Inside Art Law: Art Restitution, Stolen Art, & AI

Episode Notes

Transcript

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J. Craig Williams: And I’m curious, what level attorneys get involved in this? Are we talking about an Indiana Jones level where you’re off on an expedition and crawling into caves and grabbing items that someone’s searching for? Or are you mostly on the back end of this thing?

Gabrielle C. Wilson: I wish it were that exciting, Greg. I would say we’re more on the back end of it. When people come to us learning, you know, they’ve now, at this point, have learned that something is missing, maybe in a collection or at a museum or at a gallery, and they have evidence that it was stolen and they’re coming to us usually at that point when there’s some evidence that something was stolen.

Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. I write a blog named May It Please the Court and have two books out titled How to Get Sued and The Sled.

Well, according to Georgetown Law Library, Art Law can be defined as “the body of law, involving numerous disciplines, that protects, regulates and facilitates the creation, use and marketing of art. Those involved in the practice of art law look to a variety of disciplines, such as intellectual property, contract, constitutional, tort law, tax law, as well as commercial and international law to protect the interests of their clients.” Well, today on Lawyer 2 Lawyer, we’re going to spotlight Art Law. We will discuss the emerging trend of colonial art restitution, stolen and misappropriated art, and how AI has impacted art and copyright law.

And to help us better understand this issue, we’re joined today by two great guests. First, we have Attorney Gabrielle C. Wilson from the Law Firm Kaye Spiegler. Gabrielle specializes in art, cultural property and intellectual property law, as well as commercial transactions. She’s experienced in both state and federal courts. Gabrielle has been involved in multimillion-dollar commercial disputes involving art, intellectual property and insurance related issues. She has also represented claimants seeking restitution of stolen art and antiquities. Welcome to the show, Gabrielle.

Gabrielle C. Wilson: Thank you, Craig. Thanks for having me.

J. Craig Williams: And next we have attorney Yaél M. Weitz. She is also from Kaye Spiegler. She advises clients in a wide range of domestic and cross border art and cultural property matters. She has represented claimants seeking restitution of art misappropriated during the Holocaust and claimants seeking the recovery of looted or stolen cultural patrimony. She has represented collectors and galleries in various art transactions as well. Welcome to the show, Yaél.

Yaél M. Weitz: Thanks for having me.

J. Craig Williams: Well, let’s toss this first to Gabrielle. How did you first become interested in art law?

Gabrielle C. Wilson: Well, for my entire life, I’ve always been interested in the arts. I went to grade school and high school that was really focused on the arts. And I took a lot of painting classes and sculpture classes over the years to this day. And I danced professionally as a child and up and through college. And then even during law school, I was part of a dance company. So the arts have really been in my entire life. And when I went to law school, I really was interested in pursuing something where I could protect the rights of artists. So I was really interested in copyright and IP. I was able to take an art law clinic in college, and I got an opportunity to work for the general counsel at Alvin Ailey Dance Foundation. And really, during law school, I was discovering this thing called art law, and I was like, oh, wow, I can actually meld my interests with my legal career.

And when I started at my first firm, I started out doing general commercial litigation, and there was an art law group, and so I started working more with them, and the rest is history.

J. Craig Williams: Excellent. Well, Yaél, let’s ask the same question to you. And in your introduction, I referred to stolen cultural patrimony. Perhaps you can explain that.

Yaél M. Weitz: Sure, I’d be happy to. So I became interested in art law when I was a student in law school, where I enrolled in a seminar that focused on Holocaust restitution. And for me, I felt a personal connection with the work in the field because of my family history, having Holocaust survivors and this course really inspired me to pursue art restitution as a career and art law more broadly.

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And as part of that, we also deal with cultural patrimony repatriation cases, and that is dealing more with antiquities and other cultural property that has been taken from a country and ends up somewhere else, usually on the market.

J. Craig Williams: There’s an old joke asking why the pyramids aren’t in the British Museum. The joke is because they’re too big. But how does that work? One of the looming questions I’ve always had about art law and repatriation is the statute of limitations. We’re talking about repatriating art from the Holocaust, that was 80 years ago.

