Field of law

Art & Cultural Property

Provenance and good faith purchase, stolen and looted works, import restrictions and bilateral agreements, repatriation, artist moral rights and resale, authentication disputes, and consignment.

Import Restrictions on Cultural Property

Under the Convention on Cultural Property Implementation Act the United States may agree with a State Party to restrict imports of archaeological or ethnological material whose pillage places a cultural patrimony in jeopardy. The restriction reaches only material described on a designated list published in the Federal Register. Listed material may not enter without an export certificate from the State Party or statutory evidence that it left that country early enough to satisfy the Act.

5 min readFederal law

Art & Cultural Property

Immunity From Seizure for Works Loaned to Museums

Under 22 U.S.C. 2459 an object of cultural significance imported from abroad for temporary exhibition at a nonprofit cultural institution may be granted immunity from judicial process, so that no court may order it seized, attached or removed from the institution's custody. The determination must be made and published in the Federal Register before the object enters the country. It protects the object during the covered period; it does not decide ownership and does not by itself bar a suit.

5 min readFederal law

Art & Cultural Property

Stolen Art: Demand, Refusal and the Clock

A replevin claim for a stolen work accrues under one of two competing rules. In demand and refusal states the period does not begin until the true owner demands the object from a good faith possessor and the possessor refuses, so the claim can survive for decades. In discovery rule states the period begins when the owner knew or through reasonable diligence should have known where the object was. Laches operates alongside both and can bar a timely claim where delay has prejudiced the possessor.

5 min readState law

Art & Cultural Property

Repatriation of Remains and Objects Under NAGPRA

The Native American Graves Protection and Repatriation Act requires federal agencies and federally funded museums to compile summaries of certain collections and item-by-item inventories of human remains and associated funerary objects, prepared in consultation with tribes. Where cultural affiliation is shown by a preponderance of the evidence, the institution must repatriate on request from a lineal descendant or an affiliated group unless it establishes a right of possession.

5 min readFederal law

Art & Cultural Property

Artist Moral Rights and Works Attached to Buildings

Section 106A gives the author of a work of visual art the right to claim authorship, to prevent the use of the author's name on a distorted version, to prevent intentional distortion or mutilation prejudicial to honor or reputation, and to prevent the destruction of a work of recognized stature. The rights belong to the author regardless of who owns the object, cannot be transferred, and may be waived only by a signed writing identifying the work and the uses to which the waiver applies.

5 min readFederal law

Art & Cultural Property

Resale Royalties and Why the United States Has None

Droit de suite entitles the author of an original work of art to a percentage of the price on later resales handled by art market professionals. The Berne Convention treats the right as optional and conditions it on reciprocity, so an American artist gains nothing abroad while no federal right exists at home. A California statute creating a resale royalty was held preempted by the federal Copyright Act for sales after that Act took effect, leaving private contract as the only mechanism.

6 min readTreaty and international

Art & Cultural Property

Provenance and the Limits of Buying in Good Faith

Under the maxim nemo dat quod non habet, a thief has no title and can pass none, so every later transfer is void however honest the buyers were. The Uniform Commercial Code softens this only where the owner voluntarily parted with possession: a transferor with voidable title can pass good title to a good faith purchaser for value, and entrusting goods to a merchant who deals in goods of that kind empowers that merchant to transfer the owner's rights to a buyer in ordinary course.

6 min readState law

Art & Cultural Property

Authentication Disputes and Why Experts Stopped Opining

Attribution is an expert judgment with an immediate and often total effect on value, which is why an adverse opinion draws claims for defamation, product disparagement, negligent misrepresentation, tortious interference and antitrust conspiracy. Defendants usually prevail, because a reasoned opinion is not a false statement of fact, but the cost of prevailing led several artist foundations to close their authentication boards.

5 min readState law

Art & Cultural Property

Nazi-Era Looted Art and the Statutory Revival of Claims

The Holocaust Expropriated Art Recovery Act supplies a uniform federal accrual rule for civil claims to recover property lost between 1933 and 1945 because of Nazi persecution. A claim may be brought within six years of the claimant's actual discovery of the identity and location of the property and of a possessory interest in it, notwithstanding contrary state law. The Act creates no cause of action, decides no ownership question, and leaves sovereign immunity untouched.

5 min readFederal law

Art & Cultural Property

Consignment Agreements and What Happens if the Dealer Fails

Where a consignment falls within the Uniform Commercial Code definition, Article 9 treats it as a security interest and deems the dealer to hold the consignor's own rights in the goods as against the dealer's creditors. An unperfected consignor loses to a lender holding a perfected inventory lien and to a bankruptcy trustee. Perfection requires a financing statement filed where the dealer is located and, for priority over an existing lender, notification before delivery.

6 min readState law

Art & Cultural Property

Deaccessioning: When a Museum May Sell What It Holds

Deaccessioning is the formal removal of an object from a museum's permanent collection, ordinarily followed by sale or transfer. Authority comes from the institution's governing documents and from state nonprofit and charitable trust law, subject to any restriction in the donor's gift instrument. The recurring constraint is on proceeds: professional standards and, in some states, statute confine them to acquisition and the care of collections and forbid their use for operating costs or debt.

5 min readState law

Fields of law

This journal

Art & Cultural Property

Import Restrictions on Cultural Property

Immunity From Seizure for Works Loaned to Museums

Stolen Art: Demand, Refusal and the Clock

Repatriation of Remains and Objects Under NAGPRA

Artist Moral Rights and Works Attached to Buildings

Resale Royalties and Why the United States Has None

Provenance and the Limits of Buying in Good Faith

Authentication Disputes and Why Experts Stopped Opining

Nazi-Era Looted Art and the Statutory Revival of Claims

Consignment Agreements and What Happens if the Dealer Fails

Deaccessioning: When a Museum May Sell What It Holds