How do we decide how a long buried corpse would want his art treated? And is the corpse’s former intent all we care about?

My post last week about art museums and the doctrine of deviation provoked in the comments precisely the kind of discussion/argument that I tried to point out is the whole point: how do we decide how to apply rules or other written expressions when they are applied in contexts that have radically changed. To literally apply the words written by a donor that restrict the use of a gift by an art museum when doing so would threaten the entire point of the gift (a thriving art museum) seems pretty absurd to me. If what we’re trying to do is discern a donor’s intent, shouldn’t we be a little more flexible?

Thus, I am particularly pleased to note Donn Zaretsky’s reference to the Philadelphia Inquirer’s conclusion that the new Barnes Foundation building (the subject of a couple of those comments to my original post) shows “obvious respect for Barnes’ legacy – for his idiosyncratic view of how art should be displayed and appreciated – should reassure supporters of the move.” That’s precisely the point: Barnes’ original bequest might have forbidden the move, but the result of his restriction, 60 years after his death, was the closing off of a multi-billion dollar collection of art to the wider public, strife between the Foundation and its neighbors, and a threat to the very existence of the Foundation itself. Isn’t it at least arguable that satisfying much of Barnes’ obvious intent — precisely how the art is housed and shown — while making it accessible to the world in a location where it is welcome is a reasonable effort to accommodate what he would have wanted? And isn’t it appropriate that we have institutions like courts to decide whether that reasonable argument or the opposing one (Barnes stated in his bequest the collection should never be moved, so it should never be moved, even if there are circumstances now that he did not anticipate and we could not predict his reaction to)?

And that’s not even to mention that there is a public interest involved. Are we to so honor “property” rights that we would sacrifice billions of dollars of the world’s culture to the whim of the owner? As Zaretsky asks in another post:

What if Barnes’s Will had provided that the works were to be exhibited in Merion for exactly 50 years — and then were to be burned in a big bonfire?

Should we honor donor intent in that case?

Or can we agree that sometimes the public interest trumps the donor’s intent?

Rules must allow for the inevitability of change: art museums and the doctrine of deviation

I’ve had my disagreements with Donn Zaretsky, the author of the Art Law Blog. But he’s dead on in his criticism last week of objections typified by Eric Gibson’s ”piece in the Wall Street Journal . . . about the Cleveland Museum of Art’s [CMA] request for court permission to use certain acquisition-restricted funds . . . to help complete its renovation/expansion. . . .”

As Zaretsky acknowledges, Gibson is sympathetic to CMA’s plight: “Clearly the museum has to do something. Nobody could have anticipated the events of a year ago, and [the museum's director] and his colleagues make a compelling case that the museum has to move forward with its expansion plan rather than mark time.” I would add that sympathy is worth the paper Gibson’s online piece is printed on. Yes, something has to be done. Maybe from New York an art museum, even a respected one, in Cleveland can be treated with condescension, but as a native Clevelander who happily moved back after 13 years of professional life in NYC, I can appreciate that the Cleveland Museum’s self-description accurately describes the importance of the institution:

The Cleveland Museum of Art means many things to many people. To the residents of Greater Cleveland, it is a beloved civic asset, a place where the community’s greatest aspirations find expression, and a backdrop for many a wedding photo. The museum is a major force in the regional cultural and intellectual community, helping to keep Northeast Ohio a vibrant center of learning and artistic endeavor. As one of the nation’s top museums, the CMA has long exhibited leadership in acquisitions, presentation, and education, and its curators have originated many groundbreaking exhibitions. The Cleveland Museum of Art is renowned the world over for the extraordinarily high quality of its holdings (which are in constant demand for loan exhibitions) and for both the intellectual rigor and the public spirit of its daily activity.

And CMA is no dusty holdover from the days when John D. Rockefeller and his contemporary Cleveland industrialists funded a cultural life of one of the richest and most dynamic cities in the country. Earlier this year, as Gibson also notes, it “completed Phase I of a $350 million, eight-year expansion and renovation plan that, when completed in 2012, will increase the museum’s size by nearly 50%, significantly expand exhibition space, and enhance the museum in other ways.” But, of course, “[l]ast fall, with the start of the second and last phase of the plan on the horizon, the museum found itself caught in what Michael J. Horvitz, the board’s chairman, calls “a perfect storm”: With $138 million remaining to be raised, philanthropy dried up, the credit markets froze, and the museum’s endowment plummeted—to $558.5 million as of June 30 this year from $736 million before the crash.”

Gibson, however, is paralyzed with fear that “the precedent this could set”if the court grant’s CMA’s request to use funds restricted for use to the acquisition of art. You have to to worry about what [art museums] might do if given an opening to finesse the rules governing restricted endowments.” As Zaretsky notes, “Lee Rosenbaum makes a similar point . . . . Cleveland’s actions,” she says, “unchecked, would set a dangerous precedent that could have a negative impact on future benefactions, just when museums need help the most.”

This is garbage. As Zaretsky points out: “The doctrine of deviation, upon which the museum relies, has been around forever. If the court grants the museum’s application, it won’t be creating an opening that other museums will then come rushing through, but allowing it to pass through an opening that was always there.” Moreover, the CMA’s has used the doctrine of deviation in the past in a responsible way, and there’s no reason to think, given the obvious need even its critics acknowledge, to think that if it convinces the court to allow it, that the decision would be a precedent for museums everywhere suddenly to act irresponsibly. Nor should we make rules that don’t permit courts to look at individual cases and grant relief from restrictions no longer serving any useful purpose just because we’re afraid someone may try to get away with fooling a court into letting them act irresponsibly. As Zaretsky points out, those who fear that allowing the CMA to be released from the restrictions imposed on its use of certain funds because circumstances demand it would create a bad precedent are blind to the fact that the rules that allow precisely that have been around and worked well for a long time:

The “opening to finesse the rules” has existed for this very museum with respect to these very funds for more than 50 years. It seems safe to say they haven’t exactly been abusing the privilege. Once again, the people who run our nation’s museums are not naughty schoolchildren who need to be penned in by simple, black-and-white rules.

And the rules set no strict standards. The legal doctrines that grant relief from restrictions on contributions made by donors require that “present circumstances have made it impossible, unlawful, or impracticable to adhere to the original terms of the donation . . . [or] the administrative terms of a gift . . . hamper the accomplishment of the gift’s purposes.” Emmeline Barton, Relief from Gift Restrictions: Cy Pres and Deviation, Harvard Law School Art Law Client Newsletter at 7 (Spring 2007).

I do wish people like Gibson and Rosenbaum would bother, before spouting off, realize that others long ago might not only have shared those opinions but also managed to work their way through to a reasonable way of accommodating the entire range of concerns raised in connection with those opinions. If the CMA can’t convince the court that circumstances merit relief from the restrictions on the funds they want to use, the court won’t let them. And we shouldn’t stop them because we’re afraid someone else might not deserve the same type of relief they’re seeking.

Is Holden Caulfield still only J.D. Salinger’s character?

J.D. Salinger recently filed a lawsuit (complaint (pdf)) seeking to block the publication of 60 Years Later: Coming through the Rye, an unathorized sequel to Catcher in the Rye, on the grounds it infringes Salinger’s copyright in the novel and in Holden Caulfield, the “narrator and essence of that novel.”

