Dec 31, 2011

2011 in Review

It was a turbulent year in cultural policy, marked in many ways by  unrest in Libya, Egypt, and elsewhere. But even elsewhere, funding shortfalls, and austerity have put pressure on our cultural institutions, with too many deaccessions and museum closings to mention.

Egypt really was an important nation of origin in a number of ways. First, Zahi Hawass made a number of unfounded allegations with respect to the Central Park Obelisk in New York, in a high-profile call that was to seem terribly trivial only months later. And even before the unrest came news that the United States and the St. Louis Museum of art had each brought suit to assert that the Ka-Nefer-Nefer mask was either rightfully possessed, or had been stolen from Egypt. Then of course we saw the demonstrations in Tahrir square and the fears of looting at sites, storehouses and the Cairo museum. And of course just a few days ago, the protests have escalated once again, and L'Institut d'Egypte was burned, and only a few of the manuscripts were salvaged. I'm not sure what solutions the law can offer to problems like this, when states radically shift. The opportunistic will take advantage of the uncertainty to destroy knowledge, steal objects, and attempt to sell whatever can be made portable. The Solution is continued vigilance of the market in these objects, and a renewed sense of urgency for transparency to ensure these precious objects aren't trafficked and sold abroad.

In the Southwest the long string of sentencing hearings in the wake of the Four Corners Antiquities investigation continued, with partisans making repeated calls for stiffer sentences, despite serious questions about the force displayed by agents during the raids, and 3 suicides, including the death of the informant who would have been a key witness had any of the defendants chosen to go to trial rather than take lesser plea deals.

Yale and Peru finally finalized an agreement to send objects removed from Peru long ago by Hiram Bingham, and were able to conclude what both sides claim is a mutually beneficial deal. The Menil also announced it would return, as agreed, frescoes to Cyprus. Montrose will be without a very fine set of Byzantine Frescoes.

Italy was in the news a great deal as well, assisting in the protection of sites in conflict areas in the Middle East, receiving repatriated objects, most notably la dea di Aidone, even as calls for more returns were made.

The Smithsonian decided to postpone and later cancel an exhibition of objects from a looted underwater site in Indonesia, despite the fact that the site was excavated with an archaeologist present, and the site was published. Odyssey Marine also suffered a colossal setback in its efforts to salvage valuables from underwater archaeology sites.

Oh, and the Mona Lisa was stolen 100 years ago. In my brief forward to Noah Charney's re-examination of the theft, I argued the World’s Most Famous Painting is almost certainly the Mona Lisa. Few would dispute its claim to the title, though many have personal favorites they would place higher (I certainly do). As such, the painting cannot help but be left open to claims that it may be overrated, perhaps even unworthy of its esteem. Nearly everyone knows when shown an image of the work that it is the Mona Lisa. Why then did this simple portrait of a smiling woman become so ubiquitous. Did its theft in 1911 help it reach these lofty heights? Would the world have come to appreciate its charms all on its own? The story of its theft is the story of an overrated painting that might have been better left stolen. But nevertheless it marks the beginning of the modern era of art theft, one of the first really high profile thefts.

Also, $150 million worth of art may have been thrown away, the thieves of the Musee d'Art Moderne were arrested however.

It's been a turbulent year, hopefully next year we can just enjoy art, and there will be fewer thefts. Though I expect we might receive some bad news this week as museums and historic building reopen after the holidays.

Bonne Anée! and thanks as always for reading.


Previous entries:

2009 in Review
2008 In Review
2007 in Review

Dec 19, 2011

The Fire at the L'Institut d'Egypte a "great loss"


One of the frustrations about writing about the protection of art and heritage is the biggest news items are often really grim, and there can often be little room for optimism. On Sunday the Institute D'Egypte caught fire and burned. The Institute was established in 1798 by the French, and held an estimated 200,000 volumes, including rare accounts of Egypt in the 18th Century. I must confess I had no knowledge of the Institute before yesterday, but because I, like many privileged folks in the developed world, have access to Wikipedia, I know it is an important building, and an important repository of information. Yet most Egyptians don't have that luxury. As Larry Rothfield points out, neither the protesters, nor the military seemed to know this was an important building containing books and manuscripts. Initial accounts describe troops throwing rocks down from the roof at protestors, and the protestors responding with molotov cocktails. It is not clear who started the exchange, but the result is clear. An important repository of knowledge has been destroyed.

The background for the destruction, which may or may not have been intentional, are rising tensions once again in Cairo near Tahrir Squar. The best current accounts of the destruction and attempts to rescue some of the volumes is the Ancient World Bloggers Group. And so there is at least some room for optimism. Many of the protesters were seen carrying books to a nearby church to attempt to salvage some of them. Also, William Kipycki, Tield Director of the Library of Congress--Cairo, Egypt at the U.S. Embassy photographed the stamps used at the Institute so antiquarian book buyers and sellers will be on the lookout.

Employees at the U.S. Embassy and the American University in Cairo have been reported as offering assistance to do what can be done to minimize continued destruction.

From the AP:
Zein Abdel-Hady, who runs the country's main library, is leading the effort to try and save what's left of the charred manuscripts. "This is equal to the burning of Galileo's books," Abdel-Hady said, referring to the Italian scientist whose work proposing that the earth revolved around the sun was believed to have been burned in protest in the 17th century. Below Abdel-Hady's office, dozens of people sifted through the mounds of debris brought to the library. A man in a surgical coat carried a pile of burned paper with his arms carefully spread, as if cradling a baby. The rescuers used newspapers to cover some partially burned books. Bulky machines vacuum-packed delicate paper. At least 16 truckloads with around 50,000 manuscripts, some damaged beyond repair, have been moved from the sidewalks outside the U.S. Embassy and the American University in Cairo, both near the burned institute, to the main library, Abdel-Hady said. He told The Associated Press that there is no way of knowing what has been lost for good at this stage, but the material was worth tens of millions of dollars -- and in many ways simply priceless.

