Feb 27, 2007
The BBC reported yesterday that a work by Jan Christensen, Relative Value, was stolen from an Oslo gallery. The work was a collection of kroner notes, worth about $16,300.
The idea behind the work was to make a statement about "the value of art, and about capitalism, and how the art world works." He may have also taught us about how theft comes into play as well. The work had already been sold to a buyer, for precisely the 100,000 kroner which were used to create the work.
I'm not sure you could technically classify this as an art theft as the thieves were not stealing the art, they were stealing the kroner. In any event, Christensen seemed quite happy with the publicity, "It proves my theory that I have made an artwork that has a value outside the gallery space."
Apparently he was making a point that someday these notes would return to circulation, and it appears they have in this case. No details on what the security was like at the gallery. Christensen admits that security was considered a problem before he installed the work, but there are no details given as to the kinds of security measures put in place.
To be a bit cynical about the whole story, sometimes a theft can be an artist's best friend. Though he lost this work, the curious nature of this theft has appeared in countless news outlets around the world, and he is getting a great deal of publicity.
Feb 26, 2007
Hollywood Police Officers Kevin Companion, Jeffry Courtney, Thomas Simcox and Stephen Harrison were charged in a complaint unsealed today with extortion and narcotics charges, announced R. Alexander Acosta, United States Attorney for the Southern District of Florida, and Jonathan I. Solomon, Special Agent in Charge, Federal Bureau of Investigation, Miami Field Office. Specifically, the complaint charges the defendants with conspiring and attempting to commit extortion under color of official right by accepting bribes to protect and facilitate what was represented to be a wide range of criminal activities, including the sale and interstate transportation of stolen property, a crooked high stakes gambling operation, cargo theft, and the transportation of a multi-kilogram load of heroin, all in violation of Title 18, United States Code, Section 1951. The defendants were also charged with conspiring and attempting to possess with intent to distribute a controlled substance, in violation of Title 21, United States Code, Section 846, for their roles in protecting a heroin shipment.
The charges against these four Hollywood Police Officers arose from a two-year undercover investigation jointly conducted by the United States Attorney’s Office and the Federal Bureau of Investigation. According to the complaint, Companion, a 20-year veteran of the Hollywood Police Department, Courtney, a 15-year veteran of the Department, Simcox, a 24-year veteran of the Department, and Harrison, an 8-year veteran of the Department, provided a variety of illegal services to a group of individuals who represented themselves to be part of a New York-based criminal organization which was looking to recruit police officers to protect and facilitate their illegal operations. In reality, however, these individuals were FBI undercover agents, and the purported criminal activities were all staged operations done as part of the investigation.
In exchange for cash payments, the defendants were involved in the following criminal activities: Companion protected the collection of an illegal gambling debt and the fencing of stolen watches; Companion and Courtney protected a sale of $400,000 worth of stolen diamonds, and personally delivered $400,000 worth of stolen bearer bonds from Florida to New York City; Companion, Courtney, Simcox, and Harrison all participated in providing protection for a high-stakes rigged poker game staged on a yacht; Companion, Courtney, and Simcox delivered $1,000,000 worth of stolen diamonds from Florida to Atlantic City, New Jersey; Companion, Courtney, Simcox and Harrison all protected the theft of a tractor-trailer load of cigarettes; Companion and Harrison delivered a load of valuable stolen artwork from Florida to Atlantic City; and finally, Companion, Courtney, Simcox, and Harrison provided a security escort for the transportation of a multi-kilo load of heroin from Miami Beach to Hollywood, Florida, for further delivery to the criminal organization up north. The defendants would be paid in cash at the conclusion of each criminal episode in which they participated, and as a result of their criminal activities, they received the following approximate total amounts: Companion - $42,000; Courtney - $22,000; Simcox - $16,000; and Harrison - $12,000.
