The Art Law Review: Norway
To provide an overview of the Norwegian art market, one must draw some historical lines and background. It is also the first time that art law is presented as a separate discipline from a Norwegian perspective. The one real authority on the field of art law in Norway, and active in the art market, was Professor Viggo Hagstrøm who passed away in 2013. He would have been the natural author of this chapter if he were still alive. His articles and literature cite examples from the art world still used by scholars and professionals today.
With a population of approximately 5.4 million, not only is the Kingdom of Norway a small country when seen through international eyes, but also a relatively 'new' one. With 400 years under a union with Denmark (1388–1814) and almost a century under a union with Sweden (1814–1905), Norway has naturally been influenced by its two neighbouring countries. Norway has historically been regarded as a cultural province. The art market is naturally smaller and more limited compared with that of neighbours Sweden and Denmark.
There are only a few key market players. The largest auction houses are Blomqvist Kunsthandel (established in 1870), Grev Wedels Plass Auksjoner (established in 1992) and Christiania Auksjoner (established in 1998), all located in Oslo. Other auction houses are small and a few pawnbrokers also exist.
There are very few galleries compared to European capitals. The trend is focused on modern contemporary art and minimalism. The more classic galleries have 'evaporated'. Galleries often receive public support or are subsidised in one form or another. Those that operate profitably often have business beyond the country's borders.
According to Arts Council Norway, the size of the market in terms of turnover in 2018 was 754 million Norwegian kroner on sales subject to tax reporting by the sellers.2 Galleries, professional dealers and auction houses reported sales of 564 million Norwegian kroner, and the following turnovers were reported from other areas:
- 33 million Norwegian kroner by art societies and art centres;
- 98 million Norwegian kroner by public institutions; and
- 59 million Norwegian kroner by private individuals and associations.
The grey market is apparently increasing in line with the publication of official price indices.
Art transactions in Norway are subject to freedom of contract based on background principles and the rule of law, and supplemented by the law of obligations and contracts. Lawyers' individual client accounts and freeports make Norway a practical country to make transactions. Lawyers in Norway do not want to risk their positions in unsecured transactions, but act as a protector with their own insurance for buyers and sellers. When art disputes arise, clients tend to seek counsel on special relevant fields of law from which the dispute arises. This reason, in combination with market size and low numbers of high-level transactions, is why there are few disputes in the area of art law.
The year in review
Art disputes are a rare occurrence in Norway. Over the past five years, some cases have represented topics of interest under civil law. The cases relate to art held by Customs,3 the new Copyright Act, tax on art in freeports,4 third-party ownership and anti-money laundering (AML) legislation.
The trend is leaning towards an increase of legal and professional competence in the field of art law. Museums and institutions are updating ethical guidelines. Museums are testing more commercial loan agreements with private parties. The different art institutions are becoming more conscious of legal aspects, and in 2020 the Munch Museum in Oslo became the first museum in Norway to appoint its own in-house counsel.
i Title in art
The legal rules for how a buyer can obtain a title to an artwork is based on fragmented legislation and case law. This brief overview does not include the rules concerning the protection of creditors. There is no general rule on how one can gain ownership to an artwork as a piece of movable property. Ownership can be created through original, derivative and extinctive acquisitions. The right to an artwork as such property would need an obligation or agreement between the parties, or by a bona fide acquisition. From a Norwegian and Scandinavian point of view, it is the functional approach to determine the rules on transfer of title in artworks that applies.5
Transfer of title through contractual agreements requires a binding agreement. There are no form aliases on how such an agreement must take place, with minor exceptions.
At Norwegian auction houses, titles to the artwork will depend on the individual or general sales terms and conditions. Other arrangements can be made, such as payment through instalment. If nothing else has been agreed upon, the title is transferred when there is a binding agreement and the amount is paid in full.
Good faith acquisitions, where the purchaser is unaware of a defect in the seller's title, is possible under Norwegian law. The rules concerning bona fide purchases are regulated in a special act, in combination with other acts and case law.6 Section 1 of the Good Faith Acquisition Act states that a purchaser can gain title despite lack of title from the seller, if the purchaser did not understand, or should have understood with the diligent care required, that the seller lacked title.7 This means that two conditions must be met: subjective good faith and due care.
One recent case from 2020 involving the art collectors Nicolai Tangen8 and Paal Gundersen concerns the world-famous lithograph, Madonna by Edvard Munch, which disappeared from DHL Global Forwarding/DHL Exel Fine Art's freeport in 2015.9
Both collectors had a version of the Munch lithography, and the case was brought before court as a claim for compensation against the freeport provider after the artwork was handed over to Mr Tangen following the preliminary injunction. The case is nonetheless highly relevant, as the court had to assess whether Mr Gundersen had gained title to the Munch on a bona fide basis. The court found that the purchaser, Mr Gundersen, had been in good faith, but had not shown due care. He had therefore not extinguished Mr Tangen's title in the lithography. The case has been appealed.
ii Nazi-looted art and cultural property
Norway has joined the Washington Principles on Nazi-Confiscated Art of 3 December 1998. Although these are non-binding principles for the members, Norwegian museums must conduct due diligence steps when acquiring artworks under this scheme. Part of what would enable a purchaser to remain diligent and protect the purchase depends on whether or not the parties are professionals. To remain in good faith and prove due care as mentioned above, case law has shown that such inquiries should be taken to fulfil a bona fide purchase.
