Private Art Collections

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Η μελέτη που είχα γράψει, μετά από σχετικό αίτημα του UNIDROIT, για τη συνάντηση Governing Council του Μαΐου 2017 (http://www.unidroit.org/english/governments/councildocuments/2017session/cd-96-09-e.pdf)

PRIVATE ART COLLECTIONS – Study for the UNIDROIT Governing Council of May 2017

                                     Elina N. Moustaira

    Professor of Comparative Law,

School of Law, National and Kapodistrian University of Athens

A.Which cultural objects may be acquired by private collectors

            According to the legal regime of many countries (usually, the so-called “culturally rich” countries), cultural objects created before a certain (different for each country) date cannot be acquired by private persons [or entities] and become parts of [their own] private collections. There may be some exceptions to this rule: private persons [or entities] may possess, under certain circumstances, such cultural objects; in that case, these objects are still considered State’s property and may not be exported or lent abroad, without a State’s permission.

            The requirements for such an export or loan could be studied and perhaps harmonized (in form of either a Convention or Principles or Principles), in order that the collectors, in whichever country, be certain about the procedure that they should follow.

            Several categories of cultural objects could be referred/categorized, depending on the legal regime of the various countries. The outcome of such a categorization would be the axis of the above work.

            Even States which do not prohibit the acquisition of cultural objects of a certain period by private persons [or entities] may have rules that discern “simple” cultural objects from “significant for the State” cultural objects and set stricter requirements for the acquisition of the latter.

            The same could perhaps be said for certain items of modern and contemporary art – one could imagine that certain artworks could be considered as “significant for the State”, for various (for example, religious) reasons.

            A study of these different categories may be made and, according to the results, an homogenization of the requirements and the preferable procedures be pursued – always respecting the different legal mentalities of the various States and offering more alternatives that the States could choose to adopt.

B. Powers of Collectors: would these powers be extended that far, so that the collectors could destroy their collections’ items?

            In civil-law countries such as France, owners of artworks that are considered significant parts of the cultural heritage of the country, may have an implied legal duty to maintain the integrity of the work, whereas in common-law countries like the USA and the United Kingdom, personal property rights often are a hurdle to any obligation to protect an artwork (moral rights aside). In theory, a US owner of a rare Picasso could set it on fire, if desired[1].

            In USA, most serious collectors of significant works of art like to consider themselves to be custodians of the art works they possess, taking care of these treasures for future generations. It is argued that, investment value aside, the obligation to care for important works of art is rather an ethical one[2]. This is not always the case, though[3].

            Until fairly recently, in USA, collectors’ rights were not at all “threatened” by artists’ rights. The so called droit moral, that is, the artists’ continuing interest in their work, was not easy to be accepted by U.S. legal mentality, legal culture[4].

At some point, in the late 1970s and 80s, this mentality changed. USA had acquired new wealth and power after the World War II and Abstract Expressionists had “transferred” the center of the Western art world from Paris to New York. These facts had contributed to the rise of the cultural importance of American art. Almost a natural consequence of this was that the U.S. decided to enact statutes consecrating the “moral rights”, both at the federal and state level, mostly following the European civil law model(s)[5].

Furthermore, there were some States that also granted to the artist a right against destruction, mutilation, alteration of his/her work. California, first (California Civil Code, sec. 989) and Massachusetts, following California (Massachusetts Statutes, chap. 231, sec. 85S) have gone even further and in their laws expressly command private owners (collectors) to preserve works of art for the benefit of public.

Copyright law – and especially the part concerning visual artists – is, by all means, a hot issue in common law countries. Some scholars, opposite to its strictness, contend that its originality requirements rely on a romantic conception of a genius creator[6]. Nevertheless, there are scholars in the opposite, romantic-bias camp[7].

As it is pointed out, a bit harshly, “The copyright laws of both the United States and the United Kingdom explicitly agree on at least one doctrine: When law and art chance a meeting, they should do their best to avoid each other”[8]. Both countries’ courts try to remain aesthetically neutral. There are several reasons for that and the fact that judges lack special knowledge about art is not the least of them[9].

The differences between the various laws could be thoroughly studied and, even though these differences could not [easily] disappear, since they are the reflection of certain legal mentalities, one could insist on working on a model/principles/common rules about the rights and the obligations of the art collectors.

C. W(sh)ould collectors be considered liable for cultural objects of their collections that would be damaged or destroyed?

            This issue is somewhat related to the previous one, nevertheless the bigger question is whether the collection should be protected as a whole, in which case the collector would be considered liable for its deterioration due to the damaging or destruction of parts of it.

            In such a case, should the “measure” be strict liability [of the collector] or not? In case the damaging or the destruction of the cultural object was the result of someone else’s fault, should there be a joint liability of his/hers and of the collector’s? What would be the rights of the collector towards the person(s) reliable for the damage or destruction?

