French Court supports freedom to deny authenticity: a win for art experts

Recently, the High Court of Appeals in Paris upheld an art expert's right to refuse to authenticate a work of art based on the freedom of thought and expression. Such decision is very relevant in the art law field, since it validates the art expert's right to make an authenticity determination, free from the pressure of legal liability for such a decision.

Authentication is often very critical for the completion of fine art sales since buyers look for authentication as an express warranty that the works is attributable to a certain artist. The refusal to authenticate is often one of the main reasons for lawsuits filed against art experts or artists' authentication committees.

This dispute in Paris involved on one side the owner of a painting, Laurent Alexandre - who believed the painting was authored by the French painter Jean Metzinger - and, on the other side, Bozena Nikiel, a well-known expert in Metzinger’s body of works as well as the author of an upcoming Metzinger's catalogue raisonné. The art expert holds the moral rights for Metzinger’s work, giving her the ability to attribute works of art to Metzinger. 

In order to sell the painting, the owner needed a certificate of authenticity from Nikiel and an assurance that the painting would be included in her catalogue raisonné. Therefore, in 2005 Nikiel made a first evaluation of the painting and affirmed that she could not authenticate the painting as one by Metzinger, claiming the painting did not meet the level of sophistication exhibited by Metzinger’s works.  

When the owner’s art dealer approached Nikiel again two years later, she maintained that she could not authenticate the work and returned  back her consultation fee.  

Even when the owner commenced legal action in 2009, Nikiel claimed again the painting was not by Metzinger and that she could not authenticate it. The French lower court appointed an expert who found that the painting was worthy of authentication even though the expert did not specialize in Metzinger’s work and Nikiel disagreed with him on several points.Thus, the lower court ordered Nikiel to pay damages to the owner of the painting and additional fines of € 30,000 due to the court’s determination that she had wrongfully refused to authenticate the work.  

But in January 2014, the high court in Paris, Cour de Cassation, overturned the lower court’s determination that the work was authentic on the grounds that the ruling violated Articles 9 and 10 of the European Convention on Human Rights that guarantees freedom of thought and expression. Nikiel, as art expert, is free to decide not to authenticate a work based on her own expertise and opinions without worrying that a court could find her liable for such a determination.

This decision is a victory for art experts who are in the business of authentication. Though the decision is confined to France, it will likely have a positive influence on similar disputes being challenged under the European Convention on Human Rights in other European jurisdictions. The ruling may also have a persuasive effect on American courts that are dealing with authentication disputes, expecially in light of the recent dissolution of some fine art authentication committees concerned with liability issues as we reported in our previous posts here.

You can read the decision of the Cour de Cassation here.

ARR: UK seeks evidence from the art trade

On behalf of the British government, the Intellectual Property Office is currently conducting an open consultation, "Artist’s Resale Right: Evidence Gathering", the details of which you can peruse at your leisure here.  The main body of the text reads as follows:

The Artist’s Resale Right (ARR) entitles authors of original works of art (including paintings, engravings, sculpture and ceramics) to a royalty each time one of their works is resold through an auction house or art market professional. 

We are interested in evidence relating to: 

the scale and cost of administering the Right and the impact this has on art businesses [issues touched upon in relation to ARR in Australia in our previous blogpost, here] 

the numbers of artists who are benefiting from the Right, particularly at the lower threshold [ditto] 

Information received through this exercise will contribute to a periodic review at an EU level, which is likely to take place in 2015 [It would be good to know if other EU Member States are also conducting their own evidence-gathering exercises. Can readers let us know if they come across any?]. 

Art dealers, galleries and auction houses are invited to complete the online questionnaire below as part of that evidence-gathering exercise [in other words, this is not for artists -- or lawyers, it seems, but ...]. 

We will also be seeking information from the Artists’ Collecting Society and Design and Artists Copyright Society (DACS), who are the collecting societies through whom artists receive the royalty payment [... presumably the opinions of artists are collectively harvested via these bodies alone]. 

We intend to publish a report of the findings in September 2014. 

Frequently asked questions on ARR are answered on the website of DACS.

Grateful thanks to Chris Torrero for drawing this to our attention!

Artists' resale royalties: a piece of pie, or not even that?

Chart and extrapolations by Prof Paul Fritjers, UQ

"Artists Resale Royalties: a piece of pie…", which you can read in full here, reflects some diligent digging by John Walker and which was posted earlier this month in Club Troppo ("The suppository of all centrist wisdom since 2002").  To give you some idea of what it's about, John opens with some facts and a question which he then discusses:

"The ARR scheme so far has cost taxpayers just over $2.2 million and as of December 2013 has delivered a total of 7,800 royalty payments, to 800 artists (or estates) with a median value of about $105 per payment. The scheme has, in three and a half years, only generated a total of less than $200,000 in management fees. It is unlikely that the scheme will be self-funding any time soon, if ever. And what has this costly public art project delivered?"

John's conclusion?

