The Art Law Review: Brazil

Introduction

According to The Art Market 2021, the report drawn up by Art Basel and UBS, the global art market reached approximately US$50.1 billion in 2020, a decrease of 22 per cent on the previous year,2 mainly attributable to covid-19. Against all the odds, the Brazilian art market has not received as hard a pandemic-related blow as one could have imagined. In fact, agents of the art sector in the country performed positively in 2020, a survey into the impact of covid-19 on the art market revealed, adding that this 'positive performance reflects adaptation, inventiveness and collaboration between companies during the crisis'.3 Even though sales volume naturally slumped in the first months of the pandemic, the market staged a swift recovery.4 As the study points out, 'among the group of companies that transacted up to 500 thousand reais (around US$96.3 thousand), the majority obtained equivalent or better results than in 2019'.5 Furthermore, the health crisis in Brazil saw no permanent closings of galleries; the majority of formal jobs in the sector and of artists represented were preserved; and there have been reductions in costs associated with exhibitions, art fairs and travel.6

When one speaks of art law in Brazil, it must be acknowledged that over recent years there has been a boom in the country's art market. This was the headline Art News used to address the topic some years ago: 'Boom Time for Brazil's Art Market'. Important newspapers such as the Financial Times, ArtEconomy – Il Sole 24 Ore and Il Giornale dell'Arte have detected this same trend. Such an explosion has occurred in a twofold manner: the specialised press has noted that, on the one hand, Brazil has started consuming more art, and more Brazilian collectors have become part of the first team of international collectors, with a significant presence in fairs, auctions and galleries; on the other hand, more Brazilian artists have become more desirable, exhibited and collected abroad.

In recent years, big galleries such as White Cube, and renowned museums, including the Tate, the Whitney Museum, the Metropolitan Museum of Art and the Museum of Modern Art, have promoted the Brazilian art scene. In addition, Christie's, Sotheby's and Phillips have boosted Brazilian artists – including Os Gêmeos, Vik Muniz, Cildo Meireles, Lygia Pape, Sebastião Salgado, Tarsila do Amaral, Candido Portinari and Ernesto Neto – with auctions in London and New York.

Nonetheless, there are two sides to every coin: Interpol records demonstrate that South America and Brazil have been the origin and destination of illegally traded works of art. A visit to online auction sites, such as eBay and Catawiki, shows the variety and scale of this illicit market, which involves each and every type of artefact that may spark interest in the international market. By way of illustration, the International Council of Museums (Icom) red lists indigenous funerary urns, colonial silverware and baroque religious statuary among the items sought in Latin America.

It is also interesting to note that the 'FBI Top Ten Art Crimes' lists the robbery at the Chácara do Céu Museum in Rio de Janeiro in 2006 in seventh place. Interpol data also reveal that Brazil ranks 26th on the list of countries with the highest number of stolen cultural objects, and an extremely low recovery percentage rate.

This has had obvious repercussions in the art law world. More books have been published, more events have been held, and we now have podcasts on the topic and art law chairs at universities. Nevertheless, it is true that art law themes have been under discussion in Brazil since the nineteenth century. For instance, in 1870, the Tribuna Artística newspaper, dedicated to discussing, disseminating and defending artists' rights, was in circulation in Rio de Janeiro, and in 1888, important painter Pedro Américo published a book reflecting on plagiarism in painting and literature. Nowadays, the Brazilian art law bibliography totals approximately 30 works, signifying a clear process of maturation.

The year in review

The year 2021 began with a gloomy scenario, as the dire consequences of covid-19 would, to a greater or lesser extent, continue to affect the Brazilian art scene. The liquidity crisis in the global economy, the terribly high death toll in important cultural hubs and the postponement or cancellation of tens of artistic events are three factors that – for the saddest of reasons, however – account for one of the largest offers of cultural objects in the market since the Second World War. The increase in theft of works of art and their reintroduction to the market has been another result of the covid-19 pandemic, with criminal organisations moving on to perpetrate crimes of a relatively simpler commission than drug trafficking, for instance.7 In 2020, sacred objects were stolen from empty churches in the state of Minas Gerais, historical medals were purloined from the Casa de José Américo Foundation in the city of João Pessoa, and the Park of Sculptures in Recife, featuring approximately 90 works by Brazilian artist Francisco Brennand, was vandalised. With regard to this last case, in 2021 the civil police of the state of Pernambuco reported that some of the looted works were melted down and sold, and five people were arrested. Although initially struggling, the Brazilian vaccination campaign begins, at the time of writing, to show signs of a brighter future. While maintaining the respect for covid-19 guidelines, the reopening of museums and other cultural spaces in the country and the reignition of domestic tourism are attracting a growing number of visitors to places that were, not so long ago, shut or at least functioning online. As in several other countries, many Brazilian institutions have expanded their presence on social media and the internet, with the digitisation of art collections as a clear aspect of the transformative changes induced by the pandemic.

