Dec 20, 2010

Second Circuit Rules for MoMA

"Hermann-Neisse with Cognac"
Last Thursday, the Second Circuit Court of Appeals upheld a Federal District Court ruling denying the attempts by the late painter George Grosz to seek the return of three works currently held by the Museum of Modern Art in New York. The estate argued Grosz was forced to leave the works with his art dealer when the artist fled Nazi persecution in 1938.

In New York, the limitations period does not begin to run until a claimant demands, and is refused, a disputed work. So after that first request the claimant has three years to bring suit. In this case, the latest time in which that occurred was in 2005, while suit was not brought until April 10, 2010.


"Republican Automatons"
The Grosz estate argued that settlement negotiations were ongoing in 2005, and that under principles of fairness and equity (what the law calls equitable estoppel) the suit should not be time barred. So, an unsuccessful repatriation suit. The Met had declined to borrow at least one of the works in 2006 due to concerns about its provenance.

The disputed works were, Hermann-Neisse with Cognac, Self-Portrait with Model, and Republican Automatons.


Grosz v. Museum of Modern Art, (2nd Cir., 2010)

Dec 17, 2010

Getting the UNIDROIT Convention all wrong

In a disappointing article today in the International Herald Tribune/NYT Global Edition, Souren Melikian manages to royally confuse anyone not familiar with the 1995 UNIDROIT Convention. Though Mr. Melikian has been a long time art editor of the International Herald Tribune, he appears to have a limited understanding of the UNIDROIT Convention. He spends a great deal of time discussing the beauty and merit of antiquities up for auction, but misses the point of the flawed antiquities trade. Instead he should have focused on the history of these objects and the due diligence required by purchasers.


As I've written elsewhere, the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (“UNIDROIT Convention”) was an ambitious effort aimed at harmonizing the private laws of various states so as to reduce the harmful effects that occur when laws conflict. It established common rules for the restitution and return of cultural objects between states party to the Convention.  At present there are twenty-nine states party to the Convention. The UNIDROIT Convention primarily seeks to return objects to their original private owner.  It attempts to fill the gaps in the UNESCO Convention by firmly placing regulatory efforts on the market end of the illicit supply chain. It recognizes the inherent difficulty in relying on developing nations to police their own borders and archaeological sites.  UNIDROIT creates a uniform law which requires cultural property to be returned even if a theft cannot be firmly established. It also allows for a private right of action. Its major focus is the harmonization of private international law. It produced a number of excellent and innovative approaches to the problem. Unfortunately, a number of fatal flaws render its widespread application in most major art-market states highly improbable.

Immediately after its completion, the UNIDROIT Convention was met with a great deal of criticism, especially among art and antiquities dealers. The European Fine Arts Foundation threatened in 1996 to move its fairs away from Basel and Maastricht if Switzerland or the Netherlands ratified the Convention. James Fitzpatrick argued that dealers, collectors and museums could find themselves constantly in court in expensive . . . time-consuming, distracting and debilitating litigation.” Much of this criticism seems unfair and exaggerated, but it would not be a surprising reaction to any effort to seriously modify the art trade.

The best way to understand the UNIDROIT Convention may be to compare it with the 1970 UNESCO Convention. The UNESCO Convention allowed only states party to the Convention to request restitution of stolen or illegally exported objects; the UNIDROIT Convention remedies this oversight by allowing private parties to initiate restitution. Secondly, UNIDROIT attempts to remedy problems with UNESCO’s treatment of undiscovered antiquities. Third, the UNIDROIT Convention applies to unlawfully excavated, or lawfully excavated but unlawfully retained, objects. Unlike the UNESCO Convention, it does not require museum certification or cataloguing by a source nation. Lastly, UNIDROIT provides that a bona fide purchaser of stolen objects will not receive good title. The purchaser must instead return the object, and is entitled to “payment of fair and reasonable compensation,” provided she had no knowledge of the object’s prior theft and exercised due diligence when the object was purchased. This important good faith requirement could act to deter illicit trade, by requiring each purchaser to police their own acquisitions.

The UNIDROIT Convention introduced three significant changes which could have a beneficial impact on the illicit trade in cultural property. First, it provided that good-faith purchasers or acquirers of stolen or illegally exported cultural objects, who have exercised due diligence but who are required to return the objects, are entitled to compensation upon their return. Second, it attempted to limit and describe the situations in which a buyer can claim to have exercised due diligence. Finally, it set out and defined a limited right of return for illegally exported objects.

The biggest provision preventing states from signing on to the Convention is, Article 18 provides, “No reservations are permitted except those expressly authorized in this Convention.” This means that States Party are unable to pick and choose which provisions they accept, making it an international legal instrument with real teeth, and also one that many states are unwilling to sign on to.
  1. Souren Melikian, Antiquities Auctions: Unidroit Convention Drives Up Prices, The New York Times, December 17, 2010, http://www.nytimes.com/2010/12/18/arts/18iht-melik18.html?_r=3&ref=arts&pagewanted=all (last visited Dec 17, 2010).
  2. Derek Fincham, How Adopting the Lex Originis Rule Can Impede the Flow of Illicit Cultural Property, 32 Colum. J. of L. & the Arts 111 (2008).  

Dec 14, 2010

Urice on "Unprovenanced Antiquities and the National Stolen Property Act"

Stephen K. Urice, an Associate Law Professor at the University of Miami has an interesting piece (nicely titled) called Between Rocks and Hard Places:  Unprovenanced Antiquities and the National Stolen Property Act, 40 N. Mex. L. Rev. 123 (2010). He examines the implications of a conviction or acquittal in the investigation stemming from the search of four California museums in early 2008.