It's an interesting development, and one sure to grab headlines. It sounds almost too far-fetched to be real. I found the charges of transporting artwork particularly interesting. It's an example of mob ties to art theft. A number of claims are thrown about regarding organized crime and stolen art, but there is not a lot of hard evidence to support the claim. Here is some evidence, though it seems the far more serious violations were in regards to extortion and drug smuggling. One of the reasons given for a stronger criminal response to the illicit trade in cultural property are reports like this, which link stolen art to drugs and other more serious crimes.
You can read the press release from the US Attorney's Office for the Southern District of Florida here.
Feb 23, 2007
A great deal of controversy has been brewing recently over decisions by museums to sell parts of their permanent collection, or deaccessioning. First, came the decision by the Pennsylvania Academy of the Fine Arts to sell Thomas Eakins' The Cello Player to purchase an interest in The Gross Clinic.
Now, it seems the Albright-Knox Art Gallery in Buffalo NY has decided to sell a great deal of its permanent antiquities collection to allow it to purchase more contemporary works. The Buffalo News has a list of the works for auction here. Among the works are classical sculpture, Chinese porcelain, a Benin bronze, and a number of other works.
Colin Dabkowski of the Buffalo News has an article in yesterday's Buffalo News which indicates a group of concerned citizens called the "Buffalo Art Keepers" are going to challenge the sale in court. Donn Zaretsky at the Art Law blog has more, as does Lee Rosenbaum. Rosenbaum labels the dispute a "showdown", but that may be a bit generous for the "Art Keepers". I agree with Zaretsky that it will be extremely difficult for them to prevent the sale. What it will do is raise the cost, both in terms of legal expenses and public opinion, in deaccessioning.
Richard Stanton, the counsel representing the "Art Keepers" says "They intend to protect the membership's interest in the collection and see that the museum follows its own mission statement and governing rules before they sell off masterpieces of art which have been assembled over the past 140 years." Perhaps so, and I'll freely admit I'm not an expert in museum governance regulations, but wouldn't there be some kind of version of the Business Judgment Rule for museums. In the corporate context, the Business judgment rule states that courts will not step in and interfere with a corporate board's business decisions. Surely, a similar situation must be at play here.
The "Art Keepers" are arguing that the museum has collected and displayed ancient art and antiquities in the past, but has recently changed its mission to focus on contemporary art. I think the neo-classical design of the museum itself would seem to speak to an earlier intention to display older works. However, shouldn't a museum be able to shift positions? Do we want to box an institution in and prevent it from shifting a mission in the future? What the dispute really involves is a frustration with members of the public that the Albright-Knox has shifted away from displaying antiquities, and towards contemporary art. We may argue with that decision as a matter of personal taste, but museums should be able to switch positions, and we want our cultural institutions to have some degree of flexibility.
Another dimension to this decision may be that the recent string of repatriation requests by the Italians and Greeks may encourage a museum, especially one needing funds, to sell their antiquities before a source nation makes a very public and very unpleasant request for their return. I do not know the provenance of the Benin bronze the museum has decided to sell, but many of them were taken under less-than-savory circumstances in the 19th century in the Punitive Expidition of 1897. Nigeria has a compelling ethical case to be made for their return.
Limiting museum decision-making could severely restrict our ability to have strong and viable cultural institutions. You risk a great deal by forcing an institution to repatriate objects while also preventing it from selling and managing its collection in a responsible manner.
Feb 22, 2007
Carl Vogel of the New York Times discusses the planned 3-stage auction of a portion of a group of 170 old master paintings recently returned to the heirs of Jacques Goudstikker. Over at the ArtLaw blog, Donn Zaretsky has more.
Goudstikker was a prominent art dealer who quickly fled Amsterdam in 1940. His successors, Mrs. von Saher and her two daughters, all currently Connecticut residents, are planning an international exhibition of many of the works, including some which will not be part of the auction. Last year's settlement with the Dutch government marked the culmination of an 8-year legal battle. The three auctions will be in April in New York, in July in London, and finally in November in Amsterdam. One work which could fetch between $3-5 million is this painting, Ferry Boat With Cattle on the River Vecht Near Nijenrode by Salomon van Ruysdael.
