Dec 31, 2007

2007 in Review


One of the best things about the end of the year is the chance to catch up on things I've missed out on during the year. I love the year-end best music lists, all of which are helpfully compiled on largehearted boy. Movie lists are great as well, though many of the Onion's favorite movies have yet to appear in most theaters. Dahlia Lithwick, the always-excellent legal reporter for Slate also runs down the "Bush administrations Dumbest Legal Arguments of the Year".

It's also been an eventful year in the cultural policy world, and in that spirit I've compiled the Top Ten Cultural Property events of the past year.

10. The Major theft in Brazil of Picasso's Portrait of Suzanne Bloch and a work by Brazilian artist Candido Portinari from the greatest South American Art Museum, the Sao Paulo Museum of Art. Much of the subsequent US media coverage of the theft has misleadingly depicted the Sao Paulo Museum of Art as a poor and bumbling institution that couldn't afford insurance. That's highly misleading, because even the wealthiest institutions have difficulty insuring their works. It's expensive to insure a work worth $100 million, and its often more cost-effective to spend that money on security. Of course the security was not up to the task in this case, but one wonders if a major theft of this nature from an American or European museum would be so quick to blame the museum?

9. The still-to-be revealed extent of the forgeries created by Shaun Greenhalgh, who lived in Council Housing in Bolton with his aging parents. His forgeries fooled the British Museum, the Art Institute of Chicago, and some of the world's leading experts on Gauguin. The most surprising aspect may be the breadth of the forged objects which ranged from an ancient Greek kouros to Egyptian to ancient cuneiform to a sculpture by Gauguin. How many more Greenhalgh's are on display now? We don't know for sure. It calls to mind Orson Welles' final masterpiece F for Fake: "It's pretty but is it art? How is it valued? The value depends on opinion, opinion depends on the expert, a faker ... makes fool of the experts - so who's the expert? Who's the faker?"

8. The recovery in August of three Picasso works stolen from the artist's granddaughter in February.

7. Another major story is the state of antiquities--discovered, displayed, stolen-- in Iraq.

6. The theft in August in Nice France, in which thieves stole 4 works by Monet, Sisley, and Bruegel. It's probably not possible to sell these works on the open market, but at least two of these paintings had been stolen in 1999. A theft to order seems the likely explanation.

5. A significant continuing story is the increasing number of WWII-era art claims.

4. In October da Vinci's Madonna of the Yarnwinder was recovered from a Solicitor's office in Glasgow, four years after its theft from Drumlanrig Castle. It was a major recovery because it was a da Vinci, but also because it was recovered in a solicitor's office. I'm looking forward to more details as the criminal trial unfolds in 2008.

3. A major story in the UK is the trouble for arts and museum funding in the face of the London Olympic bid. This funding shortage could destroy much of what makes the UK cultural policy tick, including the Waverley limited export scheme, the Portable Antiquities Scheme, and arts funding generally.

2. A major milestone this year was the legal claims brought by Iran in England to seek to block the sale of antiquities. The first was Iran v. Berend [2007] EWHC 132 (QB) (an unsuccessful attempt to block the sale of a limestone relief from Persepolis). The other major dispute involved chlorite objects from the Jiroft region of Iran. The High Court ruling Iran v. Barakat Galleries Ltd. [2007] EWHC 705 held Iran was not able to establish an ownership interest, however this was overturned by the Court of Appeal in Iran v. Barakat Galleries [2007] EWCA Civ 1374. These decisions received surprisingly little media coverage, but will have long-lasting consequences for years to come as they have extended the standing of the 1970 UNESCO Convention, and provided important precedent for other nations which may seek to prevent the sale of antiquities in London's bustling antiquities markets.

1. The story I found myself writing the most about this year was the interminable dispute between Italy and the Getty, which finally culminated in an agreement this summer for the return of dozens of important works to Italy. The dispute has a number of related stories, including the ongoing dispute over the Bronze Statue of a Victorious Youth, and the Marion True/Robert Hecht criminal trial in Italy. Will it fundamentally change the antiquities trade? Does it signal the end of the universal museum? Will cultural policy matter in nations other than Italy? Perhaps 2008 has the answer to those questions.

Dec 24, 2007

Happy Festivus

I too find Tinsel distracting. Happy Festivus everybody, normal posting to resume later this week.

Dec 21, 2007

Iran Wins Barakat Appeal


The judgment in Republic of Iran v. Barakat Galleries [2007] EWCA Civ 1374 has been released today. At the High Court, Gray J decided in favor of the gallery because, first and foremost, the ownership declarations Iran relied on were in his eyes insufficient. The Court of Appeal reached the opposite result by holding that a claim for conversion is tenable so long as the various rights granted to Iran amount to an ownership interest under English law. Pictured here is a chlorite vase on the Barakat Gallery website, of the "intercultural style" similar to the objects now recovered by Iran.

At issue were "eighteen carved jars, bowls and cups made from chlorite. Iran alleges that they date from the period 3000 BC to 2000 BC and originate from recent excavations in the Jiroft region of Iran which were unlicensed and unlawful under the law of Iran."

Two preliminary issues were raised:

i) Whether under the provisions of Iranian law pleaded in the Amended Particulars of Claim, the claimant can show that it has obtained title to the Objects as a matter of Iranian law and if so by what means, and

ii) If the claimant can show that it has obtained such title under Iranian law, whether this court should recognise and/or enforce that title.

The Court of Appeal answered both in favor of Iran.

In a startling rebuke to Gray J, the Court of Appeal noted that the lower court had concluded the relevant Iranian law was "both penal and public in character" and as a result it "could not be enforced in this country". As the Court of Appeal noted

This also was a conclusion which the judge described (para 100) as "a regrettable one", and added (presumably not having been informed that the United Kingdom had ratified the UNESCO Convention) that the answer might be the one given by Lord Denning MR in the Ortiz case, namely an international convention on the subject.

Emphasis added.

Importantly, the Court of Appeal noted that "it is important to bear in mind that it is not the label which foreign law gives to the legal relationship, but its substance, which is relevant. If the rights given by Iranian law are equivalent to ownership in English law, then English law would treat that as ownership for the purposes of the conflict of laws." At issue was whether Iran's rights were sufficient to give it a claim for conversion under English law. The distinction from the lower court turns not on the legal significance of a proclamation such as "Iran declares itself the owner of all undiscovered antiquities"; but rather in the individual rights which Iran has given itself in these objects. If the sum of these rights amounts to ownership under English law, then Iran has a viable legal claim. As the Court of appeal noted in para. 80:

We consider that this is an arid issue. Given our conclusion that the finder did not own the antiquities (and the fact, as was common ground, that the owner of the land from which they came had no claim to them), there are only two possibilities. Either they were "bona vacantia" to which Iran had an immediate right of possession and which would become Iran's property once Iran obtained possession and which could not become the property of anyone else or they belonged to Iran from, at least, the moment that they were found. We consider that the former alternative is artificial. Iran's personal rights in relation to antiquities found were so extensive and exclusive that Iran was properly to be considered the owner of the properties found.

The question then became, under English law does the Iranian interest in the objects support a claim in conversion, and if so is the claim founded on a penal or public law? The relevant 1979 Legal Bill was not penal with respect to ownership of antiquities, though other segments dealing with criminal penalties for unlawfully excavating or dealing with antiquities may have been. The court, distinguishing between export restrictions and asserting ownership. The former is clearly a public law and unenforceable ablsent another treaty obligation while the latter is justiciable. When a state owns property in the same way as a private citizen "there is no impediment to recovery."
King of Italy v de Medici (1918) 34 TLR 623.