It’s an interesting case.  In SunTrust Bank v Houghton Mifflin Co., 268 F.3d 1257, 60 U.S.P.Q. 2d 1225, 14 F.L.W. Fed. C, 1391 (2001, 11th Cir.), rehearing denied en ban, 275 F3d 58 (11th Cir. 2001), the owners of the copyright to Gone With the Wind sued the publisher that owned the rights toThe Wind Done Gone, a critique of the depiction of slavery and the Civil-War era American South and that used and drew upon the characters and story line from Gone with the Wind.  The court ordered the lawsuit dismissed because The Wind Done Gone‘s use of the characters and story line from Gone with the Wind constituted fair use.  The court’s conclusion was that TWDG was a protected parody of GWTW because one of its principal purposes was to critique the worldview advanced  by GWTW:

TWDG is more than an abstract, pure f ictional work. It is principally and purposefully a critical statement that seeks to rebut and destroy the perspective, judgments, and mythology of GWTW. Randall’s literary goal is to explode the romantic, idealized portrait of the antebellum South during and after the Civil War. In the world of GWTW, the white characters comprise a noble aristocracy whose idyllic existence is upset only by the intrusion of Yankee soldiers, and, eventually, by the liberation of the black slaves. Through her characters as well as through direct narration, Mitchell describes how both blacks and whites were purportedly better off in the days of slavery: “The more I see of emancipation the more criminal I think it is. It’s just ruined the darkies,” says Scarlett O’Hara.GWTW at 639. Free blacks are described as “creatures of small intelligence . . . [l]ike monkeys or small children turned loose among treasured objects whose value is beyond their comprehension, they ran wild – either from perverse pleasure in destruction or simply because of their ignorance.” Id. at 654. Blacks elected to the legislature are described as spending “most of their time eating goobers and easing their unaccustomed feet into and out of new shoes.” Id. at 904.

It seems that any sequel is bound to comment on the original in one way or another. Does that mean any sequel is a non-infringing fair use of the original work? I doubt it, but where would the line go between a sequel sufficiently critical of the original and a sequel that merely exploits the value the author created in the original?

To catch a thief . . . crowdsourcing?

BostonHerald.com’s Blog is using “crowdsourcing” in an effort to solve the 1990 theft of 13 paintings and other artworks from the Isabella Stewart Gardner Museum. Now, the blog reports, a “twitter.com user named GardnerTheft has been posting links to our articles and others.  Check out the info-tweets at twitter.com’s web site (search: GardnerTheft).  With just a click you’ll see frequently updated news, insights, ideas and blog posts.”

As the Boston Herald Blog explains, its effort to capture the collective effort of interested internet users was inspired by the success of an earlier online effort in connection with the case.

When medical illustrator Nicole C. Wolf produced her digital paintings to update the renderings of the two Gardner thieves, the public got the best images of the robbers ever produced.  Wolf’s work, done in anonymous collaboration with one of the Gardner guards on duty during the theft, has led to dozens of new leads for the museum’s investigator, Anthony M. Amore.

With those tips in mind, it’s time to provide more information about the two thieves’ physical descriptions. Each detail is aimed at jarring the memories of people who know the behavior patterns of many in the criminal underworld.

In 2005, the Boston Globe ran its own detailed review of what was known about the Gardner art heist, summing up the events as follows:

Museum officials say they take heart in the fact that some masterworks stolen from other museums have surfaced after many years. But like the investigators, the museum’s leaders are baffled by how little progress has been made since thieves entered the museum in the early morning hours of March 18, 1990, as St. Patrick’s Day festivities in the city wound down.

They are baffled especially because the thieves, though bold and clever, were hardly meticulous professionals. They took no great pains to avoid being seen, nor were they careful to avoid damaging the masterpieces they were stealing.

They posed as Boston police officers, and even though they flashed badges and wore insignias, their long coats were not part of any official uniform. The Globe located several passersby who remember seeing them sitting quietly in a red hatchback near the museum’s side entrance, perhaps waiting for a St. Patrick’s Day party in a nearby apartment building to break up before making their move. And their disguises left their faces uncovered, giving the guards a good look at them. 

Once inside, the thieves ripped a Vermeer, three Rembrandts — including his only seascape — five Degas drawings, and a Manet from their wall placements, smashing them out of their frames and leaving shards of glass and remnants of canvas behind. The thieves took some of the museum’s greatest treasures but left behind some even more valuable objects.

When they were done for the night, they made two trips to their car with the loot. Then they vanished.

Where the paintings were, empty frames now fill the museum’s walls.

Online markets may be doing more to reduce the looting of antiquities than the always feuding museum directors.

Archaeology reports on the unforeseen consequences of “the emergence of eBay, the Internet auction site that, among other things, lets people sell looted artifacts.” The looting of archaeological sites has always been a problem, but before the internet reduced the costs of showing, selling, and transporting the loot, archaeologists “could at least take some comfort that [the market in illegal artifacts] was largely confined to either high-end dealers on one end of the economic spectrum or rural flea markets on the other.” Thus, the new technology raised the specter the democratization of trafficking and, as a result, widespread looting. “This seemed a logical outcome of a system in which anyone could open up an eBay site and sell artifacts dug up by locals anywhere in the world. We feared that an unorganized but massive looting campaign was about to begin, with everything from potsherds to pieces of the Great Wall on the auction block for a few dollars.”

But instead, looting has diminished. Why? “The short answer is that many of the primary ‘producers’ of the objects have shifted from looting sites to faking antiquities.”

The economics of these transactions are quite simple. Because the eBay phenomenon has substantially reduced total costs by eliminating middlemen, brick-and-mortar stores, high-priced dealers, and other marginal expenses, the local eBayers and craftsmen can make more money cranking out cheap fakes than they can by spending days or weeks digging around looking for the real thing. It is true that many former and potential looters lack the skills to make their own artifacts. But the value of their illicit digging decreases every time someone buys a “genuine” Moche pot for $35, plus shipping and handling. In other words, because the low-end antiquities market has been flooded with fakes that people buy for a fraction of what a genuine object would cost, the value of the real artifacts has gone down as well, making old-fashioned looting less lucrative. The value of real antiquities is also impacted by the increased risk that the object for sale is a fake. The likelihood of reselling an authentic artifact for more money is diminished each year as more fakes are produced.

Another economic factor–risk of arrest–is also removed by eBay fakes, since you can’t be arrested for importing forgeries. Should you import what you think is an illegal antiquity but it turns out to be a fake, you run little risk of prosecution. The risk from lawsuits or criminal charges is effectively removed from the sale of antiquities when they are not really antiquities, a fact that reduces the cost and risk to both buyer and seller.

Transport cost is also dramatically reduced by commerce on the Web. One vendor on eBay advertises a Greek marble head dated to around 300 B.C. For this “rare artifact,” the shipping costs from Cyprus are a whopping $35 to anywhere in the United States. This is a far cry from the old days when a real illegal antiquity had to be couriered by a specialist who not only knew how to care for the piece, but how to doctor it up to avoid being arrested at customs. The same is true for objects from just about every well-known ancient culture in the world. Chinese, Bulgarian, Egyptian, Peruvian, and Mexican workshops are now producing fakes at a frenetic pace.