As a member of the United Nations, Norway ratified the UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property in 2007.10 The Convention must also be seen in combination with the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects 1995, which Norway ratified in 2001. Additionally, through the Agreement on the European Economic Area (the EEA Agreement), Norway has incorporated Directive 2014/60/EU on the return of unlawfully removed cultural objects into Norwegian legislation.11
Since fluctuation in unlawfully traded cultural artefacts and works of art is a global problem, Norway has acknowledged the problem by ratifying the two above-mentioned conventions, where the first obliged Norway to report to the UN on its status every four years.12 In addition to these obligations, the 1978 Cultural Heritage Act13 governs the trading of fine art, particularly prohibiting against importing and exporting art and cultural material of 'great importance for preservation, research or communication of cultural heritage, art and history'.14 This Act is supported by regulations on the import and export of cultural objects. The regulations state that only such objects exported legally from countries within the EEA or that have ratified the UNIDROIT or UNESCO 1970 conventions and have secured means to be returned to the place of origin may be legally brought into the country.15
In 2015, former Minister of Foreign Affairs and Minister of Trade and Industry Børge Brende urged all buyers, collectors, book and art dealers and state agencies to exercise caution and due diligence when acquiring lots that may originate from Syria or Iraq. Furthermore, all audiences acting in the art market were urged to exercise such caution when buying objects in regard to origin and provenance, through the internet, abroad or at auctions.16
As yet, there have been no cases before Norwegian courts in connection with restitution of artworks looted under the Nazi regime. The most common cases presented to the courts have been violation of the Cultural Heritage Act in regard to construction, demolition and removal. However, there are two well-known and relevant Norwegian cases in this field in which claims have been directed at a museum and a private collector.
The first is the Henie Onstad Art Center's (HOK) return of the Matisse painting Blue Dress in a Yellow Armchair to heirs of the French art dealer Poul Rosenberg in 2014.17 Niels Onstad, a well-known shipping magnate and financier who collected art with his wife, the famous ice skater and film star Sonja Henie, bought the painting in 'good faith' from Galerie Henri Benezit in Paris in 1950. In 2012, the heirs of Poul Rosenberg brought suit against the museum claiming that the Nazis looted the work during the Second World War. HOK unconditionally returned the painting in 2014 upon an assessment that the claim was legitimate. This was the first, and still the only, restitution of an artwork in Norway.
High-end collectors and professionals were appalled that HOK did not have the case heard by a court. The board of the museum followed requests from the well-known art detective Christopher A Marinello.18 Some collectors feared that such an extradition would set a precedent for Norway, where ownership is thoroughly protected. Older collectors with knowledge of Onstad's collection believed that the artwork was bought in good faith and that history shows several periods of unknown ownership where the painting had been sold via famous galleries, most recently in Paris, where Onstad bought the painting as a gift for his wife.
The second case relates to an aquatint by Edvard Munch, Bathing Girls (1896), which was withdrawn from Christie's in London in 2013.19 The Norwegian art dealer Einar Tore Ulving apparently acquired the piece in 1998. Christie's contacted Mr Ulving with reference to the legal representative of descendants of the German Jewish art collector Curt Glaser on the very day of the auction. Mr Ulving protested, and Christie's had the object sent back to the art dealer.
Most of the cases before Norwegian courts are violations of the Cultural Heritage Act in regard to unlawful constructions and interference with areas protected by the law. In addition, private homes, exteriors, interiors and larger fixtures are included in the Act.20 Even modern and contemporary art may be regarded as cultural heritage and protected under the legislation.21 There is, however, one relatively recent case in relation to cultural property law.
The most recent and relevant case relates to the demolition of the 'Y-Block' in the Government Building Complex in Oslo, which contains a large-scale wall painting by Pablo Picasso and co-creator Carl Nesjar. It is important to emphasise that the building and works of art are not covered under the legal framework of cultural heritage because the proposal for preservation was filed by the Norwegian Directorate of Cultural Heritage only one month before the building was damaged by a car bombing in the 2011 terrorist attack in Norway.
The complex contains several Norwegian government offices located mainly in 'The High-Rise' and 'Y-Block' buildings, which are considered to have great architectural importance as examples of post-war contemporary modern architecture, and contained several integrated artworks, such as the Fishermen, which now has been removed.