There have also been relevant art transactions in the market, and the auctioning of Tarsila do Amaral's painting A Caipirinha for the record-breaking sum of 57.5 million reais is a case in point. The work was owned by a heavily indebted millionaire businessman who was investigated during Operation Car Wash, and was sent to auction with the consent of a judge.

In 2021, cultural heritage protection played a crucial role in Brazil as well. In May 2021, the Federal Prosecution Office issued a resolute recommendation pleading for the adoption of further measures concerning the promotion and safeguarding of the Valongo Wharf and its surroundings, a UNESCO World Heritage Site and 'the most important physical trace of the arrival of African slaves on the American continent',8 situated in the city of Rio de Janeiro. Later in the year, UNESCO approved the Sítio Roberto Burle Marx, located in Barra de Guaratiba, in the West Zone of Rio de Janeiro, for inscription on the World Heritage List.

At the end of July 2021, a fire broke out in the warehouse of the Cinemateca Brasileira in the city of São Paulo, consuming copies of its audiovisual collection, historical documents and film equipment.9 The Federal Prosecution Office had already put the federal administration on full alert for risks of fire in the building at a public hearing held some 10 days earlier.

In August 2021, the federal administration announced plans to sell the Gustavo Capanema Palace, an architectural gem designed by the most illustrious Brazilian architects of all time, including Oscar Niemeyer, with consultancy by Le Corbusier.10 The modernist building, decorated with works by Cândido Portinari and Burle Marx, was listed by the Institute of National Historic and Artistic Heritage (Iphan) in 1948.11 At the time of writing, the Commission for Culture of the House of Representatives is debating this controversial decision of federal officials.

In September 2021, a 12-piece art collection estimated at 10 million reais belonging to Dario Messer, a money launderer convicted during Operation Car Wash, was donated to the National Museum of Fine Arts. The transfer of ownership came after a judge endorsed a proposal put forward by the Federal Prosecution Office in the framework of a collaboration with Messer's spouse.12

Art disputes

i Title in art

The Brazilian Civil Code (BCC) provides that the ownership of a movable good is only transferred upon the sale of the item (i.e., the item is delivered to the buyer).13 This is the situation for both private sales and auction sales. Pursuant to Article 1268, caput, of the BCC, in the sale of an object carried out by someone other than its owner, ownership cannot be transferred, except if the item, offered to the public at an auction or in a shop, is transferred in circumstances that make the seller, in the eyes of the person who buys in good faith or in the eyes of any one person, appear as the owner. The sale shall not lead to ownership transfer when it derives from a null title.14

Possession is in good faith 'if the possessor does not know the defect or obstacle which impedes the acquisition of the thing';15 a condition that is only lost if (and when) concrete circumstances presume that the possessor knows that he or she possesses the object unduly.16 Presuming good faith is a general principle: good faith is presumed; bad faith must be proven.

The BCC also states that, if an artist works on raw material that belongs to someone else, the painting, sculpture or writing eventually produced will belong to the artist if its value considerably exceeds that of the raw material.17

ii Nazi-looted art and cultural property

There is no rule in Brazilian domestic law that specifically refers to the return of works of art and cultural objects stolen by the Nazi regime, nor to acquisitive prescription in relation to objects confiscated by the Nazis.

In the late 1940s, like many countries in Latin America, Brazil was a common destination for fleeing Nazis, persecuted Jews and for works of art expropriated by the Nazis during the Second World War. Today, some Brazilian collections are the target of legal complaints by Jewish families from Europe and the United States.

Brazil's former president Fernando Henrique Cardoso even created the Special Commission for the Determination of Nazi Assets, by a decree of 7 April 1997.

