Art Collections, Private and Public

SPRINGER BRIEFS IN LAW Elina Moustaira Art Collections, Private and Public: A Comparative Legal Study SpringerBriefs in Law More information about this series at http://www.springer.com/series/10164 Elina Moustaira Art Collections, Private and Public: A Comparative Legal Study 123 Elina Moustaira Faculty of Law University of Athens Athens Greece ISSN 2192-855X ISSN 2192-8568 (electronic) SpringerBriefs in Law ISBN 978-3-319-15801-3 ISBN 978-3-319-15802-0 (eBook) DOI 10.1007/978-3-319-15802-0 Library of Congress Control Number: 2015932066 Springer Cham Heidelberg New York Dordrecht London © The Author(s) 2015 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. Printed on acid-free paper Springer International Publishing AG Switzerland is part of Springer Science+Business Media (www.springer.com) Preface In our times art is often created in order to constitute a part of a collection, private or public. It is not anymore conceived as part of a temple, a church, or a royal palace, as it was in the far past, but on the contrary it is destined to the isolated space of public or private collections. According to a certain opinion, this fact strengthened the oecumenical dimension of the art. Art collections, as everything that concerns artworks, cultural objects in general, need an interdisciplinary approach, even when one wants to study their legal treatment. A basic difference between the private and the public collections is that the latter are most often inalienable. Because of that, it is not easy to correct a “mistake” or, in other words, this is the reason why the “right to the mistake” is decisive in the history of art. Notwithstanding their difference(s), the connection between public museums and private collections is very close: On the one hand, public museums, especially of contemporary art, may have a strong influence on the choices of artworks by private collectors and on the other hand, many museums were based on private collections or/and accept donations of artworks by private collectors. Uses and legal regulations were and are often copied by states. Therefore, museums—a Western concept—were and are created all over the world, but also private collections are created and grow in various states, not only Western. Copying laws is not a guarantee for a uniform legal treatment and is not always successful. Details in the legal mentality, the legal culture of each state cause differences at the interpretation or/and the application of laws. It follows from this that there are many—sometimes enormous—differences in the various laws as far as the constitution, management, etc., of private collections and (public) museums are concerned. For example: There are different models of cultural politics that the states follow, with the (one of more) obvious consequence of difference in the treatment of public and private art collections. Sometimes collectors’ rights are “confronted” with the artists’ rights. The differences in national laws as far as this “confrontation” is concerned, are often big. v vi Preface The circulation of the artworks may have unforeseen and undesirable results if it is not controlled. Different states have different legal regulations. These differences are due to various factors which may be taken into account by the states’ legislators. However, it seems that there is a general agreement that the documentation of the artworks’ provenance is very important. “All the countries should have or try to create systems that would prevent suspect or clearly illicit acquisitions of artworks.” Obviously, a complete study of all these issues would need several volumes; such is the richness and the complexity of the legal regulations enforced by the various states. Nevertheless, I tried to present as clearly as I could the legal “landscape” of the art collections, public and private, using detailed examples of the legal treatment of different issues by the national laws. I would like to thank Springer-Verlag GmbH and especially Dr. Brigitte Reschke, Springer Executive Editor Law, for her precious advices. Contents 1 Introduction: Collecting Art ............................. 1 1.1 General Comments. 1 1.2 What Is Art? What Is an Art Work?. 2 1.3 The Importance of Cultural Property . 3 1.4 Are Definitions Important? . 4 1.5 Identity of Collectors . 6 1.6 Collecting Contemporary Art. 7 References . 8 2 Comparative Studies of Civilization—Comparative Studies of Art Collection ..................................... 