Provenance and the 1970 UNESCO Convention

17 of the 21 objects at the Phoenix Ancient Art
Exhibition lack pre-1970 documentation

In a lengthy recent piece in Art & Auction, Souren Melikian argued that fewer and fewer antiquities without histories which pre-date 1970 are appearing at auction. The main argument for the piece, that the 1970 Convention is slowly encouraging a reformed antiquities market, rests on the idea that higher prices are paid for objects with documented and reliable evidence showing the object was either legally exported or removed from the probable country of origin before 1970.

Yet just because higher prices are paid for licit objects (or at least objects which were only illicit before 1970) does not necessarily mean that other looted or illicit objects are appearing on the market. Nord Wennerstrom makes this point, detailing four examples of antiquities up for sale which lack provenance information predating 1970. Of course the fact that an object does not come with this history does not mean automatically that it has been looted or stolen. But it is a very very big red flag.

Nord concludes by arguing:

All of the works discussed in this blog post may well have secure provenance dating before the November 14, 1970 UNESCO accord (or other corroborating evidence) - but if that’s the case, why isn’t it being provided? Melikian is right – caveat emptor – buyers need to demand secure provenance that dates before the UNESCO accord for any antiquities they contemplate buying. However, sellers – including auction houses and private galleries – also have a responsibility. And, it would be helpful if the media, when covering the sales, also mention the number of lots lacking that all important pre-1970 provenance. Melikian writes that we should “give it another 10 years” – that’s not a long time, but it could mean a lot of looting.

Yes it does.

1. Souren Melikian, How UNESCO’s 1970 Convention Is Weeding Looted Artifacts Out of the Antiquities Market, ARTINFO (2012).

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).

An Amicable End to a Nazi-era Spoliation Claim

Some museums do unilaterally do the right thing. I have been forwarded on a press release from the Museum of Fine Arts in Boston regarding the purchase agreement for four tapestries which had been held by the museum since the 1950s. A provenance search by the museum revealed that the tapestries had been included in a forced sale in 1935. Jakob and Rosa Oppenheimer had been forced to sell the works. In 2010 The MFA contacted the successors of the Oppenheimers and a settlement was recently reached. The museum's press release is embedded below:
MFA_Barberini Textiles Press Release

Stolen Icons Discovered in London

Six stolen Byzantine-style icons have been discovered in London near the Greek embassy.

The plundered art was revealed after a telephone call from a woman claiming to recognise one of the icons – a famous rendition of the Virgin – on the website of the Temple gallery in west London.
Further investigation showed that the immaculately preserved gold-edged painting was among six icons reported missing from Greece that the specialist was selling for up to £5,000 each. 

Richard Temple, who owns the gallery and is acknowledged as London's foremost dealer in icons, said that when he bought them he had "absolutely no reason" to suspect they were stolen. 

"I've been in the business for 51 years and I'm too well known as a gallery to take any risks at all," he said. "We are an obvious target. We had gone through the correct protocols, but one has to have a certain amount of trust as business is conducted in good faith. I know the seller – he is somebody I deal with and I think he, in turn, was duped." 

Upon presentation of documentation showing them on display in Greece, the art dealer voluntarily gave up his rights to the icons last week. "They left last Thursday in the hands of Scotland Yard," he said. "It was very painful and unfortunate."

So Mr. Temple blames the sale on another unnamed dealer, who was also "duped". Another unfortunate example of incomplete history. If the dealer was in fact duped he would have a remedy against the unnamed dealer.

1. Helena Smith, Stolen Greek relics found in London | Art and design | The Guardian, The Guardian, March 20, 2011, http://www.guardian.co.uk/artanddesign/2011/mar/20/stolen-greek-relics-in-london (last visited Mar 21, 2011).