Yaél M. Weitz: In the Holocaust context, in particular, there’s a special law that was enacted by Congress called the Here Act in 2016, and that actually extended the statute of limitations for artworks that were lost to their owners as a result of Nazi persecution. And so, there is a law that kind of extends that, although there’s other doctrines that can come into play that can still make timeliness an issue in these cases. But there is a law, at least with respect to Nazi Lutador and with the Here Act whereas some states have laws where the statute of limitation starts to run from the time of the theft, the Here Act has the discovery rule. So it’s after you have actual knowledge of where the work is and that you have a possessory interest in that work. So it really makes it available. So we’re not talking about when these thefts occurred, which was a long time ago, but when these families are later learning about that they have claims.

J. Craig Williams: How does a family go about learning this? You have a piece of artwork that is perhaps 100 years old. How does a family learn that they may have a relative, that at one time owned it, that it was stolen, and now where it is? Can you describe that whole process?

Yaél M. Weitz: I think the process is different depending on a family’s resources or just what has been passed down within the family in terms of information as to the history. And there are a lot of provenance researchers. There are actually people who are investigating and researching what happened to works that were lost during World War II. And sometimes they’re in a position where they can contact families and say, we’ve been doing some research and we’ve learned that, okay, this particular work has a history, and we can tie it back to being owned by your family and it was looted.

J. Craig Williams: So then that family then retains those workers and then goes about filing an action or suing to get it back. How does that process work? You’re talking about international situations where art is located in one country and the potential owners are in another?

Yaél M. Weitz: Yes, that’s right. So oftentimes these cases involve international issues and working with people from various countries. And the provenance research itself often will involve going to archives in different countries across the globe really. So that’s very often the case.

Gabrielle C. Wilson: Yeah. In our work, we deal with a lot of foreign attorneys who are helping us with certain issues. Oftentimes when we get involved is because the work, either the plaintiffs are here in the New York or in the area, or the work is here.

J. Craig Williams: And what ultimately happens with these works? So they get repatriated to the family, or do they ultimately get sold again to someone else for the family to make money?

Yaél M. Weitz: It really varies. There can be different outcomes to these cases. Sometimes the work is restituted to the family. Sometimes it can lead to an agreement between the parties where it may stay with the museum and they reach another, some sort of agreement or not necessarily museum. But if that’s the case and have the history of the painting explained. So there’s really a wide range of outcomes to these kind of cases.

J. Craig Williams: And what range of antiquities are we talking about is just mainly art works, paintings, or does it extend to things that are archaeological digs and so forth?

Yaél M. Weitz: Well, if we’re talking now about antiquity separate from works that were lost during World War II. Yeah, these are coming from illegal digs most of the time, and they’ve passed through at this point, sometimes many hands or maybe it’s something that was dug up yesterday that is now on the market.

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It really depends.

J. Craig Williams: So there’s a black market for these things?

Yaél M. Weitz: 100%.

Gabrielle C. Wilson: Absolutely.

J. Craig Williams: And is that where most of these discoveries come from, in the provenance researchers, how do you find the black market for these antiquities and for the artwork that gets looted?

Yaél M. Weitz: Well, I mean, there are databases where people, for many of years, FBI stolen art database where people have reported things that have been stolen. I mean, these are things that are known. So sometimes for works that were taken during World War II, those might be on the list.

But oftentimes antiquities and things of that nature may not be on those lists because they were illegally excavated and the timing or the who, what and when of when the things were stolen is unknown, in which case those things aren’t reported.

J. Craig Williams: Right. Well, walking around a museum would lead one to think that there’s a lot of artwork and antiquities that are perhaps illegally gotten or not necessarily should belong in a museum. What are your thoughts about that?

Yaél M. Weitz: We certainly hear about museums in the news with antiquities in their collections that have raised questions or even claims. So that is an issue, I think, in terms of the legal perspective of it. I think that it can still be challenging for governments to reclaim those pieces because of the circumstances that Gabrielle was discussing, where these pieces were dug up in the middle of the night and taken away. But there have been steps forward in that, and it seems like we’re moving in that direction.

J. Craig Williams: Right. Well, ladies, it’s time for us to take a quick break to hear a word from our sponsors. We’ll be right back.

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J. Craig Williams: And welcome back to Lawyer 2 Lawyer. I’m joined by attorneys Gabrielle C. Wilson and Yaél M. Weitz from Kaye Spiegler. We’ve been talking about art law, and I’m curious what level attorneys get involved in this. Are we talking about an Indiana Jones level where you’re off on an expedition and crawling into caves and grabbing items that someone’s searching for, or are you mostly on the back end of this thing?