From the introduction:


This  article  argues  that  continued  application  of  the  NSPA  in  cases  involving unprovenanced antiquities risks outcomes that undermine one or both of two U.S. policy goals: (1) protecting the global archaeological record and (2) promoting museums’ charitable and educational missions. Accordingly, this article suggests that the current uncertainty in how courts apply the NSPA in the unique circumstances of determining title to undocumented antiquities might best be resolved by pursuing alternatives to continued reliance on the NSPA in these circumstances. 
Part II introduces necessary background information on the concept of provenance;  the  distinction  between  foreign  nations’  export  and  vesting  statutes  (referred  to  collectively  as  “patrimony  statutes”);  and  the  relationship  between foreign patrimony statutes and the NSPA. Part III explores, in detail, the application of the NSPA in criminal cases involving unprovenanced antiquities, emphasizing  the  distinction  between  the  Fifth  and  the  Second  Circuit  Courts  of  Appeals’ approaches.  Part  III  also  describes  Congress’s  1986  amendments  to  the  NSPA, which (without apparent legislative intent to do so) have made application of the NSPA in cases involving unprovenanced antiquities especially problematic. Part IV addresses, in the context of existing U.S. policies, allegations in the search warrants that two California museums possess stolen Thai antiquities. Part V describes potential outcomes of any criminal prosecution under the facts alleged in the search warrants. Part VI concludes with simple sketches of three possible alternatives to the United States’ existing framework for combating trafficking in unprovenanced antiquities.

Dec 10, 2010

The Met Sued in Bolshevik-era Restitution Suit

"Portrait of Madame Cezanne", Pierre Cezanne (1891)
The Met has been sued by Pierre Konowaloff over this work. The claimant argues the work was stolen from his great-grandfather during the Russian Revolution, Ivan Morozov. Morozov was a Russian textile merchant, who collected a number of works by Cezanne. His works were zeized in 1918, and Morozov's home was made a state museum.  This work was apparently purchased by Morozov in 1911, and he owned the work for seven years. In contrast, the Met has had the work for the last 50 years. The work was donated to the Met in 1960 by Stephen Clark, who purchased it from a gallery in 1933.

This suit, if successful, would really extend the limits of restitution claims further into the past to touch not just the Second World War, but the first one as well.

Konowaloff is currently defending a declaratory judgment suit brought by Yale University over the disposition of Vincent Van Gogh's "The Night Cafe". Yale is seeking a court determination that it is the rightful owner of that work, which would preclude a sale by the claimant.
  1. Philip Boroff, Met Museum Sued Over Cezanne Painting Stolen by Bolsheviks From Collector, Bloomberg, December 8, 2010, http://www.bloomberg.com/news/2010-12-09/met-museum-sued-over-cezanne-taken-by-bolsheviks-from-collector.html (last visited Dec 10, 2010).

Dec 9, 2010

Embassy Cables Discuss Odyssey Marine, and a Nazi era Dispute

So the World is buzzing with all the revelations, mundane and otherwise, offered by the release of diplomatic cables via wikileaks. This has touched all manner of foreign and diplomatic relations, even cultural property and heritage issues. The Guardian has reprinted and summarized a series of recent cables which detail meetings between US officials and Spanish officials between 2007 and 2010. The various positions and points of concern related here really don't come as much of a surprise. What is perhaps heartening to note is the importance of these issues at the highest levels of international relations. Nations take these disputes very seriously.

It is certainly possible to over-emphasize the importance of these, but both parties certainly seem to have very different priorities. In a 2008 cable, Spanish Culture Minister Molina is concerned with the then-emerging dispute with Odyssey Marine, while the American Ambassador focuses on Spain's dispute with Claude Cassirer. As the embassy cable summarized,

The Ambassador stressed the USG's interest in direct discussions between the Spanish government and Claude Cassirer, the AmCit claimant of a painting by Camille Pisarro ("Rue St. Honore") in the Thyssen Museum. The Ambassador noted also that while the Odyssey and Cassirer claim were on separate legal tracks, it was in both governments' interest to avail themselves of whatever margin for manuever they had, consistent with their legal obligations, to resolve both matters in a way that favored the bilateral relationship. The minister listened carefully to the Ambassador's message, but he put the accent on the separateness of the issues. Molina said that no Spanish government could return the painting (if this is what the claimant wants). To begin with, while the minister presides over the board that manages the Thyssen Museum's collection, the minister could not oblige the board to return the painting without a (Spanish) legal judgment. The minister added that paying compensation, as the British government has reportedly done in a number of cases, also posed legal problems.

  1. Giles Tremlett, WikiLeaks cables: Art looted by Nazis, Spanish gold and an embassy offer, The Guardian, December 8, 2010, http://www.guardian.co.uk/world/2010/dec/08/wikileaks-us-spain-treasure-art (last visited Dec 9, 2010).

Dec 7, 2010

The Morgantina Treasure Returns to Sicily

"Here they are not orphans."

So says Enrico Caruso, the director of the Archaeological park in Morgantina upon the installation of the Morgantina Silver in Aidone, Sicily. The 16 ancient Greek silver objects had been partially returned to Italy as a part of a 2006 agreement between Italy and the Met, and will now be on display near the site where they were likely looted nearly 30 years ago. Both Italy and the Met will share joint custody of these objects, and the objects will rotate between Aidone and the Met every four years. In this way visitors to both the Met and Aidone will be able to decide for themselves where they prefer to view and appreciate this collection of objects.

One of the tireless campaigners for the return of the silver objects has been Malcolm Bell III who is quoted in the New York Times:

“'The silver can perhaps shed light on the brutal, dramatic circumstances of the final years of the Second Punic War and, seen within the framework of the house, we get a sense of the art and the material culture of Hellenistic Sicily,' said Malcolm Bell III, professor emeritus of art history and archaeology at the University of Virginia and the director of excavations at Morgantina. 'They have truly been recontextualized, and that is really important.'”
The Morgantina Objects, as displayed at the Met

And yet I think the reason this recontextualization is important can be tied to the experience of viewing the landscape, the situs of the objects, and the current culture in the region.

Next year the Getty will return the statue of Aphrodite to Aidone, and residents there surely hope visitors will seek out the repatriated objects and boos the local economy. One of the striking themes which emerged from Elisabetta Povoledo's reporting of the story are the economic benefits which will accrue to the city and territory when visitors flock to see the ancient objects. There appears to be a shift in culture, away from tolerating the looting of sites and the clandestine sales of these objects and a move towards responsibly managing these pieces of heritage.

And yet I wonder as well whether much would be made of this collection of silver, or the Aphrodite had these objects not been displayed in Los Angeles and New York, and then sent back in a very public way.
  1. Elisabetta Povoledo, Morgantina Silver Returns to Italy in Aidone Museum, The New York Times, December 5, 2010, http://www.nytimes.com/2010/12/06/arts/design/06silver.html?_r=2&sq=Morgantina&st=cse&adxnnl=1&scp=1&adxnnlx=1291737663-LJxPa3Cb/2lTVd2f0CM/fg (last visited Dec 7, 2010).