In addition to being a signatory to the Icom Code of Ethics, Brazil took part in the 1998 Washington Conference on Holocaust-Era Assets.

iii Limitation periods

In general, the limitation period is 10 years, if no shorter term has been set by the law.18

With regard to acquisitive prescription upon movable property in general, the BCC sets forth that whoever possesses a movable object as theirs, in a continuous and unchallenged manner for three years, in good faith and with good title, shall acquire ownership of the item.19 However, if the possession of the movable object extends for five years, there shall be acquisitive prescription, regardless of analysis of good faith or title.20

iv Alternative dispute resolution

The 2015 Brazilian Code of Civil Procedure (BCCP) sets forth that the state, whenever possible, shall promote the consensual resolution of controversies, which shall be actioned by private lawyers, judges, prosecutors and public defenders participating in the course of the judicial process.21 Arbitration has its own legislation: Law No. 9307 of 1996. In spite of this, there are no legal provisions specifically related to alternative dispute resolution of art disputes, nor is there a court in Brazil that specifically handles these disputes.

Brazil is a signatory to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. In fact, in an increasingly globalised art market, where disputes are increasingly transnational, this is a major plus point.

In April 2019, the Court of Arbitration for Art was inaugurated in Rotterdam as the first international court dedicated to the settlement of art disputes. Initially contributing only one arbitrator, Brazil is now represented in the court by eight arbitrators.

Fakes, forgeries and authentication

In Brazilian law, the civil liability for expert opinions is subjective; that is, it depends on the demonstration of fault – negligence, imprudence or malpractice or intent. An expert acting as an independent professional may fall within the scope of Article 14, Paragraph 4 of the Brazilian Consumer Defence Code (BCDC),22 which prescribes that 'the personal liability of independent professionals shall be determined through the verification of fault'. As for artists' foundations and catalogue raisonnés authors, it seems that, by analogy, they are also subjectively liable. The case law on the matter is scant, and there are no legal provisions that specifically address this thorny problem.

As a general rule, the seller of works of art is also held subjectively liable, and the sale of a work that subsequently raises questions about its authenticity or real authorship may be cancelled on the basis of a substantial error. According to Article 139 of the BCC, the error is considered to be substantial when, in addition to other situations, 'it is relevant to the nature of the transaction, to the main object of the declaration, or to some quality essential to it'.

If the seller qualifies as a dealer, a consumer relationship occurs, demanding the application of the BCDC. It seems that the issue regarding the authenticity or authorship of a work of art – a work sold as being authentic but, in fact, a fake, or a work presented as having certain characteristics of authorship but, in fact, having different characteristics to those advertised – may fall within the scope of defect of the product, for which the dealer is held objectively liable; that is, regardless of fault.

In relation to the auctioneer, Article 68 of Normative Instruction No. 72 of 2019 of the National Department of Commercial Registration and Integration, states that '[the] auctioneer is liable for the acts which, in the exercise of the profession, he or she carries out with intent (“dolus”) or fault'.

Furthermore, regrettably, in Brazilian law there is no specific provision of the crime of forgery of a work of art. Article 189 of the Criminal Code only deals with the conduct of violating copyright and connected rights, without directly addressing art forgery. In August 2020, federal representative Felício Laterça (Social Liberal Party, Rio de Janeiro) presented to Congress Draft Bill No. 4293/20, which seeks to insert Article 62-A into Law No. 9605/1998, imposing the penalty of imprisonment of one to three years plus a fine to whoever forges a signature in a work of art.

Art transactions

i Private sales and auctions

The United Nations Convention on Contracts for the International Sale of Goods entered into force in Brazil on 1 April 2014.

For contracts regulated by Brazilian law, the BCC encompasses two key principles: objective good faith and social function of the contract. Pursuant to Article 422 of the BCC 'contractors are obliged to keep the principles of probity and good faith both in the conclusion of the contract and in its execution'. As for the social function of the contract, Article 421 states that 'contractual freedom shall be exercised within the limits of the social function of the contract' and that 'the principle of minimal intervention and the exceptionality of contractual revision shall prevail in private contractual relationships'.

