Book Review: “Art and Business: Transactions in Art & Cultural Property” (2016)

March 15, 2017

By Marine Leclinche

With every new publication on the subject of art law we are pleased to note the developments and growth of the field, as well as acknowledge new authors tackling the subject.

In his introduction, to Art and Business Kevin P. Ray, a Chicago-based attorney who specialized in art and cultural heritage and financial services at Greenberg Traurig, LLP, explains that this book is not intended to be exhaustive but rather to “provide an introduction to what people need to know when entering into transactions that involve art”. Indeed, the goal is deftly accomplished by the book that provides a comprehensive and concise presentation of the transactional issues and challenges encountered in the global and developing art market. While the author wishes for his book to be of interest to artists, collectors or attorneys, it can also be added that this book is definitely worth reading for students graduating from law school or art school. Even if art law is now an accepted practice area, and law schools are more and more willing to train students to this field, this textbook is a good reminder of the diversity of the subject. Art law encompass many diverse issues in addition to copyright and infringement.

Ray’s examination of the art law field is divided into ten chapters. Of the ten chapters, the first seven introduce readers to the basics of art transactions where art deals are involved, namely: cultural property, intellectual property, art trade, authenticity or title, but transactions in the art world are not always mere question of copyright infringement, title or authenticity, there can be restrictions on materials, or preemptive rights among countries that can complicate international business relationships for example. Ray uses the last three chapters to synthesize the themes of art finance and art-secured transactions, areas which may be less familiar to some art professionals

The book also contains two Appendices on restrictions applicable to art and cultural property. Appendix A provides information about the type of restrictions (e.g. export or import restriction) applicable to art and cultural property and their legal sources (national laws and regulations), and categories of objects to which these restrictions could apply. The second list categorizes restrictions according to market sectors (e.g. for Impressionist and Post-Impressionist, restrictions could apply on materials, on exports or on imports)

The first chapter “Art and Cultural Property in the Law” is a good introduction to understanding how art has been defined throughout centuries. The role of art in our societies has changed throughout time and discoveries of new techniques or materials and so has its definition. While this chapter is more conceptual at first, the author is able to quickly guide the reader towards legal status of art. For the author, the legal definition of art is essential for at least two areas: customs classification and copyright and intellectual property.

The second chapter is dedicated to intellectual property and copyright laws. The author uses cases in order to illustrate the challenge of ‘copyrightability’ and the purpose of infamous fair use doctrine and moral rights. The last section of this chapter concerns artists’ resale rights and sums up very well the origin of the rejection by U.S. copyright law and the difficulties to create or maintain a bill on resale royalty.

The third chapter explores the question of cultural property, a complex issue that has been first used in the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict (the “Hague Convention”). While the Hague Convention includes both movable and immovable cultural property, it applies only during periods of armed conflicts.

In 1970, the UNESCO Convention, eventually addressed the issue of protecting cultural property in peacetime and targeted specifically moveable cultural property which makes it more relevant, according to the author, to art trade and transactions discussed in his book.   As explained by the author, source countries (“countries that were the location of ancient civilizations, many of which are former colonies”) started to advocate for a convention that could regulate the removal of some objects during colonials period by market countries (“important centers of the art and cultural property trade […] which are former colonial powers”). Nevertheless it seems that the effectiveness of the 1970 UNESCO Convention was put into question, those doubts led to the creation of the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects adopted in 1995. This Conventions applies to international claims for the restitution of stolen cultural object and the return of cultural objects, but it has been ratified by less states than the 1970 UNESCO Convention meaning that “it has limited applicability for most art transaction”.

One of the most famous examples of a continuing dispute over tangible cultural property concerns the Parthenon Sculptures (formerly called the Elgin Marbles). The Parthenon was constructed between 447 and 432 B.C.E and served originally as a temple to Athena. The temple was used for diverse purpose such as: a Greek Orthodox cathedral (5th century C.E, a Roman Catholic cathedral (in 1204), a mosque in 1458 or a military center in 1687. It suffered several destructions by fire and bombardments. Several sections of the book are dedicated to the dispute over the ownership of the Parthenon sculptures off and on since the 1832 Greece independence. Since Greece formally demanded for the Parthenon sculptures return in 1982, England and Greece decided to use cultural diplomacy instead of trial threats. A disagreement still remains concerning Lord Elgin alleged permission to remove the sculptures. In 1799 Lord Elgin was appointed British ambassador to the Ottoman central government in Constantinople, and supervised “a team of artisans and workmen to travel to Athens to make drawings and plaster casts of Greek sculptures and architectural fragments”. The outcome of this venture was that upon the obtention from the Ottoman government of document of permission for access to the Parthenon, part of the sculptures were removed from Athens and later brought to the British Museum in London. The obvious legal issues concern the issuance of the alleged removal permission of the Ottoman government. If the two countries achieve to agree on the return of the sculptures several issues would persist such as the running of statute of limitations and implementation of international laws.

