Good Faith and the Law

 

Good Faith is of upmost importance in many areas of the legal field, and Art Law is certainly no exception. Good faith, in essential, states that a buyer, contractor, etc. in their dealings with another, did not have any knowledge that the object at the center of their dealings actually belonged to someone else, nor should they have known.  Good faith comes up often in the Art Law realm due to the number of stolen paintings and cultural goods that rotate through the market, which is why an artist, collector, curator etc. must do their due diligence to make sure they are in good faith when they deal with others in the art market.

Such is the case of Rue Saint-Honoré, dans l’après-midi, a painting by renowned artist Camille Pissarro that the lower court deemed as stolen due to a 1939 sale being termed a “forcible taking.”

Backstory: The painting, of a street scene in Paris, was owned by Lilly Cassirer, a German Jew, in 1939. That same year, in order to leave Germany and flee German forces, Cassirer was forced to sell the painting for $360.  It as this selling that the court deemed to be a forcible taking. The painting was then sold at a Nazi-government sponsored auction and passed through several hands before being purchased in the 1970’s by Baron Hans Heinrich Thyssen-Bornemisza.  In the 90’s it was once again sold, this time to a museum in Spain to be exhibited to the public. Regardless of the deeming of the 1939 selling as illegal the Court still awarded ownership to the museum by finding that the museum was the right full owner, dismissed.

But all hope is not lost for the plaintiffs, David and Ava Cassirer the great-grandchildren of the artist. Because the painting was located in Spain and was purchased by the Spanish government a significant contacts test lead the appellate court to determine that Spanish law would be applied in the case, selling the conflicts of law issue in the case. Under the Spanish law if Thyssen-Bornemisza was aware that the painting was stolen when acquired in 1993, Thyssen-Bornemisza could very well be an accomplice to theft.  Which is why the appellate court is now giving the Plaintiff’s the chance to defeat the defendant’s assertion of good faith.

The plaintiffs offer several pieces of evidence to dispute the defendant’s assertion of good faith:

• the paintings were strongly favored by Jewish art collectors and curators
  • Jewish art collectors tend to favor Nazi looted art
• paintings the Jewish artist in Europe during this time period were commonly looted by Nazis
• the provenance of the painting was incomplete
• at the time the museum purchased the Paris-inspired painting public records were available that identified the owner as Cassirer’s great-grandmother, the artist of the work
• only $275,000 was paid for the piece, half of its value at the time. Knowledge of a below-market price can be strong evidence against a good faith assertion.

For now we will have to wait to see how the court decides the latest issue in this saga. But for now, how do you be positive you are in good faith when purchasing a piece of art?Several databases can be used to assure collectors that their collections are legal, some are:

• The FBI’s National Stolen Art File
• Art Loss Register 
• INTERPOL

European Council Proposes Revisions and Updates to Rules Regarding the Importation of Cultural Goods

Photo: Reuters/Nour Fourat

For years terrorism has instilled fear in people around the world.  But, what many people don’t know, is that terrorist groups, including the now prominent ISIS and recently before, Al-Qaeda, destroy, loot, and sell art and cultural property in order to fund their attacks and operations. For example, in 1999 one of the masterminds behind the attacks of September 11, 2001 flew to Germany hoping to use the selling of stolen Afghan cultural items in order to buy a plane, a plane that he had hoped he could use to fly into a building.  More recently ISIS raided a museum in Mosul and destroyed pre-Islamic cultural goods and items. ISIS is also reported to have made millions from the selling of cultural goods from ISIS occupied territories in Syria.

Enter the European Commission, acting upon the the advice of the G20 summit that countries battle the financing of terrorism. In response to the G20 recommendation the European Commission has proposed new rules that will crack down on the importing and trafficking of cultural goods coming from outside the European Union(EU.) The proposals set out by the European Commission focus on new and updated licensing and certification systems, a new definition for the term “cultural goods,” as well as increased powers for customs authorities.