In the sphere of contractual principles, private sales are, in general, governed by Articles 481 to 532 of the BCC. Nevertheless, if a consumer relationship is present, as when a work is purchased from a gallery, for instance, the sale will be regulated by the BCDC, which is an undeniably advanced piece of legislation that recognises various consumer rights.

Auctions are primarily governed by the legally binding Decree No. 21981 of 1932, which regulates the auctioneer profession. Normative Instruction No. 72 of 2019, of the National Department of Commercial Registration and Integration, also exerts its influence over the matter.

Depending on the specific case, the BCC or the BCDC may apply to the auction sale, as stated by the Superior Court of Justice in the following: 'The BCDC's protection to the public sale promoted by the auctioneer depends on the type of trade that is practised. If it comes to the sale of goods from individuals, collectors, etc. to producers or collectors and individuals, such as the sale of artworks, family jewellery, estate goods and even livestock, BCC rules apply.'23

With regard to distance sales in the art market, be they private sales or auction sales, either the BCC or the BCDC may apply, according to the specific case. It should be highlighted that, in Brazil, important rules apply to the digital environment, with special attention to the Brazilian Civil Rights Framework for the Internet (Law No. 12965 of 2014), the General Law on the Protection of Personal Data (Law No. 13709 of 2018) and Decree No. 7962 of 2013 on contracting in electronic commerce in the situations in which the BCDC applies.

Judicial auctions find their regulation in Articles 879 to 903 of the BCCP; particularly Article 882, whose caput sets forth that the auction shall be held in person if it cannot be held electronically. From 21 September to 2 October 2020, an auction was held to dispose of works belonging to the insolvent Banco Santos estate. The sales included multiple works by artists such as Tarsila do Amaral, Cildo Meireles, Frank Stella, Zhang Linhai and Man Ray, and were held online.

ii Art loans

Significant loans were involved in the great art exhibitions Brazil hosted in 2019. The 'Tarsila Popular' exhibition, for instance, at the São Paulo Museum of Art (MASP), presented works by Tarsila do Amaral belonging to private collections and institutions from various countries, such as Brazil itself, Spain, France, Russia and Argentina, with particular attention on Abaporu,24 an oil on canvas owned by the Buenos Aires Latin-American Art Museum and deemed to be the artist's masterpiece. The MASP has announced plans to hold an exhibition of works by Vincent van Gogh in 2025 – a five-year advance booking is necessary for loans of works by an artist of the calibre of the Dutch master.25

In terms of the MASP, it has been announced that, in 2024, the institution will also expand into an adjacent 14-floor building, connected to the original museum via an underground tunnel.26 This will allow Brazil's most prominent museum to display a much larger part of its 11,000-item collection and to host a greater number of exhibitions of works belonging to foreign public and private collections.

Despite the flourishing art scene, Brazilian law has no rules concerning immunity from suit or seizure for artworks and collections on loan.

iii Cross-border transactions

The regulation of the export of cultural objects in Brazil comprises a broad and diverse set of rules. First, the country is a signatory to the UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and to the UNIDROIT 1995 Convention on Stolen or Illegally Exported Cultural Objects.

Domestic regulation of the circulation of cultural objects highlights that listed goods may only leave Brazilian territory for a short term and for cultural exchange purposes, and that a temporary leave shall not imply any transfer of ownership.27

Law No. 4845 of 1965 prohibits the definitive export of any artworks and traditional crafts produced prior to the end of the monarchical period, that is, up to 1889, covering drawings, engravings, sculptures, paintings, architectural elements, carved works, furniture, imagery and jewellery, among others.28 The same applies to 'works of the same sort coming from Portugal and incorporated into the national environment during the colonial and imperial regimes'.29 Furthermore, the definitive export of sculptures, paintings and graphic artwork that, although produced abroad during the colonial and imperial periods, represent Brazilian culture, are related to the history of Brazil or are connected to the country's landscapes and customs, is forbidden.30 The attempt to definitively export any of these objects shall result in their sequestration by the federal administration or by the state where they are located, for the benefit of their respective museums.31

Nevertheless, Article 4 of the Law exceptionally permits the export from Brazil of some works, provided this is for cultural exchange and temporary exhibition purposes, with the express authorisation from the competent body of the federal administration, which shall state the deadline for the objects to return to national territory.