Seminar Paper: William M. V. Kingsland and the Importance of Provenance

I'm publishing here a series of papers written by law students in my 'Property, Heritage and the Arts' seminar from the Fall of 2009. This paper was written by Michael Poché

William M. V. Kingsland and the  Importance of Provenance

1. Introduction

Nature, left undisturbed, so fashions her territory as to give it almost unchanging permanence of form, outline, and proportion, except when shattered by geologic convulsions. . . . In countries untrodden by man, the proportions and relative positions of land and water. . . are subject to change only from geological influences so slow in their operation that the geographical conditions may be regarded as constant and immutable. Man has too long forgotten that the earth was given to him for usufruct alone, not for consumption, still less for profligate waste. . . But she has left it within the power of man irreparably to derange the combinations of inorganic matter and of organic life. . . man is everywhere a disturbing agent. Wherever he plants his foot, the harmonies of nature are turned to discords. . . [O]f all organic beings, man alone is to be regarded as essentially a destructive power….

George Perkins Marsh, The Earth as Modified by Human Action: Man and Nature [fn1]


When George Perkins Marsh first penned those words in 1874, he was speaking in his role as one of America’s first important environmentalists. Contrary to the prevailing notions of his contemporaries, Marsh felt that, rather than being owners of the earth – as in the traditional Abrahamic concept of property – we are in fact only stewards of the earth, here for a short time only, and that instead of practicing some supposed birthright over the land, we were instead bound by a birth “duty”, so to speak, to protect it.
Though his expertise was in the environment (as well as diplomacy and philology), Marsh may as well have been speaking about the art world; the philosophy of guardianship he espoused towards the Earth would serve us well as a basic model for how humankind should safeguard its cultural riches. One of the few things which can be said with some certainty about art is that nearly every culture throughout human history has spent time creating works which are largely decorative in nature; the big question is, “Why?” While we still do not possess an all-encompassing answer to that question, the question itself is strongly suggestive that the creative act, in its myriad forms, is some form primal human strategy, on par with survival, sustenance, procreation, etc.

It is here that the comparison to Marsh’s quotation becomes problematic; Marsh saw man as “. . . essentially a destructive power.”[fn2] This is true, but he is also the only consciously creative power as well. Because of this dual nature, it is important to ensure that our destructive tendencies do not overshadow our creative ones. Now, clearly, not every person has a creative (or rather, artistic) bent. For some of those who do not, art may be nothing more than a blank slate; some may be appreciators, either highly opinionated or more catholic in taste; but some have an almost hostile stance towards art, which could manifest itself in numerous ways.
Much environmental advocacy is practiced from a state of naiveté and pessimism; that is, we don’t know what the long range effects of our actions will be – and we are assuming that our actions and their effects will be negative – so a prudent course would be to treat our environment as cautiously as possible. And so it should be with our cultural heritage: because we don’t fully understand why people have always made art, it would behoove us to assume that the fact of its universality indicates its importance to our existence. As we are only stewards of this Earth, so too are we stewards of our cultural legacy.

One of the primary tools we have at our disposal to this end is that of provenance. Provenance acts as a sort of cultural lineage, or a chain of succession. It ensures the integrity and value of art, as well as provides a guidepost of authenticity. It is especially important when purchasing art; potential buyers need to be made aware of a piece’s particular history, and failure to be able to do so should be a big red flag to purchasers, be they newbies or long time connoisseurs.

So, what to say of someone who, despite an obvious love for art, so eradicates the provenance of, not one or a few, but of close to three hundred valuable pieces[fn3] that they end up languishing in the hands of the F.B.I., awaiting either return to their rightful owners or an uncertain fate on the auction block, where disinterested relations of the previous “owner” hope they will eventually end up?

Continue

The Symes Auction

Robin Symes, the antiquities dealer with a checkered past will have remnants of his art collection sold at auction at Bonham's in Bath.  The sale is being organized by liquidators of Symes' estate.  Symes was a successful dealer in antiquities, but also played a role in the trade in illicit antiquities.  He was featured prominently in the network of dealers which sold works handled by Giacomo Medici, and the Getty.  The catalog describes the sale as the "Robin Symes Collection".  It includes the following "the items are being sold by the liquidators who make no warranty as to title, but have been given no reason to believe good title cannot be passed."  Not exactly a ringing endorsement for the history of these items.  As Francesco Rutelli told the participants at the ARCA Conference in Italy this summer:  just because one can buy these items, doesn't mean one should buy these items. 

