July 2021 (Volume IX Issue 7).
Made in Brooklyn with love.
Art Law Blast 2.0.
PS All puns are intended.
Sun Never Sets on Art Law
Dear <<First Name>>,
With nearly half of summer and several exciting events behind us, thank you to all who participated in our June webinars and workshops. For those of you who could not attend, archives of these and other recordings are available to Premium Members. Log in now or become a member!
Also, as part of our Estates Planning Clinic, the Center is inviting artists and artists' heirs to attend the July 14 clinic for an opportunity to meet with legal, arts, and finance professionals at the Artist Legacy and Estate Planning Clinic. Keynote to the Clinic will be presented by Yayoi Shionoiri, the Executive Director of the Estate of Chris Burden and the Studio of Nancy Rubin.
In other international art law news, Irina Tarsis, the Center's Founder and Managing Director, will teach an online intensive art law course at Sotheby's Institute of Art (London) in August-September! It seems that the sun never sets on art law.
In Honor. Georgia-based law firm Harris Lowry Manton LLP recently unveiled the newest addition to its office: a portrait of civil rights leader Rep. John Lewis (GA) by local artist Patrick Lewis. The painting quickly became a focal point for both the office and passerby—uniting the community in Rep. Lewis’ mission for equality and justice.
In Memory. Former U.S. Marine Charles Waterhouse embarked on a herculean task: painting every corpsman who had received the Medal of Honor. The Marine Corps’ first artist-in-residence, Waterhouse had served in World War II at Iwo Jima and later as a U.S. Navy artist in Vietnam. A digitized selection of his works is available here.
Belgian Bust. Approximately 800 archaeological objects valued at nearly $13m have been seized from a Belgian collector and returned to Italy. The investigation into the matter began in 2017 and was carried out through the combined efforts of Italian and Belgian authorities, headed by the EU Agency for Criminal Justice Cooperation. The collection includes items from 6th century BCE, including notable “archaeological treasures.”
Art Fraud Allegations. Joe Berardo, a prominent Portuguese businessman, art collector, and Lisbon-based modern art museum founder, was arrested for allegedly shifting valuable artworks into a trust to protect them from creditors. The criminal investigation against Berardo began in 2019 after three Portuguese banks sued Berardo for roughly $1.2B. Berardo's museum’s art collections have been seized as collateral.
A Fraught Legacy. A controversy related to the artist Fred Yates’ Estate is brewing. Yates passing away in 2008 without a will, his assets were split between France and the UK. While the French officials auctioned off all of the belongings left within their borders, those connected to Yates are working to have the UK’s Government Legal Department claim the artist’s estate for the Crown, in order to keep the remaining collection on display in the UK.
“The Sack of Rai.” Italian authorities have uncovered a series of art thefts from the public broadcasting company, Rai, based in Rome. More than 120 artworks were stolen from the company’s headquarters, including paintings by de Chirico and Guttuso, as well as etchings by Monet and Modigliani. Former employees are suspected of exploiting the collection’s lack of an alarm system to swap the original works for fakes.
Export Ban. The UK Reviewing Committee for the Export of Works of Art and Objects of Cultural Interest has halted the export of a £17m Renaissance-era roundel until at least September 27. The unattributed work may be connected to Donatello or Mantegna. The hope is for the roundel to find a UK-based buyer, to allow further study by local scholars.
NYC Artist Grants. Newly launched City Artist Corps Grants plan to donate $5,000 to over 3,000 artists based in New York City. All artists and creative groups are invited to apply through August 10, 2021. The grant must be used for the creation of works or events open to the public or live-streamed to a public audience.
Set for Auction. Freeman’s, America’s oldest auction house, is set to sell signer Charles Carroll’s copy of the Declaration of Independence on July 1. The document, estimated at $500,000 - $800,000, was recently uncovered in Scotland after having been missing for 177 years. The copy was printed by engraver William J. Stone and given to Charles Carroll in 1824.
Dumpster Diving. Two paintings were discovered in a dumpster off the highway in central Germany this June. The works, both dating from the 17th century, are by Italian artist Pietro Bellotti (1625-1700) and Dutch artist Samuel van Hoogstraten (1627-1678). German police have asked anyone with information about the paintings to come forward.
Canceled Sales. Five 18th century bronze figures of Hindu gods have been removed from a scheduled auction at Bonhams in Paris after being revealed to be looted artworks from a temple at the Patan Royal Palace Complex, a UNESCO world heritage site in Nepal.
On the topic of restitutions
In London, four looted objects were pulled from British auction house Busby’s recent sale, after intervention from the Ethiopian Embassy in London. The works were stolen by the British army during the Battle of Maqdala in 1868. Plans are in place to return the objects to Ethiopia.
The Metropolitan Museum of Art has announced the repatriation of two Benin Bronzes in its collection to Nigeria, which it had received from a collector in 1991. The works had previously been housed in the National Museum, Lagos, and the British Museum after having been looted from Benin City by British forces in 1897.
On the other side of the world, two 10-11th century carved lintels have been repatriated to Thailand. The objects were previously displayed at the Asian Art Museum, San Francisco. The Thai government had flagged the works as stolen back in 2017. The restitution follows the case carried out last year.
Sedition or Commemoration? On June 13, police entered a Hong Kong art space to investigate the display of allegedly seditious art. The gallery, Parallel Space, had just opened an exhibition marking the two-year anniversary of pro-democracy demonstrations in Hong Kong. Officials claimed they had received a complaint regarding the exhibited works.
Cultural Appropriation Call Out. Mexico’s Ministry of Culture sent letters to Zara, Anthropologie, and Patowl Brands asking for a public explanation of their alleged cultural appropriation and on what basis these companies believe they may privatize collective community property. The letters are intended to help protect the Oaxacan communities that have been largely invisible on the international stage and called for a collaboration between the corporations with indigenous designers in adherence with fair trade practices.
Copyright In The Netherlands. Effective as of June 7, 2021, the Netherlands amended its copyright rules to complement and reduce the differences between European Union countries' copyright laws. The new rules consist of 3 parts: (1) new situations where copyright-protected material may legally be used without prior permission from the rights holder, (2) measures intended to encourage a well-functioning market for protected content, and (3) regulations that provide copyright holders with a better bargaining position.
Graffitied Gigafactory. Elon Musk’s Tweets have reached the art world: the billionaire put out a call for “awesome graffiti art” to cover Tesla’s Giga Berlin factory. Interested artists are invited to submit images of their work to GigaBerlinArt@Tesla.com.
Art Thief’s Remorse. Two paintings stolen from the National Art Gallery of Athens in 2012 have been found in a ravine outside the Greek capital. One of the works, Picasso’s Woman’s Head (1939), had been gifted to the museum by the artist in 1946. The second recovered work is Mondrian’s Mill (1905). A middle-aged construction worker and self-described “Art Freak” admitted to the theft and led police to the hidden site of the stolen works.
Drones Dissuade Thieves. A recent report reveals a drop in art thefts in Italy during 2020. While this statistic is partly due to the COVID-19 pandemic, officials also believe new surveillance technologies play a role here. Drone and satellite imagery has helped resolve investigations into looting at several archaeological sites across the country. Many opine that this bodes well for the future of tracing and foiling art thefts.
Art/Tech Investigations. A reporter, architect, and programmer team won a Pulitzer Prize for International Coverage for their efforts in documenting Uighur detention camps in China. The project received partial funding from Brooklyn-based Eyebeam Art and Technology Center, which offers grants to help artists share news through creative new mechanisms. The team used satellite imagery to unveil the attempted digital censoring of the camps’ existence.
AR Meets History. The Valentine Museum in Richmond, VA is launching a new tour, “Monument Avenue: Origins and Reverberations,” this July. With the help of augmented reality smart glasses, the tour will walk visitors through the historic district, contextualizing the monuments and creating an immersive journey through history.
Anthea Art Investments (Zurich, remote) more info...
Students are eligible for a 50% discount on membership. Contact us for more info!
As a member of the Amazon Associate Program, the Center for Art Law may earn from qualifying purchases. Please consider using the links below to give back to the Center with each book.
Institut Art & Droit, Marché de l’art et Droit : un ouvrage collectif en l’honneur de François Duret-Robert (June 2021), written in French. This collective publication written by French experts on art market law is published in the memory of François Duret-Robert, major figure in the field. Authors are all specialists, whether academics, attorneys, notaries, and various professionals working in or for the art market. Available here.
J. Ragai and T. Shoeib, Technical Art History: A Journey Through Active Learning, WSPC (May 2021). In the last few years, the problems of authenticity in paintings have reached untenable proportions in tandem with a lack of understanding from connoisseurs and collectors of the insights that modern scientific investigation can offer. In some cases, because of this lack of knowledge, the results of scientific analysis are treated with suspicion. The art world has gradually come to realize the need to develop educational programs that aim at improving the technical know-how of collectors, connoisseurs, and young students who seek work as art scientists. As an introductory textbook, Technical Art History is an essential contributor to addressing this need. Available here.
Victoria and Albert Museum (the V&A), the world’s leading museum of art and design, launched its program Culture in Crisis in 2015. According to the recollection of Vernon Rapley, the director of cultural heritage protection and security at the V&A, the program was conceived against the backdrop of the mass destruction of historic sites in Iraq, Yemen, and Syria. The meeting between Rapley and then director of the Yale University Institute for the Preservation of Cultural Heritage marked the exact moment of the birth of the program. Together, they planned the inaugural conference at the V&A under the patronage of UNESCO in April 2015. Delegates coming from around the globe signed a statement of intent as The London Declaration at the end of the conference, which has become the backbone of the V&A’s Culture in Crisis program. The Declaration highlights the program’s commitment to protecting global cultural heritage, supporting communities that suffer cultural heritage loss, convening those with a shared interest in protecting cultural heritage, and raising public awareness.
The program opened up to the public in 2016 when Laura Searson joined. She has been responsible for managing the program across all V&A sites and creating public programs for Culture in Crisis, such as international conferences, podcast series, webinars, and the Culture in Crisis Portal.
In 2023, on the 28th of February, Culture in Crises held a conference about Heritage at War: Plan and Prepare’ with panels “Learning from the Past” and “Preparing for the Present.” The program was outstanding, but for the title of the second panel. IT seems that we are doing more to prepare for the future than to be ready for the present.
The first step is to subscribe to the Culture in Crisis’s mailing list.
The Culture in Crisis Portal is the world’s largest and most accessible database of heritage protection projects. It is free to search listings and register your heritage preservation projects.
Culture in Crisis Conversations is digital events that examine how the experiences of recent years have encouraged cultural organizations across the globe to adapt and transform in the face of global challenges and new opportunities; looking to build a future that is more sustainable, equitable, and ecological. Global heritage perspectives and Cultural heritage protection in a post-Covid landscape are the two past series that recordings are free to access.
Culture in Crisis Podcast brings voices in the heritage preservation field. Listen to season one Preservation by Design to learn about solutions to threats faced by cultural heritage. Season two Fighting the illicit trade traces the criminal activities of trading cultural heritage.
Over years the program has carried out a number of major international conferences that discuss key issues in the field. Check out previous conferences.
There are a wide range of free events that open up dialogues between artists, designers, heritage workers, activists and many others.
Cynthia Li is a graduating senior at the University of Michigan – Ann Arbor. She has a major in art history and a minor in political science. She is the undergraduate intern for the Center in Spring 2023.
“Culture in Crisis | International Institute for Conservation of Historic and Artistic Works.” ↑
On December 31st, each year, new creative works enter the public domain.  This means that while some artists/creators lose the right to preclude others from copying a work, others can create new works that utilize aspects of previously copyrighted works. When artists and creators create derivative works, such as films, novels, and plays, which are based on or reference aspects of a work in the public domain, the world gets to experience new expressions of creativity that would otherwise be prohibited as infringing upon the artists’ intellectual property rights.
It may help to think of the public domain as a qualification rather than a location. Works that are not protectable by any intellectual property laws, including copyright, trademark, or patent laws, are included in the public domain. When a creative work, such as a painting, sculpture, photograph, song, or book, is in the public domain, anyone can freely use, share, or adapt it without permission from its author. Copyright laws vary by country, but generally, works that are protected by copyright law fall into the public domain 70 years after the author’s death. 
Today, some of the world’s most revered artworks are in the public domain, freely available for copying and distribution for monetary gain. For example, Vincent Van Gogh, born March 30, 1853, in Zundert, Netherlands, painted The Starry Night in June 1889. The artist died on July 29th, 1890 in Auvers-sur-Oise, France. Because Van Gogh passed away over 70 years ago (132 years ago at the time this article was written), a reproduction of The Starry Night (1889), currently on display in the Museum of Modern Art in New York, is now in the public domain. The same methodology applies to works created by artists such as Gustav Klimt (born July 14, 1862, in Baumgarten, Vienna, Austria; died February 6, 1918, Vienna, Austria), and to literary works such as The Great Gatsby (1925) by F. Scott Fitzgerald (born September 24, 1896, in Saint Paul, Minnesota; died December 21, 1940, in Los Angeles, California).
Although there is no law that will provide copyright protection for the author of a work in every country, several rules exist that provide a global framework for copyright law. For example, the Berne Convention for the Protection of Literary and Artistic Works began in 1866 at an international assembly in Bern, Switzerland. There, ten European countries gathered to establish a set of legal principles to govern copyright protection for authors of creative works. The Berne Convention establishes minimum protections for creators of works including but not limited to the right to make adaptations and arrangements of the work, perform it in public, adapt it into musical works, broadcast it, and make reproductions in any manner or form.
The Convention also provides for “moral rights”, which means that the creator of the work retains the right object to portrayals or modifications of the work that are prejudicial to the author’s honor or reputation. The Berne Convention proscribes a minimum duration of protection for 50 years after the author’s death. This number provides a floor, rather than a ceiling, of protection. However, when an author of a work is a national of a country whose copyright protections are longer, the longer term supersedes the 50-year term provided by the Berne Convention. For example, the United States’s general copyright duration is 70 years after the death of the author, and Mexico’s duration is 100 years after the death of the author.
Copyright protections apply to works differently by country, and each country has its own standards for how and when a work can enter the public domain. However, the most common reasons for a work to enter the public domain  in the United States are:
The type of work is not eligible for protection under copyright laws;
The copyright expired;
The work was made by an office or official of the U.S. Government;
The owner of the copyright did not renew the copyright registration in a timely manner or intentionally forfeited their rights to the work.