Dec 13, 2011

A New Museum Position: Curator of Provenance

A Medallion looted during WWII
Geoff Edgers had a terrific piece over the weekend profiling Victoria Reed, curator of provenance at the MFA Boston. Her position was created in 2010, and is unique in the museum community. She is according to the piece the only curator of provenance at an American museum, a post which can put her in an uneasy position, recommending that the museum should not acquire objects with insufficient history.

Enter Victoria Reed, the MFA’s curator of provenance. Her job, which is almost as rare in the museum world as is the medallion, is to research works with questionable histories both in the collection and on the MFA’s shopping list. As a result, Reed’s other job is to break curators’ hearts. Through months of research, Reed traced the medallion to a museum in Gotha, Germany, that she knew had been looted during the Nazi era. With that information, the MFA’s jewelry curator, Yvonne Markowitz, put the brakes on its purchase. And in September, the Art Loss Register announced that S.J. Phillips Ltd., the dealer who had offered the medallion, would be returning it to the Castle Friedenstein museum.

This can't be an easy position to be in, but as more scrutiny attaches to museums, their collection, and their acquisitions, this kind of position will likely become more and more common. The market and dealers have not been adequately accomplishing this painstaking but necessary task, but perhaps they should be.

Paying for a position like this can be difficult given the funding climate for many museums. The piece notes that the position was funded by an MFA Boston donor, Monica S. Sadler, who stipulated that her position should not be cut from the museum's budget. So other benefactors to museums out there, if you are concerned with the practice at your local museum, give a gift with similar stipulations. Easier said than done of course, but all parties involved should be praised for undertaking an important piece of reform which really could continue to substantially change the importance of provenance research. The piece deals primarily with works of art and paintings, but a position like this which examines antiquities could have even more far-reaching consequences for repatriation and acquisition.
  1. Geoff Edgers, A detective’s work at the MFA, The Boston Globe, December 11, 2011, http://bostonglobe.com/arts/2011/12/11/detective-work-mfa/6iaei4YOQOj83s9u3YfDXO/story.html?s_campaign=sm_fb (last visited Dec 13, 2011).

Dec 8, 2011

Madison on "Knowledge Curation"

Michael Madison (Univ. of Pittsburgh School of Law) has posted his recent article titled "Knowledge Curation", published in the Notre Dame Law Review, on SSRN:


This Article addresses conservation, preservation, and stewardship of knowledge, and laws and institutions in the cultural environment that support those things. Legal and policy questions concerning creativity and innovation usually focus on producing new knowledge and offering access to it. Equivalent attention rarely is paid to questions of old knowledge. To what extent should the law, and particularly intellectual property law, focus on the durability of information and knowledge? To what extent does the law do so already, and to what effect? This article begins to explore those questions. Along the way, the article takes up distinctions among different types of creativity and knowledge, from scholarship and research to commercial entertainment and so-called “User Generated Content”; distinctions among objects, works of authorship, and legal rights accompanying both; distinctions among creations built to last (sometimes called “sustained” works), creations built for speed (including “ephemeral” works), and creations barely built at all (works closely tied to the authorial “self”); and distinctions between analog and digital contexts.

Prof. Madison has a number of interesting things to say about culture, creativity and technology. He I think pays too little attention to the rule role cultural heritage laws play in the stewardship of knowledge and heritage, but he acknowledges the piece asks more questions than it answers. In examining how we decide what to save and "curate" from our past, it perhaps offers yet another implicit reason for increased attention to heritage awareness and protection, highly recommended.

Dec 5, 2011

Another Black Mark on the Art Trade

As the NYT describes this, "a painting no longer attributed to Mark Motherwell"
It really shouldn't come as a surprise that federal agents are investigating recent sales of modern works by artists like Robert Motherwell and Jackson Pollock, but it does. In a very good piece of reporting by Patricia Cohen we learn that the Knoedler Gallery in New York has abruptly decided to close after 165 years, perhaps to avoid a suit by Pierre Lagrange. Lagrange purchased a work purported to be by Jackson Pollock, for $17 million in 2007, yet forensic study of the painting reveals that two paints in the canvas had not been produced at the time Pollock was painting. Oops as Rick Perry would say.

The suspect works of art were supplied by Glafira Rosales, who claimed to have direct access to artists like Rothko, Pollock, Motherwell and others. The story of these works is a sadly familiar one, they were "bought by an unnamed collector in the 1950s from the artists", then when this collector died their were passed on to a "close family friend" who lived in Mexico and Switzerland, who insisted of course on anonymity. One is hard pressed to fell much sympathy for the dealers and galleries who still rely on these ridiculous provenances. They pollute our collective cultural heritage and defraud future generations. The same stories emerge from nazi-era restitution disputes, recently-emerged antiquities, and forged artworks. When these vast sums of money and important pieces of our heritage are at stake, some sectors of the art market continue to put expedience and short-term gain first. And sadly its a lack of meaningful scrutiny and regulation of these transactions. Thirty years ago Paul Bator argued the art trade is shrouded in secrecy, and sadly not much has changed.

Felix Salmon also looks to the role storytelling plays in all this:


The point here is that the art market, like the stock market, runs on a combination of trust and storytelling ability. The most expensive artists are nearly always those who can be credibly placed into central slot in the history of art; one of the main reasons that Abstract Expressionists in general are so expensive is because they have spent decades as the very heart of MoMA’s collection, which presented them as the pinnacle of 20th Century art, the artists standing on the shoulders of people like Picasso. When gallerists sell paintings, they tell stories not only about the work, but also about the story behind the work, conjuring up romantic notions of dealings between Robert Motherwell and Mexican sugar magnates, brokered by “man named Alfonso Ossorio”. So long as the institution selling the work is trustworthy, potential buyers tend to take such stories at face value — and, of course, they have a vested financial interest in those stories being true, the minute they actually buy the piece.