"The millions of dollars of public money that has been wasted on this scheme, is money that was not spent on helping emerging and lesser known artists gain access to public exhibition and potential markets. It is all those lesser known artists that have been really ripped off by the funded lobbyists for their pet ‘art project’".

Readers may wish consider whether the Australian ARR scheme is (i) right in principle and right in practice, (ii) right in principle but wrong in practice, (iv) wrong in principle and wrong in practice or, improbably but not impossibly, wrong in principle but right in practice.  Do let us know!

Time Warner in copyright dispute over photographs

Legendary photographer Alfred Eisenstaedt (1898 – 1995) captured many iconic images during his long and distinguished career - a large proportion of which he spent working for Life magazine.

Eisenstaedt was also, reportedly, very generous - regularly giving copies of his prints to his friends, family and the subjects of his photographs.

Some of these photographs are now the subject of a legal dispute between Time Warner, the owners of Life magazine, and the family of Eisenstaedt's sister-in-law and friend, Lucille Kaye.

DNAinfo New York reports:

The dispute began in April 2013 when Kaye's family planned to auction off some of the work through Sotheby's.  

Time Warner interceded, claiming that under contracts it signed with Eisenstaedt before his death, it has rights to all the photographs and negatives he took between Jan. 1, 1929 and July 26, 1994. The media titan said that under the terms of the agreement, that includes the disputed photographs.  

But [John] Catterson, who represents Kaye's family, said Eisenstaedt had given the photos — which include the Hitler-Mussolini meet-up — to her.  

"The actual photographs we're talking about were photographs in Miss Kaye's apartment at the time she died in 2012," Catterson said.  

"They had been gifted to her well before [Eisenstaedt] died," he added..."

...In 2012, Kaye died at 92 without any children. She left her possessions, including the photographs worth an estimated $50,000, to her nieces and nephews in South Africa, and made Catterson the executor of her estate.  

In April 2013, Kaye's family decided to auction some of the photos through Sotheby's. They later decided to pull the items from sale, but not before Sotheby's included them in a catalog.  

Time Warner spotted the listing and contacted Sotheby's, claiming ownership.  

Subsequently, Sotheby's refused to return the photos to Kaye's family until they resolved the dispute with Time Warner.  

Catterson filed the April 9 petition in Manhattan Surrogate's Court to have a judge determine ownership and to order the return of the photographs to Kaye's family.  

[Time Warner's lawyers say that] under its agreements with Eisenstaedt, Time Warner does own the copyright to his works and pays his estate 50 percent of all revenue from the licensing of his works.  

However, Catterson [claims] that Kaye's family owns the disputed prints because Eisenstaedt gave them to her before he signed any contracts with Time Warner.  

He also notes that under one of the contracts, Time had a right to all the photographs in rooms located at the Time & Life building and in Eisenstaedt's Jackson Heights' apartment. Catterson said in the filing these photos were kept at Kaye's apartment and there is no evidence they were in Time & Life or Eisenstaedt's apartment.  

He added that Time Warner has no proof of ownership since it has not kept an inventory of Eisenstaedt's photography and cannot "articulate which, if any, of the photographs are part of the collection assigned to Time in the agreements."

Sounds like a very interesting dispute from this initial report. It would be good to get a look at Catterson's petition and any responses from Time Warner. If anyone has access, please pass them on!


Source: DNAinfo New York, 21 April 2014

U.S. Federal Government Seeks Return of New Deal Artworks

Recovered Artwork: L. Lavelle, House on the Hill

During the Great Depression the U.S. government enacted many federal programs to aid the public by creating jobs for unemployed Americans, all part of President Roosevelt's New Deal.  Among them were programs developed specifically for artists and writers.  Under the Works Progress Administration Federal Art Project artists earned $42 each week for creating art that documented the nation, and these works became the property of the federal government. The pieces were displayed in libraries, courthouses, and other public facilities.  It is estimated that as many as ten thousands artists participated in the program, generating hundreds of thousands of artworks.  Since the 1930's and 40's however, many of the works have been misplaced, lost, or stolen.  WPA Paintings and sculptures are now scattered across the United States, turning up at garage sales, antique shows, online, and on the auction block. Many of the works bear a marking indicating that they were produced under the federal program, however not everyone handling the works understands that such labels still carry meaning as to the ownership of the pieces.

Acknowledging not just the fact that the government "owns" the works, but that the works are integrally important to the artistic and cultural history of the United States, since 2001 the federal government has mounted efforts to verify and recover the works.  The Government Services Administration in cooperation with other federal agencies including the FBI, continue to monitor and investigate, having established means for the public to call or email with reports of possible WPA artworks.  The program continues to gain momentum and will remain in effect until all the works are accounted for.  In 2011 the GSA produced a short documentary film regarding its efforts that is available to watch here.  The film includes images of recovered works and interviews with possessors (those who had WPA artworks in their possession).  One aspect of the recovery effort that is particularly interesting is the cooperation between the government and those possessing the works to find a mutually agreeable place for public display.  Indeed as one government interviewee stated of recovered artworks, "It doesn't belong in a federal warehouse anymore than it belongs in a private collection."

