"Portrait of Wally" and Nazi Spoliation Litigation

Over at Culturegrrl, Lee Rosenbaum has some interesting information on Egon Schiele’s Portrait of Wally which has been sitting in storage for about 8-9 years now pending litigation. Two other articles on this topic have appeared in the last week as well. Carol Kino has an article in the NY Times on this as well. Kelly Crow had an article ($) in last week’s Wall Street Journal as well.

Here’s what Rosenbaum had to say on “Portrait of Wally”:

“Wally” is still languishing in storage, but not at MoMA. Having been seized by the U.S. Customs Service, it is now in a warehouse run by the Department of Homeland Security. According to MoMA’s deputy general counsel, Stephen Clark, “No trial date [at U.S. District Court in Manhattan] has been set.”

The Times reported that New York art-restitution attorneys Lawrence Kaye and Howard Spiegler are “helping the heirs” of the Viennese dealer in their effort to recover the Schiele painting from the Leopold Museum, Vienna, which had lent it to the MoMA show. The heirs assert that it had been confiscated from Jaray by the Nazis and should be returned to the family.

Spiegler told CultureGrrl today that an effort early last year at mediation in the case had failed, but he was hopeful that the matter would be resolved in court by “the end of this year or the beginning of next.”

Well, let’s hope that is the case. Rosenbaum blames the law for this extended delay, and that’s right in a sense. This painting was seized under a civil forfeiture statute. The relevant federal prosecutor seized the work years ago, but the judicial machinery has been incredibly slow. I write about this at length in my article for the Cardozo Journal of Art and Entertainment law which should appear sometime next fall. Jennifer Anglim Kreder had an outstanding article on this dispute, and civil forfeiture a couple of years ago in the Vanderbilt Journal of Transnational Law. I think this is a topic which warrants some more discussion, so I’ll revisit it later this week when I have more time.

In the meantime, you can see what I’ve written on the “Portrait of Wally” dispute.


Questions or Comments? Email me at derek.fincham@gmail.com

Australian Auction Halted


Will Anderson over at The Assemblage was kind enough to point out the decision by the South Australian government to possibly halt an auction. An Australian news outlet, ABC News Online is reporting that the South Australian Government is considering halting the auction of a breastplate recently discovered by two brothers. It was estimated to bring half a million dollars (aus.) at auction. The object may have been presented to Aborigines in 1863 who helped the explorers Burke and Wills. Wikipedia has a nice overview of that expedition here. Let’s just say despite grand ambitions to cross the continent, it did not end well.

The Aboriginal Affairs Minister Jay Weatherill may attempt to acquire the brass plate under the Aboriginal Heritage Act 1988 (SA), which is available here. I’m not very familiar with it, but it seems the Minister may elect to purchase the object, or even seize it if a crime has been committed.

It’s a bit of a curious action here in that it is protecting a gift which the newly-arrived explorers gave to the aborigines who helped them. Most protections of this kind would seem to protect the creations of the indigenous groups, and not gifts given to them by the new European explorers. It’s a different way of thinking about an antiquity I think, and challenges what we might consider to be heritage.

Questions or Comments? Email me at derek.fincham@gmail.com

A Few Notes

Sorry for the lack of posts last week. I’ve been rushing to finish up a couple of articles for publication. The first, is a case note on Iran v. Berend which should appear in the next issue of the International Journal of Cultural Property. The second is a much longer article which is tentatively titled: Why US Federal Criminal Penalities for Dealing in Illicit Cultural Property are Ineffective, and a Pragmatic Approach. That should be published sometime next fall. I’ll try to post a copy of it on SSRN in the next few months.

In the links section at the left, I’ve added a link to the Museum Security Network, which is an outstanding service that sends daily emails on this topic. Also, I’ve included a link to Joanna Cobley’s Museumdetective site, which includes a lot of great information and podcasts.

Questions or Comments? Email me at derek.fincham@gmail.com

National Archives Theft for eBay Sale


An unpaid intern at the National Archives in Philadelphia was charged last week according to Tom Schmidt of the Philadelphia Daily News. He has been charged with stealing 165 Civil War documents and selling them on eBay, which violated 18 USC 641 (theft of government property).

