Resolution of Art Disputes related to ownership – Matisse and Banksy
23 December 2016 by Neemah Ahamed
The nature of disputes in the art world varies from breach of contract and copyright to claims of restitution, theft and ownership. A 100 year old Matisse masterpiece of Greta Moll is currently at the centre of a £24.6 million dispute between the National Gallery and Moll’s family who allege that the painting was sold without her permission after she sent it to Switzerland. In 1979, 2 years after her death, the portrait was bought by the National Gallery which has rejected her family’s claims. The National Gallery argues that there is no proof that the painting was stolen and even if it was, the gallery maintains it is under no obligation to return it since it is the legal owner of the property and holds it for the nation.
Last year an application was lodged by a charity for the return of a Banksy mural called “Art Buff” from the US to the town where it was created. A Bansky mural appeared on the wall of a leasehold property during the Folkestone Trennial. The Tenant of the leasehold property chiseled out the mural without the Landlord’s consent and shipped it to a gallery in New York where it was valued at £500,000. The Charity Creative Foundation who took assignment of the property from the Landlord where the mural was painted filed an action for the art work to be returned to Folkstone. The judge ruled in the charity’s favour and held that the Tenant was not entitled to remove the mural and ordered for it be returned to Folkstone. This is the first example of Bansky’s work being returned to public ownership.
Parties use litigation as a tactical way to place pressure on galleries, auction houses and art dealers to settle matters in order to avoid negative publicity in the press. Litigation can be complex and relies extensively on expert opinions drafted by academics and art scholars. It also expose galleries, auction houses and dealers to public scrutiny which in turn raises questions about their due diligence, negligence or misrepresentation. When parties use litigation as a means of dispute resolution, they are bound by decisions imposed on them by a judge who may rarely have specialist knowledge about the intricacies of the art market.
As a result of this, there has been an increasing trend in the art world to use mediation as a way to reach an amicable settlement. This ensures that disputes remain confidential and are presided over by a mediator who has expert knowledge of the art world and is able to facilitate an agreement that is acceptable to both parties. Recently, the Arbitration Chamber in Milan has set up an initiative to encourage mediation of art disputes. This has been commended by art galleries and dealers. It is hoped that arbitration chambers in other jurisdictions will encourage this form of resolution.
If you need advice on any litigious matters or require an opinion on whether there has been a breach of your contract or would like your contract to be reviewed, please contact Tony Fisher on firstname.lastname@example.org. We also offer commercial mediation and have two CEDR accredited mediators available to help settle disputes.
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