The Art Law Podcast

This month Katie and Steve talk about a few important art law cases from 2018 ranging from Nazi looting, to Italian fisherman discovering an ancient Greek statue, to the risks catalogue raisonné committees face when offering even indirect opinions on authenticity.  The specific cases discussed are Von Saher v. Norton Simon Museum of Art at Pasadena, No. 16-56308 (9thCir. 2018); the Getty Bronze case decided by the Italian Court of Cassation; and Mayor Gallery Ltd. v. The Agnes Martin Catalogue Raisonné LLC, No. 655489/2016, 2018 WL 1638810 (N.Y. Sup. Ct. Apr. 5, 2018). Resources: https://cases.justia.com/federal/appellate-courts/ca9/16-56308/16-56308-2018-07-30.pdf?ts=1532970120 https://www.scotusblog.com/case-files/cases/von-saher-v-norton-simon-museum-of-art-at-pasadena/ https://www.theartnewspaper.com/news/cranach-norton-simon - https://www.nytimes.com/2018/12/04/arts/design/getty-bronze-italy-ruling.html https://www.theartnewspaper.com/news/italian-court-says-getty-museum-must-surrender-a-prized-bronze -

Katie and Steve speak with Nanne Dekking, the founder and CEO of Artory and Chairman of the European Fine Art Fair, about Artory’s efforts to use blockchain to create a transparent registry of art sales, the general challenges to transparency in the fine art market, the problem of detecting fakes and forgeries and trustworthy counterparties, and blockchain’s limitations. Resources: https://www.artory.com/about-us/ https://news.artnet.com/market/christies-artory-blockchain-pilot-1370788 https://www.businesswire.com/news/home/20181115005195/en/Artory-Launches-World%E2%80%99s-Publicly-Art-Collectibles-Registry https://www.forbes.com/sites/zoharelhanani/2018/12/17/how-blockchain-changed-the-art-world-in-2018/#16774ef83074 https://www.christies.com/features/Blockchain-and-the-art-market-9318-3.aspx https://www.ft.com/content/1c5062d8-900b-11e8-bb8f-a6a2f7bca546  

Katie and Steve speak with Philip Hoffman, founder and CEO of The Fine Art Group, about art funds, art financing, and financial guarantees of auctions sales.  They also explore how art is performing as an asset class.  Philip started the first “art fund” in 2002, and he is one of the world’s leading experts on the financialization of art. Resources: The Fine Art Group - https://www.fineartgroup.com/en/ http://www.artfundassociation.com/index.html https://www.nytimes.com/2018/06/08/arts/art-financialization-blockchain.html https://www2.deloitte.com/us/en/pages/financial-services/articles/art-and-finance-report.html https://www.ft.com/content/0d4a50f0-cbff-11e5-a8ef-ea66e967dd44 https://www.artsy.net/article/artsy-editorial-art-loans-popular-ultra-wealthy-good-economic-times-bad https://www.theartnewspaper.com/news/guarantees-the-next-big-art-market-scandal  

Artist Aviva Rahmani speaks to Steve and Katie about her artistic practice investigating and using the law.  Her current work, Blued Trees Symphony, is a musical and visual art work installed along miles of proposed pipeline expansion on land subject to possible eminent domain.  Rahmani has copyrighted the work and plans to use the Visual Artist Rights Act to prevent the art’s destruction, thereby frustrating the building of pipeline. Resources: You can learn more about Aviva Rahmani and Blued Trees Symphony here: http://ghostnets.com/# http://ghostnets.com/projects/blued_trees_symphony/blued_trees_symphony.html http://www.abladeofgrass.org/fellows/aviva-rahmani/ http://www.abladeofgrass.org/events/mock-trial/ https://hyperallergic.com/439553/aviva-rahmani-cardozo-school-of-law-stop-a-pipeline/ Episode Transcription: Steve Schindler:  Hi, I’m Steve Schindler. Katie Wilson-Milne:  I’m Katie Wilson-Milne. Steve Schindler:  Welcome to the Art Law Podcast, a monthly podcast exploring the places where art inte

Katie and Steve get an update from attorney Nicholas O’Donnell about the status of the lawsuit he brought on behalf of certain members of the Berkshire Museum for breach of fiduciary duty, among other claims, in relation to the Museum’s sale of much of its valuable art collection to pay for operating and capital expenses.  While much of the art has been sold, the members fight on.  Nick explains the unusual posture of the case to our listeners. *Note: On Monday, the Massachusetts Appeals Court ended the Berkshire Museum deaccessioning legal saga by upholding a decision by the court that members of the Berkshire Museum do not have standing to sue the Museum challenging the conduct of its Board of Directors. Resources: https://berkshiremuseum.org/2015site/wp-content/uploads/2018/09/September-12-Update-on-second-tranche-sales.pdf https://www.berkshireeagle.com/stories/two-unsold-berkshire-museum-works-slated-for-november-auction,551589 https://blog.sandw.com/artlawreport/berkshire-museum-tries-to-end-run-pen

