Byrne on the role of preservation in urban development

Prof. Peter Byrne has posted Historic Preservation and its Cultured Despisers: Reflections on the Contemporary Role of Preservation Law in Urban Development on SSRN. The piece has a thoughtful discussion of historic preservation. He argues convincingly that the "cultural heritage conveyed by a community's historic buildings is a public good, the value of which is not fully internalized in property rights . . . [r]egulation may be done well or poorly, but regulation must exist." He puts Edward Glaeser's breathless appreciation for Houston's development policies in context, well worth a read.

Footnotes

• Another wall collapsed in Pompei, and though an additional $140 million in funding has been approved for the site, another unfair report of Italian cultural resource management in the British press.
• A new dispute in San Diego County over 10,000-year-old human remains. An attorney representing UC San Diego, James McManis, may want to choose his words with more care than these: “The idea that we’re going to turn this incredible treasure over to some local tribe because they think it’s grandma’s bones is crazy.” 
• Put some drugs (or art) on the damn table: Making a case is hard, it takes funding, institutional commitment, and takes much longer than a simple seizure. Veteran police and prosecutors know this, and sometimes voice criticism over showy returns and recoveries that don't build a case or actually target and take down criminal networks. Rick St. Hilaire has a great discussion of Homeland Security's "seize and send" policy which sent a number of seized objects back to Italy this week. 
• Art stolen in 1976, now recovered, will be sold at Sotheby's on May 17.
• The art of patent applications.
• A "looted" stelae goes on display in Detroit (previously discussed here).
• Is there a "best Scream"?
• A roundup of Fisk's victory: "The Collection will now disappear into the private home of an anonymous Russian oligarch, never to be seen ... " 

Ellis on the Cambridge Theft

Some of the objects taken from the Fitzwilliam on April 13

Dick Ellis can always be relied on to provide a sensible commentary on a recent theft. Speaking to the Cambridge-news he argues it is unlikely that the thieves stole the objects to order. The 18 stolen objects were taken from the Fitzwilliam museum, and as always the trick is not the stealing, it is selling or profiting off the theft. Ellis notes to the BBC:

Almost certainly, in my opinion, the museum was targeted in the same way as we saw thieves target rhino horns when their price went through the roof. They have an appreciation that in the last couple of years the Chinese art market has now outstripped the United States and European art markets to become the premier art market in the world.The thought is that if you steal some quality items - and you will find quality items in museum collections - you can sell them on to a Chinese market that has an insatiable appetite for this sort of thing.

Conference: "Cross-border movement of cultural goods" May 19, 2012 in Athens

The Hellenic Society for Law and Archaeology and the Institut fur Kunst und recht are putting together a conference at the Acropolis Museum in Athens in a few week on May 19th 2012. The conference aims:

• to examine the need of reforming the existing legal framework on international, European and national level and to offer proposals to take a closer look at: 
• the legal trends and the challenges they create for member states
• the strengths and deficiencies of the two major international conventions as well as the regulations of European and national law  
• to discuss the legal reforms currently underway in European Law 
• to present and examine case studies from Greece, Switzerland, Germany, Austria 
• to network and exchange ideas with leading professionals

It looks to be a promising event, and what a setting for a law and archaeology conference. I note with interest that there appears to be efforts to revisit the 1995 UNIDROIT and the 1970 UNESCO Conventions soon.

Conference: The Social Construction of Illegality

The Royal Museum for Central Africa (Tervuren), the  Free University Brussels and the University of Leuven are organizing an international conference in October titled "Norms in the Margins and Margins of the Norm: the Social Construction of Illegality" October 25-27 in Belgium.

The international conference Norms in the Margins and Margins of the Norm. The social Construction of Illegality aims at fostering a cross-disciplinary debate on everyday practice seen as systems of practical norms in realms more commonly considered from a legal or moral standpoint. Political scientists, jurists, historians, sociologists and social anthropologists will exchange their views on interactions between normative systems produced by official actors such as States or international organizations and those systems of norms informing the actions of actors thriving in the margins of official categories. Official categories emerge as highly political creations, while powerlessness in the margin reveals itself as relative. Market oriented economy intertwines with underground networks and these interconnections produce implicit norms that are also produced in the loopholes of law in various spheres of societies. These themes will be analysed through case studies bearing on traffics in art, drugs, organs, etc as well as on corruption, the cultural production of rules, etc.

