Reactions to the Kunsthal Theft

Yesterday we learned that the Kunsthal Museum (I've also heard it described as essentially a gallery) had suffered a theft of seven works of art in a late night theft, likely aided by the building's difficult-to-secure windows. The tireless Catherine Sezgin has a good roundup of all the news reports at the ARCA blog.  Here's some reactions from the security and law enforcement experts I found thoughtful:

Anthony Amore, the director of security at the Isabella Stewart Gardner Museum in Boston debunks the popular impression of art thieves in an Op-Ed for the New York Times:

As usual, a combination of master art thieves and faulty security was blamed. But this seductive scenario is often, in fact, far from the truth. Most of us envision balaclava-clad cat burglars rappelling through skylights into museums and, like Hollywood characters, contorting their bodies around motion-detecting laser beams. Of course, few of us have valuable paintings on our walls, and even fewer have suffered the loss of a masterpiece. But in the real world, thieves who steal art are not debonair “Thomas Crown Affair” types. Instead, they are the same crooks who rob armored cars for cash, pharmacies for drugs and homes for jewelry. They are often opportunistic and almost always shortsighted.

Chris Marinello of the Art Loss Register tells NPR's Morning Edition:

MONTAGNE: And do insurers pay ransom?  

MARINELLO: Absolutely not, they do not want to encourage further art theft and then the thieves are going to have to go to Plan C. They usually contact me and see if I have any ability to pay them to return the works. They won't succeed there, either. The pieces are likely to travel in the underworld at a fraction of their true value, maybe five or 10 percent, used as currency for drugs, weapons, even something called a Get Out of Jail Free card. If a criminal thinks that they're going to be arrested, they may try to make a deal with the prosecutor for a lesser sentence, if they have information that leads to the recovery of the seven paintings.   

MONTAGNE: Is it likely than that they will resurface eventually?  

MARINELLO: Well, I have a lot of faith in the Dutch police and they are meticulous. We might see something over the next few weeks. I mean sometimes when they realize they can't get rid of the haul that they just brought home, they just return them. But if we don't see that happening in the next few weeks, it could be decades before these resurface.

Bob Wittman, formerly of the FBI's art crime team talks to the Atlantic:

Here's the story on selling stolen art. Paintings that are stolen like last night, those pieces that were taken out of the Kuhnsthal museum, are not going to get sold on any kind of market, whether it's a black market or any kind of market. They're going to get recovered. But what happens with pieces that are worth much less -- let's say the $10,000 and less market, pieces that aren't well known -- is a burglar goes into a home and steals a $5,000 painting. That can be sold in a flea market, that can be sold on what they call the secondary art market, because it's not well known. And that's the vast majority of art heists. It's not these once a year museum thefts. It's burglaries around the world. And that's the major part of the art theft business and the collectibles business. Even the smaller works of art have no value if they have no provenance, authenticity, or legal title. But when you talk about pieces that are under that amount, people don't do the due diligence. When people go in and pay $5 million for a Cézannes, they're going to do the due diligence to make sure everything is right. If a piece is $300 at a flea market, it's not done.

Stolen Degas Work Revealed as Stolen Before Auction

"Blanchisseuses souffrant des dents" by Edgar Degas, stolen in 1973

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

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

“He has no proof, and I have all the proof”

So says Joanne King Herring in the Houston Chronicle earlier this week when discussing her suit to regain this work by Sir Henry Raeburn.  Herring has an auction catalog receipt and a 1986 police report which was filed when the work disappeared from a framing shop. 

The work had been missing since, until Geoffrey Rice recently consigned the painting to Sotheby's.  When he did, the painting raised flags with the Art Loss Register.   Rice claims to have purchased the painting from Hart Galleries in Houston, an auction house that is now shuttered because of misapplication of fiduciary property.  Rice has no paperwork for the work and claims to have stored the painting in his laundry room for years, and only recently decided to sell the work.  Probably not the best provenance.  I like Herring's chances to regain the work.  As Herring says "I wouldn't any more press a case if I didn't have a bill of sale than fly to the moon.”

Rice has defended Herring's suit on a statute of limitations defense.  However she has done everything a prudent victim should—contacting the police and reporting the theft to the Art Loss Register.  As a consequence the limitations period will probably not begin until she discovered the present possessor of the painting.  

1. Douglas Britt, Artwork socialite reported stolen now caught in custody battle, Houston Chronicle, February 21, 2010.

Stolen Antiquities Recovered With the Help of the Art Loss Register

The Art Loss Register—though not a cure-all for what ails the antiquities trade—is an invaluable tool for the recovery of stolen objects so long as they have been documented and reported.  I have received a couple of press releases from the ALR highlighting recent recoveries of antiquities.  Though it cannot help aid the recovery of antiquities which have never been documented, it can help in the recovery of stolen antiquities which have been documented and reported missing, underscoring the need I think for museums and nations of origin to do a better job documenting and reporting the stores of objects which they currently have.  A couple recent seizures by Immigration and Customs Enforcement (ICE) highlight this.

Yesterday ICE announced a wall panel fresco which had been stolen in 1997 was recovered.  I found the history of the site interesting:

The panel, rectangular with a white background depicting a female minister, white wash on plaster with a modern wooden frame, was previously located at the excavation office in Pompeii and was reported stolen with five other fresco panels on June 26, 1997.