I have written previously of James Cuno’s Who Owns Antiquity? Museums and the Battle over our Ancient Heritage and the ongoing debate over the ownership of antiquities, particularly those antiquities housed far from their origins in the museums of the Western powers. Cuno has published another volume addressing the issues, Whose Culture? The Promise of Museums and the Debate Over Aniquities, a collection of essays by other art historians arguing in favor of housing these treasures in “Encyclopedic Museums” charged with the stewardship on behalf of all of humankind. Cuno would argue that, for example, artifacts produced by the Hittites belong no more to the Turks, in whose territory those artifacts are found, than they do to the entirety of humanity.

Hugh Eakin reviews both of Cuno’s books, discussing many of the issues I raised in my earlier post. But he also makes the important point that recent moves by U.S. museum directors make many of these difficult questions  far less important as a practical matter, despite the passions inevitable in the conflict between those who claim to be defending their national heritage against those who claim to stand up for the sanctity of art and its preservation.

Last year “the directors of the leading art museums of the United States agreed to limit their acquisitions of antiquities to works that have left their “country of probable modern discovery” before 1970, or that were exported legally after that date.” Eakins points out the importance of this agreement:

[I]n choosing 1970 as a cutoff date-the symbolic year of a UNESCO convention against the illicit circulation of material deemed by particular nations to be their cultural property-the museums have eliminated the possibility of acquiring most of the ancient art available for sale today. In effect, the museum directors have made it clear that, for American museums, collecting antiquities has largely come to an end; and with it the system of private collectors and dealers that has sustained it since the late nineteenth century. (emphasis added)

There are several implications to the end of large-scale collecting of antiquities by U.S. museums. First, many antiquities (most likely looted) are in the hands of wealthy private collectors, precisely the patrons on whom major museums depend for donations. “Now that museums have adopted rules that prevent the acquisition of many ancient objects still in private hands, they must find other ways of retaining that support.”

In addition, countries that have asserted ownership over any art found within their borders have to face the failures of those laws, which primarily have worked to drive the trade in looted antiquities even further underground.

And now we know too that the trade in antiquities is being squeezed by the trade in fakes.

Shepard Fairey, AP, and Dirty Hands

While here at Geniocity today I’m wishing my family had our own backyard wind turbine, Remix America asked me to weigh in as a guest blogger on the latest from the copyright and fair use dispute between Shepard Fairey and AP.

Germany: we’ll still return art stolen by the Nazis.

In connection with yesterday’s post regarding art looted by the Nazis, the Art Law Blog announces “that Germany has rejected Sir Norman Rosenthal’s call for an end to Nazi restitution cases.”

Is it time to get on from where we are and stop returning art stolen by the Nazis to the heirs of its original owners?

My friend and former student John Kelley — who now is Compliance Manager for Baystate Health but has had extensive experience in the art market — points me to an article in the German magazine Spiegel Online, which discusses British art connoisseur Sir Norman Rosenthal’s call for an end to the return of artworks looted by the Nazis to the heirs of the original owners. Although it was not until the late 1990′s that an international consensus was reached that artworks should be restored to the families of the people from whom the Nazis had stolen them, since then, according to the article, the idea has ” seemed undisputed”; after all, “[w]ho would challenge the legitimacy of the claims of the heirs of Nazi victims to their family property?”

But, as the article points out, Museums have at times disputed their obligation to return such works on the grounds that “they acquired the works in question legally and in good faith.” Individual owners have made the same argument. More recently, though, at least one prominent German member of the art world has argued that the practice of returning the art to the families of the original owners should stop because the families have been motivated by money, not by their love of the artworks:

The best-known opponent of restitution in Germany is Bernd Schultz, 67, the director of the Berlin auction house Villa Grisebach. In a speech at the Chancellery two years ago, Schultz accused the heirs of having a purely financial interest in looted art: “They say Holocaust, but they mean money.” He has never retracted the statement.

That argument seems on its face, to me, a bit disingenuous. The works that are fought over, of course, are works that are worth an enormous amount of money. If they weren’t, the issue would not be the huge one it’s been. Why shouldn’t a family who, but for the Nazis, would have had a work of art or the right to dispose of it as they had seen fit not have a better claim to it than someone who succeeded to the claim of someone who succeeded to the claim of the original thieves and murderers?

But Sir Norman’s argument is different: “[h]is motives include the desire for reconciliation” and the desire to settle issues that leave current owners who have no reason to doubt the legitimacy of their ownership rights subject to claims. It does indeed seem that at some point the sheer passage of time ought to settle one’s rights. But have we reached that point? And are we really at a point at which the vast majority of current owners have no reason to doubt the legitimacy of their rights?

The fact Sir Norman, who is himself the child of survivors and has no desire to downplay the importance of Nazi crimes, may well mean where getting closer to the day when, in his words, we must get on from where we are and “[w]e can no longer wipe history clean.”

Free Speech, Copyright, and Fair Use: We can express ourselves any way we want, even in ways that “steal” your own forms of expression, unless there’s a good reason to stop us.

Calling the right a creator has in his or her work intellectual property is misleading. It conveys the imipression thatthe work is property in the same way a television of a piece of land is property. You can fence in land. You can stop anyone from using your television. But intellectual property is not personal property the way things are and it is not real property the way land and the buildings attached to land are. Artists often think otherwise. In an interview on myartspace.com, for example, Steven Bogart, asked about his position on copyright, says simply, “Artists have a right to control their images and the right to be credited. ”

He might wish it so, but it isn’t so. Plainly, the lawsuits that result in findings that the use of copyrighted works are non-infringing fair use of copyrighted works all involve uses over which the artists have no control. If they had control, there’d be no lawsuits. Nor does fair use require crediting the artist whose work is used without consent.

There are many, many reasons underlying the fact U.S. law does not treat the product of creative expression like it treats personal or real property. Among them may be some comprehension that creativity is not the individual act of divine inspiration that Romantic poets believed and that in fact resulted in the rise of copyright as we know it.

But another, and very American reason U.S. law does not treat the products of creative expression the same ways it treats land holdings or the products of manufacturing is that the use of creative expression, authorized or not, is itself expression, and the freedom of expression is at the very core of what it means to be American. The fair use doctrine, which allows the use of copyrighted materials in certain circumstances without the consent of the owner of the copyright, is based squarely on the First Amendement’s guarantee of the freedom of expression.

Accordingly, in determining whether the unauthorized use of copyrighted work is non-infringing fair use, courts look at, among other things, whether the challenged use has a negative impact on the commercial market for the copyrighted work. While the commercial damage to the copyrighted work is a significant factor, Christina Bohannon, a law professor at the University of Iowa, believes that the importance of the right to free speech should require that it should be required in order for a court to find infringment. As she explains in the abstract to her paper, “Copyright Harm and First Amendment,” a showing of harm is required in every single other constitutional restriction on free speech and there is no justification for treating copyright differently:

Copyright law is a glaring and unjustified exception to the general rule that the government may not prohibit speech without a showing that the speech causes harm. While the First Amendment sometimes protects even harmful speech, it virtually never allows the prohibition of harmless speech. Yet, while other speech-burdening laws, such as defamation and right of publicity laws, require demonstrable evidence that the defendant’s speech causes actual harm, copyright law does not make harm a requirement of infringement. Although copyright law considers harm to the market for the copyrighted work as a factor in fair use analysis, harm is not always required and is so poorly defined that the concept has become circular. Moreover, the defendant ordinarily bears the burden of proof to show the absence of harm. As a result, courts often find liability for infringement (and therefore burden speech) where harm is purely speculative.

