May 28, 2007
Morning Edition on NPR has what looks to be a promising story on the antiquities trade. It will be available later today here.
The first of the two part stories which aired on Monday was excellent. It does a great job of laying out the issues with the antiquities trade in ~8 minutes. The view was expressed that Guatemala needs to enact stricter laws to protect their antiquities. That is often the first response someone gets when presented with the theft and destruction of archaeological sites. However Guatemala has some very aggressive legislation. The problem isn't the laws, its the enforcement. Today's second part should be excellent as well, as it will detail the art market, the other side of the coin.
May 22, 2007
Recently, Odyssey Marine Exploration announced they had recovered 500,000 silver and gold coins from a shipwreck which may have been 40 miles from Land's End in Cornwall. It may be a record for the The BBC has a story here and video here. The Daily Mail has a story here. Odyssey have not released the location of the wreck for security and legal reasons. The treasure has been stored in an "undisclosed location" in the US. The value of the coins recovered could approach half a billion dollars.
Odyssey stresses it is the legal owner of the coins, and that it conducted the salvage by "diligently follow[ing] archaeological protocols using advanced robotic technology, and the artifacts are now undergoing a meticulous conservation process". I'll confess a profound ignorance of how much archaeologists can learn from shipwrecks. However Will Anderson over at the assemblage expresses some well-founded skepticism about the archaeological merits of the salvage, "Whether what Odyssey Marine Exploration does can be termed archaeology is debatable". And in response to claims that the archaeological protocols were followed, "So we shall soon be seeing a full and thorough excavation report published, the site will be assessed and managed, and the loot will not be flogged over the internet"? Chances of that seem unlikely, as Odyssey has already sold coal from another shipwreck, the SS Republic.
Peter Spiro over at Opinio Juris summarizes the current state of shipwreck recovery law in International waters, and ties in the difficulties with regulation of underwater cultural heritage to a new book by Dan Drezner. Drezner postulates a "club standards" situation where there is low conflict among great powers and high conflict between the great powers and other actors. Spiro says "that seems to be what has emerged in the context of treasure hunting, with the great powers reaching ad hoc agreements on particular finds (as was the case with the Titanic), at the same time as they also handle the issue through domestic law. The universalizing option of an open-to-all multilateral treaty gets left by the wayside".
That brings us to the UNESCO Convention on the Protection of Underwater Cultural Heritage. JH Merryman has been a very vocal critic of the Convention, because it completely precludes commercial exploitation, as was the case here. 14 Nations have signed on. The convention has received little support from most European nations and the United States. Here is an excellent overview of the Convention from Robert Blumberg, who led the US delegation to the UNESCO negotiations. As it stands now, there is no comprehensive law regulating wrecks found in International waters, which begins 24 miles out to sea. Regulation which does exist comes about through multilateral agreements for individual wrecks and bilateral agreements, or domestic legislation.
Clearly, this record recovery will anger some nations, and may provide some new impetus towards forming a workable convention for maritime states, perhaps by amending the UNESCO UCH convention.
May 21, 2007
The 9th Circuit Court of Appeals has upheld a lower-court ruling denying an attempt by the descendants of a Jewish art collector. They sought to to recover this work, Vue de l’Asile et de la Chapelle de Saint-Rémy by Vincent Van Gogh. Elizabeth Taylor bought the work at an auction in 1963 for $260,000. It may fetch up to $15 million at an auction today. The opinion is here. The San Francisco Chronicle has a summary here.
Van Gogh painted the work in 1889 after entering an asylum in Provence. This was only 1 year before he committed suicide. Margarete Mauthner purchased the work in 1907, but left the painting behind when she fled Berlin and went to South Africa in 1939. Mauthner's four descendants claimed she sold the work under duress in 1939.
Both parties "vigorously dispute[d] the circumstances under which Mauthner parted with the painting". This suit really highlights the phrase often uttered with respect to art litigation: a tale of two innocents. Neither party seems to be in the wrong here.
The claimants argued that Mauthner sold the painting under duress, not that the Nazis confiscated it. They brought suit against Taylor, however that claim was thrown out under a 12(b)(6) motion. The district court essentially found that the claimants did not bring a legally recognizable claim. This appeal centered on whether the Holocaust Victims Redress Act created a private right of action, and whether the action was timely.
