Month: October 2008

MIA Returns a Nazi-Looted Work

The Minneapolis Institute of Arts (MIA) has made the decision to return this work Smoke Over Rooftops by Fernand Léger.  From the Minneapolis Star Tribune:
The institute’s saga began in 1997 when the museum received a letter claiming that the painting had been taken from Alphonse Kann, a legendary French collector who owned “tons of Picassos, Braques and late-19th-century Impressionist paintings,” according to Patrick Noon, the institute’s paintings curator. His story helped inspire a 1964 movie, “The Train,” starring Burt Lancaster, about a trainload of art that the Germans tried to spirit away before the Allies liberated Paris in 1944.
Much of Kann’s art was returned to him after World War II, but not the Leger. That painting was bequeathed to the museum in 1961 by Minneapolis businessman Putnam Dana McMillan, a General Mills vice president who bought it from the Buchholz Gallery in New York in 1951. No one questioned the picture’s history. Nazi-era archives were sealed in France and inaccessible in Soviet-controlled Eastern Europe. 
Responding to the claim took years because the museum had to establish if it was legitimate. Was this Leger the same one Kann had owned? (“Smoke Over Rooftops” was a theme Leger painted at least six times.) If so, what had happened to the picture between 1939, when Kann fled Paris on the eve of war, and 1949 when a New York art dealer bought it from a French gallery? Did Kann sell it freely, or did the Nazis confiscate it?
There’s no indication that this was a settlement of any kind, and a legal claim may have been difficult for the claimant as the work had been owned by the MIA since 1961.  It appears they voluntarily relinquished the work, though the story does make vague reference to a French Lawsuit.  Kaywin Feldmin, the MIA Director says “it was the right thing to do”, which is a refreshing sentiment to hear from a Museum Director.   

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

Art-Beat Constables

Martin Bailey of the Art Newspaper has the story of Scotland Yard’s part-time volunteer officers which have been tasked with policing art theft, the sale of looted antiquities, forgery and fraud. 

ArtBeat began in January 2007, and there are currently 13 special constables (six males and seven females). These include two from national museums, three from the Art Loss Register, three archaeologists with the remainder from a variety of institutions. The two from museums are Zoe Jackman of the V&A (see below) and Michael Lewis of the British Museum, where he is deputy head of the Portable Antiquities Scheme.

The Art and Antiques Unit needs all the manpower it can get. Last year Scotland Yard proposed halving the staff of its Art and Antiques Unit, which had four officers. In the end, the cuts did not proceed and funding has been confirmed for the current financial year. Nevertheless, resources are tight and having 13 part-time special constables for two days a month is equivalent to one extra full-time officer. Inspector Alan Seldon told us: “There are only four officers in the unit. The scheme expands what we can do, and enhances our capability.” He wants to encourage more recruits from the London art scene.

This seems to be a good idea generally, and if it helps the Arts and Antiques Unit, that must be a good thing.  But its no substitute for an open and honest market in art and antiquities. 

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

Two Indicted for Looted Native American Artifacts

A local TV station in Sacramento has a brief account of two men who have been indicted for looting Native American sites in Nevada, Donald and Steven Parker. If they are ultimately convicted they will face up to five years in prison and a $250,000 fine. The story indicates this was part of a five-year investigation, leading me to the conclusion that this may have been related to the massive searches of California museums earlier this year.

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

Call for Return of Chinese "Cultural Relics"

Both China Daily and CCTV have reported on China’s efforts to seek the return of two bronze animal heads, which were stolen from Beijing’s Old Summer Palace in 1860 by an Anglo-French coalition during the Second Opium War. They were created in the 18th century. I learned with great interest that it was Lord Elgin who ordered the burning of the Summer Palace — perhaps to discourage Chinese forces from kidnapping and as recompense for mistreating prisoners. Students of history will know his father was Thomas Bruce, the 7th Lord of Elgin who removed the Parthenon frescoes from Greece.
Charles George Gordon, a 27-year-old captain in the Royal Engineers wrote:

We went out, and, after pillaging it, burned the whole place, destroying in a vandal-like manner most valuable property which [could] not be replaced for four millions. We got upward of £48 apiece prize money…I have done well. The [local] people are very civil, but I think the grandees hate us, as they must after what we did the Palace. You can scarcely imagine the beauty and magnificence of the places we burnt. It made one’s heart sore to burn them; in fact, these places were so large, and we were so pressed for time, that we could not plunder them carefully. Quantities of gold ornaments were burnt, considered as brass. It was wretchedly demoralising work for an army.

