Kevin Ray authored an article for the Spring 2017 issue of Best Lawyers – Business Edition, which discusses artists who have disavowed their work. Click here to read the full article.
The Debate over the Parthenon Sculptures
Among disputes over removed cultural objects, perhaps few are better known than that concerning what were formerly known as the Elgin Marbles, which even the British Museum now prefers to call the Parthenon sculptures. It is important to note at the outset, however, that even though the Parthenon sculptures were removed during this long age of plunder, were not actually plundered. They were removed with the apparent permission of the government that had ruled the territory for four centuries. The source of the conflict over the sculptures is twofold – (1) Ottoman rule of the territory of modern Greece was in its final decades, and the movement in favor of Greek independence was on the rise (Greece would attain independence in 1832); and (2) the Parthenon, which even at the time had long been recognized as one of the finest examples of classical architecture and sculpture, became an important symbol of Greek independence and nationalism.
It is timely to consider the Parthenon sculptures as one example of how the past is sometimes not even past. This year marks the 200th anniversary of the British Museum’s acquisition of the sculptures from Lord Elgin. The sculptures comprise roughly 50 percent of the surviving sculptures from the temple, the other half held by the Acropolis Museum in Athens. Additionally, fragments from the Parthenon are held by several other museums, including the Musée du Louvre and the Vatican Museums. Some fragments have been returned to Greece, including those given by the University of Heidelberg and a museum in Palermo, Sicily (the Greek government then loaned this fragment back to Palermo). The Vatican Museums loaned one of its fragments to the Acropolis Museum.
The Parthenon was constructed between 447 and 432 B.C.E., and is regarded as the exemplar of classical art and architecture at the height of Periclean Athens. It was designed and built by the architects Ictinus and Callicrates under the supervision of the sculptor Phidias, and it originally served as a temple to Athena and as a symbol of Athenian civic life. Part of the temple was destroyed by fire in 195 B.C.E., with more destructive fires occurring with the invasion of the Germanic Heralic tribe in A.D. 267 and the Visigoth sack of Athens under Alaric in 396 C.E. In the 5th century C.E. it was transformed into a Greek Orthodox cathedral (Theotokos Atheniotica), then a Roman Catholic cathedral (Notre Dame d’Athenes) under the Franks in 1204, and, in 1458, under Ottoman rule, it was again transformed into a mosque. In 1687, the Parthenon was being used as a military center. During the bombardment of Athens by Venetian forces, a powder magazine located in the Parthenon suffered a hit, and the resulting explosion destroyed a large part of the structure. At the time of Lord Elgin’s ambassadorship, the Parthenon was still being used by the Ottoman army, and was referred to as the “citadel.” Continue Reading
This article is the fourth in a five-part series discussing the restitution, repatriation, and return of cultural objects. Each part addresses a different category of return. The first article in the series addressed the restitution of stolen cultural objects. The second article (available here, here, and here) discussed developments in the restitution of cultural objects taken during World War II. The third article discussed the restitution of illicitly excavated and/or illicitly exported cultural objects. This article discusses the return of cultural objects removed during the period before legal norms developed protecting and prohibiting the destruction of cultural property during times of armed conflict, with particular reference to the long-standing dispute concerning the Parthenon sculptures. The remaining article (which will appear in coming weeks) will discuss issues in the repatriation of tribal and indigenous cultural objects.
