Art Law
The Visual Artist’s Rights Act: Its Impact and Future
Mary Elizabeth Williams
November 2012
“We have laws prohibiting cruelty to animals.
We ought to have laws prohibiting cruelty to works of art?”
Irving Sandler
(“Artists, Newly Militant, Fight for Rights,” The New York Times, March 3, 1988)
FACTS
In 1990 the Visual Artists’ Right Act, know as VARA, provides living artists’ three rights, including: (1) the protect their art work from “intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation,“ or moral right; (2) the right of integrity, the right “ to prevent any destruction of a work of recognized stature, or any intentional or grossly negligent destruction of that work is a violation of that right;” (3) the right of attribution, “the right to be recognized, or to choose not be recognized as creators of their works.” 17 USC § 106A (McKinney 1990). These rights apply only to living artist’s and conclude upon the artist’s death.
DISCUSSION
Art, for the purposes of discussing VARA, is a commercial commodity. In most cases, an individual will buy a commercial object and gain title. This allows them to do whatever their hearts desire with the object — all without any liability to the producer. This is not the case when artwork by a living artist is purchased. Although title to the artwork does pass to the new owner, they still have a legal responsibility to the artist.
In some ways VARA’s provisions are contrary to the spirit of the Bill of Rights and the economic precedents of a free market system. So, we must ask: why does VARA exist? Why is it necessary? In order to address these questions we must look to cases involving VARA.
The most famous case involving VARA is Massachusetts Museum of Contemporary Art Foundation, Inc. v. Buchel. The case started as falling out between Nato Thompson, the museum’s curator, and Christopher Buchel, an installation artist, about financial costs and delays in completing of the Training Ground for Democracy. MassMOCA sued Buchel on May 21, 2007 for the right to display the unfinished work and relief from VARA provisions. Massachusetts Museum of Contemporary Art Foundation, Inc. v. Buchel, 565 F. Supp. 2d 245 (D. Mass. 2008). Buchel responded with five counter claims: the first seeking an injunction under VARA from publicly displaying the uncompleted work to the public, the second seeking damages for MassMOCA’s alleged violations of his VARA rights by intentionally distortion the artist’s intention, the third, fourth and fifth seeking damages and injunctive relief under the Copyright Act.
The District Court of Massachusetts ruled in favor of the museum, stating that artist rights under VARA did not apply to unfinished works. They held that (1) the museum’s display of unfinished installation would not have violated artist’s right of attribution and (2) display would not have violated artist’s right of integrity. Id. On May 22, 2007, one day after filing the
lawsuit against Buchel, MassMOCA announced the cancellation of Buchel’s exhibition and opened its own named Made at MassMOCA to show artistic process and explore the complexities of collaborative projects between artists and institutions. When asked if MassMOCA’s lawsuit inadvertently weakened the VARA they responded:
As an institution that actively collaborates with artists, we strongly support the Visual Artist Rights Act of 1990, which addresses the intentional distortion, mutilation, or modification of works of visual art. VARA does not address the display of unfinished work or the display of materials assembled for use in a work of art and we have carefully framed and limited are case to avoid any negative consequences to VARA (FAQ re: Training Ground, September 18, 2007).
In my personal opinion, the court failed to protect Christopher Buchel’s rights. MassMOCA was fully aware of VARA’s terms and undercut Buchel’s rights for their own advantage. MassMOCA argued that Buchel had no rights under VARA because the work was unfinished. Buchel’s work, Training Ground for Democracy, was complete on paper and almost completed physically. The tarps that covered the installation, as I remember, hid the objects included in the work (buses, mobile homes, etc.), but revealed the scale as well as the style and artistic intent of Buchel’s comment on modern American life. Buchel’s counter claims are the precise reason that VARA exists. Every artist has a right to control the future of their work or installations until their death.
Upon appeal in 2010 the Massachusetts Court of Appeals overturned the decision of the Supreme Court, finding that VARA does apply to unfinished works. The judges ruled: “Moral rights protect the personality and creative energy that an artist contributes to his or her work. That convergence between artist and artwork does not await the final brushstroke or the placement of the last element in a complex installation” (Randy Kennedy, “Artist Rights Act Applies in Dispute, Court Rules,” The New York Times, January 28, 2010). This confirms my opinion and renews my faith in the justice system.
