Student Note on VARA

The Fall 2009 issue of the Rutgers Law Review has a student comment by Seth Tipton titled:  CONNOISSEURSHIP CORRECTED: PROTECTING THE ARTIST, THE PUBLIC AND THE ROLE OF ART MUSEUMS THROUGH THE AMENDMENT OF VARA.

From the introduction:

As will be discussed, VARA falls woefully short of granting meaningful and broad moral rights to artists. Most notably, deceased artists do not benefit from any of the protections of VARA. As such, it is imperative that Congress amend VARA to make the right of attribution perpetual and grant community standing to enforce
those rights where the artist is deceased. This Note will discuss the legal solutions that the amendment of the VARA could provide to ameliorate the hazards of the aforementioned issues of misattribution, increase the strength of American moral rights legislation, and protect and strengthen the role of museums in American
society.

Part I of this Note examines the inherent risks associated with assigning authorship to pieces of art. Although a highly important part of the sale and scholarship of art, this Part discusses the weaknesses of art connoisseurship. Also, this Part considers how those troubled methods of attribution cast considerable uncertainty in the assignation of authorship for the artwork of long-deceased authors. Part II maps the development of both the legal doctrine arising from misattribution and some of the solutions crafted by auction houses in response. This Part discusses the inadequacy and unpredictability of current common law doctrines developed to deal with misattribution. 

Part III introduces and explains the philosophical and intellectual underpinnings of moral rights and tracks the development of moral rights legislation in Europe. This Part discusses the inherent personal nature of moral rights and the key distinction between moral and economic rights.

Part IV goes on to introduce and explain state preservation statutes and the emergence of moral rights in American law. This Part also discusses the adoption of VARA. This Part explains that VARA’s
stated goal of protecting the artist’s honor and reputation is unattainable in light of its limitations when compared to European models.

Part V of this Note is a call on Congress to amend VARA. This Part posits that the European model of perpetual moral rights is a form of moral rights that should be implemented in American law. This Part goes on to suggest that perpetual moral rights could be combined with examples of community standing, readily available in state cultural preservation statutes throughout the United States, to vastly improve the actual protections VARA affords.

Lastly, Part VI revisits the solutions created by art auction houses to respond to liability for misattribution. This Part discusses how this model could be quickly and easily adapted as a pragmatic method of remedying a suit brought under an amended VARA. Armed with these examples and their success, Congress could
recreate a VARA that could ensure the protection of the moral rights of deceased artists, safeguard the societal position that museums occupy, and ensure that the public is given access to trustworthy and
objective information.

Seminar Paper: The "Historic" Rehabilitation Tax Credit

I'm publishing here a series of papers written by Loyola law students in my 'Property, Heritage and the Arts' seminar from the Fall of 2009. This paper was written by Andrew Prihoda.

The “Historic” Rehabilitation Tax Credit

Why the Current Tax Code is Stifling Incentives

to Invest in Our Nation’s History

By: Andrew Prihoda

I.                 I.  Introduction

By affixing his signature to the National Historic Preservation Act (“NHPA”) in 1966,[1] President Johnson joined Congress in both declaring historical preservation to be a national prerogative and directing the federal government to take an active role in promoting preservation activities.  Congress had raised some awareness of the goal of preserving historical properties;[2] however, these statutes merely provided penalties for unauthorized injury to or destruction of such properties[3] and mandated categorization and, where possible, acquisition of such properties by the Secretary of the Interior.[4]  While these statutes represented a huge step toward the goal, neither had clearly stated the need for historic preservation by Federal action, nor provided a mechanism by which that preservation could be achieved.[5]

Congress enacted the NHPA in 1966 to fill both of these voids.  To remedy the first, Congress emphasized that preservation of our historical foundations as a living part of our community development was necessary “to give a sense of orientation to the American people”[6] and that, further, an expansion and acceleration of federal preservation activities was necessary to encourage and support private investment.[7]  Congress further elucidated this need in its 1980 amendments to the NHPA, declaring that increased knowledge and better administration of our historic resources will improve the planning and execution of federally sponsored projects and will assist the economic growth and development of the nation.[8]  Thus, the Act intended to foster a consistent and coherent policy of preservation among federal agencies, which would encourage “the use of historic properties to meet the contemporary needs of society.”[9]

