An important qualifier to the discussion about deaccessioning and the Detroit Institute of Arts is that although DIA is a subdivision of the bankruptcy debtor (Detroit), that debtor is not any old commercial entity. Rather, Detroit is a municipality, and municipal and state debtors are governed by slightly different rules than private parties.
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Topics: Legislation, Donn Zaretsky, Deaccession, Chapter 9, 11 U.S.C. § 904, Public Trust, Attorney General of Michigan, Detroit, Detroit Institute of Arts, Bankruptcy, Collections, Bankruptcy Code, Association of Art Museum Directors, Bill Schuette, Detroit Emergency City Manager, Kevyn Orr, Museums, Detroit Bankruptcy, AAMD
The recent filing by the City of Detroit for bankruptcy—the largest such municipal filing in history—has brought with it an unexpected art law twist. Namely: to what extent can, or should the collection of the Detroit Institute of Arts be used to satisfy the city’s creditors. As one might expect, the differences between what the city can do, what it should do, and what others can do to influence that decision have become hard to distinguish as the volume is raised. A review of some of the issues involved and the governing principles is in order. As rumors of the city’s bankruptcy circulated, speculation began about what would happen to the collection of DIA. And thus the dreaded “deaccession” debate began. This debate is essentially as follows: is art a fungible commodity that can and/or should be used in whatever way advances the mission of the institution (including selling it and using the proceeds to finance the museum’s operations), or do museums hold art in a public trust that must prioritize the collection and display of art? The latter view certainly holds sway among many in the museum community as an aspirational mattter, but its enforceability is often far less than they think.
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Topics: National Academy Museum, Brandeis, Deaccession, American Alliance of Museums, Rose Art Museum, AAM, the Metropolitan Museum of Art, Detroit Institute of Arts, Collections, Association of Art Museum Directors, Motor City, and the Museum of Fine Arts Boston, Cleveland Museum of Art, Detroit Bankruptcy, AAMD, Pennsylvania Academy of Fine Arts
The ABA Journal is conducting its annual poll of the best 100 blogs. For arts and the law, the blogs I read the most are below. If you are a blog reader, consider casting a vote. We are all engaged in a great conversation, and your voice matters to what we write. If nothing else, read these blogs!
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Topics: Donn Zaretsky, Blogs, MItchell Stein, Kim Herman, Peter Bert, Association for Research into Crimes Against Art, Lee Rosenbaum, Commission for Looted Art in Europe, Plundered Art, CultureGrrl, ARIS, Harry Ekblom, Holocaust Art Research Project, Dispute Resolution in Germany, Looted Art, Marc Masurovsky, The Art Law Blog, ARCA, Trending Trademarks, Business Aviation Law Blog, Center for Art Law
The New York Court of Appeals has set a hearing date on the appeal of the William J. Jenack action house of the Appellate Division’s ruling last year that an auctioneer must disclose the name of any owner who has consigned the work for sale, or a sale against a successful bidder cannot be enforced consistent with New York General Obligations law § 5-701 (the New York Statute of Frauds). The oral argument will be on November 13, 2013. The high court of New York elected to accept the appeal earlier this year, following coverage in the New York Times and elsewhere (in which the Art Law Report is quoted).
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Topics: Legislation, consignment, New York General Obligations Law § 5-701, Auctions, New York Court of Appeals, Ivan Petrovich Khlebnikov, Statute of Frauds, auction house, William J. Jenack, Hicks v. Wigmore
A federal court in California has dismissed a claim by a buyer against Sotheby’s that alleged that the auction house sold him a work whose title was clouded because Hermann Göring had once owned it. What seemed liked a interesting new theory of liability was dismissed because the buyer had agreed in advance to litigate any disputes from the sale in the United Kingdom. It is somewhat surprising that the buyer even tried.