Steve and Katie discuss the Nazis’ complicated and perverse relationship with fine art with attorney and author Nicholas O’Donnell.  Nick is the author of the recent book, A Tragic Fate: Law and Ethics in the Battle Over Nazi-Looted Art, which tells the story of stolen and appropriated art in World War II Europe and how the U.S. legal system has been instrumental in dealing with claims for restitution decades later.  Steve, Katie and Nick start with the historical landscape in 1930s Europe, and discuss some the most contentious and ongoing disputes. Resources: https://www.sandw.com/professionals-Nicholas-ODonnell.html https://www.amazon.com/Tragic-Fate-Ethics-Battle-Nazi-Looted/dp/1634257332 https://www.amazon.com/Rape-Europa-Europes-Treasures-Second/dp/0679756868 https://www.state.gov/p/eur/rt/hlcst/270431.htm https://www.nytimes.com/2015/03/31/arts/design/the-story-behind-woman-in-gold-nazi-art-thieves-and-one-paintings-return.html https://www.theartnewspaper.com/analysis/cranach-s-adam-and-eve-timelin

On this bonus episode, Katie and Steve discuss the recent SCOTUS case Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (2018).  In this case, a baker claimed his First Amendment free exercise and free speech rights were violated when he was found in violation of a Colorado statute prohibiting disparate treatment based on sexual orientation in public accommodations for refusing to make and sell a wedding cake to a gay couple.  The baker refused to make the wedding cake because of his religious objections to gay marriage.  Although the controlling decision of the Supreme Court only dealt narrowly with the baker’s free exercise, religious discrimination claim, free expression issues lurked in the background and were taken up directly and forcefully in Justice Thomas’ partial concurrence.  Katie and Steve discuss the free expression part of the case and its real or imagined relationship to artist’s rights and government censorship of art. The Art Law Podcast is excited to showcase new music

On this month’s episode, Steve and Katie dive into the charged topic of censorship.  With guest Professor Amy Adler they talk about government and non-government attempts to censor art, what the legal boundaries are and where the law actually has little if nothing to say about censorship of art.  They describe applicable First Amendment doctrine, apply it to art and examine particular examples of art “censorship” from the culture wars of the 1990s through today, from both the political right and left. Cases: NEA v. Finley, 524 U.S. 569 (1998) https://supreme.justia.com/cases/federal/us/524/569/ Brooklyn Institute of Arts v. City of New York, 64 F. Supp. 2d 184 (EDNY 1999) https://law.justia.com/cases/federal/district-courts/FSupp2/64/184/2578531/ Miller v. California, 413 U.S. 15 (1973) https://supreme.justia.com/cases/federal/us/413/15/case.html   More on Professor Amy Adler: https://its.law.nyu.edu/facultyprofiles/index.cfm?fuseaction=profile.publications&personid=19731 https://its.law.nyu.edu/facul

Katie and Steve give an update on the first round of auction sales as part of the Berkshire Museum’s court sanctioned deaccessioning plan.  They discuss the results of the sales, the museum’s current stance, and where that leaves us (hint: dissatisfied). Resources: https://berkshiremuseum.org/newvision/the-road-ahead/ https://berkshiremuseum.org/2015site/wp-content/uploads/2018/04/pr.Berkshire-Museum-to-offer-13-works-at-auction.pdf https://www.nytimes.com/2018/05/27/arts/design/berkshire-museum-sanctions-aamd.html https://aamd.org/for-the-media/press-release/aamd-statement-on-sanction-of-berkshire-museum-and-la-salle-university  

On this month’s podcast, we take a close look at art auctions – how they work, their place in the art market and the rules and regulations that confine/define them.  Auctions at Sotheby’s and Christie’s now regularly net tens and sometimes hundreds of millions of dollars for a single work.  Christie’s recently sold Leonardo da Vinci’s Salvator Mundi painting for $450 million, by far the highest price ever garnered by a piece of art at auction.  At the same time, much about the auction process remains secret.  The identity of the buyer and seller is often known only to the auction house, and the reserve price (below which an artwork will not be sold) is known by the auctioneer but not the bidders.  While the auctioneer may not sell a work of art below its reserve price, it can bid on the work below the reserve to get the auction going.  Steve and Katie discuss these issues and others having to do with regulation, transparency and potential conflicts, and welcome famous Sotheby’s auctioneer Oliver Barker to tak

Katie and Steve update listeners on the Massachusetts Supreme Judicial Court’s decision approving the settlement reached between the Attorney General and the Berkshire Museum, which allows the Museum to sell 40 of its most valuable works of art through Sotheby’s with some (minor) conditions.  Katie and Steve go over the terms of the settlement and discuss their reservations about the form (if not substance) of this resolution.  Since the recording of this bonus episode, it has been reported that the yet to open Lucas Museum in Los Angeles will purchase the painting Shuffleton’s Barbershop, Norman Rockwell’s iconic masterpiece.  The rest of the works will be sold gradually at auction until a total of $55 million in proceeds is reached. Memorandum of Decision Resources: https://berkshiremuseum.org/newvision/ago-summary/ http://lucasmuseum.org/news/lucas-museum-announces-acquisition-norman-rockwells-shuffletons-barbershop  