Once a work enters the public domain, ownership of the copyright expires. Any person or company is free to use, copy, and distribute the art. For example, someone may find a reproduction/image of Gustav Klimt’s The Kiss (1907-1908), which is currently housed in the Österreichische Galerie Belvedere, online, print it, and sell it outside of any museum to the general public. This commercial exploitation of a work created by a known artist is permissible under copyright law because the artist’s works are in the public domain.
Instead of printing a photo as the example above mentions, however, immersive art experiences are a newly popularized and commercialized form of creative works that have largely been based on works in the public domain. Furthermore, certain aspects of these experiences may be protected under copyright law.
The Rise of Public Domain Art in Immersive Art Experiences
Although immersive art experiences are not new, they have become popular in recent years. In 2012, Culturespaces Digital, a company specializing in immersive art experiences, began producing digital art exhibits in the Carrières des Lumières in France. The company focused on different noteworthy artists each year; in 2013, Culturespaces opened an immersive exhibit highlighting Gustav Klimt. Other exhibits featured Vincent Van Gogh in 2019, Paul Cezanne in 2021, and Claude Monet in 2022, all of whose art is in the public domain.
Other companies have followed, creating immersive art exhibits around the world. The Immersive Van Gogh Exhibit, which was created and designed by contemporary immersive artist, Massimiliano Siccardi, focuses solely on the life and work of Vincent Van Gogh, and acts as a traveling exhibit, visiting different larger cities across North America. Because Van Gogh’s works are in the public domain, it is permissible under copyright law for anyone to create an immersive experience featuring the artist, which is evident in the many companies that have Van Gogh-specific immersive exhibits. Immersive experience companies such as Superblue, which opened in Miami in 2021, is a physical space dedicated to showcasing the works of different artists through digital immersive art technology. Australia-based, Grande Experiences, offers companies the option of obtaining a license to host one of their immersive art shows in any city, featuring artists such as Dali, Monet, and DaVinci, and also has permanent immersive art venues in Melbourne and Indianapolis. Their business model allows companies to lease the right to use and profit from their immersive experiences. The immersive entertainment industry, estimated to be valued at over $61.8 billion, according to the HERE Institute’s 2020 annual report, is highly profitable because it eliminates high costs associated with moving and insuring physical artwork, especially those of famous artists.
The digital technology that creates these immersive art experiences allows visitors to feel transported into the art itself. For instance, viewers might feel physically present in a field of Van Gogh’s sunflowers or walk over the bridge Monet painted in the water lily garden. Immersive experiences also often offer 360-degree projections of landmark paintings and works of art, as well as mega-size screens that allow viewers to sit under and around the paintings to fully experience the creative magnitude of classic masterpieces. Coupled with the lighting and sound that is engineered specifically for each exhibit and artist, the sensory experience becomes fully immersive.
Copyright Protection for Immersive Art Experiences
People may be interested in reproducing art that has fallen into the public domain for several reasons. For example, with famous artists such as Salvador Dali or Leonardo DaVinci, whose works are in the public domain, immersive art companies attract a wide audience and therefore stand to profit from both the name recognition and from the opportunity to create a new experience for viewers, portraying the art on a larger scale, and in an amplified way. Some companies have successfully registered for copyright protection for their immersive art exhibits. For example, Belgium-based company, Dirty Monitor registered its immersive art project, Van Gogh Immersive Exhibition, in 2017 with the U.S. Copyright Office, (registration number PA0002347152). Thus, although no one may obtain copyright registration for reproducing a copy of one of Van Gogh’s paintings, companies such as Dirty Monitor are able to obtain copyright protection for the aspects of a reproduction that are independently copyrightable. For example, Dirty Monitor did not register the photographs of Van Gogh’s paintings that they used in their exhibit, but they did register all other cinematographic material, the additional new footage, and the production as a motion picture. Because immersive art companies create so many different elements involved in the exhibit, such as lighting design, sound effects and musical scores, and video and virtual reality, they are able to obtain copyright protection for the way in which they express art that is in the public domain. When these companies have copyright-protected immersive art experiences, they also retain the right to preclude others from creating immersive art exhibits that copy elements of their exhibits, known as “compilation” and “derivatives.” This is because copyright law protects not only the original artworks themselves but also derivative works that are created based on the original artworks. See the U.S. Copyright Office’s explanation of “Copyright in Derivative Works and Compilations.”
Derivative works include works that are based on or incorporate the original artwork, such as reproductions, adaptations, and translations. For example, an immersive art exhibit wherein images of a Klimt painting or one of the gardens in a Monet painting are displayed through a virtual reality headset, with the addition of elements such as sound recordings and special lighting, may be considered a derivative work that is protected by copyright law. The U.S. Copyright Office defines derivative works as:
“A derivative work is a work based on or derived from one or more already existing works. Common derivative works include translations, musical arrangements, motion picture versions of literary material or plays, art reproductions, abridgments, and condensations of preexisting works. Another common type of derivative work is a “new edition” of a preexisting work in which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work.” 
In some cases, the owners of the original works may also have intellectual property rights in the immersive art experience itself. For example, all texts and illustrations published on the website of the Klimt Foundation are still protected under copyright law, while Klimt’s painting, The Kiss is in the public domain in the United States because it was published (or registered with the U.S. Copyright Office) before January 1, 1928. On the other hand, immersive art experience companies such as Klimt: The Immersive Experience, claim copyright protection, although no registration can be found on the U.S. Copyright Office’s database.
Additionally, copyright protection may expire for the original artwork, but the derivative work may still be protected because it was created within the protected period of time. Additionally, fair use and other exceptions to copyright law may apply to certain uses of the original artwork or derivative works, such as when the art is displayed or reproduced for educational or non-commercial purposes.
Infringement and Immersive Art
Some creators of immersive art experiences have encountered copyright infringement issues, including teamLab, a Japanese art collective that sued the for-profit Museum of Dream Space (MODS) in 2019 (teamLab Inc. v. Museum of Dream Space, LLC et al), for copying its immersive art exhibit. In January 2023, teamLab declared a victory in their lawsuit after a California court found that there was substantial similarity between the MODS immersive exhibit and the teamLab exhibit, such that there was significant evidence of copying. However, teamLab’s exhibits do not include art from the public domain, and therefore, proving infringement for an immersive art company that bases its exhibits on art in the public domain would require a finding that the company accused of infringement copied the particular expression of the immersive experience, rather than copying the public domain art itself or the idea of an immersive art experience featuring a particular public domain artwork.
In summary, immersive art experiences featuring artwork from the public domain has become a highly lucrative and popular way in which people are consuming art. In the coming months and years, as technology continues to advance and art continues to fall into the public domain, it is probable that more infringement suits will arise, and therefore, copyright laws will need to be refined to adapt to these challenges.
Disclaimer: This and all articles are intended as general information, not legal advice, and offer no substitution for seeking representation.
About the Author:
Laura Dowdy, Legal Intern with the Center for Art Law, is a second-year law student at New England Law | Boston, concentrating on Intellectual Property law, especially art, copyright, and trademark law. She can be reached at email@example.com.
This article compares the differences between 501(c)(3), community benefiting nonprofits, and 501(c)(7), social clubs, and applies them to discussing legal obligations in the field of art museums that are mostly 501(c)(3) tax-exempt organizations. In doing so, it critically discusses how museums must differentiate themselves from social clubs in order to afford the wider tax benefits that are given only to 501(c)(3) nonprofits. These wider tax benefits include exemption from federal income taxes and often state taxes (e.g., income tax, property tax, excise tax) as well as tax deductions enjoyed by their donors under § 170(c)(2). While this article consults the tax codes and regulations and uses empirical evidence for arguments, it includes critical and theoretical arguments of how art museums should serve diverse public to differentiate themselves from social clubs and remain worthy of tax benefits they currently enjoy. Below, the article (1) shares brief background information on the practice of art museums, (2) presents major differences between 501(c)(3) and 501(c)(7) based on the tax codes and regulations, (3) applies them to the current practice of art museums, especially regarding the “no private benefits” provision, and (4) proposes an affirmative community benefit standard to rectify any possible deviations of museum practice from being qualified as public benefiting nonprofits.
Art Museums in the United States
While there are a few examples of public (e.g., Smithsonian museums) and for-profit (e.g., International Spy Museum) museums, the majority of museums in the United States—especially art museums—are nonprofit organizations with a 501(c)(3) status. This means that most museums in this country are considered charities described under both § 501(c)(3) and § 170(c)(2), receiving most tax benefits among 29 different classifications of tax-exempt organizations described in 501(c). While there are many statutory, organizational, and operational tests charitable organizations need to satisfy in order to get maximum tax benefits afforded under both § 501(c)(3) and § 170(c)(2), they exist to ensure that they serve the wider general public in exchange for extensive tax benefits. One specific provision that this article focuses on is the “no private benefit” provision; 501(c)(3) organizations must provide wider public benefits. The extensive tax benefits afforded to charities in exchange for providing public benefits are not given to other types of nonprofits, for example, 501(c)(7) social clubs because they do not provide services to wider classes of people.
Differences between 501(c)(3) and 501(c)(7) Organizations
Section 501(a) states that “[a]n organization described in subsection (c) or (d) or section 401(a) shall be exempt from taxation under this subtitle unless such exemption is denied under section 501 or 503.” Under 501(c), both 501(c)(3) and 501(c)(7) organizations are qualified for tax-exemption. Section 501 defines 501(c)(3) organizations as “… organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition.” Museums fall under the educational exemption category. Section 501 defines social clubs as “organized for pleasure, recreation, and other nonprofitable purposes, substantially all of the activities of which are for such purposes and no part of the net earnings of which inures to the benefit of any private shareholder.” Prime examples of 501(c)(7) organizations are country clubs, fraternities and sororities, and hobby clubs, which benefit their members only.
Therefore, while they are both 501(c) tax-exempt organizations, one of the main differences is who they serve, which warrants further tax benefits only afforded to 501(c)(3) organizations. In other words, 501(c)(7) organizations are not qualified for donor tax deduction because it is not described in §170(c). “The tax code treats social clubs least favorably of all mutual benefit organizations” because it serves only the members of the organization for a narrow recreational or interest purpose. A club derives exclusive “mutual benefit” among members by sharing costs, characteristics, or goods. Therefore, club goods are either excludable to nonmembers or priced higher to those who do not belong to the club. This built-in exclusiveness in membership distinguishes clubs from public benefit organizations that are open to the public. To demonstrate the stark difference between their publicness and exclusiveness, assets of public benefit organizations are distributed to other public benefit organizations when they are dissolved, whereas the assets of closing clubs can go to the members of the entity.
No Private Benefit Provision of 501(c)(3) Museums
While § 501(c)(3) does not specifically mention private benefits restrictions, it is found in the Treasury Regulation § 1.501(c)(3)-1(d)(1)(ii), which prohibits an organization from operating “for the benefit of private interests such as designated individuals, the creator or his family, shareholders of the organization, or persons controlled, directly or indirectly, by such private interests.” No private benefits provision—unlike the no private inurement provision that only applies to people directly involved with the organization such as board members, employees, and their families—can be applicable to anyone. Lacking a public purpose and benefiting a small group of people could violate this provision.
The practice of many museums has been more like a social club, where a certain group of people feel belonging and are comfortable visiting. Many art museums in this country have been practicing exclusivity (not in a sense of being exempt for exclusive purposes but in a sense of excluding certain groups of people) that is more aligned with the practice of 501(c)(7) organizations. It is widely known and criticized that museum visitors, board, staff, and donors are homogeneous. For example, their visitors often consist of white, wealthy, older, and well-educated people. The National Endowment for the Arts’ most recent arts participation survey stated that about 27% of white adults in the US visited an art museum or gallery compared to only 17% of black adults visiting the same. The link between museum participation and higher socioeconomic status is well documented, as well.People who govern and manage them (especially upper level positions) share very similar characteristics culturally, socioeconomically, and educationally. Their collections and represented artists mimic this trend. A majority of mainstream art museum collections remain white and male with 85% of represented artists being white and 87% male.
This point about museums acting more like clubs can be further illustrated when looking at how museum donors are also the ones who use the museum. For example, in a homeless shelter, the donors and main beneficiaries (users) of the organizational service rarely overlap. Yet in museums, some board members donate money or works of art in exchange for opportunities to network with members of their class. Additionally, if one takes a look at most museums’ membership structure that gives free admission or discounts to museum store purchases to members, nonmembers pay the regular price which is set higher for them. Social clubs must be supported by membership fees, dues, and assessments. Most museums’ governance make-up and membership structure could be seen as a characteristic of a 501(c)(7) social club rather than a 501(c)(3) charitable nonprofit.
In American Campaign Academy v. Commissioner, the court found that the taxpayer was violating the no private benefits provision when it primarily served one political party over the other, and the evidence lacked in trying to be nonpartisan. The case stated that “the administrative record and the partisan affiliation of the candidates served fail to establish that the petitioner broadly distributed its secondary benefits among political entities and candidates in a nonselect manner.” If this same logic were to apply to museums, they primarily serve a white, wealthy, and highly-educated class of people; acting more like a club, by not affirmatively reaching out to different classes of people who are currently not using their services, they are therefore possibly violating the no substantial private benefits provision. In General Counsel Memorandum 39862 (Nov. 21, 1991), even indirect or unintentional private benefits can jeopardize a taxpayer’s tax exemption status. While a charity could have a class of people who require specific service from the charity indefinitely (e.g., homeless shelter serving homeless people indefinitely), the group that primarily benefits from museum services could not be a charitable class because art museums’ exempt purposes are notto benefit white, wealthy, and educated people to be further educated through the preservation, display, and research of dominant art.
Are art museums then providing public benefits? Or are they representing and serving a class of people not reflecting the diversity of the public? As described above, some practices of many nonprofit art museums could be more aligned with the qualities of social clubs rather than public benefiting nonprofits, which may mean that many art museums could be violating the no private benefit implied in § 501(c)(3) and articulated in CFR § 1.501(c)(3)-1(d)(1)(ii). What can art museums do to avoid pitfalls and become more aligned with the Congressional intent of § 501(c)(3), providing public benefits to broad ranks of people in society and not just a select few? Given the long history of art museums that have been catering to certain groups of people, we know that change may require affirmative action or community benefit standards, just like those that nonprofit hospitals have adopted. While art museums do not provide imminent or otherwise critical health care to people, they nonetheless can provide “human care” that make people “human” through the preservation, appreciation, and learning of arts and culture.
