An Artist's Resale Right in the US?

A new bill was introduced in the United States this week which aims to grant a resale right to artists in the US.

The bill, called the American Royalties Too Act [giving it the oh so clever abbreviation of ART Act], was introduced by US Senators Edward J. Markey (Mass.) and Tammy Baldwin (Wisc.) and Congressman Jerrold Nadler (NY).

A press release from Senator Markey explains the bill as follows:

"Under current copyright law, visual artists – painters, sculptors, and photographers – are denied the ability to fully benefit from the success of their work over time. Unlike recording artists or publishers who, if successful, sell thousands of copies of their work and recoup a royalty from each purchase, artists sell their work only once. If they are successful, the price of their work increases but they recoup nothing if their original work is resold at a much higher price. The benefits derived from the appreciation in the price of a visual artists’ work typically accrues to collectors, auction houses, and galleries, not to the artist. In addition, United States artists are at a disadvantage in the global art market where more than 70 other countries have provided resale royalty rights for visual artists. The American Royalties, Too (ART) Act of 2014 remedies this inequity by providing a modest resale royalty right for visual artists. 

The ART Act would: 

· Provide a competitive resale royalty of five percent of the sales price (up to $35,000) for any work of visual art sold at auction for $5,000 or more. 

· The resale royalty [would apply] to any auction where the entity conducting the auction has sold at least $1 million of visual art during the previous year. 

· Royalties [would be] collected by visual artists’ copyright collecting societies who [would be required to] distribute the royalties to the artists or their heirs at least four times per year. 

· Allow US artists to collect resale royalties when their works [were] sold at auction in the EU and more than 70 other countries."

The bill comes a little more than two months after the release by the US Copyright Office of its Report on Resale Royalties which concluded (among other things) that:

• The current US copyright system leaves many visual artists at a practical disadvantage in relation to other kinds of authors. 

• To alleviate the effects of this financial disparity, Congress should consider ways to rectify the problem and to further incentivize and support the development and creation of visual art.

• The Copyright Office supports the consideration of a resale royalty right as one option to address the historic imbalance in the treatment of visual artists.

• There was no evidence that adoption of a resale royalty right would cause substantial harm to the US art market.

The bill is a revised version of the Equity for Visual Artists Act which was introduced by Nadler back in 2011 but stalled in Congress. Many might wonder what is different less than three years later. Well, now there is the US Copyright Office's Report (incidentally requested by Nadler in 2012), which, given its conclusions above, might provide the support needed to get the ART Act over the line.

From rubbish to art, then back to rubbish: an insurance issue

The recent BBC report, "Cleaner throws out 'rubbish' Sala Murat artwork", here, highlights a number of issues of concern to the art community. In relevant part, the article states:

Not the work in question -- but the place
where you might have to look for it

"A cleaner has mistakenly thrown away contemporary artworks meant to be part of an exhibition in southern Italy. Works made out of newspaper and cardboard, and cookie pieces scattered across the floor as part of Sala Murat's display were thrown out. Lorenzo Roca, from cleaning firm Chiarissima, said the unnamed cleaner was "just doing her job". He added his firm's insurance would cover the value of the art, estimated to be around 10,000 euros (£8,200).

According to local press, security noticed a number of items were missing when the venue, in the province of Bari, opened on Wednesday morning. It later emerged the cleaner had handed them over to refuse collectors, thinking it was rubbish left behind by workers who set up the Mediating Landscape exhibition. ...

"It's clear the cleaning person did not realise she had thrown away two works and their value. But this is all about the artists who have been able to better interpret the meaning of contemporary art, which is to interact with the environment. In any case, the insurance will cover the damages caused."

...."

This blogger wonders whether the insurance company will indeed pay up, rather than maintain that the insured owes a duty of care to ascertain that material found in an art gallery is indeed rubbish before throwing it away. He also wonders whether the insurance company will be happy to accept the estimated valuation, given the nature of the work and the relatively low cost of replacing it.  Finally, might there not be a question of which insurer should bear the risk -- that of the gallery, of the owner of the work or of the cleaning firm -- and of how to resolve any problems arising from the possibility that three separate insurance companies have accepted the risk?