One of the heirs, Charlene von Saher said the traveling exhibition would reveal to the world "a historical injustice put right." Certainly, Goudstikker lost his collection of art, and the restitution may be correcting a historical wrong. Make no mistake though, the 3 heirs of Goudstikker, their legal counsel, and Christie's all stand to make a great deal of money. Money is at the heart of restitution, not righting historical wrongs. Consider the recent decision of a Dutch court to award Roelof van Holthe tot Echteen, a lawyer for the 3 heirs, a $10.4 million bank guarantee for his services in working for the restitution.
I notice that in the US, Lawrence Kaye represents von Saher and her two daughters in the dispute. Kaye, along with Howard Spiegler operate a prominent art restitution practice in New York. The two have become celebrities of sorts. I was contacted a couple of weeks ago by Kelly Crow of the Wall Street Journal regarding the reputation of the two in the legal and scholarly community. I'm afraid I was not able to offer her too much for her story. The two have published quite a bit, and have been part of some of the most important art and antiquities cases in recent years. If you want to initiate a restitution action, they are the lawyers to call.
However, I don't really think that the law looks at individuals as champions of a cause. They are partisan representatives for their client. Their duty is to advocate zealously for their client. Sometimes this might put them on the right side, others it may put them in more objectionable territory. Perhaps it is just my view on this, but I do not consider them "heroes" as such. That said, I would jump at the chance to join their restitution practice after I complete my thesis.
I am of two minds about restitution litigation. On the one hand, I think we should certainly endorse a practice which remedies past historical injustices, and Nazi spoliation is certainly a grave injustice. However, restitution is not always a positive development. I discussed the Schiele litigation earlier this week, which is a very sad situation. Also, these works were displayed at museums in Amsterdam accessible to the public. Is there not a value in having the works displayed there? Also, what is the rationale for returning works from WWII, but not earlier conflicts. Why should the Louvre not be emptied of all the works looted by Napoleon?
For example, Beam writes
"Tomb raider" is really just a glamorous way of describing an unlicensed archaeologist. Anyone who wants to dig in Egypt must first go through the arduous process of getting official permission. The authorities demand an explicit description of any project, proof that the diggers are with a university or museum, and a list of everyone who will be working on the site. The license request goes to the Supreme Council of Antiquities, a government agency that oversees all excavation projects. If you try to dig without the council's permission, you're breaking the law—so "tomb raiders" might be opportunists looking to sell their findings, or they might be serious excavators who simply can't get permission for a dig.
That is correct for Egypt, but looting takes place all over the world. In Latin America for example, a number of unlicensed digs take place, but many of the excavations in that country are not conducted by the stereotypical tomb raider, or simple villager. In many cases, illicit excavation is done by "subsistence diggers". David Matsuda has done some good work on this subject. This is a controversial aspect of the illicit trade, because it means that the reasons for allowing the illicit trade to continue may be as compelling as the claims of archaeologists and other advocates who argue for an end to the trade in antiquities. When you are digging in tombs for your own survival, the ethical rationale for your illegal activity increases dramatically in my view. However, just how many "subsistence diggers" there are, and if the availability of other means of survival is open to debate. At the very least, though many media reports talk about the criminal "tomb raider", this stereotype may be inaccurate.
Beam also references the criminal conviction of Jonathan Tokeley-Parry in England, and his counterpart Frederick Schultz in the US in recent years. These two were hardly tomb raiders. They never unearthed an object. Rather, Parry dealt with Egyptians who found or dug up antiquities. They constructed elaborate provenances and disguised the antiquities for Schultz to sell in his Manhattan gallery. They weren't raiders, they were dealers and middlemen.