The next example is Marc Jancou Contemporary v. Sotheby’s and Cady Noland. The facts of the claims are not exactly clear, and the timeline of who knew what when and what they choose to do with this information will certainly come out in court. The Supreme Court of New York will hear the case on August 22, 2012. The facts of the case come down to the fact that Noland saw her piece, Cowboys Milking, on sale in the Sotheby’s gallery, and noticed that the piece had been altered. She claimed that the work was “distorted,” “mutilated,” and “modified” from its original form. Noland informed Sotheby’s of the situation and “invoking her statutory right under VARA, demanded that Sotheby’s refrain from using her name in connection with the display and sale of Cowboys Milking so as to protect against damage to her honor and reputation” (Cady Noland Answer, Index Number 650326/2012, filed April 9, 2012). In response, Sotheby’s pulled the piece from the auction. Thus, according to Marc Jancou Contemporary violated the Consignment Agreement between the parties. Jancou claims that Sotheby’s and Noland are responsible for a breach of contract, breach of fiduciary duty and tortious interference with contractual obligations (Marc Jancou Contemporary Complaint, Index Number 650326/2012, filed April 9, 2012).
Candy Noland was clearly within her rights to demand that Sotheby’s pull Cowboys Milking from auction. In fact, she is using VARA as an affirmative defense against Marc Jancou Contemporary. Because she is within her rights and not responsible for Sotheby’s failure to comply with their Consignment Agreement, she requests that the case be dismissed in its entirety. Noland’s case exemplifies another reason that VARA exists — it protects artists from claims of liability that are a result of affirming their VARA rights. It exists so that artist’s can use it as an affirmative defense.
The Visual Artist’s Rights Act of 1990 is complex, and as we have seen, can be used in many situations for the plaintiff or defendant. VARA is a very powerful tool for artists, it allows them to control their works of art during their lifetime. Imagine if Richard Serra could have used VARA to save his Tilted Arc (1981), which was dismantled in 1989 by the government. Yet, while VARA is strong as written law, it is weak in court precedent. As you can note from the cases used as examples here, taking place in New York and Massachusetts, most VARA claims have only been tested on the state level. This makes it hard for judges to apply precedent, the strongest factor in judgements. So, while VARA is a significant step to protect artist’s and their works, it needs to be tested in court and clarified. Since 1990, the amount of VARA claims has increased exponentially. In the next few years I believe that many more VARA claims will be made. Be prepared for some courtroom drama.
Mary Elizabeth Williams
williams.maryelizabeth@gmail.com
Art Hunter Magazine
Isabella@arthuntermagazine.com
LALIQUE GLASS IN THE ART MARKET
INTRODUCTION
Rene Jules Lalique (1860-1945) is the master glassmaker of the 20th century. He revolutionized glass manufacturing and design, setting a precedent for beauty and craftsmanship of glass. A grand figure in the Art Deco movement, his motifs of classical and mysterious Madonna’s, flourishing floral arrays, and curvilinear patterns are easily pleasing to any eye. As one of the most recognized glassmakers of all history, his work is consistently in high demand. This high demand for Rene Lalique glass has created a market where pieces, such as his Serpent vase, sell for $56,673. Other Rene Lalique works, such as the Baccanthese Vase, recently sold for $34,375 at Sotheby’s in March 2011 and Figurines et Raisins glass panels, sold for $180,680 at Christie’s Paris in September 2011. Rene Lalique glass is even known to be used as collateral in criminal activity, with the infamous James (Whitey) Bulger himself being an avid collector.
Yet, high demand in the art market is a double edge sword. While sellers enjoy a large return on their investments in Rene Lalique glass, forgeries flood the market and an underground black market for fake Rene Lalique glass flourishes. As always the art market is caveat emptor, yet glass collectors and appraisers need to be extremely diligent to identify an authentic Rene Lalique piece.
