USA – CALIFORNIA Law and Practice Contributed by: Jennifer Jordan McCall, Matt Perotti, Drew Reitz and Ashley E. Huh, Pillsbury Winthrop Shaw Pittman LLP
4.2 Art Authentication US courts have generally approached catalogue rai - sonnés and authenticity opinions as matters of schol - arly discretion. Therefore, courts are reluctant to order the inclusion or exclusion of a work or compel the authenticator to alter an attribution. For example, New York courts have emphasised that the market and not the court ultimately decides how much weight a catalogue raisonné carries (see Thome v Alexander & Louisa Calder Found. , 70 A.D.3d 88 (N.Y. App. Div. 1st Dep’t 2009) and Mayor Gallery Ltd v Agnes Martin Catalogue Raisonne LLC , No 655489/2016, 2019 BL 269316 (N.Y. Sup. Ct. 2 July 2019)). 4.3 Legal Remedies Following a Declaration of Inauthenticity A buyer who later learns that the artwork they pur - chased is inauthentic may pursue contract and tort theories, subject to the governing state law and any contractual disclaimers or limitations. The buyer may assert breach of express warranty by showing that the seller made an affirmation of fact regarding the work’s authenticity, which became part of the basis of the transaction. If not effectively disclaimed, the buyer may also assert breach of implied warranties, such as merchantability and fitness for a particular purpose. The buyer may argue negligent misrepresentation by alleging that the seller supplied false information that the buyer relied on and suffered a pecuniary loss. The buyer may also seek rescission based on mutual mis - take where both the seller and buyer were mistaken about a basic assumption (ie, authenticity), the mis - take materially affected the agreed exchange and the buyer does not bear the risk of the mistake.
“cultural property” is defined broadly to include prop - erty designated as being important to archaeology, prehistory, history, literature, art or science, including categories of property of artistic interest The United States also enacted the National Historic Preservation Act (54 U.S.C. § 300101 et seq) which defines “his - toric property” as any prehistoric or historic district, site, building, structure, or object listed on or eligible for the National Register, including “artifacts, records and material remains” related to it. Additionally, the Native American Graves Protection and Repatriation Act (25 U.S.C. §§ 3001–3013) regulates particular cat - egories of “cultural items,” including human remains, funerary objects, sacred objects and objects of cul - tural patrimony. 5.2 Cultural Heritage and Adverse Possession Adverse possession is primarily a property doctrine under which a possessor can acquire ownership of real property by holding it for the statutory period in a manner that is actual, open and notorious, exclusive, hostile (ie, without the owner’s permission) and con - tinuous. Generally, ownership disputes over cultural objects in the United States would not be addressed under adverse possession. Additionally, where an object was stolen, a later good-faith purchaser for value typically would not be able to obtain good title under the Uniform Commercial Code. For instance, in United States v Schultz , 333 F.3d 393, 395 (2d Cir. 2003), the court held that the National Sto - len Property Act treats antiquities as “stolen” where a foreign nation has a valid patrimony law that vests ownership of certain cultural objects in the state. In Kunstsammlungen zu Weimar v Elicofon , 678 F.2d 1150, 1165 (2d Cir. 1982), the court found that the possessor lacked a superior title and granted relief to the museum that sought the return of two Dürer paint - ings stolen during/after WWII that later appeared in the hands of a New York collector. The court, applying New York law, stated that a “purchaser cannot acquire good title from a thief.” 5.3 State Rights to Cultural Heritage When a private individual discovers a cultural heritage item in the United States, the state’s rights primarily depend on (i) where the item is found and (ii) what type of item it is. On federal or tribal land, federal stat -
5. Cultural Heritage 5.1 Defining Cultural Heritage
The United States does not have a single definition of “cultural heritage.” Generally, cultural heritage is understood to mean items or practices/customs that a community or society inherits and passes on to future generations. While the United States has announced it will withdraw from UNESCO effective December 31, 2026, under the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property
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