Dec 6, 2010

Footnotes

Dec 2, 2010

More Collapsing Structures in Pompeii

Sylvia Poggioli/NPR
The Berlusconi government is coming under fire for failing to protect buildings at Pompeii and elsewhere from the elements. A piece of Rome's colosseum fell, part of the home of Emperor Nero crumbled, and now buildings at Pompeii are being damaged by the elements.

All this while Economics Minister Giulio Tremonti said "you can't eat culture" as he cut funds for the culture ministry. I think anyone who has experienced the delights of Porchetta might seriously disagree with that assertion. That dish was mentioned by Roman writers as early as 400 BCE.

Sylvia Poggioli reports that:

Budget cuts led to a drastic drop in the number of guards, so it's easy to sneak into the houses and get a glimpse of ancient frescoed walls that are exposed to the elements. Made with humble local stone, these homes were not built to last 2,000 years — all the more need for routine maintenance.
These objects are part of Italy's cultural heritage, but they are part of our heritage as well. I'm frustrated that the best the Berlusconi government seems able to do is to use Disney as a model for the care and protections of these sites, as Luigi Necco puts it "Why this Disneyland here in the center of Pompeii . . . the center of a human tragedy of 2,000 years ago?"
  1. Sylvia Poggioli, A Collapse In Pompeii Highlights Neglect In Italy NPR, http://www.npr.org/2010/12/02/131581852/a-collapse-in-pompeii-highlights-neglect-in-italy (last visited Dec 2, 2010).

Nov 23, 2010

ARCA Panel at the 2010 American Society of Criminology

File:MalteseFalcon1930.jpgLast Thursday ARCA sponsored an antiquities panel held at the American Society of Criminology meeting in San Francisco. It was a lively panel, and I always enjoy getting a chance to discuss these issues in person, to an interested audience. San Francisco was a great setting for this kind of thing, and though the conference hotel was located near the Tenderloin, in the old stomping grounds of Dashiell hammett, I managed to restrain myself and avoid making any pained "Maltese Falcon" references, though I'm unable to resist here. What follows are a few of my thoughts which I jotted down during the panel.

Kimberly Alderman began the panel by examining the connections between art crime and organized crime and the drug trade. The connection matters, as it may be one way to help highlight the problem of the theft and looting of sites, as organized crime and illegal drug sales will draw the attention of law enforcement more readily. Yasmeen Hussain followed, and discussed the role of antiquities issues in international relations. I was really struck that there may be more room in the debate for political scientists to weigh in on these issues in a more direct way, perhaps offering frameworks for useful dialogues which can "build capacity" as Yasmeen argued. Erik Nemeth followed and really opened my ideas to the idea of "cultural intelligence" and the need to assess the "tactical and strategic significance of antiquities and cultural heritage sites". I ended the panel by looking in some detail at the Four Corners antiquities investigation, and argued that the criminal offenses at the Federal level are inconsistently applied and do not really do a very good job of regulating and changing the underlying nature of the market.

One interesting idea which emerged from the questions after the panel was Simon Mackenzie's question about whether the UN definition of organized crime could or should be applied to certain parts of the antiquities trade like auction houses. The definition states that organized criminal groups are "a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences. . .". Kim responded by noting that even if these groups are not actively and intentionally engaged in the crimes, they may be unwitting actors or play a part in an organized criminal network, referencing the work of Edgar Tijhuis.

Overall, it was a terrific weekend, another Cultural Property panel with Blythe Bowman Proulx, Matthew Pate, Duncan Chappell, and Simon Mackenzie was terrific as well. Thanks to all the panelists, and especially the volunteers who put together Thursday evening's reception at the Thirsty Bear.

(cross-posted)

Yale Says Machu Picchu Artifacts Will Return

Yale has announced objects from Machu Picchu will be returned to Peru, and that an agreement is being "formalized". It seems the objects will return to Peru early next year, which will bring an end to the ongoing lawsuit brought by Peru. Hopefully the two sides have reached a mutually beneficial compromise, and an agreement is close. But remember, an agreement has been announced before.

Nov 12, 2010

Footnotes

The Collapsed House of the Gladiators at Pompeii

Nov 11, 2010

ARCA Panel at the 2010 American Society of Criminology 11/18 (UPDATE)

If you like beer and art crime next week's American Society of Criminology Meeting in San Francisco will have you sorted.

First, ARCA will be sponsoring a panel titled "Antiquities Trafficking:  Complementary Countermeasures". I'll be the discussant for the panel, so I hope if you are in the area or attending the conference you will consider attending.
  • Cultural Intelligence: Data Sources on the Motivation and Means for Trafficking - Erik Nemeth (ARCA)
  • The Difficulty in Using Criminal Offences to Police the Antiquities Trade - Derek Fincham (Assistant Professor, South Texas College of Law/ARCA)
  • Cultural Property and International Relations: Implications in Dialogue - Yasmeen del Rosario Hussain (CUSP, Dhaka, Bangladesh)
  • Honor Amongst Thieves: The International Subculture of Art Crime - Kimberly L. Alderman (University of Wisconsin Law School)
More details on the panel are posted below after the jump. There also looks to be a very promising panel the next morning titled "Cultural Property Crime" at 8 am titled "Cultural Property Crime" which may be of interest as well.

And second, that evening ARCA will also be sponsoring a reception at the nearby Thirsty Bear in San Francisco:

Thursday, November 18
6.30 p.m. to 8.30 p.m
Thirsty Bear
661 Howard Street
San Francisco, CA 94105
(Directions)

ARCA warmly invites those in the Bay area to join us for some free drinks, nibbles, and lively discussion about art crime and cultural heritage protection. This is an excellent opportunity to meet ARCA staff, volunteers, and experts and professionals in the field of art crime.  

Egypt Secures Return of 19 Objects

One of the 19 objects returned to Egypt by the Met
The Met will return object to Egypt which had been unlawfully removed from Egypt after the excavation of Tutankhamen's tomb. Archaeologist Howard Carter discovered the tomb in 1922, and at the time some archaeologists may have kept some of the objects they found.

As the Met's Director Thomas Campbell said in a statement "Because of precise legislation relating to that excavation, these objects were never meant to have left Egypt, and therefore should rightfully belong to the government of Egypt".

