Art, Museum and Cultural Property
With the run-up in art values and increasing litigiousness in the society as a whole, the art world, which has long been a bastion of friendly deals and trust-me attitudes, has increasingly become subject to legal scrutiny. Andrews Kurth has risen to this challenge, providing clients with art, museum and cultural property advice and counsel in a wide range of art disputes and commercial transactions.
Over the past 25 years, in particular, winds of change have been blowing through the art market, transforming collecting and museum practices and the way courts view legal disputes over art transactions and stolen art and cultural property—a change in which Andrews Kurth art lawyers have played a major role. Decades of secrecy by sellers and lax due diligence by buyers—including museums and collectors—is giving way to better market practices, greater transparency and an increasing sense of responsibility by buyers, sellers, dealers, auction houses, collectors and museums. Andrews Kurth's art, museum and cultural property practice has been at the center of these changes, and our art lawyers are able to assist clients as they navigate through this ever-developing industry.
Today’s trends include closer scrutiny of the provenance (or history of ownership of artworks) for purposes of verifying authenticity and good title and avoiding disputes. Closer attention to historical details affects market transactions, as well as existing museum and private collections. These trends have put increasing pressure on art insurers to clarify the scope of coverage and to assist their insureds with unexpected problems, such as the high volume of dealer bankruptcies.
As a society, we have seen the return of stolen artworks to rightful owners in cases where the loss resulted from:
- Organized theft by the Nazis from Jews and others in Germany and in conquered countries during World War II;
- Theft by Allied soldiers from art collections in Allied-occupied Germany and liberated countries after the War;
- Theft of art and cultural objects during modern-day conflicts;
- Illegal removal and export of cultural artifacts from foreign countries that have an agreement with the United States under the Convention on Cultural Property Implementation Act, coupled with the smuggling of objects into the United States; and
- Looting of antiquities from archeological sites around the world.
Such stolen or illegally imported objects, along with objects of questionable authenticity, have for decades found their way into the U.S. art market and then into museum and private collections where legacy issues must now be addressed. Illegal movement continues, although with reduced frequency due to greater vigilance in the market and higher levels of prudence by art buyers.
Andrews Kurth's capabilities in handling transactions, market-related and restitution disputes and other aspects of art and antiquities law in advice and counseling matters throughout the U.S. are extensive. Led by Thomas R. Kline in our Washington, DC office, who has been working in this field for 25 years, and coordinated by Joseph A. Patella in New York, we have represented the interests of numerous clients from Europe, North America and elsewhere, including:
- Auction houses and dealers
- Insurance companies and brokers
- Museums and churches
- Government and quasi-governmental institutions
- Families and private individuals
Our Art Law Team has experience in handling all types of art issues and disputes, including those involving stolen art, authentication, attribution, antiquities and cultural property, questions of ownership, market-related issues and museum concerns.
Many art disputes, including those concerning authenticity, ownership and theft, can be difficult to resolve through litigation because of problems of proof. We are experienced in addressing and resolving the challenges faced by art claimants and respondents who may have—due to the passage of time or otherwise—limited factual support for their position. For example, our lawyers have handled art restitution litigation in which both sides have conflicting documentation that is not conclusive, as well as cases where the documentation of an art transaction does not adequately convey the circumstances under which a transaction took place—such as when targets of the Holocaust were forced to sell family artwork at any price to survive.
We understand the difficulties presented by litigation, particularly when the facts and art law issues are complex, and the art is not necessarily of great value. We can advise how best to press or defend claims and whether to settle them. Our experience at trial, in negotiations and in structuring creative settlements reflects our skill at:
- Evaluating adequate proof of ownership and theft;
- Working with expert witnesses and other art professionals;
- Structuring purchases, sales and settlements;
- Dealing with choice of law principles and disparate state statutes of limitations and their relationship to the longer periods allowed by European laws;
- Working with FBI, Customs Enforcement officials and other federal officials; and
- Working with embassies and other representatives of foreign countries.
In addition to his over two-decade art law practice, Mr. Kline co-teaches a seminar on art and cultural property law at The George Washington University, Museum Studies Program and has written and spoken frequently on the subject of art restitution, museum practices, and cultural property law and litigation (including making a statement in 2000 at a hearing held by the Presidential Advisory Commission on Holocaust Assets in the United States). Mr. Kline serves on the board of the Lawyers’ Committee for Cultural Heritage Preservation. In honor of his art recovery work on behalf of various German cultural organizations, in 2001 Mr. Kline was awarded the Officer's Cross of the Order of Merit of the Federal Republic of Germany (Das Verdienstkreuz des Verdienstordens). In 2012, Mr. Kline received the medal of Cyprus Technical University for his work protecting the cultural heritage of Cyprus.
Mr. Kline has also handled numerous matters concerning insurance for artworks and serves on the Arts and Records Committee of the IMUA (Inland Marine Underwriters Association) whose purpose is to inform underwriters about practical issues concerning arts and records insurance.