Colin Gleadell, Art Sales:  the last remains of a scandal [The Telegraph, Sep. 28, 2009]

Lost Work Discovered

This work, Madonna and Child with St. Joseph, by Ludovico Mazzolino has been rediscovered after being left in storage for nearly 60 years.  A photograph of the work was sent to an auctioneer, who identified it as the work of Mazzolino.  It seems this work is genuine, and has a solid history.  Guy Schwinge, an auctioneer at Duke's of Dorchester said:

"With the help of the National Gallery we have been able to identify that it was last sold at public auction three years before Napoleon was defeated at Waterloo."

The seller is a pensioner from Cheltenham, who put the work into storage in 1950.  He received it from his great grandmother who bought it in Italy in 1862, and it had been sold at auction in London in 1812 for only £20.  




Lost Renaissance Work Discovered [BBC News, Sep. 21, 2009].  

Rare Book Theft

Sandra Laville has the story in today's Guardian of a number of rare book thieves, including David Slade, who is due to be sentenced today:

Today at Aylesbury crown court, another member of this band of thieves faces a custodial sentence after admitting the theft of £232,880-worth of extremely rare books from one of the most powerful financiers in the world, Sir Evelyn de Rothschild. It is a case that has until now received no publicity. Like Jacques, 59-year-old David Slade is a well-educated and highly knowledgeable loner, but also the former president of the Antiquarian Booksellers Association in the UK, and a dealer who has sold internationally since he was 17. 

Slade was hired by Rothschild to catalogue the family book collection. As he did his work, visiting Rothschild's home, Ascott house in Buckinghamshire, two or three times a week, Slade discreetly removed the odd book, each of which was an extremely valuable and beautifully crafted production by one of the private presses that operated in the late 19th and early 20th century.

He took them to an auction house where his reputation was unquestioned and sold them for significant sums. It was during a routine audit that Rothschild noticed the books, 68 in all, had gone missing. Slade's guilty plea went unnoticed, but the ABA has now decided to speak out.

Alan Shelley, current president, said the only way to eradicate the trafficking of rare books was to work closely with libraries, auctioneers and dealers. 

The British Library has led the way by admitting when it is the victim of theft. But while major international libraries alert each other to details of stolen books or descriptions of thieves, these do not always reach the antiquarian book trade and not all libraries are honest about falling victim to theft. 

"We all need to be a bit more grown up," said Jolyon Hudson, from Pickering and Chatto antiquarian bookseller. "[Libraries] are the curators of the nation's knowledge, and when they lose it they are somewhat embarrassed to admit that."

This again echoes the same difficulties that plague the art trade and the antiquities trade.  There is insufficient scrutiny of the chain of title when these objects are transferred, bought and sold.  Relying on a seller's reputation does not provide a meaningful check on the process.  

Provenance Red Flags

For those of you who don't follow David Gill's Looting Matters blog, you should. He's had a great series of posts this week, but in my view his most valuable contribution to heritage policy is his tireless focus on antiquities which are offered for sale with little legitimate provenance. The latest came three days ago:

The Bonham's sale of antiquities on October 15, 2008 will include an Apulian volute-krater from the Robin Symes collection (lot 180). No other history has been provided.

Several antiquities associated with Robin Symes have been returned to Greece and Italy in recent years. So what is the previous history of this krater? Who is the present owner?

That's exactly the kind of pressure and pointed questioning the antiquities trade needs to account for. Where was the object unearthed? Where did Symes acquire it? He may have acquired it legitimately, but as courts have noted in other similar contexts the "red flags" should be up.