More artworks discovered in Austria

Back in November 2014, the discovery of a trove of hundreds of art masterpieces in an apartment in Munich made headlines around the world.

As we explained here, the trove was found by German authorities investigating Cornelius Gurlitt, the 81 year old son of Nazi-era art dealer Hildebrand Gurlitt. Upon entering Gurlitt's apartment, the authorities discovered the artworks, including some believed to have been looted by the Nazis.

It is now being reported that yet more pieces were discovered in a second home belonging to Gurlitt.

The Telegraph reports:

Officials investigating the secret Nazi-era art cache hoarded by an elderly German art collector are examining a second stash of paintings found at another of his addresses. 

Cornelius Gurlitt, who kept around 1,400 works at his apartment in Munich, also had around 60 pieces in a flat in the Austrian city of Salzburg, it was disclosed. 

...

The works were secured on Monday and were being examined by experts at Mr Gurlitt’s request to establish whether any of them had been looted by the Nazis, said [Mr Gurlitt’s spokesman, Stephan Holzinger].

“At the request of Cornelius Gurlitt, the works are being examined by experts on whether they include possibly stolen art,” he said. “A preliminary assessment based on an initial screening did not substantiate such a suspicion.”

Source: The Telegraph, 11 February 2014.

Extremely Rare Bronze Apollo Statue Found in Gaza and Seized by Hamas

An extremely rare bronze sculpture of Apollo has been seized in Gaza. According to a report by the Guardian, the sculpture was found by a local fisherman about 100 yards off shore last August. The fisherman was unaware of the value of the piece and brought it home on a donkey cart. Eventually, after other family members took control, the piece turned up on eBay with an asking price of $500,000 and requiring that the buyer pick the piece up in Gaza.  However, $500,000 is considered far below the actual estimated value of the piece, which some are calling priceless. The eBay listing was quickly removed when the piece was seized by police from the Islamist group, Hamas, pending an investigation.

The Apollo statue is estimated to be over 2000 years old and is considered highly unique because it is a bronze cast, which is an unusual materials choice for a statue of that time.  Archeologists have yet to examine the piece, having only seen photos like the one above.  The statue will not make any further public appearances until the investigation is resolved.

Some debate whether the piece was actually found in the sea due to its clean condition and speculate that the piece was found on land.  This theory continues that the finder did not disclose the location in an attempt to circumvent ownership issues.  Either way there is speculation that the piece likely signals the existence of a far more extensive treasure trove, such as a buried temple.

Located on land, or at sea, this find presents legal issues that may be difficult to resolve, especially in such a historic and tumultuous region.  Domestic and international laws regarding objects of cultural heritage and other objects of value found at sea, including the International Convention on the Protection of Underwater Cultural Heritage, not to mention other bi-lateral or multilateral treaties may apply.  Interestingly, Palestine is not a signatory to the U.N. Convention on the Law of Sea, a treaty which may also have provided guidance, particularly Article 303, on the handling of this potentially priceless artifact.  That is, assuming the piece was actually found at sea.

Hopefully this rare and wonderful statue, which has so quickly vanished again from the world's view, will be displayed and made accessible for study in future.

Nazi looted painting returned

Another painting which was seized by the Nazis during World War II [an unfortunately very familiar scenario] has been returned to Poland [a not-so-usual result].

After almost 6 years of investigations, the US Immigration Customs and Enforcement's Homeland Security Investigations (HSI) announced the return of "Saint Philip Baptizing a Servant of Queen Kandaki" by German artist Johann Conrad Seekatz on 6 February 2014. On the same day, a ceremony was held to officially hand the paining back to Poland.

HSI's press release detailed their investigations:

In June 2008, HSI New York special agents were notified by the Consulate General of the Republic of Poland that several national treasures of their cultural heritage looted during World War II were being offered for sale in the United States. 

HSI New York agents met with Polish officials who provided supporting documentation to assist in the identification and recovery of the looted Polish work of art. HSI agents initiated an investigation and identified that the painting came into the possession of Doyle New York Auctioneers and Appraisers in about October 2006 and was sold under its erroneous name for approximately $24,000 to Rafael Valls Gallery in London. 