Addressing the second, the NHPA authorized Interior to create and maintain an increased and improved categorization of historic properties, the National Register of Historic Places (“Register”), inclusion in which would qualify owners of such properties for federal grants-in-aid.[10]  To assist in this process, Congress later amended the Act to encourage the establishment of state historical preservation offices (SHPOs),[11] which were tasked to administer the state’s preservation plan, with responsibilities including identifying historic properties, determining the eligibility of, and nominating, properties for listing on the Register, and evaluating eligibility for Federal preservation incentives.[12]  Thus, the SHPOs came to assume the role of gatekeepers, maintaining access both to the Register and to the benefits attached to it. 

Although these programs were intended to provide the means by which to pursue a national preservation policy, Congress began to recognize they alone would not be enough to “overcome existing biases in favor of investment in new construction.”[13]  The original grant program’s limited fund availability made developers question whether the stringent application process required for inclusion on the Register, and the conditions imposed therewith, were worth the benefits received.  Therefore, Congress acted swiftly in 1976, creating multiple new incentives.  In addition to a new grant and loan program,[14] Congress enacted the Tax Reform Act of 1976 (“TRA”),[15] which created the first federal tax incentives for historic preservation.  Over the following 30 years, Congress has tinkered with the tax incentives to provide an incentive that is both workable and effective.

This paper will proceed in 3 parts.  Part II will track the attempts of Congress to revise and adjust the historic preservation tax incentives to serve the goals of the NHPA.  Part III will discuss tax credits generally and the current rules concerning the Federal rehabilitation credit.  Finally, Part IV will review recently a proposed amendment to the rehabilitation credit to determine whether it better satisfies the goals of the NHPA.

continue reading

Footnotes

• Taped phone conversation are coming to light in the da Vinci trial in Scotland.
• More on how the key witness, Ted Gardiner, in the Four Corners looted native art case committed suicide.
• DNA evidence may offer some new leads in the Isabella Stewart Gardner Museum art theft with the 20 year anniversary approaching, while the museum hosted a talk, stating that "everyone is a suspect."
• 2010 Summer internships available with the LCCHP, the Lawyer's Committee for Cultural Heritage Preservation
• University of Seville engineers have created a way to monitor monuments by remote control.
• The son and daughter-in-law of Ansel Adams have filed suit to stop the Fresno Metropolitan Museum of art from auctioning off Adams' works.
• With the increased revenue from tourists comes the increased risk of damage to cultural sites.
• Mark Durney gives an economic view on forgery.
  

Peru has Dropped Some Claims Against Yale

Peru has decided not to allege fraud and conspiracy claims against Yale University in its lawsuit over objects removed from Machu Picchu in the early part of the 20th century.  One of the main points of contention in the dispute is whether this action is timely.  It surely would have if brought soon after the objects were removed, but Peru will either have to justify waiting decades to bring a claim, or convince a court that Peruvian law applies—perhaps under the lex originis rule. 

For background on the dispute see these posts. 

From the AP:

The withdrawal of some claims comes after Peru hired new lawyers who said the move would simplify the case and "facilitate resolution" of the dispute. Yale's lawyers had warned that the claims violated civil procedures prohibiting frivolous arguments.

The fraud allegations that were withdrawn accused Yale of intending to deceive Peru by promising to return the artifacts and conspiring with Bingham to retain the artifacts unlawfully by fraudulently assuring that Yale would return the artifacts when Peru demanded.

"Peru has dropped all claims of Yale having intentionally done anything wrong," said Jonathan Freiman, Yale's attorney. "We're glad that they have done so, but we think the rest of the case is equally misguided and should be withdrawn, as well." . . .