  1. Patricia Cohen, Federal Inquiry Into Possible Forging of Modernist Art, The New York Times, December 2, 2011, http://www.nytimes.com/2011/12/03/arts/design/federal-inquiry-into-possible-forging-of-modernist-art.html (last visited Dec 6, 2011).

Dec 2, 2011

Footnotes

Defendants allege the FBI induced them to steal this Monet and four other works in 2007

Nov 30, 2011

Fisk University Wins Appeal

OKeeffes Radiator Building
Georgia O'Keeffe Radiator Building
In a 2-1 decision Fisk University has won an appeal against the state of Tennessee which will allow it to sell a partial share in works of art to the Crystal Bridges Museum in Arkansas. The Tennessean reports today that the proceeds from the sale can be used as Fisk sees fit, it will not have to set aside 2/3 ($20 million) of the proceeds to care for the art. This is the latest, but not the last ruling in a dispute which has been ongoing since Fisk decided in 2004 to help offset its financial difficulties by selling works of art donated by Georgia O'Keeffe and her husband Albert Stieglitz.

Fisk officials called the ruling a victory: “On behalf of the many students who attend and the faithful alumni and friends, we look forward to working out the details with the Chancery Court and the (Tennessee) Attorney General,” said Fisk President Hazel R. O’Leary. We will never know for certain whether O'Keeffe would have approved of the sale of part of the collection, and as a consequence sharing the art in the South equally between Fisk and Crystal Bridges makes good sense for the University and the Museum, and art patrons in the South. It seems an interesting bit of timing that just as the Court of Appeals released its decision, Crystal Bridges is opening as well. The long legal battle is nearly done, as it will now be up to The State Attorney General, Fisk and the Chancery Court of Davidson County to work out the final arrangements for the sale in accordance with the latest appellate ruling.
  1. Brian Haas, Court validates Fisk’s Georgia O’Keeffe art-sharing deal, Tennessean,  (last visited Nov 30, 2011).

Nov 28, 2011

Art Crime and War Course in Hamilton, New Zealand

Hamilton, New Zealand
One of the highlights of ARCA's Certificate program each summer is a course taught by Judge Arthur Tompkins. For those willing and able to make it to New Zealand in February, which is the Antipodean summer, the University of Waikato’s Te Piringa-Faculty of Law and the University’s Centre for Continued Education have recently announced a forthcoming five-day summer intensive course, entitled “Art Crime during Armed Conflict”.

I cannot recommend Judge Tompkins's course highly enough, he covers art and war from ancient times in Greece and Rome up to the present Iraq and Afghanistan conflicts.

Here are the details:
Continuing Education Flyer for Art Crime During Armed Conflict



Nov 17, 2011

"Antiquities and Archaeology" in the Art Newspaper


Three fine articles in the November issue of the Art Newspaper examine where museums and nations go from here after the events of the last ten years. The rules are changing; objects have been returned, and more returns are on the way. When laws have been broken, objects were returned, and precedents are being set. 

As a consequence, the way museums deal with antiquities is changing. As Max Anderson says in Erica Cooke's article, museums are moving away from "treasure houses" and acting instead as stewards of these objects and the heritage. And this may be forced on museums in any respect, as there are indications Italy will continue its recent efforts to stem the illegal trade in antiquities. 

Fabio Isman reports:
Will the return of objectsfrom sites like Cerveteri continue?
[Paolo] Ferri says that the ministry is now looking carefully at “cryptic provenances” such as “Swiss private collection, 1980s” or “English, after 1975” with a view to introducing new legislation.

. . .
It is also worth noting that one of the first things that Ferri has done, since his transfer to the ministry of culture, has been to sharpen its focus on tracking stolen antiquities. The carabinieri are discovering the location of hundreds of antiquities, dug up illegally throughout the country and smuggled abroad from 1970 onwards. Many are in the possession of 40 or more major museums.

“Our intention is not just to get them back but to put a stop to trafficking,” says Ferri, “and I think we are having a degree of success: many museums and countries have changed their rules and regulations. It is not a question of property, but of morality. If the role of museums is to educate, they cannot possibly hang on to illegal artefacts.”
 In a piece by Mauro Lucentini the two authors of "Chasing Aphrodite" offer their thoughts on where things should go from here. Felch notes the important stage we have entered:

This is a critical moment for both parties . . . The coming years will determine whether the spirit of co-operation that now prevails might amount not simply to an armistice, but all-out peace. The Italians must resist the temptation to continue with their iron-fist approach which, in the end, will cost them the public support in the US they have enjoyed until now.

And Frammolino argues something similar, "art is Italy's best ambassador" and that more pieces from Italy should be displayed at the Met. After my experience in Naples last summer, I tend to agree. But I also have a great deal of sympathy for the Italian position, and I'm not sure their approach has been all that "iron-fisted" as Felch describes it. I think the Italians could have been far far more aggressive, and some Italians I've spoken with have said they want a stronger approach, and more objects should be returned, and more collectors and museum officials should have been targeted. For me, the importance of this period will be the precedent set for future action. I'm currently working on a project thinking about the concept of justice, and how legal principles, and collective action should work towards a just result for museums, the public at large, future generations, and nations of origin. It looks to be an exciting time to continue thinking and monitoring these issues.
  1. Erica Cooke, What should we do with “our” antiquities?, The Art Newspaper (2011), http://www.theartnewspaper.com/articles/What+should+we+do+with+%E2%80%9Cour%E2%80%9D+antiquities%3f/25018 (last visited Nov 17, 2011).
  2. Fabio Isman, Justice is slow, but Italy has not given up the fight, The Art Newspaper (2011), http://www.theartnewspaper.com/articles/Justice+is+slow%2c+but+Italy+has+not+given+up+the+fight/24989 (last visited Nov 17, 2011).
  3. Mauro Lucentini, Has peace broken out after the trial of Marion True?, The Art Newspaper (2011), http://www.theartnewspaper.com/articles/Has+peace+broken+out+after+the+trial+of+Marion+True%3f/24988 (last visited Nov 17, 2011).

