Art and Cultural Heritage
In today’s fast-moving but unregulated art market, the (multi-disciplinary) art law group at Ashfords helps buyers, sellers and artists acquire, safeguard and dispose of art, antiques and precious assets, securely and with confidence. We use our combined industry experience and legal knowledge to protect our clients collections and luxury assets and guide them through the entire life cycle of art. We can unlock and preserve your art's value to secure financing, facilitate a sale or purchase, resolve disputes relating to matters of ownership and valuation, protect your investments through insurance, minimize estate tax liability and structure donations for maximum tax benefit.
Our clients are private, corporate and institutional and include organizations that create and promote the art trade, collectors, dealers and art foundations, agents, introducers and art advisers. We simplify the complex national and international law and treaties that apply to transactions in art and high value assets across the law of personal property law, contract, estates and tax planning, export licences and intellectual property licensing.
Art Transactions - Collecting and Investing in Art
Art is increasingly accepted as a separate asset class and the approach to buying, selling, lending or borrowing precious works of art or raising capital against it needs to be managed carefully if its monetary value is to be preserved. Whether you wish to co-own fine art or buy independently, we work with private and corporate collectors who are in various stages of building, managing and divesting of their collections of fine and decorative art including paintings, sculpture, antique and design furniture, porcelain, silverware and jewellery.
We help collectors safeguard their interests and steer clear of potential disputes relating to misattribution and valuation of the artwork; we draft and review contracts with those selling art to you, borrowing art from you, advising you on your collection, lending you money against the value of your art, insuring, transporting and storing it and buying art from you whether by consignment to auction or private sale through a dealer.
We also draw on our private client expertise in assisting our landed estates client base to advise on the appropriate vehicles for the ownership and display of collections (of works of art wine, cars etc.) including trusts, partnerships and charities. We support todays art owners with information about art and cultural heritage related aspects of wills and succession planning, gifts of art and leaseback sales, wealth structuring to enable collections, valuable chattels and historic buildings to pass to the next generation and optimal tax planning, philanthropy and charitable giving necessary to secure and maintain tax reliefs for heritage property and negotiate exemptions and undertakings with HMRC.
How Does the Law Effect Collectors and Investors?
- Are you confident that you own the title to your art? Do you have adequate protection against the auction house, dealer or gallery that sold it to you in the event of a problem?
- Does the artist/their heirs retain an interest in the works you own?
- Have you considered any VAT implications of bringing works of art into the UK?
- Can you catalogue and reproduce images of the items in your collection whether in print or online?
- What would you really get from your insurer if you made a loss or damage claim. What are the preferred and customary exclusions in art insurance policies? Does the policy specify retail replacement or current market value for instance?
- Are you considering co-investing in a piece or an art fund?
- Do you want to raise collateral against the value of your collection?
- How should art be valued if it's used as collateral for a loan?
- How should works of art in an estate be valued to appropriately minimize estate taxes?
- Are you considering finding a tax efficient, highly secure solution for the storage and exhibition of your collection?
- Is loaning or gifting your art a tax efficient solution?
- How can you protect your work of art while exhibited in a gallery or museum?
- Which terms in the auction house consignment agreement are flexible when you sell high value items?
- Who is responsible if the item you purchase is delivered damaged?
- Has the art you consigned to a dealer been sold and you haven't been paid the proceeds?
- What rights do you have if you have bought a forgery or fake.
- Are you allowed to take your collection out of the country?
Artists and Heirs
We help both established artists and the next generation to avoid unnecessary obstacles involving ownership, liability, insurance and intellectual property for example, arising in your relationships with dealers, galleries, museums and though private or public commissions. We know how to protect your art whether you want to lend it, sell it or get it back. We can secure a fair deal through commission agreements and artists re-sale rights, exploit and protect your copyright and licensing rights for paintings, sculptures and photography and we regularly help artists to negotiate their commercial space and studios, set up websites and establish limited companies.