Beam talks about the various international agreements relevant to the illicit trade, most notable the 1970 UNESCO Convention. He says these agreements make tomb raiding "very difficult". I think that may be giving a bit too much deference to these international instruments. The most important impact these international conventions have had on the illicit trade is in terms of raising the profile of the problem, and encouraging Nations to take action. The UNESCO Convention does not return objects. Rather it is the individual Nations implementing structures that dictate their return.
So, though "Tomb Raiding 101" may be an entertaining read, if you are considering a foray into the illicit antiquities trade, I'd consider a more thorough introduction. The sad reality is that becoming a tomb raider may be far easier then you would think.
Feb 20, 2007
The San Jose Mercury News reports that a number of lithographs have been stolen from a rental car in a shopping mall parking lot. The 12 lithographs might be valued as high as $250,000. One of the lithographs is a reproduction of one of Andy Warhol's depictions of Marilyn Monroe, like this one. Police speculate that thieves may have followed the dealer across a series of art galleries, and then broken into the rental car while he was in the shopping mall, just outside a Macy's. The story hints that that appraisal may be a bit high, but isn't that a lot of valueable art to have sitting in a rental car?
I'm no expert on lithographs, and it seems these must be quite valuable. However, should we consider them important cultural property, or just pretty reproductions? I'm not sure I have an answer.
Publicly displayed art is at risk as well it seems. In Austin, Texas thieves dismantled the base of this 10 foot Gibson guitar called "Sharp Axe", and carted it off. I'm not sure how you don't get spotted carrying a 10 foot fiberglass Gibson guitar. Were some Austin revellers having a bit too much fun on Sixth street perhaps? It's one of a number of sculptures around Austin as part of a GuitarTown public art project. It was found later in a local restaurant. I guess if something looks good enough, somebody is always going to want to take it.
A similar situation occurred in New Zealand. Today it was reported that at the New Zealand Fringe Festival, artist Mat Hunkin had his public art stolen in broad daylight, the first day it was installed. It was the first day of a 5 day massive comic strip, so things don't bode well for the other 4 days. He didn't sound too depressed though, "Sure, it's not Edvard Munch's 'The Scream' or anything like that, but I'm kind-of stoked that someone liked it so much that they would nick it in broad daylight. Who knows? It might end up in Sotheby's art auctions one day." Indeed, perhaps it will. They'll have to wait until the statute of limitations has expired and or they manage to scrounge up a good faith purchaser though. Curiously, for an up-and-coming artist, a theft may be a great way to raise your profile.
It seems that this was not a theft at all. As Victor Engel commented, "'Sharp Axe' was never stolen. It apparently fell off its weak mount onto its face, breaking the neck of the guitar. Another Elephant Room customer and I moved it into the entryway to the Elephant Room at around midnight Sunday for safekeeping and notified the bartender."
That story makes much more sense of course, but labelling something an art theft makes it much more newsworthy.
Feb 19, 2007
If everything goes as planned, you should be able to hear an interview with me on TV and on the Radio here in Scotland on Tuesday. You can hear the interview on BBC Radio Scotland tomorrow on the Good Morning Scotland show sometime between 6 and 9 . There will be a TV segment as well on BBC Scotland's Reporting Scotland at 18.30. Streaming video of the whole newscast should be available here.
A few weeks ago I had the great pleasure in being interviewed by a reporter for the BBC, David Marsland, here in Scotland at the Aberdeen Art Gallery. I talked about my research, why I decided to study here in Scotland, and the current state of protection for Scottish art museums and historic houses.
To listen to the radio segment, click here.
It seems the TV segment has been preempted, but I've been assured it will air in the near future. I'll post more here when I know more.