            Would it be enough to refer to the existing national rules of the various countries [which differ between them, sometimes substantially], or could some model rules be created, especially for private art collections?

D. Selling parts of a collection or the whole of it

            This is a difficult and delicate issue, for various reasons. The obvious one is that a collection of cultural objects has an accumulated worth as a unity, something that would be disappeared in case of “dispersion” of the objects that constitute it.

            Solutions to the problems would differ, since each State, obviously, follows a certain cultural politics, depending on the values that it considers most important; “the term cultural politics and its meaning is heavily conditioned by the historic and politic context into which it is developed, having as result a big variety of aims and institutional forms[10], the comparison of which is very difficult”[11]. One should not interfere there.

            A significant step, though, would be the creation of national [electronic] registries of art collections/collections of cultural objects and/or of the collections’ items. The requirement for a collection to be registered as such, in order to be protected as a whole, could only fortify any attempt to set rules about selling collections.

            The creation of an international electronic registry could also be an option to work on.

            Given the fact that often collectors need money to purchase other artworks (although “real” collectors do not want to sell, since their desire of collecting/accumulating does not “permit” them to do it), rules about the [perhaps strict] conditions that should be met in order for such a sale to be permitted could be set, so that the collections’ protection remains a priority.

E. Export permission: When, how, of which cultural objects

            As it was mentioned above, in many cases private collectors have to get a State’s export permission in order either to sell items of their collections or to lend them for some exposition abroad, or [even more difficult] to present the whole collection or parts of it, in galleries or museums abroad.

            In the first case, when the outcome is not certain or the procedure takes much time, the collectors may lose a unique chance to sell items of their collections – for example, when they would be offered for sale at an auction abroad, which is programmed at a certain date.

            Harmonized rules for such procedures could be created and date-limits be set, for such a procedure to be concluded and a decision, positive or negative, to be made.

            In the second and third case, sometimes this procedure takes much time and the risks are high for the collectors who would want to proceed fast, so that the collection [or items of it] may travel safely and without any hurdles, and that the costs for it may not be immensely augmented.

            Again, precise rules could be set about, so that there may not be any doubt about the appropriateness of them or the transparency of the procedure.

F. Art Auctions – Art Sales – Art Authentication

            Secrecy and anonymity in the art world can be reckless and may be blamed for many scandals in this world and for contributing to Money-Laundering. Art Market is criticized for lacking security and transparency[12].

            A notorious example is that of the Knoedler gallery in New York, 165 years in business. Collectors paid about $80 million to purchase unknown “masterpieces”, brought to market by a Long Island art dealer. The “masterworks”, allegedly come from a mystery collector, had in fact been created by a forger in his Queens garage.

            Concerns about anonymity were intensified last years, when the Panama Papers were released, which gave many details about the use of corporate veils to conceal ownership, avoid taxes and enable crime. Christie’s said, last February, that its policy has been strengthened during the last months, and that it now requires agents who want to sell works through the auction house to tell the name of the owner they represent.

            The situation is far from simple. Veils have been and are being used to obscure ownership of arts. Even when big cases become notorious, like that of Rybolovlev v. Bouvier, over matters that include the money from the Sotheby’s sale, secrecy is still being defended. Other cases are also famous/notorious, like that of the seizure of “Hannibal”, an $8 million painting by Jean-Michel Basquiat brought into the U.S. by Edemar Cid Ferreira, a jailed ex-Brazilian banker who converted some of his laundered money into a massive art collection”. At the time he moved the painting into USA, he claimed that it was worth $100[13].

            So far, efforts to reduce anonymity in art sales have had no result. In 2012, a New York appeals court ruled that auction houses had the obligation to let buyers know the identity of sellers. But the decision was overturned on appeal[14].

            As far as art authentication is concerned, the situation in USA is the following: At the beginning and during the first half of the 20^th century, auction houses acted as intermediaries between sellers and purchasers and disclaimed all representations and warranties to the works they auctioned. In only a few cases, courts awarded purchasers rescission of contract based on fraud claims.

            In 1966, New York enacted legislation on the creation and negation of express warranties in the sale of fine art. In 1968, the legislation limited the application of the warranties to sales by art merchants to non-merchants and further restricted the power to negate such warranties.

            In 1973, Sotheby’s offered for the first time warranty to clients. In 1977, Christie’s did the same. Nowadays, both auction houses extend their limited warranties for 5 years from the date of the relevant auction, while the UCC warranty extends 4 years. These warranties refer only to the work’s authorship and not to physical condition or provenance[15].

