2023 Year in Review

Posted on: December 21, 2023 by

What can be said about art law in 2023? Of course, developments in our sector are often linked to trends in the wider world. This year saw the sad continuation of the war in Ukraine and an unprecedented conflict between Israel and Hamas that erupted after the terrorist attacks of 7 October. Azerbaijan has fully re-occupied the hitherto autonomous region of Nagorno-Karabakh, forcing much of the indigenous Armenian population to flee. There were also important elections in Turkey, New Zealand, Argentina, Nigeria and the Netherlands, as well as a referendum on the Indigenous ‘Voice’ in Parliament in Australia.

On the question of armed conflicts, legal protection continues to play catch-up when it comes to damage and destruction of important heritage sites. It was only in September, after all, that a number of sites in Ukraine (20) were provisionally inscribed on the ‘enhanced protection’ list with UNESCO, reflecting a specific form of protection under the Second Protocol to the 1954 Hague Convention that provides immunity in times of armed conflict. Unfortunately this happened 18 months into the war. Since Russia is not party to the Second Protocol it is unclear whether it would even honour such protection by refraining from attacking the sites. In December, the Christian monastery of St Hilarion in Gaza was also provisionally added to the enhanced protection list. The delays and provisional nature of the listing may prompt us to suggest a more flexible and simplified procedure for inscribing sites on this list: World Heritage sites, for instance, could be considered presumptively admissible, unless some justifiable reason exists for refusing inclusion.

Closer to home, we learned of a sustained ‘attack’ on a great national institution, the British Museum. This came in the form of thefts committed by a senior curator, revealed to the public in August. An independent review has now found that approximately 1,500 objects were stolen or went missing over a period of many years, and that approximately 500 additional objects had been damaged. These appeared to have been targeted because they were not appropriately registered on the collection database. This has prompted calls for the British Museum to begin identifying and registering the entirety of its collection of 8 million objects (no small task) and to develop a more appropriate policy for the collection. Considered alongside the news that other UK institutions also have significant numbers of objects missing from their collections – in addition to the massive hacking of the British Library’s database – the year has not been particularly good in instilling public confidence in the security around public collections in the UK.

Added to this are the threats confronting museums from climate protestors. While the targeting of museums by campaigners of Just Stop Oil began in 2022, we saw the spate continue this year. In November, two protestors took hammers to one of the National Gallery’s most celebrated works, the Rokeby Venus by Velasquez. A very instructive review of the rules around criminal damage and how these could play out in the current context was provided last year by my colleague Emily Gould. Several individuals have been prosecuted and fined for the protests in the past. But it will be interesting to see how these will be treated now that the Public Order Act 2023 is in force, a law that includes a new criminal offence of ‘locking on’ (see section 1).

On the artistic front, there was much hope this year that the US Supreme Court would provide clear guidance on whether appropriation artists could benefit from the ‘fair dealing’ defence under US copyright law. But the decision of Andy Warhol Foundation v Goldsmith in May proved to be more of a whimper than a bang. If anything, the lesson in this long judicial saga is that those looking to repurpose works of art, rather than relying on often unpredictable legislative exceptions, would be best served obtaining a commercial licence where available. This could be useful across all jurisdictions and may prompt further licensing availability from visual arts collecting societies in the long run.

Sticking with copyright, there has been some interest in the UK, prompted by Bendor Grosvenor and Eleonora Rosati, in a recent Court of Appeal decision that may signal the end of copyright protection for photographs of two-dimensional works of art. We have yet to analyse the implications of that decision ourselves, so the IAL is unable to pronounce on that particular finding…! Needless to say, should the approach by the courts mark a manifestly new approach to the ‘originality’ of photos, it could seriously impact the ability of UK museums to licence photographs of two-dimensional works that are in the public domain.

On the topic of restitution, there has been a great deal of activity in the US, which is certain to continue into 2024. For instance, the work of the Manhattan DA’s office in seizing antiquities from collectors, from dealers and (increasingly) from museums, in order to repatriate them to countries of origin. Early in the year, we commented on a number of pieces being returned to Turkey – contrasting the DA’s approach to the more exacting legal standards of the courts – and yet the trend appears to have continued throughout the year. This was especially clear in the recent seizures of artefacts originating from Bubon (also in Turkey) and the unprecedented recovery of works of fine art from well beyond the jurisdiction of New York (the seven Schieles hailing from a number of American museums). The latest numbers reported by the DA’s office show a total of over 4,700 recovered items since 2017, the vast majority having been repatriated.

And lastly, what better way to close out the year than with an old-fashioned diplomatic dispute? The breakdown came not in response to a war of aggression, the taking of hostages or territorial squabbles, but a heritage dispute… and the most famous one of all. It was the disagreement over the Parthenon Marbles that caused Prime Minister Rishi Sunak to cancel his meeting with Greek counterpart Kyriakos Mitsotakis on 27 November. Even those who have studied the dispute for years (like me) did not see this one coming. When my book on the Marbles was published, little did I know there would be both a theft scandal and diplomatic debacle in the weeks surrounding the release. Despite all this, discussions between the British Museum and Greek representatives appear to be continuing, a positive thing, even if any deal would be unlikely to find friends within the current UK government. That said, nothing is written in stone, nor indeed in marble, and the future of the negotiations will inevitably depend on developments in the year ahead, not those of 2023. Watch out for a piece of mine on this topic in the January issue of The Art Newspaper.

I will be back in the early new year with some predictions for 2024, which will likely have the same chance of holding up as most new year’s resolutions. Yet the IAL does have much planned in the year ahead and we look forward to sharing those (very firm) commitments with you all shortly.

Image Credits:

Mohamed Hassan, Man, Cliff, Jumping, free for use under the Pixabay Content License.