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The Deal of the Art

The problematic past (stolen antiquities) and problematic future (AI) of art law

Photo by Adam Lerner

Published in 2023 New York Metro Super Lawyers magazine

By Jessica Glynn on September 25, 2023


In 2018, Laura Young was browsing her local Goodwill in Austin, Texas, when a marble bust caught her eye. Upon feeling its 52-pound weight, she was pretty sure it was worth more than its $34.99 price tag and promptly bought it. In the car, she carefully strapped the head with a seatbelt—a photo that would later be widely circulated in newspapers around the world—and went home to start calling auction houses. A Sotheby’s provenance researcher was able to identify it as a 2,000-year-old ancient Roman sculpture that had been part of a German king’s art collection and then in Ludwig I’s Pompejanum—his replica of a Roman villa in Bavaria—until it was bombed during World War II. Then the piece vanished for 80 years.

All of which meant: 1) No auction house was going to touch it, regardless of how valuable it was; and 2) Young needed an art lawyer.

She was referred to Leila Amineddoleh in New York City, an attorney who served as expert for the Manhattan District Attorney’s Antiquities Trafficking Unit, as well as counsel to many clients who inherited work of questionable provenance.

Amineddoleh with the ancient Roman bust bought for $34.99 in a Goodwill in Texas.

“That case was so different,” says Amineddoleh. There wasn’t much gray area. The records were clear that the bust was added to King Ludwig I’s collection decades before Italy established a cultural patrimony law protecting its antiquities; and there were photos of the bust at Pompejanum before it was bombed.

“I told her if you want to sell this, just know Germany is going to find out, and they’re going to sue you, and you’re going to lose, and you’re going to spend a lot of money,” Amineddoleh says. “She was not thinking of that route, but as a lawyer I had to tell her anyway. Because it’s a very valuable work, I think most people would say ‘I’m going to try to sell it quietly and no one will know about it,’ whereas she made the ethical choice.

“She was a great client,” Amineddoleh adds. “Basically what she said was ‘I’m not going to try to do anything illegal. It should go back to Germany. But what can I get?’ … And we came up with some creative solutions.”

Along with a finder’s fee, Young wanted the work displayed in Texas before it went back to Germany. So for more than a year, visitors at the San Antonio Museum of Art got to see it. “As a lawyer, you find out what’s important to someone. She was a history major and loved that it was a story told around the world and brought attention to antiquities and war looting.”

A debate arose about who exactly it immortalized. Amineddoleh’s documents referred to it as Germanicus, but once it got to the museum in Texas, speculation began that it looked more like Pompey. Germanicus died young and Pompey was a rival to Julius Caesar, so there aren’t many depictions of either. “It really captures the public’s imagination,” Amineddoleh says.

The same can be said for art law. Even when the agenda has little to do with lost treasure or tomb raiders or elaborate heists, there’s still magic in visiting a new gallery or museum as part of your job, or in geeking out over all the legal pitfalls and possibilities presented by the implications of artificial intelligence producing art.

Indeed, when onetime securities litigator Amelia Brankov first heard of art law as a practice area, she laughed out loud. “I thought that was such a fanciful thing,” she says, “like seeing a unicorn.”

Now a litigator advising artists, galleries and collectors in complex disputes and transactions, Brankov chairs the Art Law Committee of the New York City Bar Association, a group of about 50 lawyers who get together once a month to discuss hot topics in the art law space. “There’s always something new to grapple with,” she says.

Likewise, Gabrielle C. Wilson of Kaye Spiegler, a former professional dancer, considers herself lucky to focus on art law. She’s part of the team that represented famed rock ‘n’ roll photographer Lynn Goldsmith in her copyright infringement case in the Southern District of New York against the Andy Warhol Foundation over his use of her Prince portrait.

“I still am in awe that it got all the way up to the U.S. Supreme Court,” she says, “and in the end the Supreme Court decided that we were right.”

Warhol created 16 images based on Goldsmith’s photograph, one of which ran in Vanity Fair in 1984 for which the magazine paid her a $400 licensing fee. After Prince died in 2016, the magazine paid the foundation $10,250 for the use of a different image in the series but did not pay Goldsmith. In a 7-2 decision, the court said the photographer was entitled to copyright protection since the new use was both similar and commercial.

