24 February 2014


From time to time there are stories of cleaners mistakenly clearing and throwing out modern art work.  One would have to be particularly dedicated to modern art, and po-faced, (or the artist!) not to snigger.
The latest report comes from Bari in Italy where a cleaner has thrown out a work by Sala Murat.  Given that the work is described as “newspaper and cardboard and cookie pieces scattered across the floor”, it sounds like a cleaner-magnet.  Apparently it is valued at €10,000.
The apologetic cleaning firm, which presumably wants to maintain its relationship with the gallery, has said that its insurance would cover the matter.  I wonder if that is right.  If I were acting for the insurers, I would require the insured to defend any claim by the gallery on the basis that the loss was caused by its negligence.  It should have anticipated the potential loss and left a sign for the cleaners saying “Not to be removed”. Normally such a sign might say “Not rubbish”, but perhaps that wouldn’t be true in this case.

19 February 2014

Nazi appropriated art

The Gurlitt story continues to fascinate the art world.

My earlier post Nazi looted art reflected the view at the time that any stash of Nazi art must have been looted, and that Cornelius Gurlitt and the art seized from his flat would not be reunited.  I suppose we should have known that no one who has secretly kept a €1.4bn collection for 45 years would give it up without a fight.

Gurlitt’s account of events and his lawyers’ arguments are now set out in a website that he or his lawyers have just set up Gurlitt.info.  However, whether Gurlitt still has his mental faculties seems to be open to question. As the site explains, at the behest of Gurlitt’s doctors, the Munich court has appointed a guardian, and yet it does not deprive him of the legal capacity to enter into contracts. In the cryptic words of the Q&A section of the website, “You can draw your own conclusions from this information”.

The website paints a picture that had already emerged in outline since November.  In particular, part of the art was owned by Cornelius’s father, Hildebrand Gurlitt, before the Nazi era and a lot of the rest had then been removed from public galleries and institutions, as so called “degenerate art”, and sold to Hildebrand.  It is said that only 3% of the works (35 of 1,280 items) have been claimed as “looted art” by the heirs of four Jewish owners, which Gurlitt is willing to consider.  Yet the identities of the works have only recently been revealed, so that number seems set to rise.

The website makes the point that the German limitation period is 30 years from any theft, which has long since expired.  However, the Bundesrat is presently working on a new law to extend that period.

This is a story that will run and run, and I will revisit it.

16 January 2014

Getting good title to art

Prompted by the “flea market Renoir” art case in the US, I’ve done an article for The Times about making sure that you get to own and keep the art you buy: Getting good title to art

06 November 2013

Nazi looted art

The amazing discovery of over 1,400 pieces of Nazi era looted or forced-sale art, worth perhaps €1bn, in the flat of Cornelius Gurlitt in Munich, will probably be the art story of the year, and perhaps the decade.  Interest has naturally focused on the pieces themselves, although the German authorities seem slow and reluctant to release full details.
Also of interest is the potential for a bumper crop of restitution claims from the descendants of the original owners.  Usually, restitution claims present a difficult moral question as to whether the art should be returned to the original family, who suffered at the hands of the Nazis, or to the current owner who innocently and in good faith bought the art from an intermediate owner, who was probably also innocent.  US law is generally more ‘pro-original owner’, whereas in Europe we tend to be more ‘pro-current innocent purchaser’, which is why so many claims are brought in New York, where the courts take a rather liberal view of their jurisdiction.
However, it seems unlikely that claims to the Gurlitt art will be resisted by anyone claiming to be the current owner.  The most likely disputes will be between competing claimants.  For example, in 1930s Germany, a Jewish owner, needing to raise money in a hurry before fleeing, could have sold a piece, on what might arguably have been a ‘forced-sale’ basis, to a Jewish dealer or friend, who in turn lost the art in a forced sale or through confiscation.  Also, the passing of time leads to patchy evidence, which can cause all sorts of provenance disputes.
Here in London, there has recently been an issue about the Portrait of Amalie Zuckerkandl by Klimt, which is on loan from the Austrian Government to the National Gallery for its Facing the Modern exhibition.  That work was also subject to competing family claims. Although neither succeeded in an Austrian arbitration, there are still calls for the painting to be seized.  In this regard, my Boston art-lawyer friend Nicholas O’Donnell has just written a very interesting and informative article about the claims to the painting.  It is on his blog Art Law Report which I highly recommend.

25 September 2013

Selling off the family silver

With the courts on vacation in August and September, and the summer exodus to art fairs, there have been few if any developments in English art law, which is my best excuse for the lack of recent posts.
However, I have noticed that the press and campaigners are increasingly focusing on something that has been going on ever since the recession bit in 2008, namely the sale of art by cash-strapped local government and other publicly funded organisations.  Christies’ appraisal of the contents of the Detroit Institute of Arts has led to a fear that the museum will be closed and the contents sold as part of the city’s insolvency process.  In England, many local councils have sold, or at least tried to sell, some of their art, from Henry Moore statues in public places (Tower Hamlets) to, most recently, the Chinese ceramics in a local museum (Croydon).
The campaigners rightly point out that the objects were usually given or bequeathed by benefactors with the intention that the local public should enjoy them.  There is also a political view against “privatisation”, or “selling off the family silver” as Harold Macmillan famously termed Margaret Thatcher’s denationalisations.  On the other hand, it is the valuable luxuries that should be looked to first when times get hard and, if the money cannot come from art sales, it will have to come from some further cut in services.  In the case of an insolvent public body, there will be deserving creditors to be paid, including local suppliers, staff and pension funds.
There are of course legal problems.

29 May 2013

More on street art

My last post attracted quite a lot of interest.  So my colleague Ariana Issaias and I have produced an article on the legal issues relating to street art: http://www.fladgate.com/street_art/

15 May 2013

Selling Banksy street art

The Banksy “street art” hacked off a wall in Wood Green, North London is back in the press.  The piece, now known as "Slave Labour", depicts a Third World child working over a sewing machine making Union Jack bunting.
A few months ago it surfaced in Miami, where it was due to be auctioned. In the face of furore and protests from the bereft street art loving people of Wood Green, the piece was withdrawn from the auction.  Now it has returned to London, to be displayed, not far from my office, at the Film Museum in the old flower cellars in Covent Garden, where it is due to be auctioned on 2 June.
The brave organisers are a concierge business called The Sincura Group.  A statement on their website says:
The Sincura Group do not condone any acts of wanton vandalism or other illegal activity, however after carrying out extensive due diligence with regard the works provenance and ownership we are entirely satisfied that the mural was legally salvaged and that its current owners and its representative are acting in good faith by consigning the piece to us to act as the centrepiece of our forthcoming art show 'Banksy at the Flower Cellars”.
It would be very interesting to have the details of the “provenance and ownership”, but even if the purchaser is also “entirely satisfied”, he will be taking a risk in buying Banksy street art.  I happened to advise a client last week who had bought a piece of street art attributed to Banksy and who had applied for an authentication certificate from Banksy’s certification body, which is called Pest ControlIn response they explained: “We do not authenticate street pieces [as distinct from prints and canvasses] because they were not created as commercial works of art”. According to its website: “Pest Control deals only with legitimate works of art and has no involvement with any kind of illegal activity”.  So clearly Banksy is not going to be helpful in establishing that he created Slave Labour, and he might at any time deny it or cast doubt on it.