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DCMS Consultation on National Treasures: Final Chance To Have Your Say!

20/02/2019

At the end of 2018, the Department for Digital, Culture, Media & Sport (DCMS) opened a consultation on the proposed changes that would introduce a legally binding mechanism into the export control process for retaining national treasures in the United Kingdom. Before making the final decision on the matter, DCMS seeks to understand the potential beneficial and adverse impacts on individuals, businesses, public institutions, and any other interested parties. The Public Consultation closes on 24th February 2019. The consultation can

The Proposed EU Regulations on the Import of Cultural Goods

15/01/2019

2018 was the European Year of Cultural Heritage, during which the EU pledged to take action to stem the illicit trafficking of cultural goods both within and outside of the EU. This led the European Commission to propose a new EU Regulation designed to prevent the importation into the EU of cultural goods illicitly exported from their country of origin. The Regulation was originally due to be adopted by the end of 2018 but following the significant and numerous amendments

Christie’s Gets a Slap on the Wrist from the Advertising Standards Authority

15/01/2019

A recent ruling by the Advertising Standards Authority (ASA) reminds auctioneers that estimates in auction catalogues must make clear that charges apply in addition to the hammer price, and if VAT applies to those charges, they must be shown inclusive of VAT. The Advertising Standards Authority (ASA), the UK’s independent advertising regulator, investigated a complaint about Christie’s London Interior Sale online auction catalogue of 11 January 2018. In a ruling published on 10 October 2018, they concluded that Christie’s advertising

Architect of Washington Principles takes stock

08/01/2019

On 26-28 November 2018, Germany hosted a conference to mark the 20th anniversary of the Washington Principles. Twenty years earlier, 44 governments had participated in the Washington Conference on Holocaust-Era Assets and endorsed eleven principles for dealing with “Nazi-confiscated art”. The most commonly-cited such principle calls for steps to be taken expeditiously to achieve a “just and fair solution” in relation to artworks confiscated by the Nazis. Criticism has been levelled at the Washington Principles, not least because (i) they

The export office of the City of Bologna revokes the export licence granted for a portrait of Camillo Borghese by Gérard

21/11/2018

The export office of the City of Bologna has recently attracted media attention following the revocation of an export licence granted for a portrait of Prince Camillo Borghese by the famous French artist Gérard. In February 2017, the gallery Robilant+Voena applied to export a portrait of Prince Camillo Borghese from Italy. The export licence was granted in March and the portrait was bought by the Frick Museum in New York. Now the Bologna export office that granted the export licence

Preserving the Œuvre: The Significance of Catalogues Raisonnés

21/11/2018

What is a Catalogue Raisonné? The purpose of a catalogue raisonné is to record all known artworks by an artist and to provide information such as title, medium, inscriptions, date, provenance, exhibition and literature references for each work. These publications are a substantial authority of an artist’s œuvre and a crucial tool in the authentication process. Consulting the relevant catalogue raisonné is often the first step in the due diligence process for collectors, art dealers, museums and auction houses when

New Anti-Money Laundering Regulations Target the Art Market

18/09/2018

Anti-money laundering laws in the UK are largely outlined in the Money Laundering Regulations 2017 (“Regulations 2017”)[1]. The Regulations 2017, which came into force on 26 June 2017, implemented the EU’s Fourth Anti-Money Laundering Directive (“4AMLD”). 4AMLD aligned EU money laundering laws with international standards, harmonised those laws across the EU and embraced a risk-based approach to respond to the threat of money laundering. Barely a year following the UK’s implementation of 4AMLD, the European Parliament adopted a new directive

The Piero Manzoni Foundation and the destruction of 39 works

18/09/2018

A few months ago, the Piero Manzoni Foundation published a video showing the destruction of 39 alleged forgeries that were attributed to Piero Manzoni by Giuseppe Zecchillo, an Italian opera singer. Background In 1963, the Italian baritone rented Manzoni’s last studio, in the heart of Brera, and claimed to have been given a number of Manzoni’s artworks by the artist himself during the last years of his life. However, when Zecchillo sought authentication of these artworks, a legal battle arose

