by Amineddoleh & Associates LLC | Oct 4, 2022 |
The following guest blog post was written by Andrea Martín Alacid.
Following other European museums such as the Musée du Louvre in Paris and the British Museum in London, Museo Nacional del Prado (the Prado) in Madrid recently announced a new initiative. It would carry out an ex officio review of its collection to identify works of art seized during the Spanish Civil War and Franco’s regime by the Board of Seizure and Protection of Artistic Heritage founded in 1936 (and known as the Board of Artistic Treasure from 1937 onwards). Following the museum’s initiative, 25 documented works that were never returned to their rightful owners have been identified so far, but there is no doubt that this number could increase.
In response, the Prado has commissioned Professor Emeritus Arturo Colorado Castellary to lead a research project at the museum with the aim of clarifying the provenance of some of its works. His research will examine the background and context in which the works entered the Prado’s collections, in order to promote transparency and (if necessary and in compliance with all legal requirements) return them to their rightful owners. Professor Colorado is expected to share the first results of his research in early 2023.
Following the Prado’s announcement and after a great deal of research, this initiative has already borne fruit. The heirs of Pedro Rico López (a lawyer and Republican politician, as well as the mayor of Madrid in the 1930s), have begun the restitution process for the at least 25 paintings thus far. It was not until February 2021 that López’s grandchildren first learned about the whereabouts of their family’s artworks. The works were seized during the post-war period. The heirs eventually learned of the seized assets from an article, El botín del patrimonio español que el franquismo repartió en la posguerra (The spoils of Spanish heritage that Franco´s regime distributed in the post-war period), published in the Spanish national newspaper ABC, after Arturo Colorado’s research came to light . The heirs retained Spanish art law firm Caliope Art Law Boutique, founded by Laura Sánchez Gaona, to set forth their claim.
As a result of the research carried out by the due diligence department of the law firm, along with the information provided by the Spanish General Directorate of Fine Arts, led by Isaac Sastre de Diego, the current location of 23 of the family’s artworks in various Spanish museums was discovered. In September 2021, members of the Caliope Art Law Boutique accompanied one of the heirs to identify the three Eugenio Lucas paintings in the custody of the Prado. The heirs had previously never seen these works in person. Although this was just a first step, it was an emotional moment for all those present, including Andrés Úbeda de los Cobos (Deputy Director of Conservation and Research) and Carlos Chaguaceda (Director of Communications) working on behalf of the Prado. While viewing the three paintings, it was noted that the Prado kept the Seizure Board’s labels intact. This is most valuable as the label recorded the name of the works’ rightful owner, Pedro Rico.
The paintings currently held by the Prado, together with the other works documented, have been in the possession of different administrations for a number of decades. Under the law of adverse possession in the Spanish Civil Code, the museums are considered the legal owners. However, the State Attorney General’s Office has recently reevaluated this doctrine in the context of plundered works of art. As a result, the first restitution of a work of art seized during the Civil War took place last month. The recipients are the family of Ramón de la Sota Chalbaud, and the work in question is Portrait of a Young Gentleman by Cornelis can der Voort. This landmark restitution has paved the way for new cases to come.
In short, there is no doubt that this initiative by the Prado, together with the re-evaluation of adverse possession, is a crucial and significant step in the restitution procedures of looted cultural heritage in Spain, which unfortunately lack a specific legal framework at this time. It is likely that this framework will be developed in the near future, and we eagerly await ongoing developments.
We congratulate our esteemed colleagues and friends in Spain for their remarkable work fighting for justice and paving the way for equitable restitutions in Europe.
by Amineddoleh & Associates LLC | Sep 27, 2022 |
As everyone in the fashion industry knows, September means one thing: fashion week. With New York Fashion Week already behind us, Milan Fashion Week coming to a close, and Paris Fashion Week mere days from kicking off, the intersection of art, high fashion, and daily life has come together in multiple shows celebrating streetwear as haute couture (although this isn’t the first time fashion brands have taken visual inspiration from art on the street).