Though the court did recognize difficulty in enforcing Iran's sovereign authority, the Court of Appeal classified the claim as a "patrimonial claim". In distinguishing this claim reference was made to US precedent,
United States v Schultz, 333 F 3d 393 (2d Cir. 2003) in which the Second Circuit recognized an Egyptian patrimony law even though Egypt had never reduced the objects at issue to possession. Importantly, the Court of Appeal reasoned that even if it was wrong in not characterizing the claim as the enforcement of foreign public law, the claim would still not be barred because there exists no "general principle that this country will not entertain an action whose object is to enforce the public law of another State." In supporting this principle reference was made to the UNESCO Convention, the UNIDROIT Convention, the Commonwealth Scheme (which has not apparently been fully implemented), as well as the relevant EU directives.

The appeal is a tremendous gain for source nations, and establishes English courts will in fact recognize foreign ownership declarations even when they are not explicit, so long as they grant rights to the source nation similar in nature to ownership requirements under English law. In the initial AP news story Fayez Barakat the owner of the gallery indicated "This means that the Iranian government could claim every Persian item at a British Museum, and that doesn't make any sense". He's right that it doesn't make any sense, because its patently ridiculous, and indicative of the ridiculous exaggerations which often occur after a ruling like this. The British Museum will not be emptied of its Persian collection because of this decision; rather antiquities dealers are unable to sell new and illegally excavated objects from Iran.




Olympics or Arts

A steady string of arts venues have suffered closure in the UK in recent weeks. The Komedia in Brighton has had to shut its doors; the Windsor Arts Centre closed its doors last friday; and earlier this month the Lemon Tree in Aberdeen suddenly shut its doors as well. I should note in the interest of full disclosure that my wife had been in charge of marketing at the Lemon Tree for nearly a year, and its sudden closure came as quite a shock. It was hardly the season's greetings we were expecting from the Aberdeen City Council. The Lemon Tree closing was particularly disappointing for us, as it was a great venue which did a lot of community and charity work; and in many cases funding was secured which actually made these events profitable.

Sadly the trend seems likely to continue. And what is the root cause? Arts funding is always a battle, especially for real new and creative enterprises. In many cases much of the money the arts council and other organizations had previously given these organizations has been diverted to the Olympic fund. Not only that but corporate and other sponsorships are diverted to the Olympics as well. It's not only arts funding either.

The Portable Antiquities Scheme, a pioneering community archeology project will likely have its funding cut this year. Will Anderson rightly points out that "to halt the PAS now that it is operating so successfully would be folly. All so they can build another few domes for the Olympics. It is the department of 'Culture' Media and SPORT and its proxy the Museums, Libraries and Archives Council, that deserve to be scrapped".

Colin Renfrew had an excellent summary of the scheme's benefits in an opinion piece in the Guardian earlier this week. He points out that the scheme is "starting to transform our understanding of many aspects of the past". Seventeen PhDs have used PAS data. I know it featured prominently in my thesis as an excellent and pragmatic way to effectively regulate sites in source nations. In terms of concrete discoveries, a Viking age cemetery was discovered in cumbria, a Roman bowl bearing the names of forts on Hadrian's wall has been acquired by the British Museum and others. Perhaps most importantly, "the scheme has also taken the initiative in policing the internet for objects that should be reported under the Treasure Act and has promoted a code of practice".

The situation isn't any better in Scotland either, where funding for the 2014 Commonwealth Games in Glasgow will likely begin to increase as well. I don't doubt that holding the Olympics in London will give a number of benefits to London and the UK. Perhaps if most British citizens were given a choice maybe they would choose Olympic funding over the arts and culture. However, I think those in charge should be upfront about the hidden costs and very real cuts which this Olympic bid will cause.

Dec 20, 2007

Major Theft in Brazil


Thieves have stolen works by Pablo Picasso and Candido Portinari from the Sao Paulo Museum of Art. The theft was made known early Thursday morning. The stolen Picasso is pictured here, Portrait of Suzanne Bloch, 1904. Early estimates place the monetary value of the stolen works at $100 million USD. However these are major works, the Picasso is from the artist's blue period. Portinari is a major Brazilian artist. The AP story is here.

Dec 18, 2007

Nostoi (UPDATE)


The Nostoi ("Returns") epic is mostly lost, but the bits and pieces which have survived indicate it tells the story of the return home of the Greek heroes after the Trojan War.

It is perhaps apt then that Italian authorities on Monday called the display "Nostoi: Returned Masterpieces" when they unveiled 68 antiquities which have recently been returned to Italy. Soon to join the list is the Euphronios Krater, which is slated for return from the Met in January.

Livia Borghese and Jason Felch have the story in the LA Times. Elisabetta Povoledo has a similar story in the NY Times, including a slide show by the AP and Italian Culture ministry. This image may be my favorite of the bunch, the Griffins attacking the doe. Objects were returned from the Getty, the Museum of Fine Arts in Boston, Princeton, and the Met. Also, some objects from the Royal Athena Galleries in New York were returned as well.

As might be expected, Francesco Rutelli the Italian culture minister and vice prime minister was quick to point out the significance of these returns saying, "The odyssey of these objects, which started with their brutal removal from the bowels of the earth, didn't end on the shelf of some American museum... With nostalgia, they have returned. These beautiful pieces have reconquered their souls."

Ultimately, the display shows the results of the Italian campaign which by necessity eschewed international law, and American law and instead went right to the heart of the matter using public pressure and the media along with the high-profile and ongoing trials of Marion True and Robert Hecht. At the press conference, Rutelli claimed that this strategy has "[brought] about radical changes in the trade of looted antiquities". That may be true in a limited sense I suppose, but only I think when the antiquities are backed by strong political will in source nations. What about the trade in antiquities from South America or Iran and elsewhere? I'm not sure this strategy will impact those objects. I'm not sure either that this new strategy will alter the idea of the Universal Museum, which seems largely at odds with the policy of many source nations. Ideally the Italian accords will continue to allow the US and Italy to work together to continue to share objects but also to prevent the acquisition of illicit antiquities in the future.

UPDATE:

Sarah Delaney has more in yesterday's Washington Post, with more pontificating by Rutelli including this: "if we dry up the waters of illegal art trafficking it will be much more difficult for tombaroli and others to operate." He praised as well the "new standards of ethics that American museums have adopted". First among these is the Getty's stringent new acquisition policy. Also, museums who cooperate will earn continued loans.

David Gill has more on the official handlist of objects in the display, including where objects came from, and a breakdown of the type and composition of objects. As he points out, "15 pieces were represented by South Italian pottery."

Dec 17, 2007

Stewart Gardner Resolution?


Is a resolution eminent in the largest art theft in history? Perhaps, with word this morning that a Boston grand jury is scheduled to hear evidence this week into the 1990 theft from the Isabella Stewart Gardner Museum, estimated at between $300-500 million. One of the stolen works is the Concert by Vermeer.

Stephen Kurkjian of the Boston Globe has the story, in which he was given details of a subpoena from a former museum employee who worked there at the time.

The former worker said two FBI agents questioned him about his recollection of the theft several days ago and handed him a subpoena to testify before the grand jury in Boston tomorrow.

The agents told him they were gathering facts on the case and were hoping that the grand jury would "shake things up" in the long-stalled investigation, said the former worker, who asked not to be identified.

The agents did say that they were pursuing the possibility that the theft may have been carried out by three individuals - and not two as has long been publicly believed, the former employee said.

On Friday, a spokeswoman for US Attorney Michael J. Sullivan's office declined to comment on the grand jury, stating that the office never confirms or denies the existence of such a session.

A spokeswoman for the Gardner Museum also declined comment.

The former museum employee read portions of the subpoena to the Globe and said it was signed by Brian T. Kelly, a veteran prosecutor in the US attorney's office. Kelly has helped spearhead the federal investigation into and the crackdown of James "Whitey" Bulger's criminal enterprise.

It is often said that a grand jury is both a sword and a shield. It protects the rights of criminal defendants, but also allows prosecutors to use their subpoena power to compel testimony. Whether a resolution will emerge remains to be seen, but right now there are more questions than answers, most notably: where are the paintings?

