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Kevin P. Ray

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Kevin Ray focuses his practice in the areas of art and cultural heritage law and financial services, such as lending transactions and restructuring/insolvency matters. He represents and advises artists, art galleries, art collectors, museums, and cultural institutions in a variety of transactions, including consignments, questions of title, provenance, and compliance with national and international law. He advises lenders and debtors on issues unique to art, antiquities, and other cultural property in a variety of lending and commercial transactions.

In finance and restructuring matters, Kevin represents U.S. and foreign lenders and borrowers in structuring domestic U.S. and cross-border commercial and corporate loan transactions, as well as corporate reorganizations, museum and not-for-profit organization restructurings and reorganizations, debtor-in-possession and exit financings, debt restructurings, enforcement of creditors’ rights, insolvency matters, and negotiating standstill and forbearance agreements.

Prior to practicing law, Kevin was director of rare books, manuscripts and art collections at Washington University in St. Louis and taught at the Washington University School of Art.

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More than seven years is a long time to wait for a loaned painting to be returned. But after such a long wait, Sandro Botticelli’s Madonna and Child (1485) is being returned to its owner, Kraken Investments Limited (Kraken).   Kraken had consigned the painting to a gallery for sale, but the gallery’s bankruptcy intervened. For a time, it seemed that the painting would never be returned to Kraken, and that instead the gallery’s lender’s security interest would take priority, leaving Kraken within only an unsecured claim in the bankruptcy case. That dispute has only recently been resolved, with a reversal giving the Botticelli back to Kraken. [See Kraken Investments Ltd. v. Jacobs (In re Salander-O’Reilly Galleries, LLC), Case No. 14-cv-03544 (S.D.N.Y. Nov. 25, 2014)] It has been, for many, a cautionary tale.

Recent years have seen the collapse of several major art galleries, some from financial conflicts with lenders or other parties, other from shady business practices and outright fraud. Perhaps the most spectacular was the collapse of Salander O’Reilly Galleries, LLC (SOG). In 2007, SOG was facing numerous lawsuits alleging that SOG and its founder and principal Larry Salander (Salander) had double-pledged works, and had sold others but failed to pay their consignors the proceeds from the sales. Several of SOG’s creditors filed an involuntary bankruptcy petition against the gallery in the United States Bankruptcy Court for the Southern District of New York (the Bankruptcy Court), which was subsequently converted to a voluntary petition under chapter 11 of the Bankruptcy Code. At the time of the bankruptcy petition, SOG possessed more than 4,000 artworks, some of which it owned (in whole or in part), but many were not owned by SOG, and had been consigned to SOG by artists, artists’ estates, collectors, or other dealers. SOG’s victims included Earl Davis, who consigned more than 90 of his father, Earl Davis’s paintings (Davis v. Carroll) , Robert De Niro, Jr., who consigned 12 of his father, Robert De Niro, Sr.’s paintings, and John McEnroe, who had entered into a joint-ownership arrangement with Salander to acquire two paintings by Arshile Gorky, only to find himself a victim of double-dealing. The fall of SOG presents, in microcosm, almost every possible way in which a secured transaction, consignment or entrustment of art or cultural property can go awry, and it spurred amendments to the art consignment provisions of New York’s Art and Cultural Affairs Law. [1]…

Continue Reading Botticelli’s ‘Madonna and Child’: The Risks of Art Consignment

InstrumentsBefore the new rule went into effect, objects at least 100 years old that are either made of African elephant ivory or included ivory components were exempt from the general Endangered Species Act (ESA) and Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) ivory prohibition.[1] This changed dramatically under the original version of the rule that was issued in February, which (i) wholly eliminated the antique exception for commercial transactions (i.e., sales), and (ii) retained the antique exception for non-commercial transactions only if the object has not been sold after Feb. 26, 1976. Recognizing that the “non-commercial movement of musical instruments and certain other CITES pre-Convention” objects are not “contributing to the poaching crisis or to illegal trade,” the service amended its earlier order.

As modified in May, the rule now allows qualified antiques to be imported for non-commercial purposes (loans, traveling exhibitions, etc.). However, no commercial importation of any African elephant ivory is allowed, even if those objects would otherwise qualify as antique.
Continue Reading U.S. Criteria for The Antique Exception to the Ivory Ban

Earlier this year, in response to concerns that poaching of African elephants is rapidly driving the species to extinction, the U.S. federal government tightened restrictions on the import, export, transfer, and sale of African elephant ivory and rhinoceros horn.[1] The revised restrictions followed on President Obama’s July 2013 executive order committing the U.S. to increase its efforts to halt wildlife trafficking. As reported by the Wildlife Conservation Center, “[t]here were an estimated 1.2 million African elephants in 1980, but now the population is down to less than 420,000. . . . For forest elephants, a separate species from the savannah elephant, the news is worse. Ten percent of the population was killed in 2012, and another 10 percent in 2013. . . . With fewer than 100,000 left, extinction could be only 10 years away.” Wildlife conservationists argue that a complete ban on the sale of ivory is necessary, and is the only way to stop poaching of elephants. Some have suggested that a complete ban on ivory actually facilitates further looting and an illicit ivory market, and have urged the creation of a limited, regulated, licit market in ivory. 