The GSA's recovery efforts were also recently covered by NPR's All Things Considered, and a brief audio piece is available here.

Priceless art discovered in US storage facility

Almost 80 paintings which went missing in 1998 have been uncovered by the FBI in a storage facility in the San Francisco Bay Area.

The artworks were all created by Polish artist Hanna "Kali" Weynerowska. Before she died, she bequeathed all the works to a Polish museum in Switzerland. At this point, it seems, the paintings all mysteriously disappeared. It was not until a few years ago, when the Polish Ministry of Culture established a fund to locate them, that the search for the artworks was reignited.

The San Francisco Chronicle reports that:

"...the FBI, contacted by the Polish government, tracked down a relative who led agents to a storage facility in Santa Rosa that held 75 Weynerowska originals. On Thursday, they arrived at the museum in Rapperswil, Switzerland, where Polish and U.S officials will attend a Ceremony of Restitution on June 16. 

The paintings, in the artist's distinctive pointillist style, have such titles as "Boy on Donkey," "The Cobbler" and "Walking a Bird." Their financial value is modest, perhaps $12,000 each, but "they are priceless emotionally ... very important to the legacy of Polish excellence," Caria Tomczykowska, an envoy of the Polish Consulate in Los Angeles, said Friday at a San Francisco news conference called by the FBI. 

"The FBI is proud to stand shoulder-to-shoulder with our Polish counterparts in ensuring safe passage of these lost national treasures," said David Johnson, special agent in charge of the FBI's San Francisco office.  

He said the male relative, whom he didn't identify, had handed the paintings over voluntarily and isn't in legal trouble. Despite the artist's bequest, Johnson said one or more of her local relatives had apparently held on to the works since 1998 because of the costs of shipping them, and "perhaps a bit of emotional attachment."

All's well that ends well. It does, however, seem very odd that the FBI and Polish governmental institutions were required to intervene to recover the paintings which were actually just being held by Weynerowska's relatives. Efficient allocation of resources??

Source: San Francisco Chronicle, 12 April 2014

Snowy Mountain meltdown as precious artwork vanishes

If you see something like this, be sure to tell the HK police

"HK police seek 'thrown away' painting worth $3.72m" is the title of a BBC news post today which reads, in salient part, as follows:

"Hong Kong police are investigating the disappearance of a painting worth $3.7m (£2.2m) from a hotel, amid reports it may have been accidentally thrown away. The painting is believed to be a Chinese ink work by artist Cui Ruzhuo entitled Snowy Mountain.

It was reported missing by auctioneers Poly Auction on Tuesday, having been successfully sold on Monday. Several local media reports suggest cleaners at the Grand Hyatt could have thrown the painting out as rubbish.

According to the South China Morning Post, CCTV footage showed a security guard kick the packaged painting over to a pile of rubbish. Citing a police source, the paper said that cleaners were then seen throwing the rubbish away, with the rubbish taken to landfill. In a statement, the hotel said it was working with investigators.

"As the organiser has rented our event venue for this auction, Grand Hyatt Hong Kong is doing its best to offer assistance to Poly Auction including letting the police view the CCTV footage along with our security team," it said.

The hotel said the auctioneers were responsible for items they sold ...".

This blogger is not sufficiently familiar with the facts, the terms of any contract between the hotel and the auctioneers or the details of local law to be able to make any confident pronouncements as to who is responsible -- and for what. However, it seems to him that paintings and other artworks are so frequently disposed of, damaged or destroyed by cleaning staff that the risk of this happening is as much a foreseeable outcome of hosting an exhibition or auction that one might wonder why there isn't some regular routine or protocol that should govern what cleaners can and can't do in circumstances in which artwork is being exposed within their establishments.

Another point to ponder relates to the artist's resale right.  No such right appears to exist in the law of Hong Kong but, if it had, would an artist be able to secure a proportion of the auction price of the resale of a painting that was lost or destroyed before it ever reached its intended purchaser?

Kitchen art a bargain at 23 euro

The two paintings shown above, displayed under police guard, were found hanging on an Italian factory worker's kitchen wall, where they had been for the past 40 years. According to the BBC's version of the story, here, the art works -- by Paul Gauguin and Pierre Bonnard -- are said to be worth at least 10.6m euros (£8.8m). The story goes that they were stolen from a collector's London home in 1970 and, having been left on a train in Italy, with no indication of origin, they were purchased by a Fiat worker at a lost-property auction in 1975 for the princely sum 45,000 Italian lire (that's around 23 euros, or £19).

Italian culture minister Dario Franceschini claims this as something of a triumph:

"It's an incredible story, an amazing recovery. A symbol of all the work which Italian art police have put in over the years behind the scenes".

It's not immediately clear, though, what the Italian art police have been doing since 1970 since their involvement only appears to have started when the factory worker's son, who had a suspicion that one might be an original Gauguin, contacted art experts. If they'd attended the same lost property auction as the works' purchaser they might have been able to intervene a little earlier ...