On this month’s podcast we discuss the non-economic “moral rights” of artists in the context of the famous 5Pointz aerosol art mecca in Long Island City, Queens that was whitewashed and torn down in 2013.  In the ensuing litigation, the aerosol artists asserted violations of their moral rights under the Visual Artist Rights Act, the U.S. moral rights statute.  In a surprise to many, they recently won $6.7 million in damages after succeeding on these claims.  The art, however, was permanently lost.  Steve and Katie discuss the origin and contours of moral rights, how they fit into U.S. copyright law, the story of 5Pointz and the laws around street art and graffiti.  They are joined by famous aerosol artist Jonathan Cohen (Meres One), 5Pointz event planner and artist representative Marie Cecile Flageul, and Renee Vara, the artists’ expert in the 5Pointz trial. Resources: https://www.nytimes.com/2018/02/12/nyregion/5pointz-graffiti-judgment.html https://news.artnet.com/art-world/judge-awards-6-million-5pointz

Scientist Jamie Martin talks with us about wine forger Rudy Kurniawan, his work investigating wine fraud and the similarities between wine and art. Resources: https://www.netflix.com/title/80029708 Transcription:  Katie Wilson-Milne:  So we would be remiss to let you leave without talking about another type of good that Steve and I like a lot, wine.  So you worked on the famous Rudy Kurniawan Wine Fraud case, and I'm curious how you transitioned from art to wine and how they’re similar or dissimilar? Jamie Martin:  Yeah, the first experience with wine that I recall was working for Bill Koch for his civil case. Bill Koch had amassed vast wine cellar some of which was determined to have been fake wines and he unleashed to series of lawsuits against various wine auctions and auction houses and dealers. And he brought me in as a forensic expert to examine the bottles, to examine the labels, to examine the capsules, corks for evidence of historically inaccurate materials. Looking at a wine label is not a lot di

On this month’s podcast we discuss the role of science in fine art.  Specifically, what can science tell us about a work of art’s origin and authenticity?  Can science help us discover fakes and forgeries undetected by traditional connoisseur style observation?  We are joined by the famous art scientist Jamie Martin to discuss these issues, recount famous forgery scandals, and delve into his techniques and practices. Resources: http://orionanalytical.com/media/ http://www.sothebys.com/en/news-video/blogs/all-blogs/sotheby-s-at-large/2016/12/scientist-art-world-james-martin.html https://www.wired.com/2016/12/how-to-detect-art-forgery/ https://www.artsy.net/article/artsy-editorial-the-8-most-prolific-forgers-in-art-history-that-we-know-of https://www.vanityfair.com/culture/2012/10/wolfgang-beltracchi-helene-art-scam https://news.artnet.com/market/forger-wolfgang-beltracchi-exhibition-296551 http://www.nytimes.com/2012/07/19/arts/design/ken-perenyi-art-forger-now-sells-his-work-as-copies.html Episode Tra

Katie and Steve give listeners an update on the Berkshire Museum deaccessioning controversy.  The Massachusetts Attorney General and the Museum have reached an agreement, pending approval by the Supreme Judicial Court, permitting sales of up to $55 million with the famous Norman Rockwell painting Shuffleton's Barbershop going to an undisclosed museum.  The Rockwell sons have dropped out of the litigation, but the other plaintiffs oppose the compromise and are still fighting. Resources: Berkshire Museum Cy Pres Complaint in Massachusetts Supreme Judicial Court  

In our first full-length episode, we discuss the Berkshire Museum’s controversial decision to sell off 40 works of iconic art from its permanent collection to raise funds to rebrand itself as a science and natural history museum, and build a large endowment.  Only after the regional museum had signed an agreement with Sotheby’s auction house to deaccession these works, did the museum announce its plans to the public.  Museum and cultural groups, the fine arts community, and certain local constituents have passionately opposed these plans.  Other stakeholders and commentators have strongly supported the museum’s efforts to monetize its collection and rebrand.  We will discuss both the ethical and legal issues around deaccessioning and the Berkshire Museum’s actions in particular.  We are joined by the financial and art-market journalist, Felix Salmon. More information on the Berkshire Museum and deaccessioning: From Felix Salmon: http://www.felixsalmon.com/ https://www.newyorker.com/culture/culture-desk/the

In our introductory episode we introduce ourselves and discuss the podcast’s theme of exploring topics where art intersects with and interferes with the law, and vice versa.  We preview upcoming episodes, including our first full length episode on when and how museums may sell art from their collections (known as deaccessioning) and the public outcry these decisions have.  Other episodes will explore artist moral rights and street art, censorship of art, scientific analysis of art and authenticity scandals, appropriation art and the limits of copyright, art and activism, the rise of art financing, art auctions and Nazi looted art and cultural property disputes.  Episodes will feature discussions of current events and guest commentary.