In addition, Article 1 of Law No. 5471 of 1968 prohibits the definitive export of libraries and collections of documents made up of Brazilian works edited from the sixteenth to the nineteenth centuries, as well as parts or individual items of collections of works and documents; the Law also covers newspaper collections that are at least 10 years old, and original and ancient copies of sheet music.

Moreover, Article 20 of Law No. 3924 of 1961 states that 'no object which presents archaeological or prehistorical, numismatic or artistic interest shall be transferred abroad, without an express licence' from Iphan, as a permit that specifies the objects to be exported. Failure to comply with the said provision shall result in the summary seizure of the object in question and its delivery to Iphan, notwithstanding other legal sanctions.32

With regard to the international art trade specifically, anyone wishing to import or export artworks shall initially register themselves with the Radar System (a system for registering and tracking customs agents' activities), controlled by the Federal Revenue Service (FRS).33 Following this registration, they must register with the Siscomex (an electronic integrated trade system, also administered by the FRS); only after these conditions are met shall they be free to take part in foreign trade.34

For definitive export, the packing list, air waybill (AWB) and Iphan's permit to export the item are generally required, along with other documents, and details of the domestic and international means of transport, the packaging, collection, storage and insurance.35 In this type of export, when works are sold abroad, only income tax applies.36

For definitive import, the following taxes apply: import tax and tax on industrialised goods and social contributions – social integration programme and contribution for social security financing – all of which are federal taxes; tax on the circulation of goods and services, at state level; and the storage tariff at the airport or port where the work has been unloaded.37 The value of each of these taxes influences the calculation basis of the next, and insurance and freight charges are included in the calculation of the storage tariff as well as the taxes.38 For definitive import, the packing list, AWB, commercial invoice and other documents are generally required, in addition to details of the domestic and international means of transport, packaging, collection, storage and insurance.39

Trade operations involving internationally acquired art, in turn, enjoy the exemption of most taxes that apply as a general rule to internal transactions, be they federal taxes or taxes charged at the state level, in a way that the taxation applied will depend on the nature of the agent involved, whether that is a natural person or a legal person.40

In conclusion, it is relevant to discuss choice of law. In the words of Article 8, caput, of the Introductory Law to the Rules of Brazilian Law, applicable to immovable property and to movable property of permanent location, thus consecrating the general lex rei sitae rule,41 'in order to qualify the good and to regulate the situations which concern them, the law of the country where they are located shall be applied'. On the other hand, in relation to movable property without a permanent location, such as movable goods in transit or those of the traveller's personal use42 – the law of the country where the owner resides shall be applied.43

iv Art finance

Over the years, the Brazilian state has created tax incentive legislation for the cultural sector, the pinnacle of which is Law No. 8313 of 1991 (the Federal Law for Cultural Incentive, popularly referred to as the Rouanet Law).44 This Act makes it possible for natural and legal persons to sponsor various cultural projects – a public work of art, exhibition, fair, festival, production and printing of books or catalogues, or creation of works – and deduct part or the total amount of the financial support given from what is due as income tax.45 At the end of July 2021, the federal administration published Federal Decree No. 10755/2021, bringing new regulations regarding the Rouanet Law. Critics of the Decree accuse the government of dismantling the federal mechanisms for fostering culture.46 In addition to the Rouanet Law, applicable at federal level, there are laws for cultural incentive in states and municipalities that follow the same tax-deduction system.47

Financial support may also take the form of contests, notices and awards 'promoted by the government as well as by private institutions and even companies [that can] publicly . . . take submission of projects and proposals' set forth by artists.48 This must all be carried out with the utmost transparency, a value that is crucial to the art market, contributing to the fight against laundering money and financing terrorism. In this context, Law No. 9613 of 1998 takes a prominent position. Indeed, this Act requires natural and legal persons from various economic and financial sectors – including 'natural or legal persons who trade jewellery, precious stones and metals, art objects and antiques'49 – to comply with customer identification duties and keep customer records updated, among other obligations.50

Iphan Ordinance No. 396 of 2016 on proceedings to be observed by private dealers – whether natural or legal persons – of antiques or works of art of any nature, or both, is another relevant text on the subject matter.51 In addition, Iphan maintains the National Register of Art and Antiques Dealers.