The Holocaust Victims Redress Act did not create a right of action according to the 9th Circuit. The "Act was a limited bill, passed with an understanding of constitutional limitations on congressional power."
With respect to the timeliness of the action, the court held the action was time-barred as well. California has adopted the "discovery rule". An action for the recovery of art accrues when the rightful owner discovers the location of the work. However, the California Supreme Court has held that the discovery rule incorporates a requirement which accrues the action when the claimant "reasonably could have discovered" the claim. At the very least, the claim could have been discovered in 1990, when Taylor attempted to auction the painting at Sotheby's. She was also listed as the owner of the painting in a 1970 catalogue. Thus the Federal cause of action was inapplicable, and the State claim was time-barred.
Most commentators have agreed this was the right decision. Working against the claimants was the fact that painting was not actually seized by the Nazis, even though the court was interpreting the District Court's ruling in a light most favorable to the plaintiffs. It would have been a difficult case to win on the merits, and would have taken Nazi restitution litigation a step too far in my view. I wonder how exactly the claimants learned of the work and their possible claim. The court didn't really analyze in much detail what the claimants should have done, but did note the various points that Taylor publicized her ownership.
However, the Copyright Royalty Board, in its infinite wisdom, has decided to dramatically increase the royalties net radio sites must pay to SoundExchange. The net result will be more use of peer-to-peer networks, and less "legal" access to new music. Though this increase purports to help compensate artists, that is simply not the case.
In March, the CRB increased the royalty rates to 7/100 of a penny per user who listened to each song. Bafflingly, these rate increases are retroactive to 2006.
This is a dramatic increase from the small hourly rate required previously. Setting aside how exactly we can determine listenership, this increase is sure to shut down many streaming radio stations. It seems that the increase money which will make it to artist will only be hundreds of dollars per year, hardly worth the price of shutting down the streaming stations.
Congress can still step in and prevent or amend the increase. To learn more visit savenetradio.org.
May 18, 2007
Here's a link to the NY Times article, Is the US Protecting Foreign Artifacts? Don't Ask. You can access it via the timesselect service, which is free to academics and students. `
Here's a link to Gary Vikan's post. Of particular interest are some of the comments after the post.
Here's an excerpt of what Vikan had to say:
The work of CPAC, which was created in 1983 by legislation intended to give effect to ratification of the UNESCO Convention on cultural property (1970), is to make recommendations to the State Department on applications from foreign nations asking, in effect, that their export laws governing cultural property become our import laws. From its inception, the committee’s activities have been highly secretive; in recent years, its internal deliberations have become increasingly contentious, as the archaeologists’ voice has come to dominate the collectors and dealers on the committee.
The hot issue now is whether the State Department will accept, on CPAC’s recommendation, a sweeping ban on the import of Chinese art and artifacts predating 1911. (The often-repeated counterarguments are that the Chinese have yet to clean up their own art-dealing house and that the share of the Chinese trade is relatively small, and will simply go elsewhere.)
The points made by Kahn, and through him, by his many sources on and off the committee, including its present chair, Jay Kislak, are right on the mark. The archaeologists’ voice and values are disproportionately strong among the CPAC membership, and its activities are overly secretive and exclusionary.
Vikan's perspective is very enlightening, as he served on the CPAC from 2000-2003, and resigned after the looting of the National Museum of Iraq. Both links are essential reading if you are interested in cultural policy or the protection of antiquities.
Much of this controversy centers around China.
Without regard to the reasons given for the panel's secrecy, from an academics perspective it is indeed frustrating that we can't have a clearer picture of how the advisory committee reaches its decisions. However, all 11 requests for import restrictions have been granted. Whether that will continue for China and Cypress remains to be seen. The importance of the committee internationally should not be underestimated, as the US by most accounts is considered the largest importer of art and antiquities.