New York Court Dismisses Claims Against Agnes Martin Authentification Committee

19/06/2018

On 5 April 2018, a New York State court dismissed a complaint filed by the Mayor Gallery, a London-based art dealer, against Agnes Martin Catalogue Raisonné LLC (“AMCR”), Arnold Glimcher, the managing member of AMCR’s authentification committee and the owner of the Pace Gallery, Tiffany Bell, the catalogue’s editor, and other members of AMCR’s authentification committee for their refusal to include 13 artworks purportedly by Agnes Martin in the artist’s Catalogue Raisonné. The complaint sought more than $7 million in

Another small step towards a liberalisation of Italian export controls

16/02/2018

Following last summer’s amendments to the Italian export legal framework (see our blog of 27 September 2017), additional changes to the export licensing process have been implemented by the Italian Ministry of Cultural Property. At the beginning of December 2017, new guidelines amending an outdated Circular of 13 May 1974 were issued with a view to limiting the discretionary powers of export offices when deciding whether to grant an export licence for art, antiques and collectible items. These guidelines set

Data protection reform brings significant risk to UK art businesses

06/10/2017

For businesses in the art sector and beyond, legal compliance is becoming increasingly crucial, as infringements have the potential to undermine the very survival of the business. It used to be the case that only competition law was seen to be exceptional in terms of the eye-watering fines imposed by the regulators. More recently, however, non-compliance in other areas has been tightened and businesses really need to “up” their game. Data protection is an example. The upcoming reform of data

Cassirer v Thyssen-Bornemisza: California Court revives claim to Pissarro yet again

28/09/2017

Like so many court cases dealing with claims to Nazi-looted art, the Cassirer v Thyssen-Bornemisza case has placed much emphasis on the following questions: Which law will the Court apply to the issues it is being asked to consider? Has the current possessor acquired ownership of the artwork? Is the claim to the artwork barred by limitation? Each claim to looted art can turn on the answer to one of these questions, and have a radically different outcome, depending on

A (very) small step towards a liberalisation of Italian export controls

27/09/2017

Traditionally considered among the strictest in Europe, Italian export regulations have just been amended following an almost three-year debate. The discussion on the reasons for the stagnation of the art market in Italy was originally promoted by Progetto Apollo, an association of art dealers, auction houses and other professionals operating in the art market. The legal advisor of the group, Italian art lawyer Giuseppe Calabi, has commented positively on the recent amendments by saying that the reform has established a reasonable balance between heritage protection and

The UK Money Laundering Regulations 2017: key changes and impact for art businesses

04/07/2017

Introduction The UK Money Laundering Regulations 2017 (“Regulations 2017”) which implement the EU’s Fourth Money Laundering Directive (“4MLD”) came into force on 26 June 2017, repealing the Money Laundering Regulations 2007 (“Regulations 2007”). The 4MLD seeks to give effect to the international standards for combating money laundering and terrorist financing developed by the Financial Action Task Force (“FATF”), an inter-governmental body founded on the initiative of G7. Please click here for more information. The UK is traditionally ahead of the EU

The Regulation of the Art Trade for Anti-Money Laundering in the EU

28/06/2017

Certain types of businesses fall within the regulated sector for EU anti-money laundering, such as banks, wider financial institutions, law firms, accountancy businesses and estate agents. Luckily for the British art market, the British government has not invited auction houses and art/antique dealers to join the club. Auction houses and art/antique dealers in other EU Member States have not been so lucky. Being in the regulated sector for money laundering carries a compliance burden that should not be under-estimated. Businesses

An Italian story of bad luck and lack of diligence

06/06/2017

In a recent judgment, a Milan Court rejected a claim for the loss of value of a sculpture loaned by an Italian public entity to a Belgian museum arising from the alleged damage caused by a fall of the sculpture whilst on loan to the Belgian museum. The judgment is a reminder that in the absence of a detailed condition report, the alleged damage can be difficult to prove. The judgment also points to the difficulty in assessing the loss

Faithless Servants and the Law: Fine Art Dealers Beware

06/06/2017

On 27 February 2017, a New York State Court[1] held that Lisa Jacobs, a fine art dealer and private curator, breached the fiduciary duties she owed to the seller of an artwork entitled Future Sciences Versus the Man by artist Jean Michael Basquiat (the “Work”). As a result of her disloyalty, the Court ordered Jacobs to pay to the seller the $1 million in secret profits plus $50,000 compensation she earned for the sale of the Work along with interests,