HISTORY OF LALIQUE GLASS
Rene Lalique, who signed his pieces R. Lalique, implemented both new technology in glass production and an ideal of mass production in his glass. He was inspired by the increased industrialization in the 19th Century and a new market for glass wares popularized at the Great Exhibition in 1951. He drew upon technology of high-volume production which used moulds to form standardized shapes, a thick heavy glass which could be manipulated by etching, coloring, flashing, enameling, and acid-etching. However, this increase in a mass-production created a backlash exemplified by the Arts and Crafts movement, which explored a return to the potential craftsmanship of glass influenced by a new spirit of Belle Epoche and study of nature. Rene Lalique bridged these two dynamic philosophies first in his jewelry, and later in his glass work.
The new expressive style was perfected by Phillipe Joseph Brocard, whose enameled bowl won the highest prize at the International Exhibition in 1871. His work was also displayed at the 1867 World’s Fair in Paris and published in books about the ‘Japonisme’ movement, making his work influential and accessible. Accompanying Brocard’s exposure, a new excitement in France was sparked by the founding of the Union Centrale des Arts Decoratifs. These events caused an explosion of experimentation with glass forms “the results of which were new and exciting, genuinely creative and personally expressive styles in glass.” This expressive style can be seen in the works by Emile Galle, Francois-Eugene Rousseau, and Rene Lalique.
At the same time that this new spirit of craftsmanship was expanded in France, innovation in mass-produced glass continued to feed a growing demand. In 1864 a steam-operated press was developed in the United States to produces medical wares and glass containers at a rapid pace. In the 1880s, American Philip Arbogast perfected semi-automatic glass machines which eliminated the need for a glassblower. This new technology allowed craftsman to combine their artistry with commercial glass wares, something Rene Lalique exploited in his new factory, or studio, in Clairfontaine.
With his new spirit and technology Rene Lalique first began his mass-production of art glass. In 1907, he was commissioned by Francois Coty to design bottles for a line of perfume. The extensive assignment led to further commissions by Forvil, d’Orsay, Vijny and many other perfumeries. Within the background of World War I, Lalique embarked on a mission to create art glass which could be affordable to the masses. At the same time, he remained committed to glass craftsmanship. As B.M. Hudson wrote in 1931: ”This is originality, dominated by a sincere simplicity. Simplicity not in the sense of awkward severity and poverty of line, but the simplicity of attaining the desired effect directly and with a minimum of detail.”
He did so by pioneering centrifuge casting, a way of spinning molten glass into moulds. Rene Lalique’s new technique allowed him to expand his range of glass shapes, and he soon began producing car mascots, dressing-table sets, lampshades, ornamental sculpture and household wares. His style, innovation and modern spirit are Rene Lalique’s legacy. After Rene Lalique’s death in 1945, production of Lalique glass was halted. His son, Marc Lalique, produced crystal glass, marketed under the name Cristal Lalique. In 1994, Rene Lalique’s granddaughter, Marie-Claude, sold the Lalique Group to Pochet, the leading producer of French perfume bottles. In 2008, Pochet sold the company to Art and Fragrance for $58 million. Under Art and Fragrance ownership, the factory reproduces the most popular Lalique vases and decorative pieces. Yet, Marie-Claude Lalique continued her own perfume company named Lalique Parfums. Since 1994, Marie-Claude’s company has created “genuine perfumery creations” in limited, signed and numbered flacons with names like Lalique for Homme Lion, Perles de Lalique, Fleur de Cristal and Lalique White Their tag line is: “Lalique is synonymous with crystal, but the firm’s history has always been closely linked to changes in perfumery.” In July 2010, the Musee Lalique opened to show Rene Lalique’s extensive work, 650 pieces in all. It is site a few kilometers from Lalique’s original glass factory.