May 17, 2007
Last week I had the good fortune to present my work at the ILTC Conference in Istanbul. The title of my talk was "New Strategies for Source and Market Regulation of the International Trade in Cultural Property". It went well, and we really enjoyed our time in Istanbul, the highlight of which was a dinner cruise on the Bosphorus. Here's a quick summary of my presentation, in which I talked about the suitability of increased criminal penalties, antiquities leasing, and electronic databases as tools for decreasing the illicit trade:
Cultural property has a universal appeal. Objects of artistic, cultural, archaeological, and historical importance are rapidly escalating in price. As demand for these cultural items increases, the theft and looting of cultural property escalates as well. A number of legal measures have been created to attempt to limit the illicit market in cultural property. With notable exceptions, these restrictions have proved largely unsuccessful in limiting the trade in illicit cultural property, which has been estimated as the third largest black market behind illegal narcotics and firearms. Regulation of the illicit trade in cultural property has been difficult for two reasons. First, many of the current regulatory measures, such as export controls and national patrimony laws, have the unintended consequence of increasing demand for these objects on the black market. Second, the flow of cultural items is international. Many of the World’s most important and historic antiquities are located in the developing world. This international character requires an international regulatory framework. It requires the cooperation of authorities from the industrialized and the developed world. Regrettably, effective cooperation has not yet taken place.
Nearly every nation, especially those rich in art and antiquities, has some form of restriction on the transfer of cultural property. The restrictions at the source of these objects take various forms, and include: export restrictions, a pre-emptive right to buy some objects, or a declaration of national ownership. The United States and the UK have both recently affirmed the notion that their criminal justice system will recognize as stolen objects taken in contravention of a national ownership declaration. This stands as an important step, but only marks the very pinnacle of the regulatory framework, intended only for the most egregious transgressions.
A truly effective regulatory scheme must work in concert with the art and antiquities trade to push the movement of cultural items, and the profits derived from their sale, in beneficial directions. To accomplish this end, I advocate a strong and vibrant arts and antiquities market. However it must be closely regulated to prevent illicit transactions. To accomplish this, I propose a system of regulation and investment which would require arts and antiquities transactions to be conducted openly, with records of transactions, provenance, find-spots, and export permits. Regardless of the other intricate regulatory frameworks we might endorse, the illicit trade will almost certainly continue to flourish without a fundamental shift in the way art and antiquities are bought and sold.
In recent years, the cultural property debate has focused on the extent to which the criminal law can impact the illicit trade. This has unfortunately shifted the discussion away from cultural property policy. Museum curators are forced to acquire objects, not based on their artistic or historical value, but rather on the criminal advice of their counsel. Connoisseur ship has been displaced by other considerations. We should be looking at how best to safeguard archaeological sites, museums, and other historic sites to prevent theft and destruction. A criminal response, in isolation, can never hope to achieve success without overwhelming law enforcement resources or draconian legal measures.
May 16, 2007
As I've said, scientific study is welcome, however the dysfunctional antiquities market gave us a situation where we have a very beautiful Greek statue but are unsure about where it came from. The Getty has already agreed to return the statute, but has taken 1 year to study it.
Sharon Waxman wrote in the NY Times: The Getty has not reached a formal conclusion based on the conference, which was convened at the museum on Wednesday and was closed to the public. But museum officials and some of the experts who attended said their discussions buttressed what the museum says are its own suspicions that the statue, acquired by the Getty in 1988, might have been illegally excavated in southern Italy.
So the panel has suspicions that the statue came from Sicily, but no clear evidence. Clearly the Getty has dramatically shifted the way it acquires antiquities. Since last October it has used 1970 and the UNESCO Convention as a starting date for new acquisitions. The Getty does not appear to be contributing to the illicit trade at present, and that may be the most welcome development. It will be interesting to guage Italy's response in the coming months.
May 8, 2007
May 7, 2007
Pitchfork has an excellent interview with Jeff Tweedy of the band Wilco today. I usually talk about art and antiquities here, but many of the issues which give rise to controversy in the traditional art mediums are present with respect to music as well. The law often struggles to allay the tension between compensating creators and allowing the public to appreciate those creations. In this excerpt Tweedy talks about how the band gives away much of its music.
Pitchfork: Let me ask you about the listening party you set up for Sky Blue Sky, where you streamed it from the website. It's not surprise considering Wilco have always been at the forefront of sharing music online. You streamed Yankee Hotel for a while, and then you did that thing with Doctors Without Borders when A Ghost Is Born came out.
Jeff Tweedy: Fans did, I wouldn't want to take credit for that.
Pitchfork: You stirred the idea a bit at the beginning though, right?