Support for the Jurisdictional Immunity Clarification Act

Rick St. Hilaire has a detailed discussion supporting S.2212:

The proposed bill clarifies the spirit of a federal law in force for over 35 years, but weakened in the last few years. Congress in 1965 passed IFSA (formally known as the Immunity from Seizure Under Judicial Process of Cultural Objects Imported for Temporary Exhibition or Display).  Lawmakers passed it because they wanted to promote the importation of art.  They wanted to let foreign art lenders know with certainty that their cultural works would not become entangled in litigation once on American soil.  

Footnotes

Krak des Chevaliers, a crusader castle in Syria is at risk

• The conflict in Syria has produced predictable damage to that nations heritage, including the armed occupation of fortresses, looting of sites, chipping away of mosaics, and other acts of cultural destruction.
• A well-reasoned case for the return of the Nefertiti bust.
• Turkey would like these objects returned from the Getty.
• Heritage sites in Mali are at risk according to UNESCO.
• The discovery rule and Steven Spielberg prevail in the Ninth Circuit.
• A Nazi-era restitution.
• Fund Italian culture or else.
• It seems the attention being paid to the ongoing looting at El-Hibeh has caused Egyptian authorities to take action.
• 18 jade objects stolen from Cambridge's Fitzwilliam Museum.

The Immunity from Seizure Act and the proposed clarification in the Senate

One of the Nazi-era works at issue in Malewicz, titled Suprematism 18th Construction, by Kazimir Malevich

Legislation which would have an impact on the lending of foreign artworks is currently moving through both the House and the Senate. The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act would remedy an inconsistency between two laws. The first act, the Immunity from Seizure Act bars suits which infringe on the custody or control of a museum while they are loaning the work of art. The other act, the Foreign Sovereign Immunity Act has opened the door for some claims, even when immunity has been granted under the Immunity from Seizure Act. 


Two recent cases which highlight this are Magness v. Russian Federation, and Malewicz v. City of Amsterdam. In both those cases suits for the monetary value of the paintings were allowed to continue, despite the fact that they had been granted federal immunity. The proposed law seems to be a sound and reasonable accommodation for the recent conflict between these two statutes. However some have claimed that this would preclude certain claims in Federal Court. This strikes me as troubling because the State Department hears a request for immunity and the parties have to provide detailed information about the history of the loaned works. The implication is that the State Department is not thoroughly vetting these requests, and that when the works arrive in the United States unsuspecting lending museums, who may have been unaware they had a work of art subject to a claim, may be hauled into court, after they were given guarantees that this wouldn't happen. A grant of immunity is issued by the State Department, which has the responsibility for checking that there is no potential claim to the work of art. I find it curious that many of the same groups expressing anxiety about the clarification (like the LCCHP here in this brief press release) advocate for State Department involvement in US import restrictions via the Cultural Property Advisory Panel. It seems to me that if we entrust the State Department with regulating imposition of import restrictions, why are they unable to research the history of an object entering the US for a temporary loan. And for me that makes bad law and bad policy. Foreign lenders perhaps should give up title to some of these contested objects, but claimants waiting in the wings and springing a lawsuit on a lending museum will lead to fewer art loans, and will end up limiting those temporary exhibitions anyway. What we have is a cultural embargo on works of art which may be the subject of a Nazi-era claim.


Art is a good ambassador, and the exchange of art is an admirable goal. Aggressive repatriation litigation, particularly after a foreign museum has been told it will not be sued in Federal Court, by the State Department, sets a troubling precedent and will certainly restrict number and quality of works of art museum visitors will see in loaned exhibitions. Remedying Holocaust-era wrongs is a worthy goal, but piercing immunity produces uncertainty for museums and current possessors of art. A better system would negotiate and recommend returns or compensation via something like the Spoliation Advisory Panel in the United Kingdom. Most interesting of all, the proposed clarification does not even attempt to remedy potential difficulties with Nazi-era disputes which arose between 1933-1945. Holocaust-era claims gained in number in the 1990's with a number of important efforts and writers focusing attention on the issue. It is an example that many museum-goers are aware of. We all know the Nazi's looted art and forced victims into selling or leaving behind their art collections. The legal precedents created in holocaust-era claims also can be applied to other periods of taking like the Bolshevik Revolution and the Cambodian conflict, and in fact we are seeing courts examine the taking of objects during those periods as well. The Holocaust repatriation movement has the benefit of a growing number of advocates who are actively networking with repatriation attorneys, auction houses, and art historians to aggressively pursue claims. However the cost of this litigation is restricted movement of art, and increasing silence on the part of museums in Europe and North America. Holocaust victims should have their rights vindicated, but a courtroom adversarial process is not always the best remedy for past injustices.