Law No. 13608 of 2018 introduced the concept of whistle-blower, which 'may serve as an instrument for reporting crimes within the international and national art market, to eventually reduce the risks to which this trade is subject'.52

In August 2019, federal representative Denis Bezerra (Brazilian Socialist Party, Ceará) presented a draft bill to Congress, making compulsory the public registration of artworks, pedigree animals and jewellery exceeding 25,000 reais in value, with a notary public.

Artist rights

i Moral rights

Irrevocable and inalienable moral rights53 are listed in Article 24, caput, of Law No. 9610 of 1998 (the Copyright Law). The main right – the right to integrity – is enshrined in Item IV: 'The author's moral rights are: . . . to ensure the integrity of the work, opposing any modifications or the practice of acts that, in any way, may harm the work or affect him or her, as an author, in their reputation or honour.' Brazil is also a signatory to the Berne Convention for the Protection of Literary and Artistic Works.

By virtue of the artist's death, the right to integrity and some other moral rights are transferred to the artist's heirs.54

ii Resale rights

Resale rights are inscribed in Article 38 of the Copyright Law. According to that provision, the author has the inalienable and irrevocable right to be paid at least 5 per cent of any gain in value that may occur each time one of his or her works of art or manuscripts is resold. If the author is not paid the resale rights at the time of resale, the seller is considered to be the depositary of the amount owed to the artist, except if the transaction is made by an auctioneer, in which case the auctioneer shall be the depositary of the amount.

iii Economic rights

In the words of Article 28 of the Copyright Law, 'the author has the exclusive right to use, enjoy and dispose of the literary, artistic or scientific work', in such a way that the subsequent Article sets forth that the author's prior and express authorisation is necessary for the use of the work to be possible, under any form, including: full or partial reproduction; editions; translation; adaptation, musical arrangement and any other transformation; inclusion in audiovisual productions or phonograms; and distribution, when it is not inherent in the contract concluded by the author with third parties for use or exploitation of the work.

Economic rights run for 70 years, counted from 1 January of the year following that of the artist's death, obeying the succession order set forth in civil legislation.55 After that time, the work falls into the public domain.

Trusts, foundations and estates

Even though Brazilian law provides for various types of fiduciary contract, there is no legal mechanism in the country identifiable as a trust.56 Nonetheless, a trust set up abroad may have some effects in Brazil.57

In Brazil, private foundations are specifically regulated by the BCC,58 the BCCP59 and the Law on Public Registries.60 Once certain requirements are met, private foundations may enjoy tax incentives.61

Law No. 13800 of 2019 introduced the concept of endowment funds in Brazil. These 'funds may support institutions related to education, science, technology, research and innovation, culture, health, environment, social assistance, sports, public security, human rights and other public interest purposes'.62

Estate planning may be carried out by setting up a family holding company.63 As the holding company is usually formed when the property's owner is still alive, by developing an organisational structure to make administrative adjustments and to avoid the transfer of administration to someone unfit to perform this, the tax incidence is reduced.64 Moreover, the deviser may impose the restrictive clause of inalienability on the assets of the holding company, from which the clauses of unseizability and incommunicability (which prevents the patrimony from being shared with the holder's spouse or partner) automatically apply.65 This scenario proves to be powerful for the protection of art collections, notably against their dispersal and transmission to a bad manager.

Outlook and conclusions

There exists no risk-free society. Perils are of the most diverse types and may affect everyone and everything, and works of art are no exception. From climate change to war, from thefts to fires, from domestic and transportation accidents to earthquakes – all of these, and much more, pose a threat to artworks. The unique nature of these objects demands the adoption of a proactive attitude. In that respect, art insurance – although not new – should clearly be encouraged and more widely used. Brazil has sadly seen fires rage in cultural institutions on at least a handful of occasions.

Although under no circumstances should the neglect of adequate protection of art and cultural heritage be tolerated, the aforementioned disasters and the scarcity of public resources for culture require creative solutions; art insurance is surely one of them.66 Another interesting initiative for the art market is a security house – the first of which in Brazil has been recently set up in São Paulo – which is a rental system of insured private safes that serve to protect works of art confidentially.

With regard to covid-19's impact on the Brazilian art market, the outlook for the future is optimistic, especially thanks to the resilience of the sector's players67 and to the scientific and medical advances, which allow us all to expect better days.