In March 2020, the Norwegian Directorate of Public Construction and Property was given the green light to start the demolition process, but was met with a preliminary injunction filed with Oslo District Court by the Association of Norwegian Architects and the Society for the Preservation of Ancient Norwegian Monuments. In their petition, the claimants argued that the two conditions for a preliminary injunction were met under reference to (1) that it was necessary to prevent an irrevocable demolition, and (2) that according to a preponderance of evidence, the demolition permits and zoning scheme were invalid.22 The Court found that the first condition was met, but not the second. According to the Public Administration Act, errors may constitute grounds for appeal or new assessments. The Court did not find such grounds, and referred to the fact that preservation and reuse of the murals was a prerequisite for the permits and zoning scheme, but was not the main reason for the decision to demolish.
iii Limitation periods
Claims under reference to title can be embedded into property rights, or title to and ownership of assets. Such claims are, therefore, accepted from the limitation laws pursuant to Norwegian legislation, but are rather regarded as a claim under 'vindication rights' with applicable law. The right to present a claim for a lost work of art will never be subject to limitation.23
On the other hand, for claims under reference to restitution or repatriation, the Cultural Heritage Act stipulates a limitation period of three years after the day the requesting state gained knowledge of the location of the artwork or cultural object. In any such case, limitation does not occur before 50 years after such objects were unlawfully removed from the requesting state's territory and no later than 75 years if it was part of a public collection or ecclesiastic goods afforded special protection under national legislation.24
Violation of the Cultural Heritage Act can provide grounds for lawsuits from private individuals, organisations and states. The Directorate of Cultural Heritage25 mainly administrates the enforcement of the Act, and prosecution is often carried out by the National Authority for Investigation and Prosecution of Economic and Environmental Crime. The Authority is a combination of a body within the police directorate and public prosecutor with national authority.26 Such violations would be subject to limitation under the Penal Code.27
iv Alternative dispute resolution
In Norway, arbitration is usually agreed upon between contracting parties and follows the rules in the Norwegian Arbitration Act.28 It has not been a tradition to settle disputes concerning art through arbitration. The reason for this is the few legal cases arising, and the relatively low value of transactions. Until very recently, Norway also did not have any special arbitration for art or alternative dispute resolution other than between, or on behalf of, artists and employers or sponsors through facilitation by internal legal counsel within the different organisations.29 Since 2019, the Norwegian jurisdiction has been represented in the Court of Arbitration for Art by attorney Erlend Haaskjold.30
Fakes, forgeries and authentication
The Norwegian Penal Code provides protection and prevention against acquiring, selling or acting as an intermediary with fake art, as this is regarded as fraudulent in accordance with the Act.31
The most well-known cases of forgery within the jurisdiction are in relation to Edvard Munch. First, because he is one of the world's most famous artists, and second, due to distribution of forgeries by conservators at Edvard Munch's estate and studio in Oslo.32 In 2003, all the confiscated Munch forgeries were exhibited with the originals at the Munch Museum in Oslo.33
Remedies against such acts are also to be found in the Copyright Act,34 which states that the complainant can demand that the copy or forgery be destroyed and confiscated.35 However, there is an exemption for artworks if the purpose of their use falls within private use and the reproduction cannot be misconceived as an original.36
The non-penal legislation, which provides legal protection and remedies against forgeries and unauthentic art, is found in the buyer's right to make a claim against a seller under civil law. Rules and legislation on acquisition of art, online or in situ, are governed by two different acts depending on whether the buyer is a professional or acting as a private person towards a professional buyer, as mentioned in Chapter V of the 1988 Norwegian Sale of Goods Act and the 2002 Consumer Purchases Act.37
Forgeries and authentic artworks sold by a dealer or at auction can constitute any defects of the lot and object acquired that deviate from what has been agreed upon. If such defect has been established, there are different remedies for impediments that can be relevant. One of the most relevant would be termination of the sale. In accordance with the Norwegian Sale of Goods Act, termination may apply if the defect constitutes a material defect.38 According to the Consumer Purchases Act, the same right, but with a lower threshold, applies when the defect is not immaterial.39
Under the Sale of Goods Act, the time limits for presenting notification of complaint are stipulated as 'within a reasonable period of time' from the time the defect was or should have been detected, and no later than two years if warranties do not apply.40 A neutral notification must be made until all supporting evidence has been gathered.41 Two time limits apply under consumer legislation: one is a relative time limit of two months after the defect was discovered, and the other is between two and five years. Only a neutral notification is required for buyers of art under the Consumer Purchases Act.42
Both acts have special rules on auction sales and objects sold 'as is'.43 The distinction between where a buyer can present a claim under a warranty or under reference to the above-mentioned legislation has not been thoroughly assessed in Norwegian courts, and Scandinavian case law has been of interest for legal literature.44
Courts dealing with the different art matters at hand usually appoint expert witnesses. This can be in regard to giving statements on authentications, research or investigations of the artworks or view and estimates of their fiscal value. The main experts appointed by the court's administration originate from the larger museums, auction houses, dealers and gallery owners, or other authorities. For the best-known Norwegian artists, catalogue raisonnés and foundations are also consulted in relation to private sales and acquisitions.45Among others, they include the Edvard Munch Catalogue Raisonné by Gerd Woll.
i Private sales and auctions
Private sales of art in Norway are regulated by freedom of contract between the parties. The sale between auction houses and the buyer is regulated by a combination of contract freedom (general terms and conditions) and regulations set out in the Voluntary Auctions Act.46 The Act is also deemed to apply to online auctions.47 Sales that take place between a professional and a consumer are governed by the Consumer Purchases Act.
