Tag Archives: art law

Gifts of art to the nation

Tomorrow is the last day for responding to the Government’s consultation paper on the new scheme for tax incentives for giving art to the nation.  http://tinyurl.com/6b56c63
The idea was first raised in the March 2011 budget.  The rationale, according to Jeremy Hunt, Secretary of State for Culture, Media and Sport, is that (and I paraphrase the Treasury press release) “With art being so expensive to buy for the nation, we would rather encourage philanthropists to give us art, in return for some tax incentive”.
Fair enough, but it can’t be any old item of art.  It must be a “pre-eminent object or work of art”.  That is likely to include items with an especially close association to our history or national life, that are of artistic or art historical interest and perhaps have an especially close association with a particular historical setting.
It is not yet known what the tax reliefs will be, but they will be capped at only £20m per year, which is for the whole scheme.  That cap is to be shared with the existing “acceptance in lieu” (AIL) scheme, which allows assets to be transferred to the Government in place of tax. AIL already accounts for about £12m per year, which does not leave much for the new scheme.  It seems that the relief will have to be rather mean or the works not particularly pre-eminent, or there can’t be many of them, which makes one wonder if the scheme is going to be worth the effort.
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Hanging

My property litigation partner, Alison Mould, has raised an interesting point. She tells me that permission may be required for attaching art to surfaces in premises that are let to the occupant.  Substantial works will require substantial hangings.  Anything more than the odd drawing pin may involve interacting with the fabric of the building and require a landlord’s licence to alter.  Licences can take two or three months to obtain and so, if anticipating an exhibition or gallery, this is something that will need to be factored into the timetable.
There’s good reason for landlords to be concerned.  One of our construction litigation partners, Frances Alderson, has a case where a building owner innocently hung several heavily framed paintings on a wall.  What he failed to check was whether the wall had been designed to take either the weight of the pictures or the movement in the wall caused by the weight.  In the event, the movement caused cracks, giving rise to a dispute as to who was to blame – the owner, the architect or the builders.
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Droit de suite

The reports last week of the decision of the Paris High Court regarding the droit de suite (aka artist’s resale right) on the sale of certain paintings by Salvador Dali are a reminder of what is coming our way.  In less than five months the scheme will be extended to the UK, for deceased artists, under EU Directive 2001/84/EC and the Artist’s Resale Right (Amendment) Regulations.

The scheme provides for part of the sale price of works of art, sold on the art market, to be paid to the artist or his or her heirs for 70 years from the artist’s death.  The maximum amount to be paid is €12,500 per item, based on a sliding scale from 4% down to 0.25% of the price.  The UK has dragged its feet for as long as possible, with the right being introduced for living artists in 2006 and it is now to be extended for deceased artists from 1 January 2012, which will quadruple its scope.
There is a fear that the London art market will be damaged as vendors will choose to sell in countries without such a scheme, especially the US, Switzerland and Hong Kong.  That may particularly be the case where there is a collection of items to be sold.  On the other hand, selling art is expensive and the amount paid under the right may make little difference in most cases. 
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Inspiration and risk management

At the risk of being disowned by my History of Art student daughter, I have to admit that installation art doesn’t engage me much.  The lawyer in me kicks in and I start thinking about what could go wrong.

For example, earlier this year, said daughter led me through The Forked Forest Path by Olafur Eliason at the Whitworth Gallery in Manchester.  For those unfamiliar with the work, it consists of an area of tall and dense bushes, all dead and very dry (it dates from 1998), through which you walk in a maze of paths in semi-darkness.  I soon began to fear that some bored child on a school trip might think it a great place to mess around with a cigarette lighter!

Then of course we had Ai Weiwei’s Sunflower Seeds at Tate Modern.  From originally inviting visitors to interact with the massive area of hand painted stone seeds, the stage was reached where they could only be accessed in white overalls and breathing apparatus (OK, I’m exaggerating slightly) in view of the potential health hazard from the dust.

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Enforcement against state-owned art abroad

The Czech government is urgently trying to repatriate its art lent to overseas institutions, to avoid it being seized to enforce a $500m Czech judgment, obtained against the Czech state by a commercial organisation. See Artinfo: http://bit.ly/jQskNk
Art has already been seized from a gallery in Vienna, and Paris seems likely to follow.  Could it happen in London?

Within the EU, it is relatively easy to get a court of one member state to recognise and enforce a judgment of another member state.  As the Czech Republic is in the EU, it is not surprising that the defendant is concentrating on Czech assets in other EU states.  The Czech government is arguing that the judgment is not yet “final” and, if that is right, it should not be enforceable at all, but some member states are more willing than others to allow “protective measures”, that is the freezing or restraining of assets pending the outcome of proceedings.  That is what has happened in Austria, but the English court would be far less willing to do that.

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Good news for experts and valuers

An interesting case has just been reported.  Ian W Spencer v S Franses Limited [2011] EWHC 1269 (QB)  provides a fascinating story, court room drama and some new law which will be welcomed by art and antiques experts and valuers.  You can read the reported judgment at http://bit.ly/lv9W6C
It concerned some valuable embroideries found by Ian Spencer, the claimant, in a house clearance, and valued by the well-known expert valuer and dealer, Simon Franses, whose company was the defendant.  What had previously been considered to be Victorian stage props turned out to be medieval and “national treasures”. 

In her reported judgment, Mrs Justice Thirlwall paints a colourful picture of the two protagonists, having watched them give evidence.  Mr Spencer was “highly plausible, determined to make a good impression and confident of his ability to do so.  He was often straightforward and engaging.  On occasions he was vague and evasive and sometimes did not tell the truth … He was cooperative and polite when he approved of the questions and overbearing to the point of rudeness when he did not.

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A murky world?

The recent trial of Accidia v Simon C Dickinson Limited [2010] EWHC 3058 (Ch) became quite a talking point in the art market, not just in London.  As I acted for the claimant, I was well aware of the interest generated by the press reports, and my own opinion piece in The Art Newspaper. How many art owners must have wondered about transactions they never fully understood, and how many dealers must have felt uneasy that their clients might ask questions they would rather not answer?


Read the judgment at http://www.bailii.org/ew/cases/EWHC/Ch/2010/3058.html

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