Footnotes

1 Marcílio Toscano Franca Filho is a professor of art law at the Federal University of Paraíba School of Law and Gustavo Tanouss de Miranda Moreira is a researcher at the International Laboratory of Investigations into Transjuridicity.

2 Clare McAndrew, The Art Market 2021 (Basel, Zurich: Art Basel and UBS, 2021), p. 17.

3 'Relatório sobre o impacto da Covid-19 sobre o mercado de arte', Latitude Brasil, November 2020, http://latitudebrasil.org/acoes-realizadas/relatorio-sobre-o-impacto-da-covid-19-sobre-o-mercado-de-arte/, accessed 3 September 2021.

4 Adelaide Duarte, Ana Letícia Fialho and Marta Pérez-Ibáñez, 'External Shocks in the Art Markets: How Did the Portuguese, the Spanish and the Brazilian Art Markets React to COVID-19 Global Pandemic? Data Analysis and Strategies to Overcome the Crisis', Arts, 10:47, 2021, pp. 16–17.

5 Mônica Esmanhotto and Ana Letícia Fialho, 'Latitude Performance Report of Contemporary Art Galleries during the COVID-19 Pandemic', ABACT/Latitude, November 2020, p. 16.

6 Adelaide Duarte, Ana Letícia Fialho and Marta Pérez-Ibáñez, 'External Shocks in the Art Markets: How Did the Portuguese, the Spanish and the Brazilian Art Markets React to COVID-19 Global Pandemic? Data Analysis and Strategies to Overcome the Crisis', Arts, 10:47, 2021, pp. 16–17.

7 Marcílio Toscano Franca Filho and Gustavo Tanouss, 'Como ficará a expertise de obras de arte? O mundo depois da Covid-19', Jota, 9 May 2020, www.jota.info/opiniao-e-analise/artigos/como-ficara-a-expertise-de-obras-de-arte-09052020, accessed 1 September 2021.

8 UNESCO, 'Valongo Wharf Archaeological Site', Unesco World Heritage Convention, https://whc.unesco.org/en/list/1548/, accessed 1 September 2021.

9 Gabriella Angeleti, 'Warehouse of the Cinemateca Brasileira struck by fire', The Art Newspaper, 30 July 2021, www.theartnewspaper.com/news/warehouse-of-the-cinemateca-brasileira-struck-by-fire, accessed 1 September 2021.

10 Lilia Teles, 'Palácio Capanema, no Rio, pode entrar em lista de imóveis que serão vendidos pelo governo federal', G1, 14 August 2021, https://g1.globo.com/rj/rio-de-janeiro/noticia/2021/08/14/palacio-capanema-no-rio-pode-entrar-em-feirao-de-imoveis-e-ser-vendido.ghtml, accessed 1 September 2021.

11 ibid.

12 Vladimir Platonow, 'Coleção de doleiro é doada para o Museu Nacional de Belas Artes', Agência Brasil, 8 September 2021, https://agenciabrasil.ebc.com.br/justica/noticia/2021-09/colecao-de-doleiro-e-doada-para-o-museu-nacional-de-belas-artes, accessed 17 September 2021.

13 Articles 1267, caput, and 1226 of the Brazilian Civil Code (BCC).

14 id., Article 1268, Paragraph 2.

15 id., Article 1201, caput.

16 id., Article 1202.

17 id., Article 1270, Paragraph 2.

18 id., Article 205.

19 id., Article 1260.

20 id., Article 1261.

21 Article 3, Paragraphs 2 and 3, of the Brazilian Code of Civil Procedure.

22 Law No. 8078 of 1990.

23 Brazil Superior Tribunal of Justice, Special Appeal No. 1.234.972 – RJ (2011/0025423-8), 2015, www.conjur.com.br/dl/voto-relator-leilao-incompleto.pdf, accessed 9 September 2020.

24 'Exposição “Tarsila Popular” chega ao fim e conquista maior público dos últimos 20 anos do MASP', Jovem Pan, 29 July 2019, https://jovempan.com.br/programas/jornal-da-manha/exposicao-tarsila-popular-chega-ao-fim-e-conquista-maior-publico-dos-ultimos-20-anos-do-masp.html, accessed 8 September 2020.