Dec 16, 2007

A Cultural Property Registry?

On Thursday Donn Zaretsky at the always-enjoyable art law blog continued his discussion of the fake Gaugin Faun statue. Specifically, he wondered what kind of international registry might have prevented this kind of fraud, and asked me how I would envision a registry. I have a few thoughts on the subject, but they're still in an early stage.

I had originally intended to put discussions of a potential registry and some concrete reforms of the market which are needed in the thesis. It's not in there though because I simply ran out of space, and I'll have to save those ideas for some future work I suppose. I don't have a definitive answer for how an international registry might be constructed. Ideally an international body such as UNESCO would step forwards and create one, however that is far too ambitious an undertaking for that organization given its current state of funding. The industry itself could choose to regulate itself more closely, but it gains more profit by not revealing information information. In the end, the art market needs a registry like MLB, the NFL and other sports leagues need a test for Human Growth Hormone. But neither is likely to arise soon.

It's a difficult potential issue because there a number of serious obstacles to creating a registry. The Art Loss Register and other databases exist, but they aren't the answer to the whole problem. The current market structure earns more money without a registry. Here's how: if I have a painting and want to sell it I can take it to an auction house. Now I'm a lowly PhD student, and that's certainly not a lucrative career choice. If someone were to purchase the painting from me directly they would have a great deal of bargaining power if they knew my relative financial position. The painting might be worth $20,000; however the purchaser may realize my financial position and negotiate the deal lower. Auctions take place anonymously and avoid this. In many if not most transactions, we are unaware who the buyer and seller are. For the fake Faun, the consignor was Mrs. Greenhalgh using her maiden name. Had the buyer known she was living in council housing, might they have been less inclined to purchase the object, or even have more cause to doubt its authenticity? I think so certainly.

A good recent article in the Florida Law Review proposes a torrens registration scheme for works of art. Bruce W. Burton, IN SEARCH OF JOHN CONSTABLE'S THE WHITE HORSE: A CASE STUDY IN TORTURED PROVENANCE AND PROPOSAL FOR A TORRENS-LIKE SYSTEM OF TITLE REGISTRATION FOR ARTWORK, 59 Fla. L. Rev. 531 (2007). The introduction lays out the main argument:

At least forty percent of valuable artwork circulating in the marketplace is either forged or misattributed. Apart from this significant problem of art authenticity, the chains of title showing current ownership of many genuine and properly attributed objects are defective. These defects are due to incompleteness of the historical records, innocent error, lapse of time, fraudulent manipulation, or theft. This Article explores the dual complexities of properly establishing a valuable art object's correct provenance-that is to say, determining both the authenticity as well as the chain of legal ownership of the work. This Article also examines the six principal legal doctrines that human society has designed to resolve competing ownership claims and the significant moral shortcomings of each doctrine. Most significantly, this Article presents a proposal for a much-needed reform in the law of art provenance.
The proposed reform is modeled on the Torrens land-title registration system in effect in Australia, parts of the United Kingdom, and a handful of states in the United States. The reform would offer the following: (1) a legal system for conclusively registering both the ownership and authenticity of any valuable piece of artwork; (2) fundamental fairness to all parties claiming an interest in the artwork; (3) assured financial compensation to any innocent party whose claim to the artwork has been injured or lost by operation of the Torrens-like system; (4) permanent and visible public records of art ownership; and (5) enhanced market stability because of the certitude and transparency afforded to art consumers by such a title registration system.

Burton makes a good case, but it would rely on individual states to implement the system, creating a patchwork of coverage. That would be better than nothing I suppose. In the end buyers of art, and even authenticators get excited by the prospect of rediscovering "lost" art or works which have gone missing. It can happen in legitimate ways as evidenced by the trash-rescue earlier this year. However, such a system leaves open the possibility of forgers, and also creates havoc in the antiquities trade for source nations and sites. The best advantage of a registration system would not necessarily be that it prevents these kinds of fraudulent transactions today, but that it builds up a body of knowledge about an object's provenance so as to prevent such mistakes in the future. As it stands now, we still aren't certain how many more forgeries by Greenhalgh may have been sold.

Italy, Culture and Politics

Barbie Nadeau has an interesting article online at Newsweek. It makes the same kind of point that a number of commentors, me included, have noticed. Namely, that Italian politicians are often adroit at using Italian heritage for political gain.

Last month Veltroni and Rutelli unveiled another gem on the Palatine Hill: the "Lupercale," the ancient grotto where, legend has it, a she-wolf nursed Rome's founder, Romulus, and his twin brother, Remus. The showing of the Lupercale delighted Italians with the suggestion that the legend might be true. But while the romantics were studying the mythology, the cynics were asking questions about just why the finds were being shown off at that time. The grotto, after all, was discovered last January, during the restoration of Augustus's palace and the iconic collapsed wall. Back then Irene Iacopi, the archeologist in charge of the Palatine Hill, said she discovered the cavern, which is covered with frescoes, niches and seashells, after inserting a 52-foot probe into the ground. So why did it take almost a year for the authorities to make a public announcement about the find?

The answer, it would seem, lies in politics and power. Just days before the showcasing of the Lupercale, Silvio Berlusconi had disclosed his plans to form a new political party that would compete with Rutelli and Veltroni. The news about the grotto, however, effectively eclipsed Berlusconi's news, leading the former prime minister to describe the timing as "suspect."


It's an interesting point I think. But when culture is such an important political issue in Italy, it seems only natural for politicians to manage the news in much the same way the President might shape the news with respect to the economy, the War in Iraq, or other matters.

I do have issues with one claim made in the article though. It is claimed that "Getty Museum curator Marion True went on trial in Rome for conspiracy and receiving stolen artworks for the Los Angeles institution. The trial, which began during Berlusconi's term and is still ongoing, has directly led to the return of more than 100 artifacts from other American museums that purchased items of questionable provenance, including 40 from the Getty." I think that may be overstating the importance of the True trial. Certainly it has had an impact, but more important is the concrete Polaroids and other evidence detailed in the Medici Conspiracy. That evidence came as a result of investigation of a theft of objects from Italy which were later traced to Switzerland. That investigation, of which the True prosecution has emerged, is the root cause I think.

Dec 13, 2007

Forgery Revealed in Chicago


Apologies for the light posting this last week. I've been away in Dubai with the wife. I'll talk about why, and talk a bit about my impressions tomorrow. For now I want to talk about the big story which was revealed while I was away: the forgery by Shaun Greenhalgh, whom I talked about earlier here.

Tyler Cowen first revealed the Paul Gauguin sculpture was a fake after Jim Cuno told the staff of the Art Institute of Chicago was a fake. Donn Zaretsky helpfully collects links to the prominent coverage.

The Art Newspaper has perhaps the best coverage, as it seems it tracked the sculpture to Chicago. Last month the three members of the Greenhalgh family were sentenced over the Amarna Princess. They discovered a Gauguin sculpture had been created by Greenhalgh after talking with Scotland Yard. They then tracked the work to Chicago.

The forged work was consigned to Sotheby's by "Mrs. Roscoe", the maiden name of Olive Greenhalgh. It was sold for
£20,700. The London dealers Howie and Pillar purchased it, and it was later sold to the Art Institute for $125,000. The purchase was hailed as a success. Martin Bailey asks why nobody questioned the authenticity? The real sculpture has been missing, the forgery was based on a faun sketch dating to 1887. It seems Sotheby's is expected to reimburse the Art Institute of Chicago. I think this reveals at least two troubling matters.

First, how many more forgeries are out there? How easy is it to trick authenticators? The best in the world looked at this sculpture and were duped. Perhaps they wanted to believe a little too much. Also, when visitors (and even experts) looked at the sculpture did it convey emotion? How much did that have to do with the beauty of the object itself; and how much was related to the idea that this small work was created by a "great" artist, Paul Gauguin?