The suggested community benefit standard below is designed to combat structural problems that have led to the accessibility issues of arts in the art museum sector. For example, there is an empirically positive link between diversity of arts nonprofit boards and their community and public serving activities. Paying close attention to museum board composition, therefore, has potential to change museums’ core activities and who they can attract. It is also focused on providing actual community benefits broadly, not just specific services that could be counted as benefiting a few members from the community. The benefit standards are as follows:
Nonprofit museums should demonstrate that they provide benefits to diverse classes of people broad enough to benefit the community and operate to serve a public interest
Establish free membership and admission options for those who are unable to pay
Maintain a board of directors drawn from the community that is representative of the community’s broader demographics
Maintain staff who reflect the community population
Devote resources to further diversify its collection and programming efforts and research more equitable ways to present plural arts and cultural values
Offer more educational services to diverse communities, including school-aged children
Conduct ongoing program and performance evaluations for achieving continued effectiveness of services
A genuine and long-lasting change usually requires a cultural and structural change that has to come from within each museum as well as a policy change that can lead to wide-spread transformation. Without internal cultural change accompanied, policy and legal enforcement may not be sufficient. If the standard provides specific action steps that are designed to trigger structural and systemic change, we may be able to motivate museums to change from within. Berg in her article said, “We might think creatively about how to employ the current structure in a way most beneficial to the community, since, after all, community benefit is the purpose of providing tax exemptions.”
About the Author
Dr. Yuha Jung is an associate professor and director of graduate studies of Arts Administration at the University of Kentucky. She is currently pursuing a part-time JD at the University of Kentucky J. David Rosenberg College of Law. She is also an associate editor for the journal Museum Management and Curatorship and a board member for the Association of Arts Administration Educators. Her research focuses on systems theory, organizational culture, and cultural diversity in arts and culture organizations. Her recent monograph, Transforming Museum Management: Evidence-Based Change through Open Systems Theory, was published in 2022. To learn more about her qualifications and publications, visit her website and faculty page.
Easter House v. United States, 12 CI. Ct. 476, 490 (1987). ↑
See generally Betty Farrell & Maria Medvedeva, Demographic Transformation and the Future of Museums (2010); David Fleming, Positioning the Museum for Social Inclusion, In Museums, Society, Inequality, at 213 (Richard Sandell, ed., 2002); Richard Sandell, Museums as Agents of Social Inclusion, 17 Museum Management and Curatorship, 401 (1998). ↑
See NEA, supra note 21, at 36; Catherine D. D. Bowman, Adrianna Adkins, Brooke L. Owen, Kyle J. Rogers, Edgar Escalante, Judd D. Bowman, Brian C. Nelson & Alison Stoltman, Differences in visitor characteristics and experiences on episodic free admission days, 35 Museum Management and Curatorship 265 (2019); See Farrell & Medvedeva, supra note 20, at 14. ↑
See generally Farrell & Medvedeva, supra note 20; See generally Fleming, supra note 20. ↑
Chad M. Topaz, Bernhard Klingenberg, Daniel Turek, Brianna Heggeseth, Pamela E. Harris, Julie C. Blackwood, C. Ondine Chavoya, Steven Nelson & Kevin M. Murphy, Diversity of Artists in Major US Museums, 14 PLOS ONE 1 (2019) ↑
Alexandra Olivares & Jaclyn Piatak. Exhibiting Inclusion: An Examination of Race, Ethnicity, and Museum Participation, 33 Voluntas 122 (2022); See generally Francie Ostrower, Trustees of Culture Power, Wealth, and Status on Elite Arts Boards (2002). ↑
From December 16, 2022 to April 10, 2023, the Scuderie del Quirinale in Rome is entirely dedicated to the exhibition “ARTE LIBERATA 1937-1947. Masterpieces saved from war,” a sui generis itinerary that guides visitors across the incredible adventure(s) of the men and women who strived to protect Italy’s cultural treasures during the most tragic decade of its history.
By showcasing a remarkable selection of masterpieces (visitors are greeted by the DiscobolusLancellotti and end their tour under the ecstatic gaze of Tiziano’s Danae), the exhibition offers a novel look into a chapter of World War II that is often reduced to the intervention, during the conflict’s final years, of the Monuments, Fine Arts, and Archives program (better known as Monuments Men). The goal behind “Arte Liberata” is to let visitors dive into the exploration of what happened at the national level prior and around the Monuments Men’s arrival to Sicily. To this end, a series of highly detailed exhibition panels (accompanied by some fascinating archival materials) provide information both in Italian and English. The final result is a well-rounded reconstruction of the challenges and choices that marked a decade, adding a new layer to an important chapter in the history of cultural property protection in times of war.
A different perspective
The peculiarity of the initiative is already evident from its title. When discussing Nazi looted artworks, it is not uncommon to read how they were recovered, for example, from the Altaussee salt mine or rescued from private collections, such as that amassed by Hermann Göring in his Carinhall estate; when successfully identified by the national delegations, they were then returned from the German collecting points to the countries they had been plundered from.To define art as being liberata (liberated), however, is quite unusual and potentially confusing; after all, most of the pieces on display never fell under enemy control nor did they leave the national territory, thus requiring no “liberation.” The choice of words, however, needs to be read in connection to the concept of Liberazione, which indicates the end of the Nazi occupation of Italy and the simultaneous fall of the Fascist regime. Liberazione is, in turn, deeply intertwined with the ideals of the Resistenza, the relentless guerilla fight carried out by the partigiani after the 1943 Armistice officially turned the German allies into invaders. In this context, cultural property protection is presented as yet another front on the battle for freedom and its protagonists as heroes of their own account. By transcending the familiar boundaries of “restitution,” the meaning of this exhibition becomes heavily political, as the untold stories of museum directors, curators, and art historians are presented as a proper component of the fight for Liberazione.
And yet, the risk of falling into a flat and nationalist glorification of the past remained a pretty big one, especially in light of the current Italian political climate (Scuderie del Quirinale is, like most museums in Italy, a public institution). Indeed, the Minister of Culture’s contribution to the exhibition’s catalogue heavily insists on the patriotic sense of pride and gratitude towards these unlikely heroes. Thankfully, the universality of values and ideals behind the individuals’ efforts for the protection of cultural properties is strongly highlighted throughout the exhibition. Thus, albeit organized as a collection of stories, “Arte Liberata” ends up telling a much broader tale of war and culture, as a handful of intellectuals and public officials found themselves fighting a battle that was way bigger than any of them.
Regrettably, the exhibition does not make any mention of the separate, yet deeply correlated issue of those cultural properties that were taken by the Italian government, in force of the Fascist racist policies that, starting from 1935, were adopted against Jewish families; nor does it touch at any point upon the possible presence, within the Italian public collections, of artworks whose provenance might be unclear (or the lack of efforts, at the national level, to investigate in this regard). While clearly focused on a different aspect of the affair, this lack of consideration for “the other side of the coin” represents an evident flaw in an otherwise beautifully organized exhibition.
A presentation of stories through space and time
The ambitious goal of the exhibition to offer both an artistic and a didactic experience is effectively supported by an efficient organization of the materials along three narrative strands: one strand follows the forced or illegal exportations of protected artworks, one focuses on the moving and hiding of hundreds of thousands of cultural goods across the national territory, and a small conclusive part deals with the repatriation negotiations that took place after the end of the conflict. Each theme is addressed in a separate section, which avoids any overlap of contents and allows the exhibition to open and close with the most valuable pieces on display.
These three narratives also follow a chronological order: forced exportations – dealt with at the beginning of the exhibition – occurred at a time when the Nazi regime was still considered a valuable ally, and Fascist high officials intervened to facilitate (or outright impose) the sale of cultural goods that, according to the Italian cultural heritage law then in force, should not have left the Italian territory. Probably the most striking example of such a praxis is the sale of the Discobolus, which was requested in 1938 by Philipp von Hessen-Kassel on behalf of Hitler himself. Regardless of the restrictions imposed by the law, and the negative opinion of the Minister of Education Giuseppe Bottai himself, the marble statue – widely considered to be the best Roman copy of the long-lost bronze Discobolus of Myron – ended up in the Glyptothek München as a gift from the Führer to the German people.
Next to the statue, a short extract from the film “Olympia” by Leni Rifensthal provides the visitors with some background to Hitler’s fixation with this work of art (which prompted the involvement of the Italian Minister of Foreign Affairs Galeazzo Ciano to secure the positive conclusion of the sale). The prologue of the film, realized in celebration of the 1936 Berlin Olympic games, saw several statues of athletes – including the Discobolus – turn into as many sculptured humans in an evocative scene that had indelibly struck the imagination of the Führer. This is only one of the ample exceptions made during the Fascist years to the safeguards already in place at the time for “things of artistic, historical, archeological or ethnographic interest” (an even more stringent legislation was adopted in 1939).
The influence of the powerful Nazi ally bore a significant impact also on the private market, where several objects that should have never exited the country were sold to German art professionals and enthusiasts. The exhibition makes an example out of the “Ventura affair,” whereby sixteen works of art were sent by the antique dealer Eugenio Ventura to Göring, in exchange for various French masterpieces that had been previously looted from the private collections of some prominent Jewish families in occupied France. How the two sets of artworks entered and left the Italian soil was never clarified, with the Soprintendenza (the competent administrative authority) providing contradicting and incomplete information. The exchange also highlights the willingness, at least by a portion of the private sector, to overlook the 1942 London Declaration, which aimed at discouraging precisely these kinds of transactions.
National and regional efforts: the two sides of the protection of cultural heritage
As “Arte Liberata” focuses on the active fight against Nazi plunder and the measures taken to preserve artworks in the midst of the war, it is the second of its three main narratives that represents the true heart of the exhibition. From the second room onwards, the tale of the myriad of operations that took place before and during the war is told in great – and unprecedented – detail, starting with the national preparations that took place during the hectic nine months between the beginning of the conflict and Italy’s entry into war. Official decrees ordering nationwide surveys and inventories, signed by the Minister of Education Bottai, hang on the walls of the Scuderie (which, in turn, are covered by planks of raw wood to mimic the crates used to store the artworks).
Taking the operations carried out by the Spanish museums during the Spanish Civil War as a model of what not to do, Bottai envisioned a war preparation plan that would not require the artworks to leave the country. Photographs and videos from the historical archive Istituto Luce also offer powerful images of iconic monuments and cultural landmarks buried under bags of sand or disappearing under anonymous hard wooden structures. Walking across the rooms, visitors witness the arches of the Colosseum being filled up to prevent structural collapses, Trajan’s Column progressively wrapped in several protective layers, or Canova’s statue of Paolina Bonaparte hidden under a weirdly pyramidal cage. s World famous museums, such as Galleria Borghese in Rome or the Egyptian museum of Turin, were systematically emptied of their collections, an astonishing flow of artworks had to be directed towards a series of refuges identified by the local Soprintendenti and museums’ directors.
It is at this point that the historical events split into a collection of regional tales that are individually presented in different sections of the exhibition. Starting from the middle of the country, so to speak, the first regional story to be covered is that of the Marche region, whose position and geography made it an ideal destination for the crates of art coming from all across Italy. Thanks to the significant loans from the Galleria Nazionale delle Marche, “Arte Liberata” hosts a great number of artworks that were moved to and across the region, in order to be stored within the thick walls of Renaissance fortifications like the Rocca di Sassocorvaro or historical buildings like the Palazzo dei Principi Falconieri in Carpegna.
This region’s vicissitudes are also particularly illustrative of the tragic practical consequences of the 1943 Italian Armistice, which unexpectedly overturned the previous power dynamics and local balances. All of a sudden, what had been considered to be the safest region in Italy was caught in between the two enemies’ lines; consequently, many of the refuges previously identified had to be evacuated once more, and new shelters had to be found either before the arrival of the Kunstschutz or to avoid the Nazi punitive expeditions. Similar situations arose across all of the Italian territory, with the additional complication that – with the country split in two – there no longer was a central administration coordinating the operations of safekeeping of cultural goods, leaving every man and woman for themselves.
The names and faces behind history: the individuals who stepped up
Next to the wool and silk tapestries, frescoes, marble and bronze busts, original Rossini’s scores, pottery and tondos, the Scuderie adds the names – and often the photographs – of those responsible for their salvage. Visitors are then presented with the stories of a handful of foresighted museum directors, such as Fernanda Wittgens, Noemi Gabrielli, and Jole Bovio Marconi, who moved their collections right before a military attack could destroy or damage them, or that of Pasquale Rotondi, the Soprindentente responsible for the fate of around 10,000 artworks (including several Caravaggios that had arrived from San Luigi dei Francesi and Santa Maria del Popolo in Rome and the San Marco treasure from Venice). Pietro Zampetti, from Modena, had only his bike to transport pieces from the Estense collection from one place to another, and Emilio Lavagnino managed to negotiate with the Vatican the reception of those artworks that could no longer remain on Italian soil. Lavagnino then helped carry them there himself, using his family car that ran on gasoline acquired on the black market.
As visitors make their way through the exhibition, the list of names goes on, as does the tale of the adventurous (and often desperate) operations whose reality is restored through the incredible archival photographs of the artworks. The contrast is striking: whereas the artworks are now securely positioned onto solid pedestals, or hang behind a hyper-sensitive alarm system, the exhibition’s pictures show them almost forgotten in a corner of some museum closed off to the public or dangerously positioned on the edge of an open carriage of a cargo train. A sense of precarity lingers in each room of the Scuderie, perfectly captured by the details in the stories on the walls: the artworks had to be carried, depending on the region, on the back of donkeys, by bicycle, on Gondolas, or with small cars driven at night with the lights off.
After the war and beyond
After rooms of pasty wooden planks, black and white photographs, and artworks placed over rough blocks of pine, the final room of the exhibition greets the visitors with a red velvet curtain embracing Tiziano’s Danae, the final piece on display. The space of the Scuderie is seamlessly connected to the iconic photograph (reproduced next to the painting) of Rodolfo Siviero – the man considered responsible for many of the post-war restitutions to Italy.
The picture, which celebrates the return to Italy of the Danae (reportedly used by Göring as his personal headboard), also introduces the visitors to the last narrative thread of the exhibition: namely, the delicate process of negotiating the return of artworks subtracted at a time when Italy was still an ally of Nazi Germany and that were often “sold” and semi-lawfully exported rather than outright stolen. On top of that, the 1943 Armistice entailed an unconditional surrender, which, in itself, questioned the possibility of any such request on the part of the Italian delegation. Only an amendment to section 77 of the Peace Treaty with Italy, and subsequent extensive negotiations that culminated in a 1953 agreement between the Italian Prime Minister De Gasperi and German Chancellor Adenauer, ensured the return of numerous artworks that had left the country during the war.