Feb 16, 2007
There was an interesting article by Jason Horowitz of the New York Observer this week discussing a lawsuit implicating an Egon Schiele drawing. The dispute involves a Schiele drawing which was owned by a Jewish singer and comedian, Fritz Grunbaum. The works were seized by the Nazis, though the work eventually ended up in the hands of the Nazis. The work at issue is,
a gouache-and-black-crayon drawing of a headless woman clutching her knee. It has meandered for decades through art galleries and private collections before ending up in the middle of a pitched legal battle in New York’s Southern District court, where two of Grünbaum’s heirs—Leon Fischer, a New York stamp dealer, and Milos Vavra, who lives in Prague—have bickered for two years with the drawing’s owner, David Bakalar.
Now, a key Swiss gallery owner is prepared to give a deposition for the first time about the drawing’s provenance, and the presiding judge has expressed his eagerness to resolve the case.
At the same time, the heirs’ New York lawyer, Ray Dowd, is weighing the potentially momentous step of going after the Viennese company Schenker & Co. A.G.
Schenker’s global network of shipping firms amounts to one of the world’s largest logistics companies, with more than 40,000 employees in dozens of countries and more than $10 billion in turnover a year. Mr. Dowd contends that the company, which serves as the Olympic Games’ official movers, stole the drawing and set in motion a litany of fictitious provenances that skip from Vienna to Brussels, from Bern to New York.
The whole factual background is quite detailed, and too intricate to delve into here. The attempt to implicate the wing of the American Schenker Corporation seems quite difficult, especially as it was not formed until 1947.
Though there have certainly been some very positive results in Nazi restitution cases, Picasso's Femme en Blanc is one example, not all the litigation in this area has produced positive results. Consider the case of another Schiele work, Portrait of Wally (pictured above) which was seized in a civil forfeiture action by federal prosecutors. I'm currently looking at this case for an article I am preparing. Based upon my initial research, it appears as if the work is still locked in storage at the Museum of Modern art. If anyone has any information on the present disposition of the dispute, I would really like to talk about it.
Here is my present understanding of the case. Nearly nine years on, the Portrait of Wally litigation has still not managed to reach the substantive issues of the case, and the work remains in storage in the New York Museum of Modern Art in a tragic echo of the fictional Jarnydyce v. Jarndyce in Charles Dickens’ Bleak House.
At present, a new trial will likely ensue to determine if the painting was stolen under the relevant Austrian law. Some time before 1938, Egon Schiele’s Portrait of Wally was housed in the apartment of a Jewish gallery owner, Lea Bondi Jaray “Bondi”. In April 1938, Friedrich Welz acquired the gallery belonging to Bondi in a process called “aryanization”, in which Jews were forced to sell their property at extremely low prices. Welz was later interned by the US military on suspicion of war crimes, at which point it confiscated his possessions, including the Portrait of Wally. Then, as per its post-war military policy, the military returned the property to the government of Austria, not the individuals to whom the property may have belonged prior to its seizure.
The work then was then mistakenly included in a shipment to another dispossessed family. Bondi, who had since fled to London, then allegedly enlisted Dr. Rudolph Leopold to recover the work from the Belvedere Gallery, the purchaser of the work. Later, Leopold acquired Portrait of Wally for himself from the Belvedere, without Bondi’s knowledge. After later learning of Leopold’s possession of the work, Bondi hired an Austrian attorney, but she was unable to recover the work before her death in 1969. Leopold then sold the work to the Leopold, the museum in which he serves as the Director for life.
The dispute remained dormant until 1997, when the Leopold Museum-Privatstiftung (Leopold) presented the work to the New York Museum of Modern Art (MoMA) for a temporary exhibition. After the exhibition, the Manhattan District Attorney’s Office subpoenaed the painting. That subpoena was quashed initially by the New York Court of Appeals because it violated New York’s anti-seizure statute. That same day a Federal Magistrate Judge issued a seizure warrant for the work based on probable cause that Dr. Leopold, had violated the NSPA. The painting has been in storage since the beginning of the dispute in 1998, while the value of the “Portrait of Wally” has soared to between $5 and $10 million.