These heads, one of a rabbit and one of a mouse were two of 12 sculptures which were taken. Five others are still missing. Christies has announced these objects will be on sale next February in the Yves Saint Laurent and Pierre Berge Collection auction in Paris. At least some of the proceeds from the sale will be used for AIDS prevention. The two items are expected to fetch at least 8 million Euros. Any legaly claim for these sculptures will have long-since expired, despite the less-than-noble way in which they were looted.

The China’s Lost Cultural Relics Recovery Fund, a privately funded organization has indicated it may try to purchase these objects and return them to China. In 2003 and 2004 the organization attempted to buy back these objects, but the asking price was $10 million. As the spokesperson told Daily China, “At that time, we bought back the pig’s head for less than $1 million. We think the offered prices are unreasonable and unacceptable.” China, an emerging economic power is in a unique position among nations of origin, as it can often use its considerable economic clout to buy back objects which were removed from the country during the imperial age.

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

Afghanistan Exhibit, Pros and Cons


I just listened to a very interesting story on Marketplace, discussing the pre-Islamic Afghani objects which are currently touring the United States. Two points. First, Afghanistan still is badly in need of funds and resources to protect sites; and second though the tour raises Afghanistan’s international profile and has a number of important benefits, it may also raise the desire of collectors to buy similar objects. This puts pressure on the limited enforcement mechanisms. Of course one possible solution is to dissuade collectors from buying these items, or we might even encourage source nations to consider marketing some of their surplus antiquities (a wildly controversial solution to be sure).

More on this travelling exhibition here. There has been concern in the past that Afghanistan didn’t quite get a fair deal out of this tour, though I think the piece speaks to this point. When Egyptian antiquities tour, the public associates Egypt with ancient civilizations. What does the American public currently think about when they think about Afghanistan? As the Afghan official pointed out, defining success for this Afghan tour is far different.

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

Bezanson on "Art and the Constitution"

Randall P. Bezanson has a very interesting and entertaining article (with pictures) in the most recent issue of the Iowa Law Review titled Art and the Constitution. From the introduction:

The First Amendment has been with us for 217 years. Over that long
history there have been surprisingly few Supreme Court cases involving art—
hardly more than a handful—and even fewer that are illuminating. When
forced to address the status of art under the Constitution, the Supreme
Court has simply said “of course” and “surely” the free-speech guarantee of the
First Amendment protects art. But as I tell my students in constitutional law,
when the Supreme Court explains itself by saying “of course” and “surely,” it
is a safe bet that the Justices do not really know what they are talking about.
This is the case with art. The Court does not tell us what art is, why it is
protected, or how the free-speech guarantee can be read to include it.
It turns out that the question of art and free speech is a very difficult
one, and this is the reason that art has had a troubled relationship with the
First Amendment. The law of obscenity, for example, protects only “serious”
art (whatever the Court means by that). But what about happy art? Or
humorous art? Or avocational, rather than professional, art?

And from the text:

Plato was right in at least one respect. Art is dangerous and incapable of
domestication. It rests on emotion and the senses. Art, as I use the term
here, is a representation perceived not mainly through our cognitive
faculties, but instead through our senses unconstrained by reason. An object
or performance that we call art is an instrument through which the
presented object is assimilated through the senses and becomes re-
represented as something distinct to each person—a perception or
understanding grounded in an act of imagination.

And from the conclusion:

Free speech—literally, textually, and by common public understanding
in the late Eighteenth Century—did not include art, but it should today.
The expansion of speech to include art reflects the evolved and evolving
habits and attitudes of society at large over a period of more than 200 years.
Today, art is a major source of expression and ideas. It is a central feature of
the creativity that our culture so prizes. Our culture has evolved from a time
when there was no broad private market in art—only patronage—to a time
when the private market in art is pervasive.

Highly recommended — Strict constructionism, Justice Scalia, Serrano’s Piss Christ, Manet, and Finley’s Return of the Chocolate-Smeared Woman all in one article.

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

Art Fraud in New Orleans

Today’s Times-Picayune has the story of a Mother and Son who “invented” artists to help sell cheap Chinese paintings from wholesale distributors. The pleaded guilty to conspiracy to commit mail fraud. From the story:

Constance “Connie” Breithoff, 60, and Christopher Breithoff, 35, both of Covington, admitted in federal court on Wednesday to misrepresenting their galleries’ artwork. They would buy inexpensive Chinese paintings from wholesale distributors and then market and sell them, at a large profit, as works created by Louisiana artists.

