Report on latest study forum

Posted on: February 10, 2021 by

On Saturday 6th February, we hosted our second virtual study forum. It was a full day of captivating and perceptive talks by a range of speakers within the art law field.

To kick-start the day, Dr Donna Yates (Associate Professor, Maastricht University) spoke about a Cambodian sculpture stolen from Koh Ker during the Cambodian Civil War that was scheduled to be sold at Sotheby’s New York in 2011. Her talk not only went over the legal facts of the case but looked at the sociological argument of the normalization of deviance and why these types of cases are more common than might be expected. The legal and sociological approach to this case proved insightful in understanding both sides of the case.

Next, Dr Andrea Wallace (Senior Lecturer, Exeter University) spoke about Article 14 of the Copyright in the Digital Single Market Directive and questions surrounding digital heritage collections. She looked to the German Federal Supreme Court decision Museumsfotos and posed questions such as ‘what is classified as ‘original’ post-Article 14?’ and ‘what is a work of visual art?’. She ended with a discussion of what is next for the UK such as whether copyright should be left to institutions or be controlled by the government and also the importance of balancing ‘open’ ethics.   

Then, Dr Kristian Jensen (former Head of Collections and Curation, British Library) discussed his thorough detective work surrounding three charters, two of which are Greek and the other one, Turkish. These charters were held at the British Library but were discovered to have been stolen from the monastery of Chrysopodaritissa in Greece in 1979. A fascinating talk about how these items were traced back to this theft in Greece with scant evidence and as a result, how they have now been restituted to their rightful home.

After a quick lunch break, Azmina Jasani (Partner, Constantine Cannon LLP) gave a talk on force majeure clauses in the light of the Covid-19 pandemic. She particularly focused on the JN Contemporary LLC v Phillips Auctioneers LLC (SDNY 2020) case where Phillips invoked their force majeure clause due to the auction sale containing a consigned Stingel painting being cancelled due to Covid restrictions. The Court found in favour of Phillips, confirming that Covid-19 constituted a ‘natural disaster’ but JN Contemporary has since filed an appeal which is currently pending. She also indicated how this case and others may influence the writing of these clauses in the future such as specifically including medical/ pandemic eventualities.

Then, Rudy Capildeo (Partner, Charles Russell Speechlys LLP) gave an overview of how Brexit will affect all things to do with the art world from VAT, Movement of Goods, IP rights, to the Repatriation of Cultural Property. This helpful overview indicated how art lawyers and art professionals might be legally affected by Brexit. Also, he considered what might be implemented in the future such as a reduction of import VAT and tax reliefs/ funding opportunities for artists and art-tech companies.

To end the day, Tim Maxwell (Partner, Charles Russell Speechlys LLP) talked about the recent ‘business interruption’ insurance case at the UK Supreme Court. The Supreme Court substantiality allowed the FCA’s appeal on behalf of policyholders, meaning claims for coronavirus-related business interruption losses can now be paid out. However, Tim discussed how there is a growing sense of dissatisfaction post-ruling as a lot of insurers have not paid and in turn, monies may be received too late for some organisations. The talk provided another interesting example of the effects Covid is having in the legal sphere.

Overall, it was a fascinating day of talks, giving all the participants food for thought about the vast range of issues within art law and particularly the recent developments in light of Covid and Brexit.