First, the definition of “cultural goods” under the EU is broad at best. According to the EU, “cultural goods” are items of which countries consider that they have great artistic, historical or archaeological value and which belong to the country’s cultural heritage. Items accepted under this definition include schools, archeological finds, monuments, art, collections, and antiques. Under the proposals by the European Commission the new rules regarding the importing of cultural goods will only apply to cultural goods that are at least 250 years old at the time they are imported, as objects at this age are the most vulnerable.

Second, the European Commission has proposed the strengthening of the cultural goods certification system and the creation of a new licensing system for cultural goods that have been imported into the countries under the EU. The stronger certification system would require the submitting of a signed affidavit, or statement, that purports to prove that the goods were legally exported from the third country. In regards to the new licensing system, the European Commission proposes that importers of cultural goods be required to obtain licenses of import from authorities in the EU before being allowed to import the goods into the EU.

Third, the proposals, if adopted, would give customs authorities the power to seize and retain goods as soon as it is demonstrated that the cultural goods have been illegally exported.

Cultural goods are of great value to their origin country’s cultural heritage. They show the progression of their societies, beliefs, livelihoods, and family life. They act as a way to educate the world in how different cultures live and operate. Unfortunately these objects often come from areas of conflict, areas with vast amounts of cultural goods, and are being thrown into an illicit trafficking market responsible for the financing of terrorist organizations and attacks. The only way to put an end to this is through an altering of the current EU standards on the import of cultural goods.  For now these proposals will be submitted to the European Parliament and the Council of the EU for adoption.

 

A Call To Strengthen the Indian Arts and Crafts Act of 1990

The Indian Arts and Crafts Act of 1990 seeks to diminish the market for forged Indian arts and crafts in the United States. The act, P.L. 101-644, states that “It is unlawful to offer or display for sale or sell any good, with or without a Government trademark, in a manner that falsely suggests it is Indian produced, and Indian product of a particular Indian or Indian tribe or Indian arts and crafts organization, resident within the United States.” Simply put, the act adds penalties to anyone who is found to be falsely advertising that their product is the product of an Indian or Indian tribe. These penalties range from a fine of no more than $250,000 and/or imprisonment of no more than five years if the violator is an individual, a fine of no more than $1,000,000 for a person other than an individual, to a maximum $1,000,000 fine and/or maximum fifteen year prison sentence for repeated violations if an individual, if not an individual a maximum fine of $5,000,000.

The policy reasons behind this act are clear and advantageous to Indians and Indian tribes across the country, a protection for the cultural, economic, and spiritual well-being of Native Americans and Native American tribes. Culturally, the act may act for protection of their cultural icons, relics, and other various goods that Indian tribes use to express their identity. Economically, the less forgeries in the market, the more Indians and Indian tribes will be able to sell/display of their own authentically created goods. Spiritually, the act can act as an incentive for the spiritual beliefs to be represented adequately and accurately. The economic and cultural policy reasons behind this act are exactly why Native American artists are requesting a strengthening of the Act, with the hopeful purpose of reducing the number of counterfeits available in the market for Native American cultural goods.

Proponents of a strengthening of the act suggest stricter punishments for those found in violation of the act’s terms, none of which will be possible without increased funding which may be a long shot considering President Trump’s proposal that $1.4 billion be cut from the Department of the Interior, the department that houses the Indian Arts and Crafts Board. The Indian Arts and Crafts board promotes development of federally recognized tribes by focusing on and promoting the expansion of the market for Indian Arts and Crafts.

In a time where the cultural identities of groups around the world are being threatened be economic, technological, and cultural advances legislative measures must be taken up to ensure the longevity and existence of the groups that feed the hunger for authentic culture in our nation. A strengthening of the Indian Arts and Crafts of 1990 is a way for Indians and Indian tribes to secure the protection they seek to ensure their existence in the years to come.

Indian Arts and Crafts Act of 1990

Indian Arts and Crafts Board

Native American Artists Call for and End to Counterfeits