Symposium Panel Three – Restoring What Was Lost: Issues with Restitution and Repatriation

By: Jessica Gicherman*


  • Frank K. Lord, IV, Esq., Partner, Herrick, Feinstein, LLP
  • Gary Vikan, Former Director, Walter Art Museum
  • Jane C. Milosch, Director, Provenance Research Initiative, Office of the Under Secretary for History, Art and Culture, Smithsonian Institution
  • Colette Loll, Founder and Director of Art Fraud Insights, LLC


David W. Bowker, Partner, WilmerHale LLP, and Adjunct Professor, Georgetown Law

This incredible panel focused on the issues of art restitution and repatriation, and UNESCO’s 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.  This Convention requires State Parties to return stolen cultural property imported into their country to the state of origin. The panel also addressed the issue of provenance, and how different institutions combat fakes and forgeries in the international art world.

The first speaker was Gary Vikan, an internationally known medieval scholar and a former Director of Walters Art Museum. After the fall of Iraq, Mr. Vikan joined a panel that reformulated how the possession of antiquities would be handled.  Based on this experience, he illustrated the importance of transparency and good faith engagement when handling antiquities. He opined that nowadays museum directors are terrified of making antiquities purchases given the risk it presents, but also encouraged the museum community to change its behavioral guidelines to check the veracity of an artistic work’s title.

The second speaker was Jane C. Milosch, Director of the Provenance Research Initiative in the Office of the Under Secretary for History, Art, and Culture at the Smithsonian Institution in Washington, DC. Ms. Milosch discussed the issue of provenance, which is a record of ownership of a work of art or an antique, used as a guide to assess authenticity or quality. She observed that problems that arise when certain pieces of art that the Smithsonian acquires lack provenance.  The museum is then faced with the task of determining if the piece is a fake, a forgery, or stolen.  Ms. Milosch, whose focus is on Nazi-looted art, commented on the Washington Conference Principles on Nazi-Confiscated Art, which encouraged museums around the world to ensure that all objects created before 1846, and acquired after that date, have established ownership or provenance.  She then detailed the ongoing provenance process at the Smithsonian, and described the different resources her office uses to establish the history and ownership of the museum’s pieces.  She noted that museums usually try to formulate groupings to save time and resources while conducting provenance research. The Smithsonian itself developed an online public database that enables museums from around the world to access the information, and add more information to the database when possible. Ms. Milosch stressed that museums must keep a systematic way of establishing provenance, and work with one another because provenance research cannot be done in isolation. There are multiple experts with different pieces of information that have more value when brought together.  She concluded that provenance research has become more challenging as resources diminish, which emphasizes the need for collaboration between curators and museums.

The third speaker, Frank K. Lord, is a member of Herrick, Feinstein LLP’s Art Law practice group, and represents collectors, art dealers, claimants, auction houses, and museums in matters relating to art and cultural property law. One of his most notable ongoing cases is his work with Marei von Saher—the heir of Dutch art dealer Jacques Goudstikker—who is pursuing the recovery of hundreds of artworks that the Nazis seized during World War II.  The investigations began in 1997, when the Dutch government, with pressure from the U.S. government, began examining all of its collections.  Journalist Peter Van Hollander brought the issue to the forefront when he received a tip from someone in the finance industry that the way the Dutch collections were managed after the war was problematic.  Eventually, Peter and Marei von Saher were able to make a claim, pursuant to the Washington Principles.  The Dutch government formed a restitution committee, the sole function of which was to analyze the pieces in the government’s possession, and review their origins. After a year of investigation, the committee apologized to Ms. von Saher for the way the government handled the pieces, and held that the forced sale of her husband’s works to the Nazis should never have been considered an involuntary transaction. The Dutch government also apologized to the family and restituted around 200 artworks.  Von Saher is now pursuing a claim in the U.S. Federal Court for the Central District of California for the recovery of Cranach the Elder’s Adam and Eve, located at the Norton Simon Museum of Art in Pasadena, California.