Nov 15, 2011

Call for Papers, SLSA Conference in Leicester


Janet Ulph and Charlotte Woodhead are looking for folks interested in contributing Themes at the SLSA Annual Conference next April in Leicester. Here are the details:

slsa-logoConvenors, Professor Janet Ulph ulphju13 "at" leicester.ac.uk University of Leicester and Charlotte Woodhead c.c.woodhead "at" warwick.ac.uk University of Warwick. 
This theme seeks to bring together discourse on the interface between, art, culture, heritage and the law. To this end papers will be welcomed concerning the legal and non-legal regulation of art, culture and heritage as well as the rights which exist in respect of these. Furthermore, participants may wish to engage in debates concerning the role played by morality in the context of preservation of the past and the need to curb the illicit trade in cultural objects. Papers may include, but are not limited to:
  • The de-accessioning or acquisition of objects from museums and other cultural institutions;
  • Legal protection of artistic works, the built environment and objects of cultural importance;
  • The illicit trade in cultural objects;
  • The relationship between property and culture;
  • Cultural rights and human rights;
  • Cultural institutions and the law;
  • Minority rights and interests relevant to culture and heritage;
  • Art and aesthetics and their relationship to law;
  • Cultural discourse on law; and
  • Law and humanities

Nov 11, 2011

Footnotes

Nov 9, 2011

France Seizes Painting Stolen in 1818

Christ Carrying the Cross, Nicolas Tournier
The owner of Weiss Gallery in London is in "complete shock" after officials from the French ministry of culture have refused to allow The Carrying of the Cross, by Nicolas Tournier to be taken from France back to England. The gallery purchased the painting at a Maastricht art fair last year for 400,000 Euros. The gallery took it to a small old master art fair in Paris called Paris Tableau, but France has now detained the work of art.

Mark Weiss, the owner of the gallery stated "I've been in communication with the director of the Toulouse museum since I acquired the painting in 2010, and at no stage has he ever stated that the picture was a stolen painting." The work originally hung in a chapel in Toulouse, but during the French Revolution the work was confiscated and moved to a museum. It was then apparently stolen from a museum in 1818. It would be interesting to know more about what those conversations were like between Weiss and the Toulouse museum.

France has argued this is the rediscovery of a long-lost work, yet it was stolen nearly two centuries ago. Have there been persistent claims for its return? I'm not sure. It is difficult to envision the French have the legal right to seize the painting so long after its theft. They do have the de facto power perhaps to temporarily detain the work, and make life very difficult for the gallery owner. Any experts in the area of French law care to offer any opinions? The newspaper accounts have merely focused on the seizure, without diving into the merits.
  1. AFP: British gallery rejects France’s claim to painting, (2011) (last visited Nov 9, 2011).

Nov 7, 2011

"Participatory Stewardship" at the Menil

The Byzantine Fresco Chapel in Houston
Last Thursday I attended a terrific panel discussion at the Menil. It affirmed for me why cultural heritage offers such a rich area of study. It gives us an opportunity to think beyond who owns what and offers new ways of envisioning things like patent rights in the human body, the trade in works of art, stewardship, engineering design above and beyond contractual relationships, open source museums which can extend beyond cultural walls and bureaucracy, and the creative commons. As Rex Koontz, Director of the School of Art at the University of Houston noted, short of discussing pre-Columbian art, his area of focus, a conversation about heritage and stewardship is the most important conversation we could be having. The discussion touched on all these areas in exciting ways.

The moderator, Kristina Van Dyke facilitated the free-flowing exchange. She began the conversation by pointing out that artworks have lives and a offer us an opportunity for each visitor to "possess" them in a way. If I like to stand and absorb and really take in a work of art, I've created a connection with the work which might not be the same as ownership, but is in many ways a richer more fulfilling relationship. The starting point was the recent announcement that the Menil would return the Byzantine Mosaics which were on long term loan from Cyprus.

For those unfamiliar with the story, Dominique de Menil was offered the mosaics for sale in 1983. The pieces had been stolen from a small church in the Northern Turkish-controlled region of Cyprus. After consulting the Greek Orthodox Church of Cyprus Ms. de Menil purchases the mosaics, restored them, and they have been on display in a specially-constructed building near the Menil since 1997. Recently it was announced that this long-term loan will end and the mosaics will return to Cyprus. The acquisition, restoration and long-term loan of the mosaics offers lessons for the antiquities trade, and was a remarkable act of stewardship which eschewed the concept of permanent ownership and instead produced a collaborative relationship which benefitted the original owner—the Greek Orthodox Church of Cyprus—and also allowed Ms. de Menil to put the mosaics on display for many visitors to see. You can read more about the story at the Menil's chapel website.

This was the starting point for the conversation which took on a number of interesting themes. Prof. James Leach from the University of Aberdeen offered his thoughts on property. He is an anthropologist who has worked in Papua New Guinea and he provided an overview of property theory, which he defined as the relationships among people with respect to things. Property in fact stands as a particular form of ownership, while other conceptions of property offer a richer and more meaningful way to foster relationships. In fact anthropology, and the law grudgingly, has begun to increasingly view property not as mechanical rights but as a complex web of interconnected relationships. This is an idea I've tried to think a lot about, and I wish I'd had the benefit of this exchange before I tackled the ideas of property and heritage. Before the event, the audience may have been skeptical that biomedical research, the legal relationships of Schlumberger and intellectual property would link up to heritage. But of course they do if you move beyond property and examine these problems through the lense of stewardship and conceive of property as a web of relationships.