Potential explanations for copyright’s anomalous treatment are unpersuasive. Copying involves speech as well as conduct, and the fact that copyrights are in some sense property does not come close to justifying its aberrant treatment. Moreover, copyright’s role in encouraging creative expression does not obviate First Amendment concerns. Rather, it provides a way to reconcile copyright law and free speech. Drawing substantially from First Amendment cases holding that speech restrictions must be justified by a governmental interest, this article argues that the First Amendment requires real proof of harm to the copyright holder’s incentives in order to impose liability for copyright infringement. It also explores the types of harm that might arise in copyright infringement cases and considers whether the First Amendment permits recognition of these types of harm. The article concludes that although demonstrable market harm is cognizable under First Amendment principles, recognition of harm to the reputation of copyrighted works, the author’s right not to speak or associate, or the copyright holder’s privacy interests is generally not compatible with the values of free speech.

Of course, I could say in response to Professor Bohannon the same thing I say to those who say artists do have the right to control their work and to attribution for any use of their work. You may wish it were so, and there may even be reasons to believe your position merits my sympathy, but that assertion isn’t the law and doesn’t make it the law.

Buying art? Buyer beware!

I teach Contracts.  One funny thing about the topic is that the “law” that applies to any given transaction is the contract itself.  In other words, if the words of the agreement (which can be written and/or oral) determine the outcome of a given situation, those words almost always control.  There are very few “immutable” contract rules — that is, rules that cannot be changed by agreement of the parties to the contract.

Thus, much of teaching contract law concerns the interpretation of contracts and “default” rules — that is, rules that apply to situations the parties have not agreed about.  Perhaps that is why I so often like using cases involving the sale of art in my classes — they so often require the understanding of the default rules.  As Joshua Kaufman, a lawyer in D.C., recently pointed out in a talk at the Smithsonian Museum, art transactions typically involve the least paperwork of any sort of commercial transaction:

“The art business is unique,” Kaufman said, “in terms of paperwork and due diligence. It has the least amount of paper of any commercial transaction.” That means you go into a gallery, buy what you like, and the dealer hands you a receipt for your purchase. Perhaps you even get a little paper describing the provenance. But buyer beware! The art market is filled with complexities, especially when it comes to auction houses.

Sorry, but your political enemies can use your copyrighted works (as long as their use is fair use).

Many people believe that an artist’s rights in her work include the right to prevent the use of the work on behalf of causes and beliefs she does not believe in. That may be true in Europe; it is not true in the U.S., provided that the use the artist is trying to deny does not exploit the markets created by the original work. In other words, politicians with whom singers disagree may well have the right to use excerpts from those singers’ songs. And the producers of movies that advance views with which the singers take strong exception may not have any worry as long as they are using the songs they are using aren’t being used merely to attract an audience to the movie by use of the song.

Times Higher Education explains the difference between European and Anglo-American law:

The later European view of copyright regarded a published work as the author’s offspring as much as his property, endowing him with inalienable moral as well as tradeable commercial rights. The Anglo-American tradition in copyright, which is based firmly in the notion of property and income, resisted this concept.

Thus, in June, a federal court in New York City denied Yoko Ono’s request for an injunction against further showing and distribution of the movie Expelled, which, as I have previously written, criticizes evolution, promotes the teaching of intelligent design, and, in the process, uses 15 seconds of John Lennon’s song “Imagine.”

As I wrote when Ono’s lawsuit was first filed, If the filmmakers had tried merely “to capitalize on the film as soundtrack material that would be attractive to an audience would likely not be fair use, but, if, as seems likely, the song is quoted to criticize its atheism, that use would likely constitute fair use, regardless of whether Ono finds the users’ message objectionable.” The court, apparently, thought similar things (citations and footnotes omitted; hyperlink added):

Defendants’ use is transformative because the movie incorporates an excerpt of Imagine for purposes of criticism and commentary. The filmmakers selected two lines of the song that they believe envision a world without religion: “Nothing to kill or die for/ And no religion too.” (“Imagine” lyrics) As one of the producers of “Expelled” explains, the filmmakers paired these lyrics and the accompanying music to a sequence of images that “provide a layered criticism and commentary of the song.” The Cold War-era images of marching soldiers, followed by the image of Stalin, express the filmmakers’ view that the song’s secular utopian vision “cannot be maintained without realization in a politicized form” and that the form it will ultimately take is dictatorship. The movie thus uses the excerpt of “Imagine” to criticize what the filmmakers see as the naïveté of John Lennon’s views. The excerpt’s location within the movie supports defendants’ assertions. It appears immediately after several scenes of speakers criticizing the role of religion in public life. In his voiceover, Ben Stein then connects these sentiments to the song by stating that they are merely “a page out of John Lennon’s songbook.” In defendants’ view, “Imagine” is a secular anthem caught in a loop of history recycling the same arguments from years past through to the present. We remind our audience that the ideas they just heard expressed from modern interviews and clips that religion is bad are not and have been tried before with disastrous results.”  The filmmakers “purposefully positioned the clip . . . between interviews of those who suggest that the world would be better off without religion and an interview suggesting that religion’s commitment to transcendental values place limits on human behavior. . . . mak[ing] the point that societies that permit Darwinism to trump all other authorities, including religion, pose a greater threat to human values than religious belief.”

Defendants’ use of “Imagine” is similar to the use at issue in a recent decision of the United States Court of Appeals for the Second Circuit in which fair use was found, Blanch v. Koons. There, the visual artist Jeff Koons copied photographer Andrea Blanch’s photograph from a fashion magazine without permission and incorporated a portion of it into one of his paintings.  . . . As in Blanch, defendants here use a portion of “Imagine” as “fodder” for social commentary, altering it to further their distinct purpose. Just as Koons placed a portion of Blanch’s photograph against a new background, defendants here play the excerpt of the song over carefully selected archival footage that implicitly comments on the song’s lyrics. They also pair the excerpt of the song with the views of contemporary defenders of the theory of evolution and juxtapose it with an interview regarding the importance of transcendental values in public life. Plaintiffs contend that defendants’ use of “Imagine” is not transformative because defendants did not alter the song, but simply “cut and paste[d]” it into “Expelled.” As the foregoing discussion illustrates, however, this argument draws the transformative use inquiry too narrowly. To be transformative, it is not necessary that defendants alter the music or lyrics of the song. Indeed, defendants assert that the recognizability of “Imagine” is important to their use of it.  Defendants’ use is nonetheless transformative because they put the song to a different purpose, selected an excerpt containing the ideas they wished to critique, paired the music and lyrics with images that contrast with the song’s utopian expression, and placed the excerpt in the context of a debate regarding the role of religion in public life. Plaintiffs also contend that defendants’ use of “Imagine” is not transformative because it was unnecessary to use it in order to further the purposes defendants have articulated.