FORGERIES
The high demand and high prices paid for Lalique glass makes it a target for forgeries. In fact, forgery Lalique glass is easily done without much effort. Forgery of Lalique glass is rampant and fakes currently flood the auction and retail market. Although provenance research may be possible, since most Rene Lalique glass was intended to be used as household wares they have changed hands many times and tracing the piece from factory to seller would be almost impossible. Yet, there are several ways for collectors and appraisers to spot forgeries, some of them requiring extensive research, a trained eye, and even scientific analysis. These include:
(I). Production and Quality Analysis
(II). Signature Analysis
(III). Form and Pattern research
I. Production and Quality Analysis
A distinctive feature of Rene Lalique’s glass is it’s quality of production and design. In fact, his innovative use of new glass technology make his work easy to establish forgeries. Fakes can be identified by heavy weight, rough finish, blemishes to the surface, and wrinkle lines caused by fast cooling. The best known fakes, or “copies,” interestingly enough originate in Czechoslovakia. A wide spread ring of forgery was discovered there and has become well known in the Lalique collecting world. Ebay’s own Lalique guide cautions buyers to be aware of poorly produced Czech forgeries in 2007. Arguably, the worst way to purchase Rene Lalique glass is through Ebay since you cannot examine or feel the glass surface and weight. These two identifying factors — surface and weight — are arguably the best way to determine authenticity, but requires extensive comparison of fake and true Rene Lalique glass.
A familiarity with the feel of Lalique can be your best defense against purchasing a forgery.
When trying to authenticate a Rene Lalique buyers should look for poor condition caused by years of use — what appraisers call inherent vice. This is particularly true since most Rene Lalique pieces were designed for daily use and included perfume bottles with glass stoppers and car hood ornaments. Expect to see cracking, chips, bruising, and even evidence that the glass has been restored. A piece advertised or claimed to be an authentic Rene Lalique without damage can most often be identified as a fake.
Another important piece in identifying true Rene Lalique glass is the glass composition. Determining the chemical make-up of glass is an expensive procedure, but if a collector is investing $180,680, it may be best to take all advantages of all the tools available Rene Lalique’s use of a process called demi-crystal involved using glass with 30% less lead oxide than previous glass. The lower levels of lead oxide left a more flexible medium which would easily release from moulds, thus allowing an increase in mass-production. Chemical testing of the glass can determine if this lower level of lead oxide exists and can authenticate it as an original Rene Lalique.
II. Signature Analysis
Rene Lalique signed the majority of his work R. Lalique. Because the Lalique brand name is still in use, and has been used continuously after Lalique’s death in 1945, the addition of a simple “R.” to any Lalique product can easily make it appear as authentic. Many pieces made after Rene Lalique’s death, works produced by Marc Lalique’s Cristal Lalique company and Marie-Claude Lalique’s perfume bottles, can easily be altered to appear like authentic Rene Lalique work.
The first thing to look for when authenticating a Rene Lalique piece is a signature. Rene Lalique signed the majority of his work, with only a few exceptions. It is fair to say that without a
signature, you can assume that the piece is a forgery. Many Rene Lalique pieces contain a variety of stamps used throughout his factory production. Some have stamps stating “Made in France” and others have stamps indicating the model number. The signature can appear in many places, and sometimes in more than one place— visible on bottoms or edge on pieces depending on the design.
This being said, how can collectors and appraisers identify true R. Lalique signatures? The best method is comparing the signature on your piece with known Rene Lalique signatures. Sample signatures can be found in a variety of sources, including Robert Prescott-Walker’s Collecting Lalique Glass and the R. Lalique Blog, which is updated regularly. In summary, an R. Lalique signature is not a reliable determination of authenticity. As the R. Lalique Blog article “R Lalique Signatures: Authentic Rene Lalique Signatures” warns: “Signatures do not authenticate pieces, it’s the other way around. Pieces authenticate signatures. Make a decision about the pieces first, and then see if the signature fits. Just because a signature looks right, does not mean it is right. And signatures in many cases are far easier to fake than authentic pieces. So enjoy collecting, but do it with your eyes open!”
