Export Problems


Martin Bailey of the Art Newspaper has an excellent story on the apparent export-bungling by Christie’s and UK authorities of this
£3m Rubens masterpiece. The Hunt of Meleager and Atalanta was granted a temporary export permit for 5 days to allow it to be displayed in New York. The work sold in London on December 2005 for £3,144,000 to an anonymous New York buyer. It was then re-exported after the sale.

In a statement to the Art Newspaper Christie’s said:

Our policy is to adhere strictly to all applicable laws and standard processes for the international transport of works of art. In the exceptional case of The Hunt of Meleager and Atalanta, a human error led to the accidental shipping of the picture to a client without completion of the appropriate export licensing process. Christie’s regrets the error and are co-operating fully on this matter with all relevant authorities to rectify this situation.

Some error. One would think a work of this magnitude would be double checked. Christie’s is subject to criminal penalties, and the New York buyer must be upset as well. Incredibly the Export Reviewing Committee flew to New York to examine the work and has deemed it of Waverley quality. A fundraising effort may now begin.

It’s uncertain whether the funds can be raised (as there are other works which need to be matched) or even if the New York buyer would consider selling the work. If she does not, the work will have certainly lost value, and I’d anticipate Christie’s would be subject to a civil suit brought by the buyer. Though the work cannot be recovered because the US does not enforce the UK export restrictions, it will not be able to be sold or even travel to Europe in all likelihood. Both Christie’s and HMS Customs have come out looking

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

The GAO takes the Smithsonian to Task


Many have argued that a compelling case can be made that art and antiquities should be displayed in market nations in the developed world because they are better preserved there than they might be if returned to source nations which are often underdeveloped. The GAO report which James Grimaldi highlights in today’s Washington Post seriously undermines such arguments. It reveals a troubling picture of what should be America’s proudest cultural institution. Instead a picture of staggering institutional incompetence is revealed:

  • Alarms ring and guards are unable to respond;
  • A water leak in the Sackler Gallery could have destroyed artwork worth half a billion;
  • Fossils were stolen from display cases at the Natural History Museum;
  • Plastic sheets are required to protect Native American artifacts from damage;
Questions or Comments? Email me at derek.fincham@gmail.com

Klimt Dispute


In another spoliation story in today’s NY Times, A grandson of a woman who died in the Holocaust may be considering legal or other claims for this work, Blooming Meadow (1906) by Gustav Klimt. Georges Jorish is considering legal claims or seeking a settlement. It seems the impetus for the new claims is the publication of another catalogue raisonné, this one by Alfred Weidinger which states the painting belonged to Jorisch’s grandmother.

The work now belongs to Leonard Lauder, who purchased the work in 1983. Wouldn’t a legal claim have expired under the statute of limitations? Probably not. New York is one of the most generous jurisdictions in the world for original owners. A limitations period won’t begin to run in New York until a demand and refusal has been made. Other legal defenses may be available to Lauder if the claimant delayed, but here it seems Jorisch is considering a claim after new information.

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

Another Dutch Holocaust Claim


Four heirs of art dealer Nathan Katz have brought a claim for 227 works recovered in German at the end of World War II reports Marlise Simons in todays NY Times. Among the contested works is this painting by Salomon van Ruysdael, Horsefair at Valkenburg. The claim was made public Friday, just as the Dutch were moving to discourage new restitution claims.

These restitution disputes are ill-suited to an adversarial litigation process with one winner and one loser as is the current situation in the United States. Professor Norman Palmer has persuasively made this case in the UK, while Jennifer Anglim Kreder has proposed an interesting idea. She makes a great case for an International Tribunal for dealing with Nazi-Looted Art. It’s forthcoming in the Brooklyn Law Review, an early version is up on SSRN. In the Netherlands the claims are studied by the Restitution Commission which advises the government on the return of objects lost or stolen when the Germans invaded in WWII.

Here’s an excerpt of the NYT story:

Although the Dutch government in exile had decreed that citizens could not trade with the enemy, many Dutch art dealers, both Jews and non-Jews, sold works to eager German collectors, who circulated wish lists in the first few years of the war. Dutch traditional painting was sought after, because the Nazis did not consider it “degenerate” art.

After the war the Dutch government returned 28 paintings that the Katz brothers had claimed. Among them was Rembrandt’s “Portrait of a Man,” believed to have been used to buy their mother’s freedom.

Evelien Campfens, a member of the Restitution Commission in The Hague, said the claim of the Katz heirs would “be a complex case, with many different aspects to it: it will take time.” She said that the Katz brothers were important dealers involved in many transactions, and that many important paintings had passed through their hands.

