Art & Cultural Property Disputes
What we saw in 2023
In June there was a development in the claim brought by the Weymss family against dealer Simon Dickinson, when the Court of Appeal refused Weymss permission to appeal the High Court judgment of 2022 which found in favour of Dickinson. This finding will make it harder still for any claimant seeking to argue professional negligence by a dealer for failing to spot a “sleeper” work which subsequently achieves a far higher price than it was earlier valued and sold at.
2023 saw more examples of the widening basis for discussions concerning the repatriation of cultural objects. By way of example, property was returned to Egypt, the Palestinian Authority, Italy, Wamponoag communities, Poland, Thailand, Yemen, Cambodia, Turkey and Mexico. Some legislative changes have been seen to accommodate such action. In June, France adopted a new law to allow the return of specifically Nazi looted objects from public institutions. In the UK it was suggested that implementation of Charities Act 2022 provisions for ex gratia payments would provide further scope for some museums to repatriate artifacts. However, these provisions are now under further consideration.
Getty Images
In May, Getty Images brought a claim in England and Wales against Stability AI, alleging that Stability AI committed copyright, database and trademark infringements by using online content from Getty Images to “train” its artificial intelligence systems. This case is the first of its type to reach the courts in England and we have written about it here. On 1 December 2023, the English High Court dismissed an attempt by Stability AI to derail the claim by way of a summary judgement application. This means that the claim will proceed to full trial. At the same time, the judge allowed an application by Getty Images to make amendments to the Particulars of Claim.
2024 trends and insights
We expect the result of Getty v Stability AI to be significant. This is hardly a David and Goliath litigation insofar as both Getty and Stability AI are large tech companies. However, the precedent which results might offer smaller artists important protection for their creative output against hungry harvesting by generative artificial intelligence. In the US, smaller artists have already begun to bring their own claims against Stability AI specifically, and we may see comparable claims from smaller artists commenced in England and Wales, subject to the findings in the Getty Images case.
Artificial intelligence has already been applied to the issue of the authentication or attribution of artworks. As this particular usage trend increases, we expect to see AI tools being deployed by parties and their experts on issues of authenticity and attribution. There has already been criticism of the abilities of artificial intelligence in the authentication industry, with critics pointing at evidence of inconsistency in result. Our view is that human experts will continue to be needed, particularly while the technology develops. Even as the technology improves, courts will still look to human experts to analyse, interpret and critique the findings of AI tools. We may, therefore, start to see a hybrid of human experts and AI tools being used in litigation in which authenticity and attribution are in dispute.
We expect the theme of repatriation of cultural objects to continue to broaden during 2024 with the focus turning to query colonial activity.
Art & Cultural Property Disputes
As leading legal specialists in the art and cultural property sector, we understand the art market . Our client base includes collectors, artists, dealers, banks, landed estates, charitable foundations museums and leading galleries. Whatever your issue, our expert team is on hand to guide you through the legal and commercial issues you may face.