An expert from the National Museum in Warsaw, delegated by the Polish Ministry of Culture and National Heritage, examined the painting in London with the full cooperation of the Rafael Valls Gallery and it was determined to be the same painting that was looted from Warsaw in 1944. In April 2012, HSI received an evaluation of the painting from the Ministry that the painting was identified as its true name and artist... 

On July 12, 2012, after learning the painting was stolen, it was seized by HSI agents from the London gallery by stipulation order with the assistance of the US Attorney’s Office for the Southern District of New York (SDNY). The painting was returned to New York from London leading to the Feb. 6 repatriation to the Republic of Poland.br />

Three other looted artworks were previously returned to Poland in 2010 and 2011. It remains to be seen if there will be others.

The Polish Ministry of Culture and National Heritage runs an on-line database which details the country's wartime losses. There are thousands of artworks which are still missing.

Read the full HSI press release here. 

Miró sale cancelled

In a similar situation to that Detroit (reported here and here), but on a larger scale, the Portuguese government sought to sell 85 works by Spanish surrealist Joan Miró in a bid to cut its debt.

Portugal hired Christie's (who was called in by the Detroit Institute of Arts to value its works) to sell the pieces.

The decision to sell the art drew widespread criticism, and a case was filed in Lisbon to prevent the sale. Although, the court ruled against the claimants, this week Christie's withdrew the artworks from its auctions.


Reuters explains:

The auctioneers withdrew [the artworks] from a London sale even though a Lisbon court threw out a suit by opposition lawmakers, prosecutors and the public trying to block the offer saying the government had violated the rules on classifying the artwork. 

The Miro collection, estimated at more than 35 million euros ($47 million), came into state hands in 2008 when Portugal nationalized the failed bank BPN that owned them. 

... 

"The legal uncertainties created by this ongoing dispute mean that we are not able to safely offer the works for sale," Christie's said only hours before the two-day sale was to start.  

The paintings are being offered by the state holding company Parvalorem, which is in charge of minimizing the impact of BPN's old debts and bad loans on public accounts.  

The court ruled the sale could not be stopped but noted that the state culture secretary's decision had not sought proper authorization to send the paintings to London last week.

The pieces remain at Christie's in London for now. We will have to wait and see whether they are returned to Portugal.

Source: Reuters, 4 February 2014

Gagosian not off the hook

The New York state Supreme Court in Manhattan has ruled that Larry Gagosian and Gagosian Gallery Inc. must continue to defend a fraud claim brought by Ronald Perelman.

By way of background, in September 2012, Perelman, an American businessman with a mere net worth of around US$14.1 billion, sued Gagosian Gallery Inc. and its founder and owner, Larry Gagosian alleging that they had "concealed material information from [Perelman] and used their dominant position in the contemporary art world to manipulate the price of a certain artwork in transactions with [Perelman] in gross violation of the fiduciary duties owed to [Perelman]."

Perelman brought claims for breach of contract, breach of fiduciary duty, fraud, breach of the covenant of good faith and fair dealing, unjust enrichment and deceptive business practices.

On the same day Gagosian sued Perelman, accusing him of reneging on an agreement to buy two works of art. In October 2012, however, the Gagosian parties dropped their suit and subsequently filed a motion to dismiss all of Perelman’s claims.

Unfortunately for Gagosian, while New York State Supreme Justice Barbara Kapnick dismissed the majority of the charges (in her decision of 31 January 2104), she ruled that the fraud claim may stand.

Businessweek reports:

The judge said that while the plaintiffs, Perelman’s MAFG Art Fund and MacAndrews & Forbes Group LLC, are “experienced and sophisticated” business investors, the allegation that Gagosian and his gallery had “superior and unique” knowledge of the art world is enough for the fraud claim to survive.  

“Plaintiffs allege that Gagosian has enormous power to influence, and even set, the markets for the artists he represents because of his impressive roster of artists and his access to and knowledge of the largest private art collections in the world,” Kapnick wrote. “Even though the plaintiffs are sophisticated art collectors and investors, the court cannot say, as a matter of law, that plaintiffs’ alleged reliance on defendants’ representations regarding the art market and intrinsic value of particular works of art was per se unreasonable or unjustified.”

The full decision can be found here.

Gagosian has 30 days (from 31 January) to file and serve an Answer to the fraud claim.