The last speaker was Colette Loll, who is the founder and director of Art Fraud Insights, a consultancy specializing in art fraud-related lectures, training and specialized investigation of artworks. Ms. Loll has been involved in several independent projects related to the topic of fine art forgery and art forensics, including participating in documentary film projects, and serving as the lead researcher in attribution and authentication investigations.  Ms. Loll highlighted the issue of how fakes and forgeries affect the essence of the creative process, and public access to this process. She noted that authenticity is at the heart of a museum’s mission, and forgers who distort the artistic record of pieces have breached the public’s concept of originality. The art community—scholars, curators, dealers— have proven to be a forger’s best ally because forgers use a number of confidence tricks that take advantage of the enthusiasm and wishful thinking of those in the art trade. Forgers are quick to act on the gap that exists when demand exceeds supply, and prey on the collectors eagerness to purchase a piece from an artistic master. As art prices continue to soar, dealers and collectors want assurances that the relevant pieces are authentic. Ms. Loll concluded that the process of authentication is in need of a paradigm shift that will merge art and science, and, consequently, democratize the attribution process.

*The author is a Junior Staffer for Volume 30 of the American University International Law Review writing as a part of our series recapping our February 2015 Symposium: Protecting Art and Cultural Property Through International Law at ASIL

Symposium Opening Keynote: Professor Patty Gerstenblith on Looting and Armed Conflict

By: R. Carter Parét*

Distinguished Professor Patty Gerstenblith, of DePaul University, delivered a comprehensive and exciting opening keynote address to a packed house of mostly practitioners, students, and American Society of International Law (“ASIL”) members at ASIL’s Tiller House. Prof. Gerstenblith discussed the relationship between looting and armed conflict, specifically the legal safeguards in place to address the issue.

First, Prof. Gerstenblith outlined the current international legal framework protecting cultural property during armed conflict. Currently cultural property is protected by a duality of regimes, first under the 1954 Hague Convention, and second, the four Geneva Conventions applicable in armed conflicts. The 1954 Hague Convention creates an obligation on states parties to safeguard cultural property within their borders against the foreseeable effects of an armed conflict. Moreover, the Convention prohibits the export of cultural property from occupied territories. Another important outcome of the Convention is the creation of the International Committee of the Blue Shield.  Prof. Gerstenblith noted that the Blue Shield is the cultural property equivalent of the Red Cross and marks protected cultural sites in armed conflict areas.

Second, Prof. Gerstenblith discussed the problem of looting during armed conflict, commenting that it is carried out on a large scale for economic gain. But the goal of the 1954 Hague Convention and other international agreements is to reduce the economic incentive to loot. Prof. Gerstenblith walked the audience through case studies of looted sites across Peru, Turkey, the U.S., Iraq, Syria, and Egypt. In addition to destroying cultural heritage and sites of significance, looting removes an item out of its context, making it hard to determine the authentication, history, and significance of the looted item. However, Prof. Gerstenblith noted a positive development in the law on two fronts. First, countries are beginning to pass foreign national ownership laws, whereby the host state owns all the items still in the ground. Moreover, foreign national ownership laws make it a crime to remove cultural property or archaeological items from a site without permission. Second, the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property prohibits the import, export, or transfer of ownership of cultural property. Additionally, the 1970 UNESCO Convention requires state parties to take necessary measures to prevent museums from acquiring cultural property that was illegally exported.

Third, Prof. Gerstenblith succinctly demonstrated the greater issue at hand, using the conflict in Syria as an example. Five out of the six World Heritage Sites in Syria have been damaged as a result of the conflict itself, and twelve sites on the Tentative World Heritage List have been subject to looting. Using before and after images, Prof. Gerstenblith demonstrated the true problem these sites face. The convergence of poverty, a failing state, and armed conflict provide the “perfect storm” for looting.

Ultimately, Prof. Gerstenblith left the audience with four parting thoughts on current and proposed efforts to improve the protection of cultural property. First, the International Criminal Tribunal for the Former Yugoslavia has recognized that the destruction of cultural property goes together with human killing. Second, military necessity under international humanitarian law allows for too much destruction, and must be reworked. Third, protections against looting in armed conflict, enumerated in the 1954 Hague Convention and the 1970 UNESCO Convention, should be unified under one treaty. Finally, the protection of cultural property should be a human and civil right under international human rights law.