The investigation revealed that, between 1903 and 1904, the Italian government authorized a farmer, Giuseppe De Martino, to restore his farmhouse, which was located on an archeological site in Boscoreale, province of Naples. During the restoration, six important frescos, originating from Pompeii were found.

On July 12, 1957, the Government of Italy purchased the frescos. On June 26, 1997, after the completion of work to the excavation site, the Italian government observed that the six frescos were missing and subsequently reported the theft.

 This follows soon after the recovery of seven Egyptian antiquities which had been stolen from the Bijbels Museum in Amsterdam in 2007:

The investigation received significant help from the Art Loss Register (ALR) of New York, an organization that maintains a database of stolen works of art. The ALR discovered the artifacts at the Manhattan auction house, which turned the artifacts over to the Register and ICE agents.

One of the pieces recovered is a 7-inch-high depiction of a mummy with arms folded over the chest and hoes in each hand. It dates to between 1307 and 1070 B.C. The other recovered artifacts were an bronze figure of Imhotep, artchitect of the first pyramid, and one of Hapokrates, and an Egyptian painted Wood Osiris, all dating as far back as 712 B.C.

"The recovery of these artifacts sends a strong message to thieves that the market to sell stolen antiquities in the United States is freezing up." said Peter J. Smith, special agent in charge of the ICE Office of Investigations in New York. "ICE is committed to working closely with foreign governments and organizations like the ALR to recover priceless works of art and antiquities so they can be returned to their rightful owners."

ICE Agents Seize Old Master

Immigrations and Customs Enforcement Agents seized this work by an "unknown Utrecht master" dating from 1632. It will be returned to the Max Stern estate. In a piece by Catherine Hickley for Bloomberg, it is reported that the work was seized from Larry Steigrad on April 2nd.

The precedent for the seizure was set late last year by the First Circuit Federal Court of Appeals in Vineberg v. Bissonnette. It affirmed summary judgment for successors of an art dealer—Max Stern who was forced into selling works under the Nazi regime. The sale took place at a 1937 auction; the First Circuit held in that case that the forced sales of works belonging to the Stern estate were a "de facto conficcation", providing the precedent for this seizure.

Thomas Kline, an attorney for the Stern estate is quoted in the piece "With that decision, all artworks Stern sold under orders at the Lempertz sale are now considered stolen property, [and the estate] “hopes to receive further assistance from law enforcement authorities in the U.S. and elsewhere".

Lawrence Steigrad, the owner of the gallery in Manhattan where the work was seized says in the piece "“I was in my warehouse in New Jersey when Philip Mould [the London dealer who sold him the work] called me on my cell phone . . . I was shocked and upset that we had not found out before we purchased this painting, as we both had it checked. We were both happy that I had not sold it on, causing more problems and involving private clients.” It seems a bit curious perhaps that this call came only a couple of days before an undercover agent walked into the gallery to look at the work.

“I was in my warehouse in New Jersey when Philip Mould called me on my cell phone,” Steigrad said in an e-mailed response to written questions. “I was shocked and upset that we had not found out before we purchased this painting, as we both had it checked. We were both happy that I had not sold it on, causing more problems and involving private clients.”

The London dealer Philip Mould purchased the work at the Kunsthaus Lempertz auction house in November 2007; the same auction house which sold Stern's works 70 years earlier. That auction house blames the Art Loss Register for "missing" this work. Luisa Loringhoven describes how this work was not caught by the company's database:

“The Lempertz catalog from 2007 describes the painting as a portrait of a musician aged 57, while our database describes the painting as a portrait of a bagpipe player,” Loringhoven said. “Though the picture was searched by description and title, it was missed because of these differences.”

Loringhoven said London-based Art Loss Register carries out about 300,000 searches a year. “While we endeavor to be as thorough and as accurate as possible, we may miss a handful of items”.

It seems then Mould is left footing the bill for this restitution at present; though he may choose to proceed perhaps against the Kunsthaus Lempertz or even the art loss register based on the details in the piece. The Department of Justice and Homeland Security will return the work to the Max Stern Estate today in a ceremony in New York today which is also Holocaust Remembrance Day.

Art Theft and Recovery Blotter

There's a slew of news about art theft, recovery and sentencing this morning:

First, thieves broke into a museum near Stockholm and stole five works by Andy Warhol (Mickey Mouse, and Superman) and Roy Lichtenstein (Crak, Sweet Dreams, Baby!, and Dagwood).

Second, authorities in Brazil have recovered a Picasso print, The Painter and the Model, which was stolen along with four other works back in June from the Pinacoteca do Estado in São Paulo, Brazil. Police had the men under surveillance for a planned ATM robbery, and overheard mention of the Picasso.

Third, a Vermont man has been ordered to serve a five-to-20 year prison sentence for stealing bronze sculptures to sell as scrap metal. He and two other men had stolen a number of sculptures from Joel Fisher's studio while the artist was out of the country.

Finally, Artinfo is reporting that the Art Loss Register has recovered a Mario Carreño work stolen from a New York law firm in 1993.