“They were both used for illustrations in magazines—it doesn’t get more similar,” Wilson says. “I’m really happy that Goldsmith came out on top. … It’s clear you’re going to need a license if you want to use a photographer’s work in something that may be determined to be for a commercial purpose.”

As for her work in recovering cultural patrimony, Wilson sees prosecutors becoming more aggressive in the area. “The Manhattan District Attorney’s Office is really going after individuals and entities in possession of these works,” she says. “It’s becoming more of a criminal matter.”

That’s a very different landscape than the one Howard Spiegler encountered as he pioneered antiquity and Nazi-looted art recovery, along with the late Harry Rand and Lawrence Kaye, starting at Botein, Hays, Sklar & Herzberg in the 1980s.

The first case he worked on, fresh out of Columbia Law School, resulted in a New York judge’s order to return two famous 16th-century paintings by Albrecht Durer to an East German museum—a shocking development for the art world of 1981, Spiegler says. The portraits had been stolen from a German castle occupied by U.S. troops and sold for $400 to a Brooklyn lawyer who hung them on his wall for 20 years before a party guest realized what they were.

“It was unheard of that a country could come into the United States, sue a museum and get back property that had been looted,” Spiegler says. “There were no restitution lawyers in those days. It was a new area.”

A few years later, the government of Turkey hired the firm after an investigative journalist there told officials that a trove of antiquities at the Metropolitan Museum of Art—the Lydian Hoard of silver and gold artifacts from the kingdom ruled by Midas and Croesus—was likely looted from within its borders. The Met filed for dismissal, but the U.S. District Court for the Southern District of New York sided with Spiegler’s team and denied the motion. In 1993, after years of discovery and failed attempts to negotiate a settlement, the Met gave the pieces back before the trial could begin. In another matter for Turkey, Spiegler and his team used police records and testimony from thieves to prove that the Elmali treasure of silver coins from fifth century B.C. Greece, in the possession of collectors including William Koch, had been looted.

This area of law soon expanded to include the first major case involving Nazi-looted art.

In 1939, as Lea Bondi and her husband prepared to flee their home in Vienna for London, she was visited by Nazi art dealer Friedrich Welz, who noticed her Portrait of Wally, a 1912 painting by Austrian expressionist Egon Schiele. He demanded the piece from her private collection and she relented, fearful of what he might do.

In London, she set up a gallery but never knew what had happened to the portrait she loved. In 1953, when she was visited by Rudolf Leopold, an Austrian collector of Schiele, she asked if he knew anything about the work, and he said it was at the Oesterreichische Galerie Belvedere. Bondi implored him to get it back but never heard anything more—until a few years later when she learned the portrait was in a Leopold exhibition. He had gotten it back for his own collection.

Though she hired lawyers, she never sued, believing the chances of a Jewish citizen recovering artwork were low. She passed away while Leopold amassed a huge collection, mostly of Schieles, and created the Leopold Museum in Vienna. In the late 1990s, Leopold decided to exhibit some of his works, including Wally, at the Museum of Modern Art, which is when one of Bondi’s heirs contacted Manhattan DA Robert Morgenthau, who issued a subpoena to stop the piece from being sent back to Austria.

MoMA fought the subpoena, citing a New York law that out-of-state artwork on loan to museums could never be seized.

“No one had ever tested it in a criminal context,” says Spiegler, who would become lead attorney for the family and work closely with the U.S. attorney’s office. “The case went up to the highest court of the state and the court determined the law does apply and the artwork should be returned to Austria.”

Realizing such an outcome was likely, Spiegler and Kaye preemptively visited Sharon Cohen Levin, head of the asset forfeiture unit at the U.S. attorney’s office in Manhattan, which he hoped might initiate a civil forfeiture process before the artwork was put on a plane. As soon as the court’s decision went down, he phoned Levin to let her know. She thanked him, hung up, then immediately ordered the seizure of the work, allowing the family’s claims to move forward. The case would last for another 10 years, resulting in a $19 million settlement in 2010, along with the family’s requirement that wherever the portrait was exhibited it would always have a plaque detailing its true history and ownership.

