MACCH Website Report Workshop Art Law Ius Commune 25 November 2016

MACCH Website report workshop Art Law Ius Commune 25 November 2016

By Lars van Vliet

During the annual Conference of the Ius Commune Research School (http://www.iuscommune.eu/), which took place in Maastricht on 24 and 25 November 2016, a workshop on Art Law was held on Friday November 25th. It was organised by Hildegard Schneider and Lars van Vliet. It was a very interesting day with presentations about legal and historical aspects and also economic aspects of art trade. The following presentations were held:

1) Bert Demarsin (KU Leuven – Campus Brussels)

Authenticity issues in art sales

In his presentation, Mr Demarsin focused on the recent developments with regard to authenticity issues in the art trade. The starting point of his analysis were a number of interesting authenticity cases that have recently been decided or that are still pending in various jurisdictions, such as New York, France or the UK. First Mr Demarsin commented on the Knoedler case, which caused the biggest scandal on the market in the past years. He underlined the importance of the Knoedler litigation, as the key question at stake is whether or not sophisticated and learned collectors have a duty to investigate authenticity (and provenance). In Knoedler, they all merely relied on what the reputable gallery told them. If the jury in Knoedler decides against the collectors, they may be burdened with new obligations to investigate authenticity, overturning long-standing industry practice. Secondly, Mr Demarsin discussed Thwaytes v. Sotheby’s, an English case that recently re-applied the 1990 Luxmoore-May v Messenger May Baverstock –standard of care to a leading auction house, Sotheby’s. Thwaytes v. Sotheby’s is also a perfect illustration of how Anglo-American judges establish authenticity in court, by making use of expert witnesses. Consequently, Mr Demarsin reflected on the role of the artist in the authenticity dispute, by commenting on the recent cases of Peter Doig and Katy Nolan. What is a legitimate disavowal under VARA? And who determines whether modifications are “prejudicial” to an artist’s reputation? These are important questions that deserve further research. Vara was an easy leap up to the question of the position of moral right holders in the authenticity dispute. Here Mr Demarsin discussed the destruction of fakes in certain jurisdictions, such as France and Italy. He referred to the recent cases brought by the Chagall Committee and the Association pour la Défense de l'oeuvre de Miró. Finally Mr Demarsin discussed the recent U-turn in the case law of the French Cour de Cassation with regard to the liability of scholars and authors of a catalogue raisonné (Cass. 1st ch., 22 Janvier 2014).

2) Lars van Vliet (Maastricht University)

Post WWII restitution of looted art in the Netherlands

Mr van Vliet discussed the legislation (several Royal decrees) issued by the Dutch government during the Second World War to counter the looting of art works by the German occupier and German nationals. He discussed the various kinds of ‘looting’ such as expropriation, forced sales and outright theft, each of which asked for a different legal approach. It shows that the term ‘looting’ does not have a specific technical meaning. After the war legislation implemented by the German occupier aiming at the expropriation of Jews was declared void by the Dutch government with retroactive effect. Forced sales of art works taken to Germany received a different treatment. The sale and transfer to the German buyer made the buyer owner of these art works. Under the 1944 Royal Decree on enemy property the German owner was expropriated by the Dutch State, so that upon return of the art works in the Netherlands the Dutch State could exercise its ownership rights. The victim of a forced sale then had the opportunity under the 1944 Royal Decree on Restoration of Rights to have the sales contract annulled (by a special court: the Council for the Restoration of Rights), so that the seller would regain ownership of the art works involved.

3) Nicola Wallace (Barrister and Mediator, London)

Mediation in art & heritage disputes

For mediation to be an effective tool for the delivery of a successful alternative dispute resolution process, Mrs Wallace proposed that fundamental matters need to be addressed before parties come to the table. Careful preparation and critical thinking in advance can ensure the optimum environment for discussion and negotiation with a view to settlement.

The presentation examined mediation from a legal practitioner’s viewpoint in the jurisdiction of England & Wales. It briefly explained the context and placement of mediation within the Civil Justice system. There was consideration of the need for understanding of parties’ behaviour in disputes and how disputes can escalate. Mrs Wallace referred to the particular characteristics of mediation which result in the process being particularly suited to the widest range of art, cultural and heritage disputes. Case studies were used throughout to illustrate points arising and Mrs Wallace put particular emphasis on the different mediation skills necessary for disputes where strongly held values conflict and where there are multi-party negotiations.

4) Jos van Beurden (Free University Amsterdam)

Lessons from dealing with Nazi-looted art for colonial cultural objects

Five centuries of European domination have witnessed a massive one-way traffic of cultural and historical objects from colonial territories to metropoles and their museums in Europe. In spite of claims of former colonies, relatively few contestable objects have been returned to the countries of origin. During the Nazi regime (1933 – 1945) there was a massive disappearance of works of art as well. Thanks to soft-law instruments relatively many have been restituted to the original owners. Mr van Beurden asserted that rightful claimants of colonial objects might be helped with Principles for dealing with colonial cultural and historical objects, based on the 1998 Washington Conference Principles for Dealing with Nazi Looted Art. These Principles were presented by Mr van Beurden as part of a model to promote mediation between claimants and possessors of colonial objects.