III. Form and Pattern Research
Form and pattern research is a great way to begin your authentication process, but it is best used in conjunction with other methods of research— such as quality or signature analysis. It is best to visually compare unauthenticated pieces with authenticated pieces. Although Rene Lalique’s repertoire is large, there are records of the decorations, forms, and patterns that he used. To begin, look at authenticated pieces available on the market and compare them (art is all about comparisons and contractions). While it may take some patient eye training to identify differences, with practice it can be an important way to quickly spot forgeries. There are many published resources that can also be used to authenticate Rene Lalique pieces. These include a re-print of Lalique’s 1932 Sales Catalogue which illustrates the range of items for sale from Rene Lalique’s factory at that time. Another resource is the R. Lalique Catalogue Raisonne by Felix Marcilhac, which contains 3,600 documented designs with details such as size, color and date. If you do not want to do this research yourself or if you do not have the time, several services can research pieces for you and can be found on the internet.
CONCLUSION
With large price tags comes large risks. Original Rene Lalique glass sells for thousands of dollars in today’s auction precisely because of his mastery of design and technology. Yet, factors such as high demand with low supply and the changing ownership of the Lalique brand name and moulds, have made it fairly easy to forge or fake authentic Rene Lalique work. It is up to the buyer to perform the due diligence- identifying Rene Lalique by production quality, signature analysis, and pattern. To purchase an authentic Rene Lalique, pieces noted for their “chastity of form and design,” research and knowledge is required. As with all fine art and antique purchases: caveat emptor!
Mary Elizabeth Williams
underpainted.incorporated@gmail.com
Indian art smuggling case
Last month, July 2012, U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) special agents seized several Indian sandstone and bronze statues and, at the same time, arrested the possessor of the stolen properties: Subhash Kapoor, the owner of Art of the Past Gallery in Madison Avenue, New York City.
This Indian art smuggling case began in February 2007 when the Indian Consulate contacted HSI requesting assistance in the investigation of a potential smuggling of Indian antiquities into New York: in that period, an import and export company was expecting the arrival of a shipment containing stolen Indian antiquities allegedly imported by Kapoor. On July 14, 2012, Kapoor was extradited to India, and now he is being held in prison in Tamil Nadu, southern India, accused of trafficking antiques and antiquities.
The total value of the statues and sculptures recovered is estimated at more than $20 million “…but they are priceless to the nations that they were robbed from…” said James T. Hayes Jr., special agent in charge of HSI New York.
This investigation revealed that Kapoor allegedly created false provenances to hide the histories of his illicit antiquities. As a consequence, museums and galleries, which have acquired works of art through gifts or purchased from Mr Kapoor, should scrutinize their collections and contact HIS. Among these high-profile museums and galleries there is the Metropolitan Museum of Art in New York, the Los Angeles County Museum of Art, the Museum of Fine Arts in Boston, the Musee des Arts Asiatiques-Guimet in Paris, the Royal Ontario Museum in Toronto and the National Gallery of Australia.
This case confirm that, usually, art’s buyers, and museums as well, are more worried about the authenticity of the work of art than about the provenance or about the risk that the art being purchased may be expected elsewhere. As result, the main legal consequence of Mr Kapoor criminal activity concerns the responsibility of museums that purchased stolen works of art and the probable return of the works to the owner: an accurate Due Diligence investigation could have protected museums from this unfortunate situation.
Isabella Pulcinelli
http://www.nytimes.com/2012/07/28/arts/design/us-asks-museums-to-examine-collections.html
http://www.indolink.com/displayArticleS.php?id=073112110913
http://www.indiaculture.nic.in/
How to lose an estimated $9.5 million Botticelli
This month, July 2012, a District Judge decided that a painting, attributed to Sandro Botticelli, will remain in a bankruptcy Court’s hand in order to satisfy the claims of Salander-O’Reilly Galleries creditors.
In 2007, Lawrence Salander and his company were sued by numerous defrauded customers and business partners and, in the same year, Salander filed for personal bankruptcy. Five years later, the victims of this New York’s biggest-ever art fraud (among them John McEnroe and Robert De Niro) may have an economical relief from this painting worth an estimated $9.5 million.
The owner (better, the former owner) of the Botticelli, Dr. Ronald Fuhrer, general director of Golconda Fine Art in Tel Aviv (and also owner of Kraken Investments) claimed the painting back alleging that he consigned the Botticelli to Salander-O’Reilly Galleries before the bankruptcy for exhibition and sale. Unfortunately, the consignment agreement expired before Salander’s bankruptcy filing and, according to the trustee winding down the Salander gallery, Fuhrer has no chance to recover his Botticelli.
