Babcock on “The Public Trust in Public Art”

Winslow Homer, The Veteran in a New Field, 1865, (source).

Professor Hope Babcock, of Georgetown Law, has published an interesting discussion on public art which carries forward a number of ideas presented by Joseph Sax and the public trust. She looks at the interesting problem of art which is withheld from public enjoyment. In other words should this iconic work of Winslow Homer enter the public patrimony, and thus be prevented from disappearing into a private collection if the Met would ever decide to deaccession it?


Private hoarding of important works of art is a phenomenon that has caused their disappearance from public view. The loss of this art undermines republican values like education, community, and citizenship, and therefore should be resisted. This Article explores various legal tools to prevent this from happening, including doctrines and laws that protect artists’ rights in their work, but which offer the public little relief. Turning to two well-known common-law doctrines—public dedication and public trust—to see whether they might provide a solution, the author favors the latter because it is nimbler and better suited to the public nature of important works of art. But she recognizes that making viable use of the public trust doctrine requires enhancement with incentives, such as those offered by listing the art on a register, the tax code, and external norms of social behavior. The Article is a tribute to Professor Joseph L. Sax’s public trust scholarship, which has inspired so many of us who follow in his footsteps.


Babcock, Hope M., “The Public Trust in Public Art: Property Law’s Case Against Private Hoarding of ‘Public’ Art” 50 Conn. L. Rev. 641 (2018). https://scholarship.law.georgetown.edu/facpub/2139


New article on the market for anonymous paintings

The King’s Fountain, 16th Century anonymous Flemish work (source)

Anne-Sophie V. E. Radermecker, affiliated with the Department of History, Arts and Archaeology (Cultural Management) Université libre de Bruxelles, Brussels, Belgium has published a paper devoted to the market for anonymous Flemish paintings which were sold between 1955-2015.


This paper explores the market for indeterminate works of art. Our data set includes 1578 sales of fifteenth and sixteenth-century anonymous Flemish paintings, mainly collected from the Blouin Art Sales Index over the period 1955–2015. After a brief introductory section to the issue of anonymity in early modern art, and the different situations of information failure generated by anonymous paintings, the empirical part examines the supply and demand for paintings by unrecorded artists, using a hedonic pricing model. We find evidence that the degree of specification of the spatio-temporal designations given to the paintings (e.g. Flemish school, sixteenth century) affect prices differently (H1). The more specific the designation is in time and space, the more it tends to make up for the lack of information, and to positively affect the market value of anonymous paintings. When the artist name is missing, we also argue that purchasers pay greater attention to other quality signals. Four other hypotheses, which are expected to influence the buyer’s willingness to pay, are successively tested: H2) the physical condition of the painting; H3) oral or written interventions by an expert; H4) the length of the lot essay; and H5) previous attributions to named artists. The results suggest that most of these variables operate as significant pricing characteristics. We finally compare price indices of named artists, indirect names and spatio-temporal designations.

Radermecker, AS.V.E. J Cult Econ (2019). https://doi.org/10.1007/s10824-019-09344-5

An interesting article with some very useful data. The article’s conclusions are unsurprising: the more information provided about a work of art, the higher the price will generally be.

Italy’s Carabinieri Outwits Art Thieves

The Crucifixion, by Pieter Bruegel the Younger, a copy of a similar work by his father (wikipedia commons)

Italy’s art squad, the Carabinieri Tutela Patrimonio Culturale, are the pre-eminent art police squad for a reason.

Thieves hoping to steal this work learned that lesson the hard way last week when they attempted to steal this work of art from a baroque church (Chiesa di Santa Maria Maddalena) in Castelnuovo Magra in Liguria. Working from information that a theft was imminent, the Carabinieri and only a handful of the residents of the town orchestrated and elaborate switch.

They swapped the real painting out for a copy, and that’s what the thieves stole.

The thieves now have a near-worthless copy, and the painting is still safe in storage.

Daniele Montebello, the mayor of the town which has a population of 8,500, said “The original painting was replaced by a copy more than a month ago . . . We were hearing rumours that someone wanted to steal it, so the Carabinieri brought in the fake and installed security cameras.”

Parish Priest Fr. Alessandro Chintaretto, who was reportedly napping nearby when the theft took place, expressed relief the original is safe: “It is a work of rare beauty which expresses a moment of profound faith . . . ”. 