Andrew Wyeth Recovered (LATE UPDATE)

Artdaily is reporting on the recovery of A Bridge, Race Gate by Andrew Wyeth. The work was stolen from a Houston home, along with 22 other works in 2000. The painting was then registered on the ALR database.

The painting was registered on the ALR's database of lost and stolen artworks and nearly a decade later, the painting emerged at Simpson's Gallery in the very city from which it was stolen. When a suspicious would-be consignor arrived at his auction house looking to unload the Wyeth, Ray Simpson recognized the quality of the work and the celebrity of its artist. He agreed to take the picture in for an evaluation and suggested that its seller return in a few hours. Mr. Simpson, trusting his instincts and first impressions, then called the New York office of the ALR to request a search of the suspect picture, at which time it was matched by art historian, Erin Culbreth.

The story goes on to say "After significant research and assistance from Nationwide Insurance Company, the ALR was able to determine the owner of the painting and broker a deal for its return. In the end, it was the instinct of Ray Simpson that set the wheels of the recovery in motion." I'd like to know a lot more about these details, because what generally happens in these cases is the original owner and victim of the theft has probably received an insurance settlement, which usually gives the insurance company title to the work. As such, that's why the work will be sold at a Christie's auction in Dec. 2008. The ALR may have been very helpful in this case to the insurance company, and the gallery owner should be commended, however this is still not a happy ending for the original owner, they don't usually get their insured painting back.

UPDATE:

I've been informed that the original owner actually had an opportunity to purchase the work at a substantial discount, but decided against it because she did not need the money. The point I was attempting to make is it is often very difficult for a thief or subsequent possessors to sell a work by such a well-known artist after it has been stolen, which makes it a real shame because often times fully compensating the original owner is difficult if not impossible. That's not the case here though as the owner had an opportunity to purchase the work and could have then auctioned the work and made a substantial profit perhaps.

The Limited Effectiveness of the Art Loss Register

Georgina Adam has a very interesting article in the Art Newspaper on the dispute between Michael Marks and Aziz Kurtha over two works by Indian artist Francis Newton Souza. Pictured here is an unrelated work by Souza, Still Life, which was purchased in 1967 for a mere 50 pounds but was sold recently for 173,000 pounds. This increase in value now makes it more profitable for individual's to bring claims for works by Souza which may have been stolen in the past.

As Adam states:

Mr Marks says he bought the two paintings, Head of a Portuguese Navigator, 1961, and Chalice with Host, 1953, in good faith in 2006. He had conducted a check against the Art Loss Register’s (ALR) stolen art database and was not alerted that there were doubts about the works’ ownership despite the fact that they had been registered with the ALR as missing.

Dr Kurtha, who owns a collection of over 200 works by Souza, said that, at some point in the 1990s, some of these were stolen...

The two paintings in the present dispute were registered by Dr Kurtha as missing with the ALR in 2005... Mr Marks, who was then unknown to the ALR, telephoned the organisation to check the provenance of the paintings and paid the ALR search fee with a credit card. Julian Radcliffe, ALR’s chairman, admitted in court that he deliberately misled Mr Marks by telling him there was no claim on the Souzas. Mr Radcliffe said that it was sometimes necessary to mislead people who make enquiries about the database in order to establish identity and bank details, which he did in this case; Dr Kurtha then took Mr Marks to court to recover the paintings.

Speaking to The Art Newspaper, Milton Silverman, the solicitor for Mr Marks, described this as a “potentially nightmare scenario for a dealer. He could buy works of art, certain in his own mind that they are free of any problems, only to find himself landed with a dispute on their title.” Mr Radcliffe told us that the circumstances were exceptional in that Mr Marks was unknown to them. ALR would not act in the same way with a known dealer, collector or auction house, he says.

The emphasis is mine. Marks now has a potential claim against whoever he purchased the works from in 2006, whoever that may be. One would assume such a claim would probably still leave Marks in a difficult position, as works by Souza have been increasing dramatically in value in recent years.

The priority for the ALR would seem to be to return paintings to their original owners, but not necessarily to guarantee the legitimacy of current transactions, as indicated by Radcliffe's admission that the ALR misleads some. Add to that the fact that the ALR sometimes takes commissions for facilitating the return of works of art to original owners, and we are left with what appears to be a troubling state of affairs.

As an aside, I'm not sure what the ALR guarantees when one does ask for a search of the ALR, and I'd imagine they have done their best to disclaim liability in this situation, but I wonder if Marks may have some kind of claim against the ALR itself. Though in this case the paintings have been returned to their original owner, I wonder if perhaps this kind of misleading information would give dealers pause when they are considering whether to consult the database.

The ALR is the most widely-used and cited cultural property database, however it makes no claims to being a cure-all for the problems with the cultural property trade. Though the ALR is in some cases useful, it should not be mistaken for a check on cultural property transactions generally, and it should be pointed out that Julian Radcliffe and the ALR are quick to point out that they do not attempt to police the whole market. What they do, they do well, but there are limitations to its effectiveness. David Gill and Tom Flynn have both pointed out the dubious usefulness of the ALR with respect to recently unearthed antiquities and export restrictions. As the ALR counsel, Christopher A. Marinello has recently indicated via the Museum Security Newwork, "the database does not contain information on illegally exported artefacts unless they have been reported to us as stolen."