High-Profile Art Restitution Practice
Our art and cultural property lawyers have resolved some of the highest profile disputes of the past two decades. Acting on behalf of major cultural and religious organizations, auction houses, families and others and often working with well-known international investigators to ensure that evidence is found and considered concerning all legal requirements of ownership claims, Andrews Kurth lawyers have played a major role in the recovery of:
- The Kanakaria mosaics - Byzantine mosaics that were stolen from a Greek Orthodox church in the Turkish-occupied area of Cyprus. Andrews Kurth lawyers represented the Republic of Cyprus and the Autocephalous Greek-Orthodox Church of Cyprus and recovered the mosaics from an Indiana art dealer by establishing that our clients' search for the stolen art satisfied the diligence requirements of the state's statute of limitation on theft. Several articles were published in The New Yorker and other publications about this case. A book was also written about this case, Goldberg's Angel by Dan Hofstadter. Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg and Feldman Fine Arts, Inc., 717 F. Supp. 1374 (S.D. Ind. 1989), aff’d, 917 F.2d 278 (1990 7th Cir.).
- The Quedlinburg Treasures - medieval jeweled religious objects and manuscripts that were stolen by an American Army officer whose unit guarded the site where the Lutheran Church of St. Servatius in Quedlinburg, Germany hid the Treasures at the end of World War II. The soldier had mailed the objects home to Texas, and we secured the objects through a temporary restraining order issued in a federal court action and then settled the case from a position of strength, after discovery revealed the pattern of thefts by the officer. This case was also heavily reported at the time and is the subject of Treasure Hunt by William H. Honan. Stiftskirche-Domgemeinde of Quedlinburg v. Jack Meador, et al., Civil Action No. CA3-90-1440-D (N.D. Tex. filed June 18, 1990).
- Valuable drawings stolen from the Kunsthalle Bremen, a private art museum in Germany, during Russian occupation in the closing days and immediate aftermath of World War II. A federal district court in New York supported our motion for summary judgment and ordered a Russian refugee who had tried to sell the drawings to return them to the museum. United States of America v. Yuly Saet, No. 93 Civ. 8330 (PKL), 1995 U.S. Dist. LEXIS 23 (S.D.N.Y. Jan. 5, 1995).
Counseling and Advice
In addition to representing claimants in art recovery cases, we advise and assist American museums, a major auction house and collectors in the proper handling of cases in the art recovery arena. We recently helped major American art museums and several collectors respond to Holocaust-related claims and crafted settlements in which the museums retained the right to display objects as part of an overall resolution of the original owner's claims. We also work with borrowers and lenders who wish to use artwork as security for loans.
We frequently advise museums, cultural officials and individual collectors on the importance of documenting their transactions and collections and on gathering and preserving existing documentation for any object where questions of origin, authenticity or other issues may arise. Because museums have complex issues of fiduciary responsibility and duties to the public, far beyond those of most collectors, our efforts to assist them can also involve Andrews Kurth's extensive experience in corporate and nonprofit organization governance.
Whether representing governmental institutions in recovering stolen art or defending auction houses in claims of faulty authentication or attribution, our Art Law Team has consistently delivered successful results. Our lawyers are highly experienced litigators who can provide an early assessment of the merits, examine avenues for resolution through agreement and, if necessary, build the best possible case for presentation at trial. We have represented clients in state and federal courts and in arbitration proceedings throughout the country and have argued appeals before a number of U.S. Circuit Courts. Some of our art law successes include:
- Representation of auction house in action by purchaser of painting alleging fraud in connection with authentication of work. Obtained summary judgment in client's favor and successfully defended appeals. Tony Shafrazi Gallery Inc. v. Christie's Inc., 101 A.D.3d 654, 955 N.Y.S.2d 875 (1st Dep't 2012), aff'd, 2013 WL 1300746 (N.Y. April 2, 2013).
- Representation of auction house in action by consignor arising from 1998 sale of drawing later alleged by some experts to be by Leonardo da Vinci and worth over $100 million. Obtained dismissal in client's favor. Marchig v. Christie's Inc., 762 F.Supp.2d 667 (S.D.N.Y. 2011), aff'd, 2011 WL 2685608 (2d Cir. July 12, 2011).
- Representation of foreign state and museum seeking recovery of 16th century volume of prints and drawings from St. Louis book dealer. Obtained summary judgment in client's favor and return of cultural property. State of Baden-Württemburg v. Shene, 2009 WL 762697 (S.D.N.Y. March 23, 2009).
- Representation of estate in recovering Franz Xaver Winterhalter’s painting Madchen aus den Sabiner Bergen from a private collector. The case is a landmark ruling in Holocaust-era art restitution law, being the first in the United States to find that a forced sale can be a theft and therefore title does not pass to the buyer. Vineberg v. Bissonnette, 529 F. Supp. 2d 300 (D.R.I. 2007), aff’d, 548 F.3d 50 (1st Cir. 2008).
Few areas involve more factual, legal or emotional challenges than art, museum, cultural property and antiquities law and litigation, and we believe we have acknowledged strength in dealing with them. The passage of time, the scarcity of definite documentation, and the emotional issues of family history are all considerations that our lawyers constantly balance on behalf of our clients.