Academic journal article The Review of Litigation

Immunity of Loaned Art from Seizure in the United States and the Necessity of Legislative Reform to Ensure the Continuation of International Lending

Academic journal article The Review of Litigation

Immunity of Loaned Art from Seizure in the United States and the Necessity of Legislative Reform to Ensure the Continuation of International Lending

Article excerpt

I. INTRODUCTION...................... 105

II. PROTECTION FROM SEIZURE FOR LOANED ART: THE STATUTORY BACKGROUND AND CASE LAW COMPLICATIONS...................... 108

A. Protection for Loaned Art Under the Federal Immunity from Seizure Act...................... 108

1. Requirements of the IFSA and Applying for IFSA Protection...................... 111

2. Use of IFSA Protection by Borrowing Museums.......................... 112

B. State Immunity from Seizure Statutes and the Limited Protection they May Provide...................... 114

1. The Texas Exemption...................... 115

2. The New York Exemption 117

3. The Schiele Case and the Necessity of Obtaining IFSA Immunity Regardless of the Availability of State Protection...................... 118

C. An Additional Source of Concern for State-Owned Foreign Lenders...................... 123

1. The Foreign Sovereign Immunities Act and the "Expropriation Exception"...................... 123

2. The Malewicz Case: Why IFSA Protection Cannot Fully Protect All Foreign Lenders from Litigation...................... 124

III. FOREIGN CULTURAL EXCHANGE JURISDICTION IMMUNITY CLARIFICATION ACT: A VIABLE SOLUTION?...................... 127

IV. CONCLUSION...................... 133

I. INTRODUCTION

Museums must be able to borrow art for shows. Temporary loans of art are an important way for museums to bring in visitors and fulfill their missions to the public. A group of experts tasked by the European Union with determining how to facilitate mobility of works within the EU stated,

Museums have a long tradition of sharing the cultural heritage in their custody with other museums and institutions. To lend objects to other museums, both in the same country and abroad, is considered one of their most important tasks. To have the opportunity to borrow from other museums is crucial for large and small museums alike.1

The experts recognized, however, that there are a number of barriers to the exchange of art loans between countries, among them, the risk that the objects will be seized while abroad.2

For American museums, in order to have great and varied exhibitions, these loans often come from institutions outside the U.S.3 American museums accept loans from and loan works to other museums within the United States and museums in foreign countries.4 Even museums with the largest collections bring in loaned art to vary exhibits and bring in new visitors.5 But, this valuable cultural exchange is likely to slow drastically-or possibly cease-if foreign museums are worried that their works may be seized while temporarily on loan within the United States.

As it currently stands, there is uncertainty as to what protection foreign loaned art has while it is within the United States. Foreign museums are not likely to take on the risk of sending their art for temporary exhibition if it is unclear whether the art will be protected from seizure by U.S. courts while in U.S. jurisdiction.6 Because the risk of litigation outweighs the reward of exchanging art with American institutions, uncertainty in the law could be enough to halt this important exchange.7

Federal law and several state laws, including statutes in New York and Texas, have attempted to ensure that foreign loaned art is immune from seizure in the United States.8 But, as this Note will demonstrate, there have been a number of problems with these protections. Two major problems arise when: (1) museums attempt to rely on state protection, rather than federal protection, to secure immunity from seizure for their loaned works, and (2) the foreign lender is a state-owned institution. 10 This Note discusses the protection available to foreign loaned art under federal and state law and the holes in the statutes.

Finally, this Note explains why current legislation introduced in Congress to close this gap in protection11 does not adequately fix the problem it seeks to address. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.