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Non-Fungible Tokens (NFT) Newsroom

Absence Makes the Art Grow Fonder: Efforts to Digitally Repatriate Looted Art Through NFTs

Absence Makes the Art Grow Fonder: Efforts to Digitally Repatriate Looted Art Through NFTs

Updated July 21, 2022

The Rosetta Stone, the Maqdala crown, and the bust of Queen Nefertiti. What do each of these three things have in common? Of course, they’re all important and compelling pieces of art and artifacts with rich histories from around the world, currently displayed in well-renowned European museums. They’re also each the subject of centuries long controversial claims of looting.*

Looting, pillaging, plundering and the various other phrases we use to describe what simply boils down to theft of artwork and other valuable and historic goods, have long been a part of our world history. For thousands of years, nations, kingdoms and other groups of people have invaded and conquered one another and have taken what they wanted from other people around the world, claiming them as the spoils of their victories and travels. Now, decades, centuries and even thousands of years later, many are calling for the return of looted art and artifacts to the nations and people where they originated . But after so much time has passed, this often raises competing claims about who is entitled to possess and, in many instances, profit off these historic items. The answer is not always clear and greatly depends on the interplay between the laws of the various countries involved in the dispute, which may or may not conflict with one another, but also the lens through which the question is asked. The one who is morally entitled to the artifact may not be the one who is legally entitled to it. Regardless of the framework through which the question is answered, the process for resolving often complicated and competing claims over looted artwork is arduous and drawn out, often spanning the course of many years.

Recently, several efforts have been made within the NFT community to digitally repatriate art and artifacts which some claim were lost, looted or have otherwise ended up in the possession of institutions which arguably should not be entitled to them; in a sense returning them in a new form back to the communities where they originated. The Congolese Plantation Workers Art League, also known as Cercle d’Art des Travailleurs de Plantation Congolaise or CATPC, is a collective of Congolese artists known primarily for their sculptures made of chocolate. In February of this year, CATPC minted their first NFT – a digital replica of an important 1930s Pende carving of Maximilien Balot. The actual sculpture resides in the Virginia Museum of Fine Arts, in Richmond, VA. This NFT is the first in a planned series of more than 300 unique NFTs set to be minted by CATPC. The proceeds from the sale of these NFTs will be used to buy back land, benefitting the community where the artwork was created in the first place. Royalties from each resale of these NFTs will also go back to the community, with the funds going towards replanting forests, reintroducing biodiversity, offsetting carbon emissions and providing local food security. As Ced’art Tamasala, one of the artists of CATPC, put it, “We have reappropriated otherwise what belongs to us intellectually, artistically, morally. . . We feel closer to the sculpture and proud to have what was already ours before.”

CATPC is not alone in its efforts to digitally reappropriate allegedly looted artwork through the use of NFTs. Another NFT project, Looty, bills itself as a ‘digital restitution project.’ Taking matters into their own hands, anonymous Looty team members visit museums and other institutions around the world housing allegedly looted artwork, create 3D renderings of the art, and then mint NFTs from those 3D renderings. The NFTs are then sold, with twenty percent of the proceeds from each sale, including resales, to be provided to young African artists in the form of grants. Looty’s first drop is a collection of 25 NFTs of one of the famed Benin Bronzes, which were looted from the Kingdom of Benin in the late 19th century. Many are currently housed in the British Museum of Art.

There is little doubt that the intended uses of the proceeds from CATPC’s and Looty’s NFTs are positive, however, the question of whether CATPC and Looty are entitled to mint and sell these NFTs is less clear. While the law is nuanced and must be applied to the specific facts presented in each scenario, generally speaking, the author of a piece of artwork is the one who owns the copyright in it and is legally entitled to create an NFT of that artwork. In the US, artists typically retain ownership of the copyright in artwork they create, unless they specifically transfer their copyright to someone else or if the copyright enters the public domain after a certain amount of time passes (for example, for an individual author, the life of the artist plus 70 years). In the EU and other countries where the right is observed, moral rights, “a set of rights considered personal to the author or creator of a work that go beyond the economic rights guaranteed by copyright,” may also come into play when determining who has the right to mint an NFT of a certain piece of artwork. The circumstances surrounding what permission, if any, were obtained from the underlying artists to mint the NFTs of the art discussed here is not apparent. At least with respect to CATPC, the organization appears to have minted the works without the permission of the Virginia Museum of Fine Arts, which also raises the question of what say the museum (where the works are housed) has in the matter. And for older works where the author is deceased, further complexities exist in determining the identity of the individual or entity that retains the rights to such author’s copyright. And, notwithstanding the charitable goal, one might question the fees CATPC or Looty may charge to mint the NFTs, and what legal right they have to profit from these endeavors.

Other questions relevant to projects of this nature include: Which country’s laws apply to these NFTs? Do copyright laws alone provide a definitive answer as to who can mint and profit from NFTs of allegedly looted artwork or do other laws come into play, such as moral rights? Who owns the copyright when the original artist is unknown? Does the amount of time that has passed since the artwork was created matter? What about the amount of time that has passed since the artwork was allegedly looted? While questions abound, it will be interesting to see how artists, museums and the communities from which these artifacts originated respond to the minting and sale of NFTs based on artwork claimed to have been looted or otherwise wrongfully possessed.

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*The original version of this article, which referred to the “looting” of several pieces of art and artifacts, has been edited to clarify that the items discussed are the subject of claims of looting or otherwise wrongful possession, which may or may not prove true. The author expresses no view as to the veracity of such claims. Since publishing this article, a representative of the Virginia Museum of Fine Arts has reached out to clarify that “VMFA conducts research on all works of art to ensure that each work in the museum’s collection is lawfully held and rightfully owned. The provenance of the Balot sculpture is verifiable: The Balot sculpture was collected in Gungu, Democratic Republic of the Congo, 1972; Purchased by Herbert F. Weiss (Washington, DC) in Flanders, Belgium, in 1973; Purchased by the Virginia Museum of Fine Arts in March 2015.”

By: Kimberly L. Barcella