Over the last 3 years, by pure coincidence not design, I became involved in a handful of art ownership disputes. These were disputes that originated in other jurisdictions then spilled over into the United Arab Emirates for a variety of reasons including the artworks having been moved to into the jurisdiction or due to the individuals involved being domiciled in the UAE.
I must say that I found the whole experience to be exciting and enjoyable. What ?!! I am suggesting that lawyers are allowed to say that they enjoy working on resolving other people’s problems ? Yes I dare say so !
Art disputes are a breath of fresh air compared to your stringent technical construction disputes, they often involve an interesting story about a famous artist or a centuries old set of historical twists. These disputes trigger endless research expeditions and open your eyes into a charming world where the quest for wealth and notoriety mixes with creativity and passion.
Other than disputes about authenticity and fraudulent misrepresentation, art disputes usually revolve around ownership. So at the outset, my first question to a client was naturally: Send me your proof of purchase and we will be on our way to resolving your issue in no time !
Well, l quickly learnt that it does always work like this in the art world. Artworks exchange hands in multiple forms which are not necessarily uniform. Artworks often pass by inheritance from a collector’s estate as a movable item where the recipient would not have the luxury of having a full set of documentation as to how it was acquired. Other pieces are found in barns or other peculiar sites while some artworks are bought from family or friends without documentation.
Therefore, when a dispute arises as to whether someone who possess an artwork is the real owner of it, answering the question would usually involve looking at fragments of an evidentiary puzzle that involve:
- Inconclusive Oral testimony;
- Non contemporaneous publicly available data;
- Shipping documents;
- Cash or barter consideration payments that are not easily traceable.
All of this lead me to wonder why the world doesn’t have a title registration system for artworks. One challenge that comes to mind is that registration systems often operate on movable or non movable items having the ability to be individually identified. For example, land parcel numbers or vehicle chassis numbers. When it comes to artworks we are dealing with items that originate privately which do not need government intervention for them to be used and circulated.
Whilst this is a real challenge, I believe, at least for newly created art, it is not one that cannot be overcome with technology. What can be created is a straightforward registration system that artists can apply to when a new piece of art is born. The system would create a unique serial number for the art piece with a physical identification feature such as a QR Code on a hard to remove sticker. Once an art piece is purchased transactions would be recorded into the system which can be made publicly accessible for anyone to check title states.
At least this would solve part of the challenge as to newly created art. With regards to historical art implementing such title registration would be tricky due to issues involving authenticity and chain of custody. Dealing with this might require regulations that identify which authenticity certifications are required as well as establish rules concerning possession based ownership. For example eligibility for registration can be based on the applicant being able to demonstrate that he/she was in undisputed possession of the artwork for a certain number of years. Then, following the passage of a certain period after registration, title would be deemed absolute and non challengeable unless theft or fraud is proven by way of a credible legal process such as criminal prosecution.
The creation of such registration system would give collectors, art dealers, galleries, and museums much needed piece of mind. It would also make any jurisdiction more attractive to being a centre for the art industry.
The UAE would certainly be an ideal candidate for the creation of such registration system. There are several cultural authorities that can operate the system. Perhaps this is something that can be undertaken by the Dubai International Financial Centre (DIFC) as it already houses some of the country’s leading art galleries. The existence of the DIFC Courts with its common law framework can also be an element of attraction for international stakeholders to come and use the DIFC as a base to register and transact in artworks.