Oct 31, 2011

Thousands of Antiquities Looted from Libyan Bank Vault

Thousands of antiquities are reported to have been stolen from a Benghazi bank vault in Libya. The objects are small, portable and very valuable. The collection has not been displayed for many years and has not been sufficiently documented. Chances for recovery would therefore be very remote.



The thieves targeted a collection known as the Treasure of Benghazi.

It included more than 10,000 pieces, with coins dating back to Greek, Roman, Byzantine and early Islamic times, but also other treasures such as small statues and jewellery.

Most had been discovered during the Italian occupation of Libya and were taken out of the country.

They were then returned to Libya in 1961 after the country's independence.

The collection has been kept in the vault of the Commercial Bank of Benghazi ever since, waiting for the opening of a museum that was never built.

The coins were never photographed or documented and seemed to have been forgotten, according to Dr Saleh Algab, the chairman of the Tripoli Museum.

Although not the only collection of ancient coins in Libya, Mr Algab said they were a hugely valuable representation of the mosaic of Libyan history - an important reminder for Libya's sometimes fractious, at times antagonistic, regions and ethnic groups that they all belong in one Libya, he said.



BBC News - Looted Libyan treasure 'in Egypt':

Oct 28, 2011

Footnotes

The Statue of Liberty turns 125 today, pictured here under construction in Frederick Auguste Bartholdi's Paris workshop. 

Oct 26, 2011

Art Cops: Overworked and Under-resourced

Over the weekend in the Baltimore Sun Tricia Bishop reports on the current state of heritage policing in the United States:
America is the largest consumer of artwork in the world, with a 40 percent share of the $200 billion global industry. It's also the scene of nearly half of the illegal art trade estimated to be worth another $7 billion worldwide. 
Yet other countries pay far more attention to art fraud. Italy has several hundred detectives on its Carabinieri Art Squad, and Greece, France, Germany and Belgium all have national units working the detail. 
In contrast, the FBI's Art Crime Team, co-founded by a Baltimore native whose father ran an antiques shop on Howard Street, is made up of one archaeologist and 13 agents, who work the beat on the side. And the Los Angeles Police Department's Art Theft Detail consists of just one investigator, a man who is delaying retirement because he's afraid the division will die if he leaves without a trained successor.
The piece looks at three of the main groups tasked with art crimes in the United States: The Art Crime Team, the Archival Recovery Team, and Don Hrycyk at the LAPD. As I said in the piece, these folks have an essential job, and given the fact these crimes are still relegated to the status of non-violent property crimes in many cases, they don't rise to the level of illegal narcotics or terrorism or other priorities law enforcement must tackle. But there is a fundamental difference between property and historical objects and art, and more attention should be paid to them. America as a country might be thinking too much about owning and buying these objects, and not enough about acting as stewards.

  1. Tricia Bishop, Art investigators: Saving the country’s cultural heritage, one recovered work at a time, Baltimore Sun, October 23, 2011, http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-history-thieves-20111007,0,443863,full.story (last visited Oct 26, 2011).

Oct 24, 2011

My Piece on Property and Heritage

When writers discuss stolen art, repatriation or looting one of the threshold problems is how to classify these objects: either as property or as heritage. It seems to me both concepts are distinct, and in a piece which is now available from the Penn. State Law Review, I've argued both should be separated. Here's the abstract:

This piece takes up the competing concepts of property and heritage. Recent scholarship views property as a series of connections and obligations - rather than the traditional power to control, transfer or exclude. This new view of property may be safeguarding resources for future generations, but also imposes onerous obligations based on concerns over environmental protection, the protection of cultural resources, group rights, and even rights to digital property. Yet these obligations can also be imposed on subsequent generations, and certain obligations are imposed now based on the actions of past generations.
This article examines the multigenerational aspects of property via a body of law which should be called heritage law. Heritage law now governs a wide range of activities some of which include: preventing destruction of works of art, preventing the theft of art and antiquities, preventing the illegal excavation of antiquities, preventing the mutilation and destruction of ancient structures and sites, creating a means for preserving sites and monuments, and even righting past wrongs. This piece justifies the new conceptualization in two ways. First, by showing that properly distinguishing property and heritage will allow us to better protect heritage with a richer, fuller understanding of the concept. And second by demonstrating how current definitions lead to imprecise analysis, which may produce troubling legal conclusions. 
A growing body of heritage law has extended the limitations periods for certain cultural disputes. This has shifted the calculus for the long-term control of real, movable, and even digital property. This can be acutely seen with respect to cultural repatriation claims - specifically the claims of claimants to works of art forcibly taken during World War II; or the claims by Peru to certain anthropological objects now in the possession of Yale University which were removed by Hiram Bingham in the early part of the 20th Century.

You can download the whole article here. I'd be most interested to hear any comments at derek.fincham "at" gmail.com

Oct 21, 2011

A postscript to "Chasing Aphrodite"

la dea di Morgantina
Ralph Frammolino, one of the co-author's of "Chasing Aphrodite" has a cover story in the November issue of Smithsonian Magazine. It recounts his unsuccessful attempt to interview Renzo Canavesi, a man identified as the previous owner of the statue formerly known as the "Getty Goddess" but now called "la dea di Morgantina". He wasn't willing to talk, but we are reminded again of the great reporting done on the statue and the Getty:

While Jason [Felch, his coauthor,] was reporting in Sicily, I went to Switzerland to interview Renzo Canavesi, who used to run a tobacco shop and cambia, or money-changing house, near Chiasso, just north of the Italian border. For decades the border region had been known for money-laundering and smuggling, mostly in cigarettes but also drugs, guns, diamonds, passports, credit cards—and art. It was there in March 1986 that the goddess statue first surfaced in the market, when Canavesi sold it for $400,000 to the London dealer who would offer it to the Getty. 
The transaction had generated a receipt, a hand-printed note on Canavesi’s cambia stationery—the statue’s only shred of provenance. “I am the sole owner of this statue,” it read, “which has belonged to my family since 1939.” After the London dealer turned the receipt over to authorities in 1992, an Italian art squad investigator said he thought Canavesi’s statement was dubious: 1939 was the year Italy passed its patrimony law, making all artifacts discovered from then on property of the state. After a second lengthy investigation in Italy, Canavesi was convicted in absentia in 2001 of trafficking in looted art. But the conviction was overturned because the statute of limitations had expired.

