American Museums: Rightful Heirs or Pretenders to the Throne?

By: Anna Long

It is essentially undisputed that thousands of artworks and artifacts have been stolen or looted throughout history as the result of outright theft, colonial conquest, and war. Today, a number of these stolen works sit behind glass in museums, the plaques that detail their origins conveniently leaving out exactly how each piece ended up in American institutions. And while the last handful of years has seen a movement towards the repatriation of stolen artworks and artifacts, actual return of that artwork is the exception rather than the rule. First, museums are only compelled to repatriate the art if there is proof it was stolen or looted. And second, in laying claim to particular artworks and artifacts, museums reaffirm the American savior identity rooted in cultural appropriation. Prioritizing repatriation is a necessary step towards the decolonization of the art trade. Relaxing the mens rea requirement of the National Stolen Property Act of 1934 is the best tool for effecting this repatriation.

While the expectation that stolen art should be repatriated is gaining acceptance, the museum community has yet to come to a consensus on its appropriateness and efficacy. Some experts assert that the artworks and artifacts should stay wherever they are currently placed, regardless of national origin or cultural importance. This argument is usually centered on the claim that American museums can better manage and protect the art. However, the fact that the American market encourages continued looting and, correspondingly, further damage calls that claim into question. Other scholars advocate for the return of the art to its country of origin or, if possible, the original owner. This sentiment rests on the concept that cultural property belongs where it originated, especially if it was forcibly removed. This debate does not change the reality that museums are only required to repatriate the art if it is proven to be stolen or looted. Clear provenance, documenting the piece’s history, usually means the art stays where it is. Documentation of ownership going back decades should not necessarily absolve museums of responsibility now. 

Ancient Greek art and artifacts embody the implications of continued American control over cultural property and the importance of repatriation. These artifacts, spread through museums across the country, are a good way to conceptualize how a claim to cultural identity can be expressed through control of material objects. 

“For reasons rooted in everything from Hollywood marketing to Cold War politics, most Americans, regardless of their level of formal education, have a sense that democracy was invented in Athens, Aphrodite was a literal sex goddess,… and (Eric Bana’s) Hector was no match for (Brad Pitt’s) Achilles in the Trojan War.” 

Stretching from democracy, a fundamental building block of American identity, to Brad Pitt and Eric Bana, who are also arguably central to that identity, Greek myth and imagery exist in all aspects of American media. The artifacts that line our museums are the physical manifestation of that imagery.  In appropriating the physical artifacts, we have laid claim to a cultural inheritance of idyllic heroes and representative government.  We are leaning on manipulations of history to do so; manipulations intended to valorize the United States as the exemplar and appropriate inheritor of past greatness.

This interest in control of these artifacts and claim of ownership of a heroic narrative legacy then has greater implications of colonialism. In asserting a legacy from the Ancient Greeks, America, and other centers of the Western world,  claim descendance from a culture that, in turn, claims a descent from the gods and god-like heroes of its own past. The result is an implication that the nations and cultures that originated this grand legacy, no longer have what it takes to expand and continue it.  This opens the door to oppression under the guise of rescue. Even something as simple as asserting that non-Western museums are incapable of maintaining the art reemphasizes the notion that American greatness has supplanted that of the nations and cultures that preceded it.

This appropriation of the art blends uncomfortably with the savior narrative it reinforces.  Wealthy white Americans take it upon themselves to manage the art they have deemed worthy, removed from the people they have deemed unworthy. Unfortunately, it is here that race and privilege are unavoidably thrown into the mix. Although applicable to art and artifacts across the world, the Ancient Greek pieces provide a clear example: it is only in contrast to Western ideals that we considered modern Greeks unworthy inheritors of their own history. Echoing uncomfortably with the fact that most modern audiences do not know that the statues and temples were painted, the modern aesthetic value placed upon the gleaming white is imposed by the colonial powers, preventing understanding of the values of the originating culture.  

Understanding just how deeply ingrained these colonial concepts are in our national identity, it can seem like repatriation will make little difference. But it is a step in the right direction and the National Stolen Property Act of 1934 (NSPA) is a way to get started. The NSPA, often used in conjunction with foreign patrimony laws restricting ownership and transport of cultural property, penalizes the possession, transport, and sale of items that have crossed a state or U.S. border after having been stolen, converted, or taken

Although the statute seems fairly straightforward in its application, it was the 1986 amendment and the Second Circuit’s United States v. Schultz decision that gave the NSPA real teeth. Implemented in 1934, it wasn’t until 1986 that the amendment added possession to the list of criminal behaviors.  Prior to 1986, museums used the statute of limitations as a defense, with decades if not centuries passing between the act of theft and active museum control. As possession is an on-going action, the amendment erased this defense and opened the door for actual enforcement.

