Hard copies of the final issue of 2023 Art Antiquity and Law should be arriving with subscribers very soon – online subscribers should be able to access it shortly.
In this issue we have an analysis of ‘Resale Restrictions in the Contemporary Art Market’: Aaron Taylor (Barrister, Fountain Court Chambers; Visiting Research Fellow, Goldsmiths, University of London) considers the validity and effect of provisions in contracts for the sale of contemporary art works which seek to prevent or limit ‘flipping’ – the rapid resale of a work from primary to secondary market. His conclusion is that such clauses, are generally likely to be valid and enforceable in English law, provided they have been clearly and reasonably drafted as to the duration and terms of the restriction, and as to the consequences of breach.
In an article entitled ‘The Limits on the Commercial Reproduction of Italian Cultural Heritage’ Chiara Gallo (a graduate of the IAL/Queen Mary University London LLM in Art, Business and Law) explains the rather unusual restrictions on reproductions which apply under Italian law in relation to cultural and artistic works which, in other jurisdictions, would fall within the public domain. Amongst other cases, the Uffizi has brought proceedings in relation to the ‘improper use’ of Botticelli’s Birth of Venus and the Fondazione Teatro Massimo sued a bank which used an image of the famous opera house in its advertising material. The provisions of the Italian Cultural Heritage Code (Codice dei Beni Culturali) and the case law in this area demonstrate that where Italian cultural heritage is reproduced for commercial purposes, a formal request must be made to the public cultural organisations involved and a concession fee must be paid – even though the work itself is no longer in copyright.
Pierre Valentin (Fieldfisher LLP) considers a case in which a collector found that a work he had bought in good faith was subsequently listed as stolen on the Lost Art Database, thereby rendering it unsaleable: ‘Removal of Artworks from the Lost Art Database: The Approach of the German Courts’. The collector argued before the German civil courts that the Max Stern Restitution Project, which had listed the painting on the Database, should be ordered to remove the painting. However, the Supreme Administrative Court disagreed, concluding that the continued registration of an artwork after it had been found was within the scope of the database’s purpose and did not violate any fundamental rights.
Some aspects of Austrian tax law, as they relate to collectors of art and antiquities, are the subject of a case note by Johanna Hoyos (Legal Counsel, Ring International Holding AG) – ‘Sale of a Private Collection in Austria: Tax Implications’. The author considers the decisions of the Austrian Federal Finance Court and Administrative Court in relation to the imposition of VAT on the sale, through an intermediary by a collector of her assortment of antiques which had been built up over a number of years. The Austrian tax authority sought to levy VAT on the sale of this private collection, arguing that it constituted a sustainable activity to generate income (an entrepreneurial activity or economic activity under European Union (‘EU’) law) and was thus subject to VAT. The courts decided in favour of the collector and held that the sale did not constitute an entrepreneurial activity subject to VAT.
Finally, this issue contains two book reviews: the first, by Lewis McNaught (Managing Editor of the website Returning Heritage) is of The Parthenon Marbles Dispute by Alexander Herman, Director of the Institute of Art and Law. This book is the first in the new series, The Art Law Library, which continues the imprint of the Institute of Art and Law in association with Hart Publishing.
The second review is by Amber Gardyn and Prof. dr. Bert Demarsin and is of a book currently available in Flemish and French, Kunst voor das Reich: Op Zoek Naar Nazi Roof Kunst Uit Belgie (In search of Nazi-Looted Art from Belgium) by Geert Sels.
The Parthenon Marbles Dispute: Heritage, Law, Politics by Alexander Herman, 2023.
Kunst voor das Reich: Op Zoek Naar Nazi Roof Kunst Uit Belgie by Geert Sels, 2022.
Art Antiquity and Law, December 2023.