It's a good summary of a very fine book. And as I'm reading the story again, I'm reminded of Marion True and the Getty and the cover up and the duplicitous nature of her public comments in favor of protection, all while she was acquiring objects. There must be, I'm sure, a story like this for the repatriations from the other museums. But that reporting has not been done yet.
  1. Ralph Frammolino, The Goddess Goes Home, Smithsonian, Nov. 2011, http://www.smithsonianmag.com/history-archaeology/The-Goddess-Goes-Home.html?c=y&story=fullstory (last visited Oct 21, 2011).

Oct 10, 2011

$150 Million worth of art in the trash?

Stolen to order?
Nature Mort au Chandelier, Fernand Léger, 1922
Last week it was reported that three individuals were arrested in connection with the theft of five works from the Musée d'art Moderne in Paris. The thefts took place in 2010 and there were reports that the museums alarms had been malfunctioning for months. Well the thieves may have had a very easy time stealing the art. There are reports that the five stolen works were destroyed, and that one of the works was stolen to order:


Detectives said that while they remained sceptical about his account, they could not "totally rule out" this catastrophic scenario. The destruction of such landmark masterpieces would be a major blow to international art heritage. The first to be arrested was a Serb known only as Vrejan T, 43, nicknamed "Spiderman" and who was detained days after last year's heist over a separate art theft from a chic Paris apartment. Under questioning, the suspect reportedly recounted how he loosened screws in a window at the Art Deco Palais de Tokyo housing the museum, returned a few nights later to remove the frame and sliced through a padlock on an iron grille. He had initially gone there only to steal a Léger work to order, he said, but once inside, was "surprised" when the burglary alarm failed to sound. Being a "veritable art lover," the Serb told police he then wandered around for another hour, eluding 30 closed circuit cameras to cherry pick four other masterpieces. "He found the Modigliani the most beautiful of all," a judicial source told the JDD. Vrejan T reportedly told investigators he had stolen the Léger for Jean-Michel C, 56, an antiques dealer with a shop called Antiquités Bastille. He was arrested in May for selling other stolen art works.
As a wise Museum Security Director once said: 'shit happens'. Lets hope this is the statement of a desperate defendant, and the paintings are still safe. This underscores the point that tracking down art thieves is a delicate proposition. They have a very big piece of collateral, in this case five important works of art. If you prosecute the thief too harshly, you run the risk of destroying what you were after. Of course the best way to prevent this destruction would have been better basic attention to security.

  1. Henry Samuel, £100m masterpieces stolen from French museum “crushed by rubbish truck,” The Telegraph, October 9, 2011, http://www.telegraph.co.uk/culture/art/art-news/8816634/100m-masterpieces-stolen-from-French-museum-crushed-by-rubbish-truck.html (last visited Oct 10, 2011). 
The other stolen works:


La Pastorale, Henri Matisse, 1906
L'Olivier pres de l'Estaque, Georges Braque, 1906


The Pigeon with Peas, Pablo Picasso, 1911-12
La femme a l'eventail, Amadeo Modigliani
   

Oct 7, 2011

Symposium on litigation and cultural property in Geneva

On November 11 at the University of Geneva the Art-Law Centre will organize a symposium titled "Litigation in cultural property: judicial and alternative means of international dispute resolution". The event boasts a prestigious array of speakers, I'm sorry I'll be teaching here in Houston. Here are the details:
Program 11.11.11(web)

Oct 6, 2011

Student Essay on NAGPRA and 'culturally unidentified' human remains

Matthew Birkhold has won the National native American Law Students Association's 10th annual writing competition with an assay published in the William Mitchell Law Review. From the Introduction:
In recent years, NAGPRA’s characteristic equilibrium has fallen out of balance. In an effort to restore the law’s equipoise, the Department of the Interior published a new final rule, effective May 14, 2010, delineating procedures for the disposition of culturally unidentified Native American human remains in the possession or control of museums and federal agencies. In this attempt, however, the new law swung too far. By evaluating the new rule’s impact on culturally unidentified human remains, this article interrogates the notion that the new regulation is an “important step toward fulfilling the intent of Congress as expressed in NAGPRA.” Because NAGPRA itself is silent on the appropriate disposition of culturally unidentified remains, the only guidance about the intent of the new law comes from the legislative history of the Act, the Department of the Interior, and the courts. Each source establishes NAGPRA as human rights legislation designed to protect Native Americans’ rights and demonstrate respect for remains while achieving an agreeable counterpoise between the competing interests of the Native American and scientific communities.

