Apr 28, 2010

Auction Houses and the Sale of Heritage

"You have to know the dirty tricks, there are dirty tricks".

So says Claude Pariset an antiques dealer from Champagne, discussing the art trade in the New York Times yesterday. 

A number of recent stories of this ilk continue to show why the auction house system of the sale of art and antiquities, with its anonymous sellers and buyers has had devastating consequences on our heritage.  As I've argued, these auction houses play an important role in the market, know exactly what they are doing, and yet the anonymity continues to shield their practices, and allow for the sale of looted and stolen pieces of heritage. 

First, an update on the wrongdoing at the Hôtel Drouot auction house in Paris.  Late last year French authorities had uncovered stolen artworks, and an art-trafficking network.  Now there are further reports of corruption, including faking bids, collusion to keep prices down, and theft as well. 

This comes as Bonham's auction house tries to find some antiquities to sell in its auction today.  It has withdrawn a marble statue which was included amongst the notorious Medici polaroids. It has also withdrawn some Roman funerary sculptures that bore signs that they had recently been illegally excavated, pictured above.  An Anglo-Saxon stone was also removed from auction.

After concerned authorities and archaeologists contacted Bonham's, these objects have all been withdrawn from auction.  But that does not mean they won't be sold again privately, and does not mean that we know who the sellers were. 
  1. Scott Sayare, Chatter of Swindles and Scams at Auction House, The New York Times, April 26, 2010.
  2. Dalya Alberge, Roman sculptures withdrawn from auction amid fears they are stolen, The Guardian, April 27, 2010.
  3. Mike Pitts, Save our Anglo-Saxon stone!, The Guardian, April 24, 2010.

Apr 27, 2010

Student Comment on Recovering WWII-Era Art from Russia

Michael Cosgrove has a student comment on remedies for the return of art from Russia:  Still Seeing Red: Legal Remedies for Post-Communist Russia's Continued Refusal to Relinquish Art Stolen During World War II, 12 Gonzaga Journal of International Law (2009).  From his introduction:

            When the Red Army entered Germany at the end of World War II, it seized 2.3 million objects including paintings, sculptures, and other works of art. At the time of this writing in 2009, the bulk of those objects are still in Russia. In addition to hundreds of thousands of pieces that belonged to German citizens and German museums the Russians hold paintings that the Nazis had stolen from all over Europe. Many of the works in question have been kept in locked rooms in the basements of museums since the end of the war. Although there were some encouraging signs that the art might be returned, or at least allowed to be displayed, with the end of the communist government, it does not appear that Russia is considering a large scale return of the art at this time. To the contrary, the Russian government has long held that the art is restitution for the destruction and theft of Russian art by the Nazis, and passed a law in 1998 that declares that the art is state property. This article explores the international legal remedy for procuring that art from the Russian government. "[U]ntil every one of those paintings, prints, sculptures, tapestries, and artifacts is returned, it will be impossible for us to walk through most of the world's museums and galleries without wondering if we are staring into the haunted face of the spoils of war." At the outset, a conclusion: favorable verdicts are obtainable, but the successful conclusion of litigation will only be the beginning of the exceedingly difficult task of enforcing a verdict against an obstinate and neo-nationalistic Russian government.

Apr 23, 2010

Footnotes 4.23.2010

  • Works found in a Parisian vault 40 years after WWII, including this Andre Derain, are going to be sold in a Sotheby's auction after being tied up for 30 years in court.
  • An odd lawsuit over a breach of confidentiality has ensued between a Miami art collector and a New York art dealer.
  • Artists are rallying support for Brandeis' Rose Museum by hosting a benefit to raise money for legal costs.
  • Stephen Spielberg should never have had to give up his "stolen" Normal Rockwell.
  • The video from the CUNY panel discussion on cultural heritage from April 7, 2010 has been posted.
  • Mark Durney argues terrorism and the illicit drug trade are linked to the $6 billion a year art theft industry.  Art theft is perhaps the 3rd highest grossing criminal trade over the last 40 years.
  • Zahi Hawass, the Secretary General of Egypt's Supreme Council of Antiquities, has done a tremendous job of elevating the profile of Egyptian antiquities. However, he continues to attack museums for not returning artifacts to Egypt.
  • An attorney in the Four Corners antiquities case wants evidence thrown out because the deceased FBI informant Ted Gardiner can't be questioned about the evidence.