These objects will likely assist Dr. Zahi Hawass in his attempts to secure the return to Egypt of objects which are very famous, which were removed from Egypt much longer ago—the Rosetta Stone and the Bust of Nefertiti. Hawass has made clear that he is seeking to fill a new national museum in Cairo with many of these renownd objects.
  1. Kate Taylor, Met to Repatriate Objects From King Tut’s Tombs to Egypt, The New York Times, November 10, 2010, http://www.nytimes.com/2010/11/10/arts/design/10met.html?_r=2 (last visited Nov 11, 2010).
  2. Ashraf Khalil, Egypt Hunts Ancient Artifacts, wsj.com, November 11, 2010, http://online.wsj.com/article/SB10001424052748704689804575535662169204940.html (last visited Nov 11, 2010).

Nov 5, 2010

Applications Wanted for the 2011 ARCA MA Program

ARCA (the Association for Research into Crimes against Art) is now accepting applications to its third Masters program in the study of art crime and cultural heritage protection. Both the application and prospectus are available here:

http://artcrime.info/education.htm

Applications are due in early January, and we try to keep enrollment to a small number, probably under 25.  This really is a special program, and a terrific opportunity for a wide variety of folks interested in careers which touch art and heritage crime.  We try to balance practical courses in security measures with theoretical grounding in law, policy, art history and criminology.


I am excited to have the opportunity to spend most of the summer in Amelia volunteering as the Academic Director. Frankly, I feel a bit guilty calling this a 'volunteer' position. I Teach writing to law students here at South Texas the rest of the year, but I really look forward to the opportunity the ARCA program provides each summer to teach and discuss my first love—art and heritage.  My wife Joni will be on site as well as the managing director of ARCA, and our President and Founder Noah Charney will be a regular presence.  The faculty are a terrific bunch from all over the world who bring a great deal of practical experience to the courses. 


A house in Amelia
As the prospectus aptly puts it, this program provides in-depth, Masters level instruction in a wide variety of theoretical and practical elements of art and heritage crime:  its history, its nature, its impact, and what can be done to curb it.  Courses are taught by international experts, in the beautiful setting of Umbria, Italy.  Topics include the history of art crime, art and antiquities law and policy, criminology, the laws of armed conflict, the art trade, art insurance, art security and policing, risk management, criminal investigation, law and policy, vandalism and iconoclasm, and cultural heritage protection throughout history and around the world.  This interdisciplinary program offers substantive study for art police and security professionals, lawyers, insurers, curators, conservators, members of the art trade, and post-graduate students of criminology, law, security studies, sociology, art history, archaeology, and history.

I am more than happy to answer any questions (fincham "at" artcrime.info) about the program, as is ARCA's Business and Admissions Director Mark Durney (ma "at" artcrime.info).

Nov 4, 2010

Fisk Can Sell the Art, Essentially Loses 2/3 of the Proceeds

What Would O'Keeffe Do Today?
Chancellor Ellen Hobbs Lyle managed to frustrate all sides of the Fisk University dispute with the latest ruling in the case.  She has ruled on Fisk University's request to sell a partial interest in the Stieglitz Collection to the Crystal Bridges Museum in Arkansas.  The University can sell the half-interest to the Crystal Bridges, but it can only use $10 million of the proceeds "for its viability". The remainder of the proceeds will be put in an endowed fund to maintain a "Nashville connection for the collection". Income from the fund would be paid to Fisk to maintain and display the collection when it is in Nashville. Donn Zaretzky does not seem to understand the logic—and I'm not sure I do either.  He asks:

Was the "role" O'Keeffe "designed" for Fisk equal to one-third of the, um, total "roles" involved in the gift? Or that helping Fisk was (exactly) half as important to O'Keeffe (as measured by the old intent-o-meter) as making sure the work never left Nashville? It seems a little arbitrary to me.
There is just no way for us to know what O'Keeffe would have wanted. I think a better policy would allow deaccession in limited circumstances, but adopt the approach the United Kingdom has taken with respect to export of art and delay the sale for an extended period of time to allow other public institutions an opportunity to keep a work in the 'public trust'. When a work carries a special connection to a region, cultural institutions and localities should be given a first opportunity to raise the needed funds. The Tennessee Attorney General wants the art to stay in Nashville, but he did not want to compensate Fisk appropriately. I just do not see the injustice here. A financially troubled and storied institution, whom O'Keeffe wanted to support decades ago can receive a much-needed benefit with the partial sale of works of art that can be better preserved and seen by a wider audience.

In response to the ruling Fisk University President Hazel O'Leary said "We are pleased with the court’s ruling that we can consummate the sharing agreement with Crystal Bridges, . . .  However, the court’s decision to restrict $20 million of the funds so that interest from the endowment is used to support the art is excessive." Tennessee Attorney General Bob Cooper did not seem any happier with the ruling "We are disappointed with the approval of the Stieglitz Collection’s sale to the Crystal Bridges Museum in Arkansas contrary to the express wishes of the donor. . .".

Lee Rosenbaum, who seems to believe art should never move anywhere argues this is a violation of donor intent.  Yet the court makes abundantly clear that Georgia O'Keeffe had failed to take the "necessary legal steps of reserving a reversionary right in the Collection". In fact, O'Keeffe had, according to the Tennessee Court of Appeal given a general charitable gift, and her successors are unable to claim now that her gift came attached with special conditions. I am sympathetic to Rosenbaum's frustration with the decision. It seems to split the dispute so evenly that neither side can be very pleased—with the exception of the Crystal Bridges Museum which will now get access to the collection for half the year.  Yet Rosenbaum claims that the sale of the work violates O'Keeffe's intent. Unless she has the power to speak to the late artist beyond the grave there is absolutely no evidence, and we cannot ever really know for certain whether O'Keeffe would have blessed this sale.  All we do know is that she did not anticipate this circumstance, and certainly placed no legally cognizable restrictions on the collection.