The Difficulty of Nazi Spoliation Research

Camille Pissarro's Le Quai Malaquais, Printemps (pictured), was owned by a Jewish book publisher in 1938 in Austria. When he fled Austria, the work was lost. A history professor, Jonathan Petropoulos has been involved in attempts to return the works to the descendants.

Last week, Elise Viebeck a student reporter at Claremont McKenna College reported that Petropoulos will resign as director of the Study of the Holocaust, Genocide and Human Rights.

Yesterday Mike Boehm a LA Times Staff Writer picked up the story as well.

The descendant, Gisela Bermann Fischer, has accused Petropoulos of trying to extort 18% of the work's value as payment for "facilitating" its return. It seems Petropoulos hoped to end controversy and spare the Holocaust center and Claremont McKenna College any more distraction. It seems his involvement may be more than a mere "distraction" as Swiss authorities are holding the painting as evidence in an ongoing German investigation into possible extortion by Petropoulos and a German art dealer, Peter Griebert. The LA Times Story has the details according to Petropoulos:

Petropoulos said he got involved at the behest of Fischer and the Art Loss Register, a London-based company that keeps a database of stolen art and in some cases helps to get it back.

In December 2006, he said, he met in Munich with Griebert, whom he knew as an art-business associate of Lohse. Griebert, the professor said, was now apparently angry with the ex-Nazi. Petropoulos said Griebert told him about papers he'd found showing that Lohse had sold the Pissarro in 1957 to a man who bequeathed it to a foundation in Lichtenstein.

Working for what he said was his customary consultant's fee of $350 an hour plus expenses, Petropoulos said he reported the news to his client, the Art Loss Register, which was then negotiating a contract with Fischer to recover the painting. The professor said he did more sleuthing on his own, with a view to recovering the Pissarro and gathering material for a book.

In late January 2007, he said, he viewed, authenticated and photographed the painting in the conference room of a Zurich bank. He also said he dined with Fischer and Griebert later that day and that they reached a deal: Fischer, who'd had a falling out with the Art Loss Register, would sell the Pissarro at Christie's in New York and Griebert would get his customary 10% art dealer's fee.

Both Julian Radcliffe and prominent restitution attorney E. Randol Schoenberg are quoted as saying Petropolous got himself too involved in the negotiations to return the work, rather than simply do the research for the fee which had been agreed upon. The seems to have been a miscommunication at some point, and the "champagne" agreement that Petropolous thought he was entitled to rely upon was it seems not reduced to writing, and in return Petropolous refused perhaps to continue to bring the parties together.

The ultimate issue I suppose is what kind of compensation these kinds of experts can and should claim. The lawyers involved, and the Art Loss Register all take a healthy commission; and Petropolous certainly seems to have been amply compensated for his time at $350/hour. Though there may be powerful historical, legal and ethical arguments compelling the restitution of these Nazi spoliated works, we should perhaps bear in mind that it is the very large sums of money they fetch at acution which is driving these restitution efforts.

Related Posts:

Dividing a Nazi Art Dealer's Collection

Compensation for Restitution Experts

Compensation for Restitution Experts

Elise Viebeck, a student writer for the Claremont Independent has an outstanding article about the conflicts of interest which arise when history and art history experts are brought in to assist the heirs of victims who lost valuable art to the Nazis during World War II. She details the actions of a CMC History Professor, Jonathan Petropoulos.

The article asks an important question: How should these experts, whose specialized knowledge can bring about the restitution of ultra-valuable masterworks be compensated? Swiss prosecutor Ivo Hoppler raided a Swiss safe in the Summer of 2007 as part of a "three-nation probe of a German art dealer accused of conspiring with an American at historian to withold a painting by French impressionist". I talked about the discovery of the work at issue, Camille Pisarro's Le Quai Malaquais, Printemps last summer, but was unaware of this controversy.

Here's an excerpt of Viebeck's interesting story:

The story of the Pissarro begins with Zurich resident Gisela Fischer, 78, who is of Jewish descent. She and her family fled Vienna in 1938 two days after the Nazi Anschluss. The Gestapo looted their home, and among the stolen items was a painting by impressionist Camille Pissarro, Le Quai Malaquais, Printemps.

After the war, Fischer's father successfully located and reclaimed many of his family's stolen assets. After her father's death in 1995, Fischer concentrated her efforts on the Pissarro which had remained elusive. In early 2001, she registered the painting with the Art Loss Register (ALR), a London-based for-profit company involved in stolen art recovery.

The ALR began to research the painting's provenance, or history of ownership, in the hope of ascertaining its location. There was no initial financial arrangement, as at that time the ALR did not charge for Holocaust and World War II art claims...

On January 8, 2007, at a meeting in Munich, a representative of the ALR gave Fischer a message from Petropoulos. He wrote in a letter dated December 7, 2006 that he had located the painting in Switzerland and was communicating with an unnamed contact of its owner. The owner was a "foundation created by the heirs of the person who purchased [the painting] in 1957."

The foundation, he wrote, wished to remain anonymous.

Two days after the meeting in Munich, Radcliffe also sent Fischer a letter, this time to request a finder's fee for the organization's success in finding the Pissarro in Switzerland. Despite its earlier commitment not to charge Holocaust claimants, the company had changed its charging policy for Holocaust art claims, telling claimants that the company could complete restitution "at far less cost and often more efficiently" than the expensive lawyers who took some cases. The meeting with the ALR in January 2007 was the first Fischer knew of the ALR's changed policy...