*The author is the Deputy Symposium Editor for Volume 30 of the American University International Law Review writing as a part of our series recapping our February 2015 Symposium: Protecting Art and Cultural Property Through International Law at ASIL

Symposium Panel One – Resale Royalty Rights: A Comparative Discussion on Increased Moral Rights for Artists in America

By: Alejandra Aramayo & Reema Taneja*


  • Kevin Amer, Counsel for Policy and International Affairs, United States Copyright Office
  • Irina Tarsis, Esq., Founder and Director, Center for Art Law; Chair, Cultural Heritage and the Arts Interest Group, American Society of International Law
  • Lisa L. Jones, Director, Silver and Decorative Arts, Costumes, Textiles and Fashion, Sloans & Kenyon Auctioneers and Appraisers


Peter Jaszi, Professor of Law, American University Washington College of Law

Many countries, particularly in the European Union, have adopted resale royalty rights.  However, to this day, the United States has failed to implement them into federal legislation; despite the fact that in the last twenty years, U.S. courts have addressed the doctrine at the state level.  In an attempt to combat this issue, speakers in Panel one evaluated the implementation of resale of royalty rights in various countries and assessed whether the United States should follow suit.

Resale royalty rights, also known as droit de suite, originated in France in 1889.  They enable visual artists to benefit from the increased value of their works over time by granting them a percentage of the proceeds each time their work is sold at auction.  The average royalty rate is three to five percent and is capped for each sale made.  Irina Tarsis emphasized that many heirs have benefitted from resale royalty rights as over seventy countries have implemented legislation providing for such rights.  She observed that these countries have had a positive experience.  For example, despite United Kingdom legislation enforcing these rights, sales in London have reached record numbers.  Similarly, France has a number of societies in the country that collect the dues owed to artists for the resale of their works.  However, Lisa Jones noted that the maximum royalties an artist in the European Union can receive for the resale of his or her work is 12,500 euros.  To shed light on the relationship between this cap and value of the pieces, she explained, for instance, that Andy Warhol, whose Triple Elvis was sold at Christie’s New York for $81.9 million, would only receive 12,500 euros for the resale.

Ms. Tarsis observed that while the United States Constitution permits laws granting artists certain rights, this country currently does not provide for resale royalty rights.  While the U.S. is a party to the Berne Convention for the Protection of Literary and Artistic Works, which grants these rights, the U.S.’s obligations under that convention are optional and reciprocal.  Kevin Amer highlighted that this means American artists do not recoup royalties for the resale of their works, even when the works are sold in countries providing for resale of royalty rights.

The current status of the resale royalty rights in the U.S. is murky.  California passed a resale royalty rights law in 1976, but the Ninth Circuit struck it down as unconstitutional because it violated the commerce clause.  The case is pending appeal.  As both Mr. Amer and Ms. Tarsis noted, the U.S. Copyright Office, published a report in 1992 recommending against resale royalty rights because of concerns over the negative effect they would have on the secondary art market in the U.S.  Its follow-up report in 2013 suggested that the rights’ benefits on artists was not conclusive, and would only affect a small number of established artists.  Auction houses have vehemently spoken out against resale royalty rights.

Despite these developments, all three speakers recommended that the U.S. consider implementing resale royalty rights at the federal level.  Mr. Amer noted that the number of countries with similar legislation has doubled in the past several years, and suggested that Congress may wish to consider granting resale royalty rights to artists to eliminate this disparity.  Ms. Tarsis observed that there are an equal number of people supporting and rejecting a federal law providing for resale of royalty rights.  She emphasized, however, that while U.S. auction houses are fighting against these rights, the artists themselves are not united.  She opined that the artists must come together because they are the ones that would benefit from the proposed legislation.  Ms. Jones observed that artists should be allowed resale royalty rights to protect the reputation and the value of their work, especially given the high prices at which some of their pieces can sell for at auction.  She further highlighted that although the maximum royalties received for an artist’s work is capped, receiving some money is better than not receiving anything at all.  However, she did note that a buyer collecting the works of a mid-range artist might not be willing to bid high amounts for the artist’s pieces at auction.

*Both of the authors are junior staffers for Volume 30 of the American University International Law Review writing as a part of our series recapping our February 2015 Symposium: Protecting Art and Cultural Property Through International Law at ASIL

Symposium Editor’s Note

By: Merve Stolzman

On Wednesday, February 18, 2015, the American University International Law Review (“AUILR”), together with the American University Intellectual Property Brief, the American Society of International Law (“ASIL”) Cultural Heritage and the Arts Interest Group, and Center for Art Law, hosted a symposium titled “Protecting Art and Cultural Property Through International Law” at ASIL’s Washington, D.C. headquarters at Tillar House.   The various issues discussed at the event had as their stimulus the strong belief that art and cultural property have a tremendous value to many different actors.  In particular, the discussions focused on how comparative and international law could help to preserve this value.  As the Washington College of Law’s (“WCL”) Dean Claudio Grossman explained, “The passion, values, and emotions that go into art are worthy of protection.”