Oct 5, 2011

Student Note on Orphaned Works and Cultural History

Brianna Dahlberg has posted a student note on orphaned works and access to cultural history in the Southern California Review of Law & Social Justice. From the abstract:


Orphan works are copyrighted works whose owners are difficult or impossible to find. They include a vast number of old works in museums, archives and libraries that are not being commercially exploited by rights holders because they are out-of-print, unpublished or anonymous, but nonetheless have cultural or historical significance. However, if the institutions cannot locate the rights holders, they cannot publish or publicly display these works without risking a copyright infringement lawsuit should the rights holders come forward in the future. This Note addresses a new aspect of the orphan works problem: its disproportionate impact on works created by racial and religious minorities, women, Native Americans and other indigenous people, and the poor. Locating rights holders for early-twentieth century works by these groups tends to be especially difficult for a variety of reasons. Minority and poor white musicians were routinely excluded from performing rights organizations until the 1940s and were less likely to register their copyrights. Women and minority visual artists often created their works apart from the established gallery system, and their artworks tend to be less exhibited and well-known. The identifying information for folk art and traditional Native American art is often lost. As a result, many of these important works remain locked away in archives and inaccessible to the public. This Note proposes a solution to the orphan works problem with the goals of promoting broader cultural access and participation in mind. I evaluate four potential approaches, and conclude that the Nordic countries’ solution of extended collective licensing would best serve the goal of promoting access to cultural works of disadvantaged groups while fairly compensating rights holders who do come forward.

Oct 4, 2011

Three arrested in connection with thefts from Musee d'Art Moderne

In May 2010 five works were stolen from the Musee d'Art Moderne near the Eiffel tower. Now three individuals are being detained in connection with the thefts, though the works are still missing. From AFP:


The Pigeon with Peas, Pablo Picasso, 1911-12
The three, a woman suspected of taking part in the theft and two people suspected of handling stolen goods, were arrested and charged over the robbery of the five paintings, by Henri Matisse, Pablo Picasso, Georges Braque, Ferdinand Leger and Amedeo Modigliani, and placed in custody on September 16, the official said. A lone burglar sheared off a gate padlock and broke a window to get into the city-run Musee d'Art Moderne in the brazen operation during the night of May 19 last year. The paintings were found to be missing just as the museum, a major tourist attraction near the Eiffel Tower, was about to open. Paris mayor Bertrand Delanoe later said one of the museum's alarms had been "partly malfunctioning" since the end of March, and that it was still awaiting repair when the thieves struck.


Student Note on the Visual Artists Rights Act

A part of the installation under dispute between Mass. MoCA and Christopher Buchel 
Elizabeth M. Bock has a student note in  the Michigan Law Review on the Visual Artists Rights Act. From the Introduction:


In 2010, the Court of Appeals for the First Circuit confronted the novel question of when moral rights protections vest under the Visual Artists Rights Act. In Massachusetts Museum of Contemporary Art Foundation, Inc. v. Büchel, the First Circuit determined that the protections of the Visual Artists Rights Act begin when a work is “created” under the Copyright Act. This Note argues that this decision harms moral rights conceptually and is likely to result in unpredictable and inconsistent decisions. This Note proposes instead that these statutory protections should vest when an artist determines that his work is complete and presents it to the public. This standard is more consistent with the history of moral rights. Additionally, public access is necessary to justify a treatment of art different from that of other types of property, and it is a more essential component of moral rights than an artist’s feelings of connection to his work. Finally, the legislative intent behind the Visual Artists Rights Act and the reasoning in previous judicial decisions are more accurately reflected by a public disclosure standard. Utilizing “creation” as a vesting point for moral rights is not supported by the history of the Visual Artists Rights Act and will result in uncertainty and inconsistency in future decisions.

Oct 3, 2011

Institute of Art and Law Events in New York and London

The Institute of Art and Law will be putting together a panel in New York on art recovery and later a "Study Forum" on Art and Antiquities Law in London. Both are highly recommended, and well-worth the small fees. Here are the details:


New York – 16th November

New Dimensions in Art Recovery –
a joint conference
convened by IAL and Herrick Feinstein LLP

Claims against possessors of art continue to proliferate. The impulse to unravel transactions in stolen art has inspired new legal maneuvers and defenses. While museums are obvious front-line defendants, the legal risks and ethical pressures also affect private collectors, governments, recovery agencies and insurers. They also provide unprecedented opportunities for claimants.
The aim of this seminar is to inform practicing lawyers and museum staff about initiatives that are being taken to diversify the practice of art recovery in a trans-Atlantic context. Eminent practitioners from the US and the UK will report on  approaches to litigation within each jurisdiction to highlight the differences and similarities between them.



London, Saturday 26th November 2011


At this Study Forum a panel of specialised speakers will examine aspects of the law relating to art and antiquities, including criminal law (theft, handling, money laundering, the Dealing in Cultural Objects (Offences) Act), contract (formation, exclusion and limitation clauses), international conventions.

Further details available here or to reserve a place, click here or email us at info@ial.uk.com 

Sep 26, 2011

Frescoes to Return to Cyprus from the Menil

A view of the Byzantine Fresco Chapel's dome and apse frescoes. Photo: TxDoT / HC
The Byzantine Frescoes on Display at the Menil
Some cultural repatriation news from my neighborhood. The Menil has announced that it will return the byzantine mosaics  frescoes currently housed in a custom-built chapel here in Montrose in Houston. In 1983 Dominique de Menil was offered frescoes from Cyprus. After a rigorous due diligence inquiry, it was discovered that the mosaics had been looted from Cyprus. And in a groundbreaking move, she worked with the theft victim, the Greek Orthodox Church of Cyprus to purchase the mosaics, to restore the damage done to them when they were looted. The mosaics have been displayed since 1997, but next year they will return to Cyprus to go on display in a new museum, though they sadly cannot be returned to the original church, for fear it might be disturbed again.


Menil Director Josef Helfenstein announced in a letter:

After more than two decades in Houston, the beloved Byzantine frescoes will go back to Cyprus in 2012. While this moment is bittersweet, the story of these frescoes—from their rescue, to their long-term loan to us, and now to their return—very much reflects the essence of the Menil Collection, its focus on the aesthetic and the spiritual, and our responsible stewardship of works from other nations and cultures


When we consider when this decision took place, in the 1980s during an era in which so many wealthy collectors bought so much looted art, this long-term lease and 'rescue' of the frescoes really stands apart and should be commended.

