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
Continue Reading Cassirer v. Thyssen-Bornemisza Collection Foundation: Application of Spanish Law of Adverse Possession Vests Title to Pissaro Painting in Spanish Museum, Not Original Owner’s Heirs

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

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

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

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