"Yale has wholly betrayed Peru's trust and confidence," the lawsuit states. "Yale has exploited its holding of the Machu Picchu collection for commercial and financial gain at the expense of the interests of the Peruvian people and in violation of the fiduciary obligations that Yale owes Peru."

1. John Christoffersen, Peru lifts some Machu Picchu claims against Yale, AP, March 10, 2010 (last visited Mar 10, 2010).

Art Crime Exhibition Opening in Washington DC on March 22

ARCA staff and volunteers are putting together an exhibit at the National Museum of Crime and Punishment, and there is an opening on March 22.  Here are the details:   in partnership with      cordially invites you to the opening of the exhibit The Dark Arts; Thieves, Forgers and Tomb Raiders March 22, 2010   6:00-8:30pm   at the National Museum of Crime & Punishment  575 7th Street NW 6:00- guests are invited to tour the museum at their leisure 7:00- Curator Colette Loll Marvin presents the exhibit and guest speakers:  Anthony Amore Director of Security for the Isabella Stuart Gardner Museum will discuss the largest art theft in history on its 20th anniversary. Robert K. Wittman   former special agent & senior investigator for the FBI Art Crime Team will discuss cases from his distinguished career as detailed in his new book Priceless. 8:00- Reception with light hors D'oeuvres and drinks will follow. RSVP is required by 3/15/2010 to rachael@crimemuseum.org    You must have your invitation to enter this event.  Special thanks to: Art Guard Ferretti Designs  Corcoran Caterering Windows Caterering *ARCA (Association for Research into Crimes against Art)  is an interdisciplinary think tank/research group on contemporary issues in art crime. This international non-profit organization studies issues in art crime & cultural property protection, runs educational programs, & consults on art protection & recovery issues brought to them by police, governments, museums, places of worship, & other public institutions. www.artcrime.info

Law and Art: Ethics, Aesthetics and Justice at the Tate Modern

There looks to be a terrific symposium at the Tate Modern on Tuesday March 23.  Here are the details:


Tuesday 23 March 2010, 10.00–18.00

This unique and enticing one day symposium brings together world-leading scholars to reflect on the relationship between law and art.

Speakers offer unique perspectives on the relationship between law and art. Some are philosophical while others discuss issues that arise in specific instances of this relationship: film, theatre, music, fine art, poetry and literature. Despite representing a wide range of philosophical orientations, disciplines and art forms, all speakers articulate some affinity between law and art while also strongly conveying the unease that characterise their engagement.

All speakers at this conference are contributors to Law and Art: Ethics, Aesthetics and Justice to be published by Routledge-Cavendish, Glasshouse Books, summer 2010.

Tate Modern Starr Auditorium
£15 (£12 concessions), booking recommended
For tickets, call 020 7887 8888.

I've copied the detailed outline after the jump.

Congratulations to Loyola's Cultural Heritage Law Team

I want to congratulate the members of Loyola University New Orleans' Cultural Heritage Law Team, which won the Cultural Heritage Law Moot Court Competition in Chicago this weekend.  The team consisted of David Vicknair, Geoff Sweeney and Daniel Shanks.  They were coached by third-year law student Lindsey Surratt.  I had the great pleasure to act as faculty adviser to the team, and enjoyed hearing some terrific arguments on a difficult area of the law. 

Congratulations to all the competitors, and to DePaul University College of Law and the Lawyers' Committee for Cultural Heritage Preservation for sponsoring a great competition.

Chen on Fiduciary Duty and Deaccession

Sue Chen (United States Court of Appeals for the Tenth Circuit) has posted on SSRN her article entitled Art Deaccessions and the Limits of Fiduciary Duty, 14 Art Antiquity & Law 103 (2009).