While presented as an undiscussed protagonist of this phase, Siviero is also framed as a controversial and problematic character, considering his unwavering determination and sometimes questionable methods. In a way, Siviero’s picture also creates a trait d’union between “Arte Liberata” and the two major exhibitions that, in the aftermath of the war, were organized (with the help of Siviero) to celebrate what had been emphatically called “the return of Beauty” to Italy. It is by virtue of this connection that it is possible to further appreciate not only the evolution of the sensibility around the concept of restitution but also the emphasis put by this exhibition on the efforts and preparations to protect an invaluable cultural heritage at all costs.
“ARTE LIBERATA 1937-1947. Masterpieces saved from war” is open from 16 December 2022 to 10 April 2023, and is curated by Luigi Gallo and Raffaella Morselli. The exhibition is organized by Scuderie del Quirinale in Rome (Via XXIV Maggio 16 – 00187 ROMA). A series of conferences will cover those aspects that could not be discussed within the exhibition itself (the full program is available on the website of the Scuderie, alongside the recordings of the conferences that already took place: https://www.scuderiequirinale.it/).
Livia Solaro is a PhD candidate at Maastricht University (Netherlands), where she is involved in the teaching of Property law, Private international law and Art law; her research project focuses on the study of Nazi looted art litigation in the US, a topic on which she has recently published a book in Italy: “Il saccheggio nazista dell’arte europea: Uno Sguardo Comparatistico sul Contenzioso Transnazionale nei Restitution Cases” (Franco Angeli Edizioni, 2022), available in Open Access at https://library.oapen.org/handle/20.500.12657/54283.
For a complete historical account of the Nazi plunder of artworks, see Lynn H Nicholas, “The Rape of Europa: The Fate of Europe’s Treasures in the Third Reich and the Second World War” (Vintage Books) (1995). ↑
As explained by Paolo Conti, an Italian journalist and the author of a short pamphlet that comes with the ticket and provides visitors with a short introduction to the exhibition. ↑
Ed. by Luigi Gallo and Raffaella Morselli, “Arte Liberata, Capolavori salvati dalla guerra. 1937-1947” (Electa) (2023), p. 10. ↑
Marche sits at the very centre of Italy, halfway between the North and the South, and it covers part of the Appennini, the mountain chain situated between the Eastern and Western coasts of Italy. ↑
We then have Antonio Morassi and Orlando Grosso, who were active in the Liguria region (which was bombarded the day after Italy had entered the war), as well as Gino Fogolari, Vittorio Moschini and Rodolfo Pallucchini, who operated in Venice, where transportations were particularly problematic – due to the peculiarities of the city – and the risk of an attack was extremely high at all times. ↑
To dissect the often esoteric language of consignment and representation agreements between artists and dealers and conflicting practices, the Center for Art Law hosted “The Essentials: A Guide to Artist-Dealer Relationships and Contracts” on January 25, 2023.
The program examined common questions and sources of conflict between artists and dealers, including issues regarding storage and transportation fees, payment deadlines, installation costs, and consignment commitments. Panelists considered common practices of handshake agreements and informal communications, and they outlined best practices with formal, written contracts that outline clear obligations of both parties. The panel included Megan Noh, Esq., co-chair of Pryor Cashman’s Art Law Group; Sara Maria Salamone, gallerist and director of Mrs., a contemporary art gallery; and Onyedika Chuke, an artist, archivist and founder of Storage Gallery. The panel was moderated by Jessica Wessel, Esq., Director of Business Development, Northeast at Gurr Johns.
Jessica Wessel introduced the panel and stressed the keyword of “leverage” in contract negotiations, where the party in relative power in the transaction will dictate the terms of the agreement. The discussion was broken down into four scenarios of issues art world players commonly face. Within this framework, the panelists gave perspectives from their positions as lawyers, gallerists, and artists.
Scenario #1: An artist is approached by a gallery to exhibit a work in a group summer show. The gallery sends a van to pick up the artwork, without any written agreement other than emails back and forth between the artist and gallery.
Onyedika Chuke stressed the importance of the consignment agreement at the outset of any artist-gallery relationship. Chuke pointed out the difference between the retail value of an artwork versus the material costs of an artwork, and artists should consider whether the gallery’s insurance for loss or damage covers the retail price. By contrast, insurance that only covers material costs would be valued at substantially less. In this scenario, Chuke stated that the gallery should have already sent the consignment agreement before any art exchanged hands. Sara Maria Salamone added that these forms are typically facilitated by the gallery’s registrar, who keeps a record of all artworks coming in and out of the gallery.
Megan Noh explained that even without best practices in place, such as a written and signed agreement, states such as New York still provide laws that protect artists’ rights in these situations. The New York Arts and Cultural Affairs Law states that galleries must act as fiduciaries for their consignments, which places a duty of trust by treating the artwork and sales as “trust” property. Thus, the consignment relationship is assumed and the artist is entitled to its proceeds. Even though this law protects the artist in receiving proceeds, the absence of a consignment agreement leaves open questions, such as the commission split and the length of time which the artist must be paid.
However, there are many problems that could go wrong along the way, such as loss or damage to the artwork. Without more documentation in a consignment agreement, there is no indication of the scope of the insurance policy, such as who pays the insurance and how much the artwork is insured for. In an ideal world, the artist will receive a Certificate of Insurance (COI), which outlines what insurance is covered. In addition, it is important for the gallery to make a Condition Report, which includes images of the artwork when the gallery receives it, to have a baseline documentation for comparison if any issues arise. It is important that the artwork is insured under the gallery’s insurance policy, which should be a commercial fine art policy, rather than only the shipper’s policy, which generally only covers federally-mandated limits.
Scenario #2: An artist agrees to a solo exhibition with a gallery. However, after the artist agrees by email and gives a pick-up date, the artist gets cold feet and doesn’t make the paintings and disappears.
Onyedika Chuke pointed out that this is a sticky situation, because the gallery has incurred costs associated with planning the projects. Communication between the gallery and artist is key, as there should have been discussion throughout the artistic process, such as artist sketches and studio visits. He also stated that in some instances, artists should be liable for expenses incurred after permanently backing out of a project. Sara Maria Salamone would have a conversation about postponing the exhibition if such a scenario occurred. She said that there has to be a base level of trust, and this scenario has the potential to ruin the relationship.
Megan Noh suggested considering a Liquidated Damages clause, or a Kill Fee on the artist if they pull out after a certain date. While this is not common, a gallery may consider such a clause if there is cause for concern. The gallery could sue the artist for damages, including expenses and projected profits, having to prove in court the extent of its damages based on the artist’s non-performance. Noh also raised a scenario where the gallery paid for some of the production costs. Under the New York Arts and Cultural Affairs Law, a gallery is not entitled to interest in the artwork even where they have advanced production costs themselves. See Case Review: Art Works, Inc. v. Diana Al-Hadid. However, it would still be a debt that the artist has to pay. Before running to court, it is important to consider business-oriented solutions, and contracts can help frame the solution.
Scenario #3: A mid-career artist is asked to make a large-scale public installation in Central Park, but would only receive $5,000 for the commission and must pay for shipment, storage, and transportation fees.
According to Sara Maria Salamone, this situation happens often, where artists are expected to cover many aspects of a public installation. Even though organizations are often well-intentioned, many aspects such as shipping should not be the artist’s responsibility. A budget needs to be put in place from the outset that covers production, transportation, and installation. Even large budgets end up getting diminished quickly. Salamone stated that sometimes these scenarios are more trouble than it is worth. Onyedika Chuke said that the $5,000 commission fee is still standard, and he has even seen fees for $2,500, which can be contradictory when an institution approves a proposal knowing that it will exceed this amount. The issue may begin with an artist not asking for enough money in the proposal, and then there is pressure to make something great that cannot ultimately be accomplished within the budget limitations.
Megan Noh raised the issue of artists’ rights. It is important to consider the copyright ownership scheme in the contract. If it is a commissioned work, it should be clear whether the commission was a “work for hire,” which will dictate if the organization owns the artwork. Apart from owning the actual artwork, who owns the copyright? Noh also brought up the issue of moral rights of an artist. The Visual Artists Rights Act (VARA) gives artists the right of attribution to be credited as the author for the artwork, and for the artwork’s integrity in not being destroyed or used in a manner that is detrimental to the artist’s reputation.
Scenario #4: A major global art gallery approaches an emerging artist who is gaining traction, and offers worldwide exclusive representation with only a handshake offer. The artist had previously been selling artworks from their studio and on Instagram.
Onyedika Chuke stated that he often speaks with artists to consider which gallery is the best gallery for them — not only which is the flashiest, but which gallery will create a community to support the artist’s ideas. A good place for artists to begin is consigning one artwork and seeing how the relationship blossoms. When Sara Maria Salamone started representing artists in 2020, they did not have a lawyer, and then they realized they needed formal contracts. When it comes to a handshake offer, she stressed that it is best to follow up with a written contract.
Megan Noh considered contractual provisions that may be helpful for artists or galleries. From an artist’s perspective, contract provisions that are helpful include a commitment to certain solo exhibitions, gallery locations, its publication program, and PR strategy. Artists can stipulate that the gallery is working on institutional placements, potentially implementing resale restrictions, sharing a percentage of secondary market sales, and restrictions on who the artwork may be placed with. From a gallery’s perspective, contract provisions that are helpful include exclusivity (though some would say that exclusivity is not necessary), in addition to a commitment to a certain level of inventory. Galleries can also ask the artist to give assurance that the artworks are owned by the artist and indemnify the gallery from having to pay defense costs in defending claims.
With over seventy participants in attendance, there was an immense amount of interest and participation. Center for Art Law will host its next Artist-Dealer Relationships Clinic on May 17, 2023, which will allow for artists, dealers, and attorneys to speak more in depth about the issues raised on the panel. Interested participants may register HERE.
Premium Members of the Center for Art Law can view the recording and archives of the event and of past Center events.
About the Author
Joseph Gergel is a Legal Intern at the Center for Art Law in Spring 2023. He is a second-year law student at Fordham University Law School, with a focus in art law, intellectual property, and international law.
David Friedmann (1857-1942) was a wealthy Jewish sugar industrialist and art collector in Breslau, Germany (now Wrocław, Poland), whose extensive art collection included works by renowned artists such as Pissarro, Rousseau, and Liebermann. In 1939, the Friedmann collection also caught the eye of Nazi bureaucrats, who were gathering information about private property of Jewish families and took inventory of all of the paintings in Friedmann’s collection, forbidding him from selling any of the works. One Nazi official wrote that the sale of Friedmann’s collection would generate revenue for the Reich. Due to his Jewish background, the Nazis then confined Friedmann and confiscated his vast art collection. Friedmann passed away in 1942 and his only daughter died in a death camp.
71 years later, Friedmann’s great-nephew, attorney David Toren, rediscovered one of the paintings his great-uncle had owned, “Two Riders on the Beach,” after seeing the painting on television following the discovery of German art dealer and collector, Cornelius Gurlitt’s art trove. Toren filed a successful claim for this one work, starting a long legal battle to recover all the works lost by his family to the Nazi regime.
In 2016, Toren filed a suit against Germany, seeking compensation for the regime’s taking of his family’s unrecovered art pieces and securities. The case was stayed while the United States Supreme Court decided Fed. Republic of Germany v. Philipp, 141 S. Ct. 703 (2021).
Federal Republic of Germany, et al. v. Alan Philipp
The precedent setting case, Federal Republic of Germany, et al. v. Alan Philipp (et al.), was commenced in 2017 and heard before the United States Supreme Court in 2020. It involved the heirs of a consortium of Jewish art dealers and collectors who alleged the Nazis unlawfully forced the consortium to sell its collection of medieval relics known as the Welfenschatz, or Guelph Treasure, for a fraction of its value to Prussia. Today, the Guelph Treasure, on display at a Berlin museum, is valued as high as $250 million dollars.
In 2015 the claimants brought several common law property actions against the Federal Republic of Germany and the Stiftung Preussischer Kulturbesitz (SPK), an instrumentality of the republic, which currently maintains the relics, as well as sought to lift immunity traditionally due to foreign sovereigns. The heirs sought $250 million in compensation.
Before the Supreme Court, the heirs (respondents) argued that their claims fell within the Foreign Sovereign Immunities Act’s (“FSIA”) expropriation exception. Under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1605(a)(3), a foreign government has sovereign immunity and cannot be sued in the U.S. There are, however, some exceptions in which the U.S. does have federal subject matter jurisdiction. One of these exceptions is the FSIA’s expropriation exception, which establishes that courts can exercise jurisdiction in cases where “rights in property taken in violation of international law are in issue” and where “that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state.” The heirs argued that because the forced sale of the Guelph Treasure was part of the Nazi’s genocidal plan against the Jewish people, it constituted an act of genocide. Therefore, the Guelph Treasure was taken in violation of international human rights law and Germany was not immune from suit in the U.S.
In response, Germany argued that the international law of expropriation applied in connection to the Guelph Treasure case, not the law of genocide. Under the international law of expropriation, a foreign sovereign’s taking of its own nationals’ property is a domestic affair. The invocation of the domestic takings rule would mean that the Nazi’s taking of art from Germany’s own citizens did not interfere with inter-state relations and therefore, international law should not apply.
While the heirs conceded that the domestic takings rule applied at the time of the FSIA’s enactment, they argued that “right in property taken in violation of international law” applied to all international norms, not just the international law of expropriation. Furthermore, the argument advanced by the respondents suggested that Germany revoked citizenship of its jewish population and thus the taking was not perpetuated against German nationals.
Additionally, the heirs also relied on the 2016 Foreign Cultural Exchange Jurisdictional Immunity Clarification Act, an act which amended the FSIA to clarify that participation in “art exhibition activities” does not constitute “commercial activity” under the expropriation exception. The heirs claimed that this act suggested that Congress anticipated Nazi-looted art claims under the expropriation exception.
The Court sided with Germany, ruled that “rights in property taken in violation of international law” refers to violations of the international law of expropriation and that the FSIA expropriation exception does not extend to a sovereign’s taking of the property of its own nationals. Therefore, the Court held that the domestic takings rule should be invoked. The Court explained that the United Nations’ Universal Declaration of Human Rights and Convention on the Prevention of Genocide did not address property rights and international tribunals have therefore maintained that international law does not govern property taken by a state from its own nationals.
However, the Court vacated and remanded the case to the lower courts to decide the issue of whether the sale of the Guelph Treasure was not subject to the domestic takings rule because the consortium of dealers were not German nationals at the time of the taking. The District Court ultimately dismissed the claims against Stiftung Preussischer Kulturbesitz on the grounds of lack of subject matter jurisdiction due to foreign sovereign immunity. The District Court found that the heirs did not provide enough information to support the argument that the consortium dealers were not German nationals at the time of the taking. According to the District Court, the allegations of Nazi mistreatment of Jewish individuals during the Nazi era and the emigration of two of the consortium members was not enough evidence of relevant property being taken in a way that violated international law.