More on the Bolton forgers (UPDATE)

Peter Nahum has an excellent editorial in the Art Newspaper titled "How I was duped by the Bolton forgers". Nahum, the director of the Leicester Galleries in London details the fraud in 1990

[S]he wished to sell a painting by the Scottish Colourist, Samuel John Peploe, which she had inherited from her grandfather who had owned an art gallery. This was confirmed by a label on the reverse: “The Metcalfe Gallery, 45 Dundas Street, Edinburgh”. She arranged for her husband to bring the painting to the gallery after 6pm and stated that she wanted cash... In the middle of that night I woke up and realised it was almost certainly a fake.

In fact he wasn't duped, as he cancelled the check quickly and reported the incident to the police. It seems the Greenhalgh's had built quite a reputation for passing forged art, but it wasn't until 2006 that the Greenhalgh's were finally raided. The troubling aspect of this case is the fact that these individuals were suspected art forgers, yet the state of the market is such that legitimate works cannot be distinguished from forgeries sold by known art forgers. The clear indication is that there needs to be a radical shift in the way the art market guarantees authenticity and title. Either a centralized database, or some kind of title insuring mechanism is sorely needed to prevent this kind of fraud.

One wonders how often dealers suspect the dubious nature of a work, but because a forgery may be of such a high quality, they reason that members of the public would not suspect. Nahum's statement on this is quite telling I think:

The point about the Greenhalgh case ... is that what seems to be a rock solid provenance can distract the expert’s eye from careful assessment. Every cloud has a silver lining; although I have sometimes lost money tracking down fakers and reporting them, I have gained another arrow in my street-smart quiver. Never trust a provenance until it can be verified. Trust your eye and instinct, your personal researches and any reliable expert on the subject you can consult.

At a minimum, the relevant law enforcement personnel should have circulated the names of the Greenhalgh's among the dealing community to prevent further fraud. The understaffed Art and Antiques Unit was slow in responding as well it would seem. Another difficulty is the ambiguity which the term "provenance" encompasses. If courts in the UK had a wider sampling of cases with which to grapple, perhaps a firm conception of the term would emerge, however these cases occur relatively infrequently. As such, we are relying on industry practice to define the boundaries of "good provenance" and that has produced a deeply unsatisfying system.

UPDATE:

Jamie Grace, a friend and researcher at the University of Derby emailed me with some very interesting thoughts on this situation:

The sale of a forgery (and the resale of stolen art in general) would cause difficulties for DACS the agency that attempts to administer the Artist's Resale Rights Regulation 2006. I support your call for an authenticity database - from my perspective, it could be linked to another mandatory database detailing sales, making the administration of the 2006 Regulations for the benefit of contemporary artists a lot easier.

As for the Art & Antiques Unit, restrictions on a researcher's 'right to know' under the Data Protection Act 1998 and the Freedom of Information Act 2000 means that for 'operational reasons' the Unit cannot divulge many details about recovered or stolen works or art (or antiques etc.) - so a curious or suspicious art market professional cannot even go straight to the Unit to check provenance. Allowances are hard to make for the reasons of understaffing when the legal framework itself defeats the aims of sensible dealers.

Jamie knows far more about DACS than I do. From what I understand it is essentially a scheme which takes a small portion of the sale of works of art and distributes it among contemporary artists. I hope to hear more from him on that in the coming months here.

I'll confess I was unaware of the implications of the Data Protection Act and the Freedom of Information Act, but they only seem to be undercutting the work of the Unit in this case.

Iznik Tiles Returned

From the Art Newspaper, two Iznik tile panels stolen from an imperial Ottoman tomb from the New Mosque in Istanbul were offered for sale at Sotheby's earlier this year; but are slated for a return to Istanbul sometime this month. Pictured here are other tiles from the new mosque. The stolen tiles had been slated for an April 13th sale, and were described as 16th century originating from Turkey or Syria.

