Tag Archives: art law London

Recognition

I was very pleased by the latest edition of the Legal 500 directory. It rightly claims to be the leading guide to law firms in the UK, and is partly based on discussions with clients, referees and competitor firms.  Fladgate got many positive rankings and comments, including:

Fladgate LLP’s ‘knowledge of how the art market works is outstanding’. Under the leadership of Paul Howcroft, who is ‘very clever, approachable, pragmatic and ego-free’, the practice acts for collectors, investors and intermediaries, both domestic and overseas, in transactions and disputes.

 
I shan’t argue with that.  If I had an ego, it would be suitably inflated!
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The Wadlow Shakespeare?

For the last couple of years, I’ve been involved with my client Steve Wadlow in his quest to determine whether his family owns what could be the only known proven lifetime portrait of Shakespeare.  It would be particularly topical in this the fourth centenary of the bard’s death.

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Another CITES case

Further to my last post about importing ivory, a recent judgment on a similar case caught my eye. 

In Juliet Forster-Copperi v Director of Border Revenue [2016] UKFTT 0157 (TC), UK Border Force had seized a whalebone sculpture at Felixstowe Docks in September 2014, and that was challenged by an appeal to the First Tier Tribunal. 
 

The appellant was the creator and owner of the sculpture.  She was a British born artist and sculptress, now in her 80s, who had lived in South Africa and decided to return to the UK.  She had been wrongly told by her shippers that no licence was needed to export the sculpture from South Africa, and she did not even think about whether a licence was needed to import into the UK.  Whales and their derivatives are protected by CITES and hence the seizure.  The bone was very old and had been gathered from the seashore.  Ironically, in the current circumstances, the appellant told the tribunal that the sculpture was part of a series she had been working on which “make a strong statement on man’s destruction of the environment, flora, birds and creatures of the sea”. The tribunal accepted that and that it was “a serious work of art”. 

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Challenging customs

Ivory is a complicated subject, legally and morally. 

The killing of elephants for their tusks is abhorrent, and doing so and trading in the ivory are internationally outlawed.  Where it gets problematical is with art and antiques.  Since prehistoric times, ivory has been used to create objects of art, or components such as piano keys, or to ornament items such as jewellery or furniture, sometimes to only a very limited extent.  Opinions vary as to how such objects should be dealt with, from compulsory destruction, to make a point, to leaving alone, as any wrong involved cannot be undone, and issues of cultural heritage and scholarship can arise. 

Fortunately, I do not have to decide laws, just work with them.  For cross-border ivory movement, the starting point is an international treaty known as CITES (the Convention on International Trade in Endangered Species of Wild Fauna and Flora) on top of which individual states have their own related laws and regulations.  If those can be satisfied, licences are required for exporting and importing.  

I recently had a case where a highly respectable London dealer, specialising in Indian and South East Asian Art, had bought some 17th century Indian carved ivory Yali brackets at Bonhams in New York.  These small items, the largest only 15cm high, would have formed part of a processional mandapa (temple hall), an elaborate structure that carried sculptures through the streets during special festivals. The brackets are very rare, and examples can be found in the Victoria and Albert Museum and the Los Angeles County Museum of Art. 

Unfortunately, due to an error on the part of the dealer’s carriers, the items arrived at Stansted Airport with inadequate documentary evidence of the US export licence that had been obtained.  As a result the UK Border Force seized the brackets and prepared to destroy them.  Although there could have been a claim against the carriers, the dealer’s main concern was the preservation of these important items.  He demonstrated what had happened, and he even offered to donate them to a museum, but UKBF would not be moved. They said the dealer should have made a new retrospective application to the US, and that he was at fault for not doing so, although such an application appeared to be impossible. 

Enter the lawyers.  The dealer’s legal team consisted of no fewer than three art lawyers: the English barrister Jessica Franses, me as solicitor conducting the case, and US attorney Nicholas O’Donnell, the last being able to attest to the impossibility of a retrospective licence.  A tribunal appeal was launched in November 2013.  Statements were obtained, including expert evidence on the historic and cultural importance of the items, but the UK Government’s lawyers remained unmoved.  Finally, after almost two years, and just two days before the trial, the UKBF caved in and announced that the decision had been reviewed and that the brackets could be collected from the airport, where they had remained. 

There are a number of points to be made.  First, dealers and their agents and contractors must take the greatest care to get the paperwork right.  Secondly, customs organisations can be very strict and inflexible.  Thirdly, they will happily destroy valuable art and cultural heritage.  Finally, it can take a lot of time, effort and determination to get them to see reason and act fairly, but it can be done.

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Street art revisited: Art Buff

A couple of years ago we in the Fladgate art team put our heads together to consider the potential legal problems in trading in street art and produced this article: Street art: the legal issues

It was a topical subject because of the auctioning of Slave Labour, which I covered in my post Selling Banksy street art
Now it is topical again with Friday’s High Court judgment in the case concerning Banksy’s mural called Art Buff.  The artwork had been painted in Folkestone on the wall of an amusement arcade called Dreamland.  The owners of the business, the Godden Family, had the artwork cut out under the supervision of an art dealer Robin Barton who specialises in such trade, under the name Bankrobber.  It then came into the hands of the New York based Kessler Gallery who brought it to Art Basel in Miami where it was exhibited with a price of US$720,000. 
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The strange world of private art sales

I am often contacted by new or existing clients who are putting together a deal for the sale of some work of art, usually for an eye-watering amount.