25 Tatiane de Assis, 'Masp prepara mostra com obras de Van Gogh', Veja São Paulo, 29 November 2019, https://vejasp.abril.com.br/blog/arte-ao-redor/masp-prepara-mostra-com-obras-de-van-gogh, accessed 8 September 2020.

26 Gabriella Angeleti, 'Museu de Arte de São Paulo plans to tunnel its way through to a new 14-storey building', The Art Newspaper, 24 August 2021, www.theartnewspaper.com/news/museu-de-arte-de-sao-paulo-assis-chateaubriand-announces-transformative-expansion-project , accessed 1 September 2021.

27 Article 14 of Decree-Law No. 25/37. Temporary leave is also reasonable in exceptional cases such as restoration or expert investigation.

28 Article 1 of Law No. 4845/1965.

29 id., Article 2.

30 id., Article 3.

31 id., Article 5.

32 Article 21 of Law No. 3924/1961.

33 Ministry of Culture and UNESCO, Visual Artist's Guide: insertion and internationalisation, 2018, p. 149.

34 id., pp. 149–150.

35 id., pp. 150–151.

36 id., p. 150.

37 id., p. 158.

38 ibid.

39 ibid.

40 id., p. 164.

41 André de Carvalho Ramos, Curso de direito internacional privado (São Paulo: Saraiva Educação, 2018), pp. 390–391.

42 id., p. 391.

43 Article 8, Paragraph 1, of the Introductory Law to the Rules of Brazilian Law.

44 Ministry of Culture and UNESCO (footnote 33), p. 25.

45 id., p. 25; Rouanet Law, http://leideincentivoacultura.cultura.gov.br, accessed 10 September 2020.

46 Raquel Grazzioli, 'Novo decreto da Lei Rouanet: quais são as principais mudanças?', Conjur, 12 August 2021, www.conjur.com.br/2021-ago-12/raquel-grazzioli-decreto-lei-rouanet, accessed 1 September 2021.

47 Ministry of Culture and UNESCO (footnote 33), p. 26.

48 id., p. 19.

49 Article 9, sole paragraph, XI, of Law No. 9613 of 1998.

50 id., Articles 10 and 11; Marcílio Toscano Franca Filho, Matheus Costa do Vale and Nathálya Lins da Silva, 'Mercado de arte, integridade e due diligence no Brasil e no MERCOSUL Cultural', Revista da Secretaria do Tribunal Permanente de Revisão do MERCOSUL, Vol. 7, No. 14, August 2019, pp. 270–271.

51 Anauene Dias Soares, Direito internacional do patrimônio cultural: o tráfico ilícito de bens culturais (Fortaleza: IBDCult, 2018), p. 126.

52 Franca Filho, Vale and Silva (footnote 50), p. 275.

53 Article 27 of Law No. 9610/1998.

54 id., Article 24, Paragraph 1.

55 Article 41, caput, of Law No. 9610/1998.

56 Cláudio Finkelstein, 'O trust e o direito brasileiro', Revista de Direito Bancário e do Mercado de Capitais, Vol. 72, April/June 2016, www.mpsp.mp.br/portal/page/portal/documentacao_e_divulgacao/doc_biblioteca/bibli_servicos_produtos/bibli_boletim/bibli_bol_2006/RDBancMecCap_n.72.06.PDF, p. 3, accessed 22 September 2020.

57 See id., pp. 3–4.

58 Articles 62–69.

59 Articles 764 and 765.

60 Articles 114–121.

61 Article 15, Paragraphs 1 and 2 of Law No. 9532/1997.

62 Article 1 of Law No. 13800/2019.

63 Cristiano Chaves de Farias and Nelson Rosenvald, Curso de Direito Civil: Sucessões, Third Edition (Salvador: JusPodivm, 2017), p. 84.

64 id., p. 85.

65 ibid.; Article 1.911 of the BCC.

66 Marcílio Toscano Franca Filho and Gustavo Tanouss, 'O risco sobre os riscos que riscamos', Jota, 15 December 2019, www.jota.info/paywall?redirect_to=//www.jota.info/opiniao-e -analise/artigos/o-risco-sobre-os-riscos-que-riscamos-15122019, accessed 28 September 2020.

67 Esmanhotto and Fialho (footnote 5), p. 37.

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