Specifically, the mother-son art dealers pleaded guilty to conspiracy to commit mail fraud. Each now faces a $250,000 fine, as much as five years in prison and three years of supervision after prison. They were charged by the U.S. attorney’s office on Sept. 17 and are scheduled to be sentenced Jan. 28 by U.S. District Judge Eldon E. Fallon.

The mother and son would mail a certificate of authenticity, along with a description of the fictional artists, to their customers after each purchase.

In addition to owning the Barlow Art Gallery and Transitions in Mandeville, the family operated a Barlow gallery in the French Quarter at 805 Royal St. from 1999 to 2005.

This mirrors in some ways the concerns with the buying of art at auction on cruises a few months ago. Do not buy art as a tourist, if you are spending more than a thousand dollars, make sure you educate yourself about the dealer and the artist.

If you bought a work of art in New Orleans by an artist named Falgot, S.A.M., Shanta, or Michel, you may want to contact the U.S. Attorney’s office, victim witness coordinator at 504-680-3000.

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

Private International Law and Nations of Origin



I have posted on SSRN a working version of my forthcoming paper titled How Adopting the Lex Originis Rule Can Impede the Flow of Illicit Cultural Property, to be published some time next Spring in the Columbia Journal of Law and the Arts. Here is the abstract:

The International trade and transfer of art and antiquities faces problems because nations have erected very different rules with respect to movable property. All nations forbid theft, however most cultural property disputes involve an original owner and a subsequent good faith possessor. Different jurisdictions have chosen to allocate rights and responsibilities between these two relative innocents in very different ways. Disharmony in the law is seldom a good thing, but in the realm of cultural property it can be particularly damaging to the interests of nations, museums, individuals, and our collective cultural heritage. The lack of harmony ensures no overarching policy choices will be furthered, which prevents parties from anticipating legal outcomes and giving substance to policies.

This article explores the default conflict of law rules which are applied to cultural property, and shows how the lex situs rule exploits the various legal rules which apply to art and antiquities. It challenges the lofty position enjoyed by the lex situs rule and proposes a radical reform of the default choice of law analysis. By employing the law of the Nation of Origin or lex originis courts can ensure the jurisdiction with the most tangible connection to an object enjoys the benefit of applying its legal rules to a given dispute. This will not only ensure the security of art and antiquities transactions, but impart much-needed transparency into the cultural property trade, and finally will decrease the theft and illegal excavation of art and antiquities.

The article begins by presenting some examples of recent disputes, and the problems they present for the law and cultural heritage policy. Section II describes the fundamental difficulty of adjudicating claims between two relative innocents, and the disharmony which has resulted as different jurisdictions have resolved this conundrum in very different ways. Section III lays out the ways in which private international law impacts art and antiquities disputes. Section IV analyzes the 1995 UNIDROIT Convention, the most recent attempt to harmonize the law affecting cultural property. Section V proposes a radical reform of the choice of law enquiry taken by courts.

I’d be delighted to hear any reactions to the work at derek.fincham “at” gmail.com.

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

International Red Tape, $500 Translation

International red tape often hampers the investigation of the illicit trade in antiquities, this example involves Leonardo Patterson (discussed earlier here) and the difficulty in acquiring a decent Spanish-German translation. From AFP a couple days ago:

SAN JOSE (AFP) — The price of a translation is keeping the Costa Rican government from retrieving a collection of pre-Columbian objects it claims were stolen by a private collector now living in Germany.

In August 2007, Costa Rica first learned about Leonardo Patterson’s collection stored in Spain since 1997. Its more than 1,700 pre-Columbian pieces originate from Costa Rica, Mexico, Guatemala, Nicaragua, Panama, Ecuador, Bolivia and Peru.

Costa Rica is seeking the recovery of 457 of those objects it says are part of its national heritage.

Patterson’s collection is of incalculable value, said Marlin Calvo, head of the Cultural Heritage Protection department at Costa Rica’s National Museum.

The objects are “very beautiful, very diverse, and in very good condition,” said Calvo.

Patterson, a former Costa Rican diplomat and renowned art collector, was questioned and part of his collection seized by Munich police in April this year, after he took it out of storage in Spain and had it shipped to Germany.

Investigators valued the objects at more than 100 million dollars.

Costa Rica, along with Mexico and Peru, say some of the pieces were stolen and are attempting to recover them, even as Patterson maintains he obtained them in Europe, legally.

Since May, Costa Rican authorities have tried, without success, to reclaim the pieces. Their main problem: the price of a translation.

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