In Norway and Switzerland, lawyers are appointed as escrow agents unlike in many other countries, such as France, Germany and the United States. Buyers and sellers use lawyers and conduct the transaction through their client's accounts, which would be covered under the insurance of the Bar Association, and therefore protects the transaction itself if: (1) the work is sold by a person entitled to do so, (2) the work has been proven authentic, and (3) the AML regulation has been complied with. The free enterprise of buying and selling art relates to the trust between the two lawyers appointed by the buyer and the seller on each side, but often the trade takes place through an invoice alone from the seller, relying on trust.
A practical consideration of buying art in Norway is that sales are usually channelled through freehold warehouses. In freeports, it is the owner's (legal) responsibility to ensure that there are no tax or customs-related costs under a purchase agreement, as the government is seeking to interfere more in matters of private sales. However, in terms of the customs authorities, it is the recipient that is subject to the Act on customs duties and movement of goods.48
In regard to settlement and in comparison with countries operating with third-party escrow agents, transactions through Norwegian lawyers' clients' accounts is much more practical.49 Swiss lawyers obtain a permit to represent a transaction as escrow agents and in this way both seller and buyer are well protected. New rules on money laundering will of course be easier to follow when there are two lawyers in between who document the necessary investigations. Today, many Norwegian collectors are concerned when a third party without personal references handles larger settlements. In Norway, membership in the Norwegian Bar Association is sufficient to take responsibility as an escrow agent where the responsibilities rest with the lawyer.
ii Art loans
In 2013, KODE Museums in Bergen signed a loan agreement with Peking University and Huang Nubo at the Zhongkun Investment Group concerning seven of 21 marble plinths from the old Summer Palace in China. The marble works were legally acquired by Johan Wilhelm Normann Munthe (1864–1935), a Norwegian adventurer and officer in the Chinese army who befriended the president and later Emperor Yuan Shikai. Until his death in 1935, Mr Munthe donated approximately 2,500 pieces of his collection to the Norwegian museum. The loan agreement is a long-term exhibition at Peking University's own museum.50
Norway has no legal framework for immunity from seizure of artwork on loan such as the US Immunity from Seizure Act, or under Part 6 of the 2007 UK Tribunals, Courts and Enforcement Act. This means that the Norwegian authorities can cooperate with foreign governmental tax collectors through international tax collection agreements, bilateral agreements and through courts' decisions for enforcement through debt collection, or preliminary injunctions for securement of private claims.
iii Cross-border transactions
No restrictions exist in terms of access to purchasing or selling an artwork in Norway as such. A transaction of an artwork is regulated by freedom of contract. However, for antiques with cultural or academic importance for the country, furniture older than 100 years, gifts or inherited objects to be shipped abroad, one must first apply for an export permit through the correct department of the National Museum of Art, Architecture and Design (the National Museum). Applications must also be made to export paintings, sculptures and other visual arts, handicrafts and prototypes for design products, motor vehicles, aircraft and rail materials from before 1950. This also applies to boats and parts of such that are older than 50 years, and 'Sami material' from before 1970.51 For works by Edvard Munch, an export permit from the Munch Museum is also required in addition to an approval from the National Museum.52
When it comes to choice of law, the 1988 Lugano Convention, ratified by Norway, regulates disputes arising from an international agreement of transactions in art (movable property).53 The Convention is incorporated into Norwegian legislation through the Dispute Act.54 It only applies where choice of jurisdiction has not been agreed upon in the contract. Regarding choice of law, this is a comprehensive field of law by itself. Where the indicated is not included under a governing law clause, relevant regulation to find such answers can be found in the 1964 Act concerning international private law rules for sales of goods and applicable fragmented legislation.55 This Act is based on the 1955 Hague Convention,56 and is only applicable to consumers, but is relevant for purchasing at auction and from dealers. The Rome I Regulation is also relevant.57 For non-consumers, relevant legislation is CISG 1980, ratified by Norway and incorporated into the Norwegian Sale of Goods Act.58
Financially strong Norwegian collectors, dealers and dealectors59 prefer to deal with countries that practise the same code of professional conduct for lawyers as in Norway.60 As mentioned above, a lawyer in Norway who is member of the Norwegian Bar Association still has an individual client account and conducts the transaction under obligatory professional insurance.61 It is the lawyer's responsibility to ensure that the AML regulations are followed and that quality in transfer of title is ensured, which prevents any doubt about the practice under the licences and the lawyer's professional liability. Furthermore, the lawyer must ensure: that it is the right seller that meets the right buyer, that the lawyer knows his or her client, provenance and that the artwork is documented to be authentic.