For the Pissarro case, Radcliffe proposed an elaborate compensation scheme, including 20 percent of the first $1 million, 15 percent of the second million and 10 percent of any additional value of the painting. Included in his price was a stipend for Professor Petropoulos, who had requested $100,000 from the ALR for his services.

In a letter dated January 23, Fischer's lawyer, Dr. Norbert Kückelmann, rejected the ALR's proposal. Three days later Petropoulos met with Fischer at the Hotel St. Gotthart in Zurich to try a new arrangement...

Radcliffe and Sarah Jackson of the Art Loss Register also went to Zurich, only to find themselves excluded from the dealings. "We went expecting to be included in the meetings with Ms. Fischer only to discover that they had already had meetings without us. We realized we had been cut out," Radcliffe told the CI.

At the hotel, Petropoulos and Peter Griebert, a Munich art dealer, showed her digital photos of the Pissarro, claiming to have taken them that morning. According to an account published in ARTNews magazine, they did not give further details about its location or the identity of its owners at that time.

It's a very interesting account, and I don't think Petropoulos, nor even the Art Loss Register are painted in a favorable light based on this account. Though much nazi restitution litigation rests on the assumption that the law should compensate the victims of the holocaust and other misappropriation, the engine driving these claims are the large sums of money these works can bring at auction. I think an interesting issue which needs to be researched in more detail is how and to what extent these restitution experts owe a duty to claimants.

A Cultural Property Registry?

On Thursday Donn Zaretsky at the always-enjoyable art law blog continued his discussion of the fake Gaugin Faun statue. Specifically, he wondered what kind of international registry might have prevented this kind of fraud, and asked me how I would envision a registry. I have a few thoughts on the subject, but they're still in an early stage.

I had originally intended to put discussions of a potential registry and some concrete reforms of the market which are needed in the thesis. It's not in there though because I simply ran out of space, and I'll have to save those ideas for some future work I suppose. I don't have a definitive answer for how an international registry might be constructed. Ideally an international body such as UNESCO would step forwards and create one, however that is far too ambitious an undertaking for that organization given its current state of funding. The industry itself could choose to regulate itself more closely, but it gains more profit by not revealing information information. In the end, the art market needs a registry like MLB, the NFL and other sports leagues need a test for Human Growth Hormone. But neither is likely to arise soon.

It's a difficult potential issue because there a number of serious obstacles to creating a registry. The Art Loss Register and other databases exist, but they aren't the answer to the whole problem. The current market structure earns more money without a registry. Here's how: if I have a painting and want to sell it I can take it to an auction house. Now I'm a lowly PhD student, and that's certainly not a lucrative career choice. If someone were to purchase the painting from me directly they would have a great deal of bargaining power if they knew my relative financial position. The painting might be worth $20,000; however the purchaser may realize my financial position and negotiate the deal lower. Auctions take place anonymously and avoid this. In many if not most transactions, we are unaware who the buyer and seller are. For the fake Faun, the consignor was Mrs. Greenhalgh using her maiden name. Had the buyer known she was living in council housing, might they have been less inclined to purchase the object, or even have more cause to doubt its authenticity? I think so certainly.

A good recent article in the Florida Law Review proposes a torrens registration scheme for works of art. Bruce W. Burton, IN SEARCH OF JOHN CONSTABLE'S THE WHITE HORSE: A CASE STUDY IN TORTURED PROVENANCE AND PROPOSAL FOR A TORRENS-LIKE SYSTEM OF TITLE REGISTRATION FOR ARTWORK, 59 Fla. L. Rev. 531 (2007). The introduction lays out the main argument:

At least forty percent of valuable artwork circulating in the marketplace is either forged or misattributed. Apart from this significant problem of art authenticity, the chains of title showing current ownership of many genuine and properly attributed objects are defective. These defects are due to incompleteness of the historical records, innocent error, lapse of time, fraudulent manipulation, or theft. This Article explores the dual complexities of properly establishing a valuable art object's correct provenance-that is to say, determining both the authenticity as well as the chain of legal ownership of the work. This Article also examines the six principal legal doctrines that human society has designed to resolve competing ownership claims and the significant moral shortcomings of each doctrine. Most significantly, this Article presents a proposal for a much-needed reform in the law of art provenance.

The proposed reform is modeled on the Torrens land-title registration system in effect in Australia, parts of the United Kingdom, and a handful of states in the United States. The reform would offer the following: (1) a legal system for conclusively registering both the ownership and authenticity of any valuable piece of artwork; (2) fundamental fairness to all parties claiming an interest in the artwork; (3) assured financial compensation to any innocent party whose claim to the artwork has been injured or lost by operation of the Torrens-like system; (4) permanent and visible public records of art ownership; and (5) enhanced market stability because of the certitude and transparency afforded to art consumers by such a title registration system.