Second, I think it reveals the continuing need for more provenance information in art and antiquities sales. The answer may be for an international registry which tracks buyers and sellers when objects are bought and sold. Until such a system emerges, the market continues to leave itself open to this kind of embarrassment.

Dec 4, 2007

Lex Situs Conference last Friday


Last Friday in London I had the great pleasure to present a bit of my own work at the Lex Situs seminar organized by the Institute of Art and Law and sponsored by Withers LLP. Incidentally there is another seminar tomorrow which looks to be interesting as well, on the consideration of anti-seizure legislation.

It was an enjoyable afternoon, and a lot of fun for me to hear what people like Prof. Norman Palmer, Kevin Chamberlain, and Marc-André Renold had to say on the topic, as I've read and relied on their work a great deal in the last few years.

The highlight for me was hearing from Jeremy Scott, of Withers LLP who represented Iran in the recent high court case with Barakat galleries. It may be useful for people to know a bit about what the speakers had to say on this rule. For the non-law readers, apologies if this post is a bit lawyerly, but some of these private legal concepts are a bit involved.

The lex situs rule essentially dictates that when a stolen piece of cultural property crosses national boundaries, and laws conflict, the law of the jurisdiction where the sale took place (i.e. lex situs) will apply. This is a nearly unanimous rule which applies to movable objects. Two speakers gave particularly good insights.

Dr. Janeen Carruthers, a reader at the University of Glasgow gave a very informative overview of the whole scope of the lex situs rule. It was great to hear her thoughts, as an expert on Private International Law. She had some interesting things to say, especially arguing clandestine removal may have many things in common with the clandestine removal of antiquities, and this similarity may be a useful tool for arguing the lex situs rule should not perhaps hold the prominent position it does today.

I also particularly enjoyed hearing Professor Johan Erauw of the University of Ghent in Belgium talk about Talk about a new Belgian amendment to the Code of Private International Law in 2004 which provided for a
lex originis choice-of-law rule in certain limited circumstances. It was an interesting amendment of the general rule, but he argued persuasively that the rule was substantially weakened, and the reasons may be tied to certain Belgian museums, who were concerned about losing some or all of their collection with a new more generous rule for source nations.

Given such a distinguished panel, I set the bar pretty low for myself. My main argument, and perhaps its one that's more common sense than anything, is that the lex situs rule is ill-equipped to regulating and limiting the illicit trade in art an antiquities.
I do think a convincing and compelling policy argument can be made that the general lex situs rule governing title to movable objects across national boundaries should be limited in some situations, and in fact this is the approach taken by Belgium.

When public international law offers no remedy, claimants are often forced to seek redress through private law. Of course all nations forbid theft; and every jurisdiction recognizes that a thief cannot possess superior title to the original owner. The classic dispute in cultural property litigation does not involve the original owner and the thief, but rather the original owner and a subsequent purchaser. Both of these parties are relative innocents. The difficulty in private international law disputes hinges on the ways in which different states have chosen to allocate burdens, rights and responsibilities between these two relative innocents.

States could take the Belgian approach and use another choice of law principle. There could be a call to reform good faith purchaser rules in Civilian jurisdictions. We might decide that art and antiquities should be registered when they are bought and sold. These all strike me as plausible and sensible reforms, however we must start from the position that the current default legal framework does not effectively distinguish illicit objects. The problem, and its one that’s been noted by many cultural heritage scholars, is that nations and lawmakers too often respond to the illicit trade rather than create a workable legal regime to prevent problems before they occur. The Belgian example strikes me as an important and noteworthy exception to this rule.

Should there be an antiquities market in some form? If the answer is yes, as it currently stands there is not a workable system to ensure antiquities are licit. To erect such a system will require substantial compromise on the part of source nations and the antiquities market. The market will have to radically shift the way it conducts itself to provide adequate safeguards that antiquities are legally excavated or from older collections. In turn, it seems likely that source nations will have to find a way to provide licit antiquities to meet market demand. Until such a compromise is brokered, courts in market nations will continue to be faced with difficult issues.

It was a really enjoyable seminar, and I'd like to thank the organizers and the Institute of Art and Law for being kind enough to allow a PhD candidate to present alongside such an impressive panel.

Dec 3, 2007

Antiquities Arrest in Greece

The AP is reporting today that 2,308 ancient coins have been seized and a 70-year-old barber arrested in northern Greece. The coins mainly date from the Roman and Hellenistic peroid.

Several coins bore the heads of Alexander the Great, the Macedonian warrior king, and his father King Philip.

The man was arrested Sunday near the town of Veroia, 490 kilometers (305 miles) north of Athens. He has been charged with antiquity smuggling and taken into police custody.

Police said they searched the man's home and unexpectedly discovered the coins after he had been identified by two juvenile robbery suspects as the person who bought their stolen mobile phones and other items.

Catching Up

Apologies for the light posting in recent days. I've been quite busy in the last week. I was fortunate enough to submit my thesis last week, so hopefully the oral examination (with a good result) will take place soon. Also, I had the opportunity to present a bit of my own work at a very interesting seminar on the lex situs rule organized by the Institute of Art and Law, and Withers LLP, which has its own Arts and Cultural Assets Group. I'll post more on the event later this afternoon. For now I'll just give a rundown of some very interesting events which have taken place in recent days.

  • Donald Trump's proposed golf-o-rama just north of Aberdeen has been rejected by the Aberdeenshire Council. To be clear, Trump's development had little to do with golf, and more to do with holiday homes, a luxury hotel, and mega-houses.
  • Some of the staff at the Portable Antiquities Scheme have started to map finds with google maps.
  • Australian art-authenticator Robyn Sloggett estimates perhaps 1 in 10 works on the market are fake.
  • The Hellenic Society for Law and Archaeology reports on the new Greek Cultural Goods legislation, which will appoint a special cultural heritage prosecutor and purports to extend the expansion of Greek penal law even when crimes have taken place abroad.

Nov 29, 2007

Spoliation Advisory Panel


The Spoliation Advisory Panel has issued a decision on a claim for three works by Rubens, St. Gregory the Great with Ss. Maurus and Papianus and St. Domitilla with Ss. Nereus and Achilleus 1606–1607; The Conversion of St. Paul, c.1610–1612 (pictured here); and
The Bounty of James I Triumphing Over Avarice, for the ceiling in the Banqueting House, Whitehall, c.1632–1633. The panel's full report on the case is here.

The panel is an alternative to legal action, which rules on both the legal claims but also the broader ethical questions implicated in these disputes. The panel issued its ruling Wednesday that art collector Franz Koenigs lost these works due to "business/economic reasons" and not to the Nazis. A translation of the Dutch Wikipedia page on Koenigs is here. Christine Koenigs, the granddaughter of the collector sought the three Rubens from the Courtauld Institute of Art in London. The panel ruled these three works had been used as collateral to a bank in Hamburg. The bank then moved to the Netherlands, and in 1940 it liquidated its assets before the Nazi invasion, thereby calling in Koenigs' loan.

Nov 27, 2007

Greek Charges Dropped


Some of the criminal charges against Marion True have been dropped in Greece. Marion True was accused of illegally acquiring this 4th c. BC gold funerary wreath. The wreath had been returned to Greece back in March.

True still faces charges for illegally possessing a dozen antiquities found at her holiday home in Paros last year.

The Hellenic Society for Law and Archaeology has a good overview of the decision. The criminal act allegedly took place in the US, but according to US law was a misdemeanor. As the prosecution took place over five years ago the charges were dismissed. I'm a bit unclear what the US law in question may have been, perhaps future news reports will update that, and I'll post an update when i learn more. In the end the result isn't surprising. Surely if serious wrongdoing was implied then the federal prosecutors would have been eager to pursue a prosecution under the NSPA, or at the least initiate forfeiture proceedings.