Perhaps most interesting is the power and influence that one individual is said to wield in the art world - and the other scary insights into the art world that the case provides. Details can be found in the initial complaint and amended complaint.


Source: Businessweek, 4 February 2014

Interview with Petro Wodkins, the Russian artist chased by Zimbabwe's government after mocking Mugabe

"If art can make people dance, sing and laugh in the face of a dictator, this is a reason enough for me to keep doing art. This and the face of a furious dictator"

So says famous Russian artist, Petro Wodkins, known worldwide for being behind a series of art happenings covered by the global media, who I had the chance to interview.

After his most recent daring art stunt Petro barely made it alive out of Zimbabwe. The artist was invited to a workshop in Zimbabwe but instead chose to put up a huge golden statue of himself singing a song mocking Zimbabwe's dictator, Robert Mugabe. Due to the nature of his work, the invitation to the workshop was withdrawn by the Zimbabwean authorities. But the artist went to Zimbabwe anyway, taking the statue and its song.

Petro Wodkins' gold statue

The Zimbabwean government reacted brutally, pulling down the statue and both the police and the army tried to arrest the Russian artist who managed to escape to Zambia.

During the interview, I asked Petro why he often chooses satire and mockery to make art. His response was that he uses different artistic approaches, but when he wishes to say something about society, then satire is very effective. This is particularly true when the subject matter is a tyrant, since when people start to laugh, the tyrant is in big trouble since fear and comedy do not tend to accompany one another. Thus, challenging fear with mockery is Petro's weapon of choice.

I questioned Petro as to why he decided to take the statue to Zimbabwe despite the Zimbabwean government's withdrawal of his invitation to participate to the workshop. He answered that this artwork was important and needed to be shown in Zimbabwe in order to be effective. He wanted to show both Mugabe and the people of Zimbabwe that it is possible to challenge authorities and that not everyone fears Zimbabwe's tyrannical dictator. He added that he felt that he needed to take a risk and display his work in Zimbabwe, and not at a safe distance elsewhere.

I asked Petro's opinion as to why art frightens more and more governments. His belief is that art creates a tricky situation for governments. If they don't react to criticism, it can be considered a sign of weakness or as an opening, which will create yet more protest art. On the other hand, if they do react and try to suppress the art, such censorship may attract even more attention to the art. Therefore, governments try to stop art before it does even become public. 

Finally, I asked the artist whether art should make people reflect on problems instead of being just "art for the art's sake." According to Petro, art should relate to people and highlight problems, and not just be exhibited in a gallery for a narrow audience of upper class people. Petro does not ask for authorization to show his art and if he does not see any reaction in people, then he is not satisfied. Most of his art is confiscated or destroyed, but he does not mind. His purpose is to reach as many people as possible.

  

You can see Petro's song and his filmed material here. Petro made them with hidden cameras, since filming in Harare is forbidden. 

Can the French really burn fake Chagalls -- or anyone else's work?

Looking miserable: not surprising,
since she's about to be burned

"Fake £100,000 Marc Chagall painting 'to be burned'" is the title of this BBC post on the sad fate of a not unattractive work that had the misfortune not to be authenticated as a work of the colourful Russian. According to the BBC

"A businessman has been told a painting he paid £100,000 for will be burned after it was ruled a fake. Martin Lang bought what he thought was an original work by Russian-born artist Marc Chagall in 1992. His son called in experts from BBC One's Fake Or Fortune? to examine it, and the painting underwent tests to determine whether it was genuine. It was sent to the Chagall Committee in Paris, who said it was fake and would be burned under French law. ...

The Chagall Committee is run by the artist's grandchildren to protect his reputation in the art world.

Mr Lang, 63, a property developer from Leeds, has asked the committee to mark the watercolour - a nude said to date from 1909-10 - as a forgery and then return it or give him a guarantee he will be reimbursed if it is later ruled as genuine.

He is still waiting for a reply".

Can any readers tell us if there really is an entitlement under French law to burn a painting that is sent for authentication?  This seems quite remarkable, especially if one considers the position of a painter whose work, sold to a buyer, is then purchased by a third party who believes it to be the work of a modern French master and sends it for authentication without the real artist even knowing.