The Good Faith Acquisition of Antiquities

I have posted on SSRN the most recent version of my paper, Towards a Rigorous Standard for the Good Faith Acquisition of Antiquities of Antiquities, forthcoming in 37 Syracuse Journal of International Law and Commerce (2009).  Here is the abstract:

When antiquities are acquired without a rigorous due diligence process, that acquisition defrauds our heritage by distorting the archaeological record; causing potential harm to other legitimate acquisition of antiquities; perverting the important role museums play in society; and ultimately warping the understanding of our common cultural heritage.  Fraud occurs when a defendant intentionally deceives another.  Given the flood of scandals plaguing museums, collectors, and dealers, we can state now with some confidence that many of these individuals have committed a fraud on our collective human heritage.   

Combating this fraud is particularly difficult.  Though an existing body of law prohibits and punishes a variety of activities which further the illicit trade, these measures are severely hampered by the mystery surrounding antiquities transactions.  With increased scrutiny and a more rigorous and diligent title enquiry by buyers and sellers, these legal measures will become far more effective.  At present, details regarding authenticity, title, or even more basic questions such as the origin of an object are intentionally hidden and disguised from public view.

Good faith has been used to merely promote commercial convenience and economic efficiency.  This article proposes a new theoretical foundation for increased scrutiny of the antiquities trade by constructing a broad basis for the recognition of good faith as a mechanism for eliminating the illicit trade in antiquities.  This article articulates three ways in which good faith can play a meaningful role in the trade and transfer of antiquities by examining fraud, limitations periods, and public pressure generally. A strong case for reform can be made if we consider that a family of art forgers living in modest public housing in Bolton, England can easily fool some of the World's leading cultural institutions.

Forgeries of Russian avant-garde

Konstantin Akinsha and Sylvia Hochfield report for ARTnews on the slew of Russian avant-garde paintings which were alleged to be fakes. An exhabition at the Château Museum in Tours, France was slated to exhibit 192 Russian avant-garde paintings was abruptly canceled in March, three days before its opening. Russian avant-garde is the body of modern art which was created roughly between 1890 and 1930. Pictured here is an authentic (I think) lithograph by El Lissitzky, Beat the white with the Red wedge (c. 1919).

It seems there is a slew of these forged works. Natalia Kournikova of the Kournikova Gallery in Moscow notes in the piece that "we can say that almost every artist whose prices have risen has become the victim of fake makers." Alla Rosenfeld, curator of the Norton Dodge Collection of Soviet Nonconformist Art at Rutgers University from 1992 to 2006 and former vice president of the Russian art department at Sotheby’s New York says “There are more fakes than genuine pictures”:

Fake icons and “fauxbergé” trinkets have bedeviled the art market for generations, but the escalating demand for Russian art in the last two decades has led to more ingenious abuses. For a while, “Russified” pictures—minor 19th-century European landscapes or portraits doctored to look Russian—flooded galleries and antique dealerships in Moscow and made their way to the West, appearing even at major auctions. But it has been Russian modernism—art from the first three decades of the 20th century—that has attracted the most Western collectors and consequently the most forgeries.


Hundreds of works have appeared in recent years at auction houses and in galleries all over Europe, from Munich to Madrid. These works have very sketchy provenances in which certain assertions are repeated again and again: the works are said to have come from hitherto unknown private collections or to have been smuggled to Israel by immigrants in the ’70s or to have been deaccessioned by provincial museums in the former Soviet republics—although this practice was strictly forbidden—or to have been confiscated and hidden for a half century by the former KGB (the secret police), although experts say there is not a single documented case of avant-garde works emerging from KGB vaults.

The means with which these forged works are given clean histories are familiar: publication in academic works or exhibition catalogs; previous owners who have suddenly disappeared or are unavailable to corroborate their story; questionable certification by Russian art historians, and a general lack of sufficient documentation. Again, it appears as if a segment of the art trade continues to skirt the rules. As I've argued elsewhere, we need a renewed emphasis on the means by which buyers of art acquire good faith status.

My Work in Progress on Increased Scrutiny of Good Faith

I've posted on SSRN a work in progress, Fraud on Our Heritage: Towards a Rigorous Standard for the Good Faith Acquisition of Antiquities. I attempt to make a case for heightened standards for good faith, particularly in the context of museums and antiquities. I would be delighted to hear any thoughts/reactions to the piece. Here is the abstract:

If a family of art forgers living in modest public housing in Bolton, England can easily fool some of the World's leading cultural institutions, then surely the current state of the antiquities market must be badly broken. Ideally a diligent enquiry before a purchase confers good faith status, allows purchasers to acquire good title, and gives the legal right to seek compensation from an unscrupulous seller. Despite these important advantages, good faith has been used merely to promote commercial convenience and economic efficiency. This article proposes a new theoretical foundation for increased scrutiny of the antiquities trade by constructing a broad basis for the recognition of good faith as a mechanism for eliminating the illicit trade in antiquities.

Though an existing body of law prohibits and punishes a variety of activities which further the illicit trade, these measures are severely hampered by the mystery surrounding antiquities transactions. With increased scrutiny and a more rigorous and diligent analysis, these legal measures will become far more effective. At present, details regarding authenticity, title, or even more basic questions such as the origin of an object are intentionally hidden and disguised from public view. When an object is acquired without a rigorous due diligence process, that acquisition defrauds our heritage by distorting the archaeological record; harms the legitimate acquisition of antiquities; perverts the important role museums play in society; and ultimately warps the understanding of our common cultural heritage.

Consequently, this article proposes a theoretical underpinning for a new and rigorous standard for the acquisition of art and antiquities. In so doing, it develops a theory which can successfully navigate the secrecy surrounding the trade and acquisition of antiquities. It concludes by offering a critique of the recent attempts by law and economics scholars to analyze the antiquities trade and concludes that they may offer some useful policy models so long as they account for the preservation of heritage and context in their "efficiency" models.