Shocking theft... in 1994


Is it any wonder that 7% of the Italian GDP comes from Mafia crime? The Italian city of Catania on Sicily has announced the disappearance of 51 works of art, after a 1995 document regarding their disappearance was recently "rediscovered" and provided to the carabinieri. The works were taken from the art gallery, housed in the Ursino castle pictured here, and were discovered by a new Catania councillor responsible for culture, Silvana Grasso. This is probably not the kind of news Francesco Rutelli wanted on the heels of the discovery of what may be the Lupercale, under Augustine's palace on the Palatine Hill.

At least one step which should be taken by all museums, and even individuals who own art, is to take a photo of the works. One of the works stolen is a Rembrandt, but there's no photograph of the work, rendering recovery nearly impossible. If there's an image, recovery is possible. Ask Peter Crook, who recovered two works by his grandfather GF Wetherbee from the US via the Art Loss Register.

Nov 25, 2007

Rare Good News in Iraq


There appears to be some rare good news in Baghdad of late. There are indications that attacks in Iraq are way down. Also, John Swain of the Sunday Times reports today on the likely reopening of the Baghdad Museum next month, according to Amira Emiran the acting director.
Visits will be confined to just two galleries on the ground floor containing Assyrian and Islamic treasures that are too large and heavy to be easily removed. The remaining 16 galleries will remain empty and closed and security will be tight. Nevertheless, Iraqi and American officials are keen to portray the opening as a sign that security in Baghdad has improved after the chaos of the past few years...

The Assyrian Hall has monumental sculptures, including stone panels from the royal palace at Khorsabad and two winged bulls. The other large gallery that is opening, the Islamic Hall, has the eighth century mihrab from the Al-Mansur mosque in Baghdad. It is also hoped to display 10 monumental Parthian sculptures from Hatra in the courtyard which links the two galleries and through which visitors will pass.

The decision was welcomed by Matthew Bogdanos, a colonel in the US Marine Corps reserves, who investigated the theft and destruction of thousands of artefacts from the museum and from thousands of Iraq’s poorly protected historic sites where looting has been conducted “on an industrial scale” since the war.

Bogdanos, a New York prosecutor, said: “I don’t know if there is any such thing as a right or wrong moment to open the museum. But great things are won by great risk and the museum should open and it should stay open. If it means doubling security, then double security.”

Estimates of the number of missing objects vary, but about 10,000 objects are probably still missing, out of a total of 15,000 objects taken. One piece still missing is the ivory plaque pictured above, Lioness Attacking a Nubian, 8th c. BC. News of the reopening is welcome news, especially given it was seldom open to the public in the two decades preceding the invasion of Iraq in 2003. The announcement was made last week at the meeting of UNESCO's International Coordination Committee for the Safeguarding of Iraqi Cultural heritage.


The news from Iraq is not all good however. The Bush administration is tempering its goals in Iraq, as military progress has been gained but the US will begin its major drawdown of troops following the "surge", (i.e. escalation). US Officials are lowering their expectations, dropping plans for an oil-sharing plan and regional elections. The increase has yielded some important military successes, reflected in the decrease in attacks, but this military presence is not sustainable. One wonders if the decision to reopen the museum was made by Iraqi's or if it was encouraged by their American counterparts. Even if it were the latter, the fact that Iraqis may now be able to view some objects safely is perhaps cause for cautious optimism.


Nov 20, 2007

The Getty Bronze and "Culture Property Wars"


The "Arts, Briefly" section in today's New York Times has a couple of interesting points today. First, Marion True went on trial in Greece for conspiring to acquire a gold funerary wreath, alleged to have been removed from Greece. Also, a judge in Pesaro, Italy dismissed a local prosecutor's claim to the "Bronze Statue of a Victorious Youth" found by fisherman in the Adriatic and currently on display at the Getty. When a repatriation agreement was reached in August for 40 other objects, Italian authorities said they would consider their case after the case in Pesaro was resolved.

Along those lines Lee Rosenbaum has an interesting series of posts on how to create a "ceasefire in the cultural property wars". She makes a number of excellent suggestions, including a need for full disclosure of acquisition policies, and to create a "consistent handling" of repatriation proposals. I agree with both those suggestions.

I have to raise some issues with her discussion of a consensus for future acquisitions. She gives the three dates normally given as cutoffs for new acquisitions:

  1. 1970, the date of the UNESCO Convention;
  2. 1983, the date the US implemented the Convention with the CPIA; or
  3. A 10-year "rolling rule" advocated by the Association of Art Museum Directors.

Those are all plausible dates, but I think Rosenbaum misses the point in discussing the Getty's new acquisition policy, and how it relates to the Getty Bronze. First, here's the Getty's revised acquisition policy:

For the acquisition of any ancient work of art or archaeological material, the revised policy requires:

* Documentation or substantial evidence that an item was in the United States by November 17, 1970 and that there is no reason to suspect it was illegally exported from its country of origin OR

* Documentation or substantial evidence that the item was out of its country of origin before November 17, 1970 and that it has been or will be legally imported into the United States, OR

* Documentation or substantial evidence that the item was legally exported from its country of origin after November 17, 1970 and that it has been or will be legally imported into the United States.

Rosenbaum then argues, "good faith counts. And it seems to me that this is the best argument for returning the Getty Bronze: There was plenty of 'reason to suspect it was illegally exported from its country of origin,' and plenty of people DID suspect it, at the time of the acquisition."

I think Rosenbaum misses the point of the new acquisition policy, because if the Getty were deciding whether to acquire the Bronze today, based on its new acquisition policy it could certainly do so. To be fair, you have to think like a lawyer. The "or" is critical. The Getty could hypothetically acquire the statue if any one of the three clauses are satisfied; it doesn't have to satisfy all three. The statue was found in international waters in 1964. Even assuming Italy was its "country of origin" the statue had left Italy by 1970, and it certainly was legally imported into the United States; as at that time the US did not enforce Italy's export restrictions. It's also worth remembering that absent a treaty agreement the US does not enforce the export restrictions of another nations. The reasons for that policy are complicated, and often don't seem to have a solid policy foundation, but that's the general rule followed in both the US and the UK.

These are difficult issues to be sure, but as I've argued I don't think Italy has a strong ethical or legal claim to the statue. Greece perhaps has an ethical claim, but not Italy. The most likely reason for the statue ending up in the Adriatic is it was taken from Greece, probably by Romans.


Nov 19, 2007

Evidence of a Flawed Market


BBC News has an overview of the sentencing of a Family of 3 Art forgers from Bolton, UK. Pictured here is the "Amarna Princess" a fake Egyptian statue which the Bolton Council purchased for more than £440,000. A gallery of a number of the forgeries is here.

Shaun Greenhalgh, 47, has been jailed for four years while his 83-year-old mother, Olive, has been given a 12-month suspended sentence for her part in the con. His father, George, 84, is to be sentenced at a later date.

For successful forgers, the trio had an unremarkable lifestyle. Despite having £500,000 in the bank they lived "in abject poverty", said police. Olive had never even left Bolton.


Much of the reporting of this arrest and sentencing focuses on the criminals themselves. Shaun Greenhalgh, 47, and his 83-year-old Mother and 84-year-old Father. I however agree with David Gill who asked back in October "
[W]hat checks were made? Who made them? And who double-checked in the [National Arts Collection Fund and the National Heritage Memorial Fund]?" From what I can gather, the checks were made, but the letters and other fake provenance was fabricated cleverly to appear genuine. In a market where few checks are made, these probably were far more comprehensive than what usually passes for provenance. Of course there is an eagerness to acquire valuable objects which can sometimes cloud judgment. This story echoes the Getty's purchase of an unprovenanced Greek kouros, which was purchased in 1983. As far as I know it is displayed today as "Greek, 530 B.C. or modern forgery".