Gabrielle C. Wilson: I wish it were that exciting, Craig. I would say we’re more on the back end of it. When people come to us learning they’ve now, at this point, have learned that something is missing, maybe in a collection or at a museum or at a gallery, and they have evidence that it was stolen, and they’re coming to us usually at that point when there’s some evidence that something was stolen.

J. Craig Williams: And how are those arrangements made? I don’t mean to get into the details of it, but do you handle these things on contingency on an hourly basis? What’s the relationship like?

Gabrielle C. Wilson: Well, definitely with the cultural property. It’s usually not in a contingency basis because they want the objects back. They want to repatriate back to their countries of origin, and that’s important to them. They’re not interested in selling the object. So usually it’s fee-based arrangement.

With respect to some of our other cases, where families may not have the funds to be able to pay for lawyers to engage in protracted litigation for years and years to try to recover some of these artworks, in some instances, we may have contingency arrangements, and that’s definitely part of our fee arrangement.

J. Craig Williams: Well, artificial intelligence has now become quite controversial in the art world. Does AI have any influence in your area of practice?

Gabrielle C. Wilson: Oh, it definitely does. We’re all really trying to play catch up and try to understand how these programs work so we can better help our clients. Really, it’s come up in the copyright area where these programs that are able to generate images based on putting in natural language text, artists whose images have been trained on this data are concerned about their rights and how they may be able to monetize that. And also, there’s a concern that the outputs that come out of these AI programs, whether or not they’re copyrightable, it seems like the copyright office has said, no, they’re not.

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So there’s all these issues that we’re kind of dealing with that are of first impression in trying to understand what rights people have with respect to these programs and really all of the different uses that the art market has been using it in, we’re still trying to understand legal implications.

J. Craig Williams: Right. And how does AI affect the older art that we’ve come to know and love, some of the Rembrandts and the Picassos and the stuff that’s no longer protected by copyright?

Gabrielle C. Wilson: That’s an interesting question. I know AI has been used in terms of authenticating works, and that’s where I’ve seen it used the most in terms of dealing with works where the authors or creators have died.

Yaél M. Weitz: Yeah, I could just add to that. It’s really interesting, actually, in terms of authentication, because the AI platforms or technology doesn’t always agree, right? Depending on which one is used. So we’ve seen cases where one will say, oh, it’s definitely by this old master, and the other one will examine the painting and reach completely opposite conclusions. So I think the art market is still kind of grappling with how much to rely on this technology as far as authentication goes. But we’re just starting out, so it’s possible that it’ll end up being a very useful tool. But at this point, I don’t think we’re there in terms of just putting in an image and waiting for it to analyze it without a human at the end of it saying, well, is that right? And why?

Gabrielle C. Wilson: And I think with respect to copyright, we’re not really worried about the — I mean, no one’s really worried about the AI training on data that’s outside of copyright. That doesn’t seem to be an issue.

J. Craig Williams: Right. Seems to be just for the replication of artwork and perhaps the written words, such as plagiarism. Does plagiarism, in a way, enter into your work in the sense that some of the masters will have students or people in their salon that have done work that imitates theirs? How do you ultimately tell the difference between a master’s work and a student’s work?

Gabrielle C. Wilson: As a lawyer, we would rely on the expertise of art experts with the background and learning on a particular artist, and they might end up concluding that it’s school of or from the studio of a particular artist. And it could be an authentic work as being the school of that artist as opposed to the master artist himself. And that would be a fine outcome as well. It just kind of depends on the particular circumstances.

J. Craig Williams: Well, and it’s time for another quick break to hear a word from our sponsors. We’ll be right back. And welcome back to Lawyer 2 Lawyer. I’m back with attorneys Gabrielle C. Wilson and Yaél M. Weitz from Attorneys Kaye Spiegler.

So what’s it like to be this close to these historic pieces of art and be part of this litigation process? I’m assuming at some point in time you actually get to see the artwork that you’re working on that really has not been in the public view very much.

Yaél M. Weitz: Yeah. I mean, it’s fantastic. It’s one of the things I love most about working in this field is actually getting to see and experience the art.

Gabrielle C. Wilson: Definitely a perk.

Yaél M. Weitz: Terrific. Yes.

J. Craig Williams: So where do you credit your love of art from, Yaél? Is it your teachers in your youth, or is it just exposure to it over time?