Many argue this dispute has had a chilling effect on international art loans. As art adviser Ashton Hawkins says,
I think that people who would have previously considered lending now simply don’t consider it…I know from my colleagues who arrange these exhibitions in New York and in other cities that lending to the United States and particularly to New York has been more of a problem than it used to be.
Glenn Lowry, the director of the MoMA had a similar view testifying before the House Committee on Banking and Financial Services in 2000, “[Portrait of Wally] had been exhibited around the world for decades and … had been reproduced frequently in books.”
The case stands as a cautionary tale of what can happen if we extend restitution litigation too far. The clear cases of theft and loss are easily handled. But when you talk about a series of owners, some with varying degrees of knowledge and bona fides, I think there is a very grave risk of injustice being done. After all, this kind of litigation has three victims: the original owner, the present good faith possessor, and the public who may not be able to have access to the work. If anyone has any information about where this Portrait of Wally litigation currently stands, I would be delighted to hear it.
(Correction: earlier today I incorrectly labelled the publication as the NY Sun, rather than the actual publication, The New York Observer. I've corrected my error.)
Feb 14, 2007
Stephen Kurkjian and Shelley Murphy have an article in yesterday's Boston Globe about the arrest of Robert Mardirosian, an attorney charged with attempting to possess, conceal, store, and sell stolen art. The Boston Herald has a story as well.
The 72 year-old Madirosian had been entrusted with the paintings by his client the thief nearly 30 years ago. This work, Paul Cezanne's Pitcher and Fruits was stolen from Michael Bakwin, back in 1978. He recovered the work a few years ago, and it was sold by Sotheby's for close to $30 million.
In a strange series of events, the paintings were hauled all over the world in an attempt to sell them, from Massachusetts to Switzerland, London and Monaco. As the Boston Herald's AP article details:
In 1988, Mardirosian moved the paintings to Monaco, thinking he might have a legal claim to ownership or a 10 percent ”finder’s fee,” according to a May 2006 affidavit from FBI Special Agent Geoffrey Kelly, also unsealed Tuesday.It's fascinating stuff, and reveals a number of things about the current state of the market. First, the shroud of secrecy surrounding transactions is not productive. Second, import controls are not working. It is just not possible to adequately inspect most of what gets shipped around the world. Finally, how does an attorney expect to get away with this kind of thing? It seems the final straw was the fact that Madirosian's colleague, Paul Palandjian, got tired of having the stolen works in his own attic and went to the police.
Lloyd’s of London was contacted in 1999 by an unknown person about insuring the paintings before sale, the affidavit says, and discovered they were listed with the database Art Loss Register as having been stolen. It says Julian Radcliffe, chairman of Art Loss Register, determined that the paintings were being sold by a Panamanian corporation called Erie International Trading Company, later found to be registered to Mardirosian.
Radcliffe contacted Bakwin and brokered a deal with unnamed agents of Erie, who agreed to return the Cezanne in exchange for the other six paintings. Two months after retrieving the Cezanne, Bakwin auctioned it through Sotheby’s in London for $29.3 million.
As part of the contract, the owner of Erie agreed to disclose his identity in a sealed envelope. A British judge later ruled the contract void because Bakwin ”signed it under duress.” He ordered the envelope unsealed, revealing Erie’s owner as Robert Mardirosian, and ordered the lawyer to pay Bakwin $3 million.
This prosecution is sure to generate a great deal of attention. These works high value continues to fuel illegal activity. The only sure way to prevent it is to erect safeguards in the market place. On one level, its very easy to criticize Mardirosian's behavior. However, how many of us would think twice about turning over a $30 million work to the police, no questions asked? I would like to think most of us would, but that kind of money must be extremely tempting.