Looking rumpled, it turns out, is an art form. Custom, high-end designer streetwear is no new phenomenon. Take fashion designer Dapper Dan’s (Daniel Day’s) styling of hip-hop moguls in the 1980s. Through innovative silk-screening and layering techniques (and at a hefty price-point), Dapper Dan fused high fashion with an everyday wearability, heightening the drama of the growing hip-hop music scene. For Dapper Dan (who goes by “Dap”) and others who take guidance from his work, including Savile Row’s Rav Matharu of Clothsurgeon’s bespoke streetwear, the challenge of creating these garments lies in blending high-end luxury with the lifestyle the current wearer is already living. This sometimes involves the use of someone else’s corporate branding in the streetwear’s design. As a result, promoting and selling the final product can become nearly as tricky as the production of the garment itself.
Dapper Dan, for example, famously faced legal challenges from Italian fashion giants Gucci and Fendi, for screen-printing their logos on his leather pieces and outwear designs. In fact, Dapper Dan faced so many lawsuits from Fendi, Gucci, and other luxury brands after incorporating their logos into his designs that he was sued out of business in 1992 and forced to close his Harlem boutique.
The reason fashion houses are often quick to initiate lawsuits when they see their work being used elsewhere is because fashion is a billion-dollar global industry. Yes, artistic ingenuity, originality, and fame are at stake when a designer’s work or logo is being copied without authorization – but so is the potential for a large settlement.
Often, the exact amount that is paid in a settlement is kept private between the parties to the lawsuit, such as the case between Hell’s Angels and luxury designer Alexander McQueen. In 2010, Hell’s Angels sued McQueen for using its “winged skull” motif on bags and jewelry. Not only did McQueen settle with Hell’s Angels for an undisclosed amount, but the suit became so intense that the fashion house actually promised to destroy the merchandise that contained the Hell’s Angels winged skull design.
The secrecy element begs the question: how much is an undisclosed settlement worth in a fashion trademark lawsuit? Gucci’s lawsuit against fast-fashion brand Guess may provide some insights. In 2012, Guess paid Gucci $4.7 million dollars in damages for trademark infringement of Gucci’s interlocking “G” and diamond print logo that Guess used on shoes and other accessories. However, this settlement, astonishing as it was, was considered a blow to Gucci, because it was only a portion of what Gucci had requested in litigation (a staggering $221 million dollars). Gucci’s expectations in this case serve to illustrate both the motivation and the mindset of big fashion houses in their dogged pursuit of trademark claims.
While protecting artistic originality is certainly one of the benefits of fashion trademark lawsuits, along with preventing consumer confusion, there is a strong argument against initiating trademark-based lawsuits involving streetwear brands, specifically. This is because streetwear style can be traced to the intersectionality and collaboration behind the 1970s hip-hop movement. The community-building expression of the diasporic cultural narratives of Black, Latinx, and Caribbean histories continue to provide a foundation for the styles seen on this fall’s runways. The roots of streetwear, both on stage and in the audience, are principled on the sharing, refining, and reworking of culture. Thus, streetwear must reference (and sometimes infringe upon) our worship of consumeristic branding, in order to use those same brands to tell a new story.
Due to this process, Dapper Dan (“Dap”) is a good example of a streetwear designer whose artistic freedom thrives on appropriating other designers as a form of cultural commentary. In the words of rapper Darold Ferguson, Jr (“A$AP Ferg”), [w]hat Dap did was take what those major fashion labels were doing and made them better.” In doing so, “Dap curated hip-hop culture.” Through this lens of Dap as a “cultural curator,” Dap’s forced closure of his boutique in 1992 becomes even more heartbreaking, because it was the result of legal challenges brought against him by large fashion houses with significantly greater financial resources. This worked against his emergence as both an outstanding artistic talent and a cultural icon.
A framework for streetwear designers to cohabitate with luxury brands in the industry in a way that is artistically and economically beneficial to both sides is clearly required. Fortunately, for Dap, this came to fruition in the re-emergence of his Harlem boutique in 2018, reincarnated through his son’s opening of a new Harlem store. The joint venture was backed by none other than Gucci – the same Gucci whose legal challenges once threatened to ruin Dap.