The new rule’s most controversial change has been its limitation of the antique exception to the general ban on ivory, which previously allowed commercial and non-commercial import, export, transfer and sale of objects at least 100 years old that were either made of ivory or included ivory elements. The original version of the amended rule that was announced in February eliminated the antiques exception in all commercial contexts and substantially limited it in non-commercial contexts. New York and New Jersey have similarly tightened their existing restrictions on the trade in and transfer of ivory. California, Maine, and Hawaii are expected to follow suit. …
Continue Reading Collateral Damage: Ivory Ban’s Effects on Collectors, Museums, Musicians, and the Art Trade

Over the last decade, art authentication experts have left the field at alarming rates, declining to give opinions on works for fear of expensive litigation. The suits brought against them have not only been for negligence or malpractice, but for statements of professional opinion. They may also have liability when stating that a work of art is not authentic and this causes a loss to the owner or someone else with an interest in the work. When an expert states that a work is not authentic, the dissatisfied owner has a number of different legal theories to choose from as a basis for a claim. Typical bases in recent cases have included defamation, libel, slander, unfair business practices, unfair competition, and disparagement. The core distinction in many of these doctrines is whether the speaker gave an opinion or made a statement of fact.      

It is not unusual for the authentication of the work contemporary artists to be placed in the hands of a specific group of experts, often the artist’s friends, family, or gallerists. In some forms, the practice derives from the European droit morale, where the right to authenticate works lies exclusively with the artist, who has an absolute right to declare a work inauthentic. In France, for instance, where the right is perpetual, the right to authenticate works passes through the artist’s estate to either family or close friends. U.S. practice tends to be concentrated more in artists foundations, which often work with scholars to establish and confirm the artist’s authentic oeuvre.      …
Continue Reading Authenticity and Attribution

In the press and in popular culture, art theft and art forgery tend to be linked, and are often glamorized to a greater or lesser extent.1 The reality, however, is usually far more mundane, if not outright seedy (although efforts at recovery often have admirable, even >heroic overtones). In recent years, there have been several highly-publicized instances of forgery, including the sales of fake works by modern masters like Mark Rothko and Jackson Pollock that brought down the eminent Knoedler Gallery, and the extraordinarily successful fakes of the German painter Wolfgang Beltracchi, who after his fraud was disclosed, became the subject of many press articles, newscasts, and even a documentary, “Beltracchi: The Art of Forgery” (2014).

Unlike art thieves, however, art forgers and art fakers sometimes go on to a secondary career as fake-artists in their own right, enjoying a kind of glamorous notoriety, as Beltracchi has done. But Beltracchi is not alone in this. John Myatt now sells his “legitimate fakes,” Others have included Elmyr de Hory, Eric Hebborn, whose posthumous reputation as a master forger resulted in a recent auction of a number of his drawings in the style of old masters, and Mark Landis, who, somewhat uniquely, donated his faked works to museums. Perhaps the most famous forger was Hans van Meegeran, who forged Vermeers in pre-war Germany, selling one to Hermann Goering. Fakes and forgeries are even not infrequently the subject of exhibitions highlighting the forger’s own art. Some commentators have even suggested that fakes may be “the great art of our age.”      …
Continue Reading Authenticity, Fakes and Forgeries

The artist resale royalty right, what in Europe is often called the droit de suite, is a form of intellectual property right that allows primarily visual artists (who produce work in single objects or limited editions) with a right to receive a percentage of the purchase price when their works are resold. The resale royalty’s purpose is to allow artists to share in the increased value of their work over time. Each time a work is sold for a higher price than was originally paid for the work, a percentage of that sale price is required to be paid to the artist or the artist’s estate or heirs. Typically, the resale royalty falls within copyright law (and is provided for in the Berne Convention, Art. 14ter), and attempts to bring the visual artist’s rights into closer alignment with the rights of authors and recording artists, where the right to receive royalties is not cut off at the time of the original sale of a work or a copy. Although the droit de suite originated in France, it has been widely incorporated into copyright law in Europe and elsewhere. Currently, more than seventy countries provide in some measure for a resale royalty.1 However, it is not currently incorporated into U.S. copyright law. That may be changing.    …
Continue Reading Droit de Suite: California Resale Royalty Revisited

“Art” is famously difficult to define. To many artists, a definition is either a challenge or an offense. For the art trade, the working definition is pragmatic and fluid – art is a tangible object embodying the creative efforts of one or more individuals, generally in certain traditionally recognized media such as painting and sculpture, but also ceramics, textiles, and, increasingly, conceptual art and art in new media. The term “cultural property” developed from a need to recognize a broader body of objects, which includes artworks, but is not limited to artworks. Cultural property also includes antiquities, books, manuscripts, scientific collections, collections of books or archives, monuments of architecture, groups of buildings, and archeological sites.  It has further expanded to include ethnological and paleontological objects.