United States v. Schultz then expanded the reach of the statute. In Schultz, the Second Circuit held that “just as the property need not be stolen in the United States to bring the NSPA into play, the fact that the rightful owner of the stolen property is foreign has no impact on a prosecution under the NSPA.” Allowing foreign nationals, and even governments, as victims under the act expanded the opportunities for enforcement. Together the 1986 amendment and Schultz brought the NSPA to the forefront of antiquities litigation.

But it is a removal or relaxation of the mens rea requirement that would make the NSPA the most effective tool for repatriation and decolonization of the art trade. The NSPA currently requires a defendant’s knowing violation, and with antiquities long since removed from their context, it is difficult to prove knowledge that the artifacts were stolen. Removing, or at least relaxing, the scienter requirement lowers the burden of proof needed to hold museums liable for possession of stolen property. This is simultaneously a deterrent for the continued acquisition of stolen goods and a justification for the repatriation of artifacts currently within museum collections. And as further enforcement will only limit the number of stolen artifacts entering the US, relaxing the mens rea requirement will do little harm to any legitimate antiquities trade, if there is one.

An Artistic Expression of Critical Race Theory

By: Stephanie Turcios

A picture is truly worth a thousand words. Many of us have seen Jonathan Harris’ painting entitled Critical Race Theory (see the artwork here on Mr. Harris’ website) while scrolling on social media this year. The image is sending shock waves through the art world and is impressing the importance of Black history upon the global consciousness. While it often takes legal scholars pages of rhetoric to explain, Harris has captured the significance of Critical Race Theory (CRT) in a single painting. The image depicts a blond person painting over prominent Black American leaders – Martin Luther King Jr., Harriet Tubman, and Malcolm X with white paint. 

Salient to Black History Month, Harris’ work depicts the danger of whitewashing history. Harris, like many black people in the U.S., assumed that Harriet Tubman was a well-known historical figure. However, during one of his shows at the Irwin House Gallery, a white woman noted that the painting was “a powerful piece” but asked why Harris chose to include Aunt Jemima with Malcolm X and Martin Luther King Jr. It was a serious question and an eye-opener to Harris. He questioned that if this woman doesn’t know who Harriet Tubman is, does she really understand the history of slavery and oppression that Harriet Tubman fought against. 

Further, when asked why he painted Critical Race Theory, Harris told Artnet News that “Black people [are] questioning if our history [is] in jeopardy …[w]e only know what we are taught. My mind went to, ‘how far can this actually go?” His inquiry is in response to the recent backlash against CRT as an academic discipline. Since January 2021, 37 states, including Washington, have proposed legislation to restrict or outright ban teaching CRT in public schools. Harris further opined that “[i]f we don’t push back as these bills are getting passed, this painting could be the future.” To many black people, erasing our history threatens the understanding of our experiences in this country. Our history explains the issues of today and is critical to undoing the harm that persists. 

But what is critical race theory? 

Earlier this year, the American Bar Association published an article by Janel George, a professor at Georgetown University Law Center, explaining CRT. CRT emerged as a subdiscipline of Critical Legal Studies (CLS) in the 1970s. CLS theorists departed from the traditional understanding that the law was a neutral force devoid of political or social considerations and instead posited that law was neither objective nor apolitical. Likewise, CRT theorists agree that the law is neither objective nor politically or socially neutral and that our legal system is instrumental in furthering racial inequality. 

Founding theorists such as Derrick Bell, Kimberlé Crenshaw, Cheryl Harris, and many others ultimately reject the theory of color-blindness, the idea that racism stems from “a few bad apples,” and instead raise structural questions as to why racism persists despite decades of reform efforts. Professor Crenshaw notes that CRT is not a noun but a verb because it is an evolving theory that recognizes that race is a socially constructed concept that is structurally and systematically embedded in many of our institutions, including our legal system. CRT argues that systemic racism perpetuates racial inequality, evidenced by the lived experiences of people of color and other marginalized identities. 