Determining whether a use is transformative, however, does not require courts to to decide whether it was strictly necessary that it be used. In Blanch, although certainly Koons did not need to use Blanch’s copyrighted photo, as opposed to some other image of a woman’s feet, in his painting, the Second Circuit did not suggest that this lack of necessity weighed against a finding of fair use. Similarly, in Bill Graham Archives, the Second Circuit found a transformative use in the defendants’ unauthorized inclusion of several of the plaintiff’s images-principally concert photos-in a coffee-table book about the musical group the Grateful Dead.  Although the defendants manifestly could have proceeded without the plaintiff’s , which constituted only a small part of the book, this posed no obstacle to a finding of fair use.

As I said, I think the use of “Imagine” by the filmmakers without permission is legitimate fair use. Nonetheless, Lennon, and “Imagine” in particular, are being misrepresented. Lennon’s song imagines a world unpolluted by religious sectarianism, not exactly a radical view in light of the issues of the day. But that’s not a view many can find tolerable, even in the U.S. of 2008, and they’ll resort to misrepresentation to support their intolerance.  One day after the decision against Ono, the Wall Street Journal ran a story with the headline The Case Against John Lennon.  The quote that highlights the column?

Nothing to live or die for — what a nightmare.

Mike Thomas points out that the line is “Nothing to kill or die for” and asks:

What is going on here? Why is the WSJ promoting a column with such a provacative title and using a misquote to mislead readers into a negative reaction against John Lennon? The column itself is a mess. It is poorly written, jumbled and fails to adequately explain how John Lennon or his song “Imagine” has anything to do with what the column appears to be about. Here is the pertinent section that mentions Lennon:

“Mr. Sharansky has a new book, titled Defending Identity. It would be equally accurate to call it The Case Against John Lennon. Or, more specifically, the case against ‘Imagine,’ Lennon’s anthem to a world with ‘no countries . . . nothing to kill or die for/And no religion too.’ For Mr. Sharansky, a nine-year resident of the Perm 35 prison camp, that’s a vision that smacks too much of the professed beliefs of the ex-Beatle’s near namesake, Vladimir Ilyich.’

What the hell? Does he think he’s being clever or something? Lennon sounds like Lenin. Get it? So obviously they must be related or they must think alike or something right? Nevermind that “Lenin” was actually an alias for Vladimir Illich Ulyanov, while the surname Lennon dates back hundreds of years to old Ireland.

No, they sound alike so there must be a connection. Right? Kind of like how Obama sounds like Osama so they must be related too. Yeah. That’s the level of reasoning that the column sinks to.

Absolutely pathetic.

And of course he never goes back and explains how V.I. Lenin’s brutal and dictatorial ways have any similarity or correlation to Lennon’s ode to world peace. But fortunately for the cretins who run the WSJ editorial pages, John Lennon is dead and can’t defend his classic work against their asinine columnist’s offhanded smear.

Here’s Ken Miller, a biologist from my alma mater speaking at Case Western Reserve University, from which I am currently on leave, speaking on intellligent design, evolution, and religion:

Living the life of an artist or stealing? Coldplay faces the question once again

The Chicago Tribune reports: “A day after hauling in seven Grammy nominations, the members of Coldplay should’ve been celebrating. Instead they were served with a copyright infringement lawsuit Thursday that claims they ripped off guitarist Joe Satriani to write one of their biggest hits, ‘Viva La Vida.’”

And a comparison of the songs sure makes Satriani’s allegations credible:

There must be something about that song.  A band called Creaky Boards earlier this year accused Coldplay of stealing Viva La Vida from them:

As TechDirt subsequently reported, however, the leader of Creaky Boards later “not only retracted his accusation, but suggested that perhaps both bands were actually “inspired” by the “Fairy Theme” in the Legend of Zelda.”  TechDirt also made this, very important point:

. . . The thing is, part of the point we keep trying to make around here is that, for the most part, that’s true of just about everyone. It’s the overly aggressive use of copyright law that prevents that sort of “goodness” from showing up. Oh, and it’s also worth mentioning, that this little story has definitely increased the profile of The Creaky Boards — proving one of the points we recently made about plagiarism. Even if the plagiarist is “bigger” than you, the original creator can use that to their advantage aswell.

Plagiarism, even “unconsciously” done, has gotten musicians in trouble. In Three Boys Music v. Michael Bolton, a federal court of appeals upheld a jury award of $5.4 million against Michael Bolton and Sony (the record company associated with him) for “unconsciously” plagiarizing the Isley Brothers’ “Love is a Wonderful Thing.” As noted by the Columbia Law Library Music Plagiarism Project, the case is comparable to Bright Tunes Music v. Harrisongs Music, in which the court held that in his hit song “My Sweet Lord” George Harrison had “unconsciously misappropriated the musical essence of ‘He’s So Fine.’”

The decision against George Harrison has been heavily criticized.  It is important to note, though, that “plagiarism” involves issues entirely different than the ones (contentious themselves) involving sampling. Most importantly, it involves drawing those impossible lines between artistic influence, legitimate appropriation, and acts that are considered the equivalent of theft. Bob Dylan is without question one of the most important artists of our time, but, as John Pareles has written in “Plagiarism in Dylan, or a Cultural Collage?”

The absolutely original artist is an extremely rare and possibly imaginary creature, living in some isolated habitat where no previous works or traditions have left any impression. Like virtually every artist, Mr. Dylan carries on a continuing conversation with the past. He’s reacting to all that culture and history offer, not pretending they don’t exist. Admiration and iconoclasm, argument and extension, emulation and mockery – that’s how individual artists and the arts themselves evolve. It’s a process that is neatly summed up in Mr. Dylan’s album title ” `Love and Theft,’ ” which itself is a quotation from a book on minstrelsy by Eric Lott.

Hip-hop, ever in the vanguard, ran into problems in the mid-1980′s when the technique of sampling – copying and adapting a riff, a beat and sometimes a hook or a whole chorus to build a new track – was challenged by copyright holders demanding payment even for snippets. Although sampling was just a technological extension of the age-old process of learning through imitation, producers who use samples now pay up instead of trying to set precedents for fair use.

Check out the following.  Led Zeppelin was covering Kansas Joe McCoy and Memphis Minnie, but Dylan claims the authorship of and the copyright in his song.  Of course, the copyright in the first song had expired, so Dylan’s song is not an legally infringes nothing:

I have made it a point on this blog to point out that historically many “Writers, like other artisans, considered their task to lie in the reworking of traditional materials according to principles and techniques preserved and handed down to them in rhetoric and poetics – the collective wisdom of their craft.”  In short, there is nothing unusual about Dylan’s compositional methods.  That’s not to say that Coldplay isn’t in legal trouble as a result of Satriani’s lawsuit.  It’s to say that we’re in a cultural moment in which people are ready to find theft and “plagiarism” where there may not be any.  Is Coldplay making money that really belongs to Satriani?  Would Satriani’s song have gotten a greater audience had Coldplay’s never been released?

ADDENDUM, from Wired:

Joe Satriani accused Coldplay of plagiarism for lifting elements of his song “If I Could Fly” for its hit song “Viva La Vida” earlier this year.