Art deaccessions prompt lawsuits against museums, and some commentators advocate using the stricter trust standard of care, instead of the prevailing corporate standard (business judgment rule), to evaluate the conduct of non-profit museum boards. This Article explores the consequences of adopting the trust standard by applying it to previously unavailable deaccession policies of prominent art museums. It finds that so long as museum boards adhere to these policies, their decisions would satisfy the trust standard. This outcome illustrates an important limitation of fiduciary law: the trust standard evaluates procedural care but cannot assess deaccessions on their merits. Yet this limitation, far from undercutting the trust rule, balances judicial review with protecting boards’ management discretion. This article ventures beyond formalist analysis of fiduciary duty and examines the non-legal, substantive rules governing art deaccessions. It argues that complemented by non-legal rules, the trust standard provides the best framework for adjudicating deaccession lawsuits because it ensures judicial scrutiny of deaccession procedures while leaving appraisal of deaccessions’ merits to museum professionals and the public they serve.

via

Yet Another Suicide Connected to Four-Corners Antiquities Investigation

The informant who was instrumental in the federal antiquities investigation in the Southwest has committed suicide.  This comes after two others accused of wrongdoing killed themselves. 

From the AP:

 The undercover operative who helped federal officials build a case against more than two dozen people for allegedly looting American Indian artifacts in the Southwest has apparently committed suicide.

Two defendants in the case killed themselves last year.

Police say 52-year-old Ted Dan Gardiner shot himself Monday at a home in a Salt Lake City suburb. He shares the name, date of birth and address of the man identified in court documents as the informant in the case that led to indictments against 26 people.

Gardiner worked with the FBI and the Bureau of Land Management for more than two years, coordinating deals with artifacts collectors, dealers and diggers in Utah, Colorado, New Mexico and Arizona.

Gardiner's father and his son told The Associated Press on Tuesday that they could not explain his death. The FBI and the U.S. attorney's office in Salt Lake City declined comment.

Two defendants — a Santa Fe, N.M., salesman and a prominent Blanding, Utah, physician, James Redd — committed suicide after their arrests in June.

Gardiner, an antiquities dealer, offered in 2006 to help federal authorities set up what turned into a long-running sting operation in the black-market trade in prehistoric relics. Court papers say he was typically paid $7,500 a month for secretly recording transactions across the Southwest for more than two years.

He was still being paid for helping agents prepare for court cases, and he was to receive more money if he had testified. Gardiner had received $162,000 in payments plus expenses, for a total of $224,000, when most of the arrests were made in June.

Federal authorities and Gardiner, who also ran an [artifact] authentication business, have insisted he was never in trouble with the law.

Unified Police Sgt. Don Hutson says a preliminary autopsy shows Gardiner's gunshot wound was probably self-inflicted. An officer fired a round during a standoff Monday night, but it didn't hit Gardiner.

Deputies were called to Gardiner's home Saturday night on a report that he was suicidal, Hutson said. Gardiner was transported for mental health treatment and his gun was taken away. Gardiner used another gun Monday night.

Gardiner's father, Dan Gardiner, declined further comment Tuesday, handing over the phone to one of Ted Gardiner's sons, who said, "We don't know any more than you." The son declined to give his name.

Call for Papers, ARCA Conference, July 2010

Call for Papers
2nd Annual ARCA Conference in the Study of Art Crime
Amelia, Italy
10-11 July 2010

ARCA (The Association for Research into Crimes against Art), an international non-profit think tank and research group dedicated to the study of art crime and cultural property protection, is pleased to announce a Call for Papers for its second annual conference. Papers are welcome from scholars and professionals in any field relevant to art crime and protection, including law, policing, security, art history, conservation, archaeology, and criminology. Please submit a title and abstract (up to 250 words) as well as a professional biography (up to 150 words) by email to director@artcrime.info by May 1.

The conference will be held in the elegant Zodiac Room of Palazzo Petrignani, in the beautiful town of Amelia in the heart of Umbria. The conference will feature the presentation of the annual ARCA Awards to honor outstanding scholars and professionals dedicated to the protection and recovery of international cultural heritage. The goal of the conference is to bring together international scholars, police, and members of the art world to collaborate for the protection of art worldwide.

Please direct any queries and submit papers to director@artcrime.info. For more information on ARCA, please visit www.artcrime.info.