Comment by its_so_on | Hacker News Reader

Comment by its_so_on | Hacker News Reader

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This article got a whole lot less interesting with the sentence: "In this instance, the 1940 Bald and Golden Eagle Protection Act and the 1918 Migratory Bird Treaty Act make it a crime to possess, sell, purchase, barter, transport, import or export any bald eagle — alive or dead. Indeed, the only reason Mrs. Sonnabend was able to hold onto “Canyon,” Mr. Lerner said, was due to an informal nod from the United States Fish and Wildlife Service in 1981."

This is a piece of artwork it's apparently "just as illegal" merely to own. (i.e. illegal under the same clause of federal law.)

Suddenly it sounds like they found some obscure law to value it at $0, and that they would not get in trouble for actually selling it. Rather than appraisers in on the heist, perhaps they should have written to the Fish and Wildlife Service to ask if they can sell the thing to pay the taxes on it. The reason they didn't do that is they didn't want to hear the answer, yes. They want their cake and to eat it, too. (Keep the work but not pay taxes).

I'm not sure I agree with the existence of this kind of tax, but the case isn't as clear as the title and first half of the article make it sound.

Even then, the government revisited the issue in 1998. Rauschenberg himself had to send a notarized statement attesting that the eagle had been killed and stuffed by one of Teddy Roosevelt’s Rough Riders long before the 1940 law went into effect. Mrs. Sonnabend was then able to retain ownership as long as the work continued to be exhibited at a public museum. The piece is on a long-term loan to the Metropolitan Museum of Art in New York, which Mr. Lerner said insures it, but the policy details are confidential.

this is respected art with a high market value. They should not have put $0 as its value.

take-home lesson: don't do that.

>Suddenly it sounds like they found some obscure law to value it at $0, and that they would not get in trouble for actually selling it.

It's valued at $0 because they cannot sell it. It does not have "a high market value" because it is not, and has no expectation of ever being, able to be sold.

The Fish & Wildlife Service didn't say they could sell it - it said they could continue to possess it.

If it is worth nothing, why is it insured? And why would they want to hide the details of said insurance?

They are not insuring it. The museum is insuring it.

It's simply not true that it has no expectation of ever being able to be sold. The piece is already on loan to a museum and displayed there - the sale to a museum (perhaps the one displaying it) for its permanent collection is something they should fully expect to be approved. They are trying to skirt the law on a technicality.

A letter from the Fish & Wildlife Service stating they can't sell it to a museum - even though it's already on display in one - is what would show this; but if they asked, they would not get that letter - they would be told they could, for the same reason that they could keep it. (Because this is a famous, exceptional, well-known piece that is attested as being produced before the law that made it illegal.) The conditions would be the same - it would have to go in a museum.

You have to realize that under the law you're quoting it's illegal to POSSESS as well. This is what changed my opinion of the case.

So the family is saying "it's illegal to own or sell", so we'll just do the former since we already got approval but we'll say we can't do the latter, and won't even try to get approval.

Personally, I think they should put the price that a museum would pay (and not a recluse billionaire) and which they would expect the Fish & Wildlife Service to approve. Or they can ask for that approval, which the article doesn't show them doing. If they asked and the Fish & Wildlife Service said, weirdly, "you can keep it - as long as it is on display in a museum - but you can't sell it to that museum" then the article, and you, would have a case.

The piece is on loan to the museum but they aren't making any money from the loan. They also can't sell it as the previous poster said because it's illegal. Why should they pay tax on something that wont provide monetary benefit unless it is done through illegal means?

You miss that the article says it is a crime to possess or even transport the piece. This is like arguing that if you can't sell it without double parking, it's worth $0 and you don't owe taxes.

Your analogy wasn't very clear. What I'm saying is if they have no way of making money off it what taxes do they owe? If you buy shares in a company that goes bust but you still have the paper should you pay taxes on that if the IRS decides its worth something?