Some of the stolen documents included a letter announcing the death of President Lincoln, along with other letters and telegrams detailing the supply of weapons and other materials to soldiers. He was a volunteer to prepare documents for the 150th anniversary of the Civil War.

The defendant, Denning McTague, holds master’s degrees in History and IT. He had a website called Denning House Antiquarian Books, but it seems to have been taken down since last week. Many of the documents have been recovered, and McTague has been cooperating with authorities.

Sadly, I think this is what a substantial measure of cultural property theft looks like. It happens when curatorial staff and others take parts of a collection which may not be noticed. Susan Cooper, a spokeswoman for the National Archives in Washington D.C. was quoted in a story on PC World that “Since we never sell our documents, and since they [are] all unique, they are all extremely valuable” and this kind of theft is rare. I’m not sure how rare it really is, as institutions certainly do not want to publicize when parts of their collection are gone because of mismanagement. However in this case it seems the National Archives quickly discovered the missing documents, and no serious harm was done.

A copy of the Federal charges are available here.

Questions or Comments? Email me at derek.fincham@gmail.com

What is the Practical Effect of the Dealing in Cultural Objects (Offences) Act 2003?

“Dealers are Confident their methods won’t trigger the offence…”

Yesterday evening I had the great pleasure in attending a program by Dr. Simon Mackenzie at the Institute for Advanced Legal Studies in London. He gave some of his initial findings on a survey of important players in the antiquities market he had just completed with Professor Penny Green. Mackenzie was just starting to interpret his data quite obviously. A couple things he said really jumped out though, and should make the scholarly output from this project much sought-after.

According to Mackenzie, many of the respondents thought the act was of minimal effect. This is my view as well. There have been no completed prosecutions under the act, though apparently some charges have been brought for altering parts of registered buildings, but no convictions have been achieved. As I’ve argued before, prosecutions under the act will almost certainly be few and far between The reason for that is the difficulty of proof. The market does not operate with provenance or chain of title. Any given vase could have been in a collection for 150 years, or could have been unearthed last week. There is no way of distinguishing them once they have been restored.

I found one interview response from London’s law enforcement community quite fascinating. The respondent basically stated that the job of the police is to protect London, not to recover Iraqi or any other antiquities. Mackenzie labeled this problem national self-interest. On one level, I can completely see this police perspective. After all, if Londoners were going to allocate enforcement resources, wouldn’t most of them choose safety and security for London first? I think so. However this becomes problematic for the illicit trade in cultural property, which is truly international in character.

Another issue was the fact that these dealers are “powerful constituencies in their own governance”. Essentially, dealers have a great deal of say in how their own regulations are created. In conclusion, Mackenzie summarized the quandary by putting forward two different forms the antiquities market might take: (1) the market would end, or (2) the market would function along the lines of partage. In the latter model, experts would excavate sites, source nations would keep important objects, and then the excess antiquities would be auctioned off to finance the dig itself. In theory that seems a workable model. I’m not an archaeologist, and I have only a cursory knowledge of what they do, but that seems to be a difficult model for them to implement. One possible compromise might be for archaeologists to begin to commercialize their research, and thus allow for responsible commercial exploitation. In turn, dealers could implement some truly effective self-regulatory measures.

In the end, what I took from the discussion was a new-found respect for the Cultural Objects offence. I have been quite critical of it in the past, but I think, that only a truly draconian regulatory framework can effectively police the market as it currently operates. The best means of reform is to convince dealers that more money can be made by selling provenanced antiquities. That is a big job, and quite daunting, but achievable in my view.

Questions or Comments? Email me at derek.fincham@gmail.com

Protest over a Da Vinci Loan



This work by Leonardo Da Vinci, the Annunciation, is slated to be displayed in Tokyo until mid June. However, a number of Italians are upset about the loan. Italian Senator Paolo Amato pictured below has chained himself to the entrance to the Uffizi gallery in Florence to protest the loan. The BBC has a story here, and an AP story
is here.