A Profile of Vjeran Tomic


Georges Braque, 1906, L’Olivier près de l’Estaque (The Olive tree near l’Estaque)

In 2010 Vjeran Tomic managed to pull off an improbable heist. During a series of late night visits, he managed to make off with five important works from the Musée d’Art Moderne, including Pastoral by Henri Matisse, Woman with a Fan by Modigliani, Pablo Picasso’s Dove with Green Peas, and George Braques Olive Tree near Estaque. These works were always going to be difficult to sell, leading many to speculate they might have been destroyed.

Writing for the New Yorker, Jake Halpern speaks with Tomic and in a downright readable profile, attempts to figure out why. Here’s an excerpt:


Many of the luxurious apartments that Tomic broke into had valuable paintings, but he tried to resist taking them, knowing that they would be difficult to unload. “To sell them was dangerous, and I didn’t have reliable sources abroad in order to flog them to collectors or receivers,” he told me. Occasionally, though, the allure of the art proved overwhelming, and Tomic took what he found—including, he says, works by Degas and Signac. “A decent amount passed through my home,” he wrote. He hid some pieces in a cellar, “and some stayed with me for a long time, on the wall, and it’s in these cases that I fell in love.”
This might sound like braggadocio, but Tomic did make off with some masterpieces. In the fall of 2000, in an episode that subsequently made the papers in France, he used a crossbow with ropes and carabiners to sneak into an apartment while its occupants were asleep and stole two Renoirs, a Derain, an Utrillo, a Braque, and various other works—a haul worth more than a million euros.


Jake Halpern, The French Burglar Who Pulled Off His Generation’s Biggest Art Heist, The New Yorker, Jan. 7, 2019, https://www.newyorker.com/magazine/2019/01/14/the-french-burglar-who-pulled-off-his-generations-biggest-art-heist [https://perma.cc/M7FK-M39R].

Its a terrific profile, and if you enjoyed it, it recalls another terrific read, David Grann’s profile of the prolific aging bank robber Forrest Tucker.

Stéphane Breitwieser alleged to have committed more thefts


Sibylle of Cleves at the time of her betrothal to Electoral Prince John Frederick, by Lucas Cranach the Elder, 1526. This work was stolen by Breitwieser in 1995 from a castle in Baden-Baden.

The notorious art thief Stéphane Breitwieser who committed numerous thefts in France, Switzerland, and Germany between 1995 and 2001 is alleged to have continued committing crimes after his release from prison. He worked as a waiter travelling around Europe, and stole on average once every 15 days a quantity of art estimated to total $1.4 Billion. In 2006 he wrote an account of his thefts. But that book has not it seems sold very well, or occupied Breitwieser’s time.

Vincent Noce reports for the Art Newspaper that:

He had been under surveillance since 2016 when he offered a 19th-century paperweight on eBay. Several such objects were stolen from the crystalware museum in Saint Louis, owned by the fashion house Hermès. At his house in the city of Marmoutier, police also discovered roman coins from an archeological museum and other pieces from local and German galleries; €163,000 in cash was stashed in buckets at his mother’s home.


Serial art thief Stéphane Breitwieser arrested—again, The Art Newspaper (Feb. 14, 2019), http://theartnewspaper.com/news/serial-art-thief-stephane-breitwieser-arrested-again [https://perma.cc/NR7T-97LN].

Successful Trial Attorney, Unsuccessful Art Owner

La Plaine de Gennevilliers, by Claude Monet

One of the times when thefts of art are most common is surrounding holidays and festive events. The most obvious example is of course the Isabella Stewart Gardner theft. The same goes for large homes as well. Tony Buzbee, a successful Houston trial attorney found himself the victim of a home burglary early Monday morning. He had apparently had a Superbowl party at his large mansion the evening before, and discovered a man riding away on a moped from his garage at around 6 a.m. on Monday. He discovered that an estimated $21 million worth of goods was stolen, including this art:

  • Pablo Picasso’s ‘Femme Accoudee’ painting, valued at $216,611
  • Claude Monet’s ‘La Plaine de Gennevillers’ painting, valued at $1,273,125 (auctioned at Christies in 2006)
  • A Fernand Leger painting, ‘Paysage au coq rouge’, valued at $1,284,015
  • Pierre Bonnard’s ‘Jeune Femme au Chapeau noir,’ valued at $832,125.00
  • Jean Pierre Cassigneul’s painting, ‘Femme en Vert,’ valued at $111,563
  • Childe Hassam’s ‘California Hills in Spring’ painting, valued at $985,000.