Burton makes a good case, but it would rely on individual states to implement the system, creating a patchwork of coverage. That would be better than nothing I suppose. In the end buyers of art, and even authenticators get excited by the prospect of rediscovering "lost" art or works which have gone missing. It can happen in legitimate ways as evidenced by the trash-rescue earlier this year. However, such a system leaves open the possibility of forgers, and also creates havoc in the antiquities trade for source nations and sites. The best advantage of a registration system would not necessarily be that it prevents these kinds of fraudulent transactions today, but that it builds up a body of knowledge about an object's provenance so as to prevent such mistakes in the future. As it stands now, we still aren't certain how many more forgeries by Greenhalgh may have been sold.

Shocking theft... in 1994

Is it any wonder that 7% of the Italian GDP comes from Mafia crime? The Italian city of Catania on Sicily has announced the disappearance of 51 works of art, after a 1995 document regarding their disappearance was recently "rediscovered" and provided to the carabinieri. The works were taken from the art gallery, housed in the Ursino castle pictured here, and were discovered by a new Catania councillor responsible for culture, Silvana Grasso. This is probably not the kind of news Francesco Rutelli wanted on the heels of the discovery of what may be the Lupercale, under Augustine's palace on the Palatine Hill.

At least one step which should be taken by all museums, and even individuals who own art, is to take a photo of the works. One of the works stolen is a Rembrandt, but there's no photograph of the work, rendering recovery nearly impossible. If there's an image, recovery is possible. Ask Peter Crook, who recovered two works by his grandfather GF Wetherbee from the US via the Art Loss Register.

Picasso Theft from a Seattle Mall

Two etchings by Pablo Picasso were stolen from the Bellevue Square mall last week the Seattle Times reports. This is Bacchic Scene with Minotaur which was taken along with Aquatinte 26 Mai 1968. It seems a woman distracted the store clerks by asking about a work in the back of the gallery while two men casually took the etchings out of the mall. These aren't masterworks, but their $92,000 estimated value is nothing to sniff at.

The chances these drawings will be returned quickly are probably not good. The most likely scenario is that a subsequent purchaser who didn't know about the works' tainted past will end up in a dispute with the gallery or the Insurance company if the gallery was able to insure the works. The Seattle piece says "unscrupulous art collectors have few qualms about purchasing stolen pieces for their private collections." I think that may be over-stating the case a bit. In most situations the ultimate litigant is a buyer who was unaware a work had been stolen. This is why buyers should always consult organizations like the Art Loss Register before every significant purchase, and provenance should be thoroughly researched.

Comparing Digital Images to Art Theft Databases

David Nishimura at Cronaca noted a piece from Discovery News which provided more details on the cell phone technology which can take a picture of a piece of art and then compare it quickly with an art theft database. I wrote about this new development back in March. The technology allows an investigator to take a digital photo of the object with a cell phone, which is then sent to a central server. The image analysis system then compares the picture with the user's database. It identifies similar works based on shape, outline, color, or texture, and then returns a list of the top ten closest hists.

At Present, the systems works on paintings, carpets and coins; though they hope to extend the system to work on 3-dimensional objects soon.

Nishimura seems to be a fan of the idea:

Sounds like a pretty simple and practicable idea, patching together well-established technologies. Take a database of images of stolen artworks, and search it using other images and a pattern-matching application. You'll end up with some false positives, of course, but as long as the matching algorithm is reasonably sophisticated, you should still have a useful tool for flagging possible problem paintings for further investigation.

I think that's right, though the problem of course is which database to check. At present there are a number of different theft databases. The largest and most successful is the Art Loss Register. However that site is not accessible to the public at large. You have to pay for and request the ALR to conduct its own search of its data. Though this technology would seem to make that process easier, Julian Radcliffe, the chairman and most vocal proponent of the ALR says "None of the imag matching is good enough to replace the art historians we use."

That may be true, but as I've argued before, the first company which figures out how to make a simple, universal and easy-to-use database will really stand out, and will also really help to legitimize the art and antiquities trade generally. Until such a database exists though, we will continue to see good faith purchasers buying stolen or illicitly excavated works leading to the classic art law dispute between an original owner and a good faith purchaser. In these cases both parties are relative innocents and the law can have a difficult time evaluating the respective claims.

Dividing a Nazi Art Dealer's Collection

Catherine Hickley wrote a very interesting article for Bloomberg on the efforts by France, Germany and Switzerland to divide Bruno Lohse's art collection. Here is an excerpt:

Bruno Lohse, a German art dealer appointed by Hermann Goering to acquire looted art in occupied France, dispersed his private collection of Dutch 17th-century masterpieces and expressionist paintings among friends and relatives in his will, the lawyer handling his estate said.

Lohse died on March 19, aged 95, and has since become the focus of a three-nation investigation into a looted Camille Pissarro painting discovered in a Swiss bank safe that was seized by Zurich prosecutors on May 15. The painting's prewar owners said the Gestapo stole it from their Vienna apartment in 1938. Lohse controlled the Liechtenstein trust that rented the safe.

``Paintings have been willed to relatives and friends in individual bequests,'' Willy Hermann Burger, the executor of Lohse's will, said in an interview at his home in Munich. Burger, who declined to name the beneficiaries or disclose details on individual artworks, said he's sure none of the paintings in Lohse's private collection are looted.