No provenance was given and their estimate was £15,000 to £25,000 ($30,000-$50,000). Soon after the catalogue was published, the auction house was
informed by the Turkish authorities that the panels were among a large number of tiles which are said to have been stolen from the Hunkar Kiosk in the mosque on 20 January 2003. In a statement to the Turkish press, the head of Turkey's General Directorate of Foundations, Yusuf Beyazit, said that other tiles stolen from the mosque had been discovered near the coast of Istanbul's Golden Horn. He said that the Sotheby's panels accounted for the rest of the missing tiles and would be returned to the mosque where closed-circuit cameras were now being installed. Mr Beyazit said that the directorate's new Anti-Smuggling Bureau had recovered the tiles in close co-operation with Scotland Yard and Interpol.

If the consignor has lost the tiles, she should now have a claim against the intermediate seller. Such suits are relatively rare though. That is seldom the case unfortunately. Importantly, though these tiles were certainly stolen, why no criminal charges? Well, because the Cultural Objects (Offences) Act 2003 makes it nearly impossible to do so. A defendant must have been aware of an object's "tainted" status under the offence, which will be impossible to do in nearly every case; especially considering the flawed way the market operates.

In this case, though the art loss register was checked, Turkey had not registered this theft. The reasons for that are unclear. I know there is something like a $100 dollar charge to search the database in some cases, but I'm not sure if there is a charge to include objects in the database. But the market cannot continue to just rely on these limited databases. These objects came from somewhere. Merely stating "Turkey or Syria" as the nation of origin is not sufficient; beautiful tiles like this don't just go missing. We had a chance to visit a number of Mosques back in April, but not the new mosque. To my untrained eye, these tiles really are stunningly beautiful.

Ultimately, if there is going to be a viable licit art market, buyers and auction houses must do a much better job of determining where objects have come from.

WMD and Antiquities?

Archaeology has an interesting but brief interview with Matthias Rossbach who has led a project which uses Nuclear Analytical Techniques to measure elemental composition of ceramic, stone and metal to learn more about the age and provenance of objects. Here is an excerpt:

The IAEA is best known for combating the illegal trade of nuclear materials—how did you get involved with archaeology?
When I joined the agency, there was a project in Latin America that used NATs for so-called pottery fingerprinting to determine provenance by studying the elemental composition of the clay from which the pottery was produced. This was restricted to Latin America, though, and I was looking for opportunities to enhance the application of NATs in all our member states. So, through this program, museums and excavators work with government labs to learn more about the age and provenance of their materials, and even learn whether their objects are fakes.

What makes NATs good tools for authenticating artifacts?
If you analyze the element content, you can easily determine what is authentic because the production procedures and materials differ between today and, let's say, a thousand years ago. So the composition of the products is different and NATs are virtually nondestructive.

Interesting stuff. I wonder what the cost is for such an analysis, and whether this kind of study might be used for some high-profile antiquities where the original findspot or place of creation is unknown. I'm thinking primarily of the Sevso hoard and the Bronze Statue of a Victorious Youth currently in the Getty. It will be a long time before such technology can be used to actually determine provenance I think.

Can "My Things" Prevent Art Theft?

A new internet service called MyThings.com has just launched in the US, while it has been running in the UK since last December. It is a clever concept, and as I understand it, it has a number of uses:

• It allows people to track their belongings
• People can have some of their belongings valued
• It can help police track down stolen items
• It can add items to a portfolio at the point of sale via agreements with retailers
  
• People can show off what they own

The website is in the initial stages, but it does seem to market itself to art and antiquities owners. People can choose to display what they own to the whole internet, or keep them private. The concept is clever, but makes me a bit uncomfortable, because it seems much of this information must surely be tracking the buying habits of consumers, and the website does not seem up front about this (at least from my cursory exploration). I wonder what kind of an impact this site or others like it will have on the cultural property trade. It's biggest impact may be insuring people have photos of their art for insurance valuation, and it may help police track down the objects, but it is still no substitute for a licit and honorable market which is based on solid provenance.