Of course provenance research could alleviate some these problems, but the current state of the antiquities trade relies on limiting information rather than providing a full picture. If a man living with his parents in Council Housing can fool authenticators at the British Museum and auction houses, isn't it time for more thorough research when objects are bought and sold? I think so. The sad reality is that these fakes came with far better provenance information than many antiquities which are bought and sold today.

Nov 16, 2007

A Call for Antiquities Leasing

Peter Wendel, a Law Professor at Perpperdine University has written an interesting new article in the most recent edition of the Fordham Law Review, Protecting Newly Discovered Antiquities: Thinking Outside the "Fee Simple" Box, 76 Ford. L. Rev. 1016 (2007). A .pdf version is available here. Here's the abstract:

Newly discovered antiquities are “mixed goods.” They have a physical component (the object itself) and an intangible component (the archeological and historical information associated with the discovery). This dual nature justifies government intervention into the market, not to capture the positive externalities associated with the antiquity, but to minimize the negative externalities associated with the law of finders. When the typical finder excavates an antiquity, its historical and archeological information is severely damaged, if not destroyed. In response to this problem, source countries have enacted state ownership/retention statutes. These laws, however, have their own negative externalities. They create incentives for finders to turn to the black market to secure financial compensation and to destroy the historical and archeological information to make it more difficult to catch them. This raises the issue of which is worse: market failure or government intervention failure?

Source countries need to create a stronger incentive for finders to report their finds. In theory, this is easy: Pay the finders more. In practice, this is difficult because source countries tend to be antiquities-rich but revenue-poor. A possible solution is a “possessory estate and future interest approach” to newly discovered antiquities. If the finder reports the find, he receives a transferable term of years and the source country receives the future interest. A transferable term of years creates an incentive for the finder to go public with the find—the finder can profit from his or her discovery. The source country receives ultimate ownership of all newly discovered antiquities at minimal cost (Western museums will be the likely purchasers; they will pay for the cost of creating the incentive). A possessory estate and future interest approach could help end the current feud between source countries and Western museums, two entities that should work together to secure and protect newly discovered antiquities, not waste resources fighting each other.


It's an interesting approach. Wendel justifies his claim by using a law and economics rationale. What he's advocating is a kind of antiquities leasing, similar in concept to the practice in both England and Wales, and Scotland of rewarding finders. He starts from the position that the strong source regulation of nationalizing antiquities and prohibiting their export does not work. I think most can agree the current legal regime is not working. He then advocates giving finders a kind of limited temporary right, known in the Anglo-American legal system as a "possessory estate" and a "future estate" or ultimate vesting right would go to the source nation. That would allow finders of antiquities to profit off their discoveries, while allowing the source nation to ultimately receive ownership of the object.

In essence he's making an interesting claim for the use of antiquities leasing and a renewal of the idea of partage, the traditional practice whereby foreign archaeologists would get to take a portion of the discovered objects back to their European or N. American institutions. It's a pragmatic compromise, and one that may work well in practice. I envision substantial hesitation on the part of source nations to enacting such a system though.

I would welcome a discussion of the merits of this idea in the comments section.

Nov 15, 2007

Results of Italy's Telethon

Stefano Luppi of the ArtNewspaper (which has made some impressive updates to its website) has the results of Italy's antiquities telethon which took place Oct. 5-7. Here's an excerpt:

Culture minister Francesco Rutelli, as well as actors and opera singers, appeared on the state broadcasting channel RAI to describe the plight of the country's monuments, many left unprotected for lack of funds.Seven monuments were selected to receive the money raised by viewers. These included: Augustus's villa on the Palatine Hill in Rome, where the frescoes and flooring are decaying from exposure to sun and rain; the village and surrounding area of Santa Maria del Cedro in Calabria, an important site associated with the Enotrians, an early Italic tribe; the Racconigi Royal Park in Cuneo, an English-style romantic 18th-century garden in which the first Italian pineapples were grown, where the 19th-century greenhouse needs conserving; a museum for visually impaired people in Ancona that allows visitors to run their hands along reproductions of sculptures and archaeological finds; a Punic necropolis in Sardinia, dating back to the fourth century BC; Cremona's centre for the restoration of antique musical instruments which specialises in antique violins and the 19th-century railway line which connects the Sicilian baroque towns of Syracuse, Modica and Ragusa.


Donations are still possible. The fundraising target was $5 million, while it seems close to $4 million has been raised so far. If more funds are needed, might Italy consider selling or leasing some of its antiquities? That probably wouldn't be a popular decision in Italy, but might help reduce the illicit trade.

Germany Creates a Restitution Commission

Germany has decided to create a kind of Nazi Spoliation Office. From the AP:

BERLIN (AP) — A new office within Germany's Institute for Museum Research is opening in January to help identify and research art stolen by the Nazis, Germany's culture minister said Wednesday.

The office, which comes under the State Museums of Berlin, will help museums, libraries and archives identify items that were taken from their rightful owners during the Nazi period, Culture Minister Bernd Neumann said.

"I expect from this an important push in Germany in the clarifying of restitution questions," he said.

Neumann founded a working group to look into how to deal with restitution issues, after Berlin sparked controversy with a decision last year to return Ernst Ludwig Kirchner's "Berlin Street Scene" to the heirs of a Jewish collector who said the Nazis forced the family to sell it in the 1930s.

Some art experts questioned whether the expressionist work was sold under duress and whether its return was legal.

With the new office, which has a $1.47 million annual budget, Neumann said he hoped the restitution process would be better coordinated and more transparent.

This appears to be a good idea, and perhaps will preclude the need for private legal disputes when, for example, these works are displayed abroad as is the case with Schiele's Portrait of Wally. Will this commission help to return works to claimants? Offer settlements? Or, will it instead merely warn German institutions that certain objects are suspect and should not be loaned abroad?

Nov 13, 2007

Christie's Halts two Russian lots

Christie's International has removed two lots from their Nov. 29th auction of Russian books and manuscripts. John Varoli has an account at Bloomberg, and Reuters has a story as well. In total, 41 Russian army documents were removed, most once belonging to Marshall Georgi Zhukov. It seems "a cultural watchdog agency said they were stolen." Varoli speculates that:
Prices for Russian art, books, manuscripts and historical memorabilia have risen rapidly since 2000, and this has been accompanied by an increase in thefts from Russian museums and archives. In August 2006, the Hermitage disclosed that 226 Russian works of art had been stolen by staff over the previous decade.

Will any charges ensue? Someone made up a provenance for these objects somewhere between their theft in Moscow and consignment to Christie's. I'd imagine it wasn't the final consignor though, these letters probably passed through a few hands first, and were "laundered". Perhaps not enough to justify their sale, but probably enough to preclude criminal charges or an investigation.

Nov 12, 2007

Recovering a priceless object or punishing the thief?


That's a fundamental question which plagues criminal penalties for the theft of cultural property, and it often plays out in the decision-making of individual law enforcement officers, judges and prosecutors. The latest example is the laudable recovery and return today of two500-year-old maps stolen from Spain's National library earlier this year; one of which is this map which shows the recently discovered new world. Paul Hamilos has an overview from Madrid in today's Guardian. I commented on the recovery of one of these maps back in October, after it was sold on eBay. The FBI press release from Nov. 8 is here.

The thief, Cesar Gomez Rivero is a 60-yar-old Spanish citizen of Uruguayen descent who is a resident of Argentina. He sent his lawyer to negotiate an immunity deal with a judge in Buenos Aires in exchange for handing over 8 of the 19 stolen maps. The judge rejected the deal and was able to keep the maps. Apparently he used a Stanley knife to cut pages from the collections at the national library. Eleven maps have been recovered in total, in the UK, Australia, Argentina, and the US.

