In an earlier Art Law and Policy column (Spring 2011), I looked at the question of whether a state can declare subject matter off-limits to photographers. In that case, the subject matter was farms: the state of Florida was considering a bill that would have made it illegal to take photographs of a farm without consent. I argued that such a statute would be clearly unconstitutional. “[As] a general matter,” the Supreme Court has said, “the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573 (2002) (internal quotation marks omitted; emphasis added). 

Texas Penal Code § 21.15(b)(1) presents a related question. What if it’s not the subject matter that’s off-limits, but the subject matter combined with the photographer’s intent in taking the photograph? The statute makes it a crime to photograph someone “without the person’s consent” and “with intent to arouse or gratify the sexual desire of any person.” Late last year, a Texas appellate court upheld the statute. Ex parte Nyabwa (Tex. Ct. App. Dec. 13, 2011). The Court acknowledged that “[photography] is a form of speech normally protected by the First Amendment,” but accepted the State’s argument that “the statute is not a regulation of speech at all, but instead is a regulation of the photographer’s or videographer’s intent.” Just as a statute criminalizing harassment by telephone (which will typically involve speech) does not violate the First Amendment because it focuses on the actor’s intent (in that case, “to inflict emotional distress”), this statute regulates “a person’s intent in creating a visual record,” as distinct from “the contents of the record itself.” On this basis, the Court concluded that the statute “is not a regulation of speech” and therefore does not violate the First Amendment.

Abstract: Adopting an interpretative perspective aiming to shed light on the forger’s point of view – the ideas he has of the art, of its history and of his own practice – implies an initial paradox. By definition, the forger would not attribute his productions to any other but himself without concealing his own artistic subjectivity. This is why only failure on the forger’s part or a discovery of the fake can lead to an understanding of his point of view. Under this condition, two pathways open up to the hermeneutic inquiry. It can first be based on the examination of the works themselves. The stylistic distortions and, more importantly, the way of combining the iconographic borrowings betray the imaginary of the forger, working with the intention of deceiving. Their study most often shows a figurative spirit torn between literal imitation and the paradoxical desire to invent what the imitated artists could have created. But beyond that, the words and writings of the forgers also call for interpretation. Whether it means, for them, to revive the destabilizing power of their practice or, in contrast, to legitimize it, their discourse assumes a “theory” of the history of art that inscribes itself as well in the realm of tension and paradox. We see them, indeed, dismiss the historicist reason while at the same time relying on it. On the one hand, they rely upon an aesthetic of the expressive trace according to which all original work translates the spirit of its author as a historically placed subject. On the other, they like to imagine that the spirit of the imitated masters comes to visit them across time (spiritualism), unless they refer to eternal laws of art (idealism), whose notion leaves no room to the difference between the fake and the authentic.

Abstract: The state of Israel has numerous historically and culturally significant archaeological sites. Some of these date back to as early as 8000-7000 B.C, and are important to three of the world’s great religious traditions (Judaism, Christianity, and Islam). Unfortunately, many of these sites are targeted by looters who illegally excavate the sites and, in doing so, erase history. This paper is an overview of the antiquities looting problem in Israel. It discusses Israel’s existing laws regarding the antiquities trade, describes the effects that Israel’s wars have had on the illicit antiquities trade, and the different motivations and attitudes of the looters in Israel. The paper also discusses the market players in this trade, analysing the roles the middlemen, the dealers, and the collectors play. It discusses who the looters are, why they engage in their illicit activities, and how they go about their business. The paper discusses ways in which the Israeli government has tried to stop the trade in illicit antiquities, and the debates that surround these and other proposed solutions. The paper concludes by analysing three alternative solutions that Israel could consider implementing in order to curb the looting.

Abstract: Most industries in the United States are regulated by law. The world of art, although regulated in a general framework, is not regulated when it comes to selling that which is authentic (Mccullough, 2012). Million dollar allegedly authentic works of fine and decorative art are vetted and sold by art “experts” with little or unrelated education, questionable training, non-mentored or no specific expert work experience, hyped commendations, bloated resumes and unreferenced mass media professional status. With the help of the mass media, such individuals achieve expert status without satisfying the standards of that which the law or scholarship requires (Briefel, 2006). In the recent Wolfgang Beltracchi forgery case, 47 million dollars of paintings from the “hand of various artists” were authenticated with the note made by the experts that “...using science was a waste of time” (Wright, 2012). Science entered with the result that the material make-up of the works precluded that they were created during the period of artist involvement. Out of 44 paintings, not one survived the scalpel of scientific analysis. This article addresses the conditions associated with the proliferation of wrong calls by so-called art experts and examines how scholarship, Daubert rulings, and Federal Rules of Evidence standards may assist in reducing the bad calls and consequentially art scamming, forgery and fraud.

Few of us question the slips of green paper that come and go in our purses, pockets, and wallets. Yet confidence in the money supply is a recent phenomenon: prior to the Civil War, the United States did not have a single, national currency. Instead, countless banks issued paper money in a bewildering variety of denominations and designs – more than ten thousand different kinds by 1860. Counterfeiters flourished amid this anarchy, putting vast quantities of bogus bills into circulation. This article, adapted from the 2009 book A Nation of Counterfeiters (Harvard University Press), discusses the origins of American counterfeiting of currency, a story that runs parallel to the story of art forgery.