Feb 8, 2007
Over the weekend in Spain, the civil guard in Cadiz announced arrests of three individuals alleged to have patrolled the shallow waters off Cadiz. They used an underwater robot to salvage objects from ancient shipwrecks, yielding treasures as varied as Roman anchors, Phoenician pottery, and bullets from the Battle of Trafalgar. The Guardian report has labeled the individuals "pirates". Though their behavior violates Spanish law, I'm not sure we can call them pirates in the conventional sense. A number of companies legally salvage wrecks in other waters. Generally, English and American admiralty law rewards salvors. When property is lost at sea, the rescuer can claim a salvage award on the property. That doesn't appear to be the case for the defendants in Cadiz though. I would guess that the defendants were patrolling within Spain's territorial waters. An important issue at the criminal trial will likely be how the prosecutors can prove the objects were taken within Spain's waters. Of course, their claim seems to be helped by the fact that the individuals were hiding the objects in hidden compartments in their oxygen tanks. The criminal law probably triggers as soon as the objects were brought ashore
Without knowing too much about Spanish Admiralty law, Spain has outlawed salvage in this area, and with good reason. The port of Cadiz has been a bustling port for millennium, and has "the country's largest shipwreck cemetery, holding an estimated €1.5bn in sunken gold, silver and pearls, according to Juan Manuel Gracia, president of the Association for the Recovery of Spanish Galleons." No wonder then that Spain is attempting to restrict salvage in the area. As technology is increasingly opening the depths to exploitation, these disputes are likely to increase. Spain and England are currently disputing the wreck of the Sussex, a British warship which sank with $4 billion worth of gold in 1694.
It seems that the underwater treasure hunters had ties to others as well, because there are a number of reports today that 52 individuals have been arrested throughout Andalusia. The arrests seem to be linked to the three in Cadiz. The Guardian reports that "A team of 200 officers searched 68 flats to confiscate the pieces, many of which were bound for foreign collectors. The ring sent coins and small items through the mail. Police found larger pieces destined for Faro, Portugal, where they were to be flown to Belgium." Reuters has a wire report as well. The reports boast that over 300,000 objects were recovered. That's a staggering sum, and one wonders how many of the recoveries were of high quality. However, this image of recovered mosaics indicates that the authorities didn't just recover anchors and bullets.
Feb 7, 2007
If you'd like to subscribe to my posts, I've included an easy RSS feed at the left. I've also included a new link to things I'm reading which may be relevant.
Feb 6, 2007
The dispute involved a fragment of an Achaemenid limestone relief from the city of Persepolis. This image, which I took from an organization called Cultural Heritage News, compares Berend's limestone, with the site in Persepolis. It makes for pretty damning evidence. The Cultural Heritage News agency is operated out of Iran, and I'm not sure where they get their funding, and their articles on this dispute strike me as a bit one-sided. Nevertheless, they did provide a good background to the dispute.
Denyse Berend purchased the limestone fragment in 1974. As the opinion states, "It was sold to her through an agent at a New York auction in October 1974." The object has been on display in Berend's Paris apartment since the purchase. Iran brought suit against Berend when she tried to sell it at an auction at Christie's London in 2005.
The dispute ultimately came down to which nation's law should apply to the dispute, France or Iran. Under Iranian law, the object would be returned, but under French law, the 30 year statute of limitations period had elapsed, and Berend would have clear title. Two conflicting private international law principles were at play here. First, is the lex situs doctrine which holds that the law of the location of the object at the time of the transaction should apply. Under that rule, French law would apply.
Iran wanted Justice Eady to apply the rule of renvoi, which would have dictated that Iranian law would apply. The renvoi choice of law principle occurs whenever a court is called upon to interpret the law of another nation. It has been applied to wills and some family law, though never to movable objects.
No English court has applied renvoi to movables, and it seams Justice Eady was reluctant to do the same in this case. According to Wikipedia, a recent Australian High court decision applied the rule in Neilson v Overseas Projects Corporation of Victoria Ltd  HCA 54 (29 September 2005). In that case, the Australian High Court applied the rule in a tort case. The plaintiff injured herself in an apartment in China. The apartment was overseen by her husband's employer, an Australian company. The court applied the law of Australia, because both parties to the suit were Australian. Applying the Australian court's logic to this case, it doesn't seem likely that the principle of renvoi would be applicable, and even in the Australian case, there seems to be a great deal of criticism of the decision.
