HEAR Act27 and its six-year limitation period in the United States, Germany abandoned its statute of limitations argument, but the nation argued it was shielded from suit by the FSIA because the expropriation exception did not apply, claiming that it has a limited application to cases involving the seizure of property belonging to foreign nationals. Here, the Guelph Treasure was taken from German nationals, not foreign citizens. The nation also argued that US jurisdiction was inappropriate under the principle of comity; a party suing a foreign sovereign cannot seek redress in the United States until it has exhausted all legal remedies in Germany. Germany further argued that the United States was not the proper forum, and also alluded to the affirmative defence of laches (the unreasonable delay in making a claim that resulted in prejudice may lead a court to dismiss a case), because the collection has been displayed openly in Germany since 1963.

25Determining whether something is commercial ‘in nature’ requires that the court ask whether the activity could have been done by a private party, not a sovereign nation. Rep. of Argentina v. Weltover, Inc., 504 U.S. 607 (1992).

2628 U.S.C. § 1605(a)(3).

27Holocaust Expropriated Art Recovery Act of 2016, Pub.L. 114–308.

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