Jacob Gibbs
Familiar private law tools fail to account for the fact that cultural loss is irreversible and culturally diffuse. As climate disasters, theft, and armed conflict intensify globally, the art world faces a first-order preservation threat predicated on how to prevent foreseeable destruction and loss of artwork before disaster strikes.1Tort liability, characterized by its roots in relational wrongs, is plaintiff-dependent and therefore under-enforced when art is destroyed or lost.2 Moreover, insurance may partially compensate owners financially after loss but neither restores destroyed cultural property nor reliably incentivizes preventative risk-mitigating practices before harm occurs.
Private collectors occupy a critical role in custody decisions that drive foreseeable loss, including where the work sits, who has present custody of it, and what risk-mitigating mechanisms are in place to protect the artwork. First and foremost, collectors are the ultimate deciders of storage and security of the artwork, even if they delegate these decisions to their agents. As a result the rise of climate disasters, among other risks, make loss increasingly foreseeable and the excuse of “accident” cannot act as the armor it once did. Since collectors’ choices directly dictate the fate of the artwork, applying a regulatory scheme with the purpose of protecting art ex ante may adequately resolve the shortcomings of tort and contract law. These private law realms assign responsibility after harm (at best) but do not reliably shape ex ante behavior in a market defined by opacity, under-enforcement, and irreversible loss.
Tort law’s plaintiff-dependent nature creates a large gap in the art world through obstacles like proximate cause and the fact that collectors do not have a legal duty to the world at large to protect their artworks, precluding any sort of protection for the artwork if it gets damaged or destroyed. As sad as it may be, if animals don’t get standing, it sure is true that artwork lacks standing as well.3 For example, if PG&E is responsible for a wildfire that destroys a collector’s multi-million dollar art collection, it is highly unlikely that proximate cause would account for the plaintiff’s entire loss.4 More notably, however, no amount of monetary damages can replace a culturally significant artwork.
This latter problem is exactly why insurance fails to adequately respond to the problem of lost or damaged artwork. Insurance compensates financially (and partially) but, obviously, cannot bring a culturally significant artwork back to life.5 This piece of history will forever be lost, precluding future generations from the privilege to enjoy the artwork. Insurance’s failure to adequately protect collectors without going insolvent has led to many collectors choosing to go bare, especially in wildfire and floor-porn areas across the United States that need it most, like California, Texas, and Florida. Insurance also neglects to monitor actual prevention practices, failing to fully regulate the behavior of collectors to engage in better risk-mitigating practices to protect their artworks.6
Ex ante duties are justified where private autonomy produces externality, which, here, looks like culturally irreversible loss that private remedies fail to redress. The goal is not to eliminate risk entirely but to impose baseline, risk-aware custodial practices calibrated to foreseeability and catastrophic downside. Predictable loss may be prevented by standardizing minimum precautions statewide and creating compliance and monitoring infrastructure that seeks to accomplish the means of protecting artworks.
A collector-facing regime must be threshold-based to avoid regulatory overreach and focus on the subset of works where the stakes and risks justify intervention. This regulatory approach ought to operate via a value threshold of individual artworks purchased for over $10 million.7 To avoid hard coding an arbitrary number that erodes over time, this threshold should be adjusted for inflation, or possibly expressed as a moving benchmark tied to appraisal value.8 The regulatory goal is to target works whose loss would be catastrophic in magnitude and not to capture an ever-expanding swath of ordinary collecting as nominal prices rise. This threshold is also important to keep the regime administrable and proportional. Imposing full custodial compliance obligations on every art collector would be both administratively unrealistic and normatively oppressive.
Baseline duties ought to translate “reasonable care” into a verifiable, ex ante process that is management to both exercise and regulate. These baseline custodial obligations ought to focus on risk assessment and disclosure to regulators.
The plaintiff-dependent nature of private law precludes the law from adequately regulating collectors’ behavior. As a result any sort of regulatory framework must rely on enforcement mechanisms that do not require a harmed plaintiff. Some options could include administrative penalties for noncompliance or a sort of tax incentive rewarding responsible collection practices.9
[1] UNESCO, Damaged cultural sites verified during armed conflicts (tracking destruction of cultural heritage sites globally); Intergovernmental Panel on Climate Change (IPCC), AR6 Synthesis Report: Summary for Policymakers (2023) (finding increased frequency and intensity of climate-related extreme events); Federal Bureau of Investigation, Art Theft Program—National Stolen Art File (describing federal tracking of stolen artwork).
[2] John C.P. Goldberg & Benjamin C. Zipursky, Torts as Wrongs, 88 Tex. L. Rev. 917 (2010); see also Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (N.Y. 1928); Restatement (Third) of Torts § 29 (Am. L. Inst. 2010).
[3] Cetacean Cmty. v. Bush, 386 F.3d 1169 (9th Cir. 2004); Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018).
[4] PG&E Corp., Statement on Company’s Guilty Plea Related to 2018 Camp Fire (June 16, 2020).
[5] Indemnity Contract, Int’l Risk Mgmt. Inst. (IRMI) (defining insurance as indemnity-based compensation).
[6] California Assembly Insurance Committee, FAIR Plan Background (Jan. 2026) (growth of last-resort wildfire insurance policies).
[7] The Art Basel & UBS Art Market Report 2025 (Auctions section) (describing the outsized share of market value represented by $10 million-plus works and reporting year-to-year changes in that segment).
[8] Internal Revenue Service, Inflation-adjusted tax items by tax year (Dec. 1, 2025) (describing how inflation adjustments preserve the real value of thresholds and benefits); Rev. Proc. 2025-32 (Oct. 9, 2025) (example of thresholds expressly “adjusted for inflation”).
[9] Cong. Rsch. Serv., An Overview of the Corporate Income Tax System (Apr. 24, 2023) (noting that tax expenditures are used to encourage certain behaviors); U.S. House Comm. on the Budget, Witness Testimony (June 22, 2023) (stating that tax incentives attempt to shift taxpayer behavior in ways Congress desires).