Conversely, opponents of CRT characterize the discipline as divisive. Christopher F. Rufo, an activist against CRT, argues that the discipline is nothing more than a reframing of identity-based Marxism that spreads anti-American ideology. Rufo, and opponents like him, fear that CRT will destabilize our institutions, which they see as “neutral, technocratic, and oriented towards broadly-held perceptions of the public good.” But is this a fair characterization of the theory? Is CRT teaching children to hate their country, or is it challenging us to think about the institutions that have perpetuated harm to people for centuries? 

Why CRT matters. 

The discipline of CRT does not share in the notion that destabilizing the law will stop racial injustice. As Professor George notes, CRT recognizes that although the legal system has historically been used to deepen racial inequality, it also has significant potential to help secure racial equality. We must shift our focus from reform of our institutions to examining the root causes of racial disparity and dismantling those causes through structural change.  

In the New York Times, Mari Matsuda, a CRT founder and law professor at the University of Hawaii, explains the significance of the theory as follows: “I see it like global warming…[w]e have a serious problem that requires big, structural changes; otherwise, we are dooming future generations to catastrophe. Our inability to think structurally, with a sense of mutual care, is dooming us — whether the problem is racism, or climate disaster, or world peace.”

The beauty of art. 

We live in a time where people are quick to speak and slow to listen, where nuances in arguments are lost, and the “all or nothing” mentality prevails. But the beauty of art is that in order to appreciate it, you must sit and reflect on it. You must pause, take a moment, and ask yourself: is Harris’ depiction of our future what we really want?

NFT or Bust? – Impact on The Video Game World

By: Joanna Mirsch

The idea of spending real, hard-earned cash in the video game world is not a new concept. Gamers have been making in-game purchases for quite some time now: unlocking new weapons, characters, levels/maps, and more. These purchases have usually been seen as fun perks to gameplay that allow gamers to tailor their gameplay experience through the content they purchase. However, the growing presence of non-fungible tokens (NFTs) within the video game realm is potentially an entirely different occurrence.

What are NFTs?

There are many ways to understand what an NFT is. It is helpful to first look at what the two words mean separately. At its core, a nonfungible item is something that cannot be exchanged for another thing of equal value; it’s one of a kind. The token references a unit of currency on the blockchain, which is how cryptocurrencies are bought and sold. An NFT—much like bitcoin, ethereum, and dogecoin—is a digital currency that is a type of money. One of the best perks of cryptocurrencies is that they are nearly impossible to counterfeit. Digital currencies operate on what is called the “blockchain”. A blockchain is a decentralized ledger of all transactions across a peer-to-peer network. Since every transaction is recorded across this large network, it makes it difficult for attackers to hack it because they would need to control large portions of the ledger to do any damage.

What distinguishes NFTs from other currencies is that their “underlying technology certifies and guarantees the authenticity of a tether item, raising its value.” Moreover, they can be thought of as “unique, digital version[s] of a certificate of authenticity, publicly rubber-stamped by the blockchain.” As of February 2021, only mere months after coming into the public eye, NFTs have become a booming market whose sales have reached $500 million. NFTs are essentially unique proof of ownership over items people cannot tangibly hold in their hands, such as digital works of art, coupons, video clips, etc. NFTs are one-of-a-kind pieces of code that are stored and protected on a shared public exchange. Fordham Law School professor Donna Redel, who teaches about crypto-digital assets, has explained NFTs as the purchase of a code that manifests as images. Notable NFT purchases include artwork, clips of LeBron James dunking, free pies for life from a Los Angeles pizza shop, digital homes, and much more.

Legal issues surrounding NFTs

It’s potentially dangerous to allow the sale of these unique items without both the creators and users of NFTs truly understanding the rights granted to token holders. While the purchase of NFTs allows buyers to have unique, one-of-a-kind pieces of digital artwork or other products, buyers do not usually get the copyright or trademark to the item. Furthermore, just because you purchase a specific NFT, does not mean others cannot purchase endless other versions of it elsewhere online. Therefore, NFTs—from a copyright perspective—are digital receipts showing that the owner owns a version of the work but does not own any of the exclusive rights in reproducing or preparing derivative works as awarded to copyright owners in §106 of the U.S. Copyright Act. This lack of transparency or awareness behind these NFT purchases could pose serious infringement issues. Many individuals purchasing NFTs are not familiar with the legal restrictions relating to copyrighted works. NFTs do not authenticate IP rights. At most, purchasing an NFT only allows the purchaser to receive the token itself and the right to use the copyrighted work for personal use.