Lohse became Paris-based deputy director of the Einsatzstab Reichsleiter Rosenberg, the Nazis' specialist art-looting unit, in 1942, according to the interrogation report compiled by the U.S. Office of Strategic Services' Art Looting Investigation Unit, which questioned him in Austria from June 15 to Aug. 15, 1945.

The E.R.R. plundered about 22,000 items in France alone, according to the O.S.S. reports. The Jewish Claims Conference estimates that the Nazis looted about 650,000 artworks in total.

``There is a lot of art still missing and we believe that a significant proportion remains in private collections, especially in Germany and Austria,'' said Anne Webber, co-chair of the Commission for Looted Art in Europe, a not-for-profit organization based in London that helps families recover plundered property.

Adding to the difficulty is the fact that Lohse became an art dealer in the 1950's, and thus most of his private collection is probably legitimate. However, the Pisarro found in the Swiss bank vault, Le Quai Malaquais, Printemps is probably looted, at least according to the Art Loss Register. This all underscores the importance of establishing and checking provenance for works of art when they are sold or donated. If the various European prosecutors are not as aggressive as their American counterparts have been, a lengthy and complex legal dispute between the successor and the descendants of the original1938 owner will likely ensue.

In the News

I saw a couple of noteworthy items in the papers this morning.

First, there was an interesting note of a legal event held in London last week. Edward Fennell of the Times Online in his "In the City" feature talked about this event:

Last week Withers hosted one of the most curious legal events I have ever attended. In a gripping account to a smart multinational audience of art professionals, insurers and well-heeled collectors the firm’s art recovery expert, partner Pierre Valentin told how he helped to recover paintings from the Bakwin collection that had been stolen in America in the 1970s.

Working with the Art Loss Register (which operates in that seductive area where culture and money meet glamour and crime) Mr Valentin described a Hitchcock-like thriller featuring painstaking research, dodgy Russians and even murder – but all ending in happy success for the resolute legal sleuth. As the tale unfolded we could see on display the very “McGuffin” that had driven the drama – the collection of paintings themselves by Cézanne, Matisse, Soutine, Vlaminck By the end of an astonishing evening Withers had proved itself a true ornament to the City’s legal scene.

I take it Whithers must be a firm of Solicitors. Sounds like some fascinating stories. I do not know about this particular case, but I am familiar with Pierre Valentin. It sounds fascinating. Here is hoping he makes it up to Scotland.

Second, I noticed an AP story by Ariel David which has been picked up by a number of papers in recent weeks. I haven't noted it before but it is an interesting story of the notorious tombaroli Pietro Casasanta who has testified at the True/Hecht trial and Rome. Here is an excerpt:

It used to be so easy for the “tombaroli,” Italy’s tomb raiders.

Pietro Casasanta had no Indiana Jones-type escapes from angry natives or booby-trapped temples. He worked undisturbed in daylight with a bulldozer, posing as a construction worker to become one of Italy’s most successful plunderers of archaeological treasures.

When he wasn’t in prison, the convicted looter operated for decades in this countryside area outside Rome, benefiting from what he says was lax surveillance that allowed him to dig into ancient Roman villas and unearth statues, pottery and other artifacts, which he then sold for millions of dollars on the illegal antiquities market.

“Nobody cared, and there was so much money going around,” he recalled. “I always worked during the day, with the same hours as construction crews, because at night it was easier to get noticed and to make mistakes.”

Stolen Rockwell and Spielberg and Theft Databases

Steven Spielberg has discovered a stolen Norman Rockwell painting, Russian Schoolroom in his art collection. The work was listed on the FBI's art crimes web site. There don't seem to be any good images of this work on the web. This is a small thumbnail. In terms of the original theft, the FBI website states the following:

On June 25, 1973, an original Norman Rockwell painting, entitled Russian Schoolroom, was stolen during a late night burglary in Clayton, Missouri. The painting was part of a Norman Rockwell Exhibit sponsored by the Chicago office of the Circle Galleries, later known as Arts International Galleries. At the time of the theft, the Russian Schoolroom, oil on canvas, measured 16" X 37", and was presented in a 2' x 4' frame of dull gold-white molding. This painting may also be referred to as The Russian Classroom or Russian Schoolchildren.

Records for the Russian Schoolroom indicate that after the theft in 1973 and prior to 1988, the painting’s location was unknown. In October 1988 Russian Schoolroom was sold at auction in New Orleans, Louisiana. Records revealed that at that time, the painting was associated with Circle Galleries (Chicago) and the Danenburg Gallery (New York). Neither gallery exists today.

Recent information determined that the same Russian Schoolroom was allegedly advertised for sale at a Norman Rockwell Exhibit in New York, circa 1989.

In July 2004, upon receipt of the information above, the FBI's newly formed Art Crime Team initiated an investigation to locate and recover the Russian Schoolroom.

It seems a member of Spielberg's staff came across the site. The FBI was then notified. There is no indication that Spielberg had any knowledge of the work's theft when he purchased it. Spielberg is a well-known collector of Rockwell. What this example does illustrate is a need for better and more comprehensive art databases. If collectors can check a work against one comprehensive database, then this kind of mistake will surely be avoided, and the incentive for stealing art will decrease dramatically.

