Week 4 - Cultural Property and Economics

What is the concept of scarcity?

scarcer some sought-after thing becomes the more likely it is that the community will recognize it as property

What is the concept of utility?

measure of the value a person attaches to a particular good, service, or activity

What is included in considerations of utility?

Economic values, person’s pleasure, personal security, free time activities

How can utility be measured?

Examining the choices a person makes

What does revealed preference presume?

consumer preferences are best revealed by their actual purchasing behavior rather than by what they say they prefer.

What is marginal utility?

extra satisfaction you get from consuming one more unit of something, like one more slice of pizza ; usually, this extra satisfaction (or "utility") decreases as you have more and more of it

When is a legal rule considered to be efficient?

if it maintains or increases utility, goal is maximizing utility

Goal of utilitarian theory?

utility is a good thing and thus people’s utility ought to be maximized

What does efficiency involve?

choice

What goes with the assumption of rationality?

persons in general try to maximize their own utility, by evaluating information that is available to them, as they go about their daily lives

What is invisible hand/self-interest in economic terms?

individuals pursuing their own self-interest unintentionally contribute to the overall economic well-being of society, suggests that personal incentives can lead to positive societal outcomes.

What is the idea of consumer sovereignty?

each individual should be allowed to judge her own best interest (utility)

How does the idea of consumer sovereignty protect consumers in the market?

sellers lack power, and must provide the goods and services demanded by consumers

What does it mean to be Pareto efficient

makes at least one person better off and no one worse off

What does it mean to be pareto optimal?

A state where no further improvements can be made to benefit one individual without making another worse off.

Types of pareto-optimizing moves

1. Voluntary exchanges

2. Removal of legal rules that restrict persons but benefit no one

What must be true for a legal prohibition to be legitimate in a utility maximization analysis?

must have some benefit to someone, to offset the cost imposed on the restricted persons

What does the kaldor-hicks efficiency say about when change is efficient?

if the total gains exceed the total losses meaning there can be individuals who are made less well off by the new change, provided there is a net gain in utility after considering everyone

Any change that is pareto efficient…

is kaldor-hicks efficient

What does externality imply?

self-interest of the actor—that the actor, in deciding whether to do something, will not consider the effects on others

What are negative externalities?

costs imposed on others by the action in question

What are positive externalities?

benefits others would receive from the action

What is the problem with externalities?

tendency to induce inefficient decision making, self-interested and rational actor will make decisions that seem efficient to her, but which are not efficient for the community

According to UNESCO, what is cultural property?

[p]roperty which is specifically designated by each State as being of importance for archaeology, prehistory, literature, art or science.

Claims of cultural property usually seek to…

limit the ability of individuals to assert property rights

Cultural property suggests that some objects..

“belong” to the society as a whole and cannot be reduced to private ownership

Why did Wilcox v. Stroup rule that the papers were not public property?

Issue(s):

• Who owns the 1860s gubernatorial papers from South Carolina: the Willcox/Law family (private possession) or the State (public property)?

• Whether, given the papers’ long private possession and unclear provenance, the State can overcome the presumption of ownership in the possessor and show the papers were public property under Civil War-era law.

Facts:

• About 444 documents from the administrations of South Carolina Governors Francis Pickens (1860–62) and Milledge Bonham (1862–64) were found in a shopping bag in Thomas Law Willcox’s stepmother’s closet in 1999/2000.

• Willcox sold a few items and gave two to his wife; in 2004, he planned an auction for the rest.

• The State sought to stop the sale and to obtain copies; a temporary restraining order was issued in state court.

• The documents date from 1860–1864, relate to military and gubernatorial duties, and their precise chain of custody is largely unknown. They had been in various hands for over a century, with limited documentary evidence of original ownership or transfer.

• The district court and bankruptcy court found that, absent other proof, the papers are Governor’s records and that the long possession by the Willcox/Law family supports a presumption of ownership in the possessor.

Procedural posture:

• Bankruptcy Court held for the State.

• District Court reversed, concluding the State failed to prove that the papers were public property.

• Willcox v. Stroup affirmed the district court’s reversal and held that the State did not overcome the presumption in favor of the possessor.