The only tax that arises from the sale of art in Norway was established by Norway's parliament in connection with the Art Tax Act of 1948.62 Under the Law, the Relief Fund for Visual Artists collects 5 per cent of all public sales of original works of art in Norway with a sale price of over 2,000 Norwegian kroner per work of art, and manages the funds raised.63 The full fee goes to the fund, which returns the money to new production of art through grants, scholarships and prizes to artists in Norway.64 The Act also applies to non-Norwegian citizens acquiring art in Norway as well as when the artwork is taken out of the country. This is not applicable to sales between two private parties, or towards a museum or institutions.65
iv Art finance
Norway is relatively underdeveloped on art finance matters in comparison with financial products and solutions provided on the international art market. This is in general due to low competence in the field and bad experiences of financial institutions in the past. Collectors and art investors therefore prefer international providers of financial products aimed at fine art acquisitions. There are currently no art dealers or auction houses that provide or offer such solutions in Norway.
However, some financial institutions do offer loans for art purchases with collateral in other assets such as property, stocks or bonds. There may be some banks that offer loans with collateral in the artwork in combination with third-party guarantees. The only financial institutions providing loans solely with collateral in artwork are pawnbrokers in Oslo, who offer 10 per cent to 15 per cent of the market value.66 If auction houses or dealers offer purchase through instalments of the purchase sum, the agreement would be secured by a pledge in the objects for safe custody. Nevertheless, as we know, such arrangements in the market are also very much based on trust. Private arrangement of financial proxy is also not uncommon.67 Financing of art with collateral in the artwork or other assets follows the regulations set out in the 1980 Mortgage Act.68
Auction houses and transaction lawyers operating with client accounts are subject to the reporting requirements of the Financial Supervisory Authority of Norway, and for financial institutions more excessive obligations apply under the anti-money laundering regulations incorporated into Norwegian legislation from EU law.69 Auction houses and dealers are not directly obliged entities under the legislation,70 but must report cash transfers of 40,000 Norwegian kroner or more.71 Norway has yet to implement the Fifth AML Directive through the EEA Agreement,72 which will expand obligations of customer due diligence (e.g., know your customer) for auction houses, and art and antique dealers when handling transactions, not only for cash management.73
i Moral rights
The Norwegian legislation and case law in the copyright area, and for artist's rights, are influenced by the other Scandinavian countries. On 1 July 2018, a new Copyright Act was enacted.74 This replaced the Act from 1961 that was enacted under the aim of a common Nordic alignment in the copyright area. This is still the case, but the Act has been amended several times, particularly to adapt to the EEA Agreement. Norway has ratified the 1886 Berne Convention75 and the 1961 Rome Convention,76 alongside the relevant EU directives through the EEA Agreement.77 In regard to copyright, artists' moral rights and art, Norway has had very few cases. It is therefore acknowledged that cases concerning art from our neighbouring countries may be given weight.78 The main changes in the new Copyright Act are primarily in relation to the structure and set up of the Act itself, its written language and adaption to EU legislation, and the fact that it is now better suited to modern technological development.
The creation of an original and individual creation entitles the author to creative ownership in accordance with the Copyright Act.79 The right to disclosure is embedded in the exclusive rights of the creator of an artwork, who becomes the sole proprietor of the copyright.80 This right includes the right to disclose, exploitation of the work and examples of this.
As creators of artwork, Norwegian artists are entitled to be attributed to and respected as far as is practical when the work is displayed or made public.81 This can be compared with the right of integrity under US law. The right to attribution according this rule is only a continuity of the earlier principle of attribution such as 'good custom' dictates.82
The law protects the author of the work for 70 years from the end of the calendar year in which the artist dies. If there is more than one artist (e.g., for a collaborative work), the protection period follows the longest living artist.83 However, the ideal rights are, in principle, everlasting, and even where the copyright has been transferred, the ideal rights remain with the artist.84 However, such rights can be subject to restriction through agreements.
ii Resale rights
The droit de suite was incorporated into Norwegian legislation in 2007 through the EEA Agreement, after the EU made it mandatory by all Member States in 2006.85 Section 59 of the Norwegian Copyright Act dictates that the author (artist) has the resale right for original examples such as drawings, lithographies, etchings, paintings and collages. The artist can neither waive the resale right, nor transfer the right to compensation under this rule. However, the right does not cover sales that a non-professional and private person conducts towards a public museum, unless the transaction was carried out through a third party.86
Sections 60 to 61 of the Norwegian Copyright Act regulate in more detail the level of fees and threshold, notification rules and rules on inheritance and beneficiaries. The Norwegian Visual Artists Copyright Society administrates and is responsible for collection of the remuneration. It is the seller or third party that reports and pays the amount, regardless of where the artwork is situated geographically.87
iii Economic rights
A Norwegian artist's right to make his or her artwork available to the public by distribution or by exploitation is protected by Section 3 of the Norwegian Copyright Act. The economic right is an exclusive right, also known under 'right to the example' of the work, and under the 'right to distribute'.