These people are not the current owners, nor the proposed purchasers, but something in between: agents, advisors, introducers, dealers, and often not quite sure themselves.  They are sole traders whose only capital is their art market connections. They usually see themselves as being on the side of the buyer or seller, but sometimes both or neither.  They might be part of a chain of such people that will link the buyer and seller, or they are to one side of the chain.  Rarely will the art pass through their hands, either physically or by ownership.  Their interest is in some percentage or lump sum, but from whom, under what obligation and in what circumstances can be unclear.
No one knows the identity of everyone involved. Parties prefer to be confidential, and for a link in the chain to introduce the links on either side to each other would risk the in-between link being bypassed. The work of art is usually known, and so there is probably an owner ready to sell, but no one is sure if the ultimate buyer is in place, or still being sought.  If in place, unknown alternative chains might already be forming between the buyer and seller.
I can be asked to help to get the deal off the ground.  A lawyer’s ‘letter of intent’ seems to make an impression, because I am often asked to do one.  However, the letter will be carefully drafted to avoid any commitment, and all it really shows is that a lawyer has been brought in, which I suppose indicates some level of intent.
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Sotheby’s wins The Cardsharps case

We now have the keenly awaited High Court judgment in The Cardsharps case. 
 
This was a negligence claim against Sotheby’s who had advised a Mr Lancelot Thwaytes in 2006 that his painting of The Cardsharps was a copy of Caravaggio’s painting of that name, currently in the Kimbell Art Museum in Fort Worth, Texas. Sotheby’s described Mr Thwaytes’ painting as being by a “Follower of Caravaggio” and, as a result, that was the basis on which it was auctioned by them, selling for £42,000.
 
The lady who bought it did so on behalf of her friend Sir Denis Mahon, who was described by the judge as “a lifelong Caravaggio scholar of great renown”.  In November 2007, at a party to celebrate his 97thbirthday, Sir Denis announced to the world that after cleaning, restoration, extensive investigations, and input from other experts, it was clear that the painting was a replica painted by Caravaggio himself, and therefore worth many millions of pounds.  Needless to say, Mr Thwaytes was rather miffed to hear this.  He brought a claim against Sotheby’s for damages for negligence.  Rather than claiming and having to prove that Sir Denis had been right and Sotheby’s had got it wrong, which Sotheby’s and some experts still do not accept, the claim was that Sotheby’s failed to spot that the painting had “Caravaggio potential”.
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Warburg confirms independence

My daily walks between station and office take me past the Warburg Institute, housed in a drab 1950s building in Woburn Square.  My knowledge of the Institute was until now limited to a vague recollection that the disgraced art historian and Soviet spy Sir Anthony Blunt had the title of Warburg Institute Professor. I could not find that on the Institute’s website, but perhaps it would prefer to be known for other things.  That should now be helped, at least in the English legal world, by the judgment in University of London v John Prag and HM Attorney General [2014] EWHC 3564 (Ch).

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Hirst’s Bombay Mix-up

There was an interesting article in The Telegraph last week about a work called Bombay Mix, by Damien Hirst, and the dispute between his certification company, Science Ltd, and a Mr and Mrs Simpson who possess the work.

According to the article, in 1988, Hirst was commissioned to paint Bombay Mix, an early spot painting, on some wallpaper in a house owned by Mr and Mrs Ritblat.  Science claims that, before the house was sold, it was agreed with the Ritblats that in return for the painting being destroyed they would be given an alternative portable painting.  The wall painting was not destroyed and was still on the wall when the house was bought by the Simpsons in 2005.  In 2007, the Simpsons employed specialists to have the painting removed from the wall and mounted on backing board.  The Simpsons now want to sell it.
In the circumstances, Science has refused to issue a certificate of authentication, has claimed ownership and demanded the painting’s return for destruction.
This case raises several issues but, before commenting, I must make two assumptions: that the facts in the article are correct and there are no other relevant facts.  As a lawyer who has had cases reported in the press, I know just how big those assumptions are.
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Mediation of art disputes

Earlier this year, my firm co-hosted a seminar with the Chartered Institute of Arbitrators, on the resolution of art disputes.  I shared the platform with Henry Legge QC, a leading art barrister, and Sarah Charles of Christie’s. It was a great success and there was clearly a lot of interest in the mediation of art disputes, both from the professionals and the market players in the audience. 

Mediation is a process to achieve a settlement of a dispute, as an alternative to bringing court proceedings or to continuing them.  It usually involves a day with an independent mediator who meets with the parties, sometimes together, sometimes separately, and applies all sorts of skilful means to get the parties into negotiation, usually via the mediator, with a view to getting them to reach a settlement.  Success rates are remarkably high for parties who have a will to settle, even if they begin the day a long way apart and would not otherwise be expected to reach agreement. 
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