Appropriation Art Takes Another Hit in European Courts

09/05/2017

On 9 March 2017, a French High Court held that a 1988 sculpture by appropriation artist Jeff Koons, Naked, infringed on the copyright of the late photographer, Jean-Francois Bauret. The claim was brought by Bauret’s widow, Claude Bauret-Allard, against Koons for copying her husband’s work and against the Centre Pompidou in Paris for using an image of the work in the advertising material for their Koons retrospective in 2014. The court ordered Koons’s company and the Pompidou to each pay

The UK Competition and Markets Authority opens an investigation into auction services

16/12/2016

On 22 November 2016, the UK Competition and Markets Authority (CMA) launched an initial investigation into suspected anti-competitive practices in relation to the supply of auction services in the UK. In its announcement, the CMA stated that the investigation is focusing on suspected exclusionary and restrictive pricing practices, including most favoured nation provisions (MFNs) in respect of online sales. The CMA has also received an application for interim measures in connection with this case. MFNs (also known as “most favoured

Series on Art Restitution – Nazi Looted Art

07/12/2016

Introduction The field of art restitution generally concerns itself with artworks that were confiscated or seized from, forcibly sold by, or otherwise lost by their previous owners. Generally, these owners were subject to persecution. There has been an array of (sometimes inconsistent) court decisions and differing opinions on how art restitution claims should be treated. This series of brief articles seeks to provide a non-exhaustive overview of categories of claims that have been considered. Nazi-looted art By Nazi-looted art, we

Series on Art Restitution – Bolshevik Looted Art

07/12/2016

Introduction The field of Art Restitution generally concerns itself with artworks that were confiscated or seized from, forcibly sold by, or otherwise lost by the artworks’ previous owners. Generally, these owners had been subject to persecution or considerable duress. Given the various categories of potential Art Restitution claims, there appears to have been an array of (sometimes inconsistent) court decisions and differing opinions on how claims should be treated. This series of brief articles seeks to provide a non-exhaustive overview

Series on Art Restitution – Stasi Looted Art

07/12/2016

Is this a rebellion? No Sir, this is a revolution

06/12/2016

It is said that when a messenger brought the news to Louis XVI that the Bastille had been taken, the monarch asked: is this a rebellion? No Sir, replied a minister standing by, this is a revolution. Could the same be said of the public announcements made last week by the French auctioneers? On 29 November 2016, the National Union of French (Commercial) Auctioneers (Syndicat National des Maisons de Ventes Volontaires, also known as ‘SYMeV’) publicly called for the abolition

The Tale of the Two Cranachs

04/11/2016

On 9 August 2016, a federal judge in the U.S. District Court of California summarily dismissed a lawsuit against the Norton Simon Museum brought by the heirs of a Dutch dealer, Jacques Goudstikker, to recover two sixteenth century oil paintings, entitled “Adam” and “Eve” by Lucas Cranach the Elder.[i] Granting the Museum’s motion for summary judgment, the court held that the Museum is entitled to keep the Cranachs because the Dutch government “acquired ownership of the Cranachs” and, as a

Update – New German Export Provisions for the “Protection of Cultural Property” now in force

29/09/2016

Earlier this year we reported that Germany’s government was in the process of legislating to protect objects of national heritage and restrict their export from Germany. The new Act for the Protection of Cultural Property automatically (and practically, overnight) adds to the list of items declared as national cultural property, all items: owned by the public and held by a public institution holding cultural property (e.g. a national museum); owned and held by an institution holding cultural objects that is

A new Guarantee Facility for the Culture and Creative Sectors

22/07/2016

On 30 June 2016, the European Commission and the European Investment Fund (EIF) launched a €121 million guarantee initiative, the “Cultural and Creative Sectors Guarantee Facility”, to support small and medium enterprises (SMEs) in the cultural and creative sectors via financial institutions. The new guarantee facility will be offered through “Creative Europe” (see here), a 7-year programme (2014-2020) aimed at supporting the cultural and creative sectors. The guarantee facility will be managed by the EIF on behalf of the European

Spain: Competition Authority investigates Art Logistics Companies

05/07/2016

The Comisión Nacional de los Mercados y la Competencia (“CNMC”) is the independent authority in charge of both competition and regulatory matters in Spain. Its role is to guarantee and maintain the correct operation and effective competition of all productive sectors and markets in Spain. On 24 June 2016, the CNMC issued a press release (see here) announcing that it is investigating potentially anti-competitive practices carried out by certain companies providing transport, production and assembly services in relation to art

