The Restitution, Repatriation, and Return of Cultural Objects: House Passes Bill to Coordinate U.S. Cultural Property Protection

Posted in Cultural Property Protection

This articlshutterstock_June 26e 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.

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California Cannot Require Resale Royalty on Out-of-State Art Sales, But the Most Important Issues Remain to Be Addressed on Remand

Posted in Art Sales, Resale Royalty

shutterstock_52529953On 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.

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The Restitution, Repatriation, and Return of Cultural Objects: Von Saher: Court Says Statute of Limitations for Recovery of Stolen Art Runs Anew Against Subsequent Purchasers/Transferees

Posted in Art Recovery, Stolen Art

Nearly two decades have passed since more than 40 governments and many international non-governmental organizations gathered in Washington, DC, for the Washington Conference on Holocaust-Era Assets (the “Washington Conference”). The states attending that conference endorsed a set of 11 principles, known as the Washington Conference Principles, broadly calling upon states, institutions, individuals, and others to identify Nazi-confiscated art and to provide for the restitution of such art to its rightful owners or their heirs. I have discussed the context of the Washington Conference Principles here and here. Last fall, the Conference on Jewish Material Claims Against Germany issued a report, Holocaust-Era Looted Art: A Current World-Wide Overview, assessing (and largely critiquing) states’ efforts to implement the Washington Conference Principles. I have discussed that report here.

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Artist Resale Royalty and Artist-Museum Partnership Bills Re-Introduced

Posted in Art Sales, Artist-Museum Partnership

In recent weeks, two potentially important bills that would establish significant rights in favor of artists were re-introduced in the United States Congress.  One, the Artist-Museum Partnership Act, would allow artists (as well as writers, composers, and others) to receive charitable tax deductions for donations of self-created work to museums, libraries, and other qualified charitable organizations.  The other, the American Royalties Too (ART) Act, which is more controversial, would establish a federal artist’s resale royalty right, under which visual artists would receive a percentage royalty upon the resale of their work.

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ISIS’s Destruction of Antiquities and Ancient Sites

Posted in Art Destruction

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Iconoclasm and Looting
The recent destruction of sculptures and other objects in the Mosul Museum, as well as the ancient cities and archaeological sites of Nimrud, Hatra, and Dur Sharrukin[1] by the Islamic State of Iraq and Syria (ISIS), sometimes also referred to as the Islamic State of Iraq and the Levant (ISIL), has been widely condemned.[2] Many have identified the motivation behind the destruction as an ideology-driven iconoclasm.  [UNESCO Director-General, Irina Bokova, condemned the destruction, noting that “the attack was in direct violation to the most recent Security Council resolution 2199 that condemns the destruction of cultural heritage and adopts legally-binding measures to counter illicit trafficking of antiquities and cultural objects from Iraq and Syria.” See Iraq: UNESCO Outraged over Terrorist Attack against Mosul Museum,” UN News Centre, Feb. 26, 2015. To view a video of the destruction at the museum, see Ben Wedeman and Dana Ford, “Video Shows ISIS Militants Destroying Antiquities in Iraq,” CNN, Feb. 27, 2015. See also Kareen Shaheen, “Isis fighters destroy ancient artefacts at Mosul museum,” The Guardian, Feb. 26, 2015.]  Continue Reading

The Restitution, Repatriation, and Return of Cultural Objects: Restitution of Cultural Objects Taken During World War II (Part II)

Posted in Art Recovery, Stolen Art

This article is thshutterstock_35931382e second 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. This article is the continuation of Part 1 and discusses developments in the restitution of cultural objects taken during World War II. The remaining articles address: (1) the restitution of illicitly excavated and/or illicitly exported cultural objects, (2) repatriation of tribal and indigenous cultural objects, and (3) the return of cultural objects removed during colonial occupation.

Museums’ Use of Technical Defenses: Von Saher and Beyond

The question of museums waiving defenses, as the AAM Standards suggest, has emerged as an important point of conflict in Nazi-era restitution cases. In a few instances, museums have filed quiet title actions against restitution claimants, asking courts to issue declaratory judgments that the museums have good title to the objects and/or the claimants’ rights have been lost due to statutes of limitations or laches. [See, e.g., Toledo Museum of Art v. Ullin, 477 F. Supp. 2d 802 (N.D. Ohio 2006); Detroit Inst. of Arts v. Ullin, No. 06-10333, 2007 WL 1016996, at *1 (E.D. Mich. Mar. 31, 2007); Museum of Fine Arts, Boston v. Seger-Thomschitz, Case No. 08-10097-RWZ, 2009 WL 6506658 (D. Mass. June 12, 2009); Museum of Fine Art v. Schoeps, 549 F.Supp.2d 543 (S.D.N.Y. 2008).] Such cases remain rare, and are controversial. [See, e.g., Grosz v. Museum of Modern Art, 772 F.Supp.2d 473 (S.D.N.Y. 2010); Simon J. Frankel and Ethan Forrest, “Museums’ Initiation of Declaratory Judgment Actions and Assertion of Statutes of Limitations in Response to Nazi-Era Restitution Claims – A Defense,” 23 DePaul J. Art, Tech. & Intell. Prop. L. 279, 281 (2013).] However, museums asserting statutes of limitations and laches defenses – what have become known as “technical defenses” – rather than allowing cases to be decided solely on the merits is not less controversial. [1]

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The Restitution, Repatriation, and Return of Cultural Objects: Restitution of Cultural Objects Taken During World War II (Part I)

Posted in Art Recovery, Stolen Art

shutterstock_249573721This article is the second 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, available here, addressed the restitution of stolen cultural objects.  This article discusses developments in the restitution of cultural objects taken during World War II.  The remaining articles address: (1) the restitution of illicitly excavated and/or illicitly exported cultural objects, (2) repatriation of tribal and indigenous cultural objects, and (3) the return of cultural objects removed during colonial occupation.