  1. Jennifer Brooks, Fisk art ruling upsets both sides, The Tennessean, November 4, 2010, http://www.tennessean.com/article/20101104/NEWS01/101104012/Fisk-art-ruling-upsets-both-sides (last visited Nov 4, 2010).
  2. Robin Pogrebin, Court Says Fisk University Can Sell Stake in Art Collection - NYTimes.com, New York Times, November 4, 2010, http://artsbeat.blogs.nytimes.com/2010/11/04/court-says-fisk-university-can-sell-stake-in-art-collection/ (last visited Nov 4, 2010).
  3. Lee Rosenbaum, Judge Approves Fisk/Crystal Bridges Deal, Restricts Use of Walton’s $30 Million - CultureGrrl, http://www.artsjournal.com/culturegrrl/2010/11/judge_approves_fiskcrystal_bri.html (last visited Nov 4, 2010).

Nov 3, 2010

Stolen Degas Work Revealed as Stolen Before Auction

"Blanchisseuses souffrant des dents" by Edgar Degas, stolen in 1973
This work was recognized by a an individual from Le Havre France as a painting which had been stolen in 1973. The individual recognized the long-missing painting in Sotheby's auction catalogue.  It was slated for sale today before the auction house withdrew it. The French Culture Ministry says that it will negotiate the return of the work, and that the seller "seems to be of good faith". The case speaks to the difficulty with multiple stolen art databases. The painting is apparently on a museum data list in France, but it is unclear from the initial reports whether the work was reported to the Art Loss Register, the leading stolen art database.


  1. Stolen Degas painting resurfaces at Sotheby's auction, AFP, November 3, 2010, http://ph.news.yahoo.com/afp/20101103/ten-france-us-art-painting-auction-degas-1dc2b55.html (last visited Nov 3, 2010).
  2. Stolen Degas painting discovered at New York auction, RFI, November 3, 2010, http://www.english.rfi.fr/americas/20101103-stolen-degas-painting-discovered-new-york-auction (last visited Nov 3, 2010).

Nov 2, 2010

Footnotes

"Tobias and his Wife" (1659), recently attributed to Rembrandt

Nov 1, 2010

Former National Archives Department Head Under Investigation

A former department head at the National archives is under federal investigation after Federal agents searched his home last week.  Leslie Waffen had worked at the national archives for 40 years, heading the Motion Picture, Sound, and Video unit. Federal agents seized material from his home last Tuesday and searched his home. There are no details yet about what kinds of items were recovered.

Inspector General Paul Brachfeld is quoted in the TBD piece detailing the investigation last week: "The threat is there. Incidences have transpired and they continue to transpire, and my job is to, A, investigate active cases and, B, educate the public".  Brachfeld offers more details on the National Archives Archival Recovery Team (ART) in the fall volume of the Journal of Art Crime, which will be available in early December. To subscribe see http://www.artcrime.info/publications.  

The Wright Brothers missing Airplane patent
One of the biggest challenges for the National Archives is its role as a repository for the people. It is open to the public, but it contains a massive amount of material. Much of this has not been systematically inventoried. By way of example there are stores of government documents in salt mines in Hutchinson Kansas.  Stored there are dismantled pieces of the hospital room where President John F. Kennedy was treated after he was shot. Given all of this material, and the access the public has, one of the biggest problems will always be insider thefts. The problem of the employees of the archives taking valuable objects and keeping or selling them.  The Government Accountability office recently issued a report on the National Archives after items had gone missing.  Lost items include the Wright Brothers patent for the first airplane, Eli Whitney's patent for the cotton gin, a copy of President Roosevelt's "Day of Infamy" speech, as well as target maps of Hiroshima and Nagasaki.

These insider thefts are a betrayal of one's profession, but also rob future generations of these important pieces of their past.  To see a truly staggering list of missing documents, look at this list of missing historical documents and items.
  1. Elahe Izadi, National Archives agents raid home of Leslie Waffen, former archives department head, TBD, October 29, 2010, http://www.tbd.com/articles/2010/10/national-archives-agents-raid-home-of-leslie-waffen-former-archives-department-head-26544.html (last visited Nov 1, 2010).
  2. Audit Shows Records At National Archives At Risk : NPR,  http://www.npr.org/templates/story/story.php?storyId=130844620 (last visited Nov 1, 2010).
  3. U.S. GAO - National Archives and Records Administration: Oversight and Management Improvements Initiated, but More Action Needed, http://www.gao.gov/products/GAO-11-15 (last visited Nov 1, 2010).
  4. Faye Fiore, Guardians of the nation's attic - Los Angeles Times, L.A. Times, August 8, 2010, http://articles.latimes.com/2010/aug/08/nation/la-na-treasure-hunters-nu-20100809 (last visited Nov 1, 2010).

Oct 26, 2010

Setting the Price Point for Stolen Art

Noah Charney was interviewed by Kai Ryssdal of Marketplace yesterday.  Charney argues that the majority of art theft after World War II can be traced to organized crime syndicates, and that the media actually helps set the price point for the black market transfer of high profile works of art.

The interview appears after the jump.

Oct 25, 2010

China Wants its Rabbit and Rat Back

China looks to be redoubling its efforts to repatriate the bronzes from the Summer Palace, enlisting Jackie Chan, erecting a statue of Victor Hugo who decried the looting in 1860, and circulating a petition.

From AFP:

China has renewed a call for the return of relics looted from the Old Summer Palace in Beijing 150 years ago -- an act seen as a cause of national humiliation at the hands of Western armies.
The Yuanmingyuan, a summer resort garden for the emperors of the Qing Dynasty (1644-1911), was pillaged by a joint British and French military expedition during the second Opium War on October 18-19, 1860.
Cultural officials have urged private collectors in China to forgo profits from the antiquities trade and return the looted relics, the China Daily reported Tuesday.
The Yuanmingyuan park authority has also called on museums to return such items, and for a boycott on auctions featuring relics, the Global Times added. . . .
"At least 1.5 million relics from the Yuanmingyuan have either been looted or otherwise lost over the years," the China Daily quoted Chen Mingjie, head of the Yuanmingyuan park administration, as saying.
Xinhua news agency, citing the UN cultural body UNESCO, said some 1.64 million Chinese relics are housed in more than 200 museums in 47 countries, some of which are believed to have been looted from the Yuanmingyuan.
In recent years, cultural relic experts from China have sought to categorise and bring back looted Chinese antiquities, but their efforts have been waylaid by legal and historical obstacles, the China Daily said.

From Medici to Deutsche Bank

Why do banks buy so much art?  To earn prestige apparently. Yet that prestige may come at a cost as banks do not want to be seen spending extravagantly in the wake of the mortgage crisis and bailouts.