However, the exclusivity can be transferred only within the limits set out in the Act.88 Although the economic rights have been transferred, it does not automatically allow the other party to change the artwork, unless otherwise agreed.89 An artist has the right to a 'fair price' where a transfer of the copyright takes place.90
Trusts, foundations and estates
Norway has one of the oldest modern and liberal constitutions in the world. When Norway separated from Denmark in 1814, the constitution found inspiration from the United States Declaration of Independence (1776) and the French Constitution (1791). Because of this, no new nobility titles could be issued or inherited, and fideicommissa were abolished. Anglo–American 'trusts', therefore, have no similar institution in Norway. The only options in this area are foundations and estates.
The 1959 Act relating to foundations governs rules and regulations on foundations in Norway.91 All Norwegian foundations are subject to supervision and control by the Norwegian Foundation Authority, which oversees that the foundations act in accordance with their articles.92 According to the Authority, as at 2020 there are approximately 7,100 foundations in Norway.93
Foundations in Norway are separate legal entities, and can obligate the foundation and act as a contracting party. It is not the name or label of the foundation that is of the essence for being subject to the legislation, but the content of its articles. The Foundation Act dictates that it is a transfer of the assets and disposition rights in accordance with the purpose of the creation that is of the essence.94 Norwegian foundations may go under the name of legat, fond or stiftelse.
When it comes to the holdings and administration of the foundation, its board of representatives is obliged to manage this in a sound way.95 Such management is not only limited to assets currently owned by the foundation, it can also relate to donations made by the foundation to a museum or institution, which are still under the supervision of the Foundation Authority.96
In relation to estate planning and art holdings, such disposition of artworks or collection upon the owners' death can have two legal bases. It is either through a will or by law. The latter option is set out in the 1972 Inheritance Act, but is also relevant for the content and limits for a will to be valid.97
The main rules are that one is an heir by law in accordance with the rules in Chapters I and II and Section 28B of the Inheritance Act. Another alternative is to appoint heirs by will.98
As long as the owner of the artworks or collection is still alive, he or she can freely give away assets.99 This means that the artwork must physically be passed on, or access or disposition rights to the collection must be transferred.100
The Inheritance Act from 1972 is being replaced by a new Act, which will enter into force on 1 January 2021.101 The main changes under this new Act will be an expansion of the right of inheritance by law, a right of inheritance for partners (non-matrimonial) without a common child or children, and a reduction of the inheritance for linear descendants.
Although tax on inheritance and gifts was set aside in 2014, artworks and cultural objects were exempted from this taxation.
VIII OUTLOOK AND CONCLUSIONS
If one is to pinpoint and highlight cases of importance to the recent and current situation in Norway, the following must be considered: the case involving DHL Exel Global Forwarding (freeport) and the lost Munch, the customs-related cases102 and developments in AML regulations.103
Despite the fact that Norway is a small country, its egalitarianism and relatively wealthy inhabitants have led to an increase of consumer wealth manifested by the collection of valuable art and antiques. It also leads to more knowledge, consciousness of aesthetics and eagerness to support fine art. Wealthy Norwegian citizens are slowly returning from abroad with extensive art collections. The Norwegian government still upholds legislation and tax-friendly measures that encourage Norwegian art collectors to live in Norway. Public auctions in Norway remain free markets without the involvement of the authorities because, to date, turnover and pricing are low compared to nations with a longer and more valuable cultural history.
It is better to paint a good picture than a poorly completed one. Many believe that a picture is finished when they have worked in as many details as possible.104
1 Johan Camilo Alstad-Øhren is an independent legal counsel and compliance officer.
3 LB-2014-195567; the Oslo Court of Appeal found that the neon artist Marit Følstad's sculptures and installations were indeed works of art, and not only goods under reference to neon light products. In 2016, 16 paintings by Bjarne Melgaard were held by Customs under the same theory by the customs officials that they were not works of art, activating a tax claim. The Minister of Finance intervened when it was realised that the works were paintings.
4 DHL Exel Global Forwarding warehouse became the subject of in-depth articles published during 2019 and 2020 in the Norwegian daily Dagens Næringsliv on anti-money laundering, three lost works by Munch and tax claims.
5 Martin Lilja in Faber and Lurger (eds.) National Reports on the Transfer of Movables in Europe, 2019, p. 17.
6 LOV-1978-06-02-37 (the Act relating to the acquisition in good faith of movable property (the Good Faith Acquisition Act)).
7 id., Section 1(2).
8 The founder of AKO Capital and the AKO Foundation; today the chief executive officer of Norges Bank Investment Management (a Norwegian government pension fund).
9 Oslo District Court, 19-121754TVI-OTIR/02.
10 14-11-1970 No. 21 Multilateral.
12 14-11-1970 No. 21 Multilateral, Article 16.
14 id., Section 23.
15 FOR-2001-10-04-1179 (the Regulations on the return of stolen and unlawfully exported cultural objects).
16 Speech held by former Minister of Foreign Affairs Børge Brende and former Minister of Culture Torhild Widvey on 17 March 2015 to Norway's parliament. This does not apply to objects from non-Member States of these acts and conventions.
17 Henri Matisse, Robe bleue dans un fauteuil ocre, 1937. HOK Press release, 20 March 2014.
19 Yngvild Solberg Greiner, art law thesis (2018), interview with Mr Ulving and individual research.
20 Cultural Heritage Act, Section 15.
21 FOR-2011-11-09-1088, Section 8-1 on protection of the integrated works of art in and outside the Norwegian National Opera and Ballet.