Nov 10, 2007

Protecting Native American Objects and Sites

Indian Country Today has a couple of very interesting articles by American Cultural heritage lawyers. The first, an article by Gabriel Galanda and Debora Juarez covers threats to sacred places "off-reservation". Here's an excerpt:
Sacred lands are indeed under attack. Developers are willing to pillage such lands whenever profitable. By way of example, as the Times piece explained, an energy development company threatens to build a $4 billion oil refinery atop lands believed to be the final resting place for Quechan ancestors. And, if state governments are not likewise seeking to excavate Indian burial grounds or sacred lands for highways, sewer systems or other public works projects, state decision-makers are attempting to make it easier for private developers to do so.
In March, the Idaho Legislature unanimously passed a law that will allow state officials to automatically unearth tribal ancestors from their finally resting places when discovered on private lands. An Idaho state spokesman cited digging up ancestral remains as a great solution because it would be done ''at no cost to the landowner and with no delay to the project.'' Currently, the Washington state Legislature is studying ''the legal processes to permit the removal of human remains from property'' so development can also proceed on ceded lands in Washington without cost or delay.
Tribal governments and citizens must stand prepared for battle in this new kind of Indian war. This is the first of a two-part series designed to equip tribes with the legal weaponry that they need to defend their sacred places.
In the second article, Sharon Haensly talks about prospective steps that Indian tribes can take to protect sites from development and destruction. Some steps which tribes should take include:

  • Declare, in tribal law, the tribe's property and other legal rights in off-reservation sacred sites and in the access routes to them.
  • Avoid the legally ambiguous term ''cultural resources,'' and use the term ''cultural property'' whenever possible.
  • Create a tribal register of sacred sites, designate specific sites on tribal registers, and decide when and how to share this information with other governments and developers.
  • Organize and maintain an ever-growing database of written information that supports the tribe's cultural connection to sacred sites.
  • Describe in tribal law the preferred methods for conducting off-reservation inventories and handling accidental discoveries of cultural property.
  • Ensure that tribal constitutions extend tribal jurisdiction, including tribal court jurisdiction, over off-reservation cultural properties.
Those all appear to be excellent strategies especially as the tension between development and preservation will always exist, especially in the American West. In the United States protection of Native American sites and artifacts often depends upon where an object is located, whether its private land, State-owned land, or Federal land. Protection seems to work reasonably well overall, but it's a confusing patchwork approach, and subject to some really unfortunate abrogations as may take place in Idaho. In such a legal environment, tribes need to be proactive and prepare for disputes before they occur.

This is a topic which is receiving more scholarly attention of late. An excellent article in the most recent issue of the Journal of Art, Antiquity and Law by Carolyn Shelbourn compares the protection of archaeological resources in the United States and England, Protecting Archaeological Resources in the United States: Some Lessons for Law and Practice in England, 12 Art, Ant. & L. 258 (2007).

Nov 7, 2007

Antiquities Dealer Returns Italian Antiquities


Antiquities dealer Jerome Eisenberg has apparently agreed to return eight antiquities to Italy. Ariel David has an overview for the AP, complete with photos of all the objects.

According to Ariel,
"Eisenberg, who runs galleries in New York and London, said he bought most of the antiquities at auctions in the British capital in the 1980s, and decided to return them after Italian authorities recently turned up evidence that they were looted." According to Giovanni Nistri, who leads the art squad of the Carabinieri "This is a dealer who since 1999 has returned of his own initiative other artifacts that came into his possession".

What is the significance of the return? It appears to be one of the only examples of a dealer voluntarily relinquishing allegedly illicitly-excavated antiquities. It seems the Italians had some kind of iron-clad proof that these objects had been wrongfully removed in some way.

David Gill at Looting Matters argues this agreement to return objects is significant because "
It is now clear that the Code of Ethics and the due diligence processes conducted by members of the IADAA are not rigorous enough." I think he's exactly right about the lack of effectiveness of Codes of Ethics, but this agreement has little to do with them. These objects were acquired at auctions, sometime in the 1980's. The acquisition of these objects in the 1980's doesn't strike me as an accurate indicator of the current state of the antiquities trade, though it's badly flawed to be sure.

The more relevant point I think is how effectively the Italian Culture Ministry uses the press in painting a picture of a vast Italian repatriation campaign. An agreement seems to have been concluded months ago. Why is the story appearing now? It seems to be a calculated move. Seldom does a week go by that there is not news of an arrest, agreement for repatriation or the like. Italy and cultural property is in just about every news cycle. Believe it or not, public pressure like this is the single best tool a source nation has to secure the return of objects. This fact speaks volumes about the fatally flawed body of law which attempts to regulate the illicit antiquities trade. Italy is not using the law to seek these objects because it cannot; instead it is exerting tremendous public pressure on museums and individuals.

(AP Photo/Alessandra Tarantino)

Nov 6, 2007

Arrests in Lowry Thefts


The BBC reported yesterday that four people have been arrested in connection with the theft of five LS Lowry paintings. It seems the recent Crimewatch appeal may have helped lead to the arrests. The theft was particularly disturbing, as 4 men robbed the family, tied up Ivan Aird, and threatened his wife and young daughter before stealing five artworks. The most valuable work taken was this painting, the Viaduct, worth perhaps £700,000.

Nov 2, 2007

UCL and Incantation Bowls


I'm just catching up on this story, but I wanted to highlight an excellent article by Michael Balter in Science Magazine ($) on the decision by the University College London to suppress a committee report on the investigation into the provenance of a number of Incantation bowls, like this one. David Gill over at looting matters has more on this story as well.

The article and the report it describes both raise troublesome questions over whether researchers and Universities should conduct research using objects of questionable provenance. If they do, they risk lending credibility and provenance to objects which may have been illicitly excavated.

To give a bit of background, "During the 5th to 8th centuries C.E., many people living in Mesopotamia (present-day Iraq) buried pottery bowls under the thresholds of their houses to ward off evil demons. The bowls were inscribed with biblical passages and other incantations in Aramaic, an ancient Semitic language."

Martin Schøyen owns the bowls and had temporarily donated them to UCL for study. Though the report has not been made public, Balter reveals the report "concludes that the bowls most likely left Iraq illegally sometime after August 1990, when Iraq invaded Kuwait." Balter indicates the report is careful not to assign any wrongdoing to Schøyen, but does criticize UCL for agreeing to store these bowls without dutifully examining how they were acquired. The investigation concludes Schøyen has solid legal title to the objects, as he has possessed them for the 6-year limitations period under the law of England and Wales, his ethical title to them is far less certain. In the antiquities trade there remains a substantial gap between the state of the law and good ethical practice.

I find it troubling that UCL refuses to release the committee report, though their reticence is perhaps understandable. They are likely wary that the committee report may lead more criticism or potential claims. The reality remains that public laws for the protection of antiquities are not working. The best option a source nation has is often to pursue private claims or a public relations campaign. Both of those are expensive and time-consuming undertakings.

Colin Renfrew, a member of that inquiry, says in the Science article that, "It is shameful that a university should set up an independent inquiry and then connive with the collector whose antiquities are under scrutiny to suppress the report through the vehicle of an out-of-court settlement."

What UCL should certainly do is make public efforts it will be taking to avoid lending credibility to other collections of potentially illicit antiquities. Because if they had erected such a safeguard prospectively, this dispute could have been avoided.

Nov 1, 2007

Good Faith Acquisition of Antiquities?


Lee Rosenbaum at CultureGrrl has more on the Italy/Princeton agreement. At the right is a "Apulian red figure loutrophos from South Italy, ca. 335-325 B.C." This object will remain at Princeton but Italy will gain title.

Importantly, Rosenbaum tells us Princeton's spokesperson, Cass Cliatt maintains the University had acquired the objects in good faith. Also, further details will not be forthcoming because of a "confidentiality agreement" between the two parties. Also, Princeton is "anticipating posting our acquisition policies, but they are still in the revision stage and will be made available at the appropriate time." Rosenbaum rightly expresses some skepticism at this reticence.