Few banks collect art to make money. A liquidation auction of art from collapsed investment bank Lehman Brothers in London on Sept. 29, for example, raised $2.6 million. Not bad, but it won't make a dent in the $613 billion in liabilities the bank had run up when it folded.
Art confers respectability and respect, according to Joan Jeffri, director of the arts-administration program at Columbia University's Teachers College, and banks need those more than ever. From the mighty Medici banking dynasty in Renaissance Florence to the giants of the 19th century, like John Pierpont Morgan, art has been used to project status and power.
You could argue that the banks have done a better job of acquiring art than they have of acquiring financial assets. What's more valuable: a Richard Diebenkorn painting or a toxic collateralized debt obligation? "The people responsible for managing these corporate collections have professionalized," Jeffri says. "Whereas it was once the wife of the CEO or some personal friend managing the CEO's interest in art, now banks have art departments and on-staff curators."


  1. Eben Harrell & Frances Perraudin, Cultural Assets: Banks Stock Up on Art, TIME,  http://www.time.com/time/magazine/article/0,9171,2024218,00.html?artId=2024218?contType=article?chn=bizTech (last visited Oct 25, 2010).

SAFE Award Reception

SAFE (Saving Antiquities for Everyone) will be honoring four individuals in New York this week.  From their announcement:
On October 29, 2010, SAFE|Saving Antiquities for Everyone will be honoring four distinguished individuals who use their law enforcement and legal expertise to passionately combat the illicit antiquities trade and fight to protect cultural heritage:

  • James E. McAndrew - a special agent with the Department of Homeland Security 

  • Robert Goldman - a well-known attorney and art crime expert. 

  • David Hall - U.S Attorney and Special Prosecutor for the FBI Art Crime Team.  

  • Robert Wittman – Founder of the FBI’s Art Crime Team and New York Times Best Selling Author of Priceless: How I Went Undercover to Rescue the World's Stolen Treasures.


    Oct 20, 2010

    Another Federal Circuit Rules Against Claudia Seger-Thomschitz

    "Two Nudes (Lovers)", Oskar Kokoschka
    The First Circuit Federal Court of Appeals in Boston has held that the MFA Boston is entitled to retain ownership of this work. The work was the subject of a sale in 1938 to a dealer in Paris.  The MFA Boston purchased this work in 1972, attorneys for the claimant contacted the Museum in 2007 about securing the return of the work, and the Museum brought suit in January of 2008 to seek a declaratory judgment of the work, precluding any claim by Ms. Seger-Thomschitz.

    The history of the work is complicated.  It depicts the artist and Alma Mahler, the wife of Gustav Mahler. The claimant argued the painting was sold under duress by Oskar Reichel a physician and gallery owner in Austria. The work had been consigned on several occasions to an art dealer, Otto Kallir. Kallir later left Vienna, eventually coming to New York, and he brought this and some other works of art with him. He sent money to Reichel's sons at this point. In 1939, the work was sent to Paris; in 1945 it was sold to a New York dealer for $1,500; Sarah Blodgett purchased the work in the 1940s; she gave the work to the MFA Boston in 1972. Claudia Seger-Thomschitz, though apparently not a blood relative of Reichel, had nonetheless been designated as the sole beneficiary of his estate and was described as his "select-niece".

    The claimant learned in 2003 that she might have a claim to the work, and though she is a nurse with no professional expertise in nazi-era suits, the court imposed a burden on her to seek the return of the work.  The Court made clear it was not judging the legality of the museum's acquisition of the work in 1973, pointing out that

    Precisely because they do not address the merits of a claim, statutes of limitations do not vindicate the conduct of parties who successfully invoke them. Although we make no judgment about the legality of the MFA's acquisition of the Painting in 1973, we note the MFA's own disclosure that, when confronted with Seger-Thomschitz's claim, it initiated a provenance investigation for the Painting that it had not done before. The timing of that investigation may have been legally inconsequential in this case. However, for works of art with unmistakable roots in the Holocaust era, museums would now be well-advised to follow the guidelines of the American Association of Museums: "[M]useums should take all reasonable steps to resolve the Nazi-era provenance status of objects before acquiring them for their collections — whether by purchase, gift, bequest, or exchange." American Association of Museums, Guidelines Concerning the Unlawful Appropriation of Objects During the Nazi Era (Nov. 1999)
    The decision comes just as the Jewish Claims Conference has launched a database with 20,000 objects from the Einsatzstab Reichsleiter Rosenberg (ERR), the Nazi's art-looting task force.  For more on the database, see Catherine Sezgin's excellent discussion here. Perhaps that database will urge more museums and private owners with objects once owned by Nazi-era victims, which was surely one of the primary motivations for the  initiative. Because court actions are difficult options for claimants. In August the 5th Circuit Court of Appeals held Ms. Seger-Thomschitz did not have a timely claim to another Kokoschka work against Sarah Blodgett Dunbar who had inherited the work in 1973 because too much time had elapsed and Dunbar had acquired title to the work via prescription.
    1. Museum of Fine Arts, Boston, v. Seger-Thomschitz,--- F.3d ----, 2010 WL 4010121 (1st Cir., 2010).
    2. Dunbar v. Seger-Thomschitz, 615 F.3d 574 (5th Cir., 2010).  

    Oct 18, 2010

    Marion True Interview

    The Chimera d'arezzo, on loan at the Getty from the Museo archeologico di Firenze 
    Hugh Eakin has an interview with Marion True in the online version of the New Yorker. She seems relieved her trial is over, but also a little angry that she was the sacrificial curator:


    There is the remarkable fact that without ever reaching a verdict, the trial had an enormous effect on American museums.
    My greatest sadness is that the Italians were able to intimidate the entire American art world, and especially museums, without having to produce any evidence at all. Why didn’t museums band together and say, “How are we going to deal with this?” They ran off instead to make their own deals—deals which may not exactly be very good in the long run. Why did we hand over all this stuff without asking for more documents? The trial was a gigantic threat that everyone reacted to. The message was, “You could be next.”