Buzbee has had trouble keeping his art safe before. In 2017, a first date with a Dallas court reporter got out of hand and she allegedly, in a drunken frenzy, started throwing sculpture and damaged a couple of Andy Warhol paintings when Buzbee tried to call her a ride home.

Locally, Buzbee has a reputation as a colorful trial lawyer apart from his art troubles. In 2016 he hosted a fundraiser for Donald Trump, and he’s currently running a Trumpian mayoral campaign. He has netted some fantastically high sums of money in a number of high profile trials, but also gained notoriety for parking a M4A4 Sherman Tank, dating to WWII, in front of his home. That street is River Oaks Boulevard, one of the wealthiest streets in Houston, and probably in all of the United States.

But he continues to have a hard time securing his art.

Italian Court Upholds Seizure Order for Fano Athlete

Bronze Statue of a Victorious youth, at the Getty Villa

Will the Getty’s prize bronze return to Italy? On Monday Italy’s Court of Cassation upheld the seizure of the Bronze Statue of a Victorious Youth, currently on display at the Getty Villa. Though the legal dispute has taken years, that’s not out of the norm for the amount of time prominent repatriation conflicts take to resolve. The written opinion has not yet been published, but it certainly appears to be a favorable development for Italian officials.

Gaia Pianigiani reported for the New York Times:

After a decade-long legal battle, Italy’s Court of Cassation ruled Monday that the statue should be confiscated and brought back to Italy, rejecting the Getty’s appeal. The decision had not been published Tuesday but a message from a court official describing it was provided to The New York Times.

“It was a very, very long process, but we now hope that we will be able to have it in Italy as soon as possible,” said Lorenzo D’Ascia, a lawyer representing the Italian government.

In a report on ANSA, comments by Italian heritage advocates, ministers and lawyers seemed optimistic:

The top court rejected an appeal by the US museum against a Pesaro judge’s order to confiscate the fourth-century BC bronze statue.
“The Lysippos (as it is known in Italy) must return to Italy, it’s the last word from Italian justice,” Pesaro prosecutor Silvia Cecchi told ANSA after the long legal battle.
Culture Minister Alberto Bonisoli told ANSA “now we hope the US authorities will act as soon as possible to favour the restitution of the Lysippos to Italy”.
He said he was happy that “this judicial process has finally ended and the right to recover an extremely important testimony of our heritage has been recognised.
“Let’s hope the statue can soon return to be admired in our museums”.
In June the Pesaro prosecutors announced that the order issued to seize the statue for years disputed by Italy and the Getty Museum in Malibu was “immediately executive”.
“The Lysippos statue must return to Italy,” prosecutors told ANSA, accompanied by Tristano Tonnini, the lawyer for the association “Cento Citta'”, which has been fighting the legal battle for 11 years.
“We expect politicians to play their part,” they said.

For Italy, the path to a successful repatriation of the Bronze could come via an agreement with the Getty. And such an agreement may be more likely to occur with this favorable ruling. The forfeiture can be successfully enforced by a U.S. Federal Court via transnational forfeiture and a Mutual Legal Assistance Treaty between Italy and the United States. I detailed how such a transnational forfeiture could work in a 2014 article, available here.

  1. Lysippos statue is Italy’s says court, ANSA.it (2018), http://www.ansa.it/english/news/lifestyle/arts/2018/12/04/lysippos-statue-is-italys-says-court_8405f7ad-e1d1-4aef-aa4d-998c98c1a7ec.html (last visited Dec 4, 2018).
  2. Gaia Pianigiani, Italian Court Rules Getty Museum Must Return a Prized Bronze, The New York Times, December 4, 2018, https://www.nytimes.com/2018/12/04/arts/design/getty-bronze-italy-ruling.html (last visited Dec 4, 2018).
  3. Derek Fincham, Transnational Forfeiture of the Getty Bronze, 32 Cardozo Arts & Ent. L.J. 471–500 (2014), available at https://heinonline.org/HOL/P?h=hein.journals/caelj32&i=485.
  4. Luis Li & Amelia L.B. Sargent, The Getty Bronze and the Limits of Restitution Symposium: The Cultural Identity and Legal Protection of Art, 20 Chap. L. Rev. 25–50 (2017) (for a discussion of the case from the perspective of the Getty’s attorneys).