Toren v. Federal Republic of Germany
Unfortunately, during the stay for Philipp (as court waited for the decision, David Toren passed away. His son, Peter Toren, took over the efforts to reclaim the family’s art collection.
Following the 2021 decision of the Supreme Court in Philipp, Peter filed the Second Amended Complaint with the United States District Court for the District of Columbia. Toren argued that his claims were encompassed by the expropriation exception to the FSIA and that his family members were not German nationals at the time of the taking. He claimed that his family and other German Jews were stateless at the time of the taking due to the various Nazi-era decrees and the Nazi regime’s persecution against German Jews.
Germany filed a renewed motion to dismiss for lack of subject matter on the basis that the FSIA makes it, a foreign sovereign, immune from claims against it in American courts.
The District Court agreed with Germany that, following Philipp, Toren’s claims are not encompassed by the FSIA’s expropriation exception. The Court, in its opinion rendered by Judge Richard J. Leon, explained that Philipp established that the expropriation exception was limited to property taken in violation of the international law of expropriation rather than of human rights and does not apply to a country’s own nationals. The Court did not address whether Friedmann had been deprived of his German nationality but stated that the Supreme Court decision has rendered that the expropriation act does not apply to claims based on a foreign state taking property from a stateless person. The Court elaborated that not only would severing nationality based on genocidal actions create an exception that would “swallow” the Supreme Court’s rule, determining whether genocidal action was enough to make an individual stateless is subjective and difficult to measure. Furthermore, the judge claimed that Toren’s claim is identical to the claims made in Philipp.
Thus, the Court stated that it lacked subject matter jurisdiction and granted Germany’s motion to dismiss. Toren plans to appeal this ruling.
Distinguishing Toren from Philipp
While the District Court judge stated that Toren’s claim was indistinguishable from the claims made in Philipp, this is arguably not so, as the facts of the cases differ. In both cases, the Plaintiffs argued that their ancestors were not nationals of Germany due to Germany’s genocidal campaign against Jewish individuals. However, in the case of Philipp, the Plaintiffs argued that their ancestors were not nationals based on the general mistreatment of Jewish individuals during the Nazi era and the emigration of two of the consortium members, an argument that the Court did not accept. It is undeniable that the situation of the consortium members in Philipp was abhorrent and certainly duress-inducing. Nevertheless, in Philipp, the members of the consortium conducted business and sold, albeit at fraction of the value, the relics. In Toren, however, an art collection was confiscated from a Jewish family, without any remuneration or compensation, with rightful owners exterminated, as part of the Nazi-genocidal efforts. Furthermore, in Toren, the genocidal campaign profoundly impacted the family as they were placed in concentration camps following the taking of their art collection. Thus, there is a more direct link between the taking of their art collection in the process of their direct genocidal actions towards the family.
The District Court in Toren claimed that the Supreme Court’s decision in Philipp made clear that “the expropriation exception…[does not encompass] a claim based on a foreign sovereign’s rendering its own nationals stateless before taking their property.” However, the Supreme Court did not make this clear or even address statelessness. What the Supreme Court did clearly state was that the FSIA expropriation exception does not extend to a sovereign’s taking of the property of its own nationals and that it was not going to address whether the sale was “not subject to the domestic takings rule because the consortium members were not German nationals at the time of the transaction.” The Supreme Court did not expressly deny Phillip compensation because it left it to the lower courts to decide whether the members were German nationals or not. Thus, Toren may have presented a valid argument that David Friedmann was not a German national at the time his property was expropriated in 1942. Thus the FSIA expropriation exception applies and the court does have subject matter.
Additionally, following FSIA, the Second Hickenlooper Amendment to the Foreign Assistance Act of 1964 was passed, prohibiting U.S. courts from applying the act of state doctrine—a doctrine that discourages U.S. courts from deciding the validity of acts committed by foreign governments within their own territory—when a taking of property occurred in violation of the principles of international law. This amendment was understood to permit claims against foreign governments for the taking of property with the exclusion of the property of the foreign nation’s own nationals. While, the Second Hickenlooper Amendment does not apply to U.S. citizens who were not U.S. nationals at the time of taking, David Friedmann was arguably not a German national at the time his property was expropriated and so unlike in Philipp, the Second Hickenlooper Amendment could potentially apply in Toren’s case.
The Second Hickenlooper Amendment, the Department of State’s application of pressure on international institutions and governments that hold holocaust-related artwork to which American citizens have a claim, as well as the 1998 Washington Principles which promote provenance research and the restitution of Nazi-looted art all indicate some pushback on the policy side to the judicial interpretation of the FSIA.
While restitution of Nazi-looted art has proven to be extremely difficult, there have been some successful court cases and promising measures taken towards restitution. For example, just earlier in 2022, the United States Supreme Court decided Cassirer et al. v. Thyssen-Bornemisza Collection Foundation. The case was brought by the heirs of Lilly Cassirer (Germany 1876 – U.S. 1862) against the Thyssen-Bornemisza Museum in Madrid, in an effort to reclaim ownership of a Camille Pissarro painting sold to the Nazis under duress. While the lower court had sided with the Madrid museum, the U.S. Supreme Court remanded the case and its ruling narrowed the arguments available in the museum’s defense.
Outside of the courtroom, influences on the outcomes of the restitution claims, such as the increasing public pressure on museums, have proven to be extremely powerful in restituting Nazi-looted works and increasing awareness of provenance of such works. Also in 2022, a New York bill was passed that requires museums to label artworks that were looted or sold against the owner’s will under Nazi rule. Additionally, controversy and outrage following Kunsthaus Zürich’s exhibition of the Emil G. Bührle collection, a collection belonging to the deceased arms manufacturer and supplier to Nazi forces, played an influential role in creating an independent commission on Nazi looted art in Switzerland.
Over the last twenty some years, much progress has been made to seek fair and just solutions for disputes involving Nazi-era looted art. A handful of restitution committees have been created to handle Nazi-looted art claims and have been beneficial for the heirs of Nazi-looted art. For example, in a recent win in the Dutch Restitutions Commission, the heirs of a Jewish collector won back “View of Murnau with Church” by Wassily Kandinsky. Following new evidence that the real seller of the work was not Karl Legat, but Myrtil Frank, the commission held that it was “sufficiently plausible” that possession of the work was involuntarily lost “as a result of circumstances directly related to the Nazi regime.” It is worth noting that the Van Abbemuseum, which housed the painting, waived its right to invoke good faith as a legal grounds for having purchased the work.
Furthermore, many museums and individuals have begun to take the initiative of returning Nazi-era looted artworks on their own. In 2022, the Museum of Fine Arts (MFA), Boston, returned the “View of Beverwijk” to the heirs of Jewish art collector Ferenc Chorin, upon learning that the painting had been stolen by the Nazis. MFA had updated the provenance of the painting on its website, which allowed the Chorin family to locate the work, demonstrating that databases and provenance transparency measures such as those set forth in the aforementioned New York bill can assist Holocaust victims and their heirs to find their lost assets.
The reluctance of the U.S. court system to interfere with the actions of foreign nations has proven a challenge to the restitution of Nazi looted art. The Supreme Court in Philipp vocalized concerns that interfering with Germany’s past actions could result in not only an overwhelming flow of similar cases in U.S. courts, but also retribution from Germany against the U.S. in its courts. Naturally, the United States of America, itself a foreign sovereign outside its national borders, would vehemently argue its immunity from action in other courts. Still, the wrongs perpetuated by the Nazi officials against personal liberties and property rights, as hard as they are to document and uncover, must be addressed and remedied, lest same crimes are perpetrated again and again. These obstacles have made it difficult if not impossible for heirs of Holocaust victims and Jewish Germans to receive monetary compensation or to recover their lost works of art or compensation for forced labor, loss of life and health. Public pressure on owners of Nazi looted art has proven to be a very successful means of delivering justice to the heirs of victims.
About the Author:
Nikki Vafai is a law student at the University of Maryland Carey School of Law and holds a B.A. in International Affairs and Art History from the George Washington University. Nikki is a 2022 fall legal intern at the Center for Art Law who interviewed Peter Toren in connection with this article.
Traditional Knowledge (“TK”) and Traditional Cultural Expression (“TCE”) bear a record of the collective memories of indigenous people. They are stories not confined to writing. Instead, they are living, breathing, audiovisual narratives – intangible cultural heritage passed down from generation to generation. Even everyday practices such as drumming, weaving, tattooing, and storytelling bear artistic and historical value. They also provoke, invite, and ignite creativity and imagination for the modern audience while preserving, protecting, and inheriting from ancestral wisdom. Therefore, indigenous cultural materials are no longer collectibles that can be colonized, cataloged, and securitized as specimens; their immeasurable values to indigenous people and their allies are priceless.
On the one hand, the indigenous community treats their TK and TCE as community resources or communal wealth within the tribe. On the other hand, the legal world outside of these communities views TK and TCE differently. The conflicts between the “Western” legal model in protecting indigenous cultural expression and the indigenous folkloric model arise because of this fundamental conflict between the two distinct cultural value systems. Under the frameworks created by the World Intellectual Property Organization (“WIPO”), this article aims to review the Intellectual Property (“IP”)-specific legal measurements in TK/TCE comprehensively. It also highlights and partially explores the difference in the United States and Australian copyright laws with a few case studies of legal issues surrounding Aboriginal and Torres Strait Islander artworks in Australia.
The Western model utilizes international treaties, multi-national customary laws, IP laws, and contracts to establish defensive protection. Defensive protection is “a set of strategies to ensure that third parties do not gain illegitimate or unfounded IP rights.” Within the community, though, the legal efforts are for positive protection, which is “the granting of rights that empower communities to promote their traditional knowledge, control its uses, and benefit from its commercial exploitation.”
Article 1 of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, created by the WIPO in 2004, defines TK as knowledge with the following: know-how, practices, skills, innovations, and cultural expressions. Under these branches, the scope of TK includes a variety of subcategories, including biological diversity, health and traditional medicine, agricultural products, genetic resources, and plant breeding to folklore, textile, and more.
Article 3(2) of the ICIPGRTKF defines TCE as “various dynamic forms which are created, expressed, or manifested in traditional cultures and are integral to the collective cultural and social identities of the indigenous local communities and other beneficiaries.” By this definition, signs, symbols, artworks, and any authored materials made by indigenous people are TCE and part of the cultural heritage that calls for preservation.
Overall, the scope of legal protections, especially under the IP systems, is fluid geographically and contextually. They also depend on different IP laws and their compatibility with traditional materials. The three major types of IP laws—patent, trademark, and copyright—provide different levels of protection and rights. Despite how IP rights for TK/TCE exist and sometimes work well,some representatives in the indigenous community see IP laws as a lesser device in protecting their TK/TCE materials. Nonetheless, through the collective efforts of judges, lawyers, cultural institutions, tribal leaders and artists, IP laws progressed in the worldwide TK/TCE protection. Specifically, various TK/TCE documenting databases have official registration in their jurisdictions resulting from implementing IP laws. 
Copyright laws grant rights exclusively to authors and those who contributed to the creative process in making literary, musical, visual, dramatic, cinematographic, or audiovisual works. The scope of these rights under the Copyright Act of 1976 extends to works that exhibit a modicum of originality and are fixed in a tangible medium. Further, a creative work’s copyrightability limits the expression of an idea.Therefore, under the scope set forth by the Copyright Act, the eligibility for copyright or copyrightability of TK/TCE has three-tiers: 1) whether indigenous artists/artisans have the claim of their authorship matches the Copyright Act; 2) whether TK/TCE is based initially on the Copyright Act’s definition; and 3) whether TK/TCE is fixed in a tangible medium to be copyrightable.
Regarding the first two tiers, TK is a communal cultural asset that passes down from generation to generation through oral history, rituals, songs, dances, and skills. They are not “original” per se, as defined by the Copyright Act. TCE, too, mostly are artistic styles that indigenous artists inherited from their inter-tribal cultural memories. US copyright laws do not protect this specific type of TK/TCE. Instead, they are effective only for the “elements of that style to the extent that it incorporates original expression.” Similar to the US approach, the Australian Copyright Act of 1968 (amended in 2017) defines authorship as copyright ownership. Therefore, in Australia, an author is legally meant as someone who “wrote or produced the relevant expression, or ‘clothed the idea in form.'” Under this interpretation, copyright protection does not apply to the Aboriginal and Torres Strait Islander creatives in Australia who practice and preserve TK/TCE but have not participated in the creation of TK/TCE.
Nevertheless, regarding the third tier, most TK/TCE are cultural assets that have no fixed forms; they exist as intangible expressions. For example, the ethnographic wax cylinder recordings of indigenous songs and spoken word poems are intangible and formless without the recording machine. The machine is the “vehicle” that can fix the songs and poems into tangible mediums. Adhered to their “vehicle,” these songs and poems might satisfy the third-tier requirement for copyrightability. However, the authors of the 19th-century wax cylinder recordings are ethnographers, not indigenous artists. Therefore, the copyright granted for their protection would belong to the author, the ethnographer, not the original indigenous creators. As a result, the indigenous ancestral creators and their tribes were stripped of the credits they deserved. Additionally, other “fixed” TCE, such as face tattoos, face paintings, and sand carvings, encountered many obstacles in obtaining copyright protection given that their medium of fixation cannot easily fit into western conventions such as canvas, papers, etc.
Despite how meeting the criteria for exclusive copyright protection is challenging for many TK/TCE, their copyright infringement battles are not always as frustrating. This is because copyright infringement goes hand in hand with derivative works and fair use. The US copyright office defines a derivative work and its adaptation rights as the “work based on or derived from one or more already existing works.” And derivative work rights are often referred to as the adaptation rights. Specifically, the original creators can sue for copyright infringement because the copying or “derivative” works did not meet the standard for fair use or fair dealing. Since using copyrighted works is unfair, these derivative works result in copyright infringement. Under the fair use/fair dealing framework, many appropriation TCE precedents vary case-by-case, and the standard of fairness the court leans toward is typically fluid and highly contextual.
