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

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

William M. V. Kingsland and the  Importance of Provenance

1. Introduction

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

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


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

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

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

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

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Cyprus Antiquities Smugglers Discovered

Police in Cyprus have detained ten people over the weekend and are looking for five more after the discovery of an international antiquities-smuggling ring believed to be the largest such discovery in Cyprus's history.  The objects seized may be worth more than 11m euros, and include pottery, coins, figurines, some of which may be 4,000 years old.  Many of the objects may have originated elsewhere, and authorities now are attempting to determine the origins of many of the objects.  The BBC points out that Cyprus was an important crossroads in the ancient Mediterranean, with armies and merchants from Egypt, the Roman Empire, Persia, and others.  This may make it difficult to trace the origin of these objects, many of which could plausibly have originated from dozens of modern-day nations.  The smugglers of course were likely to have disguised or destroyed any evidence of the history of these objects. 

1. Cyprus smuggling ring broken up, BBC, January 25, 2010.

Antiquities Speakers at George Washington

Via David Gill I see that George Washington University is bringing in speakers to discuss antiquities issues.  The series is entitled"Museums and Antiquities".  Tonight will be James Cuno, sure to offer some provoking opinions:   James Cuno: “Museums, Antiquities, and the Politics of Cultural Property".  If any readers end up attending, please drop me a line with any observations.  


Coming up will be:

• February 18, 2010. Patty Gerstenblith: "Museums and the Market: Preserving the Past by Regulating the Market in Antiquities”
• March 4, 2010. Malcolm Bell: "Archaeologists’ Views on Collecting Antiquities"

(via)

9th Circuit Denies Limitations Appeal by Marei Von Saher

The 9th Circuit Court of Appeals has ruled on a claim over these two 500 year-old works by Lucas Cranach the Elder, Adam and Eve.  As I wrote back in 2008, this case presents some interesting issues of timeliness.  It grapples with the question of whether states may enact more beneficial limitations restrictions, allowing certain claimants to bring actions.  The claimant, Marei Von Saher is the successor in interest to Jacques Goudstikker who bought the works in a 1931 auction in Berlin. The works remained there in Amsterdam until 1940 when the Nazis instituted a forced sale.

After the war, Desiree Goudstikker reached a settlement with the Dutch government. She received some of her husband's inventory, but did not claim another set of works because that would have meant returning the purchase price received from the Germans.

The Dutch government transferred these Cranachs to George Stroganoff-Scherbatoff, the descendant of a noble Russian family who was thought to have lost the paintings to the Bolsheviks during the Russian Revolution.  Stroganoff-Scherbatoff sold these works to the Norton Simon Museum in 1971.  The 9th Circuit held first that California's special limitations rule for works looted during the Holocauset era, Sec. 354.3 conflicts with the foreign affairs doctrine.  Though it does not conflict with Executive Branch policy via the President, it does conflict with a power reserved to the Federal government, as California created a "world-wide forum for the resolution of Holocaust restitution claims". 

As a consequence, the claim was left to general limitations principles.  In California the Discovery Rule applies.  A claimant must bring her action within three years of discovering her claim.  This means actual discovery, but also when a reasonably prudent claimant should have discovered she had a claim.  Given that the museum acquired the work in 1971, this will surely make victory a difficult proposition. 

1. Von Saher v. Norton Simon Museum of Art at Pasadena, --- F. 3d ---, 2010 WL 114959 (9th Cir. 2010). 
2. Mike Boehm, Woman seeking return of looted art from Norton Simon Museum loses appeal - latimes.com, L.A. Times, January 16, 2010.
3. Orkin v. Taylor
   

Are the Black Hills Cultural Property?

That was the provocative question posed by Melissa Tatum at the AALS Annual Meeting here in New Orleans last weekend. First, a little background.  The Black Hills are a beautiful but small mountain range extending from South Dakota into Wyoming.  Today the region is home to Mount Rushmore, numerous National monuments, the in-progress Crazy Horse Memorial, and the Sturgis Motorcycle Rally.  But of course before 19th century Americans moved to the area, it was the home of indigenous groups; first the Cheyenne, and later the Lakota.