Cultural Property and Plunder in the Age of Empires
In thinking about some competing claims to cultural property, the well-worn line from William Faulkner rings true: “The past is never dead. It’s not even past.” Many past practices, though commonplace and accepted in their day, are considered improper or unjust today. In the area of cultural property, it was common practice for millennia for invading or occupying powers to take as plunder or tribute the cultural treasures of the vanquished. An international legal norm against these types of takings only began to emerge in the mid-19th century and even then it was the early 20th century before those norms crystalized into generally accepted (and enforceable) international legal rules (even so, it applied only to destruction or plunder of cultural property during periods of armed conflict, and said nothing of the protection of cultural property during peacetime). Inevitably, many public and private collections around the world contain objects that were removed – and perhaps more than once – during this long age of plunder. Continue Reading
The Forger’s Art
In a case involving the sale of a fake or forged work of art, typically the first order of business is for the plaintiff to establish that the work is, in fact, not authentic, with each side marshaling its experts. In the case of the De Sole Rothko, this step was unnecessary. Before the trial commenced, Rosales entered a plea, admitting guilt, in a criminal action brought by the U.S. government. In a statement read into the record at the time of her plea, Rosales admitted that “I agreed with others to sell works of art claimed to be created by various expressionist artists, including Mark Rothko, Jackson Pollock, and Robert Motherwell, and to make false representations as to the authenticity and provenance of those works…All of the works I sold to [Knoedler Gallery] …were, in fact, fakes.” Rosales’s accomplices – her boyfriend, art dealer Jose Carlos Bergantiños Diaz, his brother, Jesus Angel Bergantiños Diaz, and the actual forger, Pei Shen Qian – were also indicted. All three men fled the United States – the Diaz brothers to Spain and Qian to China. 
In 2011, the 165-year-old Knoedler & Company (“Knoedler”), one of Manhattan’s most venerable galleries, abruptly closed its doors amid accusations that the gallery had been selling fakes for more than a decade. Ten lawsuits have been filed against the gallery and its former director, Ann Freedman, six of which have ended in settlements. Four suits remain pending. These cases have involved works purporting to be by Robert Motherwell; Jackson Pollock; Clyfford Still;  Willem de Kooning;  and Mark Rothko. The most recent of these to settle is the suit brought by collectors Domenico and Eleanore De Sole (the “De Soles”) against Knoedler and Freedman. That suit produced two weeks of closely-watched testimony before the parties reached separate agreements on February 7th (with respect to Freedman)  and Februray 10th (with respect to the gallery).
Since the De Sole case settled, it did not elicit a refined judicial statement on the due diligence required of a sophisticated collector when purchasing a work of art or, conversely, the due diligence required of a leading gallery when investigating a work’s provenance and authenticity, as some commentators had hoped. However, the trial is important because it opened a window into how an artwork’s provenance is investigated, and how a work is authenticated and an attribution established. It is a case study in interpretation, misinterpretation, and misdirection. This case offers lessons not only in due diligence, but in the importance of maintaining a self-protective skepticism in the highly relationship-based environment of art transactions. The question this case asks, for the collector, the gallerist, and the authenticator, is: “What information can and should a person rely on?”
Kevin Ray authored an article for the December 2015 issue of The Secured Lender which discusses art consignment fraud. Click here to read the full article.
In 1926, Lilly Cassirer Neubauer inherited a painting by Camille Pissaro, Rue St. Honore, apres midi, effet de pluie (1897). As German Jews, Lilly and her husband were subjected to the discriminatory racial laws of the Third Reich. They fled Germany in 1939, but as a condition of their receiving exit visas to leave the country, Lilly was required to “sell” the painting to a Nazi art appraiser for payment of ca. $350, which was deposited in a blocked bank account to which Lilly was not given access.
After the war, the painting was purchased by a Los Angeles collector, then by a St. Louis collector, and, in 1976, by Baron Hans-Heinrich Thyssen-Bornemisza of Lugano, Switzerland (the Baron). The Baron displayed the painting there, as part of the Thyssen-Bornemisza Collection (the Collection). In 1988, the Baron and the Kingdom of Spain entered into an agreement for the Baron to loan the Collection to Spain. Spain established a private, non-profit foundation to “maintain, conserve, publicly exhibit, and promote artwork from the Collection,” of the Thyssen-Bornemisza Collection Foundation (the Foundation), and also restored the Villahermosa Palace in Madrid to house the Collection. Ultimately, in 1993, Spain purchased the Collection from the Foundation.