Many cases from the 1990s in Australia are copyright infringement cases, where defendants appropriated Aboriginal and Torres Strait Islander’s TCE artworks through the unfair usage of TCE for commercial purposes. These lawsuits’ similar patterns illustrate the intersection between TK/TCE and fair use/fair dealing. For example, the plaintiff in Bulun Bulun v. R&T Textiles Pty Ltd was an indigenous artist, John Bulun Bulun. He sued flash screen printers for copyright infringement because the defendant used his artworks printed in the Australian National Gallery catalog without first seeking permission. The court awarded the artist damages, further acknowledged the artworks’ communal interest of the Ganalbingu people, and even granted them the protection of the customary Aboriginal laws. As a result, “the court left the question of the community’s copyright ownership open, saying that there was no need to address the issue because Mr. Bulun Bulun had been granted relief through a permanent injunction.”
Copyright laws, therefore, are a helpful defensive mechanism for TK/TCE outside of the indigenous community. Despite the hard-to-meet three criteria for copyrightability, copyright laws are oftentimes effective in safeguarding TK/TCE as intellectual properties that are victims of illicit, exploitive commercial use. They also ensure the integrity of the indigenous creators by emphasizing the importance of authorship and author’s consent in making derivative use of the original work.
Another defensive device the IP system provides for TK/TCE is Trademark. Trademark laws in service of TK/TCE focus on indigenous symbols, signs, and other artistic marks from being misappropriated and commodified. Specifically, two types of marks that are on the frontline of TK/TCE’s battle against trademark infringement are certification marks and collective marks.
A certification mark is also a “guarantee mark” in a narrower sense. The trade association registers the mark and assures the public that the goods and products sold under the registered mark will meet specific quality standards. Within the board umbrella of the certification mark, the “sub-group” that serves the exact mark identification and quality verification purposes are certification stamps (hallmarks), private and public guarantee marks, the label of authenticity, and collaboration marks.
For TK/TCE, the certification marks that protect indigenous art in the early 2000s is the label of authenticity and collaboration mark. To illustrate, the “Boomerang Tick” is a label of authenticity. It is shaped like a hunting boomerang. The National Indigenous Arts Advocacy Association issued it for Australia’s Torres Strait Islander artists to help consumers identify and differentiate products made by indigenous and non-indigenous creatives. Overall, certification marks like the Boomerang Tick have dual purposes: 1) they can identify authentic goods and performances by crediting the certified indigenous creator and 2) they can help to educate consumers about TCE and its importance in promoting the indigenous cultural-economic ecosystem.
A collective mark “indicates membership in a union, association or other organization with shared interests in products and services.” Similar to the certification mark discussed above, the trademark holders of collective marks register them under an association or organization that sets self-regulated quality standards for goods and services. However, unlike certification marks, the use of collective marks is not required or subject to government regulation. For TK/TCE, the application of collective marks may achieve its protective purpose through individual licensing agreements with indigenous creators.
In sum, trademark laws offer three layers of protections. First, it provides defensive protection for the indigenous community against misappropriation and commodification of their symbols and marks. Second, it provides authenticity protection over false or misleading claims over the origin of TCE labels and marks. Third, it allows TK/TCE some market distinction and branding protections for indigenous-created goods or services.
A patent provides useful inventions with exclusive rights to “prevent or stop others from commercially exploiting the patented invention.” The key to determining the patentability of an invention depends on the prior art. Prior art, according to the United States Patent and Trademark Office, are “references or documents which may be used to determine novelty and/or non-obviousness of claimed subject matter in a patent application.” Novelty, Utility, and Non-Obviousness to a “person skilled in the art” are the three main requirements in any patent claim. All three must be satisfied for the USPTO to grant patent protection.
Novelty, the first element, is the most relevant and applicable to TK. Under 35 USC § 102 (a)(1), the novelty requirement does not apply to any invention published in the public domain or is publicly used, orally disclosed, or on sale. Therefore, a TK invention is not patentable if it is part of a museum’s physical or online digital collection in the public domain. For TK that may be patentable, it must also first meet the utility requirement. Hence, given the difficulty for TK/TCE to checkmark all the patentability requirements, cases of patentability for TK/TCE are rare to none. Plants breeding, genetic materials, traditional medicines, and dying techniques are a few examples of TK that do have utility purposes and can claim patent protection.
Therefore, instead of solely relying on the patent system, useful, patentable TK gains more protection from the World Health Organization, the World Trade Organization’s Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement, TRIPS), environmental laws, and getting registrations from international biotechnological databases.
Under the positive-negative protective framework, TK/TCE has gradually gained international recognition. However, the IP-legal tools in the US and Australia still have many drawbacks and incompatibilities with community interests in preserving TK/TCE. So instead, more alternative defensive mechanisms such as licensing,online user agreements, image tagging/ folksonomy features populated over the years. More importantly, working with indigenous communities worldwide by conducting tribal leader consultant programs and establishing digital databases are critical steps to reinforcing a positive framework from within the communities. The future of the TK/TCE landscape depends on collaboration and appreciation of the legacies and secrecies from both indigenous communities and their allies.
About the Author
Murphy Yanbing Chen grew up among 26 indigenous communities in Southwest Yunnan, China and she is partial Jingpo and partial Mongolian. She is also a DC-based professional oil painter and a JD student at the American University Washington College of Law. Intellectual property, property, and immigration laws are her favorite Art Law topics. Her career path focuses on advocating for creatives, migrants, and ethnic minorities.
Emily Hudson, Cultural Institutions, Law and Indigenous Knowledge: A Legal Primer on the Management of Australian Indigenous Collections, Intellectual Property Research Institute of Australia University of Melbourne 1 (2006) (stating that cultural materials are “collection items that reproduce, record, or depict indigenous people, cultures, knowledge, and experience…it includes artistic outputs, and archival and research material”). ↑
See Johanna Gibson, Community Resources 39 (2005). ↑
See Daniel F. Robinson, Protecting Traditional Knowledge: The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Research in International Environmental Law 351(2017). ↑
See Martin A. Girsberger, Legal protection of traditional cultural expressions: a policy perspective, inIntellectual Property and Traditional Cultural Expressions in a Digital Environment 145 (Christoph Beat Graber & Mira Burri-Nenova ed., 2008) (WIPO IGC Secretariat announced that “it is unlikely that any single ‘one-size-fits-all’ or ‘universal’ international template will be found to protect TCE comprehensively in a manner that suits the national priorities, legal and cultural environment, and needs of traditional communities in all countries”). ↑
See Girsberger, supra note 9, at 145 (discussing Tulalip Tribes of Washington State has commented that IP laws “does not reflect the primary motives of indigenous peoples for their practices and innovations in TK and TCE.”). ↑
See WIPO, Documenting Traditional Knowledge—a Toolkit 30, 2017 (illustrating examples of TK documentation through registrations and databases). ↑
Peter Seth Menell et al., Intellectual Property in the New Technological Age 517, (2021). ↑
See generally, Australian Copyright Council, Fair Dealing: What Can I Use Without Permission?, 1-2 (Dec. 2019) (discussing the Australian Copyright Law narrowed the scope of fair dealing exception to “research or study, criticism or review, parody or satire, reporting news, enabling a person with a disability to access the material, and professional advice by a lawyer, patent attorney or trademark attorney”). https://www.copyright.org.au/browse/book/ACC-Fair-Dealing:-What-Can-I-Use-Without-Permission-INFO079↑
Matthias Leistner et al., Analysis of Different Areas of Indigenous Resources, in Indigenous Heritage and Intellectual Property Genetic Resources, Traditional Knowledge and Folklore 81 (Silke von Lewinski ed., 2004). ↑
Indunil Abeyesekere, The Protection of Expression of Folklore in Sir Lanka, in Traditional Knowledge, Traditional Cultural Expressions and Intellectual Property Law In the Asia-Pacific Region 352 (Christoph Antons ed., 2009). ↑
See William Fisher, The Puzzle of Traditional Knowledge, 67 Duke L.J. 1517, 1512-1578 (2018) (discussing controversy on Amazon River indigenous community’s TK on plant Quassia amara’s patented medical compound Simalikalactone E). ↑
See Yogini S. Jaiswal & Leonard L. Williams, A glimpse of Ayurveda—The forgotten history and principles of Indian traditional medicine, Journal of Traditional and Commentary Medicine 50-53 (2017) (addressing India’s protection on allied systems of medicine). ↑
Eric Kansa, Indigenous Heritage and the Digital Commons, in Traditional Knowledge, Traditional Cultural Expressions and Intellectual Property Law in the Asia-Pacific Region, 239 (Christoph Antons ed., 2009) (discussing Creative Commons licenses, for example, can curb reusers/remixers from using indigenous contents for commercial or derivative use). ↑
Id. at 230 (mentioning YouTube, Instagram, Facebook, Google and other search engines have their internal users’ guidelines and systems of reporting, flagging, and account-terminating to keep abusive, sensitive contents in check). ↑
See Kansa, supra note 53, at 231 (discussing scientists and researchers worldwide have built many foundational databases and digital platforms to locate and study indigenous TK/TCE such as Open Context, OCHRE project, WordPress weblog, Plone, Wikis, DRM, TKRC, and TKDL). ↑
To guide with the estate planning and legacy preservation process, in 2022, Center for Art Law hosted a virtual two-part “A Primer on Artist Trusts” series. The first part of the series, hosted on June 16, focused on the basics of setting up an artist’s trust and factors to consider when deciding whether to create one. The second part of the series took place on November 21; it dived into the nuts and bolts of setting up a trust. Both events are archived and available on demand.
This series was made possible with the collaboration of Julia Schwartz, Artist Legacy Foundation; Tracy Bartley, R.B. Kitaj Estate; Farley Gwazda, Gwazda Art Services; and contemporary art curator, writer and researcher Kristina Newhouse.
A Primer on Artist Trusts: Part 1
Speaker 1 – Melissa Passman, Esq.: Overview of Trusts
The estate planning process can seem complicated with the number of options and buzzwords out there for securing a loved one’s legacy–wills, trusts, estates, foundations. The first session of the series discusses the basics of artist trusts, the pros and cons, and the real life experience behind making the decision to create one.
The first half of the program was led by Melissa Passman, an attorney at Day Pittney, who has extensive experience with tax, trusts and estates, and art law. Passman began the series with an overview of what trusts are and how they compare to other legacy planning entities.
Passman explained that estate plans are often desirable because without one, default inheritance laws will apply upon an artist’s death. Passman explained the different types of entity options available such as creating an LLC, S-Corp, trust, or private foundation. With an LLC, a single member is disregarded for income tax purposes and members of the LLC will not be held personally liable for obligations of the LLC. Additionally, an LLC provides ownership and membership flexibility. A trust is a private agreement whereby the timing of the beneficial ownership and division of title between different parties can be controlled. It is administered by a Trustee. A private foundation can be formed as a trust or corporate entity.
Passman then provided an overview of the basics of a trust and key actors such as the beneficiary, settlor/grantor, and trustee. A trust instrument is a document that names the settlor and the trustee and lays out the governing terms. Passman then gave an overview of the types of trusts available such as revocable, irrevocable, and charitable trusts. Revocable trusts do are trusts that can be revoked or amended but do not have any significance for income tax purposes. Meanwhile, irrevocable trusts may not be revoked or amended. They are immediate gifts of property and may be subject to gift tax and federal tax. Charitable trusts on the other hand are forms of irrevocable trusts established for charitable purposes and provide for income tax deductions. To conclude, Passman stated that the decision to choose a trust ultimately comes down to the artist’s goals.
Speaker 2 – Jamie Johnson: Real Life Experience Creating an Artist Trust
Jamie Johnson led the second half of the program, sharing her experience creating an artist trust. Johnson is the managing trustee for the William S. Dutterer Trust, which she created in 2018. Prior to that, she managed Dutterer’s estate.
Johnson was married to artist Dutterrer and when he passed away in 2007, he left all of his artwork to Johnson in his will. Johnson explained that initially, her two options were to declare no real value for the work or to throw out the work. After hiring a professional to assist her, Johnson considered different entities to manage the artworks. She noted that her main hesitation against establishing a foundation was the extensive regulations and management necessary. She therefore decided to create a trust because of the relatively minimal regulation requirements, affordability, and ease of management. Johnson created an irrevocable trust in 2018 and gathered legal representation, an art accountant, and board of directors.
Johnson explained the consequences of creating the trust such as the increased credibility of her work and her network within the art world. She concluded by describing the trust’s goals for the future and contextualizing their present position towards that goal.
A Primer on Artist Trusts: Part 2
Speaker 1 – Bennet Grutman, CPA: The Financial Basics of Creating a Trust
What counts as a well-formed artist’s legacy? Taking care of the family members? Placing art in institutions? Shaping a careful and complete narrative? An artist’s legacy plan often requires a series of complex legal entities for the preservation and protection of a lifetime of work. The second session focused on selecting and creating several different types of trusts and other entities that are commonly used in legacy planning. ‘Planning’ and ‘conducting’ may encompass lifetime giving placement of one’s work or selling, and always a focus on the minimization of income, gift and estate taxes. An artist must be mindful of valuation issues, the needs for the management of their archives , placement of art, conveyance of intellectual property and of course, the responsibilities they have to their family and friends. The session also looked into who the beneficiaries and who the trustees are.
The second installment in the series began with a discussion of the accounting questions. The first speaker Bennet Grutman, CPA, has extensive experience advising artists, collectors, dealers, gallery owners, trustees, and foundation directors. He also served as a trustee to Robert Rauschenberg’s multi-billion dollar estate.
Gurtman began by explaining some of the concerns artists have when planning to create a trust such as personal needs and family support, tax minimization, and furthering their legacy and philanthropic goals. Grutman then dived into the tax planning maneuver to try to reduce adverse effects of tax rates on trusts. He stated that trusts and estates are separate taxable entities that receive their own income and pay their own expenses. A grantor trust, he explained, pays all of the income tax on the income and gains of the trust and a non grantor trust pays its own income tax.
Grutman provided an overview of some of the available trust types and different transfer strategies. These transfer strategies include testamentary transfers, inter vivos sales, and lifetime gifting. A testamentary transfer is when the transfer is made in a will after the artist’s death and includes purchases of artwork by the trust from the artist’s estate. Inter vivos sales are transfers made during the artist’s lifetime such as an installment sale to an intentionally defective grantor trust. Lifetime gifting is the gifting of artwork during the artist’s lifetime and includes contributions to charitable trusts or split-interest trusts. Grutman concluded his presentation on the financial and tax overview of artist trusts by explaining the process behind transfers to non-grantor trusts, transfers to grantor trusts, and split-interest charitable remainder trusts.
Speaker 2 – Caryn B. Keppler, Esq.: The Financial Basics of Creating a Trust
Caryn B. Keppler, Esq. presented the second part of the webinar. Keppler is a partner at Pierro, Connor & Strauss. She has experience in estate and trust planning as well as gift and charitable planning for a wide client base which include artists, collectors, and artists’ foundations. Keppler is a director of the Estate Law Specialist Board Inc.