Speaking out about fakes

Elegy to the Spanish Republic No. 110, Robert Motherwell 1971 

Jack Flam, currently working on a catalogue raisonné of Robert Motherwell talks about the backwards incentives by members of the public and scholars when it comes to authenticating art. Highly recommended, it puts all the discussion of fakes and forgeries in the context of what experts and the market are not doing to prevent fakes from polluting the pool of art in private collections and in the public trust:

These market circumstances have unfortunately coincided with a situation in which scholars and foundations that make decisions about authenticity feel increasingly constrained by legal threats from people who own or are selling fakes. So while the number of fakes in the marketplace is dramatically increasing, an important means for assuring the veracity of artists’ works has been disappearing. Several scholars and foundations are ceasing to authenticate works because they are afraid of lawsuits, and such fears have even constrained the way scholars communicate with each other.
Back in 2008, after the Motherwell catalogue raisonné project suspected that a number of “Spanish Elegy” paintings were forgeries, I had ample occasion to observe how pressure can be effectively put on scholars who believe a painting is inauthentic in order to constrain them from saying so publicly. When I contacted scholars who were engaged in research on some of the other artists whose works were supposed to be in Rosales’s collection, many declined to discuss their opinions about those works; and the ones who did so usually insisted on speaking off the record.
It was not until injured parties came forward—that is, people who had spent significant amounts of money on works that did not pass the scrutiny of either connoisseurship or forensic testing—and the press picked up the story that scholars became (cautiously) more open about what they thought of those works.

1. Jack Flam, Break the silence over fakes, The Art Newspaper, April 12, 2012, http://www.theartnewspaper.com/articles/Break-the-silence-over-fakes/26124 .

Durham University Archaeology Society Conference 2012

I have been forwarded on a conference announcement for an upcoming event at Durham University. It looks to be a promising event.


Durham University Archaeology Society Conference 2012
Title: Whose Past? An Interdisciplinary debate on the repatriation of artefacts and reburial of human remains
When: Saturday April 28th 2012- 09:00-18:00

Where: Department of Archaeology and Anthropology, Dawson Building, Durham University Science Site
Durham University Archaeology Society is to hold a one day interdisciplinary conference, to be held at Durham University involving the Archaeology, Anthropology, Philosophy and Law departments from Durham and Newcastle University and selected guest speakers. This year’s theme ‘Whose Past’ aims to generate a stimulating debate about the ownership and ethical principles associated with two types of archaeological material; artefacts and human remains, with the focus on the repatriation of artefacts and reburial of human remains.

Cezanne Recovered in Serbia

Boy in the Red Vest, Cezanne

There are reports today that one of the works stolen from the Emil Buehrle Collection in Zurich has been recovered in Serbia. ARCA's blog has a good rundown of the current press reports. The work was stolen in 2008 along with 3 others.

The BBC report notes:

Authorities have not named the painting, but local media have reported it is The Boy in the Red Vest, which was taken from Zurich's Emil Buehrle Collection. Police said three people had been arrested in connection with the theft. It added an art expert was being flown in to confirm the authenticity of the 1888 painting, worth $109m (£68.3m).

Report that Federal Agents will seize Khmer Statue from Sotheby's

It looks like the attention drawn to Sotheby's auction of this Koh Ker statue will result in Federal seizure of the statue:

Federal agents in New York on Wednesday moved to seize a thousand-year-old Cambodian statue from Sotheby’s, alleging in a civil complaint that Sotheby’s had put the 10th-century figure of a mythological warrior up for auction despite knowing that it had been stolen from a temple. Investigators said the sandstone statue, whose return is being sought by Cambodia and which is valued at $2 million to $3 million, would be impounded on Thursday by agents from the United States Department of Homeland Security. The statue, consigned to Sotheby’s for sale by a Belgian collector, had been set for auction in New York in March 2011 but was abruptly pulled from the market at the last minute after Cambodia claimed ownership. At the time Sotheby’s rejected Cambodia’s efforts to recover the Khmer antiquity, insisting there was no proof that it had been looted and therefore the auction was legal. But in a series of internal e-mail exchanges obtained by investigators and included in the federal complaint filed Wednesday in United States District Court in New York, at least one Sotheby’s officer is depicted as having been told in 2010 by a scholar in Cambodian art that Cambodian officials considered the statue a looted artifact.

With evidence that Sotheby's was told the statue had been looted, the Federal agents have a powerful piece of evidence they did not have in the Ka Nefer Nefer case. I would expect the unnamed Belgian collector who put the statue up for consignment to consider relinquishing the statue quickly. If it was purchased in good faith, he or she has a good claim against the dealer they bought it from. How long new before the Norton Simon is pressured to return its version of the statue?