The term “cultural property” was first used in an international instrument in the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict.1 The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property2 expanded the protection afforded to cultural property to include peacetime, and identified cultural property as “property which, on religious or secular grounds, is…of importance for archaeology, prehistory, history, literature, art or science.”      …
Continue Reading The Future of History – Repatriation of Cultural Property

As the City of Detroit’s (the City) bankruptcy case enters its final phase, and confirmation of its plan of adjustment seems all but certain, the future of the Detroit Institute of Arts (DIA) appears assured. This has not always been the case, since how the DIA’s valuable art collection would be handled was a key point of contention between the City and several of its creditors. In retrospect, the struggle for the future of the DIA is interesting for several reasons. The first of those reasons is now likely to remain an unanswered question: Had the City wished to sell all or part of the DIA’s collection, could it have done so, or was the collection (or certain parts of it) held in charitable trust or otherwise subject to enforceable donor restrictions? It is an important question, not least because the law addressing the question of enforceability of donor restrictions (particularly in bankruptcy) is sparse and inconclusive. The second reason the DIA discussion continues to be interesting is for the light that it sheds on how art is valued. Art appraisals are seldom public documents, and competing appraisals that include critiques of the other’s assumptions, methodologies, and conclusions, are rarer still. The third reason the DIA discussion has been important is for its focus on the role of art (specifically, publicly-available art) in a city’s self-image and life. This part of the discussion has played a small role in the case directly, but has played a much larger role in the public discussion surrounding the DIA.
Continue Reading Art Valuation: The Detroit Institute of Arts

Photographer Vivian Maier posthumously emerged as an important and previously unknown American street photographer after the contents of her storage lockers were sold at auction in 2007.  The storage lockers contained negatives – many negatives.  But the identity of the photographer was not immediately known.  Maier was identified as the photographer shortly before she died in 2009, but it was only after her death, as prints of her photographs were published, exhibited and sold, did she receive acclaim.

But now, the question of who has the right to control her legacy is in dispute.  In August, Julia Gray wrote:

Today, the majority of Maier’s work — prints, Super-8 films and thousands of negatives — is owned by three men: Jeffrey Goldstein, John Maloof and Ron Slattery. Both Goldstein and Maloof have sold prints in limited editions through galleries.

Slattery only has the original prints and some negatives that he bought at the 2007 auction. Goldstein and Maloof have obtained a great deal more of Maier’s artistic output, as well as cameras and other personal items, from her estate. They both sell limited edition prints through galleries. Goldstein has also published a book of Maier’s photos, and Maloof is working on a documentary about her discovery and legacy, which will debut at the Toronto International Film Festival in September.
Continue Reading The Rights of Images: Vivian Maier – The Battle for a Photographer’s Legacy

We typically believe that if we entrust our property to someone else to sell it, the property remains ours until it is sold. However, this may not always be true. If the party into whose hands property has been entrusted files for bankruptcy, the entrusted property may be deemed to be property of the debtor’s bankruptcy estate and the bankruptcy trustee may have the right to sell the property and the debtor’s secured creditors and judgment creditors may even have a higher priority to receive distribution of proceeds from the property’s sale.     

This type of transaction is a “consignment,” which the Uniform Commercial Code (UCC) defines as “a transaction. . . in which a person delivers goods to a merchant for the purpose of sale.” UCC § 9-102(a)(20). To qualify as a consignment, the consigned artwork must have a value of not less than $1,000 and must not be “consumer goods.” UCC § 9-102(a)(20)(B). “Consumer goods” are those which are “used or bought for use primarily for personal, family, or household purposes.” UCC § 9-102(a)(23). Although many artworks will be considered consumer goods, particularly those consigned by art collectors, artworks that are held for investment purposes or which are consigned by art dealers, corporate entities (i.e., corporate collections), or museums are not consumer goods. Also, the party to whom the artwork is consigned (the consignee) must deal in artwork of that kind, must not be an auctioneer, and must not be generally known to sell artworks owned by others. UCC § 9-102(a)(20)(A).      …
Continue Reading Art Consignment