Yaél M. Weitz: I would say it’s just exposure to it over time. I’ve always enjoyed art and it’s been such a pleasure learning about art through my work, getting to just see it.

J. Craig Williams: Right. So what if an attorney that’s listening to us today decides I love art, I’ve always enjoyed it and I’d like to get into this. What steps should they take in order to get into your industry?

Gabrielle C. Wilson: What’s really interesting, Craig, is though, I feel like when both Yaél and I were starting it wasn’t a field like it is now. I mean, I think there are a lot of law schools that actually teach this now out that offer classes in art law and I know because some of our colleagues teach them. And so that is really a great place to start to see if you’re interested is taking a class in this field and see. But I always tell people that being an art law, you’re almost a generalist. You really have your hands in so many areas of the law. They just happen to relate to art.

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J. Craig Williams: Can you give us an example of one of the cases that you worked on that’s not a current one that you can talk about?

Gabrielle C. Wilson: Sure. We have a restitution related matter that we worked on in the past and still are working with now. We represent the heirs of an art dealer, Jacques Goudstikker, whose artworks were looted by the Nazis. And the family was able to have hundreds of works repatriated by the Dutch government years ago. And because the dealer had so many artworks in his collection, artworks are still being discovered today as belonging to the family, and we’re able to assist them in having those works returned. So it’s been very gratifying.

J. Craig Williams: What happens to the people on the other side of the litigation, the ones that have received the looted artwork, perhaps unknowingly, it’s just been hanging on the wall in the family home for years? Or are the situations like that, do they know that the artwork has been stolen and they’re keeping it, or is it what happens on the opposite side of the case?

Gabrielle C. Wilson: I find that in most instances, you are dealing with good faith purchasers. They might not know the circumstances. And often, since there’s so much time that has passed between the actual theft and them being in possession of it, it might have changed hands like five or six or seven times.

But once they have that knowledge, I find that some people, in some instances, they don’t feel good about the fact that they’re in possession of a stolen object, a stolen antiquity or stolen work, and they are willing to come to the table and say, even though I’m not a wrongdoer, at some point a wrong was committed, and I don’t want to be involved in perpetuating that wrong. And then you have others who say, I purchased this rightfully, and I’m just going to consider that and maybe not think about the moral implications.

J. Craig Williams: Well, we just about reached the end of our program, and it’s time for us to wrap up and get your final thoughts. Gabrielle, let’s turn to you first.

Gabrielle C. Wilson: I’d love to, I guess, mention know a lot of our work is also like the commercial side of our work. Dealing with the whole art market ecosystem is really fun you know, doing this work as we’ve been doing it. It’s just marvelous to kind of look at the whole ecosystem and all the ways that we’ve been able to be involved, whether it’s working with artists estates in terms of them trying to retain art advisories or working on purchase and sale agreements for works that are going to be sold at auction, working with artists in terms of protecting their moral rights and their copyrights.

Really, we’re just in a position to kind of facilitate these transactions in this entire fine art market ecosystem and deal with the disputes that come about. Whether it’s title disputes or authenticity or some of the other things that I mentioned. It’s just been a lot of fun.

J. Craig Williams: Great. And Yaél, your thoughts?

Yaél M. Weitz: I echo Gabrielle’s comments. I think that working on the whole range of matters and transactions and assisting clients with a loan and then seeing the exhibition, it’s really exciting and it’s really a pleasure kind of having that whole range as part of our practice.

J. Craig Williams: Great. And if our listeners like to reach out to you and find out more about art law, how can they do that?

Yaél M. Weitz: Well, they can check out our firm’s website, casebeagler.com, and our bios are there and our contact information.

J. Craig Williams: Great. Well, thank you very much. It’s been a pleasure having you on the show today.

Gabrielle C. Wilson: Thanks, Greg. It’s been a pleasure being here.

Yaél M. Weitz: Thank you so much.

J. Craig Williams: Well, here are a few of my thoughts about today’s topic. It seems odd that you can reach back in time and grab old artworks that maybe someone else has bought they think legitimately. But as our guests pointed out during this podcast, most people don’t really want to have stolen art. So it’s good that this area of law exists. It’s very interesting, and I challenge you to get involved with it if it’s something that turns you on.

Well, that’s about what I think on today’s topic. Let me know what you think, and if you’ve liked what you heard today, please rate us on Apple Podcasts, your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. Remember, when you want Legal, think Lawyer 2 Lawyer.

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