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

Know What you Want Before you Lawyer Up


I’m just catching up with this story, but I think its a fascinating dispute. The Massachusetts Museum of Contemporary Art (MASS MoCA) has won its suit against artist Christoph Buchel, and is free to display a massive unfinished work “Training Ground for Democracy”. Federal District court judge Ponser ruled Friday the Visual Artists Rights Act (VARA) does not prevent the display of the unfinished work. The Boston Globe has a good overview of the case.

VARA gives artists the right, in some circumstances, to prevent unauthorized distortion or mutilation of the work. The judge ruled the work hasn’t been distorted, because it’s not finished. It seems there was some kind of falling out between Mass MoCA and Buchel. The museum then brought suit to gain the right to display the unfinished work.

What strikes me about this case, is the tendency to see litigation as a cure-all. You can win a lawsuit and still come out a loser. A good lawyer encourages a client to think about what the end result will be, even if they earn a court victory. I don’t know what the museum sought to gain by initiating a suit against Buchel, but they have certainly damaged their reputation among artists. What are they gaining by displaying a work the artist himself wants nothing to do with?

There is a lot of great commentary which tries to answer that question.

  • Donn Zaretsky, Buchel’s counsel, has been posting his thoughts at the excellent Art Law blog. He expresses disappointment at the result, as “if you can’t read VARA to prevent [what NY Times reporter Roberta Smith calls an opening which has ‘broken faith with the artist, the public and art itself’], you’re not trying hard enough. So needless to say, we were very disappointed by the result of Friday’s hearing in Springfield.”
  • Mike Madison argues the judge probably made the right decision, as a “work of visual art” only exists when a work is fully realized and finished. In essence it can’t be distorted because it’s not a work yet. He also points out the claim may have more to do with trademark, and that’s essentially the remedy the judge provided: the work can be displayed but only with a disclaimer.
  • Lee Rosenbaum notes Judge Ponser was “extremely moved” by the installation, and found it “very powerful”. She argues MASS MoCA should show the installation for a week, recoup the $300,000 it invested and move on.
  • Ed Winkelman argues the result was the product of two unfortunate decisions. First was the decision by the museum to take the issue to court, “what’s the core message here? Money invested trumps artistic vision?” And second, the legal decision was “a hair-splitting technocratic decision that ignores the spirit of the law”.
Questions or Comments? Email me at derek.fincham@gmail.com

Upcoming Conferences

Next week in London the American Bar Association will be holding its fall international meeting. On Thursday, from 4-5.30 there will be a panel discussion on the International Movement of Art & Cultural Property:

Customs/Trade
Public International Law

Museums around the globe confront numerous obstacles in dealing with claims made on the art works and cultural objects in their collections. In some cases, works may have been placed on loan years ago and a museum may not know the current owner or may be presented with a claim to restore the works to the lender. Museums must also safeguard the ownership rights of victims of theft, including nations whose antiquities have been illegally excavated and removed and Holocaust victims and their heirs whose art properties were stolen during World War II. Finally, works on loan may be claimed to satisfy judgments received against the owner. In the United States, the ability of museums to remove art works from their collections through deaccessioning depends on laws that vary from state to state. The problem is more complicated in countries where museums are prohibited by law to remove any works from their collections. This panel will address issues of deaccessioning, long-term loans, and return guarantees for works on international loan and consider policies that may lead to greater cooperation in this complicated area of international law.

Co-Sponsoring Committees:

Europe Committee International Commercial Transactions, Franchising, and Distribution Committee, International Intellectual Property Committee , Information Services, Technology, and Data Protection Committee, Immigration and Naturalization Law Committee, and Financial Products and Services Committee

Program Chair:
Cristian DeFrancia, Legal Adviser, Iran – United States Claims Tribunal, The Hague, Netherlands

Moderator:
Ricardo A. St. Hilaire, Chief Prosecutor, Grafton County, Concord, New Hampshire

Speakers:

Lawrence M. Shindell, Chairman and Chief Executive Officer, ARIS Corporation, Milwaukee, WI
Norman Palmer, Rowe & Maw Professor of Commercial Law, Faculty of Laws, University College, London, England
Patty Gerstenblith, Professor, DePaul University College of Law, Chicago, IL
Bonnie Czegledi, Founder, Czegledi Art Law, Toronto, Canada

A likely topic for discussion may be the new consultation paper on Draft Regulations for the Museums and Galleries of Information for the Purposes of Immunity from Seizure Under Part 6 of the Tribunals, Courts and Enforcement Act 2007.