Brexit: the long road ahead

29/06/2016

Less than a week after the British EU Referendum, it is becoming increasingly obvious that the vote to “Leave” has settled nothing. This is because the question on the ballot was fundamentally flawed. The Prime Minister should have delayed the process until the Leave supporters put forward a coherent, persuasive alternative to the status quo and voters should then have been asked to choose between the two alternatives. Instead, the British people have voted against an existing system but not

De Sole v. Knoedler Gallery – A Field of Red Flags

31/03/2016

Last month, collectors Domenico and Eleanore De Sole settled their claims against the now defunct Knoedler Gallery and its former president and director, Ann Freedman. The settlement, though hardly surprising, left many questions unanswered and raised other interesting ones. Unfortunately, we will never know whether, in the eyes of a jury, the De Soles’ reliance on the representations made by Knoedler and Freedman was reasonably justified, and whether Knoedler and Freedman intended to defraud. The Knoedler Gallery, founded in 1846

Protecting national heritage or stifling the German Art Market?

29/03/2016

Since 1955, it has been possible for Germany’s 16 states to register on a list of objects of national cultural importance artworks that are considered of particular cultural significance to the German nation. Once registered, the artwork cannot be permanently exported from Germany. Thus far, some 2,700 artworks have been registered by Germany’s 16 states. Most of these artworks are held in private collections. It has only been possible to register artworks held in public collections since 2007. Naturally, once

Switzerland revisits laws on anti-money laundering and terrorist financing

25/02/2016

Since 1 January 2016, art collectors and art businesses dealing in art, or storing art, in Switzerland must comply with new anti-money laundering and terrorist financing laws. Key legislation in Switzerland Money laundering is regulated in Switzerland by the Swiss Criminal Code (“SCC”) which makes money laundering a criminal offence and the Swiss Federal Act on Combating Money Laundering and Terrorist Financing in the Financial Sector (“AMLA”) which sets out the due diligence and reporting obligations which must be complied

Reform of Bills of Sale could offer a welcome boost to England’s Art Lending Market

03/02/2016

Lending against art is on the rise. In a survey conducted by Deloitte and ArtTactic for their Art and Finance Report 2014, 48% of collectors said that they would be interested in using their art collection as collateral for a loan, which according to the report, is an increase from 41% in 2012. Skate’s Global Art-Loans Market Report, whilst wildly optimistically predicting that “the 2015 art loans book [is] scheduled to grow above $10 billion this year, which is at

The New Code of Ethics of the Museums Association

22/01/2016

In November 2015, the (UK) Museums Association approved a new version of the Code of Ethics for Museums. The Code is one of a series of guidelines on museums’ ethics published by the Museums Association which also include ‘Guidance on the ethics and practicalities of acquisition’ and the ‘Disposal Toolkit’. The Museums Association has been at the forefront of museum ethics since it published its first Code of Practice in 1977. Since then, it has been continually developing museum standards.

When it comes to business, a longstanding friendship will not save the day

25/08/2015

On 4 December 2014, Larry Gagosian won a protracted, hostile, and expensive court battle against his long-time friend and client Ronald Perelman. The dispute arose in connection with a series of transactions between the parties involving works of art by Jeff Koons, Cy Twombly, and Richard Serra. In MAFG Art Fund LLC and MacAndrews & Forbes Group LLC v. Larry Gagosian and Gagosian Gallery, Inc., Index No. 653189/2012, two New York courts dismissed the claims brought against the Gagosian defendants.

A New York State Bill Seeking to Protect Art Authenticators

17/08/2015

On 15 June 2015, the New York State Senate approved a bill, S1229A-2015 (the “Bill”) to amend New York Arts and Cultural Affairs Law (“NYACAL”) in relation to opinions concerning authenticity, attribution and authorship of works of fine art. The Bill, which we hope will one day become law, aims to remedy some deficiencies in NYACAL around the absence of protection for experts rendering independent, good-faith opinions about authenticity, attribution and authorship of works of fine art. Specifically, the approved

The pitfalls of selling art to consumers – Three short stories

14/01/2015

Off-Premises Sales: the Consumer Goes on an Excursion… At the Art Business Conference last September organised in London by Art Market Minds, a delegate asked whether a sale to a consumer concluded by a dealer in his gallery could constitute an ‘off-premises’ sale. The short answer is that it can. The question is significant because if a dealer sells ‘off-premises’ to a consumer, he is required by law (pursuant to the UK Consumer Contracts (Information, Cancellation and Additional Charges) Regulations