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Topics: provenance, Louis-Michel van Loo, Auctions, Nazi, California Consumers Legal Remedies Act, Christie's, Hermann Goring, Collections, Restitution, section 1750 of the California Civil Code, Allegorical Portrait of a Lady as Diana Wounded by, Sotheby's
My article “Chabad Library Case and Russian Art Loan Embargo Roil International Waters” was published in the June 4, 2013 edition of Bloomberg BNA - The United State Law Week. My article reviews the history of the Chabad Lubavitch library dispute and its impact on international relations and the art world. The article is linked here, reproduced with permission from the United States Law Week, Copyright © 2013 by the Bureau of National Affairs.
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Topics: Bloomberg BNA, The United State Law Week, Chabad Library Case and Russian Art Loan Embargo R, Restitution, Foreign Sovereign Immunities, Chabad Lubavitch, Publications, Jewish Museum Moscow, Nicholas M. O'Donnell
The Velvet Underground and the Warhol Foundation for the Visual Arts have settled their lawsuit over the right to control iconic “banana” image from the cover of the 1967 legendary The Velvet Underground and Nico album. An earlier September 7, 2012 ruling for the Warhol Foundation finding that that the Velvet Underground had agreed not to sue on any copyright theories left unanswered questions of whether the band had claim to a superseding trademark in the image that would allow it, and not the Warhol Foundation, to control the image’s reproduction. The dispute is now over, and those questions will not be judicially resolved.
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Topics: The Warhol Foundation for the Visual Arts, Copyright, The Velvet Underground and Nico, the Velvet Underground
ARCA (Association for Research into Crimes Against Art) has released the Speakers list for next month's Art & Heritage Conference June 21-23 in Amelia, Italy. I will be presenting on the history of World War II restitution litigation in the United States, its effectiveness, and its prospects for the future. The full list is below. Hope to see you there!
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Topics: Carrie Johnson, South Texas College of Law, cultural property, Utrecht University, Stefano Alessandrini, Alesia Koush, Joris Kila, James Moore, Toby Bull, Verity Algar, University of Guelph, Joshua Nelson, Ruth Godthelp, Cynthia Roholt, Saskia Hufnagel, James Bond, Caravaggio, Restitution, University of Reading, Sullivan & Worcester LLP, Events, World War II, Foundation Romualdo Del Bianco, Royal Armouries at the Royal Armouries Museum in L, Judith Harris, Felicity Strong, Amelia, University of Melbourne, University of Amsterdam, Theodosia Latsi, Jerker Rydén, ARCA, University of Cologna, Giulia Mezzi, Nicholas M. O'Donnell, University College London, Royal Library of Sweden, Chris Dobson, Derek Fincham, Art & Heritage Conference, ARTnews
The Rutgers Journal of Law and Religion has published a provocative article that advocates a bold new take on Holocaust art restitution litigation. The thesis of the piece is easily gleaned from its title: “Nazi Looted Art and Cocaine: When Museum Directors Take It, Call the Cops.” In a nutshell, the article argues that if artwork were stolen during World War II, it can never be acquired legitimately thereafter, and its possession is by definition a violation of the National Stolen Property Act, 18 U.S.C. § 2314—or even the Racketeer-Influenced Corrupt Organizations Act (RICO).
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Topics: 18 U.S.C. § 2314, Girolamo Romano, Christ Carrying the Cross Dragged by a Rogue, Bakalar v. Vavra, Rutgers Journal of Law and Religion, Raymond Dowd, Egon Schiele, ARCA Conference, Portrait of Wally, RICO, Washington Principles, Racketeer-Influenced Corrupt Organizations Act, National Stolen Property Act, Copyright Litigation Blog
The United States Copyright Office solicited public comment last year on possible droite de suite, or resale royalty legislation. As addressed previously, state law attempts to regulate artists’ rights to resale royalties have been struck down as unconstitutional. Among the issues that the Copyright Office grappled with is the basic question of incentive: if a copyright royalty were paid on sales subsequent to the first sale, what effect does that have on the economic incentive to create art? Who benefits? Who is harmed?
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Topics: Resale Royalties, Copyright Act, Resale Royalty, Copyright, Copyright Office, Calinfornia Resale Royalty Act