5) Rachel Pownall (Maastricht University)

The art market

During her presentation Rachel Pownall spoke about the cross border trade in art. Using trade flow data, collected from the United National trade database for all countries globally from 1990-2015 she was able to determine how art flows around the world. Her results showed that 2015 recorded the highest level of global trade in the art sector at 29 billion USD. This sector comprises fine art, sculptures, antiques, collector pieces and stamps. By far the largest importer and exporter is the United States of America, dominating world trade flows with a quarter of art trade flowing equally in and out of the U.S. The United Kingdom remains the second most import hub for trade flows, with more than a fifth of global trade passing across UK borders. Together they represent almost half of global trade. Hong Kong, Genève, and Paris remain important trading hubs. However, taking into account intra-Chinese trading between China and Hong Kong, results in Asia being less dominant as an international market than indicated in previous years. Comparing trade figures with auction sales data indicates that domestic sales must be strong, unless much cross border art trade is going unreported. The size of the Black market remains a serious issue.

6) Ana Ramalho (Maastricht University)

Copyright reconstruction and the preservation of cultural heritage

Mrs Ramalho’s presentation analysed EU legislation aimed at making the goals of copyright law and preservation of cultural heritage compatible. The speaker started by demonstrating the clashes that might arise between the need to preserve cultural heritage and the copyright protection of works. The EU mandate to regulate the preservation of cultural heritage was examined side-by-side with copyright-related competences of the EU. Despite the conciliation of copyright and preservation being in the EU agenda, it was argued that the current copyright framework shows some regulatory flaws when it comes to allowing for the preservation of copyright-protected cultural heritage. Mrs Ramalho followed to discuss a recent proposal for a Directive from the EU Commission, examining whether the latter is fit to address these flaws. The presentation concluded by pointing out remaining challenges inherent to the quest of accommodating preservation aims within the copyright framework. ​

7) Amoury Groenen (Maastricht University)

A passport for cultural goods

As a reaction to the looting of artefacts in Iraq, Libya and Syria by Wahhabist and Salafist groupings, the European Union has raised concerns as the possible use of cultural goods as a source of financing for terrorist activities. Its institutions for that reason envisage the adoption by late 2017 of legislation regulating the import of artefacts into the Union’s territory, irrespective of their country of provenance. In discussion about this new legislation the introduction of a certification scheme for imported cultural goods is often mentioned, which may possibly lead to the introduction of a passport system for cultural goods. The use of a passport system, joined by private law rules regulating the transfer of the certified object, may provide an appropriate scheme to alleviate the problem of archaeological theft.

8) Andrew Steven (University of Edinburgh)

Positive prescription of art works

Mr Steven considered the Scottish Law Commission’s work on prescription and title to moveable property in Scotland in relation to art works. Its 2012 Report is available at https://www.scotlawcom.gov.uk/ and the Scottish Government has since consulted on implementation. Under current Scottish law there is no general rule of good faith acquisition. There is also no statutory rule of acquisitive prescription (there is doubtful authority of a 40-year common law period), so possession of an art work can never turn into ownership through the passage of time. The Commission recommended a 20-year rule, but which requires the acquirer to be in good faith and without negligence at the time of acquiring possession and throughout the 20-year period. It also recommended a second 50-year rule under which lent or deposited property can be acquired by the holder if it is impossible to trace the owner. This second rule is particularly aimed at museums and galleries.

9) Bastiaan van der Velden (Open University)

Performance Artists and The Law, 2 recent court decisions

Mr van der Velden spoke about a recent judgment of the Rotterdam district court in which the central question was whether an artist could be compelled to specific performance. Bert Kreuk, an art collector and freelance curator, organized in the Hague municipal museum a show of his collection, and he wanted to include works of the Danish artist Danh Vō. To inspect the rooms to be used for the work, Danh Vō came to The Netherlands. Danh Vō and Kreuk agreed orally on a certain price to be paid for the installation upon delivery. Later Danh Vō refused to come to The Hague and instead sent a beer box inscribed in gold leave with the words ‘Fiat Veritas’ as a loan. The court sentenced Danh Vō to create an artwork and he has to deliver and transfer title to Kreuk. When we look at practices and the artworks produced today in general, and specially within the oeuvre of Danh Vo, this narrow concept of a work by the judge is contrary to contemporary practices in art and limiting the artist in a way he is used to realizing his concepts.

The other case Mr van der Velden analysed was Ulay v Marina Abramović. In this case there was a written contract, but the question was how to explain that contract between two artists?

10) Marilixe Beernink (University of Amsterdam)

Legal opportunities for cultural entrepreneurs dealing with cultural goods

Dutch politicians and subsidy policy require museums to act more as cultural entrepreneurs and they have to generate more own income. Museums have to put any surplus of the proceeds of their activities in a designated fund partly controlled by the Minister of Culture. Within the delegated powers in relation to national cultural goods, museums are already doing the best they can. To perform more or other cultural entrepreneurial activities directly connected to cultural goods, the powers of museums with respect to these goods or their powers with respect to proceeds of entrepreneurial activities has be adjusted. This presentation discusses four opportunities in this respect. A selection of valuable cultural goods has to be made and other conditions have to be met. These legal opportunities have significant legal, ethical and political objections. Only the legal and ethical objections will be discussed.