Rothko Revisited

17/12/2014

Earlier this year, we wrote about the claim brought by Dallas art collector, Marguerite Hoffman, against three defendants, L&M Arts, Studio Capital and David Martinez. The subject of the claim was the purported breach of a confidentiality clause in the contract for the sale of Hoffman’s 1961 Mark Rothko oil painting, Untitled. The contract was in the form of a letter agreement, dated April 24, 2007 which provided that it would serve as “an agreement between Greenberg Van Doren Gallery

Changes to Copyright Exceptions

07/11/2014

As of 1 October 2014, three new exceptions to copyright infringement have come into force in the UK. The new exceptions affect the way in which copyrighted works can be used and have come about as a result of increasing pressure on UK legislation to reflect the fast-paced digital age that we live in. These changes are likely to not only impact creators and copyright owners, but also consumers, researchers and those in the education sector. The three new exceptions

Peggy Guggenheim – when the heirs and the foundation disagree

07/11/2014

Foundations are often established to manage large art collections after the death of the art collector. Unfortunately, the interests of the collector’s heirs do not always align with those of the foundation, and disputes arise. Such disputes raise the question of the extent of the rights of the heirs when the deceased’s art collection is managed by a foundation. The Tribunal de Grande Instance in Paris had to examine this very question in the context of the Peggy Guggenheim collection,

The impact of new consumer protection on dealer and gallery sales

11/06/2014

New regulations aimed at protecting consumers come into force in the UK on 13 June 2014. The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 apply to sales between traders and consumers. Sales amongst professionals are not caught by the regulations. The regulations consider different types of trader-to-consumer sales: on-premises sales, distance sales and off-premises sales. Each category of sale is subject to its own regulations. The main issues for dealers and galleries selling art, antiques and collectibles are

Expert opinion: a U-turn by the French Supreme Court

11/06/2014

French courtrooms are no strangers to disputes over the authenticity of artworks. Over the past 15 years, the French judiciary has repeatedly been called upon to adjudicate lawsuits brought against authors of catalogue raisonnés, artists’ foundations, and connoisseurs recognised by the art market as the ‘leading experts’ on a given artist. These lawsuits, usually brought by aggrieved art owners, have one fundamental objective: challenging the experts’ refusal to acknowledge the authenticity of the artwork. In authenticity disputes, French Courts like

The new UK payment surcharges regulations and their effect on art market transactions

11/06/2014

As part of the broader EU reform of consumer protection, the UK has implemented a number of legislative changes substantially strengthening consumer rights. One of those changes is enshrined in the Consumer Rights (Payment Surcharges) Regulations 2012, which came into force on 6 April 2013 and directly impact art market professionals accepting payment by card. The Regulations prohibit traders from charging consumers fees that exceed the cost borne by the trader for the use of a given means of payment.

Considering the murky world of AIFMD and its impact on art fund managers

17/04/2014

In response to the perceived risk to investors and to the stability of the European financial market, the activities of alternative investment fund managers are being more strictly regulated. The EU Directive on Alternative Investment Fund Managers (“AIFMD”) aims to create a harmonised regulatory framework for managers of alternative investment funds within the European Union. Impacted investment managers are currently grappling with the implementation of the new regulatory regime, in large part because of the ambiguity of the Directive, the

Changes in the law make auction rings easier to prosecute, but is the regulatory framework still fit for purpose?

26/02/2014

Art dealers regularly bid at auction in partnership with other art dealers. The law does not object to joint bidding provided that certain conditions are met. If they are not, the bidding arrangement can turn into an illegal auction ring. The risk if the bidding arrangement amounts to an auction ring is not simply pecuniary; parties bidding in concert may be prosecuted. The law in England and Wales is changing, potentially making it easier to prosecute illegal bidding practices. Traditionally,

Artist’s Resale Right in France: The Economic Burden Revisited

The importation of goods into the European Union is subject to import VAT. The rate of import VAT varies from EU country to EU country. The rate also varies depending on the type of goods. Unless an exemption applies, the importer of art, antiques and collectibles is liable to pay import VAT. In some EU countries, the standard rate of import VAT applies. The standard rate (depending on the EU country) varies between 15% and 25%. In other EU countries,

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