            People working in the big, international, auction houses argue that they have to deal with multiple problems. In Sotheby’s, there is a department exclusively dedicated to legal problems and trying to set procedures and rules that would respond to the rules of each country as well as to the rules of the international treaties. These procedures and rules refer to the contracts of intermediation, to the certification of artworks, to the percentage due to the artists, on the transactions of their artworks, to the possibility of certain States to acquire or “notify” artworks considered as significant national cultural heritage, etc.

            Sotheby’s has 40 offices all over the world and 8 selling locations: London, New York, Paris, Amsterdam, Hong Kong, Milan, Geneva, Zurich. People working in Sotheby’s believe that clear and uniform rules for each of these instances, would be necessary in order to assure the absolute respect of the laws and to guarantee the maxima transparency of the whole operation[16].

            Could secrecy and anonymity in the art world be avoided? How should that happen? What sort of measures could be taken, in national and international level?

            Would existing rules in national legislations be capable of dealing with the above issues or should perhaps rules/principles be created, concerning for example the adjudication of damages in case the collector has acquired fake works of art, based on experts’ opinions?

G. Protection of collections in case of suits/arrests – immunity – w(sh)ould it be unlimited or not?

            Cultural Heritage Committee, of the International Law Association (ILA), had worked on these issues, concluding with a Draft Convention. At the General Assembly in Washington DC, in 2014, the Committee’s Resolution had been approved and, accordingly, the annexed Draft Convention had been adopted. The work of the Committee and of course the Draft Convention could be a guide for dealing with these issues.

            Most necessary w(c)ould be the following articles of the Draft Convention:

Article 1: Scope

Without prejudice to Article 5, this Convention provides for immunity from suit and immunity from

seizure of cultural objects which are temporarily present in a receiving State for cultural, educational

or scientific purposes, unless:

a) the cultural object is placed or intended to be placed on sale; or

b) the cultural object is owned, possessed or otherwise controlled by the receiving State or a

physical or legal person resident in the receiving State.

Article 3: Immunity from seizure

Without prejudice to Article 5, cultural objects which are temporarily present in a receiving State for

cultural, educational or scientific purposes shall enjoy immunity from seizure in that State. No order

that prevents or may prevent the return of the cultural object to the sending State shall be issued in

the receiving State.

Article 4: Immunity from suit

1. Without prejudice to Article 5, the temporary presence of the cultural objects in the receiving

State for cultural, educational or scientific purposes shall not form the basis for any legal

process in the receiving State.

2. A judgment or award rendered by a court or tribunal in the receiving State in violation of

paragraph 1 shall not be recognized or given effect in any State Party.

3. A State Party may, at the time of signature, ratification, acceptance or approval of, or

accession to, the present Convention, declare that it does not consider itself bound by

paragraph 1 or 2 of this Article.

4. Any State Party that has made a declaration in accordance with paragraph 3 may at any time

withdraw that declaration by notification to the depositary.

Article 5: Exception for immunity from seizure or suit

Immunity from seizure or suit does not apply in cases where the receiving State is bound by

conflicting obligations under international or regional law.

Article 7: Due diligence

Prior to the temporary presence of cultural objects in the receiving State for cultural, educational or

scientific purposes, the receiving State and the sending State shall, jointly or separately, ensure that

all due diligence is carried out to determine or confirm the provenance of the object, at least in

compliance with the standards required by the International Council of Museums (ICOM).

H. Cultural Objects’ provenance – The Ethics of acquiring Arts and Antiquities

The importance of artworks’ provenance documentation is uncontested[17]. All the countries should have or try to create systems that would prevent suspect or clearly illicit acquisitions of artworks[18]. Private collectors may not plead innocence when the circumstances of artworks’ acquisitions are not so clear[19]. And they are not clear when the artworks’ provenance is not documented[20].

Collectors should refuse to buy antiquities for the provenance of which they would not have enough or any information. If they did that, the illicit trade in antiquities would be diminished[21].

Especially the Internet market in antiquities of unknown provenance is unfortunately flourishing, either because customers/buyers are ignorant or because they are indifferent. As it is pointed out, “the experience of eBay U.S.A. shows that in the absence of effective oversight self-regulation is likely to fail, and concerned public or professional bodies need to step forward and respond to the challenge”.

eBay should be monitored regularly, non-domestic antiquities should be accompanied by an image of valid export documentation, otherwise be removed from the market, and criminals should be convicted.

UNIDROIT Convention 1995 has already dealt these issues. It could serve as guidance for the would-be works concerning specifically the private collections. Of course specific issues/details might come up, which c(w)ould be worked on.

I.What c(sh)ould be done

            The aim could be the creation of either an International Convention, unifying rules concerning the collections and the collectors or Principles that could be the model to be followed by the national legislations or even a Recommendation to national legislators. All alternatives have advantages, the second and third alternatives being easier to achieve/adopt.

