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
The Art & Cultural Property Disputes team is following closely developments in the Getty v Stability AI case. Stability AI has submitted its defence to the many claims brought against it. In relation to copyright infringement, the defence states that responses or outputs to word or image prompts do not comprise a substantial part of copyrighted material where the system is able to transform the material freely. Alternatively, the defendant will seek to rely on the pastiche exception to copyright infringement.
The Guardian reported that the artist Damien Hirst and his studio may have misled museums and buyers of certain of his formaldehyde works. They revealed that certain works with names
containing dates from the 1990s (from which period the artist’s works are considered most valuable) were in fact only created around 2017. Hirst’s lawyers have said that the dates related to when the artist conceived of the idea of the works, and that in any case, there is no industry standard around artwork naming conventions. It will be interesting to see if any buyers feel sufficiently misled to bring a claim.
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.