Eady was understandably reluctant to go out on a limb and apply the principle in this case. As he said, "English law has held for many years, in order partly to achieve consistency and certainty, that where movble property is concerned title should be determined by the lex situs of the property at the time when the disputed title is said to have been acquired."
I wonder if Iran may choose to appeal the decision. In any event, though the limestone relief seems to have clearly come from Persepolis, Iran has no legal right to the object under English law. On a side note, there may be damages stemming from the grant of the original injunction against Berend's attempted auction of the object at Christies in London. One wonders why Iran did not pursue its claims in 1974, when the object was first sold. I wonder as well whether the 2005 auction had taken place in Christie's New York, rather than London, if the more generous statute of limitations provision would have allowed for a much different result.
Over at the Journal of Private International Law's blog, conflictoflaws.net, Martin George has gone into some more detail on the choice of law implications at play in the decision. He rightly points out that an English court adopting a renvoi rule for movable property would have caused a lot of headaches. However, he misses the cultural policy implications: the limestone relief was almost certainly taken from Persepolis. The relief came from what is essentially the Persian Acropolis. In the event the ruling stands (which seems most likely) look for Iran to press for the return of the relief based on ethical principles. In any event, the potential sum the relief may bring at an auction seem quite diminished. I wonder if Berend and Iran may try to work out some kind of a settlement. It seems likely that quite a few potential purchasers have been scared away by the Iranian claims.
I have noticed a lot of folks are still interested in this case. For a much better and complex account of the decision you can download my case note published by the International Journal of Cultural Property here.
Feb 5, 2007
David Nishimura picked up on a couple of major seizures last week in Paris and Moscow which indicate the illicit trade in antiquities is still going strong.
First, the BBC reports that in Paris over 650 Malian objects were seized at the Charle de Gaulle airport (see picture from BBC). The artifacts included axe heads, flintstones, and rings. Most of the objects dated from a couple thousand BC, however some may have been over 200,000 years old. These objects should soon be returned to Mali, however the archaeological context surrounding them is of course lost. There is no word on what may have alerted the French authorities to this shipment. It seems there were "[looking] out for artefacts being exported from specific countries such as Mali".
A similar story from from Moscow: MosNews reported last week that Russia's "cultural watchdog" agency had seized Byzantine-era items from Turkey. Some of the objects appear to have been taken from the Museum of Anatolian Civilizations in Ankara back in 1963.
Both shipments were seemingly on their way to American dealers and collectors.
Feb 1, 2007
"Italian police arrested 52 people and recovered several hundred smuggled archeological artifacts as part of their ``tomb raider'' investigation into international art theft.The Bloomberg story got one important detail very wrong. It incorrectly stated that the Getty has agreed to return 52 antiquities to Italy. In fact, Italy demanded the return of 52 objects; the Getty has agreed to return 25 of them in principle, along with one other which was not on the list.
More than 300 carabinieri of the finance police and paramilitary art squad searched suspects' homes in eight Italian provinces early today and found smuggled goods of ``considerable worth,'' Italy's Culture Ministry said in an e-mail.
Three years of investigations into a group of Sicilian ``tomb raiders'' led to the searches, arrests and uncovering of a wider international network, with contacts in Germany, Switzerland, Spain, the U.K. and U.S., the statement said. The investigation and raids were coordinated by the magistrates from the Sicilian province of Gela, the e-mail said."
The Malta Star has more on this story as well. It seems that many of the Sicilians arrested were not "from usual criminal backgrounds but rather from the professions and the business community and also include collectors and antiquarians." If that's true, it would be quite a blow to the antiquities trade. One difficulty the Italian authorities may have is following through with convictions of these individuals, who may be considered upstanding members of their community.