Apr 21, 2010

Five Defendants Cleared in Leonardo Extortion Trial

The five defendants who were tried for attempting to extort £4.25m from the owner of this painting, Madonna of the Yarnwinder, attributed to Leonardo da Vinci have been cleared in Edinburgh.  Three defendants were found not guilty, while the other two received not proven verdicts.  Not proven is a Scots law verdict, essentially just as good as not guilty, but allows a jury to acknowledge they thought a defendant committed wrongdoing, though not enough to prove the offence.

My initial response: I think this was a terrible verdict, though I didn't get the benefit of hearing the whole trial.  Based on published reports, these defendants made it easier for an art thief to profit off a theft, and are just as culpable as the men who stole the work. 

From the Guardian:

The jury at the high court in Edinburgh decided today that the prosecution had failed to prove that the three solicitors and two private detectives were guilty of a complex conspiracy targeting the Duke of Buccleuch, one of the country's most senior peers. The five were accused of threatening to destroy Madonna of the Yarnwinder, a Da Vinci painting that was insured for £15m but unofficially valued at £30m to £50m – unless the duke paid them £4.25m for its return.
The jury said the charges against Marshall Ronald, 53, a solicitor from Skelmersdale, Lancashire, and Robert Graham, 57, a private detective from Ormskirk, Lancashire, were not proven – the Scottish verdict that stops short of declaring someone not guilty. After deliberating for two days the jury also decided that Graham's partner, John Doyle, 61, also from Ormskirk, and two senior commercial lawyers from Scotland, Calum Jones, 45, from Kilmacolm, Renfrewshire, and David Boyce, 63, from Airdrie, Lanarkshire, were not guilty of the charges.
Doyle, Graham and Ronald were jubilant. They insisted they had been honestly trying to broker the return of the 500-year-old painting – one of only two Da Vinci paintings in private hands – in return for what they believed was a fair reward. They accused two undercover police officers who posed as the duke's agents of deliberately conning them into believing their offer had been accepted.
The prosecution alleged that all five men were guilty of an elaborate extortion attempt: they had repeatedly refused to alert the police that they knew how to recover the stolen painting, and had threatened that "volatile" individuals would destroy the Da Vinci unless their ransom demands were met.
After leaving court, Doyle and Graham insisted that they were still entitled to a reward. Doyle said: "What we did was to bring back a culturally significant masterpiece, which is something neither the police nor the insurers could do. We brought it back and we have been through two and a half years of hell since."

Background on the recovery of the work here.  

  1. Severin Carrell, Five cleared of trying to extort £4.25m from duke for return of stolen Leonardo painting, The Guardian, April 21, 2010.

Apr 19, 2010

NYU La Pietra Policy Dialogue: Ethics, Culture and Law in Florence, Apr. 24th

On April 24, 2010, there looks to be an interesting event on Ethics, Culture and Law in Florence.  Here is the flyer for the event:


UNESCO Conventions for Non-Lawyers

Professors Lyndel V. Prott & Patrick O'Keefe will be organizing a one-week course on international heritage law at the University of Queensland in July.  Here are the details:

As a cultural professional, would you like detailed information on UNESCO’s heritage Conventions in an easily accessible way?
There will be a one-week intensive professional development course on the international legal standards and practices for heritage protection at the University of Queensland from 13-17 July 2010.  It will deal, among other things, with the
·        Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954 and its Protocols 1954 and 1999
·        UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 and the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects 1995
·        UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage 1972
·        UNESCO Convention on the Protection of the Underwater Cultural Heritage 2001
·        UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage 2003
·        UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions 2005

It will include information on how UNESCO Conventions are drafted, on the negotiations for particular instruments and on their implications for those administering them as well as on UNESCO Recommendations and Declarations, other relevant international law on heritage protection as well as Codes, Charters and Declarations.