Keppler began by weighing the pros and cons of creating a trust for artists. She stated that while trusts can provide for centralized control by a fiduciary, they are usually not the recommended option. She explained that there are other entities that provide for more control, better tax consequences, and are better for management for an artist. Problems with trusts include the restriction by the terms of the governing agreement, the inflexibility of amending them, and high tax rates at low income levels. Keppler suggested that business entities provide a better, more flexible means of managing an artist’s artwork. Separate entities are a great way to separate the intellectual property and the artwork. To separate the entities there are different entities that can be used such as LLCS, C Corporations, S Corporations, and charitable foundations. The most common and flexible form is the LLC. Some of the advantages of the LLC are the ability to have different classes of ownership and the fact that they may be treated as pass-through entities so that the income, expenses, and tax attributes are passed to the owners and members. However, LLCs require the artist to relinquish their artwork for membership interest and LLCs have attracted the attention and scrutiny of the IRS, in terms of income tax.
C Corporations provide a high level of protection from risk and allow for different classes of ownership but are disfavorable in terms of taxation and costs. S Corporations on the other hand, have more favorable tax treatment and state law liability of shareholders is limited. However, S Corporations disallow tax-free distributions of property and are limited in their ability to be owned by trusts. Artist foundations, Keppler explained, help preserve an artist’s legacy and can be created during the artist’s lifetime or after their death. It can be formed as a charitable trust or a nonprofit corporation. Foundations can also provide for income tax deductions and estate tax savings. However, there are strict rules regarding minimum annual distributions to qualified charities and against self-dealing, which make it very important to strategically select the board of an artist foundation. Keppler stressed the difficulty of estate planning and the importance of consulting with accountants and attorneys.
The audience for the sessions included artists, directors of estates, art professionals, young attorneys, established attorneys, undergraduate and graduate students. Some of the questions posed during the session included what the qualifications, experiences and skill set required from a Trustee in the case of Trust or from a Board member in case of an artist charitable foundation were and the commitments generally required of a trustee. Caryn Keppler responded that first and foremost, a trustee has to be a person once can trust. A trustee can always hire a team of experts to assist him/her/them – such as an attorney, accountant, investment advisor, art advisor. But the trustee has to be someone that one knows will be faithful to the terms of the trust document and fair to the beneficiaries. In New York, an individual trustee is entitled to be compensated pursuant to statutory rates: (a) an annual commission based on the value of the trust, and (b) 1% of all principal paid out during an accounting period when the trustee accounts to the beneficiaries. Of course, individual trustees can waive compensation but Keppler tells clients that are considering serving as trustees that it can be a lot of work and can open them up to a lot of potential liability so that they do deserve to be compensated. Corporate trustees such as banks are compensated based on their own published rate schedules. For foundations, board members should have some knowledge of the artist’s work and goals for the foundation, as well as working knowledge of the artist’s business. It’s a good idea to have an attorney, accountant, a financial advisor and family members on the board. If the artist has a staff, staff members are usually good additions since they have a working knowledge of the day to day workings of the business. Compensation will be dependent on the size of the foundation and the amount of hours and contribution that a board member puts in. When Keppler serves on a board, she usually asks to be paid on an hourly basis for her time. In both a trust and a foundation, the time involved will always depend on the size of the trust or foundation, the assets involved, the number of meetings (foundations should meet at least 1x annually if not more often if they are very active). And if the artist hasn’t properly inventoried their work before death, the initial work is substantial and could mean several individuals working full time for years just to get organized. That’s why creating a proper inventory and archive are the most important things that an artist can do for their estate and legacy.
Other questions asked by the attendees included:
Who should one reach out to first in the process of establishing a trust? Whether to first reach out to an attorney, CPA, or appraiser.
How do you move from an S corporation to an LLC corporation?
What factors should an artist take into consideration when deciding which structure to set up?
What are the requirements a beneficiary has to keep various interests separate? What happens when interests merge?
How does one add art to a trust or other entities, especially if there are a lot of artworks or archival materials that have not been appraised or inventoried or have more cultural value than financial value?
Offered as part of the Center’s Estate Planning for Artists Clinic, the series aimed at addressing the different types of trusts and other entities including limited liability companies and foundations, to help artists or their family members think about the nuts and bolts of setting up a trust and calculating the costs associated with successful operation of these different trusts. The series underscored the importance of getting sound and experienced advice from legal and tax experts for creating a sound legacy plan, unique for each artist and providing the knowledge for them to satisfy their ideas for immediate and lasting needs.
Handouts for the event:
Architectural Body Research Found. v. Reversible Destiny Found., 335 F. Supp. 3d 621 (S.D.N.Y. 2018).
Andy Warhol Found. for the Visual Arts, Inc. v. Federal Ins., 189 F.3d 208 (2d Cir. 1999).
Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 992 F.3d 99 (2d
City Bank Farmers Tr. v. Arnold, 197 N.E. 288 (N.Y. 1935).
W.E. Scott et al., Estate planning for artists: will your art survive?, 21 Colum-VLA JL & Arts 15 (1996).
What is Legacy Planning?: A Legal Perspective, R.B. Kitaj Studio Project (Apr. 6, 2021).
Hrag Vetanian, What Should Artists Do With Their Work After They Die?, Hyperallergic Podcast (Apr. 18, 2019).
Sample Artist Trusts:
Edward Gorey Charitable Trust
Renate, Hans, and Maria Hofmann Trust
William S. Dutterer: Dutterer Trust
About the Author: Nikki Vafai is a law student at the University of Maryland Carey School of Law and holds a B.A. in International Affairs and Art History from the George Washington University. Nikki served as a 2022 fall legal intern at the Center for Art Law.
“I have this dream my daughter-in-law kills me for the money, She thinks I left them in the will, The family gathers ’round and reads it, And then someone screams out, “She’s laughing up at us from hell!”…”
~Taylor Swift, from “Anti-Hero” (2022)
In Taylor Swift’s 2022 track and visual “Anti-Hero”, the viewer is invited to the artist’s deepest intrusive thoughts and fears as viewers are taken to her “funeral” while she sings of her heirs reading her will. While Swift’s slightly satirical, but very real nightmarish skit is a fun play on the artist’s personal fears within inheritance and wills, her point poses an interesting question. But in all seriousness, what happens to artist’s estates, copyrights, and originals when they die?
The subject of inheritance continues to be a focal point in many artists’ legacies. Family feuds, severed ties, and convoluted legacies can often end as a result. While we see these stories take shape globally from Picasso to Rothko, the artist and children’s book illustrator Tasha Tudor (Aug 28, 1918 – June 18, 2008) specifically comes to mind as her legacy was built on the foundation of family and the peaceful whims of a cottage-core lifestyle.
Tasha Tudor – Select Biography and Works
Tasha Tudor was born and raised in New England, a location that set the stage for playful imaginative children’s book stories with beautiful sceneries inspired by living in the countryside. She began her work with stories like “Pumpkin Moonshine” and eventually went on to illustrate popular novels such as The Secret Garden and The Little Princess by Frances Hodges Burnett. Her works of art carried a whimsical air that continued into over one hundred of her published illustrations. She also found other mediums to curate this idealistic imaginative lifestyle into her reality specifically through her motherhood and raising her family. Many of the magazines and stories she created were based on the reality of her own life she created in her home and with her children. From marionette shows, to holiday festivities, this lifestyle was ingrained into not only her art, but her everyday being.
Tasha Tudor’s legacy and brand was built off of the idea of childhood, love of nature, and homemade living. She always thought of creative ways to entertain her family, even designing several small magazines where her children could buy clothing items and other things by trading buttons as money. Many of the illustrations also drew from personal memories such as pushing a flowered cake down the creek for birthday celebrations. While her and her family of five grew up with the animals on the farm, making homemade recipes, and living the naturist lifestyle she curated, she eventually translated all of these collective works through her illustrations, cookbook, fan magazines (Take Joy!), documentaries, and the Corgiville world. She brought her home to life for her fans as she toured and released monthly articles that inspired those around the world with her way of living.
The Case: Estate and Family Feuds
While Tasha Tudor’s literary and visual world evoked a charming and harmonious imagery, the later years of her family’s everyday life and connection to her saw otherwise. In 2008, after the artist’s death at the age of 92 in Marlboro, Vermont, questions arose over the ownership of her art and the $2-million-dollar estate that was originally built by her two sons, Thomas and Seth Tudor. This began a relentless dispute between her four children. Her eldest son, main caretaker, and the current director of the majority of her lifestyle and artwork record keeping, Seth Tudor, inherited a large portion of her original artwork and copyrights, as well as her estate, while the remaining children were “disinherited.” $1,000 USD was given to both of her daughters, Efner and Bethany Tudor, and a vintage highboy was given to her youngest son, Thomas Tudor. While the original will in 2001 divided up all her works, originals, and properties between her sons and her grandson, the amended will in 2002 left most of the estate and copyrights to her son Seth.
Her second son Thomas Tudor noticed changes in his mother’s will, he contested these changes in court, claiming his older brother Seth Tudor unduly influenced their elderly mother in her later years. The defense argued that the will was just and fair, having only been changed due to disinheritance. Thomas Tudor rebutted, noting key witnesses from his sisters to a close friend of Tasha Tudor’s argued that communication to reach Tasha Tudor had been cut off and that Seth was profiting off her legacy. The suit lasted for two years and was meant to be directed to a Probate Court Trial in Vermont, but in turn eventually led to a private settlement. Thomas Tudor drew objections from the will and estate after the settlement and a judge-ordered division of Tasha Tudor’s ashes were cut in half between family members. Currently, Seth Tudor and his family continue to run the estate as a museum and integrate her legacy and lifestyle through their own life in order to promote her world.
How to Protect and Plan for Estate and Copyright
While this family-filled estate drama seems intensely specific, it is a very common occurrence amongst artists. Although family feuds often go much deeper than the division of an estate, there are some important preventative steps to conflict and ways that artists can continue to cultivate their legacy. While settlements are the “ideal” case in terms of legal battles and family affairs, cases do not always end in this way. During will planning, artists may want to consult lawyers, such as estate lawyer Matthew Erskine, on both how to create more clarity so as to avoid feuds in the planning process and how to clearly manage the legacy of the artist after their death. In an interview conducted with Matthe Erskine, on Tuesday October, 11, 2022, Erskine provided important advice on beneficial ways to navigate this common issue, it is necessary to prepare and meet with a lawyer who can help organize and map out the process of copyright and estate transfer in order to minimize contention between family members, organizations, and other actors such as gallerists. He also suggests considering a transfer of the originals and copyrights by forming a publishing company with a Limited Liability Company (LLC) in order to avoid complicated and lengthy bureaucratic processes. This allows beneficiaries to pool resources to manage, assign shares in the company, and access certain royalties that one gets as the publisher. Artists should never contract away their intellectual property, moral rights, or copyrights. While these copyrights can be licensed, they cannot be transferred unless noted so in the will. “Copyrights may also be bequeathed by will in whole or in part and may pass as personal property by applicable laws of intestate succession”.
This calls into question one of the next important measures that Erskine mentioned, which is archival procedure and ensuring that all pieces are preserved and possible making them more available to the public. As families inherit copyrights or estates, some things to consider with both the archival processes and preservational work is to reach out to museums, galleries, or large archival institutions such as the library of congress in order to bring light to the works of art. Archival procedures become key to the maintenance of the artist’s legacy. As we are deep in the digitized era and metaverses, it is important for artists to find organized ways to record, keep, and memorialize their work digitally. While the process of archiving and organizing can be daunting in an artist’s life work, it is this procedure that can prevent fallout. Resources such as the Center of Art Law’s Artist Legacy Clinic can be helpful in this aspect of estate and copyright planning. Especially in a time where art is often considered in digital spaces and re-molding through this element, it is important that artists ensure their legacy remains how they wish it to be represented to the best of their abilities through thorough copyright and estate planning.
Family feuds and relations will always be a particularly tender subject that adds an extra layer to will and estate planning. As Taylor Swift mentions in her song “Anti-Hero”, this can be a recurring and very real nightmare. While this process can be very layered and complex, there are nuanced and effective ways for artists to organize and archive this process. It is always in the artist’s best interest to seek professional advice as soon as possible to both archive and protect the legacy of the work. When an artist dies, the will is what remains of the legacy; In order to protect this, turning to a professional can help guide an artist through the many obstacles or legalese, complicated legislation, state specific and global specific statues, as well as convoluted familial affairs. Through the work of lawyers and programs such as the Artist Legacy Clinic here at our center, provide a great first step in maintaining legacy and planning for the future. It is the work of art professionals generally that secure the wishes of artists while they are still living, thus preserving their interests well before their passing. In doing so, artists will have no need to worry about those dreading nightmares of family fights breaking out over the will becoming reality. Ironclad estate planning and legacy protection will create the clarity and transparency needed to keep the art alive and well for years to come.
Loretta Wortenberger, The Artist Estate: A Handbook for Artists, Executors, and Heirs Paperback. 2016
Ramsay H. Slugg, Practical Planning For Art and Collectables, 2021
Hanna Tudor is currently in graduate school at New York University studying Art Politics and Public Policy. She majored in Art History & Visual Culture as well as Political Science, which drew her towards the field of Art Law. She is the granddaughter of the artist mentioned, Tasha Tudor. A majority of this article is first hand information, but any additional information will be listed above and in suggested readings. Her love for art law is centered on its ability to strengthen artist voices and create bridges to protect those who are vulnerable to the institutions that attack certain salient rights to creative expression and cultural heritage
The author of this article is the granddaughter of the artist discussed in this article. ↑
“By far, the greatest danger of Artificial Intelligence is that people conclude too early that they understand it.” —Eliezer Yudkowsky
Again and again, artificial intelligence (AI) has demonstrated its sheer power to create and tell stories by making visual art,writing poems, code, composing music, and even testing astrological compatibility. Or has it? AI seems to be (machine) learning and doing it all—perhaps, it has taken a step even further to play a little on the human psyche and create “magic avatars” envisaging who one may want to be. If one has ever imagined what they might look like if they were Monet’s or Van Gogh’s muse or if they were animated by artists from Disney or Pixar— AI has got it covered. Now, one can get stunning portraits of all these and many more at the low cost of $10 and likely a few morals here and there — if one is willing to ignore some major ethical red flags (as tempting as that may be…) as well as concerning legal and privacy issues.