Another conference will be taking place at the University of Illinois, Urbana-Champaign April 24-25, 2008. It looks beyond the law at how heritage is constructed, and sounds fascinating. Here are the details:

CONTESTED CULTURAL HERITAGE IN A GLOBAL WORLD

Thursday and Friday, April 24-25, 2008
University of Illinois, Urbana-Champaign
Program

Spurlock Museum and the Collaborative for Cultural Heritage and Museum Practices (CHAMP) have organized a major conference on “Contested Cultural Heritage” to be held at the Museum on Friday, April 25, 2008. Dr. Donny George Youkhanna, former Director of the Iraq National Museum and now Visiting Professor at the State University of New York-Stony Brook, will deliver the keynote address of the conference (“Mayhem in Mesopotamia” on April 24).

The conference brings together an international group of scholars to discuss how forces of religion and nationalism may act to heighten inter-group tension around heritage claims, even to the point of causing the destruction of ancient and historic sites. Among the cases to be considered are the destruction of the Bamiyan Buddhas in Afghanistan; Christian and Muslim conflict resolution at a major mosque in Cordoba, Spain; different views and practices toward the indigenous past among Native Americans and the archaeologists who study their ancestors; the Parthenon/Elgin Marbles debate; Egypt’s demand for the return of the Bust of Nefertiti; heritage frictions implicated in the recent Balkans War; Peru’s attempt to repatriate the Machu Picchu collections from Yale University; and the aggressive marking of Protestant and Catholic identities in Belfast, Northern Ireland through wall art. A roundtable discussion at the end of the conference seeks to chart new directions for implementing policies that lessen the negative dimensions of cultural heritage and further awareness of its value for a larger public, thereby promoting site preservation as well as social/political harmony.

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

Endangered Species and Antiquities

Ben Macintyre has an excellent article in today’s TimesOnline, Elephants: the way to beat looters. He begins by describing looting taking place in Iraq:

Iraq has become a looter’s paradise, and history’s worst nightmare. The ancient sites of Mesopotamia, the very cradle of civilisation, are subjected to daily plunder. Friezes from the walls of the Assyrian city of Hatra are sawn off using stonecutters. Entire Sumerian cities have been erased from history by organised looters armed with guns and diggers, hacking down to bedrock and extracting everything of value: pottery, sculptures, bottles, anything that can make a buck on the international market. From the air, the ancient sites look like the surface of the moon, pitted and cratered.

The destruction has been well-documented, but Macintyre ties the trend to looting which takes place elsewhere, in Cambodia, Sri Lanka, Afghanistan and elsewhere. He sees promise in comparing the looting of sites with smuggled antiquities:

[A]rchaeologists are turning to the lessons of wildlife conservation in their efforts to protect the world’s most threatened sites. The answer to the plague of looting may lie with the endangered elephant.

Looters of ancient sites are operating in precisely the same way as poachers hunting elephant, rhino or apes: ivory, rhino horn and bush meat attain their value by a combination of illegality and rarity. One solution may be to treat ancient sites as, in effect, protected wildlife preserves, which visitors pay to visit just as they pay to see rare animals in their natural surroundings.

Our attitudes towards rare animals have altered radically. Rather than capture them for zoos, or kill and mount them on our walls, we prefer to see them in game reserves, preserved as nearly as possible in a state of nature. The same should apply to the relics of history. Where once ancient relics were the preserve of museums, today we also want to see them, with others of their kind, in context.

I think that’s exactly right, and there are at least three very interesting ideas playing out here.

First, as I see it, to prevent looting in source nations requires three components: a respect for cultural heritage among the locals, an effective legal framework which encourages compliance, and sufficient enforcement resources. The absence of any one of these allows an illicit trade; and all three are lacking in Iraq.

Second, the comparison between endangered species and antiquities is interesting. The two trades are a study in contrast though. The multilateral framework regulating wild animals works on a tiered system of protection under CITES. The multilateral protection of antiquities under the relevant UNESCO and UNIDROIT Conventions does not work nearly as well. Part of the reason may be the way the public views both problems. Broadly speaking if you see an endangered animal in a zoo, I think you get a visceral reaction at seeing a wild animal penned up. I don’t think you get the same kind of reaction when you see an antiquity in a museum, because you cannot tell by looking at a vase or sculpture if it was properly excavated or looted in most cases.

Third, and most interesting is the idea of heritage tourism. This has been successful in many countries, and is a great way to encourage locals to respect and preserve their heritage. It’s benefits are potentially long-range, but there are risks and drawbacks. As Macintyre points out, this may not be an option for Iraqis if the current theft and destruction continues.

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