Georgina Adam has a very interesting article in the Art Newspaper on the dispute between Michael Marks and Aziz Kurtha over two works by Indian artist Francis Newton Souza. Pictured here is an unrelated work by Souza, Still Life, which was purchased in 1967 for a mere 50 pounds but was sold recently for 173,000 pounds. This increase in value now makes it more profitable for individual's to bring claims for works by Souza which may have been stolen in the past.
As Adam states:
Mr Marks says he bought the two paintings, Head of a Portuguese Navigator, 1961, and Chalice with Host, 1953, in good faith in 2006. He had conducted a check against the Art Loss Register’s (ALR) stolen art database and was not alerted that there were doubts about the works’ ownership despite the fact that they had been registered with the ALR as missing.
Dr Kurtha, who owns a collection of over 200 works by Souza, said that, at some point in the 1990s, some of these were stolen...
The two paintings in the present dispute were registered by Dr Kurtha as missing with the ALR in 2005... Mr Marks, who was then unknown to the ALR, telephoned the organisation to check the provenance of the paintings and paid the ALR search fee with a credit card. Julian Radcliffe, ALR’s chairman, admitted in court that he deliberately misled Mr Marks by telling him there was no claim on the Souzas. Mr Radcliffe said that it was sometimes necessary to mislead people who make enquiries about the database in order to establish identity and bank details, which he did in this case; Dr Kurtha then took Mr Marks to court to recover the paintings.
Speaking to The Art Newspaper, Milton Silverman, the solicitor for Mr Marks, described this as a “potentially nightmare scenario for a dealer. He could buy works of art, certain in his own mind that they are free of any problems, only to find himself landed with a dispute on their title.” Mr Radcliffe told us that the circumstances were exceptional in that Mr Marks was unknown to them. ALR would not act in the same way with a known dealer, collector or auction house, he says.
The emphasis is mine. Marks now has a potential claim against whoever he purchased the works from in 2006, whoever that may be. One would assume such a claim would probably still leave Marks in a difficult position, as works by Souza have been increasing dramatically in value in recent years.
The priority for the ALR would seem to be to return paintings to their original owners, but not necessarily to guarantee the legitimacy of current transactions, as indicated by Radcliffe's admission that the ALR misleads some. Add to that the fact that the ALR sometimes takes commissions for facilitating the return of works of art to original owners, and we are left with what appears to be a troubling state of affairs.
As an aside, I'm not sure what the ALR guarantees when one does ask for a search of the ALR, and I'd imagine they have done their best to disclaim liability in this situation, but I wonder if Marks may have some kind of claim against the ALR itself. Though in this case the paintings have been returned to their original owner, I wonder if perhaps this kind of misleading information would give dealers pause when they are considering whether to consult the database.
The ALR is the most widely-used and cited cultural property database, however it makes no claims to being a cure-all for the problems with the cultural property trade. Though the ALR is in some cases useful, it should not be mistaken for a check on cultural property transactions generally, and it should be pointed out that Julian Radcliffe and the ALR are quick to point out that they do not attempt to police the whole market. What they do, they do well, but there are limitations to its effectiveness. David Gill and Tom Flynn have both pointed out the dubious usefulness of the ALR with respect to recently unearthed antiquities and export restrictions. As the ALR counsel, Christopher A. Marinello has recently indicated via the Museum Security Newwork, "the database does not contain information on illegally exported artefacts unless they have been reported to us as stolen."