Apologies for any mistakes in this history, but as I understand it in 1868, the United States signed the Treaty of Fort Laramie, which essentially gave the Lakota nation ownership of the Black Hills.  This treaty was signed after the Lakota defeated U.S. forces.  Soon after though this treaty was violated until it was eventually revoked.  Tatum noted that the city of Deadwood was founded at this time, and references the recent HBO show.  "Deadwood" was set in the 1870's, and was based on the real life people and events of the town's early history.  The town began as a mining camp, in an area outside of the law.  The very founding of the camp was illegal, as the land was owned by the Lakota people.  The show examines this lawlessness in a number of ways.  In the real Deadwood, it was the discovery of gold which brought miners to the area.  This led to armed conflict (including Custer's defeat) which culminated in 1877 when the Federal governemnt seized control of the Black Hills for good.  

In 1980, the Sioux nation won a hard fought court victory.  United States v. Sioux Nation of Indians, 448 U.S. 371 (1980).  The Supreme Court upheld an award for the value of the land in 1877, along with 103 years of interest.  However the Sioux have refused to accept this sum, and instead want the return of the land. 

Against this background, Tatum asked whether existing Cultural Property law might provide a remedy allowing the Sioux to secure the return of the land itself.  In so doing, she moved the conversation beyond the typical repatriation request and instead challenged some of the basing foundations of cultural property law itself.  She argued property should be amended to offer legal definitions which are more culture-specific.  Tatum also asked whether the Black Hills might fit within some of the definitions of cultural property as provided in the 1954 Hague Convention, and various UNESCO conventions, including the 1970 Convention.  She offered as one solution, the potential for multiple cultures to use and enjoy public lands.  This is the current model in many Federal land management systems. 

Tatum put cultural property scholarship into concrete terms, pointing out why the Sioux should be entitled to some remedy, and offering a pointed critique of the current flaws in cultural property law.  I'm very much looking forward to the final paper. 

Here's why.

More on the Getty Bronze

Jason Felch has an interesting story updating the long history of this bronze statue known either as the "Getty Bronze", the "Fano athelete", or the "Bronze statue of a victorious youth".  I wrote a very long summery of the dispute back in 2007.  The statue was found by fisherman in the Adriatic in 1964, was smuggled out of Italy, and was eventually purchased by the Getty in 1977.  As Felch rightly points out, this dispute does not fit neatly into the legal framework governing many antiquities dispute.  This bronze really was found by accident, and early Italian attempt to prosecute the fisherman were unsuccessful.

The bronze was discussed a great deal in the very public battle between Italy and the Getty over other looted objects.  There was a lack of direct evidence linking the Getty to any wrongdoing in the acquisition.  However at "Times reporter" has uncovered a letter and other documents which reveal there were serious questions regarding the statue:

1976 letter from Ashmole to Garrett referring to “the crime”

These documents should not come as any real surprise I don't think. And though they may not provide enough of a legal basis to secure the return of the bronze, but they will add to the growing public pressure which Italy may try to exert to secure the return of the statue.

1. Jason Felch, A twist in Getty Museum's Italian court saga - latimes.com, L.A. Times, January 14, 2010.

Seminar Paper: The Google Books Settlement Agreement

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

The Google Books Settlement Agreement:
A New Rubric for Cultural Heritage Management and Privatization?

With the digital age now at its heyday, everything changes. When we want to know something about a topic, we Google or Wikipedia it. When we want to see what something looks like, we perform an image search. When we want to hear an artist, we “download” them. When we want to read a book, Google hopes that we will use Google Books to find it, preview it, and gain access to it.