Another interesting reference in the chapter on cultural property concerns Native American cultural heritage and its protection by US domestic laws. The Kennewick Man saga shows how much a legal definition can sometimes be too rigid in an evolving world of historical discoveries. After the discovery of a human skull and bones near Kennewick, Washington, on federal lands, the remains were sent first to an anthropologist for analysis and upon discovery that they were approximately 9,000 years old, further scientific studies were planned. Five tribal groups opposed these further studies and demanded the remains to “be turned over for reburials”. The scientists excavated the Kennewick Man based on the 1979 Archaeological Resources Protection Act (ARPA) and argued that it was not “Native American” remains according to the 1990 Native American Graves Protection and Repatriation Act (NAGPRA) governing among other things the treatment, repatriation and disposition of Native American human remains. A claim was brought in the US District Court for the District of Oregon to avoid restitution. It was held in 2004 that Kennewick Man’s remains were not “Native American” human remains according to the NAGPRA. Last but not least, a publication in the scientific journal Nature determined that according the genetic sequencing of Kennewick Man’s genome, it was “more closely related to modern Native Americans than to any other living population” and especially to the Colville Tribe, who claimed formerly for the restitution of the remains. The Kennewick Man is still currently in the custodial care of the Burke Museum in Seattle.

Chapter five and six respectively called “Questions of Authenticity and Questions of Titles” provide essential definitions that help novice readers not to confuse attribution and authenticity, or provenance and provenience. Authenticity of an artwork has always been subject to suspicion and leads more and more to expensive and largely media-covered litigations where the art authentication experts are left to the anger of purchasers or owners. Just this year, Sotheby’s auction house filed two lawsuits, one in the UK and one in the US to recover funds from the consignor’s of artworks they found to have been forgeries. Ray explains very well in chapter five the strange fascination that art theft and forgery create in the media and among the public, analyzing extensively the story and proceedings of the Knoedler & Company case.

In the chapter concerning art ownership and title, the author decided to tackle the issue of stolen art, first explaining the moral aspect of the question that has been a classic subject of a large number of movies (Gambit in 1966, remade in 2012, or How to Steal a Million also in 1966). As stated by the author, most of the time this subject is romanticized but in reality involves much more complicated issues with the common law principle of nemo dat and problems of statutes of limitation.

The author very appropriately dedicated a fair amount of pages on the issue of Nazi-Looted Art providing a good explanation of the various challenges: emotional, geographical and time-related and the legal basis for past and current cases. That said, a more complete review of art law cases involving Nazi-era looted restitution cases is in order.

The three last chapters are the most technical and also challenging chapters of this book, for non-finance trained professionals. The author addressed art sale transactions from the standpoint of both the U.S. Uniform Commercial Code (UCC) and the UN Convention on Contract for the International Sale of Goods (CISG). This part is very useful as the author makes straightforward comparison between the two legal documents and demonstrates their respective benefits and weakness. Chapter 9 “Secured Transactions” treats art as a “quasi-asset class for investment” and discusses, once again, the lessons from the following cases: Lindholm v. Brant 925 A.2d 2048 (Conn. 2007) and Salander O’Reilly Galleries, LLC bankruptcy cases to illustrate his explanations. The last short chapter deals with international trade in art and especially exports restrictions and preemptive rights. The example of the sale of the 1733 portrait of Ayuba Suleiman Diallo by Hoare of Bath at Christie’s in 2009 is given to show the limitation that a country can impose on the exportation of an artwork that is considered  a national treasure. It was requested from the buyer: the Qatar Museums Authority to submit a request for an export license to which the UK exercised its preemptive rights in order to enable British museums to acquire it. Eventually the National Portrait Gallery and the QMA reached an agreement for a loan of the painting.

The author decision to provide a selection of case decisions and legal materials, helps the readers to put some more abstract concepts back in context or remember famous cases concerning forgeries. Nevertheless the book could become quickly outdated on these points because of new developments in pending cases or evolution of laws.

On the book shelf of the art law publications Art and Business appears an up to date and an informative reference that offers simultaneously to its readers a very good introduction on basic issues rose by art law and the art business, and thanks to the author expertise, more specialized chapters concerning art transactions and sales, that will provides great sources for less experienced lawyers. Ray’s book is clear, and provide numerous and well-researched footnotes to help readers to deal with a particular topic in depth. Published by the American Bar Association (ABA), despite its price ($199.95), this book makes a valuable addition to a reference library for any art professionals.

About the Reviewer:

Marine Leclinche is a Spring 2017 Legal Intern with Center for Art Law. She is a LL.M candidate at Benjamin N. Cardozo School of Law. She earned a degree in Intellectual Property Law in France, and now focus her studies on art and fashion law. Ms. Leclinche can be reached at leclinch@law.cardozo.yu.edu.