How Does The Law Impact Artists?
- Are you getting a fair deal from the gallery or dealer representing your work?
- Have you been commissioned to produce work privately or on behalf of a public organisation and need to prepare or negotiate an agreement?
- Do you know who owns the right to make, distribute and sell images of your art?
- Are you receiving your artist re-sale rights and do you know what you're entitled to?
- Have you considered issuing certificates with your work and maintaining a registered database to give owners title and provenance certainty?
- Should you consider setting up a limited company?
- Who enforces the copyright to your work after it is sold or licensed?
- Would you like to borrow back your artwork from the dealer or owner from time to time?
- What happens if your work of public art needs to be restored or repaired?
- Who has to pay and who gets paid if your work shows up in an advertisement?
- Is your art or literary work being copied and exploited without permission?
- Do you represent an artist's estate and wish to loan or donate a piece to a charity or museum?
Art Dealers, Galleries and Advisers
In an international and increasingly litigious marketplace it is paramount that the expectations of all parties involved in transactions of art and collections are managed and robustly documented to give protection. We defend your interests in any litigation or arbitration proceedings and help resolve disputes in cases of defective title, provenance, authenticity and attribution. We review and amend your terms and conditions of sale, advise on staff and employment issues, health and safety, commercial leases and commercial property acquisitions and disposals.
How Does The Law Impact Dealers, Galleries and Advisers
- Copyright infringement actions are increasingly being brought against art dealers and galleries.
- Have you misattributed an item? Is the buyer exploring possible actions against you?
- Are your terms and conditions of sale keeping up with changes in legislation and enforceable?
- Are you giving implied warranties as to title, provenance and attribution?
- Do you want to obtain working capital facilities from a bank secured on your fine art stock?
- Should you be using Letters of Credit in connection with the sale or purchase art and collectibles?
- Why should you establish the authenticity and ownership of a work of art or cultural object; how far should you go?
- Do you need help reviewing and negotiating your art insurance policies or collecting on loss claims;
- Are you aware that the artist retains an interest in the art work that you're buying?
- Are you prohibited from exporting your art out of its home country, should you obtain a licence to do so?
- If you unwittingly purchase or sell on a stolen artwork, do you or your client own it?
Art Crime and Fraud
The art market which remains driven by London and New York is truly global but stolen and looted art, the production of fakes and forgeries and the fake antiques market are big business and art crime, often closely linked with money laundering is now the second most lucrative criminal enterprise in the UK behind drug dealing. It is not just inexperienced individuals but global companies with access to great knowledge who are falling victim to art crime and fraud.
We support our clients with cross border advice on the criminal and fraudulent aspects of transactions involving high value objects, works of art and objects of cultural heritage. Clients may have been the victim of an auction related fraud intended to artificially bid up the price; stop a sale going through at too cheap a price or to otherwise distort the sale price. Perhaps you've bought art or antiquities that are described as being more valuable than they are, or you have been deliberately sold a forgery or reproduction as the genuine item. If so we can help.
We help to trace and recover lost, stolen or misappropriated items and advise you on your options for obtaining compensation. These can include civil recovery, which can be time consuming and which have difficult rules relating to when proceedings can be brought, or by pursuing a criminal conviction, the latter of which has advantages in relation speed and to accessing the Court's draconian powers against offenders under the Proceeds of Crime Act 2002 to claim compensation.
This is a rapidly expanding but difficult area of the law. The Police and Crown Prosecution Service are under resourced and frequently turn away requests to prosecute cases if they appear to be complicated, involve time consuming investigations or where evidence is lacking. We utilise our wide experience of prosecuting criminal offences, including fraud, by putting together cases in a format that may assist in persuading the Police and CPS to take on the prosecution, and we make legal representations to reinforce the evidence submitted. Alternatively we can bring a private prosecution on your behalf, which if successful, can result in costs being recovered, compensation being ordered, the proceeds of any crime being confiscated, a prison term and the guilty verdict being published.
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