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]


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

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.


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

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.

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

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.


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

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.


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

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

Written by Hugo López Coll, Luis Torres and Guillermo Miranda*

It is impossible not to be deeply moved by Diego Rivera’s Vendedora de Alcatraces, Frida Kahlo’s incredible self-portraits, or José Clemente Orozco’s El hombre en llamas, all of which have become cornerstones of Mexican identity and cultural heritage. However, what people may not realize is that Mexico strictly regulates the exportation of such artworks.

Mexico has established a series of laws and regulations concerning the country’s cultural, artistic and anthropological heritage, including explicit references in the Mexican Federal Constitution, specialized laws and regulations, as well as standards published by institutes devoted to protect such heritage, like the National Institute of Anthropology and History (INAH) and the National Institute of Fine Arts (INBA).

To protect the country’s cultural heritage (including these 20th century masterpieces), Mexican presidents have issued a number of decrees over the last several decades, designating all the works of José Clemente Orozco, Diego Rivera, José María Velasco, and Gerardo Murillo Coronado (known as Dr. Atl) as “historical monuments.” Under Mexican law, historical monuments are regulated and maintained by the INAH. A designation as a historical monument carries obligations even for private owners of these works, requiring them to maintain specific levels of care, maintenance, and restoration of the works. A designation as a historical monument also requires that the works be retained in Mexico.
Continue Reading In love with Diego or Frida? A brief look at Mexican art regulations

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