News report that, in order to settle the ownership dispute about this painting, Fuhrer have proposed turning to arbitrators in the Channel Islands, where his company does business, then, the trustee opposed taking the dispute out of bankruptcy court and the judge agreed. As a consequence, Kraken appealed and, in July 2012, a US district judge upheld the bankruptcy judge’s ruling denying arbitration.
In conclusion, whether you are an artist or an owner of a piece of art, pay attention to the expiration date of your consignment agreement when your work is the hands of a gallery.
Isabella Pulcinelli
http://www.businessweek.com/news/2012-07-12/botticelli-may-aid-bankruptcy-of-imprisoned-salander
http://stream.wsj.com/story/markets/SS-2-5/SS-2-33605/
http://www.artmediaagency.com/en/48364/a-botticelli-for-victims-of-salander-oreilly-case/
http://galleristny.com/2012/07/heres-a-tip-creditors-can-get-your-consigned-botticelli
http://theartlawblog.blogspot.com/2012/07/if-you-consign-work-to-gallery-and.html
Dealers in high-value goods
In accordance with the principle of risk-based supervision, dealers in precious stones or metals, or works of art, and auctioneers are exposed to a relatively high risk of money laundering or terrorist financing. Therefore, according to Directive 2005/60/EC on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (see Article 2(1)(3)(e) and Whereas no.18), they should register as “dealers in high-value goods” when they accept cash transactions of Euros 15,000 or more.
Recently, April 2012, the European Commission reported on the application of the Third Anti-Money Laundering Directive and concluded that “…although the existing framework appears to work well … some modifications are necessary to adapt to the evolving threats posed…”. Thus the Commission planed to bring forward a proposal for a fourth anti-money laundering Directive in autumn 2012, in order to create a modern EU framework capable of responding to new threats.
With reference to the dealers in high-value goods the European Commission recommended lowering the Euros 15,000 threshold and forcing the dealers in high-value goods to comply with some rigorous rules, such as, the identification of the buyer by checking his passport.
This solution “…will not make life more difficult for money launderers…it will…make business more difficult for the art trade. It is the smaller dealers in antiques and lower-end fine art who accept cash: and they’re the ones suffering most in this economic climate.” (Pierre Valentin, legal firm Withers).
Isabella
California Resale Royalties Act
On May 17, 2012, the United States District Court for the Central District of California found “…that the California Resale Royalties Act … violates the Commerce Clause of the United States Constitution. Because the Court finds that the offending provisions cannot be severed, the entire statute is struck down…”.
However, resale rights are common in Europe, California is the only State in US which assigns to the Artist the right to collect five per cent of the price when his work is sold and the seller resides in California or the sale takes place in California (California Resale Royalties Act, California Civil Code 986, “CRRA”).
Notwithstanding Artists have very rarely gone to Court over this law, this rule seems to be really unpopular among auction houses to the extent that Sotheby’s and Christie’s filed a joint motion to dismiss the claim of estate of Robert Graham et all and Sam Francis foundation et all, based on the CRRA.
Auction houses lawyers argued that “…by purporting to regulate transactions that take place wholly outside of California, the CRRA violates the Commerce Clause of the United States Constitution…” and Judge, Jacqueline H. Nguyen, granted their joint motion.
Isabella
Earthquake in Italy & Cultural Heritages
Following the earthquake of last 20th of May 2012 the Italian Ministry of Cultural Heritages issued the memorandum no. 24/2012 in order to monitor the historic building damages and coordinate the related activities. The emergency situation occurred in the Northern of Italy: provinces of Bologna, Modena, Ferrara and Mantova
Awfully, less than ten days later, 29th of May, another earthquake shakes the same area and nowadays the damage to the cultural heritages is the most serious since 1997, when an earthquake hit the Basilica of San Francesco in Assisi, Umbria.
The historical buildings of the area, already cracked in the previous quake, are now almost destroyed. Particularly, the 16th century cathedral of Mirandola, 20 kilometers north of Modena and near the quake’s epicenter, literarily collapsed.
Isabella