Earlier courses at the Australian National University in Canberra and the University of Queensland in Brisbane have included anthropologists, archaeologists, an economist, journalists, a conservation expert, public servants working in the heritage area, a textile expert and other creative artists as well as museums staff.   The course is designed to be accessible across a wide range of professional skills and the interchange and different perspectives of the students is one of its strengths.  Students have come from Australia, China, Japan, Mongolia, Thailand, United States and Viet Nam.

Apr 16, 2010

Footnotes 4.16.07 VT

My research assistant, Jenny Higgins, who does a super job putting these links pages together would like to add this first note.  She's a Virginia Tech Alum:
  • The image at right is a photograph taken of the Drillfield at the heart of Virginia Tech's campus. Today, April 16th, is the 3 year anniversary of the deadliest school shooting in history. This image was organized several months after the shooting as the university's way to thank the world for their support after the shooting. Like any other tragedy, it is important for everyone to remember the lives lost, but more importantly, it is necessary to appreciate life. Click here for a video of Virginia Tech professor and poet Nikki Giovanni giving a speech at the convocation one day after the shooting.
On to other mundane art-related news:
  • Steven Speilberg's art dealer was exonerated from the lawsuit pertaining to the stolen Norman Rockwell. The highlight of the case was that the man who claimed title to it knew all along it had been stolen.  Don't miss Tom Flynn's excellent commentary on the implications for the art trade. 
  • The Guardian might be going overboard, but could the looted Native American artifacts in the Four Corners region possibly have cursed everyone involved?
  • A federal appeals court upheld the 7 year prison sentencing of a retired Massachusetts attorney for possessing looted artwork.
  • Techniques and secrets of the forged artwork business will be revealed in the National Gallery's upcoming exhibition.
  • Fisk University seeks a trial date in an attempt to sell artwork from its Stieglitz collection.
  • Keeping most of its Oceanic art, the De Young Museum will sell some pieces from the collection to help settles a legal dispute.
  • Recovering Nazi stolen art is like playing resitution roulette for Jewish heirs.
  • An Israeli known for his illegal sale of antiquities was extradited to the U.S. and appeared in a Manhattan federal court.
  • Switzerland signed an agreement with Egypt to return artifacts.
  • Have things really changed with the passage of time regarding blatant destruction of cultural heritage and property by tourists?
  • Check out a report from the CUNY Center for the Humanities Symposium on April 7th, 2010.

Apr 15, 2010

Italian Seizures, the Bronze Athelete, and the Getty

The Getty has decided to appeal the February decision in which an Italian court ordered the seizure of this statue, Bronze Statue of a Victorious Youth.  An Italian appeals court judged ordered the work returned to Italy.  This was a new legal approach as nations as far as I'm aware have not attempted to bring forfeiture proceedings domestically, with an expectation that a foreign government or court would uphold the order.  Perhaps the Italian courts could seize other assets the Getty has in Italy in lieu of recovery, but my initial conclusions are shared by Patty Gerstenblith in Martha Lufkin's excellent summary of the current disposition of the dispute.  Gerstenblith notes two problems.  First, illegal export does not give Italy a tenable claim in U.S. courts.  It may in conjunction with a law like the Cultural Property Implementation Act and bilateral agreements, but those were all enacted after the bronze was brought to California.  Second, an awful lot of time has elapsed, and it is likely that an American court will take a dim view of the length of time Italy has taken before this action.  Indeed, charges were brought in Italy against the fisherman who brought the bronze up in their nets in the 1960's, but the defendants were acquitted. 

There is an extralegal dimension to the appeal as well, in that Italy continues to put pressure on the Getty, and its means of acquisition of the statue. 

We may question the Getty's acquisition of the bronze, question where it currently belongs, and even debate the merits of restitution of these objects.  However, there is no evidence that this bronze was "looted" in the same way the Euphronios Krater was for example.  All reports I'm aware of indicate the fishermen fortuitously brought this up in the Adriatic, in international waters, in 1964.  They may have later passed it on to others who smuggled it out of the country, but this is not a looted object.