I thought like you until the middle of the article, in the place I quoted. It's not that they have no way of making money off of it - they are only saying that. I would believe it if they got a letter from the wildlife agency saying, oh, no, we are only exempting your possession: we can't extend it to your selling to a museum. But that's clearly not the situation. They obviously have every ability to sell to, e.g. the museum currently displaying it, and it will be approved.

they're trying to use a technicality - that it's "technically" illegal. don't do that. if they were serious they wouldn't even possess it, since that's "illegal" too. read the article carefully to see what I mean.

You're missing two key understandings of the Bald and Golden Eagle Protection Act: First, the Act allows museums and similar institutions to own and transport bald eagles. Second, the article states that the bird was acquired prior to the Act taking effect in 1940. That means that current possession is legal, provided that it doesn't change ownership. For a similar situation, look at zoning laws. A property can be "legal nonconforming" because it was, at one time, in compliance with zoning laws but is not any longer. Why? Because both types of laws carry criminal penalties and it is unconstitutional to retroactively make something a crime. The artist can keep the bird, will it to his heirs (generally, passage to one's heirs doesn't trigger "change in ownership" laws), and do the other trappings of ownership but No One Else Can who isn't able to comply with the law, like a museum. Ergo, his heirs can't sell it except to the museum. The museum isn't willing or able to buy it--the piece is already on loan to them for free--so there is no market and, therefore, no value.

Where do you get the idea that museums wouldn't or couldn't purchase the work, assuming this purchase is OK'd by the government first - which given the history here and the work in question the family can easily count on?

Your comment doesn't make sense in light of the fact that the family was forced to put the work on display, which doesn't sound like they "can do the other trappings of ownership but No One Else Can".

The article says: "Indeed, the only reason Mrs. Sonnabend was able to hold onto 'Canyon', Mr. Lerner said, was due to an informal nod from the United States Fish and Wildlife Service in 1981. {P} Even then, the government revisited the issue in 1998. Rauschenberg himself had to send a notarized statement attesting that the eagle had been killed...before the 1940 law went into effect. Mrs. Sonnabend was then able to retain ownership as long as the work continued to be exhibited at a public museum. The piece is on a long-term loan to the Metropolitan Museum of Art in New York, which Mr. Lerner said insures it, but the policy details are confidential."

This does not sound to me like it matches what you are saying at all. Quite to the contrary, it sounds like this work is quite special and important and for this reason was given these exemptions - this makes it quite likely for a sale to a museum to be approved, and the family has every reason to believe this.

So we must return to why you would say that a museum wouldn't or couldn't buy it (after saying earlier in your comment that museums were allowed to own such works, though the article does not make this blanket statement.)

Your arguments have no basis in the law *as it exists in this reality. The law makes it a felony to sell or possess bald eagle remains. The only reason that family still "has" this art piece is because actual possession of the art piece lies with the museum; the family retains "legal" ownership but cannot ever actually exercise possession without violating the law.

The family does not have a reason to believe that a sale to a museum would be approved since that would be a clear exception to the explicit text of the law. The prior "exception" does not change this because it does not actually conflict with the terms of the law.

You need to either (1) learn the law or (2) stop pretending like you know what you are talking about. Armchair lawyers like you ruin the discussion of legal articles on HN.

Maybe you're right.

I will just say that if it were me in this situation, I would never in a million years go on an art appraiser's word that I 'can't' sell it, without even asking the appropriate agency.

The law makes it illegal for them to sell or possess the eagle art piece. You clearly missed the part of the article where it said that a special dispensation from FWS was required for them to continue possessing the eagle art piece so long as it was kept in a museum and was not sold.

I did miss it, because you made that last part up. You would be completely right if the article said "Mrs. Sonnabend was then able to retain ownership as long as the work continued to be exhibited at a public museum and not sold." But I just added the last three words. They're not in the article.

So, a special dispensation from FWS was required for them to continue possessing it. Which is illegal. So, ask for a special dispensation from the FWS to sell it to the museum. Which is illegal.

They have every reason to believe they will get it. Read between the lines.

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