The Elephant in the Room: Ivory Ban Seeks to Curb Poaching

With the June passage of New York Senate bill S7890 and Assembly bill A10143, the Empire State’s elephant and mammoth ivory and rhino horn trade may be approaching extinction.

The legislation, which will take effect after receiving the governor’s signature:

  • Places a permanent ban on the commercial sale of elephant and mammoth ivory and rhino horn in the state.
  • Makes certain exceptions, authorizing the New York Department of Environmental Conservation to issue permits for the sale of the following items containing elephant ivory, such as:

1. 100 year-old antiques comprised of less than 20 percent elephant ivory, with documented proof of provenance

2. musical instruments (string, wind and piano) manufactured prior to 1975

3. elephant ivory where transfer of ownership is for education and scientific purposes including to a museum authorized by a special charter from the legislature

4. elephant ivory where transfer is by inheritance to a legal beneficiary of a trust or estate

  • Increases penalties as follows:
    • A fine of $3,000 or 2x the value of the article, whichever is greater, for the first offense
    • A fine of $6,000 or 3x the value of the article, whichever is greater, for the second offense
    • Class D Felony for any articles exceeding $25,000 (up to 7 years imprisonment)

Activist groups, including the Wildlife Conservation Society, National Resources Defense Council, and the Humane Society of the United States, have praised the New York legislation, which will likely drop New York from the No. 2 spot (behind all of China) among the biggest ivory markets in the world.

Some reports indicate that the population of wild African elephants, whose ivory can be worth $1,500 per pound, has dwindled from millions to about 500,000. The worldwide demand for ivory leads some to believe the mammals are killed at a rate of 30,000 to 35,000 per year.

The New York legislation comes after the United States Fish & Wildlife Service (“USFWS”) announced in February it planned to implement a series of administrative actions. Under these regulations, sales within the US would be prohibited, except for 1) a strictly defined class of documented antiques; and 2) in intrastate commerce only (not across state lines) for ivory or rhino horn imported prior to 1990 for African elephants, 1975 for Asian elephants, 1977 for black rhinos, and 1975 for any other rhino. A May update from the USFWS states it will allow musicians to transport instruments containing African ivory, and others to import museum specimens and “certain other items” not intended for commercial sale. Owners of these items must prove that the items were legally acquired prior to February 26, 1976, the date the African elephant was listed by the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).

The new law may move the ivory trade to other US jurisdictions in advance of the planned Federal ban. The legislation will likely affect the value of myriad items made with ivory or rhino horn. However, it is unclear the extent to which these monetary values will be impacted, as we have yet to see how these law will be enforced.

Last Wishes, First Impression: Potential legal issues arise after Munich recluse passes away, bequeathing Nazi-looted art to a Swiss museum

Cornelius Gurlitt’s notarized will, which did not surface until after his unexpected death this past May, lists the Kunstmuseum Bern in Switzerland as the heir to his vast art collection, which included works by Matisse, Dix, and Chagall. The unusual legal issue here: one month before his death, Conelius Gurlitt agreed to return all Nazi-looted artworks in his possession to the offspring of the rightful owners.

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French Court Supports Freedom of Authentication: A Win for Art Experts

Recently, the high court of appeals in Paris upheld an art expert’s right to refuse to authenticate a work of art.  While this decision took nine years to come to fruition, it validates an art expert’s freedom to make an authenticity determination that he or she sees fit, free from the pressures of legal liability for that decision.

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Ain’t Nothing Like the Real Thing: Despite Forgery Scandals, the Fine Art Market is Booming

On January 23rd, in a rare public appearance, Jasper Johns testified against a New York foundry owner, Brian Ramnarine, who was charged with creating unauthorized sculptures, including a fraudulent Johns “Flag” sculpture which Ramnarine allegedly made from the original mold and attempted to sell for $11 million.  Johns testified that the sculpture was not authorized, the signature was forged and the certificate of authenticity was a fake.  Ramnarine pled guilty to three counts of wire fraud in Manhattan federal court, admitting that he had tried to sell unauthorized sculptures of Johns and other artists.

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Mum’s the Word: New York’s Highest Court Maintains Anonymity in Auction Sales

In late 2012, we reported on a New York Appellate Division order that sent shockwaves and fear of instability through the auction house world.  Late last month, the New York Court Appeals issued its opinion in the case of William J. Jenack Estate Appraisers and Auctioneers, Inc. v. Rabizadeh, overturning the Appellate Division and ruling that an auctioneer need not disclose the actual name of the owner who has consigned the work.  The Court ruled that only disclosure of the name of the auctioneer would satisfy New York’s Statute of Frauds.  The decision reverses the earlier opinion and re-permits the long-established practice of anonymity with regard to the names of owners of auctioned works.

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The financial crisis and a new round of deaccessioning debates

When public institutions are suffering from financial deficits, one question is usually raised: can they sell art to survive? In the museum world it is generally understood that you are to deaccession art only if the work is duplicative of another work in the collection, or for similar collections-related reasons, and the sale proceeds are used exclusively for collections activities. Therefore, for example, you cannot seek to sell art to obtain sufficient liquidity to meet any financial obligation, or make debt service payments. There is little government regulation on deaccessioning (for example, the NY Board of Regents has the power to provide limitations on deaccessioning on New York museums chartered after 1890). However, private institutions such as the American Alliance of Museums (“AAM”) and the Association of Art Museum Directors (“AAMD”) have adopted for their members certain policy guidelines on deaccessioning. Their members are subject to sanctions such as censure, suspension and/or expulsion in the event they do not follow these guidelines.

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The Architecture of Copyright

This summer, Pacific Standard Time’s world-class exhibits highlight the architecture that gives Southern California its unique reputation for modern but relaxed style. This series of exhibits, a Getty initiative, titled “Modern Architecture in LA,” maps the aspect of Los Angeles architecture that is often overwhelmed by residential structures, instead focusing on infrastructure and urban planning, commercial and civic buildings, and housing experiments, among others. Architecture is an art form, and it is also a distinct practice in and of itself. When considering the relationship between art and architecture, it is interesting to see how these practices are at once similarly and differently protected by the law. The Copyright Act of 1976 and the Berne Convention have all resolved to give architects the protection they deserve. But is this protection enough?

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DOMA goes down – Copyright goes up – U.S. v. Windsor, Supreme Court, No. 12-307, decided June 26, 2013

The Supreme Court today handed down a far reaching decision throwing out an attempt by Congress to deny the benefits conferred by federal law on same sex couples legally married under state law holding that the Defense of Marriage Act (“DOMA”), as so applied, constituted a deprivation of the equal liberty of persons protected by the Fifth Amendment. In so doing, and perhaps without realizing it, the Supreme Court was also writing an important copyright case.

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Appropriate Appropriation: Second Circuit Holds That Commentary on Original Work Unnecessary for Fair Use Defense, Only Transformative Quality Required

In Cariou v. Prince, No. 11-1197-cv (2d Cir. Apr. 25, 2013), an opinion with significant importance for the art world, the U.S. Court of Appeals for the Second Circuit clarified what is required for a defendant’s entitlement to the “fair use” defense to a claim of copyright infringement, holding that the law does not require that a secondary use comment on the original artist or work, or popular culture, but only that the secondary work be “transformative.”

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