The Supreme Judicial Court of Massachusetts (the state’s highest court) recently issued a surprising decision that permits claims against Harvard arising out of a series of daguerreotypes taken of the plaintiff’s ancestors in the 19th century by famed professor Louis Agassiz to proceed. While the SJC affirmed the dismissal of the plaintiff’s property claims that sought outright ownership, the court reinstated claims for emotional distress. The decision held that the manner in which an educational institution responds to a grievance about something in its possession may itself be actionable in the context of the institution’s relationship to the historical facts. In stretching the bounds of the traditional causes of action for negligent or reckless infliction of emotional distress to reach a sympathetic set of facts, however, the SJC has effectively abolished limits on museum liability for collections created under problematic circumstances where the response to such claims is attacked creatively enough. The issue is not whether the result is fair to Harvard, or whether the plaintiff’s family deserves recognition and justice for what was done—they do. The problem with cases that are hard or impossible to limit is that they may lead to socially positive outcomes in one instance, but can be weaponized in the next. In an era when all manner of actors are politicizing what universities should or shouldn’t teach, this opinion creates innumerable opportunities for mischief. As a result, it raises First Amendment and Due Process concerns that Harvard might plausibly petition the Supreme Court to address.
Topics: due process, Supreme Judicial Court, SJC, Harvard, First Amendment, Museum of Fine Arts Boston, NAGPRA, Tamara Lanier, negligent infliction of emotional dismiss, Louis Agassiz, Daguerreotype, Renty Taylor, Delia Taylor, MFA, reckless infliction of emotional distress, Philip Guston, Drew Gilpin Faust
I am pleased to report on the outcome of a matter we announced in February. After a disagreement with the City of Palo Alto (California) about her sculpture Digital DNA, Sullivan & Worcester LLP client Adriana Varella has agreed to relocate the sculpture to the campus of Harvard Business School. The agreement is a positive outcome that ultimately did not require litigation, and a reminder of the importance of artists’ rights under the Visual Artists Rights Act of 1990 (“VARA”). I was honored to be able to work with this incredible artist to preserve her importance sculpture and begin an exciting new chapter for her art.
Topics: Visual Artists Rights Act of 1990, VARA, Harvard, Boston Globe, Sullivan & Worcester LLP, 5Pointz, Digital DNA, Adriana Varella, Right of integrity, City of Palo Alto, Right of attribution, Harvard Business School
One of the issues exposed and exacerbated by the ongoing Gurlitt collection stalemate is the question of Germany’s restitution procedures with respect to art. As the Bavarian legislative proposal to abolish the statute of limitations for claims against bad-faith acquirers is considered by the Bundestag, the “German Advisory Commission for the Return of Cultural Property Seized as a Result of Nazi Persecution, Especially Jewish Property” has issued a decision over what has become known as the “Guelph Treasure” (Welfenschatz) in the collection of the Stiftung Preussischer Kulturbesitz (SPK), the Prussian Cultural Heritage Foundation. The March 20, 2014 opinion (available, so far as I know, only in German at this point at www.lostart.de) underscores the issues around claims of sales under duress, and the appropriate present-day procedural remedy. Readers should also brush up on their medieval German history to keep up.
Topics: Holy Roman Emperor Otto IV, German Supreme Commercial Court, Holy Roman Empire, Guelph Treasure, Bundeshandelsgericht, German Supreme Constitutional Court, Z.M. Hackenbroch, Karl Blechen, Duchy of Brunswick and Lüneburg, Niedersachsen, Karl Ernst Baumann, Act of State, Kingdom of Hanover. Königreich Hannover, Dr Alexander Lewin, Prussia, Lower Saxony, Anselm Feuerbach, Gurlitt Collection, Foreign Sovereign Immunities Act, Preussen, Hans Sachs, German Advisory Commission for the Return of Cultu, Hessen, Fogg Art Museum, Congress of Vienna, Julius and Clara Freund, Kurhannover, Dresdner Bank, Hermann Goring, Austrian Supreme Court, Johann J. August von der Embde, House of Welf, Stiftung Preussischer Kulturbesitz, Wilhelm Leibl, Portrait of Amalie Zuckerkandl, Braunschweig-Lüneburg, Harvard, Portrait der Familie von Dithfurth, Gurlitt, Restitution, George I, J.S. Goldschmidt, World War II, Peasant Girl without a Hat and with a White Headcl, Queen Victoria, Prussian Cultural Heritage Foundation, Art Institute of Chicago, Kurfürsten, Jutta Limbach, www.lostart.de, Soviet Union, Gustav Klimt, Bundesverfassungsgericht, Welfenschatz, Limbach Commission, I. Rosenbaum, Electors
Just days after attorneys for Cornelius Gurlitt floated the idea of discussions with survivors and heirs for a possible resolution to the questions about the artworks found in his apartment two years ago that are suspected of having been stolen or sold under duress during the Nazi era (and after the prosecutor was ordered to make a full list available to journalists), the prosecutor in charge of the investigation categorically rejected the possibility of any deal with Gurlitt.
Topics: Erhard Göpel, Frankfurter Allgemeine Zeitung, Stuttgart, Wiesbaden, FAZ, Focus, Hildebrand Gurlitt, Cornelius Gurlitt, Augsburg, Amsterdam, Willi Korte, Schwabinger Kunstfund. Kunstfund München, Marvin Fishman, Reinhard Nemetz, Gurlitt Task Force, Germany, Fall Gurlitt, The Art Newspaper, Gurlitt Collection, Max Beckmann, Karl Buchholz, Robert Looker, Entartete Kunst, Bar Braun, Beutekunst, Schwabing, Magdeburg, LACMA, Ersessene Kunst, Harvard, Gurlitt, Bavaria, Busch-Reisinger, Los Angeles County Museum of Art, degenerate art, the Central Collecting Point, Augsburger Staatsanwalt, www.lostart.de, Nazi art, Sotheby's, Roman Norbert Ketterer, Raubkunst, Verjährung, Mayen Beckmann, National Gallery Berlin, verschollene Kunst, De-Nazification, Selbstbildnis, Self Portrait