Mural in Houston’s 3rd Ward at Risk

 

This mural, “Contribution of Negro Women to American Life and Education”, finished by John Biggers in 1953 is at risk.

Natural disasters pose many risks to works of art, but one of the saddest is the damage done to works of art at cultural organizations that may go unnoticed. In Houston’s Third Ward, the Blue Triangle YWCA has served black women and girls for decades. The building includes a gym, kitchen, meeting rooms, and an indoor pool. Unfortunately the building itself has needed repairs for many years. In 2016 the Houston Chronicle reported that the organization was raising funds to repair the roof. But the torrential rainfall of Hurricane Harvey in August of 2017 finally caused serious damage to an important mural.

The Blue Triangle building, a state historic landmark.

That mural created by John Biggers, “Contribution of Negro Women to American Life and Education”. The mural, completed in 1953, was commissioned by a local Pastor and was one of Biggers most important early murals. Biggers was an important figure in Houston’s arts community. He was recruited to what was then known as the Texas State University (now Texas Southern) for Negroes in 1949 as the first director of its Art department. Ileana Najarro reported for the Houston Chronicle that:

 

The mural, which served as Biggers’ doctoral dissertation and features images of abolitionists Harriet Tubman and Sojourner Truth and poet Phillis Wheatley, was an opportunity to recognize these women’s work.

“He told me that he wanted to give [it] as a tribute to the Negro women,” Bryant said.

To Robert Proctor, co-director and chief painting conservator for Whitten & Proctor Fine Art Conservation in Houston, the mural exemplifies Biggers’ “compositional ability to work across large space.”

Proctor, who has restored other Biggers’ paintings, noted that the artist’s unique brushstrokes and his attention to work surfaces make them some of the most difficult pieces of art to restore.

Unfortunately the leak in the roof has imperiled the mural, damaging the mural itself and causing black mold to set in.

A section of the mural that was damaged by mold.

The work has been treated to prevent further mold, but further work cannot be undertaken until the roof of the building is repaired. The Houston Endowment has offered an initial $258,000 to repair the roof, but more funds are needed.

Repairs to historic John Biggers mural on hold, roof repair funds needed – HoustonChronicle.com (Nov. 10, 2018), https://www.chron.com/news/houston-texas/houston/article/Repairs-to-historic-John-Biggers-mural-on-hold-13406397.php.
Biggers mural now subject of online fundraiser – HoustonChronicle.com (Jan. 2016), https://www.chron.com/about/article/Biggers-mural-now-subject-of-GoFundMe-online-6784605.php.
Interested donors reach out to save endangered Biggers mural – HoustonChronicle.com (Jan., 2016), https://www.chron.com/news/houston-texas/houston/article/Interested-donors-reach-out-to-save-endangered-6777606.php.
Holland Cotter, John Biggers, 76, Painter Who Explored African Life, The New York Times, Jan. 30, 2001, https://www.nytimes.com/2001/01/30/arts/john-biggers-76-painter-who-explored-african-life.html.

Taxpayers paid triple for the forgeries at the Museum of the Bible

The Museum of the Bible in Washington D.C.

The Museum of the Bible, a private museum located in Washington D.C., has announced that some of its most heralded objects are likely forgeries. Five fragments, purported to be a part of the Dead Sea Scrolls, are actually fakes. In a statement the Museum of the Bible announced that the fragments “show characteristics inconsistent with ancient origin and therefore will no longer be displayed at the museum.”

The Museum of the Bible has generated controversy since it opened. In 2017 for example the Museum paid $3 million and returned thousands of objects illegally removed from Iraq. The Museum is the passion project of Steve Green, a billionaire and founder of the Hobby Lobby chain of craft stores.

Michael Press in a post for Hyperallergic  does an excellent job pointing out the real cost of these forgeries. He references the work of Candida Moss and Joel Baden for a 2017 book Bible Nation, which reports the Green family uses a 3:1 tax deduction to purchase price ration. Meaning that for every dollar used to buy these objects, the tax write-off is triple the amount. We the american taxpayer are paying for the Green family to acquire this material, much of it either looted or fake.

As Press argues:

Some may celebrate the latest news as a vindication of their criticisms of MOTB or Hobby Lobby. But, as with the prior series of scandals with which they’ve been involved — the forfeiture of thousands of cuneiform tablets and other artifacts smuggled into the countrythe issuing of fake receipts for purchases along with tax evasion and money laundering; or the funding of an archaeological excavation in the West Bank in violation of international law — this is not really a loss for MOTB.