Now, videos depicting  similarities between the songs are disappearing from YouTube courtesy of Coldplay’s label, EMI, which claims the videos infringe on its copyright. We found one that’s still online, which you can view to the right, for the time being.

You can still hear the Coldplay song elsewhere on YouTube, including in user-generated videos, so it seems likely that EMI is removing the comparison videos due to embarrassment on the part of Coldplay and/or legal ramifications for the ongoing Satriani suit, as Music Industry Blog posits. One imagines that a judge or jury would merely need to see one of these videos to conclude that there’s a striking similarity between the songs… probably too striking.

It’s conceivable that the Chris Martin lifted the beat, chords and melody from Satriani subconsciously. It’s not uncommon for musicians to hear something and regurgitate it later without realizing it. Coldplay has been accused of stealing someone’s music before — for the same song, no less. And another YouTube video has cast doubt on these claims by showing that all three bands could owe a debt to some guy called Günther.

We’re not so interested in the spat between Satriani and Martin; plagiarism accusations abound in the music world. What’s interesting here is that EMI appears to be using copyright as a way to remove one version of a Coldplay song while allowing other versions to remain online. It’s a useful reminder of the ways in which copyright law can be used for purposes other than thwarting the infringement of copyright. In this case, it’s a somewhat useful tool for downplaying plagiarism accusations directed at one of the world’s top acts.

Many labels have deals with YouTube that allow their works to appear in user-generated videos, because doing so can net them more of YouTube’s ad revenue (artists and labels sometimes can get paid when someone synchs their music to user-created video on YouTube). Apparently, these deals involve the ability to pull certain objectionable usages for reasons other than copyright, although the message that appears on YouTube — “This video is no longer available due to a copyright claim by EMI Music” — appears a bit disingenuous. If copyright were the issue, a YouTube search for “coldplay viva la vida” wouldn’t return 32,700 results.

Could Thomas Kinkade assert a property right over his “style”?

Frank Pasquale writes that the painter Thomas Kinkade may be positioning himself to be able to assert copyright or trademark claims over people who allegedly appropriate his style. There are several problem that would face Kinkade. First, it’s difficult to protect a “style” rather than a “work.” Second, Kinkade’s style has been described as something less than an original one: Kenneth Baker, critic for the San Francisco Chronicle, barely conceals his contempt: “‘He has a vocabulary, as most painters do. And it’s a vocabulary of formulas, unfortunately. And he shuffles the deck every so often. Lighthouse, cottage, sea, ships, sky, so on, so on. Little bit of waves, so on, rocks. And you end up with this.’” Kinkade’s own instructions on how to make a film in his style may not belie this criticism that his “style” is little more than a simple formula:

Whenever possible utilize sunset, sunrise, rainy days, mistiness — any transitory effect of nature that bespeaks luminous coloration or a sense of softness.

Emphasize gentle camera moves, slow dissolves, and still camera shots. A sense of gradual pacing. Even quick cut-away shots can slightly dissolve.

[Make] references to my anniversary date, the number 52, the number 82, and the number 5282 (for fun, notice how many times this appears in my major published works). Hidden N’s throughout — preferably thirty N’s, commemorating one N for each year since the events happened.

There’s no question, though, that a court would hold that copying a Kinkaid painting whole would constitute copyright infringement, (Doing so in small, electronic form for purposes of commentary and criticism, however, would constitute non-infringing fair use.) Even maps, as Pasquale points out, are protected by copyright against wholescale copying, even if the underlying information they compile is entirely factual. That’s why mapmakers used to put fictional locations in obscure places on their maps — people who copied such maps whole would be revealed by the use of the fictional place. But can a “style” be protected? That would be a difficult position to maintain, especially given the legitimate influence any successful artist will necessarily have. Nevertheless, Pasquale concludes, “It’s a tricky legal question as to what critical mass of stylistic detail in a Kinkade painting is enough to warrant copyright protection when another is inspired/corrupted by it. Or what remarkable idiosyncrasy should be trademarkable.”

Should museums return antiquities to their countries of origin?

The headline on Stephen Litt’s piece in yesterday’s Cleveland Plain Dealer, “Analysis: Museums often pay the price for looted antiquities,” is misleading.  As Litt explains, it is more the exception than the rule that museums return antiquities to the countries from which those pieces have been looted.  Why?  “[I]f an object was looted, there will be no record of its existence. Many museums, including Cleveland’s, have collected and shown ancient works whose exact origins remain unknown.”

Nonetheless, the Cleveland Museum of Art recently agreed to send 14 objects back to Italy, where they’d been illegally dug up, cleaned, and restored before being put up for sale on a market that eventually lands them in museums around the world.  Litt explains that this agreement is part of a new wave of scrutiny museums are exercising over their collections.  Nonetheless, many consider the museums complicit in activities that are both illegal and immoral.  Cases such as the one involving the Cleveland Museum are the easy ones because there was clear proof the pieces were looted, not just an absence of documentation about where the pieces came from:

To experts such as Ricardo Elia, a Boston University archaeology professor and a close observer of the antiquities trade, such lack of documentation is proof that an object was looted. He estimated that as much as 90 percent of the antiquities purchased in recent decades by American museums are the product of looting.

But Timothy Rub, director of the Cleveland Museum of Art, said that lack of exculpatory evidence about an artwork’s origins doesn’t prove a wrongdoing was committed — or that the work should be relinquished on demand.

“If I’ve inherited as director custody of an object that doesn’t have a provenance before a certain date and somebody says, ‘It’s ours, give it back,’ that’s a pretty tough thing,” he said. “I’ve got to ask you to make a case.”

The difficulty of arguing such cases makes it unlikely that the recent wave of repatriations to Italy will lead to a vast purge of artworks from American museums.

Instead, if the negotiations show anything, it’s that museums, including Cleveland’s, are willing to part with antiquities only when foreign governments provide persuasive evidence connecting the works to recent criminal wrongdoing.

That’s a difficult threshold to reach, and it’s rare. The art bust in Switzerland, for example, documented the precise trail taken by specific objects from the looters who dug them up to the middlemen who cleaned and restored them, provided them with phony ownership histories and put them on the market.

“You may not see another case this dramatic for 20 or 30 years,” Elia said. “They found bags of Polaroid photographs and information from Hecht’s diaries.”

As I wrote in September in connection with the arguments going on over whether pieces like the Elgin Marbles and the Rosetta Stone should be returned to Greece and Egypt, Litt points out that antiquities are big, and illegal business, dominated by organized crime.

If you scam a villain, maybe you’re a hero.

Han van Meegeren is known as the boldest modern forger of Old Masters. In the current issue of the New Yorker, Peter Schjeldal reviews two books about van Meegeren. Among other points, Schjeldal points out that art forgeries are far more expressive of the times in which they are created than of the times of the artists they imitate: “The art historian Max Friedländer . . . said, ‘Forgeries must be served hot,’ and “promulgated a forty-year rule—four decades or so being how long it takes for the modern nuances of a forgery to date themselves as clichés of the period in which they were painted.”

