to the Cardinal because he did not
recognize the true value of the work,
its perfection.”
The challenge of
good title
Establishing good title to
the newly acquired work of art is
equally bedeviling. The unregulated
nature of art sales has created the
opportunity for stolen or looted
works of art to enter the market.
Today, the art exceptionalism of a
casual market is starting to yield to
the more traditional market norms
of due diligence and documentation.
This change has in turn created new
issues of compliance, uncertainty,
and valuation.
Because of the global nature
of the art market, the common law
norm of “a thief cannot convey good
title”may or may not be pertinent.
One’s clients may not own the
painting they have had in their home
for 60 years, and conversely one’s
clients may in fact own the painting
they have
not
had in their home in
60 years.
Probably no case has more
currency in this area of good title
than that involving Gustav Klimt’s
Portrait of Adele Bloch-Bauer
. In 1998,
an Austrian journalist uncovered
documentation that showed Austrian
officials knew that the Klimt portrait
had not been donated to the
state-run Austrian Gallery, as Maria
Altmann was told after WorldWar II.
She and her family began a lawsuit to
recover works taken from her uncle’s
home during the war.
A
rt law is a newly
emerging field of inquiry
that explores the overlap
of art with law, or law
with art. Because each field covers
such vast terrain, the legal issues are
equally sweeping.
They can be of local, national,
or international scope. They can
be general civil issues such as
property ownership, tax, and
business concerns, or criminal issues
involving theft, forgery, and money
laundering. They could be issues
of constitutional importance or
concerns of international treaties of
war and peace. The questions may be
of concern only to the two litigants
or could have global significance.
Not infrequently, the cases make
headlines and sometimes movies;
best of all, the field is a highly
engaging one for students to learn
the law and what it is that lawyers do.
There is no single recognized
roadmap for art law, but two factors
may have influenced my decision to
create a course that is transactional
and wide-ranging. My field is estate
planning, which is a transactional
practice, and the Sistine Chapel was
my inspiration. The course begins
with the 1481 contract that commis-
sioned the painting of the chapel’s
side panels by Botticelli, Ghirlan-
daio, Perugino, and other masters
of the Renaissance. Examining that
500-year-old contract from Rome,
students see structural similarities
in contract law that transcend time,
countries, and legal systems.
Lawyers focus on memorializing
the deal: this artist will paint a work
for this buyer for this price by this
date. But in examining that contract,
students also see the first sign of art
exceptionalism—the description
of the “good” is vague. Normally,
a contract for the purchase of a
good would be highly detailed in its
description of the good, but if one
is commissioning a work of art, too
narrow a description can destroy
the artistic impulse, as another
Sistine Chapel vignette shows.
When Michelangelo was selected
to paint the ceiling, the original
program was to paint the 12 apostles.
But Michelangelo wasn’t happy:
“It seemed to come out poorly and
I told the Pope that [the program]
. . . seemed to produce a poor work.”
The Pope, Michelangelo added,
“then commissioned me to do what I
wished.” Thank goodness.
Not all works of art are commis-
sioned; most are just bought from
a dealer or a gallery, or at auction.
For lawyers representing any buyer
in a purchase transaction, there are
two nonnegotiable requirements:
authenticity and good title. When the
good is art, those two requirements
are equally important but can be
frustratingly difficult to achieve. Art
exceptionalism is again in play.
Authenticity is fluid
Authenticity sounds simple,
direct, and permanent: the good is or
is not what it is described to be. Were
it so simple. Unlike most contracts,
authenticity in the art world is
not a permanent condition; it is a
consensus opinion at a moment in
time. Consequently, it is not unheard
of for a work of art to be deemed
authentic, later deemed inauthentic,
and possibly reauthenticated later as
scholarship and science advance.
Rembrandt is a great example
of the fluidity of authenticity. In
the 1960s, Dutch art historians
established the Rembrandt Research
Project with the aim of providing a
definitive list of Rembrandt’s works.
It was estimated to take 10 years.
Almost 50 years later, during which
time the project has been abandoned
and then restarted, the sixth volume
of a planned five-volume series was
recently presented.
No one is immune from the
authenticity debate. The Getty
Museum, one of the world’s richest
museums, displays its $7 million
Archaic kouros, a marble statue of a
nude youth in classical pose, with a
caption that reads “Greek, about 530
BC, or a modern forgery.”
If a work is inauthentic, its value
is generally affected. Before assuming
the worst, however, consider anoth-
er Michelangelo story. Like many
artists before and after him, a young
Michelangelo learned by copying
others’ works. One of his pieces was a
marble cupid. It was quite exquisite,
apparently, and someone suggested
that if it were buried in the ground to
make it look old, it could be sold as
an antique for a greater price. It went
to Rome and was bought by a cardi-
nal who, upon learning it was not an
antique, demanded his money back.
Vasari, a contemporary of Michelan-
gelo and the earliest art historian, re-
ported that “some censure attach[ed]
A fascinating field sparks
unique legal issues
By
Professor Anne-Marie Rhodes
Professor Anne-Marie Rhodes
is the author of
Art Law and Transactions
(Carolina Academic Press, 2011). A longtime member of the Loyola faculty, she teaches courses in
estate and gift tax, income tax, estate planning, trusts and estates, art law, and comparative law. She is an academic fellow and regent of the American College of Trust and
Estate Counsel and cochaired its Legal Education Committee for three years. Along with Professor Thomas Haney, Rhodes was instrumental in establishing the law school’s
international programs in Rome and Santiago.
The novel legal issue was not
the theft of the property by the Nazis
but rather that the family as private
parties were suing a foreign sovereign
government in United States federal
courts. The 200-year-old doctrine of
foreign sovereign immunity is the
principle that foreign nations friendly
to the US should not be sued in US
courts. This is not seen as a matter
of constitutional law but rather of
international comity.
In that 200-year-old history,
however, cracks in absolute immunity
developed and the theory of limited
immunity began to circulate. In 1976,
Congress established new protocols
for claiming sovereign immunity,
including new exceptions to
immunity. One of those exceptions,
if applicable, would allow the case
to proceed against Austria. The
case went to the US Supreme Court
to decide if the 1976 Act could
retroactively apply to a case in which
the pertinent acts dated to 1948, a
time during which Austria would
have enjoyed absolute immunity.
Taking pains to emphasize the
narrowness of its holding, the US
Supreme Court ruled in favor of
retroactivity. The case could proceed.
In 2006, ownership of the portrait
was awarded to the Altmann family.
The magnificent portrait now hangs
in the Neue Gallery in New York, and
the legal story behind the portrait
debuted in theaters this spring in the
movie
Woman in Gold.
Students in my course do more
than just study these cases. They
take the next step and do what
lawyers do in representing clients
with works of art: draft commission
contracts, sales contracts,
consignment agreements, art loan
agreements, requests to agencies,
and bequests of art. They learn to
discern basic contract structure
and good drafting. Because of art
exceptionalism, they also learn
how important it is in drafting to
focus on the case at hand, to be in
the moment as you draft. They are
learning to be lawyers.
■
Anne-Marie Rhodes in the Loyola University Museum of Art.
FACULTY RESEARCH
Teaching law through
the lens of art
24
LOYOLA LAW
SPRING 2015
25