Using complicated algorithms similar to those used to fuel what is arguably the world’s most sophisticated web browser, Google has unveiled Google Books[i]. Like Google’s other services, Google Books provides a simple, intuitive interface built around the user’s needs. Google has made its name on being the web browser of choice for just about everyone. Many turn to Google for e-mail (Gmail[ii]), driving directions (Google Maps[iii]), news (Google News[iv]), social interaction (Orkut[v]), streaming video (YouTube[vi]), and even cell phone service (the T-Mobile G1, powered by a Google Operating System[vii]). Google’s new hat is not only that of a librarian; Google wants to be the largest, most comprehensive digital library in the world. This is right in accord with Google’s mission: “to organize the world’s information and make it universally accessible and useful.”[viii]

Google, Inc. was founded in 1998 by Larry Page and Sergey Brin, two Stanford Ph.D. candidates who developed algorithms to “data mine” the far reaches of the Internet and bring the most relevant and useful pages forward in a search tool.[ix] The patented PageRank[x] search formulas are highly complicated, with more than 500 million variables and 2 billion terms being used to run its search engine in 1999 alone. Not so confusing are the economics. On January 22, 2009, Google announced fourth quarter financial revenues of $5.7 billion, an 18% increase, when compared to 2007 fourth quarter earnings.[xi] Google, repeatedly voted one of the best places to work in America, is a household name and a Goliath when it comes to the Internet.

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Forfeitted Pissarro Returning to France

A federal jury has ruled that this Pissaro painting, "Le Marché," was stolen from the Faure Museum in Aix-la-Bains in France.  The work was seized by ICE agents from Sotheby's in 2006, after its theft in 1981.  The thief took the work from the museum under his jacket.  The work has a storied history as the Department of Justice Press Release describes. 

It seems that in 1985 the thief, Emile Guelton, sold the work to Sharyl Davis who was using space art gallery in San Antonio owned by Jay Adelman.  Mr. Adelman seems to operate an antiques shop on the Riverwalk, and operate a website.  In 2003 the work was consigned to Sotheby's by Davis.  Davis paid $8,500 for the painting in 1985, and estimated an auction price of $60-80,000.  However Sotheby's asked about the history of the work and was told it was purchased from someone named "Frenchie". But then Davis asked for "Frenchie's" real name from Adelman, who told her it was Guelton and that he was from Paris.  That information appeared in the auction catalog with an image of Le Marché."

Just before the auction, French federal law enforcement officers learned that Le Marché was at Sotheby's. Based on the information in the auction catalog, the French officers located, contacted, and interviewed Guelton. Guelton confirmed that he knew Adelman, was living in Texas in 1985, sent a container of artwork from France to the United States in 1984, and sold Adelman paintings. The French officers, using a prior arrest photo of Guelton, created a six-person photo array, which they showed to the Faure Museum guard in October 2003.

 The Pissarro was then forfeited under the National Stolen Property Act.  Forfeiture allows prosecutors to bring a suit against an object which was part of a crime, and all claimants to the object come forward to challenge the forfeiture.  It is a powerful tool for prosecutors, and thus should be used carefully, else we may risk losing works of art for many years.  It seems like the right result was achieved in this case.  Mark Durney rightly points out that this round-about story reveals a lot about how difficult recovering stolen art is and how easy it is to acquire in "good faith".

History and Looting in Costa Rica

Maggie Koerth-Baker has a terrific two-part series on the ancient Chibchan culture in Costa Rica at BoingBoing.  The ancient CAribbean shares many characteristics with the ancient Mediterranean, in which a number of cultures traded and impacted each other.  Yet Costa Rica receives relatively little attention:

Despite a scarcity of giant tourist-attracting monuments, ancient Costa Rica was a pretty hopping place—a nexus of trade where the cultures of Mexico and Central America met those of northern South America, and elements of both were incorporated into the unique and diverse Chibchan culture. Gold ornaments, jade carvings and pottery are literally just below the surface, uncovered by modern construction—or even just poking around in the backyard. So why the low profile? Blame the combined forces of local climate, indigenous tragedy and looting as national pastime.

She talks with Michael Snarskis, an archaeologist examining ancient Costa Rican cultures.  The series does a terrific job documenting the damage done by looting, something archaeologists must account for in nearly every excavation in Costa Rica and elsewhere.  Are there any archaeological sites not at risk from looters?



Ancient Costa Rica Part I: Lost history in the land of the crossroads
Ancient Costa Rica Part II: The narrow road to Guayabo