One of the most remarkable things about van Meergeren is that among his customers for forged Vermeers (van Meergeren’s specialty) was Herman Göring. As Schjeldal explains:

This small point is notable because, in time, the fact that van Meegeren had scammed Göring helped him not only to evade charges of collaboration but to become a folk hero. Lopez demonstrates how evidence of the painter’s coziness with the Occupation regime got buried by the single question of whether he had sold Göring a patrimonial cynosure (potentially a capital offense) or a worthless fake. Early in 1947, a newspaper poll found van Meegeren to be the second most popular man in the Netherlands, after the newly elected Prime Minister.

I can’t help but take this opportunity to plug one of my favorite all-time novels, The Recognitions, by William Gaddis. As explained on the Gaddis Annotations website (a project with which I have been lucky enough to have had an insignificant role), Gaddis’s novel can be “summarized” as follows:

In a carefully wrought and densely-woven series of plots involving upwards of fifty characters across three continents, we follow the adventures of Wyatt Gwyon, son of a clergyman who rejects the ministry in favor of the call of the artist. His quest is to make sense of contemporary reality, to find significance and some form of order in the world. Through the pursuit of art he hopes to find truth. His initial “failure” as an artist leads him not to copy but to paint in the style of the past masters, those who had found in their own time and in their own style the kind of order and beauty for which Wyatt is looking. His talent for forgery is exploited by a group of unscrupulous art critics and businessmen who hope to profit by passing his works off as original old masters. As the novel develops, these art forgeries become a profound metaphor for all kinds of other frauds, counterfeits and fakery: the aesthetic, scientific, religious, sexual and personal. Towards the end, Wyatt wrenches something authentic from what Eliot called “the immense panorama of futility and anarchy which is contemporary history.” The nature of his revelation, however is highly ambiguous and is hedged about by images of madness and hallucination, which disturbs simple distinctions between real and authentic, between faiths and fakes.

Foreign law, the Federalist Society’s view that the U.S. is better than the rest of the world, and censhorship

I now have a bit better idea of where the opposition to citation to foreign law (discussed in my last two posts) comes from.  It’s the belief that the U.S. is so exceptional there’s no point in looking to the “socialist constitutional courts of Europe.”  That’s what Steven Calabresi, a law professor at Northwestern and co-founder of the Federalist Society writes in the September 20 New York Times:

Those of us concerned about citation of foreign law — your article quotes me as one of them — believe in something called American exceptionalism, which holds that the United States is a beacon of liberty, democracy and equality of opportunity to the rest of the world. We think that it is a good thing that constitutional liberties like freedom of speech and of the press are protected more vigorously in the United States than in any foreign country. . . .

The country that saved Europe from tyranny and destruction in the 20th century and that is now saving it again from the threat of terrorist extremism and Russian tyranny needs no lessons from the socialist constitutional courts of Europe on what liberty consists of.

I think that considering the U.S. so exceptional it has no need to even consider the views of foreign courts xenophobic is, after all, not off base.  The first Chief Justice of the United States Supreme Court, John Marshall, himself stated that the opinions of British courts “are entitled to that respect which is due to the opinions of wise men who have maturely studied the subject they decide.”

Merely dismissing the decisions Western European countries have reached on profound legal and moral issues (including the execution of juveniles) as the decisions of “socialists” unworthy of even being considered by us “exceptional Americans” is not argument — it’s name calling and egocentricity.  I don’t see what the difference is between law review articles, British courts, or any other source that might be considered the opinion of  wise people who have maturely studied the subject they are opining on.  Foreign court decisions may be politicized, but of course U.S. court decisions, laws, and regulations are exceedingly political too: it’s all politics, whether in the foreign courts, the law reviews, or the U.S. Supreme Court.  By that I don’t mean to be a cynic or a hard core Legal Realist — rather, I mean it’s all argument.  If one is persuaded that the fact the U.S. was the only western industrialized nation that permitted the execution of juveniles made doing so “cruel and unusual,” then why should one not be permitted to consider that fact?  Justice O’Connor explained why she wasn’t convinced by that fact, but she explained why with counter-argument, not by suggesting the argument was illegitimate.

Clarence Thomas, Antonin Scalia, Samuel Alito, and John Roberts all are or have been members of the Federalist Society, of which Professor Calabresi (a former student of Scalia) was a co-founder.  I presume, therefore, that Calabresi speaks for them when he states that the U.S. is just too exceptional (and other countries too “socialist”) to even allow the courts to look at other countries’ laws in determining what U.S. law is or should be.

It is their views I consider un-American.  Their views suggest the courts should be censored.  It is one thing, as I’ve written, to not be persuaded by the views of other countries.  It is censorship, however, to suggest judges cannot even consider those views.  Who better represents the source of American Jurisprudence than John Marshall?  Are no jurists from other countries wise men who have maturely studied the subjects they decide?  And if we forbid reference to foreign law, why not forbid reference to law review articles, which, after all, generally advance the idiosyncratic views of their authors and rarely have any influence whatsoever on an actual lawmaking?

The sooner we get over “American Exceptionalism” and realize we learn more and make better decisions the more we consider the opinions of other wise men who have studied the same subjects we are studying, the sooner we’ll be better off.

But one more word on the Federalist Society.  If you pay attention, its members spout an unerring common line on issues they’ve identified as important.  They sometimes remind me in their methods of organization of Bolsheviks, who went out into the world with their marching orders to spread the Soviet Communist Party’s word.  Professor Calabresi in his letter to September 20th’s Times makes clear the Federalist Society leadership’s view on whether U.S. Courts should even be allowed to refer to foreign law.  Is it any wonder that in the Times article provoking Calabresi’s letter quoted Scalia, Roberts, and Alito in ways entirely consistent with Calabresi’s and the Federalist Society’s views?

Where should art be, and how does it often get where it is?

Ingrid D. Rowland in the New Republic writes a terrific review and critique of Who Owns Antiquity?: Museums and the Battle over Our Ancient Heritage, by James Cuno. Cuno’s publisher describes the book like this:

Whether antiquities should be returned to the countries where they were found is one of the most urgent and controversial issues in the art world today, and it has pitted museums, private collectors, and dealers against source countries, archaeologists, and academics. Maintaining that the acquisition of undocumented antiquities by museums encourages the looting of archaeological sites, countries such as Italy, Greece, Egypt, Turkey, and China have claimed ancient artifacts as state property, called for their return from museums around the world, and passed laws against their future export. But in Who Owns Antiquity?, one of the world’s leading museum directors vigorously challenges this nationalistic position, arguing that it is damaging and often disingenuous. . . . The first extended defense of the side of museums in the struggle over antiquities, Who Owns Antiquity? is sure to be as important as it is controversial.

As Rowland explains in her review, “Noting that modern laws about the import and export of antiquities did not exist when Napoleonic troops discovered the Rosetta Stone, Cuno suggests that under modern conditions British soldiers might not have been able to . . . spirit it away to the British Museum, with the result that Jean-François Champillon might not have been able to decipher Egyptian hieroglyphic script. The point of this exercise . . . is to demonstrate a larger point, which is that antiquities laws as currently drawn impoverish rather than enrich the global level of culture.” In addition, Cuno argues that nations who retain and reclaim their archaeological heritage are advancing harmful nationalistic agendas, not the preservation of cultural artifacts with global relevance:

The emotional, “national cultural identity” card played by some proponents of nationalist retentionist cultural property laws is really a strategic, political card. National museums are important instruments in the formation of nationalist narratives; they are used to tell the story of a nation’s past and confirm its present importance. That may be true of national museums, but it is not true of encyclopedic museums, those whose collections comprise representative examples of the world’s artistic legacy.

