Meet Our Guest with Anne Laure Bandle
Anne Laure Bandle
Guest Work Agency is the first Australian legal practice to become a member of the Art Law Foundation, established in Geneva since 1991. Both Guest Work Agency and the Art Law Foundation aim to work at the forefront of research and innovation in the field of art law.
For this issue of Meet the Guest, Guest Work Agency Paralegal Associate, Reetika Khanna interviewed the Director of the Art Law Foundation, Dr Anne Laure Bandle. In addition to her role as Director, Anne Laure advises clients on matters related to art law, copyright and commercial law, and lectures at the University of Fribourg and the London School of Economics.
What types of art disputes do you see most often?
Art transactions can induce a broad range of legal issues. These include import/export issues, taxation issues, authenticity questions, fraud and stolen art accusations. I also assist with artists’ estates and the commercial business of private clients.
Can you tell us about any cases you have been involved in?
The bulk of my work is counselling and advisory services for clients, including visual artists, music composers, collectors and galleries. I have also been part of litigation for the return of artwork looted by the Nazis. These matters require very deep archival research to satisfy issues with evidence. I think the most exciting cases I’ve worked on are auction disputes over ‘sleepers’, misattributed artworks that have been undervalued due to the oversight of an expert, and consequently undersold. I find the relationship between authenticity and value fascinating.
What do you think are the main difficulties that judges face when dealing with established art market practices?
A couple of issues come to mind. First, the incredible volatility of art prices is peculiar to those outside the industry. Second, the fact that most art deals are orally made, using ‘handshake deals’, is little understood. It would help greatly in disputes if all contracts dealing with art were written and signed, but this is rarely the case. Underlying these handshake deals is a broader notion that judges struggle to comprehend – art transactions are based on trust. For example, collectors often don’t even know who they’re buying art from. They trust their intermediary in transactions completely, and feel so bound to them, that they don’t ask any questions. This lack of due diligence isn’t looked upon favourably by the Courts.
Do you think that alternative dispute resolution (ADR) mechanisms are more effective than courts for art-related matters?
In one word, yes! ADR is the best way to deal with art disputes because the need for expert knowledge in these cases is essential. Depending on the case, some qualifications are more helpful than others in choosing expert mediators, arbitrators and lawyers for ADR. Professors are often selected for their specialised knowledge, and because the skills of an arbitrator are not vested with a defined set of individuals, matters can be resolved by those who properly understand the intricacies and habits of the niche market within which the dispute falls.
For parties to explain everything to a judge, using lawyers who may have very little knowledge about the art market, can be quite dangerous and damaging. Many people don’t want to go through the process of bringing in witnesses, testifying in Court, and potentially having their name tainted by the media coverage of a lawsuit. In a market based largely on trust, it makes sense for the majority of art-related disputes to be settled out of Court, using ADR.
What are your thoughts on the newly established Court of Arbitration for Art in The Hague?
I welcome the forum but don’t have enough information at this stage to know how successful it will be. The value of the Court rests in the hands of lawyers to draft contracts including a term that calls upon that Court in the event of a dispute. The International Council of Museums and the World Intellectual Property Organisation (ICOM-WIPO) Arbitration and Mediation Centre similarly offers a special mediation process for art and cultural heritage disputes, but we haven’t yet had a case resolved by the mechanism.
Setting up mechanisms specifically designed for art law disputes is important but their success will ultimately be determined by how transparent they are about the process they are offering, and the experts they have in place, in order for practitioners to have faith in the quality of the forum and encourage clients to include it in agreements.
I am also not sure whether The Hague is the best location for this kind of forum – perhaps New York, London, Geneva or Paris would have made more sense as a base for such a Court of Arbitration.
Are there any recent advances in technology that you think will help tackle legal issues relating to art?
Artmyn is a Swiss tech company working on the digitisation of artworks in five dimensions, allowing the viewer to zoom, flip between angles, and alter the direction of and intensity of light in examining a piece. This is fantastic, not just from an entertainment perspective, but the significance of the precise detail recorded digitally also means we will be able to compare the same work of art at two different moments in time. This will be very useful in instances of damage and conservation, the lending of artworks between institutions, and will ultimately function as a digital passport for provenance.
Additionally, auction houses have traditionally spent huge amounts of money in drafting and printing catalogues. Moving into the future, more money will be funnelled into creating digital catalogues that can be adapted quickly and don’t face the same printing deadlines before an auction.
Iconem is another start-up working to visually rebuild cultural property that has been destroyed through war, urbanisation and climate change. Creating digital replicas of endangered cultural heritage sites will not only record them indefinitely for future generations, but also encourages the preservation and protection of what still remains today.
However, while such innovation can assist in legal issues, they also create legal issues by raising questions of how best to adapt copyright law to the digital age, while still protecting artists’ interests.
Are there any developments in copyright law that will impact the production and dissemination of art?
It looks like we will have a new law on press photographs in Switzerland very soon. The change in legislation will mean that any photo of a 3D object, which would not previously have met the individuality and creativity threshold, will be protected for 50 years from creation. It was argued that press photographers were at a significant disadvantage in providing photos that are published online and shared very quickly without reward, such that greater copyright protection should be afforded.
The legislative reform stems from two recent decisions, the “Christopher Meili” case (2004) and the “Nicholas Hayek” case (2012), which were unfortunately ill argued. In these cases, the judge ruled that the photographs in question were not protected under current copyright law and could be freely used. The images were of ordinary looking, everyday street scenes, and therefore were not viewed as sufficiently creative and individual. However, I believe the lawyers could have argued more strongly that the photographs were historically important and individual enough to be protected. The photographers put a lot of effort into designing the composition and it should have been better explained that photographers can have a creative ambition to photograph streets in a way that makes them look very ordinary, while still being considered art. The outcome harks back to the issue of judges not having the right eye of connoisseurship to consider such cases.
How effective do you think international institutions have been at facilitating the return of cultural property?
From a historical perspective, international institutions have been crucial pioneers in establishing a legal framework for many difficult issues, such as dealing with art in warzones and underwater cultural heritage, thus leading to the introduction of national legislation. International institutions also remain important for restitution matters where there is a diplomatic conflict between two governments.
However, the return of cultural property faces a great hurdle in state sovereignty as so much is tied up in notions of national identity. Balancing cultural nationalism against cultural internationalism is a challenge and, in some instances, irreconcilable. Realistically, the Elgin Marbles case will probably never end. But on the other hand, you never know when a strong change in mentality and a real desire to return cultural property will emerge. Enough momentum developed in France for the government to commission a report on the issue of returning colonial art from Africa, however, few returns have actually taken place.
International institutions have perhaps been too focused on restitution, rather than finding alternative schemes such as loans or creating copies of cultural property, to resolve disputes that have been long stymied.
What impact has the Art Law Foundation had in the field?
The Art Law Foundation was established 20 years ago, and I’ve been there for the last five years. The ambition fuelling the foundation was to create a platform for practitioners and scholars to exchange ideas on issues linked to art. We publish widely, organise regular events and conferences and support the Art Law Centre at the University of Geneva. We have also created guidelines and due diligence toolkits and launched a responsible art market initiative following the implementation of anti-money laundering laws in Switzerland that were ill-understood.
We aim to work with, rather than against the art market. We don’t want to be considered a group of lawyers dictating rules in a bubble, but rather seek to integrate the views of all stakeholders and ensure we are as representative and facilitative as possible in our dialogue. We hope to continue to develop new synergies with partners and act as a helpful platform to communicate on various solutions for the art market – whether it is by clarifying existing laws or providing policy papers on emerging issues, such as the digitisation of museum collections.