“It showed that for these families victimized during the Holocaust, it’s not just a matter of getting their artwork back,” he says. “They want the legacy of their predecessor and the true story told. It was essentially one of the first cases of the recovery of Nazi-looted art and the first case where the U.S. government became involved.”

That victory, along with the 1998 Washington Conference on Holocaust-Era Assets—in which 44 countries set principles for encouraging people with artwork claims to come forward, and for museums to put on the internet works for which the ownership history was unclear—led to more lawsuits. “Almost all of them are difficult cases,” Spiegler says. “Many of the museums sued and set forth technical defenses like ‘You waited too long.’”

Then in 2016, the Holocaust Expropriated Art Recovery Act (HEAR) became law, creating a federal statute of limitations that preempted individual states and gave an original owner six years from the time they found their property to file a claim. “That was a big change,” Spiegler says. “But it’s still a struggle.”

A new state law requires museums to label Nazi-looted art, but Spiegler says there’s no enforcement mechanism—though he says he did recently notice such plaques on display at Neue Galerie on Fifth Avenue. “What I think is good is it keeps the world’s focus on the importance of these artworks 80 years after the war, as experts tell us there are still 100,000 works out there that have not been restituted.”

Attitudes are changing, Spiegler adds.

“Especially with respect to antiquities, there’s been a sea change among many museums who have accepted the idea that if antiquities have been looted, they have no legal right to defend their claim,” he says. “Lately that’s taken the form of works in former colonies. I’ve been impressed by many museums offering these antiquities without lawsuits. That’s a new chapter in this area and such a big change from when we first got started.”

Spiegler says it was common in the 1980s and ’90s for people to say there was no better place in the world to exhibit antiquities than a world-class New York City museum, regardless of where they came from or how they got there. “At least that’s not said aloud anymore,” he adds. “Usually.”

Amineddoleh traces those shifting attitudes in part to a 1995 international investigation that exposed the largest tomb raiding network in Italy, along with detailed records connecting reputable dealers and auction houses to the thefts.

In the aftermath, Amineddoleh represented Greece in a matter in which it asked Sotheby’s to stop the sale of its purportedly looted antiquities, to which Sotheby’s responded by suing Greece for intervening in commerce. Amineddoleh lost in district court and won in the 2nd Circuit, supported by amicus briefs from a number of foreign governments. She also successfully represented Italy in a similar case in which a U.S. gallery sued the Italian government for intervening in commerce after it reported to U.S. law enforcement that a bust in its collection was stolen.

“It changed the scrutiny any time their name comes up in a provenance,” Amineddoleh says of the revelations in the Italian investigation and subsequent investigations in India. “It led to the return of hundreds of objects from collections and public institutions, and those returns are still happening today.”

Peter Stern, an art lawyer who has litigated for 40 years in such areas as authenticity and title, including more than 100 matters for Sotheby’s, says that the biggest shift, in a field so fact-intensive, was spurred by the internet—particularly the Art Loss Register, which tracks the ownership history of individual pieces of art, as well as any information about sellers, buyers or potential clients. “If someone came to me with a problem with an artwork, the first place I would look is the internet,” he says. “I would search first to see if it is someone I want to work with. If a client was going to sell a painting to someone, I would look for what I can find about the buyer.”

On the internet, he says, “You can find almost anything.”

And the technology keeps coming. For Brankov, the issue she and the lawyers of the Art Law Committee are talking most about lately is how artificial intelligence is intersecting with the art world. They’re watching for any movement on the U.S. Copyright Office’s stance that only human-generated content can be protected, as well as cases that are testing whether the AI tools themselves violated copyright in their inception phase and whether those who created the source material deserve a remedy.

“It’s shocking,” Brankov says of how fast AI technology is emerging. “I represent people on all sides of the field, artists who are interested in or are using AI and have questions about their rights and obligations. ‘Am I going to infringe on somebody else’s work? Do I disclose the use of AI? If I try to register the work, would I get a registration or not? Can I just use AI instead of working with this person or that person? If I do that, how do we know it’s not going to be copyright infringement?’

“Everyone is trying to figure out what is going on,” she says. “This area is evolving, and we don’t really know how this will go.”

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