Artists often see their work as an expression of their thoughts, feelings, creativity and personality.  Understandably, they therefore wish for better rights to protect their work and reputation.  Unlike writers or musicians, artists in the U.S. do not receive royalties when their work is re-sold.  The U.S. is a signatory to the Berne Convention for the Protection of Literary and Artistic Works, which provides for such rights.  However, unlike seventy of its counterparts, predominantly in Europe, the U.S. has not chosen to implement this aspect of the Convention domestically.  Given the positive experiences of those states that have granted artists resale royalty rights, the U.S.’s reluctance to follow their lead is puzzling.

While the resale royalty rights legislation enacted in California is currently being attacked on constitutionality grounds, speakers in Panel one suggested that the main problem is not that the U.S. legal system lacks the foundations to provide for such rights at the federal level.  Rather, stakeholders, namely auction houses, have lobbied hard against resale royalty rights because of the potential ramifications such rights will have on their business.   Lisa Jones confirmed that at least for mid-range auction houses, introducing resale royalty rights could detrimentally affect purchasing.  However, Kevin Amer noted that the experiences of other countries have illustrated that the impact on the art market is exaggerated.  Irina Tarsis observed that the auction houses’ interests have taken center stage partly because artists have failed to unite and vocalize their interests to counter the auction houses’ lobbying efforts.

At the end of Panel one, speakers noted the fear that targeting the obligation to pay resale royalties solely to auction houses would drive the art market “underground” into the private sphere.  They hinted that this could have major repercussions for authentication because buyers often rely on auction houses to thoroughly investigate the provenance of a particular piece before agreeing to sell.  This observation highlighted the interconnectedness of the issues presented throughout the symposium.  As the speakers in Panel two explained, the art market is currently flooded with looted works.  This has had a profound impact on authentication, and has increased the likelihood that museums and private buyers will purchase illicit works.  The looting problem has also severely damaged the cultural heritage of the countries from which these works were stolen.

Many by now have likely seen the video ISIS posted online last week of its members destroying precious Assyrian antiquities displayed in the Mosul Museum in northern Iraq.  Arguably, this video was not only aimed at undermining Iraq’s rich pre-Islamic culture, but also provoking a retaliatory response.  The video illustrates that ISIS is acutely aware of the significance art and antiquities have on cultural identity.  ISIS has not only been guilty of destruction, however.  It has also substantially profited from the looting and sale of Syrian and Iraqi antiquities.  Reports suggest that ISIS made around $36 million in Syria last year from a single looting incident.

As the opening keynote, Patty Gerstenblith explained, armed conflict is the “perfect storm” within which large-scale looting can take place.  While such conduct has had a long history, it was not until the mid-twentieth century that the international community attempted to protect cultural property through international agreements.  The 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict prohibits the destruction and seizure of cultural property during armed conflicts, and the export of such objects from occupied territory.  The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property addresses the international art market, and obligates states parties to regulate the import, export, and restitution of illicit works.

The opening keynote and speakers from Panel two emphasized that the ultimate aim of these conventions was to disincentivize looters from stealing art and antiquities for personal gain.  The question remains how best to do so.  Ms. Gerstenblith opined that the current legal regime lacks efficacy, and proposed that the international community unify the two legal regimes for combating the looting problem, one focusing on armed conflict, and the other on the international market.  Eden Burgess highlighted the need for domestic approaches to tackle the looting problem, and commended the efforts of organizations such as the International Committee of the Blue Shield to train soldiers on the ground to prevent looting and destruction of cultural property.  Leila Amineddoleh acknowledged that regulating the looting of objects during an armed conflict is difficult, if not impossible, and emphasized that this is why educating and encouraging buyers to investigate the origins of the works they wish to purchase is key.  Bonnie Magness-Gardiner asserted that disrupting transnational criminal networks, and prosecuting individual looters through a variety of criminal charges reduce incentives to engage in the trafficking of cultural property, but highlighted the evidentiary issues that often arise in the course of such prosecutions.