Jeff Tweedy: The idea initially came to us that they wanted to give us some money as an act of good faith because they were downloading the record. We said, "Well we can't really do that. We can't take money; it would be against our contract. We wouldn't feel right about doing that. But if you really want to do something here's a charity that we really believe in." So they set it up after that.
Pitchfork: How much did you end up raising?
Jeff Tweedy: I think $15,000.
Pitchfork: That's pretty great. So few artists are willing to think of new models, you know?
Jeff Tweedy: Yeah I just think it's pretty simple for us. The whole experience with Yankee Hotel Foxtrot validated a lot of ideas we've had. It's not necessarily to make a piece of plastic we have to sell every two or three years. We would love to be able to think that we could do it even if we didn't have a record deal, which we proved to ourselves that we could. We liked the idea of people listening to our music. I guess the simplest way of saying it is that I don't think that artists should expend any energy keeping people from listening or seeing or hearing or reading their art. I think that's antithetical to the whole principle of being an artist.
Pitchfork: When you put up the new one, it only streamed for a little while. Is there any element of hitting the fans before the leak does and trying to head people off at the pass?
Jeff Tweedy: No because, we basically resign ourselves to the idea that when the record label starts sending out promo copies of the record it's out. And very shortly after that, almost anybody who want's it would be able to get it if you wanted it, if you're technically savvy enough to figure out a way to get it-- even from our stream. There's a lot of things that we still have faith in. I still have a lot of faith that there's very few people who are savvy enough to actually produce a good sounding copy of the record. I also believe that in general there is no good sounding copy of the record other than the vinyl. I think that vinyl versions of the last few records are far superior. This one in particular I think is going to sound great on vinyl. Other than that I think its not necessarily heading people off at the pass. I think that it's good for us to have people listen to our music.
Pitchfork: Why do you suppose there aren't more high-profile bands or artists actually coming out and saying that downloads aren't the end of the world?
Jeff Tweedy: I don't have any idea. Fear? Greed? I don't know. Those would be the two principle ideas that I think that would be at work there. I have fear. I have fear as a businessman that it could somehow impact my ability to take care of my family. But I don't think that fear should be catered to above the idea that I made music because I wanted people to listen to it. I think it's really tough for people to make that leap of faith. In particular, when they have a lot of people depending on them or they have a lot of bills to pay. You know, construction efforts underway for a second pool or whatever. In the long run the thing that no one will be able to download is a live music experience. But I also think that there's a lot of good will that exists between musicians and the people that support them and listen to them. And when they're treated well, I still believe that most people want to do the right thing. Not everybody has a lot of money, so I think that I want people to be able to hear it. I think it would be nice if they paid us back for it. That would be great. It's always going to be a better situation for us if somebody cares enough to listen.
Last Friday, the San Francisco Chronicle ran an interesting profile of Bernard Taper, one of the so-called Monument Men who worked to recover works stolen by the Nazi's after WWII. He worked as an art-intelligence officer with the Monuments, Fine Arts and Archives section of the U.S. military. I wonder what became of this section. It hasn't seem to have been involved in any of the major conflicts the U.S. has waged since. Notably the efforts of Matthew Bogdanos in Iraq were on his own initiative because he has a background in Classics. It may be worth examining why this section has disappeared or if it is still functioning. It appears that it was a singular unit charged with repatriation Nazi spoliation. Profiles of these guys are always interesting, and this is no exception. Taper is featured prominently along with some others in the forthcoming documentary titled The rape of Europa. That film is being screened at the San Francisco International Film Festival. For more information click here. Taper has an excellent story to tell as this excerpt shows:
"I was in the Army for three years, and I didn't fire a shot at anybody and nobody fired a shot at me. That's the definition of a good war,'' the white-haired Taper, sharp at 89, says with a smile. But he did his part to bring forth light, in the form of recovered art, from the darkness of the war.
Born in London and educated at UC Berkeley, Taper was drafted into the U.S. Army in 1943. He served in intelligence and infantry units before being sent back to Berkeley to learn Chinese in preparation for work as a liaison officer assigned to Chaing Kai-Shek's army in China. But at the last minute, the entire class was sent to Germany, where the war was over.
"It was the Army. Why do you think they invented words like 'snafu'?" laughs Taper, who was assigned to Patton's Third Army, then sent to Munich to write intelligence reports. Lunching outdoors one day at an officers' club, he fell into conversation with a dashing chap named Walter Horn, an Aryan German who abhorred Hitler and left, became a professor of medieval history at UC Berkeley and saw combat action during the war.