Dap and Gucci’s collaboration provides a basis for streetwear designers to obtain artistic freedom to reinvent styles through commentary on current culture, the results of which construct a stage to effect social change. At the same time, streetwear brands are not forced to appropriate luxury trademarks to spark activism through fashion. Avoiding trademark infringement in streetwear is a tall order, but it can be done. At this year’s fashion week, it was done flawlessly.
Take Disco Inferno & 14N1’s Fall 2022 show entitled More Fashion, Less Gun Violence, to witness a stunning evocation of streetwear fashion’s ability to tell the story of humankind. The show brings hope to an incredibly dark shared history, and does so through an impeccable (if casual) fit.
When checking out the shows this year, keep an eye out for the intersection of streetwear and high-fashion, and how the combination references the roots of the American hip-hop cultural movement. Notice the dominance of luxury logos featured on runway models and front-row attendees, alike. Should brands be prevented from reworking luxury trademarks in their designs in order to criticize contemporary culture? When should the law protect the fashion houses, and their economic stakes, by protecting their marks?
by Amineddoleh & Associates LLC | Sep 15, 2022 |
The Stone of Scone in Westminster Abbey
Last week’s passing of the cultural and political icon, Queen Elizabeth II, marks the end of an era, as well as the beginning of a new reign for her son, King Charles III. While the King’s coronation is a long way off (likely to take place in 2023), preparations for the events are already underway. Centuries-old traditions are being planned to punctuate the big day, including the assemblage of one of the globe’s most exclusive guest lists. And the most important guest on that list is an enormous slab of rock. Not to be confused with The Rock, the Stone of Scone is an ancient Scottish artifact. And it is what it sounds like – a large, grey stone – and its presence at the coronation is nearly as essential as His Majesty’s.
Edward Longshanks (portrayed in Braveheart). Copyright: 20th Century Fox Film Corp
Originally used as a throne by the ancient Scots to crown their rulers, the Stone was stolen by King Edward I during the Scottish Wars of Independence in the late 13th century. In stealing the Stone, King Edward sought to send a message to the Scots by establishing himself as their rightful monarch. Unbeknownst to Edward, the Scottish people did not intend for such pillaging to go unpunished, even if the retaliation did not take place until centuries in the future.
In 1950, four unlikely heroes – a motley group of students, led by ringleader Ian Hamilton – snatched the Stone from its place in the Chapel in Westminster Abbey. The quartet then literally carted the antiquity back to Scotland in not one – but two (more on that below) – Ford Anglias. The heist – though ultimately successful – did not occur without a hitch (hence, the two Fords). During the dislodging of the Stone from King Edward’s Chair in King Edward’s tomb, the Stone somehow slipped and smashed to the floor, breaking into two pieces. Not to be deterred, the foursome quickly bundled up the Stone in two packages. One piece was placed in Ford #1, which set off for home. The second piece was tucked into the trunk of Ford #2, driven by our ringleader, Hamilton.
Unfortunately for Hamilton, the night’s struggles were not quite complete, and as dawn broke over the horizon, a policeman approached the car, curious as to why two students were quickly and nervously dashing away from the Abbey at 5am. Hamilton and his fellow passenger jumped into a feigned lover’s embrace, and, after swapping a few innuendos with the policeman, were sent happily on their way.
This resolved the exit part of the theft, yet left unresolved the issue with the Stone being smashed into two pieces. Upon arrival in Scotland, the Stone received some TLC and a professional mending by a stonemason, who, in addition to doing fantastic masonry, was also phenomenal at keeping secrets. The mason fixed the Stone and breathed not a word to the authorities. But several months later, police received a call about the whereabouts of the Stone: it had been deposited in the Arbroath Abbey in Scotland. This is where the Stone remained until 1952, when it was returned to Westminster Abbey in England.
And what about our “bravehearted” student thieves? They were eventually questioned by the authorities, leading Hamilton to confess the entire episode. However, none of the students faced prosecution for their theft, due to the incredible political implications of the heist and the ensuing renewed vigor for Scottish nationalism and devolution efforts.