    Another irony is that precisely some of the changes in museum standards you were calling for in the nineteen-nineties have now come to pass. There is much more talk now of using major loans from archaeological countries in lieu of purchases—something that you had been advocating for many years.
    That’s right. But I haven’t seen a genuine opening about loans. There are plenty of things that could be done in loans, possibilities for collaborations. Italy has lent the Chiamera of Arezzo to the Getty, a kind of trophy piece. In truth, there are hundreds of objects sitting in the basements of Italian museums, at Pompeii, everywhere, that need to be conserved. Why not lend them to American museums for conservation work, and so they can be seen?

    Has the Getty made any effort to reconcile with you?
    No. And I have nothing but the greatest contempt for them in the world. They acted like I ran the place. Above me I had a chief curator who was deputy director, a director, an in-house counsel, a president, a board of trustees to whom the president reported, and a chairman of the board. What about the lawyers who drafted the acquisition policy, who were supposed to be vetting all documents? They were perfectly happy to assure all that [the alleged acquisition of illegal art] was my work. Never once have [former Getty director] John Walsh or [his successor] Deborah Gribbon stepped forward to say one word about their responsibility.


    Read more 
    http://www.newyorker.com/online/blogs/newsdesk/2010/10/marion-true.html#ixzz12j9eQuDR

    Oct 15, 2010

    Footnotes

    Oct 13, 2010

    Five-year Trial of Marion True Ends

    The Italian case against former Getty Museum antiquities curator Marion True, seen at the Los Angeles museum in 1998, has abruptly ended.
    Marion True, while still at the Getty
    Jason Felch reports today that the trial of ex-Getty Museum curator Marion True concluded with a "whimper" today.  That seems exactly right.  No verdict was reached, no dramatic finish, only the mundane operation of an Italian legal technicality which ended the trial because too much time had elapsed. 

    Italy's renewed focus in recent years on the flow of antiquities into American Museums has resulted in a number of embarrassing returns by American institutions, and no one exemplified that shaming more than Marion True, who would be photographed every time she entered the court.  This trial has been proceeding along in fits and starts for the last five years.  When she was charged, it was the first time an American Museum official was charged by a foreign government, but it has not been the last.  The trial was a lightening rod of sorts, channeling opinions about the antiquities trade and the American Museum community, all to one very high profile, but also very slow legal proceeding.  As Felch points out, during the 5 year legal proceeding we have seen the return of more than 100 looted or stolen antiquities from American museums to Italy.   
    1. Jason Felch, Charges dismissed against ex-Getty curator Marion True by Italian judge [updated] LA Times Culture Monster, http://latimesblogs.latimes.com/culturemonster/2010/10/charges-dismissed-against-getty-curator-marion-true-by-italian-judge.html (last visited Oct 13, 2010).
    2. Nadja Brandt, Italy Drops Conspiracy Charges Against Ex-Curator Marion True, Getty Says, Bloomberg, October 13, 2010, http://www.bloomberg.com/news/2010-10-13/italy-drops-charges-against-ex-curator-marion-true-getty-says.html (last visited Oct 13, 2010).
    3. Elisabetta Povoledo, Case Involving Former Curator Marion True Ends, Arts Beat, New York Times, http://artsbeat.blogs.nytimes.com/2010/10/13/case-involving-former-curator-marion-true-ends/ (last visited Oct 13, 2010).

    Oct 6, 2010

    Stealing the Mystic Lamb Review

    I've just finished reading Noah Charney's "Stealing the Mystic Lamb:  The True Story of the World's Most Coveted Masterpiece".  This review should probably begin with a disclosure.  Noah is a friend and colleague, first an internet acquaintance, and now we meet up every summer in Amelia during ARCA's MA certificate program which he founded

    This work tells the story of one massive 2-ton altar piece, the single most stolen work of art of all time, and one that should be familiar to anyone who has taken an introduction to art history course.

    After dropping the reader into history as allied forces are searching for the altar piece during World War II, we learn early on that this work was the prize of Hitler and Napoleon.  That this massive masterpiece was nearly destroyed many times over.  Yet somehow it has endured. 

    And we should all be glad it has.  The object itself is stunning, Charney in the first chapter takes the reader through the importance of the painting itself, how it helped launch the career of Jan van Eyck, how art historians have puzzled over how much of the work was completed by van Eyck's brother Hubert, how the artist used intricate symbolism, how it helped usher in the era of oil painting and beautiful detail.  But perhaps most importantly, the discussion of this painting and all it symbolizes reminded me why art matters, and how a stunning work of art can change the way we all see the world, and each viewer gets a chance to re-learn or even re-evaluate those shifts in opinion.  And in the end the work begins with a lively account for why individuals have stolen, mutilated, and coveted this work of art.

    Next the reader learns about the artist himself, about the "Magician in the Red Turban". the reader also learns about attribution, the recent decline of connoisseurship in the appreciation of art, how the movement of art can cause the re-appraisal of works of art as  happened when the Albert Barnes Collection is preparing to move and many of its Old Master paintings were found to have been misattributed.  We learn about the creation of the Louvre, the place the Ghent altarpiece played in the creation of that museum, and how many of the arguments made for a universal museum were made by Dominique Vivant Denon who served as the architect of the art looting during Napleon's reign.   

    Charney spends great care telling the story of the altarpiece during both World Wars, noting the debt we art theft writers owe to Karl Meyer, Robert Edsel and Brett Witter's fine work telling the story of the Monuments Men, and Lynn Nicholas among many others.  Yet what really comes through in Charney's book is a breathless story which merges history, towering figures like Napoleon or Hitler and their associates, art, artists, and imagery that revalidates why so many are interested in the study of art theft:  these are really good stories.  And it ends with an epilogue, yet another of the work's enduring mysteries, that should not be spoiled here.  

      Oct 5, 2010

      Will the Supreme Court Take Up Nazi-era Limitations Periods?

      It might.  The U.S. Supreme Court has asked the Solicitor General to submit a brief on the issue of whether states can enact more permissive limitations rules when they may conflict with the foreign affairs doctrine.  Marei Von Saher has been pursuing her claim against the Norton Simon Museum over these two works by Lucas Cranach the Elder.  Von Saher is seeking certiorari with the Supreme Court—and the court has not granted review, it just wishes to hear the position of the federal government first, before deciding whether to review the case. 