22 Oslo District Court Decision: TOSLO-2020-41571.
23 Supreme Court of Norway Case Rt. 2012, p. 506 and the preparatory works in Proposition No. 38 (1977–78) to the Odelsting, pp. 50–51.
24 Cultural Heritage Act, Section 23d.
26 FOR-1985-06-28-1679, Section 35.
27 LOV-2005-05-20-28 (the Penal Code).
28 LOV-2004-05-14-25 (the Act relating to arbitration (the Arbitration Act)).
29 E.g., the Association of Norwegian Visual Artists and the Norwegian Visual Artists Copyright Society.
31 LOV-2005-05-20-28 (the General Civil Penal Code (the Penal Code)), Sections 372–374.
32 Supreme Court Ruling Rt.1969-498.
34 Copyright Act, Section 82.
35 Supreme Court Ruling Rt-1961-611, in which the Court approved the confiscation of two fake Edvard Munch paintings. It was assessed whether the paintings could be marked as forgeries and signatures removed, but this was set aside in favour of actual considerations such as towards market sales and in respect of the name of the artist.
36 Copyright Act, Section 26.
37 LOV-1988-05-13-27 and LOV-2002-06-21-34.
38 LOV-1988-05-13-27, Section 39. In the Court of Appeal Decision RG-1989-525, an antique dealer entered into an agreement to sell 400 objects of Chinese porcelain at auction, including the aquarelle Grasshopper on Snow Peas by Chi Pai Shish (1863–1957). The buyer of the lot filed a notice of the defect in the artwork, stating it was a fake. The sale was terminated and the buyer was reimbursed because the aquarelle was presented as an original in the auction catalogue.
39 LOV-2002-06-21-34, Section 32.
40 LOV-1988-05-13-27, Section 35.
41 See preparatory work to the Act, Proposition No. 80 (1986–1987) to the Odelsting, p. 81.
42 See preparatory work to the Act, Proposition No. 44 (2001–2002) to the Odelsting, p. 181.
43 LOV-1988-05-13-27, Section 19 and LOV-2002-06-21-34, Section 17.
44 Lars G Norheim, Mangelfull kunst: når har kunstverk og antikviteter en kjøpsrettslig mangel?, Department of Private Law, University of Oslo, 1998.
45 Two paintings by Hariton Pushwagner that were handed in to the auction house Blomqvist Kunsthandel in 2015 were deemed fake. Oslo District Court agreed to confiscation.
46 LOV-1918-08-14-3 (the Act relating to voluntary auctions (the Voluntary Auctions Act)).
47 See A Å Sandum, published master thesis (2008), www.duo.uio.no/bitstream/handle/10852/21825/87180.pdf?sequence=1, where the student applies the rules with support from the article on auction law by Professor Viggo Hagstrøm, LLD, in Tidsskrift for rettsvitenskap 1986, p. 461.
48 LOV-2007-12-21-119 (the Act on customs duties and movement of goods), Chapter 1, Section 2-2.
49 Anonymity in art transactions has been acknowledged as normal practice; see Supreme Court Ruling HR-2012-2023-U. The extent of a lawyer's duty of confidentially and providing, for example, the tax authorities information on art transactions must be assessed on a concrete and individual basis according to the same ruling; see Supreme Court Ruling Rt. 2008-645, Paragraph 47. The lawyer's duty of confidentially, and the right to oblige authorities, depends on whether the lawyer is providing legal advice in combination with management of the transaction. If it is only in relation to the latter, the secrecy protection is weakened.
51 FOR-2007-01-01-1 (the Regulations on the Import and Export of Cultural Objects), Section 2(c). 'Sami material' relates to objects created by the indigenous Sami people, after 1930.
52 Determined by the Ministry of Culture and Church Affairs (now the Ministry of Culture) on 1 January 2007, pursuant to Section 23, second paragraph, and Section 23f of Act No. 50 of 9 June 1978 concerning the cultural heritage, Regulation No. 8785 of 9 February 1979 on professional division of responsibilities etc., pursuant to Section 12(3) of the Cultural Heritage Act and Section 28 of the Act of 10 February 1967 relating to procedure in cases concerning the public administration (the Public Administration Act).
53 Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
54 LOV-2005-06-17-90 (the Act relating to mediation and procedure in civil disputes (the Dispute Act)).
55 LOV-1964-04-03-1 (the Act concerning international private law rules for sales of goods).
56 Convention on the Law Applicable to International Sales of Goods, 15 June 1955, The Hague.
57 Regulation (EC) No. 593/2008 on the law applicable to contractual obligations (Rome I).
58 Convention on Contracts for the International Sale of Goods, Vienna, 11 April 1980; see Section 87 of the Norwegian Sales of Goods Act.