            As a first step, a working group could be set, that would work on the issues to be handled and the procedures to be followed. The above mentioned issues could be the beginning of its works. According to the conclusions of that working group, UNIDROIT would decide which path would be the most appropriate to follow.

            In such a working group, obviously not only representatives of States could participate, but also representatives of art-related associations, professional or scientific, national or international, as well as representatives of international organizations, i.e. UNESCO, ICOM, etc.

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[1] E. Moustaira, “Art Collections, Private and Public: A Comparative Legal Study”, Springer, 2015, p.

[2] M. Rozell, “The Art Collector’s Handbook. A Guide to Collection Management and Care”, Lund Humphries in association with Sotheby’s Institute of Art, 2014, p. 145.

[3] See J. Costonis, Casting Light on Cultural Property (Book Review), 98 Michigan Law Review 1837, 1847 (2000), reviewing the book of Joseph Sax, “Playing Darts …” (see next footnote): “Many [collectors] see themselves as stewards, self-obligated to protect the art and even to loan it out for public viewing from time to time. Were all collectors similarly inclined, Sax would eschew a formal legal regime mandating periodic display of their master works. Not all collectors, however, are so inclined.”.

[4]J.L. Sax, “Playing Darts with a Rembrandt. Public and Private Rights in Cultural Treasures”, The University of Michigan Press, Ann Arbor 1999, p. 21.

[5] J.H. Merryman, The Refrigerator of Bernard Buffet, 27 Hastings Law Journal 1023, 1042 (1976), was asking: “Given the cultural importance of American art, should our law be modified in such a way as to protect the integrity of works of art? I believe that the answer to that question is clearly ‘yes.’”

[6] A. Barron, Copyright Law and the Claims of Art, 4 Intellectual Property Quarterly 368 (2002).

[7] J.Ginsburg, The Concept of Authorship in Comparative Copyright Law, 52 DePaul Law Review 1063 (2003).

[8] C. Fenzel, Still Life with “Spark” and “Sweat”: The Copyrightability of Contemporary Art in the United States and the United Kingdom, 24 Arizona Journal of International & Comparative Law 541, 546 (2007).

[9] C.H. Farley, Judging Art, 79 Tulane Law Review 805, 815-819 (2005).

[10] M.M. Zamorano/J. Rius Ulldemolins/R. Klein, ¿Hacia un modelo sudamericano de política cultural? Singularidades y convergencias en Uruguay, Paraguay y Chile en el siglo XXI, Revista Europea de Estudios Latinoamericanos y del Caribe 96 (2014) 5, 6.

[11] E. Moustaira, “Art Collections, Private and Public: A Comparative Legal Study”, Springer, 2015, p. 15.

[12] A.L. Bandle, “The Sale of Misattributed Artworks and Antiques at Auction”, Edward Elgar, 2016, 336.

[13] S. Rubenfeld, Art World’s Response to Money-Laundering Concerns Draws Critics, The Wall Street Journal, Feb. 27, 2017.

[14] G. Bowley & W.K. Rashbaum, “Has the Art Market Become an Unwitting Partner in Crime?”, The New York Times, Feb. 19, 2017.

[15] J.B. Prowda, “Visual Arts and the Law. A Handbook for Professionals”, 2013, 208.

[16] C. Dwek, Norme necessarie e norme inefficienti nella pratica di una casa d’aste internazionale, in: G. Ajani/A. Donati (eds.) I diritti dell’arte contemporanea, Umberto Allemandi & Co., Torino 2011, 109.

[17] J.A. Levine, The Importance of Provenance Documentation in the Market for Ancient Art and Artifacts: The Future of the Market May Depend on Documenting the Past, 19 DePaul Journal of Art, Technology & Intellectual Property Law 219 (2009).

[18] J.A. Kreder, The Revolution in U.S. Museums Concerning the Ethics of Acquiring Antiquities, 64 University of Miami Law Review 997 (2010).

[19] “Looting will only come to a halt when collectors refuse to purchase unprovenanced material”, S. Lundén,  TV review: NRK (Norway), Skriftsamleren [The Manuscript Collector], Culture Without Context 16 (2005).

[20] L.M. Kaye, Provenance Research: Litigation and the Responsibility of Museums, in: Cultural Heritage Issues: The Legacy of Conquest, Colonization, and Commerce (J.A.R. Nafziger/A.M. Nicgorski, eds.), Martinus Nijhoff Publishers, Leiden 2009, p. 405.

[21] M. Kersel, The lure of the artefact? The effects of acquiring eastern Mediterranean material culture, in: A.B. Knapp & P. Van Dommelen (eds) The Cambridge Prehistory of the Bronze and Iron Age Mediterranean, Cambridge University Press, 2015, 367, 375.