For noteworthy previous posts on the bronze, see here.

  1. Martha Lufkin, Greek bronze will stay in the Getty Villa, The Art Newspaper, April 14, 2010.

Apr 12, 2010

Vermeer Recovered . . . On the Simpsons

Miracle of harmony and light indeed.  The FBI and U.S. Attorney's office are are offering unconditional immunity to anyone who helps locate any of the 13 stolen works of art from the Gardner heist. Anyone with information regarding the Gardner Museum theft should contact the Boston FBI office at 1-617-742-5533.

Public Comment on the U.S.-Italy Memorandum of Understanding

The State Department Cultural Heritage Center has announced it wants public comments on the potential renewal of the Memorandum of Understanding (MOU) between the United States and Italy.  

There will be a meeting of the Cultural Property Advisory Committee on Thursday, May 6, 2010, from 9 a.m. to approximately 5 p.m., and on Friday, May 7, 2010, from 9:00 a.m. to approximately 3 p.m., at the Department of State, Annex 5, 2200 C Street, NW., Washington, DC. During its meeting the Committee will review a proposal to extend the``Memorandum of Understanding Between the Government of the United States of America and the Government of the Republic of Italy Concerning the Imposition of Import Restrictions on Categories of Archaeological Material Representing the Pre-Classical, Classical and Imperial Roman Periods of Italy'' signed in Washington, DC on January19, 2001 and amended and extended in 2006 through an exchange of diplomatic notes.
 There is also an opportunity to write a letter and express your opinion on the MOU, the deadline is April 22, 2010.  The Archaeological Institute of America has information on the letter-writing process here.  Note that you should either fax (202-632-6300) or email (culprop@state.gov) your letter due to security delays with traditional mail. 

This is one of the ways in which the United States has chosen to implement the 1970 UNESCO Convention.  The MOU does a number of things.  It restricts the import of certain classes of undocumented objects from Italy.  But if those objects carry the appropriate documentation, importation is allowed.  It also calls for long-term loans of Italian objects, and collaboration between the United States and Italy. 

Those interested in the MOU and the practical impact it has or has not had should look to the recent edited volume, Criminology and Archaeology (Simon Mackenzie and Penny Green, 2009). I review the volume in the Spring issue of the Journal of Art Crime. Of particular interest is Gordon Lobay's contribution, which looks empirically at how the U.S.-Italy MOU has made an impact on the antiquities market—at least the observable licit market.  I encourage interested readers to check out the volume, as his conclusion has been that the volume of objects sold, and their prices have increased over time.  The most profound impact has been that auction houses have begun to "pay more attention to provenance."  Though typically this is not the findspot or complete history but rather reference to an earlier sale of an object. 

Apr 9, 2010

Footnotes 4.8.2010

Bamiyan after the intentional destruction, in 2005

  • An update nine years after the Bamiyan Buddhas were destroyed.
  • Oakland, CA may cut its art budget in half.
  • Feds collect more relics stolen in the Four Corners region art theft.
  • In an apparent effort to improve its image with Italy, the Getty has named the former American ambassador to Italy to its board of trustees.
  • On a positive note from the world of stolen art, the FBI Art Crime Team returned looted art to Peru.
  • A new book by Robert K. Wittman alleges that attempts to recover stolen Vermeers were foiled by FBI infighting.
  • Some improvement has been shown at Brandeis University, but the Rose Museum is still struggling.
  • Fisk University's legal struggles continue in an attempt to sell a portion of the Stieglitz/O'Keeffe collection to the Crystal Bridges Museum in Bentonville, AR.
  • The Owensboro Museum of Fine Arts in Kentucky is dangerously close to shutting down.
  • A solo traveling exhibition by artist Peju Layiwola centered on the looting of African artifacts in Benin opened on April 8th, 2010.