The 1950 theft became both infamous and synonymous with a separate and distinct Scottish identity, as essentially a testament in itself to the history of independent Scottish reign. In fact, the theft became so closely associated with Scottish independence that England’s return of the Stone to Scotland in 1996 is believed to have been a catalyst for the vote for Scottish devolution in 1997.
Today, the Stone remains in Scotland and travels to England only for the coronation of a new British monarch. As the Stone comes back into the global zeitgeist due to the preparations for England’s crowning of a new King, the Stone’s cultural, political, and historical significance cannot be overlooked. The Stone – and its rare journey between the two Abbeys – encompasses the history of the Scottish monarchy, the legitimacy of British rule, the enduring spirit of Scottish cultural identity, and the undercurrent of thievery and war.
Our thoughts are with the Royal Family and all citizens of the United Kingdom during this time of mourning.
by Amineddoleh & Associates LLC | Sep 9, 2022 |
Our founder appeared on Al Jazeera to discuss the return of dozens of looted antiquities from the Metropolitan Museum of Art. She discusses the importance of conducting due diligence and proactively researching items in museum collections. The short news segment can be found HERE.
by Amineddoleh & Associates LLC | Sep 9, 2022 |
A New York bill signed into law on August 10, 2022 will require museums to provide a notice to viewers if works of art on display have links to the Holocaust. This groundbreaking and restorative legislation accompanies two other Holocaust-related bills signed into law: one aimed at increasing Holocaust literacy through curricula in educational institutions, and the other designed to increase pressure on banks that assess fees related to Holocaust reparations. All three bills work in concert to combat rising reports of antisemitism through these targeted cultural, economic, and educational channels.
Provenance
While other states are considering enacting similar legislation to increase Holocaust literacy in schools, New York stands apart in dictating these trailblazing requirements for museums to publicly acknowledge the devastating conditions under which they may have acquired certain works. The origin of a work of art is known as its provenance, and its applicability extends beyond Holocaust-era stolen works (you can access our blog post on the fight to prove provenance for Mexican antiquities here). Provenance is important not only to establish a chain of title when purchasing a work, but also to determine its cultural, political, and financial value.
Proving provenance is no small task, particularly when items have been stolen. This task is rendered even more difficult when the theft occurred during or shortly after the chaos of war. In the case of works stolen during the Holocaust, both these hurdles were present, with the added complications of global economic upheaval, unimaginable human suffering, an overwhelming refugee crisis, and the genocide of the class of people from whom the works were primarily stolen. The process of proving provenance for works stolen during WWII typically involves the heirs of deceased Jewish family members bringing claims to museums in hopes of establishing legitimate ownership of works held by a museum through whatever documents were salvaged after the war. This can include references in letters and diaries, family photographs, and bills of sale. The museum then has its own systems to determine the legitimacy of such claims. If provenance is not proven after the museum’s internal investigation, the museum is then able to claim that it “legally” retains the artwork.
Of course, this is devastating news to families seeking to reclaim an important piece of family heritage. If a museum denies heirs’ claims, they may proceed to file litigation. One high-profile example is Gustav Klimt’s portrait of Maria Altmann, titled Woman in Gold. Another is the ongoing Cassirer case, involving the Museo Thyssen-Bornemisza in Madrid. However, these cases often take years – if not decades – to resolve, leaving the artwork in legal limbo until a final decision or settlement is made.
It is important to keep in mind that Gov. Hochul’s new law does not specifically address the need to return works to individual families (restitution). However, it does bring to light the importance of acknowledging a work’s provenance as an important cultural indicator of the suffering of a class of people, even if it does not repair the harm done to individual families. Thus, the heirs or successors-in-interest of a dispossessed owner will need to rely on alternative avenues to recover their property.
Restitution
The effect of the public notice requirement speaks to justice outside the courts that can be accomplished through the voluntary restitution of stolen artwork. When restitution is carried out by leading art institutions as part of a larger “duty to remember,” it aids in cultivating peace and strengthening non-legal measures of restitution. Furthermore, it sets a positive example for other art world participants. While public art institutions have often not returned potentially looted art to the heirs of their original owners when proof of theft is not evident, many have expressed a desire to not retain stolen work. Even so, museums as a whole tend to be reluctant to part with prized pieces, particularly when the works claimed as stolen are the very ones that draw visitors to their galleries.