Although it may seem counter-intuitive, some of the most important developments in the restitution of cultural objects and other assets confiscated in the period surrounding World War II have occurred only within the last decade or so.  Some restitution was done, of course, at the conclusion of the war.  The cultural objects that the Allied forces recovered were returned to the countries from whose citizens or museums they had been taken (in a process known as “external restitution”), for those countries to then return to their owners (“internal restitution”).  However, those actions were complicated by the loss of people, records, communities, and communal memory.  They were also complicated, prevented, or delayed by the resistance of governments and legal systems to adequately address the question of restitution, as well as a variety of political complications, not least of which was the Cold War, which locked people, cultural objects, and information behind the Iron Curtain.  It took a combination of the end of Communism (with the unlocking of museums and archives in the former Soviet territories), the publication of pioneering studies of Nazi-era looting, and the persistent efforts of organizations like the Claims Conference and the World Jewish Congress to raise public awareness of the continuing problem of restitution.  The statements of principles, statements of ethics, settlements, and court decisions have produced (and continue to produce) a profound change in the art trade and museum practice with respect to the understanding and treatment of confiscated and duress sale cultural objects.  These efforts have produced an on-going reassessment of the question of restitution, whose effects will be felt in many other restitution contexts as well.

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The Restitution, Repatriation, and Return of Cultural Objects: When Objects Go Back

Posted in Art Recovery, Stolen Art

An important and frequeshutterstock_107820275ntly misunderstood development in the law of art and cultural property in recent decades has been the elaboration in national laws, international instruments, and customary international law of the rights of individuals, groups, nations or other entities to obtain the return of cultural objects that were taken from them, their ancestors or predecessor, or their territory at some point in the past. I have previously discussed differing views on the repatriation of certain types of cultural property and the discussion is available here. This article is the first in a five-part series discussing restitution, repatriation, and return of cultural objects.  Each part addresses a different category of return: (1) restitution of stolen cultural objects, (2) restitution of cultural objects taken during World War II, (3) restitution of illicitly excavated and/or illicitly exported cultural objects, (4) repatriation of tribal and indigenous cultural objects, and (5) the return of cultural objects removed during colonial occupation.

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U.S. Ivory Regulation: A Q&A with Craig Hoover, U.S. Fish & Wildlife Service

Posted in Art Ban, Art Sales, Art Transactions, Art Valuation

In response to concerns that poaching of African elephants is rapidly driving the species to extinction, the U.S. Fish & Wildlife Service (USFWS) issued Director’s Order No. 210, which tightened previous practice involving the import, export, and sale of African elephant ivory. The changes met with considerable resistance from a wide range of persons, including museum professionals, musicians, antiques dealers, and collectors. There has been not only consternation, but also confusion about what these changes mean for many transactions involving objects that may contain ivory components.  I have previously discussed these changes here and here.

To help provide some clarity on what precipitated these changes, what the changes are, and what impact they may have, I spoke with Craig Hoover, Chief of the U.S. Fish and Wildlife Service Wildlife Trade and Conservation Branch, for a brief Q&A.

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Determining the IRS’s Fair Share: Considering Discounts to Establish the Value of Interests in Artwork for U.S. Transfer Tax Purposes

Posted in Estate Tax, Gift Tax, Transfer Tax

Written by William E. Keenen

Under U.S. law, a tax generally is imposed whenever one individual gratuitously transfers an interest in property to another. This tax is computed on the value of the property interest transferred, whether during one’s life (to which the gift tax applies) or at one’s death (to which the estate tax applies). In some instances, a discount in the value of an interest in property may be taken by a donor or the executor of an estate when filing a gift or estate tax return, as the case may be. The 5th Circuit Court of Appeals recently decided Estate of Elkins v. Commissioner [767 F.3d 443 (5th Cir. 2014)] in which the court considered discounts to establish the value of fractional interests in artwork.

When James Elkins, son of the founding partner of the Vinson and Elkins law firm, died, he owned fractional interests in 64 very valuable works of art. Mr. Elkins and his wife had accumulated the artwork over the course of their marriage, which constituted the couple’s community property under the laws of Texas, where they resided during their marriage. Prior to Mr. Elkins’ death, the artwork had been maintained in his home, his office, the homes and offices of his children as well as on display in various public places. Mr. and Mrs. Elkins each settled a so-called grantor retained income trust (a GRIT) to which each of them transferred his or her respective interests in three works of art, which the Tax Court termed the “GRIT Art”. The other 61 pieces, which, for the reasons discussed next, were referred to by the Tax Court as the “Disclaimer Art”, were owned outright by Mr. and Mrs. Elkins.

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