11 2.1 Collectors in Different Parts of the World, in Different Moments of Time . 11 2.1.1 Enrico Cernuschi’s Collection—Italy, 19th Century . 11 2.1.2 Ernesto Francisco Fenollosa—Japan—USA, 19th–20th Century . 12 2.1.3 Argentina—Municipal Museums, 20th Century . 13 2.2 Models of Cultural Politics . 15 2.3 Art Education Policy—Comparative Cultural Policy. 17 References . 18 3 Collectors’ Rights “Versus” Artists’ Rights—Conservation and Collection Care ................................... 21 3.1 General Comments. 21 3.2 Moral Rights. 22 3.2.1 The Moral Right of Integrity. 25 3.2.2 Moral Rights—Aboriginal Art. 27 3.2.3 Case VARA Precedent? MASS MoCA V. Christoph Büchel . 28 3.3 Droit de Suite—Resale Royalty—Resale Right . 30 References . 33 vii viii Contents 4 Comparative Approaches to the Study of National Museums ..... 37 4.1 General Comments. 37 4.2 National Museums’ Characteristics: Are There? . 40 4.3 Indigenous Communities and National Museums . 41 4.4 Differences Between Museums of European Countries and Museums of the North American Countries. 43 References . 45 5 Private Collections “Versus” Public Collections ............... 47 5.1 General Comments. 47 5.2 Collaboration Between Museums and Collectors . 48 5.2.1 Germany . 48 5.2.2 Contracts Between Museums and Collectors: Are They Governed by Public Law or Private Law?. 49 5.3 Public Access to Private Collections. 51 5.3.1 Private Collections Open to People—Converted to Public Collections . 52 5.3.2 Donations by Private Collectors to Public Museums. 52 5.4 Particular Collections: Spain—Thyssen-Bornemisza Collection . 54 5.5 Management of Private Collections . 55 5.5.1 General Comments . 55 5.5.2 USA . 55 References . 58 6 Governance of Museums ............................... 59 6.1 General Comments. 59 6.2 China . 60 6.3 Italy . 61 6.3.1 Musei Ecclesiastici . 63 6.4 Germany. 65 6.4.1 Stiftungen Des Öffentlichen Rechts . 66 6.5 Spain . 67 6.5.1 Museo Del Prado: A New Juridical Regime . 68 6.6 France . 69 6.7 Canada—USA.................................... 70 6.7.1 Canada. 71 6.7.2 USA . 72 6.8 United Kingdom . 73 6.9 Archives . 74 6.10 Concluding Comments . 76 References . 76 Contents ix 7 Selling Art—Is it Permitted? And if Yes, Under What Conditions? .................................... 79 7.1 Inalienability . 79 7.1.1 A “Strange” Case: Korean Royal Archives as French Cultural Property?… .......................... 82 7.2 De-accessioning. 85 7.2.1 Arguments for and Against Deacccessioning . 86 7.2.2 Deaccessioning in USA and in United Kingdom . 87 References . 91 8 Cultural Economics ................................... 95 8.1 General Comments. 95 8.2 Museums Between Private and Public—The Beyeler Museum . 95 8.3 The Collector as Factor of Art Objects’ Market Value’s Construction . 97 8.4 Growth of Art Market Around the World . 98 8.5 National Art Markets . 99 8.6 Authenticity of Artworks . 100 8.6.1 Corporations as Art Collectors—The Paradigm of Spain . 100 8.6.2 Corporations as Art Sponsors . 101 References . 105 9 Museums and Collectors and the Illicit Trade of Art/Cultural Objects ............................................ 109 9.1 General Comments. 109 9.2 Export Prohibitions or Restrictions—Limited or Not. 110 9.3 International Conventions, European Union Rules and Trade of Cultural Objects. 114 9.4 Italy v. Marion True and Robert Hecht. 116 9.5 Immunity of Collections from Suit or Seizure . 117 References . 119 10 Conclusions: The Ethics of Acquiring Art and Antiquities ....... 121 References . 124 Chapter 1 Introduction: Collecting Art 1.1 General Comments Studying and writing about the legal regulation of art collections is a really very interesting and not at all easy or simple work. It absolutely needs an inter- or multidisciplinary approach. Law, of course, but also art history, sociology, and economy are intervening. A perfect field for comparative law research, that is! The word’s origin is the Latin term “collectio”, derivative of the verb “colligere”— the latter comes from the verb “légere” which has its origin in the Greek verb “λέγειν”. What is art?1 What is an artwork? Which is the essence of an art collection? When does a compilation of artworks may be called an art collection? Which are the distinctive aspects of such an art collection? Collecting art works has been one of the central axes on which art history has been based.

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