      The 9th Circuit Court of Appeals ruled earlier this year that California may not set aside special rules for Nazi-era claims because it conflicted with the federal government's ability to govern foreign affairs.  The claimant Marei Von Saher is the successor in interest to Jacques Goudstikker who bought the works in a 1931 auction in Berlin. The works remained there in Amsterdam until 1940 when the Nazis instituted a forced sale. After the war, Desiree Goudstikker reached a settlement with the Dutch government. She received some of her husband's inventory, but did not claim another set of works because that would have meant returning the purchase price received from the Germans.

      The Dutch government transferred these Cranachs to George Stroganoff-Scherbatoff, the descendant of a noble Russian family who was thought to have lost the paintings to the Bolsheviks during the Russian Revolution.  Stroganoff-Scherbatoff sold these works to the Norton Simon Museum in 1971.  The 9th Circuit held first that California's special limitations rule for works looted during the Holocauset era, Sec. 354.3 conflicts with the foreign affairs doctrine.  Though it does not conflict with Executive Branch policy via the President, it does conflict with a power reserved to the Federal government, as California created a "world-wide forum for the resolution of Holocaust restitution claims". 

      As a consequence, the claim was left to general limitations principles.  In California the Discovery Rule applies.  A claimant must bring her action within three years of discovering her claim.  This means actual discovery, but also when a reasonably prudent claimant should have discovered she had a claim, and the work first went on display in 1977. 

      Yet even if the Supreme Court denies certiorari, Von Saher may have recourse under the new limitations period rules recently signed into law by Gov. Schwarzenegger, which attaches an actual discovery date on the beginning of an action, eliminating the sometimes difficult due diligence requirement.

      Gov. Arnold Schwarzenegger last week signed into law a new art-theft bill that doesn’t mention the Holocaust but gives all claims seeking the return of stolen art from museums, galleries and dealers a better shot at withstanding the legal argument that they were filed too late. In suits over allegedly stolen art and other scientific, historic and cultural artifacts, the statute of limitations has been extended from three years to six, and the six-year clock starts running when the plaintiff first learned where the object was. Previously, a museum could argue that the clock began running when a work’s whereabouts was first publicized to the extent that someone seeking its return should have known about it then.

      "Adam and Eve"  went on display in 1977 when the Norton Simon opened, prompting Los Angeles Times art critic William Wilson to write that he had experienced “a plain shock of unmitigated aesthetic fulfillment” upon seeing them. Museum founder Norton Simon bought the Cranachs from an heir of Russian aristocrats in 1971, and The Times first reported on them in 1972, saying they were among the industrialist's holdings that were being loaned to Princeton University for an exhibition.

      Von Saher’s attorney, Lawrence Kaye, said Monday that her legal team, which includes E. Randol Schoenberg, the Los Angeles attorney who in 2006 secured the return of five looted Gustav Klimt paintings from the Austrian government, will wait to see whether the U.S. Supreme Court reinstates the voided California Holocaust art law. If it does not, she would be able to amend her suit to proceed under the state's new art-theft law. But the new law also would allow the Norton Simon Museum to use legal grounds other than the statute of limitations to press its argument that Von Saher waited too long to claim "Adam and Eve."

      1. Mike Boehm, Norton Simon's disputed 'Adam and Eve' getting closer look from Supreme Court | Culture Monster | Los Angeles Times (2010), http://latimesblogs.latimes.com/culturemonster/2010/10/art-adam-eve-holocaust-norton-simon-.html (last visited Oct 5, 2010).

      Sep 28, 2010

      Cairo van Gogh Theft an Inside Job?

      The still-missing "Poppy Flowers", by Vincent van Gogh
      An Egyptian minister said Sunday that an employee working at the Cairo museum likely participated in the theft.  Habib al-Adly told Egypt's official news agency "There are many circumstances around the theft of the Poppy Flowers that point to the fact that a museum employee participated in the theft or stole it himself . . .  The location and placement inside the museum confirms this".  This may explain why there was such a strong reaction to the arrest and a crack down on the museum's own staff and security personnel, or it may be an attempt to find a scapegoat.  Either a museum employee was complicit in the theft, or there was gross negligence which allowed this work to be cut from its frame.  There are still precious few details, and the work remains missing.

       
      1. AFP: Egypt museum employee behind Van Gogh theft: minister, AFP, September 26, 2010, http://www.google.com/hostednews/afp/article/ALeqM5iUQB5fPhmiFCuK-JufZ785Af9icg (last visited Sep 27, 2010).
      2. Hadeel Al-Shalchi, Security problems abound in Egypt's museums, Associated Press, , http://www.msnbc.msn.com/id/38884911/ns/technology_and_science-science/ (last visited Aug 28, 2010).
       cross-posted at: http://art-crime.blogspot.com/

        Sep 27, 2010

        Tension Between Museums and Nazi Spoliation Claimants

        It should come as no surprise that there are tensions between museums and claimants over how to respond to claims for works of art stolen or appropriated by the Nazis.  Combine the general reluctance of many museums to allow transparency with the complicated stories of many works looted during World War II, and you have a recipe for ongoing disputes and mistrust.  This should explain why litigation may be a crude solution to many of these disputes, and why other nations—mainly in Europe—have done a better job at resolving these disputes than the United States. 

        Robin Cembalest gives an overview for ARTnews, offering reactions from both sides.  The dispute stems from a basic disagreement of what kinds of wrongdoing should constitute loot.  Is a forced sale, or a sale under duress the same as outright theft?  Wesley Fisher, director of resaearch at the Conference on Jewish Material Claims Against Germany argues "It is embarrassing that countries that previously did not have such good records in this field, such as Austria, are doing a very good job . . .  And the United States is not doing as well as it was."  AAMD president Kaywin Feldman attributes the reluctance of some institutions to return objects to resources, "The real problem is that museums and claimants need help with research".  I think both of those sides offer some truth, though paying for increased provenance research would surely be less expensive than litigating a claim.  At least part of the difficulty stems from different ideas of what constitute a looted work, and perhaps a commission modeled after the United Kingdom's Spoliation Advisory Panel would offer a less controversial means of resolving these disputes.

        1. Robin Cembalest, Tensions are rising between the restitution community and U.S. museums over the proper way to handle Holocaust art claims, ARTnews, October, 2010, http://artnews.com/issues/article.asp?art_id=3073 (last visited Sep 27, 2010).

        Sep 24, 2010

        Footnotes

        “Maya à la poupée et au cheval de bois”, Pablo Picasso

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