Bench & Bar

MAR 2018

The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.

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| MARCH/APRIL 2018 12 E. HOLOCAUST ART RESTITUTION Among its many other crimes, the Nazi regime stole massive quantities of cultural property from other countries and citi- zens, including hundreds of thousands of artworks. After WWII, the Allied forces began the effort returning the stolen art- works to their rightful owners. Given the quantity of works and difficulty of identi- fying and locating the rightful owners, they were not always successful. Many of these stolen works were eventually sold or given to museums, both in Europe and elsewhere. Gradually, the owners of stolen art and their heirs began to demand return of their property. is process escalated in the 1990s, as electronic databases and the internet proliferated. For many Holocaust survivors and their families, these claims vindicated not only their right to recover their stolen property, but also their claims to justice and right to be heard. 41 Seventy years after the end of the Second World War, illegally acquired art contin- ues to resurface, often through the efforts of organizations like the Commission for Art Recovery and others. 42 Perhaps most notably, in 2012, German police discovered 1,406 works in the Munich home of Cor- nelius Gurlitt, many of which were stolen. e collection included Old Masters as well as works by Claude Monet, Pierre-Auguste Renoir, Henri Matisse, Franz Marc, Marc Chagall, Otto Dix, and Max Liebermann, and many others. Some of the works have already been returned, but the provenance of many others is still being investigated. 43 Meanwhile, many important works are still missing, and many museums still resist legitimate claims. 44 CONCLUSION Obviously, "art law" is not a unified body of legal doctrine, but a syncretic collection of legal rules and social practices governing a wide range of different scenarios. Yet, it derives some degree of cross-disciplinary commonality from the fact that it gov- erns situations involving the same people, engaging with each other in familiar cir- cumstances, through the lens of shared social expectations. Artists, galleries, col- lectors, and museums are all repeat players in the same game, and all know how the game is played, or at least is supposed to be played. eir expectations shape not only their transactions, but also how those transactions should be interpreted. In other words, while studying "art law" may not improve our understanding of "the law" itself, it may improve our understand- ing of how people use the law, and what they expect it to accomplish: the "law in action." is is hardly a new observation, or one unique to art law. After all, it is equally true of "the law of the horse." But if we want to understand how the art world is both shaped by legal doctrine and shapes legal doctrines to fit its needs, we cannot simply observe particular trouble-cases and ask how they were decided. 45 We must ask how they function within the broader ecol- ogy of the art world, and how they were accommodated. ABOUT THE AUTHOR BRIAN L. FRYE is Spears-Gilbert Associ- ate Professor of Law at the University of Kentucky College of Law, where he teaches classes on intellectual property, copyright, nonprofit organizations, and professional responsibility. His scholarship focuses on legal issues affecting artists and arts orga- nizations, among other things. He is also a motion picture artist, whose works are included in the collection of the Whitney Museum of American Art, and have been exhibited widely. ENDNOTES 1. See, e.g., Brian Soucek, Aesthetic Judgment in Law, 69 Alabama Law Review 381 (2017). 2. 17 U.S.C. § 102(a). 3. Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991). 4. See, e.g., Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991) (holding that copyright cannot protect a white pages telephone directory) and Star Athletica, LLC v. Varsity Brands, Inc., 136 S. Ct. 1823 (2016) (holding, inter alia, that copyright cannot protect a shovel). 5. See, e.g., Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903). 6. See generally Brian L. Frye, Equitable Resale Royalties, 24 Journal of Intellectual Property Law 1 (2017). See also Guy A. Rub, e Unconvincing Case for Resale Royalties, 124 Yale Law Journal Forum 1 (2014). 7. California Resale Royalty Act (Civil Code section 986). 8. 17 U.S.C. § 109. 9. Sam Francis Foundation, Inc. v. Christie's, 769 F.3d 1195 (9th Cir. 2014). 10. e Berne Convention for the Protection of Literary and Artistic Works, Article 6bis. 11. Berne Convention Implementation Act of 1988, 102 Stat. 2853. Visual Artists Rights Act of 1990, 104 Stat. 5128. VARA defines a "work of visual art" as a painting, drawing, print, sculpture, or photograph, existing in a single copy or in a limited edition of 200 copies or fewer. 17 U.S.C. § 101. 12. 17 U.S.C. § 106A(a)(1). 13. 17 U.S.C. § 106A(a)(2) & (3). 14. 17 U.S.C. § 106A(d). 15. See Isaac Kaplan, Cady Noland Sues Seeking Destruction of Artwork "Copy" She Disavowed, Artsy, Jul. 21, 2017 at https:// Features: General Eisenhower inspecting stolen art. Hermann Goering's collection of stolen art. ART LAW, COPYRIGHT & TRADEMARK

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