Cultural policy is a much more prominent part of Italian politics than in many other countries. Amato has accused Italian Culture Minister Francesco Rutelli of being “arrogant” for deciding to agree to the loan. The work has travelled before, to Paris and Milan in the 1930’s, and it was hidden during WWII. However, it has remained in the Uffizi since 1945.

I have very little knowledge of how risky transportation of important works is. The work “was being bundled into three protective crates filled with shock-absorbers and high-tech sensors to monitor humidity, temperatures and stress levels in preparation for departure Tuesday.” That seems pretty secure to me, but I suppose any risk of loss of this important work would be a tragedy.

Thanks to David Nishimura at Cronaca for pointing out the story.

Questions or Comments? Email me at derek.fincham@gmail.com

Getty Panel to Study "Cult Statue of a Goddess"


The Getty Museum has today announced it will bring together a panel to study this statue, probably of Aphrodite, known as the “Cult Statue of a Goddess”. Last November, Michael Brand announced the Getty would transfer full title of the statue to Italy. He said the Getty would try to return the statue within 12 months. The Italian Ministry of Culture has demanded other objects though, including the “Bronze Statue of a Victorious Youth” which I’ve discussed here many times.

The experts have expertise in archeology, pollen analysis, stone analysis, and art history. University of Virginia Professor in Art History Malcolm Bell III has signed on to the workshop. He has been critical of the negative impact the antiquities market has had on archaeological context in the past. You can read a 2005 article he wrote here at the Museum Security Network. In it he said this statue “is an extremely rare example of the sort of cult statue that once stood within a Greek temple. While, as some have asserted, this remarkable work may come from Morgantina (a site in Sicily where I serve as co-director of excavations), no proof of its origin is known, and its subject is just as uncertain. The market destroyed the evidence.”

Both the Italian Ministry of Culture and the Sicilian Regional Minister of Culture and Environmental Heritage have been invited to attend as well. The demand for this kind of statue motivated those who illicitly excavated and exported this work from its source nation. This workshop aims to study the statue, with the presumed goal of finding the findspot or provenience of this statue.

Scientific study is of course welcome, and perhaps these experts will be able to look at the soil and other residue removed from the statue when it was cleaned and learn a lot about it. However, if the market only dealt in licit antiquities, chances are we would know a great deal more about this statue. Many have criticized the Getty’s aggressive antiquities-buying in the past, as the large sums of money they were willing to pay for these objects helped to fuel the illicit market.

The workshop is set to take place in May, and the findings will be peer-reviewed and then published.

What will the impact of this workshop be? The Getty has already agreed to return the statue, and the Italian Culture Ministry has insisted more objects should be returned. I am not sure what scientific data can be gleaned from the statue and the concretions at this point. I suspect it will not be conclusive, and will perhaps point to a number of findspots.

Dr. Brand says of the panel “the questions and allegations surrounding the statue’s origins are complex and often contradictory. Our role as responsible stewards demands that we examine these questions in greater detail…We look forward to the opportunity to work with our international colleagues to shed more light on this subject.” I hope both the Getty and Italy are able to work together to reach an effective compromise on this and the other works in the Getty collection.

Italians are very proud of their ancient history and rightly so. These disputes implicate national and cultural feelings. A productive dialogue would seem to be a better solution to this problem than a lot of the rhetoric which seems to fly back and forth in the press by both sides.

If the study is able to show the statue originated in another nation, like present-day Turkey, if the Getty will decide against returning the statue to Italy. The Getty’s message to Italy seems clear, if you aren’t willing to negotiate on these objects, we will look at them ourselves and determine where they should belong. From the legal and policy perspective, it would be much more helpful if the Getty clearly outlined the process an object goes through before it is repatriated. What kind of calculus is involved in deciding to repatriate? It seems that in the Italian case, the Culture Ministry has been extremely vocal and forced the Getty’s hand in recent years.

Lee Rosenbaum over at Culturgrrl has a post on the same topic as well.


Questions or Comments? Email me at derek.fincham@gmail.com