59 'Dealector' as a professional expression was first coined in 2018 during a private conversation between the chairman of Sotheby's, the Right Honourable Harry Primrose, Lord Dalmeny, and the Norwegian collector and art curator Tor Petter Mygland. The title describes a person who is active on the world's art scenes in several areas, including actively participating in auctions around the world and facilitating or contributing to art exhibitions. It also describes a collector that cannot let go of any of their purchases to be a dealer.
60 Norwegian lawyers managing art transactions within the EEA are bound by the Council of Bars and Law Societies of Europe Code of Conduct; see FOR-1996-12-20-1161, Chapter 12.5, Section 6.
61 FOR-1996-12-20-1161 (the Regulations for advocates, the Norwegian Bar Association), Chapter 2, Section 2-2.
62 LOV-1948-11-04-1 (the Act relating to taxation of sales of visual art, etc. (the Art Tax Act)).
63 id., Section 2.
65 LOV-1948-11-04-1, Section 3. (The tax percentage will appear in a bill from an auction house, for example.)
67 See Supreme Court Ruling, HR-2008-1832-A – Rt-2008-1365, on the financing of the painting Two Nurses by Edvard Munch between private parties. The ruling was on contractual revision, but the case might serve as an example of private arrangements. In Appeal Court Decision LB-2009-188599, the painting Lykkehuset by Edvard Munch served as pledge for a loan agreement.
69 LOV-2018-06-01-23 (the Act relating to measures to combat money laundering and the financing of terrorism, etc. (the Money Laundering Act)).
70 id., Section 4, No. 3.
71 id., Section 5.
72 AVT-1992-05-02-1. The EEA Agreement links the EU Member States and the three EFTA States (Iceland, Liechtenstein and Norway).
73 Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018 amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, and amending Directives 2009/138/EC and 2013/36/EU.
74 LOV-2018-06-15-40 (the Norwegian Copyright Act 2018).
75 Berne Convention for the Protection of Literary and Artistic Works (1886), WIPO.
76 The Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (1961), WIPO.
77 Including, in particular, Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.
78 Rognstad, Opphavsrett, 2009, p. 42. In the 2019 edition (pp. 45–46), the author modifies this view. The author of this chapter's personal opinion is that this is not applicable for fine art, where there are still few court cases.
79 LOV-2018-06-15-40, Section 2.
80 id., Section 3.
81 id., Section 5. The artwork may not be made public in a manner that may violate the reputation or character of the work by the artist, also known as the 'right to be respected'.
82 id., first paragraph.
83 id., Section 11.
84 id., Section 108.
85 Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art.
86 LOV-2018-06-15-40, Section 67, second paragraph.
87 For more information, see www.bono.no. See the European Court of Justice (ECJ) Decision, C-41/14, Christie's France SNC v. Syndicat national des antiquaires, 27 September 2015, where the French branch of Christie's included the payment management of the remuneration in their terms of sale. Syndicat national des antiquaires found this to be a disloyal breach of competition. The ECJ found that payment management could be regulated in an agreement.
88 LOV-2018-06-15-40, Section 67.
89 id., Section 68.
90 id., Section 69. This crystallisation of a compensation is mostly aimed at musicians, directors and creators and the performance of art. The preparatory work of the Act provides more detailed guidance on what is regarded as 'fair'; see Proposition to the Storting (Bill) Prop. 104 L (2016-2017) pp. 235–236.
94 LOV-2001-06-15-59, Section 2.
95 id., Section 18.
96 A recent example can be found in Professor Viggo Hagstrøm's 2015 donation to the Nordnorske Kunstmuseum, where the foundation's chair of the board, Professor Tone Sverdrup, LLB, made the museum aware of the fact that the condition of the donation may have been breached as no artworks were displayed in the museum. Klassekampen, 2 September 2020.
97 LOV-1972-03-03-5 (the Act relating to inheritance, etc. (the Inheritance Act)).
98 Section 48. As a starting point, heirs appointed by will shall have precedence over heirs by law. There are some exceptions from this: first, for children who have not ended their right to allowance, which precedes any will. Second, a surviving spouse is entitled to a minimum share of the assets. Third, lineal descendants are entitled to a minimum share. That being said, the above-mentioned rule applies when there are assets left after the testator has passed away.
99 Given that this does not materialise itself after the time of death. If transaction of the gift itself materialises after the time of death, it can be voidable.
100 See the Court of Appeal Decision LB-2011-138256 on return of artworks from an artist's estate passed on to the children by the deceased.
102 See footnote 3.
103 The DHL v. Gundersen case is not only relevant for the sake of case law on title in art, but has been essential in the public debate on use of freeports in relation to taxation and AML. The customs-related cases, which have not been elaborated on in detail, are relevant to illustrate the importance of competence and knowledge for officials in service. As mentioned in Section I, Norway still has some catching up to do on insight, competence and knowledge in the art law area, as well as in relation to intricate transactions and training of customs officers.
104 Edvard Munch. The exact opposite was the cause of arguments in Supreme Court Ruling Rt. 1924-340, where the sculptor Gustav Vigeland (1869–1943) sued the contractor for losses resulting from not being able to finish mosaic glass installations in a foyer.