Judgment:

• Affirmed. The Fourth Circuit affirmed the district court’s ruling that the State failed to establish superior title to the papers and therefore could not overcome the presumption of ownership in the possessor.

Applicable Rules and Precedent:

• General rule: possession is prima facie evidence of ownership; a rebuttable presumption exists that those in possession are rightly in possession.

• To defeat this presumption, the party asserting public or superior title must show stronger evidence of title.

• If relevant, other legal tools (statutes, case law) may address whether records were public or private, but must align with the governing period’s understanding.

• The court emphasized policy reasons for the presumption: stability, avoidance of endless historical disputes, and protection of settled expectations.

Holding:

• The State failed to rebut the presumption of ownership in Willcox. South Carolina law of the Civil War era did not clearly treat gubernatorial papers as public property, and the State did not provide sufficient evidence of superior title.

Reasoning:

• The presumption of ownership from possession is strong here because the papers had been in the possession of the Law and Willcox families for over 140 years, with only scattered appearances in historical records.

• The State could not provide a compelling chain of title or other evidence showing that the papers were public property at the relevant time.

• South Carolina case law and statutes from the Civil War era, and even later, do not clearly establish that gubernatorial papers were public records in a way that would defeat the presumption of possession.

• The court noted that even if the State valued the originals, it could acquire them on the open market, and the papers remained accessible via microfilm copies for scholars.

Rule of Law:

• When possession is long-standing and the ownership chain is unclear, the presumption favors the possessor unless the State can prove superior title under applicable law for the relevant historical period.

Key takeaway:

• In cases involving historically ambiguous, government-related documents with long private possession, courts rely on the presumption that possession = ownership. Absent clear evidence that the papers were public property under the law at the time, the possessor may prevail. The decision protects settled expectations and avoids endless private-public ownership disputes over archival materials.

What category did the court put the artists in Carter v. Helmsley-Spear that caused the artists to not have property rights?

Issue(s):

1. Whether the lobby sculpture created by the artists was protected under the Visual Artists Rights Act of 1990 (VARA).

2. Whether the sculpture was a “work made for hire” and thus excluded from VARA protection.

Facts:

• Three artists—John Carter, John Swing, and John Veronis (“the Three J’s”)—were hired by a building’s former management company (SIG) to create and install a large, walk-through, environmentally themed sculpture in the lobby of a commercial building in Queens, New York.

• The installation included metal and glass mosaics made from recycled materials.

• Later, the building was sold and managed by Helmsley-Spear, Inc., which wanted to remove the artwork.

• The artists sued to prevent removal under the Visual Artists Rights Act (VARA), which protects artists’ “moral rights” of attribution and integrity.

Procedural posture:

• The U.S. District Court for the Southern District of New York (Edelstein, J.) ruled in favor of the artists, finding the sculpture was a protected “work of visual art” under VARA and enjoined the building owners from altering or removing it.

• The defendants appealed.

Judgment:
The Second Circuit reversed the injunction and ruled for the defendants. The court held that the lobby sculpture was a work made for hire and therefore not protected under VARA.

Applicable Rules and Precedent:

• Visual Artists Rights Act of 1990 (VARA): protects artists’ rights of attribution and integrity for “works of visual art,” except for works “made for hire.”

• Community for Creative Non-Violence v. Reid (1989): established a 13-factor test to determine whether someone is an employee or an independent contractor.

Holding:
The sculpture was a work made for hire because the artists were employees working within the scope of employment; therefore, they had no independent VARA rights to prevent its removal.

Reasoning:

• The artists received weekly salaries, worked full-time on-site, used materials supplied by the employer, and could not hire assistants without approval.

• The employer had the right to assign them additional projects and exercised significant control over their work.

• Under the Reid test, this employment relationship meant their creations belonged to the employer.

• Because “works made for hire” are excluded from VARA’s definition of “works of visual art,” the artists had no legal right to stop removal or destruction.

Rule of Law:
Under VARA, an artwork created by an employee within the scope of employment is a work made for hire and not subject to the artist’s moral rights protections.

Key takeaway:
Artists cannot claim moral rights under VARA for art created as part of their job; only independent works—not “works for hire”—receive those protections.