The October issue of Art Antiquity and Law is now back from the printers and hard copies will be sent out to subscribers this week and online subscribers will be able to access it very soon.

Art Antiquity and Law, October 2023

This issue contains articles on a range of topics starting with an analysis of the potential impact of climate change on intangible cultural heritage, looking at the laws and policies that South Pacific Island States have started to enact to protect this cultural heritage where islanders are displaced because of changes in sea levels. Such displacement forces Islanders to leave not only their homes, but also their natural ecosystems and spiritual places such as burial grounds, which are strongly connected to their intangible cultural heritage. To protect the rights of their inhabitants in displacement processes, South Pacific Island States have started to develop not only regional, but also domestic displacement laws and policies. Kristin Hausler and Alina Holzhausen examine the impact of altered weather and season patterns, as well as rising sea levels, on the Islanders’ traditional way of life and cultural practices.

The Gweagal Spears at Trinity College Cambridge

Elizabeth Pearson examines Developments (Or Devolutions?) in Australia’s First Nations Art and Cultural Heritage Law, arguing that 2023 is proving to be a significant – and controversial – year for First Nations art and cultural heritage law in Australia. She looks first at the fate of four Aboriginal spears taken by the crew of the HM Bark Endeavour in 1770:  Trinity College Cambridge decided to seek approval to permanently return the items from its collection to their Traditional Owners in Sydney and the decision now rests with the Charity Commission for England and Wales. Consideration is then given to the controversy that arose recently when an art exhibition in the nation’s capital was put on hold amid allegations that non-Indigenous studio staff had painted on First Nations artists’ works. Finally, the author examines the repeal by the State of Western Australia of laws it introduced to prevent another episode like the destruction of 46,000-year-old sacred Aboriginal rock shelters in the Juukan Gorge because the reforms were too prescriptive, complicated and confusing. This article examines the significance of these three developments and questions whether these represent an advancement, or a devolution, of progress in these important areas of law.

In an article covering the issues of plunder and prize in the early nineteenth century, Gareth Knapman and Sadiah Boonstra examine the history, and rules and regulations of Prize Law in the context of the East India Company during the British occupation of Java under Thomas Stamford Raffles between 1811 and 1816. The authors focus on the plunder of the palace of Sultan Hamengkubuwono II (1750-1828) in Yogyakarta in 1812 and consider the consequences for the legality of objects collected by Raffles during his time in Java. They challenge the default assumption in heritage literature that colonial plunder was legal under nineteenth-century international law or even colonial law, arguing that in 1812 the plunder of private property was not lawful under the Company’s own regulations. They assert that appropriation of plundered property by individuals except through the regulated Prize process was also illegal, arguing that this raises new moral questions about the ownership of objects held in present-day collections. The authors contend that the assumption in the heritage industry and literature that colonial collections were legitimately plundered, because international law accepted plunder, is a weak argument at best.

In the first of two case notes in this issue, Molly Stech analyses the May 2023 decision of the US Supreme Court in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. The case concerned the use by Andy Warhol on a magazine cover of Lynn Goldsmith’s 1981 photograph of the artist Prince. The Supreme Court held that Warhol’s rendition of Goldsmith’s photograph, Orange Prince, was not a fair use of the original. While most commentary in the wake of the Supreme Court decision is rightly focused on the ever-changing contours of US fair use jurisprudence, in this case note the author focuses on an issue that she considers to be of equal importance: the moral right of attribution and that right’s important contribution to transparency and provenance.

Le Bénédicité, Chardin

Our second case note is by Michael Bowmer and concerns the ultimately unsuccessful claim brought against an art market professional who was entrusted by the claimants with the sale of a painting. Almost immediately following that initial sale, a deep clean revealed a signature and the painting was then sold on for a sum which hugely exceeded the sum which the art professional had obtained for the claimants. The painting at issue in Feilding & Anor v. Simon C. Dickinson Ltd was entitled Le Bénédicité, or Saying Grace, and was a version of one of several by the eighteenth-century artist, Jean-Siméon Chardin. The claimants asserted that the defendant was in breach of contract and negligent in various ways in the conduct of the sale of the painting and had failed to exercise the care and skill to be expected of a reasonably competent art dealer. The court was not required to determine the correctness of the attribution but to decide whether, in marketing the painting as partly rather than wholly the work of Chardin, the dealer had acted in a way that no other reasonably competent art dealer would have. The trial judge concluded that the dealer had not acted unreasonably, and the Court of Appeal held that he was entitled on the facts to reach this conclusion. Permission to appeal was therefore refused.

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Image Credits:

Art Antiquity and Law, October 2023.

Gweagal Spears. The image is used here under fair dealing for criticism, review and quotation (s. 30 CDPA). The source of the image is Trinity College, Cambridge and can be found here: Aboriginal spears to be returned to traditional owners – Trinity College Cambridge. If you are a rightholder in this image, please contact us at info@nullial.uk.com and we will happily respect your wishes around image use.

Le Bénédicité, Chardin, Jean Baptiste Siméon France, Ecole de. Louvre, Département des Peintures. The image is used here under fair dealing for criticism, review and quotation (s. 30 CDPA). The source of the image is the Louvre Museum, Paris and can be found here: Le Bénédicité – Louvre Collections. If you are a rightholder in this image, please contact us at info@nullial.uk.com and we will happily respect your wishes around image use.