It seems to me that Princeton will not be the last museum to deal with Italian claims, as Rutelli has indicated it will pursue similar arrangements with the Cleveland Museum of Art, the New Carlsberg Glyptotek in Copenhagen, and the Miho Museum in Japan. These restitutions are a welcome sign, but they will mean very little in the long run if these institutions do not erect appropriate safeguards. At present we are relying on institutions to police themselves. I'm beginning to reach the admittedly pessimistic conclusion that a good-faith acquisition of antiquities may not be possible given the way the market currently operates.

Oct 31, 2007

Catching Up

Apologies for the light posting the last couple of weeks. I've returned from the US and the AALS hiring conference. It seemed to go well, and I was pleased with the response I got from the handful of interviews I had. I am cautiously optimistic about my chances of further interest from the schools I spoke with, but I'm also glad to be back here so I can concentrate on finishing up my thesis.

Enough about me, there was a lot of exciting news while I was away, including:

  • This Morning's news that a private investigator has been charged in the theft and recovery of da Vinci's Madonna of the Yarnwinder. That brings the total to five now.
  • Iran's Cultural Heritage News Agency reports on last Thursday's auction of the Achaeminid limestone relief from the city of Persepolis, in present-day Iran. It's a slanted view of the dispute, which ignores Iran's difficult legal footing. But the unpleasant outcome is the acquisition by an anonymous buyer for $1.2 million USD.
  • Three paintings worth an estimated $100,000 were stolen from a San Antonio gallery on Sunday.
  • Germany has finally returned 100 objects to Greece, many of which date back 8,000 years. The objects were stolen in 1985, and recovered in a raid last year. They were seemingly forgotten until a German court ruled in August that they should be returned.
  • A number of news outlets have coverage of the antiquities playing cards now issued to US soldiers in the middle east, urging them to take care of the archaeological heritage there.
  • And most importantly, Princeton has reached a repatriation agreement with Italy. The deal is similar to those reached with the Getty, the Met, and the MFA Boston.

Oct 25, 2007

Man Charged in Goya Theft

Steven Lee Olson has been charged under the Federal major art theft statute for last year's theft and recovery of Francisco de Goya's Children With a Cart. Here's an excerpt of the AP story:

TRENTON, N.J. (AP) — A truck driver who stole an art masterpiece from an unattended transport truck, then claimed he found it in his basement was charged with theft, authorities said.

Steven Lee Olson, 49, was charged with stealing "Children with a Cart," a 1778 painting by famed Spanish artist Francisco de Goya, federal prosecutors said Wednesday. The painting was insured at a value of about $1 million.

In an initial appearance in federal court in Newark on Wednesday, Olson through his lawyer decided not to immediately contest his detainment. A bail hearing was scheduled for Oct. 31.

The federal public defender representing Olson didn't immediately return a phone message. A message left at a number listed for Olson also wasn't immediately returned.

The painting was being trucked to the Solomon R. Guggenheim Museum in New York City from Ohio's Toledo Museum of Art last November. It was stolen as the transport drivers spent the night at a Pennsylvania motel. They discovered it missing the next morning.

Within days, Olson contacted federal authorities through an attorney to say he found the painting in his basement, said U.S Attorney's office spokesman Michael Drewniak.

After a lengthy investigation, authorities determined that Olson, a self-employed truck driver, had lifted the piece himself, Drewniak said.

"It was a crime of opportunity that didn't pay," FBI agent Sandra Carroll said.

I'm traveling to Washington D.C. today so I don't have time to post much substantive thought on this, but I am struck by how much more coverage this charge and arrest has received here in the US than the recovery and and subsequent arrests arising from the recovery of da Vinci's Madonna of the Yarnwinder a few weeks ago in a Glasgow law firm's offices.

Oct 22, 2007

Unsuccessful Nazi Spoliation Claim


From the LA Times last week, Suzanne Muchnic reports that a federal judge has dismissed a claim against Norton Simon over this work and another by Lucas Cranach the Elder.

A Los Angeles federal judge has dismissed a case that jeopardized the Norton Simon Museum's ownership of a nearly 500-year-old pair of paintings of Adam and Eve by German artist Lucas Cranach the Elder.

The action halts dueling lawsuits filed by the museum and Marei von Saher of Connecticut, the heir of a Jewish art dealer who lost the artworks to the Nazis in World War II. The museum filed a motion to dismiss the case, and a hearing was to be held Monday. But Judge John F. Walker granted the motion Thursday afternoon. He did not immediately disclose his reasons for doing so.

The museum's attorney, Luis Li of Munger, Tolles & Olson in Los Angeles, declined to comment on the ruling. Von Saher's attorney, Lawrence M. Kaye of the New York firm Herrick, Feinstein, could not be reached for comment.

Cranach's monumental paintings of life-size nudes in the Garden of Eden have been a highlight of Simon's collection since 1971, when the Los Angeles industrialist and collector bought them from George Stroganoff-Scherbatoff, an heir of a noble Russian family thought to have lost the paintings to the Bolsheviks during the Russian Revolution. But the Cranachs have a complicated history, at issue in the legal battle.

Von Saher's Dutch father-in-law, Jacques Goudstikker, bought the paintings in a 1931 auction in Berlin, billed as "Stroganoff Collection Leningrad" and staged to raise funds for Stalin's impoverished government. "Adam" and "Eve" remained in his gallery in Amsterdam until 1940, when the Nazis took over his business. Goudstikker died in a shipboard accident while fleeing the Germans, but his wife, Desiree, and son, Edward, survived, as did a list of artworks left behind.

After the war, Desiree Goudstikker settled with the Dutch government, regaining part of her husband's inventory. She did not claim another group of artworks, including the Cranachs, because she would have had to return payment received from the Germans. That settlement made it possible for Stroganoff-Scherbatoff to pursue his claim. The Dutch transferred the paintings to him in 1966.

The matter might have rested there, but as Holocaust restitution escalated, the Dutch reconsidered claims against Nazi loot, and scholars questioned long-accepted accounts of the Cranachs' Russian history.

There is no doubt that the paintings were sold in the Stroganoff sale, but some researchers think they were among confiscated goods from other collections, included in the auction to give the other items a "noble" provenance and disguise that they actually were being sold by the government.

No evidence that the paintings did or did not belong to the Stroganoffs has been found, but a document has come to light stating that they were in a church and other buildings in Kiev, the capital of what is now Ukraine, a few years before the auction. No one knows how they got there.

Von Saher, the widow of the Goudstikkers' son, has spent the last nine years trying to retrieve artworks owned by her husband's parents.

Last year, the Dutch government gave her 202 works that had been housed in Dutch museums, stating that the Goudstikker case had been handled properly in legal terms but that it had been reconsidered on moral grounds.

She learned that the Cranachs were at the Simon museum in 2000, and her attorney contacted the museum the following year.

Throughout the lengthy period of mediation and legal proceedings, Von Saher has contended that the Simon cannot have title to the paintings because they are stolen goods. The museum has argued that it is the rightful owner of the Cranachs, whether they belonged to the Stroganoffs or not, because the family's heir acquired good title to them under Dutch law, and in any event, California's three-year statute of limitations to challenge the Simon's purchase has long since passed.

In its motion to dismiss the case, the Simon argued that a California law extending the statute of limitations for heirs of Holocaust victims is unconstitutional because it wrongfully empowers the state to remedy war injuries, which is a duty of the federal government.

I haven't had a chance to track down the actual judgment. I'm back in the States at the moment, preparing myself for the AALS hiring conference in Washington D.C. later this week. There appears to be an error in Muchnic's understanding of the relevant California limitations rules. Though the limit is indeed three years, that period does not begin to start running until the claimant discovers, or by exercising reasonable efforts should have discovered the present owner of the object. Since the work has been on display since 1971, a dismissal of the claim was a likely result.

But in any event, California has extended the time with which claimants can bring these kinds of claims for nazi spoliated artworks until 2010 I believe, though I'd have to check that. I've not read anything questioning the constitutionality of that, though it appears to be an interesting question.

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