Inthe recent past, AI-generated art has become increasingly ubiquitous owing to the quick turnaround time and detailed prompts to collaborate and create artwork. With the accelerated rate of improvement and enhanced neural networks, AI is becoming more talented, more quickly. AI software (or the people behind the code) like DALL.E 2 among others, is now being accused of stealing artists’ protected works without consent to generate “new” images. Only days after South Korean illustrator Kim Jung Gi passed away (October 3, 2022), his work was fed into an AI model and reproduced. A 34-year-old Polish artist, Greg Rutkowski also stated that AI models should exclude the work of living artists after learning thousands of AI-generated images were copying his fantasy style and the fact that his name was searched over 93,000 times while the images were being produced. Lensa’s “magic avatars” is one such AI model that is being accused of copying artists’ work to create “magic avatars” or AI-generated portraits. Lensa’s magic avatars grant instant gratification to those who want to see themselves exactly as they desire, making it an instant darling of the digitally savvy… while possibly/probably referring to works of real artists’ and our contemporaries’ styles, leading living artists and artists’ estates to ask for accountability.
Screenshot of the download window for Lensa AI on the iOS App Store
What is Lensa?
Launched in 2018, Lensa is a product of Prisma Labs — a company based in Sunnyvale, California that recently topped the iOS app store’s free chart. Though it was created in 2018, the application did not become popular until Prisma Labs introduced its “magic avatar” feature in 2022. Lensa uses artificial intelligence to digitize and generate users’ portraits in a variety of categories, from anime to fantasy to what they call “stylish” which most closely resembles an oil painting. The app itself is free, but the portraits require an in-app purchase. With a seven-day “free trial,” users can upload 10 to 20 selfies and then select a package of unique avatars, ranging from 50 for $3.99, 100 for $5.99, or 200 for $7.99. A year-long subscription is $35.99.
How does AI create the avatars?
To create “magic avatars” Lensa uses Stable Diffusion, an open-source AI deep learning model, which draws from a database of art scraped from the internet. Stable Diffusion has been around since 2020 and was founded by Emad Mostaque but released to the public only in August 2022. Stable Diffusion draws from a database called LAION-5B, which includes 5.85 billion image-text pairs, filtered by a neural network called CLIP ( also open-source).Other recent applications to now employ Stable Diffusion include Canva. An independent analysis was conducted by researchers and tech experts Andy Baio and Simon Willison, where they explored 12 million images used to train Stable Diffusion and found out the websites where it pulled images from, along with the artists, famous faces, and fictional characters found in the data. They employed Willison’s Datasette project to make a data browser to explore the images and traced the origins to platforms like Blogspot, Flickr, DeviantArt, Wikimedia, and Pinterest. Pinterest, of which is the source of roughly half of the collection. This essentially implies that the AI has been trained on unadulterated internet images with minimal filters and restrictions, and that have been taken from across the internet regardless of whether they are copyright protected works of other artists or not. Stability AI, the company that funds and disseminates the Stable Diffusion software removed “illegal content” from Stable Diffusion’s training data, including child sexual abuse material. Additional changes to their policies were also made in late 2022 to make it harder for Stable Diffusion to generate certain types of images that include nude and pornographic output, photorealistic pictures of celebrities, and images that mimic the artwork of specific artists such as the case of Greg Rutkowski. But who makes these decisions as to which artists are fair game and which are off limits? Perhaps it should not be AI…
What makes the avatars so “magical”?
Unlike other filters or photo-editing applications to edit or modify photos, Lensa generates images that do not necessarily look “real,” but rather lean into a new kind of photo distortion rooted in its other-worldliness and dreams. The application requires a minimum of 10 photos (with a maximum of 20) and demonstrates examples of “good” and “bad” selections of “selfies” to upload. A good selection is an up-close selfie that showcases natural features while a bad selection is a distanced pose, or a group photo. There are explicit instructions to not upload any group photos or photos with any sort of nudity. (It does seem concerning to note that while no images are uploaded with nudity, the AI generated images contain nudity…) After the photos are selected, the application takes up to 20 minutes to generate the portraits in 10 styles: fantasy, fairy princess (or prince), focus, pop, stylish, anime, light, kawaii, iridescent, and cosmic.
The “portraits” have a striking similarity to the user of the application, but there is something both dream-like and dystopian in the similarities and differences of the output. As an example below, Lensa accurately captured the user’s dark hair with bangs and brown eyes. What was most unsettling was the accuracy with which it captured the user’s “winged eyeliner,” red lips and somewhat closed-mouth smile that was present in many photos and is present in real life. The differences whether in terms of length of hair or the clothes or poses were also deliberate as to imagine something of a fantasy.
LensaAI generated “magic avatars”
Ethical, moral and legal concerns
While millions of users around the world began generating and falling in love with their vanity… and narcissus-like magic avatars, concerns grew within the artist communities online. Not only were these AI-generated portraits taking away commission opportunities for digital artists, but some of those artists’ who rely on commissions of artworks were being used to train the AI model that generated them, and often without their permission.
Screenshot of tweets by Prisma Labs
A number of artists who spoke out against Lensa, including Jon Lam who stated that “Lensa uses Stable Diffusion which is still using Datasets from stolen data and art all over the internet. This is how it knows how to mimic art styles. It’s unethical, and Big Tech is behind this ripping off artists everywhere for $8 a pop. This is what normalizing data/art thievery looks like. It’s malicious apps disguised as fun trends. If you are an artist, or truly appreciate us, Stop messing with this.” Digital artist Meg Rae posted a warning stating “Do not use the Lensa app’s ‘Magic Avatar’ generator. It uses Stable Diffusion, an AI art model, to sample artwork from artists that never consented to their work being used. This is art theft.”
As mentioned earlier, Lensa does employ a copy of the open-source neural network model Stable Diffusion to train its AI. This means anyone has access to the open source data without any restrictions. The model taps into a pool of billions of images from all corners of the internet, which are compiled into a dataset called LAION-5B. Stable Diffusion then uses these images to learn techniques that it applies to generate new works, which Lensa claims “are not replicas of any particular artist’s artwork.” While this is ethically dubious, the copyright law regarding these datasets is still murky. LAION’s website states that the datasets are simply indexes to the internet, i.e. lists of URLs to the original images together with the ALT texts found linked to those images. While LAION downloaded and calculated CLIP embeddings of the pictures to compute similarity scores between pictures and texts, they subsequently discarded all the photos. This means that because the datasets only contain URLs of images, they serve as indexes to the internet, which do not violate copyright law. It may be interesting to compare this to the US Court of Appeals decision stating that Google’s creation and display of thumbnail images does not infringe copyright and that Google was not responsible for the copyright violations of other sites which it frames and links to. The rationale was that Google does not store the images; its own page simply provides HTML instructions that direct a user’s browser to access and display a third-party website. Scraping public images from the internet, even copyrighted ones, to create something transformative would likely be fair use and be a defense against copyright infringement but only if the copyright infringement was levied against a human-made image not something created by a machine. In fact, the images generated are not copyright protected until the human authorship can be proved in the magic avatars. In addition, the open-source nature of Stable Diffusion means that any copyright infringement is the end-user’s responsibility. Even if AI art can clear these legal obstacles, the ethics are of course still deeply concerning.
Lensa’s app has been trained on artwork created and posted by artists across the internet, and some artists claim this not only devalues their own work by AI mass producing 50-100 images at a fraction of the cost of a commission, but it is also potentially appropriating their work, including their signature. Artists and others pointed out that in the AI-generated images one could see the mangled fragments of the artists original signatures in the corners of the portraits, as seen in the images below. Arguments were made against the same as well, stating that this is not what the “signatures” were. “This is the AI noticing that its training dataset always has signatures and reproducing that element.”  One person pointed out that it was “entirely possible that these are watermarks from photography studios, which would be more likely since people are seeding this AI with photos” while another reiterated that “copyright applies just as much to photos as it does to drawings and paintings” and regardless this work could be infringing an artist’s rights. Another commented stating that the worst part is that “future updates can be tweaked to avoid this.” It is interesting to think back to a simple rule-of-thumb jest attributed to Bob Oliver, “if you steal from one man, it’s plagiarism. If you steal from several, it’s research.” And who is better at doing research than a machine processor capable of processing hundreds of thousands of images. Is this theft? or is it simply “research” to create something new?
Screenshot of tweets by Lauryn Ipsum with signature fragments of artists on LensaAI generated “magic avatars”
Example of an AI-generated “magic avatar” with fragmented signature of artist on the top left
Artists in online communities like DeviantArt, which produce the kind of art that Lensa refers to, usually self-regulate. If someone posts art that looks like another artist’s work, that person is usually criticized for copying and ostracized from the community. But it’s more difficult to attribute responsibility when an algorithm generates the artwork. As of now, original artists are not receiving any payment from Lensa for the use of any images. And concerningly, if people become accustomed to paying so little for so many portraits, it may be a challenge for artists to produce artwork and be paid their dues for the same. Who can compete with machine making seemingly intricate portraits?! Is this the dawn of the new prete-a-…. fashion? the ultimate Vanitas?
In December 2022, a digital artist named Ben Moran tweeted that moderators of r/Art (a 22 million member art forum on Reddit) banned Moran from the subreddit for breaking their “no AI art” rule. Moran had posted an image of their digital illustration, titled “a muse in warzone,” and moderators removed it and banned them from the subreddit stating it was an AI design or generated piece. Moran responded that they could provide a process or the PSD file of that painting to prove that Moran was the artist and that they were not using any AI-supported technology. Moran further stated that the punishment was “not right” and provided a link to their portfolio on DeviantArt. A moderator for r/art replied that they did not believe him and “Even if you did ‘paint’ it yourself, it’s so obviously an Al-prompted design that it doesn’t matter. If you really are a ‘serious’ artist, then you need to find a different style, because A) no one is going to believe when you say it’s not Al, and B) the AI can do better in seconds what might take you hours. Sorry, it’s the way of the world.” Moran’s response to this was that “Being accused of being an AI artwork is just like telling me that I’m a random guy and all of my job is just typing some words to have a painting in one or two hours. I think it’s not a good comparison.” Since AI is churning out artwork at a fraction of the time and cost and websites are (with good intention) trying to ban AI works on art websites to protect artists, who is able to differentiate between AI artwork and human produced work like in the case of Moran? Are human artists being reprimanded and devalued for work they have been creating long before AI?
Additionally, the updated policy provides more detail on privacy rights for residents of California, Colorado, Connecticut, Utah, and Virginia—the only five states with comprehensive privacy laws, some of which go into effect in the new year. For example, users in those states can request information about what user data is collected and to have it deleted. The legal team at Prisma Labs decided to add the state-specific section for the benefit of its core user base and after conducting a review of soon-to-be required legal notices.
Finally, while users may or may not own the rights to the photos generated by “magic avatar,” individuals may still have a right of publicity. The right to publicity prevents someone’s likeness, including their image, from being used commercially without permission. By granting rights to images through these applications a user could end up seeing their face on the developer’s website or marketing materials without granting explicit permission.
Screenshot of tweets of Prisma Labs
The issue with artificial intelligence is that there really seems to be no precedence… yet. (No doubt that in time there may be more lawsuits and complaints to peruse through!) AI is doing more than we know and a majority of it remains unregulated. There are no laws that strictly lay down any standards for ownership of work or liability and accountability of actions. Terms and conditions, privacy policies and good practices assist in ensuring that there are some standards followed and that basic violations of privacy do not go ungoverned but they can be vague and riddled with loopholes. It is important to note that one cannot copyright a “style” of work, only a piece of work itself. If the AI-produced work is ‘transformed enough’ from any original source input, it will be challenging for an artist to claim infringement. However, if the AI work is substantially similar to any artists’ prior work or that it appears to be copied, then infringement may be present and legal remedies would likely be available. “Theft” of art work through machine learning at least at this point seems to lack legal backing though ethical considerations must be taken into account. While the law does not prohibit sampling work to transform it (like using the fair use doctrine), is it moral to continue engaging with AI models to purchase mass produced and cheap art? Or are different “fair use” standards required for AI generated artwork?
Will AI artwork ever truly replace traditional art or the work of digital artists? While it may be relatively simple to make an artwork that looks aesthetic enough using AI, it is still difficult to create a very specific work regardless of detailed text-prompts, with a specific subject and context. So while apps like Lensa may be fun and trendy in the short run, the personality of the artist remains an important context for their work especially if commissioned. It is interesting to think of whether Lensa or similar apps could replace the market. Would a person who wants to purchase a high quality commissioned portrait rather employ a human artist or would they choose AI? It seems unlikely that AI would carry the same prestige or value but it remains challenging for artists who feel increasingly ripped-off.
As of now, behind all the AI software(s) is a human-run company which can be held accountable and liable for violation of any laws. At a minimum, perhaps these companies should seek informed consent for the data that they use to train their machine learning algorithms as the artworks are not public property just because they may be publicly available online.
Read more: What else is AI upto these days?
Screenshots from the Co-Star App
Co-Star: AI is now being used to chart out astrological stars and predict compatibility. After one inputs their information, including their place and time of birth, Co-star gives detailed daily readings as well as compares the user’s astrological charts with friends on the application to guide relationships. While access to most information is free, for more detailed readings one can make an “offer” of a certain sum of money from $1 – $20 to receive the full and “complex” reading. See more here: https://www.costarastrology.com/
Images generated on DALL•E 2 using text prompt: oil painting of a robot holding a paintbrush and painting a portrait
DALL•E 2: AI art platform creates images from text descriptions in seconds. One can input a detailed text prompt for which an image is generated. 50 credits are allotted to a user per month to generate a number of images at no cost. The app is available for $36 and bypasses hefty legal fees usually charged by lawyers. See more here: https://openai.com/dall-e-2/
DoNotPay: An artificial intelligence bot is set to defend a human in court for the first time ever in February 2023. The world’s first robot lawyer will help a defendant fight a traffic ticket in court. The Artificial Intelligence (AI) bot developed by DoNotPay will run on the defendant’s smartphone. It will listen to court arguments in real time and advise the defendant on what to say via an earpiece.The defendant will only say what the AI instructs them to say in court. To use the service, one has to input basic information about a specific legal issue and the information will be processed using AI to generate a legal document tailored to those specialized needs. DoNotPay was initially developed to help people contest parking tickets in London. Since its launch in 2015 where it was initially a chatbot, it has expanded to cover a variety of legal issues. See more here: https://donotpay.com/
Atreya Mathur is the Director of Legal Research at the Center for Art Law. She was the inaugural Judith Bresler Fellow at the Center (2021-22) and earned her Master of Laws from New York University’s School of Law where she specialized in Competition, Innovation, and Information Laws, with a focus on copyright, intellectual property, and art law.