Apr 8, 2010

Profile of Claude Cassirer

In September of last year the 9th Circuit held that Claude Cassirer can pursue a case against the Kingdom of Spain over this work, Rue St.-Honoré, Après-Midi, Effet de Pluie, painted by Camille Pissarro in 1897.  In a profile of Cassirer in the L.A. Times, the 88 year-old argues the Spanish "have been most unfriendly, not cooperative in any way," with respect to his claims for restitution.  The 9th Circuit Court of Appeals will hear the appeal again en banc, with an 11 judge panel, sometime in the coming months.  The work had been taken from Cassirer's grandmother in 1939 before she fled Munich.  The Spanish government purchased the painting in 1993 as a part of the Baron Hans-Heinrich Thyssen Bornemisza's collection.  The work has been valued now at $20 million. 

Spain paid the baron $50 million in 1988 to lease his collection for a decade, and halfway through bought it outright. The baron had designated Spain for his prized collection, valued at more than $2 billion, an apparently sentimental gesture honoring the last of his five wives, a former Spanish beauty queen. Thyssen-Bornemisza died in 2002.
"The Thyssen-Bornemisza Collection Foundation thoroughly reviewed the complete historical record on Mr. Cassirer's alleged claim and respectfully denied it," said Thaddeus J. Stauber of Nixon Peabody LLP's Los Angeles office, which represents the foundation.
Citing the statute granting foreign states immunity from U.S. lawsuits except under a few defined conditions, Stauber said "we do not think that the case properly belongs in the U.S. courts."
  1.  Carol J. Williams, Pissarro masterpiece travels a twisted history, L.A. Times, April 7, 2010.
  2. Cassirer v. Kingdom of Spain, 580 F.3d 1048 (9th Cir. 2009).

On Polite Discourse

Yesterday I posted a link and an abstract of a recent student article, Cultural Pragmatism:  A New Approach to the International Movement of Antiquities, 95 Iowa L. Rev 667 (2010).  I see that the paper has drawn the interest of David Gill, who has offered a response to some of Hoffman's arguments as he indicated below in the comments.  I'd like to temper some of the aggressive criticism of the paper (and Matthew, I can't find your email address on the Iowa website, so drop me a line if you would).

When I promote these pieces, I am promoting the field of study, and letting you all know something new has been written. This is a student paper, and though we might be critical of some of his assertions, we should also be respectful.  At least that is how I approach the work of others—particularly student writers.

Hoffman certainly makes some mistakes, and one of the common mistakes legal writers fall into is they can often write elegantly, but fail to conduct enough background research into an area before jumping in.  This piece might be a good example of that in parts, but I think the student here is also extending a line of argument espoused by writers like John Merryman, and now Jim Cuno that some will find distasteful.  I didn't get to comment on a draft of the piece, I've never met the student, nor read his paper before yesterday.  If I had I probably would have advised him to make a few changes.

I appreciate this can be an emotive issue, but when you beat up on a student writer, and fail to extend professionalism to a newcomer to the field, you not only diminish your own arguments, but the field as well.

I think he is on to an interesting argument when he argues for a tiered approach, in the same way Japan treats objects removed from Japan.  Japan would seem to lack sufficient regulation on the market end, as Gill points out with respect to the Miho museum.  Yet how do these returns actually affect the protection of sites, that is the question I think Hoffman could have addressed, and perhaps others will take up the argument and correct any errors or admissions they see in his piece—that's what scholarship is right?

For those of you who may not know, the Iowa Law Review is a well-respected legal journal, and an article dealing with this issue offers at the very least an opportunity to raise the profile of this issue.  A common practice in American legal publications is to publish a few student articles in each issue.  These are commonly referred to as "notes" or "comments", as I indicated in the original title below.  I'm happy to post cites and links to anybody's serious writing on the topic, irrespective of viewpoint.  I'll also continue to treat these writers with respect even when I disagree with their assertions.  I would hope others could do the same.