I haven't read this in any of the reporting on the Menil, but I've wondered whether there is other art at the Menil which might have been acquired under suspect circumstances. In the antiquities room in the Menil there are a number of works also purchased during this period which might be suspect—red-figured vases, small pre-historic carvings of deities, cycladic figurines. The kinds of objects that were ubiquitous in the market in the 1970s and 1980s, and which we now know were likely looted. These objects may have been lawfully acquired, but its an indication of just how many objects were looted and sold to collectors at this time, and how far law, policy, and behaviors have changed. So I'll cheer the return of these mosaics, and their responsible stewardship but I also wonder, should other objects go back?

    The frescoes now in the Byzantine Fresco Chapel were created in the 13th century for this small chapel in Lysi, Cyprus. Photo: Menil Collection / HC
    The Original Location of the Frescoes in Cyprus
  1. Douglas Britt, Houston’s Menil is returning holy artworks to Cyprus - Houston Chronicle Houston Chronicle (2011), http://www.chron.com/life/article/Houston-s-Menil-is-returning-holy-artworks-to-2186452.php#photo-1621133 (last visited Sep 27, 2011).
  2. Bill Davenport, Space-Age Chapel Will Need New Art: Menil’s Byzantine Frescos a Go-Go Going Glasstire (2011), http://glasstire.com/2011/09/24/space-age-chapel-will-need-new-art-menils-byzantine-frescos-a-go-go-going/ (last visited Sep 27, 2011).
  3. Elisabetta Povoledo, Menil Collection Is to Return Frescoes to Cyprus, New York Times (2011), http://www.nytimes.com/2011/09/24/arts/design/menil-collection-is-to-return-frescoes-to-cyprus.html?_r=1 (last visited Sep 27, 2011).
  4. Kelly Crow, Houston’s Menil Collection to Return Frescoes to Cyprus The Wall Street Journal (2011), http://online.wsj.com/article/SB10001424053111903703604576587072924927678.html (last visited Sep 27, 2011).

Sep 23, 2011

Footnotes


File:Apamea 02.jpg
The Cardo Maximus in Apamea in Syria

On a two-week trip to Paris, Mr. Lacoursière found himself loitering in the Musée d’Orsay and the Louvre, which were in so many ways the exact opposite of his beat at home where he toured the dirtiest corners of the human psyche. He returned to Montreal, vowing to find a way to incorporate his long-time love of art with his police work. So he enrolled in an art history night course at a local university.
She has a fellowship in the department of art and archaeology at the School of Oriental and African Studies in London and is head of the department of antiquities in the breakaway territory of Somaliland, in the north-west region of Somalia. She is the only archaeologist working in the region.
It's a remarkable journey for a girl who fled Mogadishu in 1991, aged 14, as Somalia descended into the chaos of civil war. Driving her forward is the urge to uncover and preserve a cultural heritage that has been systematically looted, both in colonial times and more recently by warlords trading national heritage for guns.

Sep 22, 2011

11th Circuit Ruling Deals a Big Blow to Odyssey Marine

The explosion of the Nuestra Senora de las Mercedes
The 11th Circuit has ruled that the objects brought up from the wreck initially code-named the "Black Swan" should be released immediately to the custody of Spain. In response Odyssey's stock is dropping rapidly.

In a press release Odyssey has said it will ask the full 11th Circuit to rehear the case en banc with the full complement of Federal Judges rather than the three judge panel which decided this appeal.

Sep 20, 2011

The Eternal Problem of Funding Pompeii

The task of managing, studying and excavating Pompeii has elicited criticism since the King of Naples hired a Spanish military engineer named Rocque Joaquin de Alcubierre in the 18th Century. Given the rains, funding pressures, and the army of tourists, controversy has again flared, this time over the funding of an archaeological survey that may be be wholly unnecessary:


The three-year study, entitled “Pompeii, Fabbrica della Conoscenza” (“Pompeii, the Knowledge Factory”), was carried out using the most advanced technology, according to Carmine Gambardella, dean of the faculty of architecture at the Second University of Naples (Aversa). “After the collapse of the House of Gladiators, we flew over the excavations with the Guardia di Finanza, using an infrared thermal sensor to locate at-risk areas and so redraw a map of the site,” said Gambardella. The ministry-approved survey, therefore, amounts to a costly “repeat performance”. The cultural affairs branch of the Italian Labour Union has reported the matter to the public prosecutors of Torre Annunziata, Naples and Rome, calling for transparency in the awarding of such public contracts.
  1. Edek Osser, Controversy over Pompeii funding | The Art Newspaper (2011), http://www.theartnewspaper.com/articles/Controversy+over+Pompeii+funding/24455 (last visited Sep 20, 2011).

Sep 13, 2011

Was Jiri Frel a Spy?

Jason Felch and Ralph Frammolino undertook a Freedom of Information Act request for the FBI's file on former Getty Curator Jiri Frel, and posted the FBI file. The FBI was very interested in Frel, sparking rumors over whether Arthur Houghton was tasked with keeping "an eye on" Frel.


A spy?
Espionage allegations aside, the Frel file is a fascinating study of a complicated personality. It hints at Frel’s famously chaotic love life. More importantly, it demonstrates how adept the charismatic polymath, connoisseur and political shape-shifter was at manipulating situations and spinning answers for his own survival. Colleagues at the Getty knew Frel as an Old World snob who constantly complained about America, its broken education system, its obsession with pop culture, its hot dogs and unpalatable mustard. Indeed, years later, when he was caught conducting a massive tax fraud scheme and falsifying provenance for million-dollar fakes at the Getty, Frel left America and never looked back. Yet during his 1971 FBI interview, the reporting agent noted how Frel gushed that “he considers the United States to be in his words ‘a great and good country.

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