Lilly’s heirs discovered the painting at the Foundation in 2001, and petitioned Spain and the Foundation to return the painting. Spain’s Minister of Education, Culture and Sports denied that request. Subsequently, five members of the U.S. Congress wrote to the Minister, asking Spain and the Foundation to return the painting to Lilly’s heirs, which request was likewise refused.
After being subjected for years to ruinous litigation in suits brought by owners of artworks displeased with authentication opinions unfavorable to the owner’s preferred outcome, art authenticators – including artists authentication boards, authors of catalogues raissonne, and scholars – stopped giving authentication opinions. Even when they ultimately prevailed on the suits, the cost of the litigation was prohibitive. I have previously discussed the dilemma facing authenticators here.
In an attempt to provide art authenticators with some measure of protection, on June 15th, the New York Senate approved a bill entitled “An act to amend the arts and cultural affairs law, in relation to opinions concerning authenticity, attribution and authorship of works of fine art,” S. 1229-A-2015 (the “Bill”). The Bill amends New York’s Art and Cultural Affairs Law to (i) add a definition of “Authenticator,” (ii) heighten the pleading standards for plaintiffs bringing actions against authenticators, (iii) preclude a prevailing plaintiff from receiving legal costs in suits against authenticators, and (iv) authorizes courts to grant prevailing authenticator legal costs, upon a finding of good and just cause.
This article is the third in a five-part series discussing the restitution, repatriation, and return of cultural objects. Each part addresses a different category of return. The first article in the series (available here) addressed the restitution of stolen cultural objects. The second article (available here, here, and here) discussed developments in the restitution of cultural objects taken during World War II. This article discusses the restitution of illicitly excavated and/or illicitly exported cultural objects, which is the subject of the Protect and Preserve International Cultural Property Act, which is discussed in this article. The remaining articles, which will appear in coming weeks discuss (1) the repatriation of tribal and indigenous cultural objects, and (2) the return of cultural objects removed during colonial occupation.
U.S. efforts at protecting and preserving international cultural property, which currently is spread across no fewer than seven federal agencies, may soon be better coordinated. On June 1st, the U.S. House of Representatives passed the Protect and Preserve International Cultural Property Act (H.R. 1493 or the Act), which would establish a new position within the Department of State – the U.S. Coordinator for International Cultural Property Protection (the Coordinator). The House bill sponsors are: Rep. Eliot L. Engel (D-NY); Rep. Christopher H. Smith (R-NJ); Rep. Edward R. Royce (R-CA); Rep. William R. Keating (D-MA); Rep. Albio Sires (D-NJ); Rep. Ted Poet (R-TX); Rep. Brad Sherman (D-CA); Rep. David N. Cicilline (D-RI); and Rep. Juan Vargas (D-CA). Although no corresponding bill has yet been introduced in the Senate, a corresponding bill is anticipated. The Coordinator would work with federal agencies to coordinate and promote their activities – this would include diplomatic, military, and law enforcement activities. The Act would also create a Coordinating Committee on International Cultural Property Protection, which is to be chaired by the Coordinator, with the committee members comprised of representatives of the Department of State, the Department of Defense, the Department of Homeland Security, the Department of the Interior, the Department of Justice, the U.S. Agency for International Development, the Smithsonian Institution, and such other entities as the chair may deem appropriate.
On May 5th, the U.S. Court of Appeals for the Ninth Circuit, en banc, issued a long-awaited decision in a suit brought by a group of artists against several major auction houses, [Estate of Graham v. Sotheby’s Inc.; Sam Francis Foundation v. Christie’s, Inc., 860 F.Supp.2d 1117 (C.D. Cal. 2012)] upholding, but narrowing, the District Court’s 2012 decision, which struck down the California Resale Royalty Act (CRRA) for impermissibly regulating out-of-state conduct. Since it was enacted in 1976, the CRRA has been the only artist’s resale royalty statute in the U.S., and remains so, applying now exclusively to sales occurring within California. The economic impact of this California-only five percent resale royalty will likely be felt immediately, as California-based sellers weigh the convenience of a local sale against out-of-state sales.