While preventing looting should remain the ultimate objective, this only addresses one aspect of the problem.  Owners of looted objects understandably want these works back.  The question then becomes how to restore to them what they have lost.  Responses have been contentious to say the least.   Various stakeholders, including private owners, museums, lawyers, and governments, have been battling over the whether restitution or repatriation is even best means of protecting the art or antiquity in question.  The Elgin Marbles controversy is the prime example.  Nevertheless, speakers in Panel three, and the closing keynote, Tom Kline, were adamant that the return of looted works should be encouraged through transparency and good faith engagement between the current possessors and original owners.

The participants drew upon a series of examples to illustrate both the successes and downfalls of varying restitution and repatriation mechanisms.  These mechanisms include litigation, bilateral agreements imposing import controls, official seizures, negotiation and settlement, voluntary return, and temporary loans.  Gary Vikan provided the museum perspective, emphasizing that if the owners have a good reason for wanting it back, museums should accommodate.  Frank Lord IV highlighted the tensions and obstacles that plague restitution litigation, especially when owners initiate proceedings in more than one country for the same work.  He further noted that for Nazi-looted art, the statute of limitations often has a significant impact on the success of restitution litigation.  Tom Kline advocated for a more comprehensive approach, where museums, source countries, and the original owners can collaborate to find a solution that best caters to all of their respective interests.

One important consideration is that it is often difficult to prove ownership in the restitution and repatriation process.  Provenance research plays an important role in easing this difficulty.  The efforts at the Smithsonian to engage in due diligence before obtaining pieces for its collection, illustrate the indispensable need for provenance research initiatives.  Panelist, Jane Milosch, stressed that while a substantial degree of progress has been made, provenance research has faced many obstacles, particularly because of the lack of funding and connoisseurship in the field.  Colette Loll emphasized that the increasing prevalence of fakes and forgeries in the international art market only makes provenance initiatives more complex, as fakes and forgeries distort the artistic record, and consequently compromise national and museum archives.

AUILR was privileged to have such well-renowned experts in the art and cultural property discourse to discuss how best to respect and protect the substantial value artists, countries, collectors, and museums place on arts and antiquities.  These speakers not only provided a comprehensive assessment of the underlying concerns that undermine the protection of art and cultural property, but also provided unique perspectives on how to best combat these concerns.  As Symposium Editor for AUILR, I hope that the symposium not only raised awareness of these issues in the international realm, but also had a positive impact on the discourse.  I look forward to AUILR and WCL’s future involvement in helping to protect art and cultural property through international law.  Please check back to our blog for the next few weeks to read more detailed descriptions of our keynotes and panels.

Protecting Art and Cultural Property Through International Law

February 18, 2015
Location: ASIL, Tillar House
2223 Massachusetts Ave., NW,
Washington DC 20008

Presented in partnership with
law review logo (1)WCL IP Brief Logo_page1_image1 ASIL Logo Center for Art Law Logo

Art and cultural property have held a special significance for humankind for centuries. Collectors derive pleasure from the art or cultural property’s aesthetic and emotive value. Creators see the art or cultural property as an expression of their thoughts, feelings, creativity and personality, as well as a means of income. Finally, states and communities perceive such works as a documentation of their heritage, history, and legacy. In granting artists moral rights, and protecting art and cultural property from theft and destruction, we are preserving the value these actors place on these works.

Three panels of distinguished experts will aim to identify the ways in which the international legal discourse has, and has not, contributed to this endeavor through resale royalty rights, protection and preservation mechanisms enumerated in international agreements and national legislation, and restitution and repatriation practices, among others. We hope you will join the discussion.

Opening Keynote: Patty Gerstenblith, DePaul University College of Law


Kevin Amer, U.S. Copyright Office
Leila A. Amineddoleh, Galluzzo & Amineddoleh, LLP, Fordham University School of Law, Lawyers’ Committee for Cultural Heritage Preservation
L. Eden Burgess, Cultural Heritage Partners PLLC
Colette Loll, Art Fraud Insights, LLC
Frank K. Lord IV, Esq., Herrick, Feinstein, LLP
Bonnie Magness-Gardner, FBI Art Crimes Team
Jane Milosch, Smithsonian Institution
Irina Tarsis, Center for Art Law, American Society for International Law

Closing KeynoteThomas R. Kline, Andrews Kurth LLP

Registration is free but required – please go to  4 CLE Credits will be applied for – CLE registration is $220. For further information, contact: Office of Special Events & Continuing Legal Education, 202.274.4075 or

Visit our website:
Visit our partners:,,