"He started telling me marvelous, fascinating stories about what it was like in his job to search for lost and stolen art,'' recalls Taper, who had begun contributing to the New Yorker and the Nation while serving in occupied Germany. Horn was desperate to go home, but couldn't until he found a successor for his art-investigating job. "When he met me he found his successor,'' says Taper, who told Horn he wasn't an art historian and probably wasn't qualified. Horn said the Monuments section was "lousy with art historians,'' but what was needed was somebody who knew how to ask questions. As a budding journalist, Taper fit the bill.
As a further inducement, Horn told him he would have the use of a white BMW roadster, wouldn't have to wear a uniform, could travel freely without orders and would meet women. "And he said if nothing else, there's all this art you can look at,'' recalls Taper, quick to point out that he got a brown Audi sedan, not the promised BMW. For about six weeks, Taper was in charge of the Army's art-collecting center at Wiesbaden, which was filled with not only looted art but works from various German civic collections.
"They had fantastic stuff there,'' Taper says. "In the office, across the whole back wall, was Watteau's 'Embarkation for Cythera,' and a wonderful Degas, where you look up through the orchestra pit, through the beards of the musicians, at these elegant dancers. It was from the Frankfurt Museum.'' As Taper says in the documentary, "Just that office alone was worth the price of admission to World War II.'' Outside the door stood a 5,000-year-old stone Nefertiti, which also stopped Taper in his tracks. "I couldn't just brush by. I had to stop and commune with her.''
Building on the work of previous Monument Men, such as his friend Stewart Leonard, a bomb diffuser who single-handedly removed 22 mines from the Chartres Cathedral and later opened crates containing priceless books and Dürer drawings, Taper tracked down mostly mid-level missing artworks, by painters like the 16th century Dutch artist Mierevelt and his Flemish contemporary Teniers, as well church statuary and other looted objects.
"Probably the best artwork I helped recover was from Göring's train,'' Taper says, abandoned on a rail siding not far from Neuschwanstein Castle, where Allied troops found a huge cache of stolen art. The locals had heard there was schnapps on board, Taper says, and after stealing the schnapps, they took the rest of the stuff, which included late-Gothic wood statutes and a 15th century School of Rogier van der Weyden painting. "Not bad,'' says Taper, who had the bright idea of tapping the de-Nazifed German police to help him find stolen goods.
Just a thought, but the stories of these Monument Men and the return of stolen art are quite popular and exciting. I wonder if that popularity and the good will they engender may have some kind of a connection to the generous statutes of limitations rules which have been applied to claimants seeking the return of art stolen from their forebears in recent decades.
May 5, 2007
Five paintings by LS Lowry have been stolen at knifepoint. The works may be worth as much as £1.5m. They were taken from an art dealer's home outside of Manchester. It seems the police have released images of the paintings and a composite sketch of one of the thieves. However, they have not put the images on their website. A police spokesperson said, "They must have known Mr Aird was an art collector and that he would have the paintings in the house." The trick of course will be how the thieves can cash in on the theft.
May 2, 2007
Steinhardt is quoted as saying "She and her husband, Leon, have been generous to a fault to all sorts of institutions... Therefore she is a ripe target. Those people who are pursuing her don't seek justice; they seek victory... Further, I would say, Shelby has stood alone, and was not as strongly defended as she should have been by those very institutions to whom she had been a too-generous donor."
Steinhardt is not exactly an impartial actor here though. A phiale was seized from his home in 1997 because the customs declaration form was clearly misstated. Interestingly, had the customs form been accurate, and even if it was conclusively shown the phiale had been illegally exported from Italy, there would have been no legal claim for the objects return. The phiale was seized because the customs form was incorrect.
In any event, the article on White highlights the tension Museums are now facing as they change their acquisition policies, and that may require them to refuse donations from wealthy benefactors who have been collecting for many years, many times without being careful about the provenances of objects which they have acquired.
May 1, 2007
Here's an excerpt:
I get a bit weak-kneed this time of year. It's not the pollen or the anticipation of summer. It's more like a mild case of Stendhal's Syndrome, an affliction said to induce dizziness (and, in extreme forms, nausea and seizures) after unrelenting exposure to beautiful art.