Rowland will have none of it. First, she points out that the “encyclopedic museums” whose interests Cuno is advancing are themselves the products of nationalism. As she puts it, “[t]he founders of the Metropolitan Museum of Art, the Boston Museum of Fine Arts, and the Art Institute of Chicago [where Cuno is museum director] imperiously took it for granted that those cities belonged to a United States of America that stood as beacon to the world–the land of the free and the home of the brave. It is either naive or tendentious to argue that those institutions were founded instead to serve some great multicultural vision of human fraternity.” She also goes to some length to counter Cuno’s criticisms of Italy, the source of so much of the looted art spread through museums throughout empires past and present.

Rowland also points out that, while the “encyclopedic museums” might have preserved some of the antiquities they obtained over the years, they have also taken away a lot:

It is a different thing to see the ancient statue called the Spinario right there in Rome where Pope Sixtus put it in 1471, where many of the great artists of the Renaissance drew it, where Winckelmann and Goethe saw it, than it is to see an ancient bronze in the Met. It is one thing to stand in the theatre of Ephesus, right there where the riot broke out among the silversmiths who made votive trinkets for the Temple of Artemis, who feared the impact that a wandering preacher named Paul of Tarsus might have on their business–and it is quite another matter to see a column from that temple in the British Museum. The Elgin Marbles have been spared the foul air of modern Athens, but they were not spared a good British scrub down with soap and water when they arrived in the early nineteenth century, and neither fate has been kind to the polished surface of the Parthenon’s sculpture.

With respect to moveable antiquities, Rowland emphasizes that their removal from their geographic origins robs their audience of an appreciation for their true significance. We see Greek pottery in the Metropolitan Museum, for example, without realizing it came from Italy and reflects the market demands of the ancient Etruscan culture that imported it as much as it does the culture of the Greek exporters. She also wonders why Cuno focuses on the value of one donor’s contributions to the Metropolitan Museum of Art while ignoring that donor’s landmark agreements to return some of her collection to Italy. Rowland, in short, reads Cuno’s book “as a brief for outright possession–that we own antiquity as much as the Italians, Greeks, Chinese, and Iraqis do, and therefore we have an equal right to their archaeological wealth–rather than as some abstract idea of respect for a shared human cultural tradition.”

Rowland also has her own problems with the system that passes antiquities to “encyclopedic museums,” including the fact it is dominated by organized crime.  She also questions whether nationalism is such a bad thing. It has allowed Italy to modernize and become the home of the best experts on antiquities from the Italian peninsula. And with respect to Egypt, she writes, with some sharpness:

[A] growing number of modern Egyptians are no longer illiterate fellahin. The new Library of Alexandria stands across the street from the University of Alexandria, with its 140,000 students; its alumni include the Nobel laureate Ahmed Zewail, now at Caltech and one of the most imaginative chemists working today. Zahi Hawass may be a baron in his position as head of Egypt’s Supreme Council of Antiquities, but he serves notice to the barons who dwell in the world’s encyclopedic museums that they must now take the bright, eager young people of Egypt into account.

Rowland acknowledges that Cuno represents a new generation of museum directors who improve significantly on their predecessors’ arrogant destructiveness. But she begs for squarely addressing the problems posed by “the hubris, greed, and lust for possession that beautiful things have always exerted on our own breed of gregarious primate.”

She’s certainly right about the greed and lust for possession of beautiful things. The London TimesOnline reports that”[a]rt theft is big business. The FBI estimates that it is a global industry worth $6 billion (£3.3 billion) a year. In France it is reckoned the fourth most lucrative criminal activity.” Reviewing Stolen: The Gallery of Missing Masterpieces, by Jonathan Webb and Julian Radcliffe, Rachel Campbell-Johnston explains:

The art world is a rarefied place. Discretion is prized. Dealers prefer not to discuss client lists. Collectors can be very secretive. On top of that, art works are usually whisked out of the country a few days after being stolen. Often they will not emerge again for years. When they do they may well be in the hands of a bona fide person. . . .

Art theft, as Stolen makes clear, is frequently connected with the crimes with which it competes for police attention. . . . Criminals in Dublin, for instance, pulling off a spectacular heist in a country estate, corralled Rubens, Vermeer and Goya into providing venture capital for a drug-dealing ring. In Buenos Aires at the time of the Falklands conflict, Cézanne helped a brutal dictatorship to pull off an illicit arms deal.

To get a sense of what’s been lost, you can read the Guardian’s descriptions of the greatest art you’ll never see.

Buying art and then refusing to pay

The New York Times on Friday ran a story explaining that “Sotheby’s has filed a $16.8 million lawsuit against the art collector and Internet entrepreneur Halsey Minor for refusing to pay the auction house for three paintings he bought in May” (including “The Peaceable Kingdom and the Leopard of Serenity” by Edward Hicks (left)). According to the story, “Diana Phillips, a spokeswoman for Sotheby’s, said that Mr. Minor had told the auction house that he had not paid for the works because hewas owed money by other parties and could not afford to.” Halsey strenuously objected to the suggestion he couldn’t afford the paintings, explaining instead that he refused to go through with the sale because he didn’t know at the time of the sale that Sotheby’s had an interest in maximizing the amount he would bid because the paintings’ seller owed $11.5 million to Sotheby’s. According to the Art Law Blog, Mr. Halsey explained:

Did they have an economic interest in the painting they were showing me privately and touting, or did they not? Who knows, I still may have paid $9.6 mm for the painting, but at least I would have been able to take their scholarship/marketing in context and with a grain of salt.

When a broker shows you a home and sells you on its merits and you find out later the broker owned the home, the law has been broken and the process has been tainted. I am going to bet that when they have to finally cough up the documents and stop spouting nonsense they will have served in the dual role of auctioneer and secret undisclosed owner. And all else will have been long forgotten.

There are several problems with Mr. Halsey’s position. The first is that generally, unless a broker (of art or real estate) is acting as an agent of the buyer, the broker owes no duties to the buyer. In other words, the broker does not have any duty to explain its financial interest in the transaction. In fact, generally when you buy from a broker you know the broker is acting on behalf of the seller and that the broker’s fee will be depend on how high the selling price is. In short, a broker acting on behalf of a seller very often, if not almost always, has an interest in maximizing the sale price. He’s a salesman, and we know how to take the words of a salesman.  Sotheby’s may be high end, but the truth of the matter is that it’s full of salesman whose products happen to be very expensive art.

In addition, according to the Times story, the sale of the paintings by Sotheby’s attracted a lot of attention at the time because of the financial problems  of the paintings’ owner. It doesn’t stretch the imagination to suppose, therefore, that Mr. Halsey knew at the time of the sale that Sotheby’s had an even greater interest in the painting than a broker’s fee based on a percentage of the sale price.

Of course, whether he has the money or not Mr. Halsey may be trying to back out of a deal for an asset that, like most other assets these days, isn’t what it was worth at the height of the market (not that long ago, but a time that is rapidly fading from memory).