The Art Loss Register is the most prominent of the stolen art databases. Here is a recent article on the work it does. It has been responsible for a number of high-profile recoveries. However, I am a bit skeptical because it is a closed database. It costs about $50 per search, and not everyone can search it. Julian Radcliffe, the ALR's chairman has said in interviews in the past that the reason the database is not public is it would allow the thieves to know the status of a work they have stolen. That may be true, but I'm still a bit skeptical. If it became routine to post a picture of your painting on a free, easy-to-use website, I think the same goals would be furthered.

It seems a company may have designed a way to use simple camera phones to compare a work to a stolen art database:

Thanks to a new development from the Fraunhofer Institute for Production Systems and Design Technology IPK, the investigator can now simply take a photo of the art object with his cell phone and send it instantly to a central server. The researchers’ new image analysis system automatically compares this picture with the user’s database. The system identifies similar objects on the basis of visual features such as their shape, outline, color or texture, and returns a list of the top ten closest hits to the cell phone in a matter of seconds. If the picture is among the works in the database, the art detective can react immediately. “The system is remarkably easy to operate,” says Dr. Bertram Nickolay, head of the department for security systems. “Since it was built mostly from standard modules, it’s also a cost-effective solution.” Furthermore, the system is immune to interference factors such as a poor photograph of the work of art. Reflections caused by flash photography or by excessive brightness have no effect on the image analysis in the central server.

This could work, and it could work well. I imagine that the first company which figures out how to make a simple and easy database will earn a lot of money, and will do wonders for insuring the legitimacy of the art trade. My personal preference would be to have a free system similar to wikipedia, which allows anyone to use and access the site. Until there is a comprehensive database which ties together all of these various databases though, we will continue to see people unwittingly purchasing stolen works.

Federal Art Theft Charges

Stephen Kurkjian and Shelley Murphy have an article in yesterday's Boston Globe about the arrest of Robert Mardirosian, an attorney charged with attempting to possess, conceal, store, and sell stolen art. The Boston Herald has a story as well.

The 72 year-old Madirosian had been entrusted with the paintings by his client the thief nearly 30 years ago. This work, Paul Cezanne's Pitcher and Fruits was stolen from Michael Bakwin, back in 1978. He recovered the work a few years ago, and it was sold by Sotheby's for close to $30 million.

In a strange series of events, the paintings were hauled all over the world in an attempt to sell them, from Massachusetts to Switzerland, London and Monaco. As the Boston Herald's AP article details:

In 1988, Mardirosian moved the paintings to Monaco, thinking he might have a legal claim to ownership or a 10 percent ”finder’s fee,” according to a May 2006 affidavit from FBI Special Agent Geoffrey Kelly, also unsealed Tuesday.
Lloyd’s of London was contacted in 1999 by an unknown person about insuring the paintings before sale, the affidavit says, and discovered they were listed with the database Art Loss Register as having been stolen. It says Julian Radcliffe, chairman of Art Loss Register, determined that the paintings were being sold by a Panamanian corporation called Erie International Trading Company, later found to be registered to Mardirosian.
Radcliffe contacted Bakwin and brokered a deal with unnamed agents of Erie, who agreed to return the Cezanne in exchange for the other six paintings. Two months after retrieving the Cezanne, Bakwin auctioned it through Sotheby’s in London for $29.3 million.

As part of the contract, the owner of Erie agreed to disclose his identity in a sealed envelope. A British judge later ruled the contract void because Bakwin ”signed it under duress.” He ordered the envelope unsealed, revealing Erie’s owner as Robert Mardirosian, and ordered the lawyer to pay Bakwin $3 million.

It's fascinating stuff, and reveals a number of things about the current state of the market. First, the shroud of secrecy surrounding transactions is not productive. Second, import controls are not working. It is just not possible to adequately inspect most of what gets shipped around the world. Finally, how does an attorney expect to get away with this kind of thing? It seems the final straw was the fact that Madirosian's colleague, Paul Palandjian, got tired of having the stolen works in his own attic and went to the police.

This prosecution is sure to generate a great deal of attention. These works high value continues to fuel illegal activity. The only sure way to prevent it is to erect safeguards in the market place. On one level, its very easy to criticize Mardirosian's behavior. However, how many of us would think twice about turning over a $30 million work to the police, no questions asked? I would like to think most of us would, but that kind of money must be extremely tempting.

Church Thefts

In today's New York Times, this piece details the theft of colonial art from Mexico's rural churches. Apparently, theft from churches in Mexico's colonial heartland near Mexico City has become widespread. According to the National Institute of Anthropology and History in Mexico, 1,000 colonial pieces have been stolen since 1999. In response, the Mexican government is attempting to register the nation's sacred art. According to the Times piece, 600,000 items have been inventoried so far. The institute is also preparing its own Web site of stolen art, so dealers and collectors can no longer claim that there is no record of the theft.

Such a database is both a welcome change, and worrying at the same time. In theory, a database should put dealers of Mexican colonial art on notice that a certain set of objects may be tainted. However, there are a number of such websites now available. See the Art Loss Register for example. The more of these databases there are, the harder it will be for the law to realistically impose an obligation on buyers and sellers of art and antiquities. If each segment of the cultural property market has its own database, this would almost certainly lead to confusion and overlap. One unified website would be a much better system. A buyer or seller could easily check a single website t insure their piece is not stolen.