The disease got its name from the novelist, who suffered its effects during a trip to Florence in 1817. I get it in New York. Over the next few weeks, the New York branches of Sotheby's and Christie's will hold their spring auctions for Prints, then Impressionist and Modern Art, then Post-War and Contemporary Art—back to back, one after the other, after the other, after the other, after the other—and the sensory overload makes me swoon.
But it's not the auctions themselves that put me in this state (though they can be fun, too); it's the preview exhibitions of the artworks up for sale. These showings are open to the public for several days before the auction, and they're free of charge. Yet the majority of those who attend are art dealers or collectors. Most people I know go to museums fairly often and pay hefty admission fees for the privilege; almost none of them have ever been to an auction preview or have more than a vague notion that such things exist.
It's an interesting article, and one which only reinforces the idea that the auction market is flourishing right now.
That is an excellent decision I think, and one which should be praised. Why did they choose 1970? That was the year the UNESCO Convention adopted the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. It is seen as a watershed moment in which the international community began to shift its thinking on the cultural property. Nothing legally requires them to pick 1970, but it is an important symbolic date, and that is what this measure essentially is. One would hope that the Museum wasn't purchasing unprovenanced antiquities anyway, and if they did the trustees or museum director could be violating their duties.
Of course an interesting upshot will be that the decision will "prevent our curators, particularly those in the fields of Asian and classical art, from soliciting or accepting gifts from generous donors who bought works of art in good faith." This refers to the situation which seems to be plaguing the Met as Shelby White has donated many outstanding antiquities for display, but there are concerns that many of them may have been illicit. Anderson speaks to this:
As a curator at the Metropolitan Museum of Art from 1981-87, I helped to cultivate the support of two couples whose personal collections of classical antiquities became among the world’s foremost: Leon Levy and Shelby White, and Lawrence and Barbara Fleischman. In neither case did I suspect then or now any malevolent intent on the part of these couples in pursuing objects of great quality. On the contrary, I knew them to be drawn to the remarkable breadth of the classical imagination, and by obtaining works of consummate beauty, they were proud to share their commitment with others. I wrote entries in the catalogues of their respective collections, long after leaving the Metropolitan, out of a sense that the works illustrated in those publications were better off known than suppressed. I maintain that position to this day: forswearing the publication of antiquities lacking comprehensive provenance penalises the works and their makers, and does no service to any potential claimants.
It is, instead, the act of purchasing unprovenanced works that connects with a chain of events leading back to their possibly clandestine removal from a country of origin. I believe that it is essential for all of us who care for the evidence of the past to take no actions that might unwittingly contribute to such removals.
Another important factor in the decision is the IMA's reluctance to be involved in repatriation or title disputes which have plagued other institutions in recent years. As Anderson rightly points out, this legal wrangling prevents institutions from focusing on the art and studying and appreciating it. However, I wonder if this decision might be challenged by friends of the museum or other donors when an institution refuses to accept an unprovenanced, but very valuable or important gift? The possibility seems remote, but there seem to be a growing number of suits challenging the decisions of museums and other cultural institutions as evidenced by the recent controversies in Philadelphia and Buffalo.
In the end, Anderson is arguing for a better museum and collecting culture. One in which the repurcussions in source nations of collecting and curating are taken into account.
He imagines a situation which I think would be ideal, "Our collective goal should be to persuade art-rich countries to join Great Britain, Japan, Israel, and other nations in the creation of a legitimate market in antiquities. Archaeologically rich countries could use funds realised from the open sale of documented antiquities to bolster their efforts to police archaeological sites, and to support research, conservation, and interpretation in museums, while sharing their heritage the world over." To better accomplish this he advocates a greater use of International Loans, similar to the long-term lease idea which I discussed yesterday.
He also proposes a radical idea, which is that unprovenanced works should be donated to the Smithsonian, which would then be solely responsible for the repatriation and other controversies, thereby eliminating many of these headaches for other museums. That is an interesting idea, but do we really want the Smithsonian, the only real National cultural institution in the US to be associated with illicitly-gained objects; especially given its recent high-profile problems?
In any event the article is fascinating, and I really recommend giving it a read. The move is ultimately a symbolic one, but one that may lead to continued reform of the cultural property trade.