Considering how the story has been told to date, it is a PR coup. More than that: based on the Greens’ 3:1 model for purchase and donation, and exorbitant purchase prices for the post-2002 Dead Sea Scroll fragments (tens to hundreds of thousands of dollars each), they have likely made millions of dollars in profit just from their “altruistic”donation of these 16 fragments. Given that this profit consists of public funds (in the form of tax breaks), the real losers, in this case, are us.

Sadly, that’s exactly right. We are paying for looting and forgery. Other museums certainly have acquired forged material in the past, but the Museum of the Bible in acquiring so much material so aggressively is bound to acquire looted and forged material.

Daniel Burke, Bible Museum say five of its Dead Sea Scrolls are fake, CNN (Oct. 23, 2018), https://www.cnn.com/2018/10/22/us/bible-museum-fake-scrolls/index.html.

Emily Sullivan, Museum Of The Bible Says 5 Of Its Most Famed Artifacts Are Fake, NPR.org (Oct. 23, 2018), https://www.npr.org/2018/10/23/659741484/museum-of-the-bible-says-5-of-its-most-famed-artifacts-are-fake.

Dead Sea Scrolls at the Museum of the Bible Revealed as Forgeries, Hyperallergic (Oct. 0, 2018), https://hyperallergic.com/467318/dead-sea-scrolls-at-the-museum-of-the-bible-revealed-as-forgeries/.

Museum of the Bible Releases Research Findings on Fragments in Its Dead Sea Scrolls Collection (Oct. 22, 2018), http://www.museumofthebible.org/press/press-releases/museum-of-the-bible-releases-research-findings-on-fragments-in-its-dead-sea-scrolls-collection.

A recovered de Kooning reveals more questions

“Woman-Ochre” by Willem de Kooning

In 1985 this work of art by Willem de Kooning was stolen from the University of Arizona Museum of art. The thieves entered the museum when it opened, the day after Thanksgiving. One of the thieves, a woman, distracted the museum security guard, while a man went upstairs and cut the canvas from the frame. The work has now been returned, and the story of the theft and recovery is pretty remarkable. The reporting indicates that the work very likely was stolen as a prize for a couple’s private collection, hidden in plain sight behind their bedroom door.

The painting was recently discovered in the estate of Rita Alter after her death. Rita and her husband Jerry may have been the thieves. The Arizona Republic reports:

Jerry and Rita Alter spent Thanksgiving Day 1985 with family in Tucson.

A newly discovered photo from the gathering shows them smiling side by side at the dinner table, plates of pumpkin pie in front of them.

Jerry was a retired music teacher and Rita a speech pathologist; a couple of New Yorkers in their 50s who had moved to rural New Mexico.

A day after the photo was taken, a valuable painting by the artist Willem de Kooning was taken from the University of Arizona Museum of Art in Tucson. Officials believed the thieves — a man and a woman — distracted a guard, cut the painting from the frame, rolled it up and carried it out of the museum under a coat.

The thieves and the painting disappeared without a trace.

Composite sketches, in hindsight, resemble the faces in the Thanksgiving photo, down to their position side by side.

Here’s a terrific local news documentary on the theft, which hints that there may have been other thefts:

Antonia Farzan, A small-town couple left behind a stolen painting worth over $100 million — and a big mystery, Washington Post (Aug. 3, 2018), https://www.washingtonpost.com/news/morning-mix/wp/2018/08/03/a-small-town-couple-left-behind-a-stolen-painting-worth-over-100-million-and-a-big-mystery/.
William K. Rashbaum, A de Kooning, a Theft and an Enduring Mystery, The New York Times, Dec. 905, 2017, https://www.nytimes.com/2017/09/09/nyregion/a-de-kooning-a-theft-and-an-enduring-mystery.html.
Anne Ryman, Who stole the $100M masterpiece? Clues emerge in year since recovery of Willem de Kooning painting, Arizona Republic (Aug. 1, 2018), https://www.azcentral.com/story/news/local/arizona-best-reads/2018/08/01/art-heist-woman-ochre-clues-emerge-willem-de-kooning-painting-recovered/789652002/.
Discovering de Kooning: A WFAA documentary (WFAA dir.), https://www.youtube.com/watch?time_continue=189&v=fwvqHeb32lY.