Due to the immature market and lack of flushed out NFT regulation, it is possible the NFTs will allow infringers to steal intellectual property from their rightful owners. The potential for copyright owners to lose ownership over their works is a legitimate fear. Numerous artists have already reported that they discovered their work is being stolen and sold as NFTs without their permission. However, the pertinent legal question that remains is whether the first sale doctrine applies to purchases made by NFT owners. This doctrine allows for individuals who purchase copyrighted works to have the right to sell, display, or otherwise dispose of that particular copy. If this doctrine applies, the owners of NFTs would be able to sell the digital NFTs after they purchase them without the artist’s permission. But it is likely the doctrine is not applicable since NFTs are not tangible works as required by copyright law. The lack of clear rules surrounding NFTs are likely to allow for problems to arise as they grow in popularity.

What do NFTs mean for the gaming world?

One videogame company, SEGA, recently announced its plans to sell NFTs based on its intellectual property—including their classic and current IPs and upcoming projects—in the summer of 2021. SEGA could sell a digital piece of one of its classic games—such as Sonic the Hedgehog art—to a buyer for an extremely high price point. This is one of the reasons that NFTs could become a problem for gamers. Because the sale of NFTs has such a high potential for profit, collectible pieces of classic or limited-edition games—such as the original production sketches of Sonic or a game’s original soundtrack—which might otherwise be bundled with games or sold as physical objects will likely be held back to be sold as more profitable NFTs instead. However, an even greater problem involves possible, and likely, IP infringement through the sale of unlicensed uses of NFTs. DC Comics recently warned creative teams and freelancers employed by DC against unlicensed uses of NFTs after an artist made $1.85 million by selling NFTs of characters he used to draw for DC. This same issue could occur in the video game world too. While there are steps that could be taken to push back against unlicensed uses and sales of NFTs – the real question is whether the video game industry truly benefits from involving NFTs in their games.

While the video game industry has persuaded gamers to buy intangible, digital goods for a long time, what is the benefit of merging NFTs with games? Do gamers need this kind of authenticity to play games? Currently, there are a handful of popular NFT games that allow gamers to tokenize their game assets and use in them in-game or trade them as crypto-collectibles. Some of these games—such as CryptoKitties—record up to $30,000 dollars’ worth of daily transactions and more than 8000 new users weekly. These types of games are supposed to be a mix of thrill and potential profitability. It’s possible that NFT-enabled games can provide a potential boon for the multibillion-dollar video game industry. Currently, games allowing players to buy digital deeds for real estate—in the form of an NFT—have already generated millions of dollars. However, with the growing trend of microtransactions in games, the question of whether NFTs could simply create another pay-to-win structure that incentivizes users to pay large amounts of money to acquire these “authentic” and “unique” digital items is a valid concern. Moreover, what happens if gamers begin selling, distributing, etc. the NFTs they purchase in games? Where do the boundaries exist when it comes to the purchase of NFT content? Perhaps the video game industry is better off not engaging in this new, but potentially problematic, realm of digital currency.

No Man’s Sky: Legal Risks of Raised Expectations in Video Game Marketing

no-mansBy Dan Hagen

Hello Games’ No Man’s Sky is arguably this decade’s highest profile game that spectacularly failed to meet expectations set by its developer. Promises made by Hello Games through marketing and promotion, leading right up to the game’s launch, pushed the legal envelope and should serve as a cautionary tale for video game developers and marketing teams. Just how far can a developer go before their hype becomes illegal misrepresentation?

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Should VARA Apply to Nature Graffiti?

51f877d40cb03.preview-620By Beth St. Clair

State and national parks are sanctuaries, and the Emerald Gem that is the Pacific Northwest has no shortage of outdoor devotees ready to protect its parks’ soul-achingly beautiful mountains, tapestries of forests, and glimmering, shimmering lakes, streams and ocean coasts.

                How shocked would nature-lovers be to learn that, over the last several years, graffiti has moved to national parks? The most nefarious instance involved a 21-year-old from New York who painted exhausted-looking persona on logs, in caves, and even the ground, in as many as eight different national park locales. Tagging each oeuvre with “#creepytings,” she deliberately ousted herself by posting pictures on Instagram. A second case involved a European graffiti artist who spray-painted his signature tag on a boulder in Joshua Tree National Park, also posting on Instagram. After public outcry and an initial denial that he had been on park grounds, the artist paid a National Park Service fine to the U.S. District Court. Continue reading