Apr 7, 2010

Student Note on "Cultural Pragmatism"

Matthew Hoffman, J.D. candidate at the University of Iowa has an article, Cultural Pragmatism:  A New Approach to the International Movement of Antiquities, 95 Iowa L. Rev 667 (2010).  Here is his abstract:

ABSTRACT: Since World War II, the debate between cultural internationalists and cultural nationalists has shaped international cultural-property law. Recently, some American museums, engaged in their enduring struggle to balance a mission of public education and scholarly study with the increasing risk of acquiring artifacts of disputed provenance, began to promote a middle ground of “cooperation, mutual understanding, and respect” between acquiring museums and source countries that builds upon the goals of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. This new approach, defined here as “cultural pragmatism” attempts to bridge the impasse between advocates of the two opposing doctrines that has resulted from the adversarial climate following the Second Circuit’s decision in United States v. Schultz and the new power of foreign patrimony laws to reach antiquities imported into the United States. This Note analyzes the new approach and offers the classification system of the Japanese Law for the Protection of Cultural Properties as a means to its further implementation.

Apr 6, 2010

Unsuccessful Restitution Suit by German Museum

An ancient gold tablet excavated in Iraq from the site of an ancient Assyrian temple by German archaeologists in 1913
An Ancient gold tablet, excavated from Northern Iraq in 1913.

A German Museum has lost an action against Riven Flamenbaum to recover this ancient gold tablet that may be worth as much as $10 million.  You can read the opinion here, in Matter of Flamenbaum, File No. 328416

The tablet has quite a history.  It was unearthed in 1913 in Ashur, present day Qual'at Serouat by German archaeologists.  It was bound for a German museum, but World War I forced the ship carrying it to Portugal, where the object was stored until 1926.  In 1934 the tablet was put on display in the Vorderasiatisches Museum.  At the end of the war, in 1945 it was discovered the tablet was missing, perhaps looted by Soviet troops.  It is at this point that Flamenbaum—a survivor of Auschwitz—encountered the tablet, which he may have purchased on the streets of post-war Berlin for some cigarettes.  He took the tablet with him when he emigrated to New York in 1949.  He had no inkling of the object's value, after it had been apparently appraised for as little as $100 at one point.  The family contacted the Museum in 2006 after Flamenbaum's death, and the museum brought suit to recover the tablet. 

In New York, this action was within the statute of limitations because the period does not begin to run until an original owner demands an object and is refused—which in this case was 2006.  However Surrogate John Riordan held that the museum had waited too long to bring this claim under the doctrine of laches—an equitable doctrine which essentially posits that it wouldn't be fair to allow the claimant to regain title.  The court held the lack of any real effort by the museum to seek the return of the tablet was unreasonable.  Surrogate Riordan placed a good deal of weight on an apparent 1954 report of the object's location.  But the opinion does not offer any details of this report. 

The Museum had not really had possession of the tablet for very long, and had not made extensive efforts to contact post-war authorities or stolen art registries.  But of course it is not necessarily clear if those efforts would have even been successful.  Moreover, in some cases publicizing a theft in this way seems to run counter to the policy which underpins New York's Demand and Refusal rule.  If you publicize the theft, that recovery may make diligence less likely, and might encourage other possessors of objects with questionable histories to move objects to other jurisdictions. 

One wonder perhaps how much the underlying equities were a factor in the decision as well, with a seemingly-innocent Holocaust survivor acquiring the small tablet, without knowing its true value.

  1. Vesselin Mitev, German Museum Loses Attempt to Reclaim Artifact From Estate, New York Law Journal, April 6, 2010.

Apr 1, 2010


  • Mardi Gras Indians in New Orleans file copyright suits against photographers who take their photographs without compensating them.
  • Deaccessioning running rampant in today's art world.
  • The Department Interior's decision to return human remains to Indian tribes and Native Hawaiians that are currently in museums and natural history collections will take effect May 14, 2010.
  • A couple of New York art dealers have recovered stolen art, but these recoveries are only minor successes in the $6 billion a year art theft industry; the art was found in Canada.
  • The two authors of Property Outlaws have written a detailed article about the law of fair use and "permission-based" creation of art.
  • Federal appeals court justices debated whether a U.S. man should sue in Spain and Germany before suing in the U.S. to recover a Pissarro painting stolen by the Nazis.
  • Hundreds of artworks from a state-run museum in Ankara, Turkey have perhaps been replaced by fakes or even gone missing.


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