Case law
Decades of case law in the U.S. indicate the difficulties facing claimants. Recent cases against New York museums resulted in wins for the institutions, yet not due to the merits of each respective case. Rather, the Museum of Modern Art squeaked out wins through a confidential settlement, and defended itself by claiming that the statute of limitations had run. In another case, the Metropolitan Museum of Art made the affirmative defense of laches, under the theory that claimants made an unreasonable delay in bringing suit against the museum for a valuable painting by Picasso.
Even the most recent ruling in the Guelph Treasure litigation did not fare well for the claimant heirs. The Guelph Treasure litigation follows claims brought by the heirs to a priceless haul of German ecclesiastical relics, currently on display in the Bode Museum in Berlin. The heirs claim that the relics were sold under duress to the Nazi government in 1935 for less than their market value. The museum’s foundation argues that the sale was voluntary, and, further, was not made under the pressure of Nazi occupation in Germany.
Last month’s ruling by the District Court for the District of Columbia dismissed the case on jurisdictional grounds, stating that the Foreign Sovereign Immunity Act (FSIA) blocked suit of Germany in U.S. court (this confirms the holding by the U.S. Supreme Court that remanded the matter to the district court). The claimants relied on an exception to the FSIA which prohibits expropriations that violate international law, arguing that dispossession in cases of genocide qualified for this rule. However, the court found that the claimants failed to prove that their ancestors were not German nationals at the time of the sale, meaning that only domestic law – not international law – was involved. As such, U.S. courts do not have subject matter jurisdiction over the matter, meaning that U.S. courts are unable to make determinations on German domestic law.
The district court’s decision does not eliminate the possibility of appeal or further pursuit of the Guelph Treasure through alternate measures in Europe. However, claimants often prefer to file disputes in the U.S. because American courts have historically been more lenient for Holocaust-related actions, particularly on statute of limitations grounds. In most European countries, causes of action for property stolen or lost during WWII have already expired. For example, Poland recently passed legislation that reduced the statute of limitations on all restitution cases to 30 years from the theft’s occurrence; this effectively bars all Holocaust restitution claims.
It is important to note that not all hope is lost. Some museums have, on their own initiative, refused to turn a blind eye to the problematic origins of some of their beloved works. The North Carolina Museum of Art, for example, returned a 16th-century painting by Lucas Cranach the Elder to an Austrian family after learning that the work was stolen by Nazi officials in 1940. And the Museum of Fine Arts in Boston (MFA) recently returned View of Beverwijk by Salomon van Ruysdael to the descendants of a Jewish art collector and politican, from whom the work was stolen by Nazi forces.
In the case of the return of View of Beverwijk, the museum and the claimant family each had a role in making the restitution possible. First, the MFA received new provenance information regarding the work and updated its museum website. The family’s lawyer then used that new information to provide a missing link to prove their ancestor’s possession.
It was truly a moment of teamwork, and sets an example for other museums seeking to actively become part of the solution in remedying the trauma of the Holocaust. The MFA’s curator for provenance, Victoria Reed, stated (upon the return), “To be able to redress that loss, even in a tiny way, I think, is gratifying. And it certainly is part of what we should be doing as a museum.”
At the same time, voluntary returns of artwork by museums are few and far between, and the battle for individuals seeking to prove provenance remains a lengthy, cumbersome, expensive, and uphill battle. In light of these hurdles, requiring museums to publicly notify guests of the potentially tragic origins of works they have on display is a start. Doing so gives voice to the people who were silenced under the traumatic and systematic genocide of the Holocaust and lost their homes, families, and ties to their history and culture.
New York’s actions, in this sense, are an act of strength in the face of the general reluctance by museums to acknowledge that there are times in which the display of art may perpetuate war crimes. As Maya Angelou put it, “History, despite its wrenching pain, cannot be unlived. But if faced with courage, need not be lived again.”