1. Ralph Blumenthal & Tom Mashberg, Ancient Cambodian Statue Is Seized From Sotheby’s, The New York Times, April 4, 2012, http://www.nytimes.com/2012/04/05/arts/design/ancient-cambodian-statue-is-seized-from-sothebys.html (last visited Apr 4, 2012).

US Government's Claim to Ka Nefer Nefer Mask Dismissed

The Ka Nefer Nefer Mask will be staying in St. Louis for now

The Ka Nefer Nefer mask, subject of two lawsuits in federal court, seems likely to stay in St. Louis for the near future. On Monday the U.S. District Court dismissed the U.S. Government's forfeiture claim for the mask, as Rick St. Hilaire reported. The St. Luis Art Museum also has a parallel declaratory judgment action seeking to prevent the government from pursuing a forfeiture in the future.


You can generally read the tea leaves in the first few lines of a court opinion, and when the court wrote "the Government boldly states that it seeks the forfeiture of all rights, title and interest in a 3,200 year old Egyptian Mask . . ." you have a pretty good idea that the U.S. attorney was not able to convince the court to forfeit the mask. It most certainly was involved in a crime, yet the government was unable to allege enough "circumstances" surrounding the mask's journey from Saqqara in Egypt in 1952 to the antiquities market some time later.

The government undercooked its legal analysis of the illegal activities giving rise to a forfeiture in its first forfeiture attempt here. For now it may amend its complaint. If it does, it should perhaps note that Egypt has laws establishing ownership of its antiquities, and there is no set of circumstances under which this mask could have rightfully left Egypt. Perhaps noting that may lead to a different result this time around.

The Government cannot simply rest on its laurels and believe that it can initiate a civil forfeiture proceeding on the basis of one bold assertion that because something went missing from one party in 1973 and turned up with another party in 1998, it was therefore stolen and/or imported or exported illegally.

The court was concerned that the government failed to establish precisely how the mask became stolen property. There is plenty of precedent on point for this legal principle, but the lawyers for the government failed to include enough of it in the complaint. Now the U.S. attorneys will have to return to the drawing board and establish a firmer legal framework for the illegal removal of the mask from Egypt. Making the government's task more difficult, is the lack of evidence provided to them by Egypt establishing how and when the mask was stolen. As a consequence, if I was working on the case, I'd essentially treat it like an antiquities looting case. The theft itself is lost to history. But you don't need those facts, just enough to put the  burden back on the museum's case to show how far back its chain of title can go.

The museum will likely respond that it had no reason to believe the Aboutaam brothers were antiquities dealers to avoid in 1998. Was it established that they routinely dealt in looted objects in 1998, even if that can be established now? The SLAM conducted a search, and while certainly not ideal, it posed questions to officials in Egypt. For lots of background on the mask, see here.

We can ask whether the Museum should do the right thing, but the government attorneys had an opportunity to force them to and failed to allege enough concrete circumstances in its complaint to trigger what would have been a very uncomfortable forfeiture proceeding for the museum—one that coupled with reasonable public pressure exerted by Egypt would have certainly made continued possession of the mask in St. Louis untenable.



Lee Rosenbaum has posted a .pdf of the opinion:
  Ka-Nefer-Nefer Opinion

Landis and Forgery at the University of Cincinatti

A forged work by Mark Landis

This is not your typical April 1 prank. Curators at the University of Cincinnati have put together a super show "Faux Real" examining Mark Landis, the man who has fooled many medium and small museums into accepting donations of his forged works.

Lisa Cornwell writing for the AP:

Landis creates works in oil, watercolor, pastels, chalk, ink and pencil, making most of his copies from museum or auction catalogs that provide dimensions and information on the originals. He sometimes bestows gifts under different names, such as the Father Arthur Scott alias used at Hilliard. In that case, he told officials that his dead mother had left works including Curran's oil-on-wood painting "Three Women" and that he was donating it in her memory. . . . The Faux Real show will run through May 20 at the Dorothy W. and C. Lawson Reed Jr. Gallery. It depicts famous art forgers, details of how Landis made some donations and ways of detecting fakes. Visitors can view some works under ultraviolet light that causes sections to glow if they contain contemporary ingredients. Art experts say not accepting payment for his forgeries has helped keep Landis from being charged with a crime. Museum officials say forgeries can hurt their reputation and cost time and money researching suspected fraud.

He presents a challenge for prosecutors and the small museums he donates the works to. But the attention paid to him now will hopefully prevent future museums from accepting more forgeries. The exhibition will run through May. ARCA offered advice with respect to the possible ways the law regulates (or to be more accurate has difficulty regulating) these forgeries and donations.