Financial Innovations and the Antiquities Trade

Earlier this year I was asked to participate in a gathering of lawyers, archaeologists, antiquities dealers, economists, and members of the museum community at the Milken Institute in Santa Monica California: “Financial Innovations to Curb Looting and Preserve Cultural Resources

The institute has published a report available here (registration required). From the press release:

Participants examined how market-based financial innovations could help stem the black market on antiquities by changing incentives that would create cultural and economic value to all stakeholders.

“An open, more efficient market can help address many of the problems that plague the antiquities trade, including poverty, corruption and environmental and cultural degradation,” said Glenn Yago, director of capital markets at the Milken Institute. “The whole chain of events, from country of origin to museum or personal collector, needs a new set of legal market-based rewards.”

I gave a few comments on the intersection of the Treasure Act and the Portable Antiquities Scheme in England and Wales, which I expanded and developed into a longer article.

I’ve read the report, and it offers three potential ways we might use these “financial innovations” to reform the antiquities trade:

  • long-term leases for museums and exhibitions
  • museum/collector partnership-sponsored digs
  • the design and development of archaeological development bonds

The first is already taking place with increasing regularity. The latter two will likely be met with more controversy, but they do have a lot of merit I think if they are implemented carefully and thoughtfully. Any reform will have to have the support of nations of origin, and they have to be confident that their efforts are producing a good deal for them, and aren’t just a continuation of the taking of recent centuries.

The event itself was great, and it brought together a number of stakeholders — including archaeologists and antiquities dealers. It was clear that they have deep-seated disagreements, but there was a core of things upon which they did agree, which is the foundation of any effort at reform.

I strongly encourage those interested in the antiquities trade to give the report a read.

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

Deacessioning, Art and the Bottom Line

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There’s been a great deal written about the National Academy’s decision to sell these two works Scene on the Magdalene  by Frederic Edwin Church (1854) and Mt. Mansfield, by Sanford Robinsons Gifford (1859). 

Lee Rosenbaum was the first to report the story (though she seems a little too fond of criticizing conventional news outlets for not linking her in — despite a paucity of links to other blogs by Lee herself).  As regular readers of Lee will know she has been very critical of deacessioning generally and this one in particular: 

I have never credited the deaccession-or-die argument and I still don’t. That was Fisk University’s justification for its attempt to monetize its Stieglitz Collection. When it was instructed by a judge not only to keep the collection but to get it back up on public view, it somehow managed to raise funds the old-fashioned way, allowing it both to display the collection and to keep the university afloat. I believe that deaccessioning is the easy way out, even more tempting today as museums grapple with Dow-ravaged endowments and distressed donors.

 But she notes:

 The National Academy is an honorary association of artists … who are responsible for its governance. The artist/members voted 181 to 1 … in favor of selling the works. An alternative that was considered but rejected was selling the Academy’s swank Fifth Avenue mansion and moving to less pricey quarters.

 Donn Zaretsky at the invaluable art law blog responds to this argument:

 So let me get this straight. The museum runs a “chronic operating deficit.” Its $10-million endowment is “restricted to specific purposes and cannot be used for general operating funds.” Its artist board members voted 181 to 1 in favor of the sale. The purchase agreement “stipulated that the paintings were to be hung publicly.” There’s a good chance they’ll end up on view at the Crystal Bridges Museum.

And we’re supposed to be outraged by this . . . why?

I think Zaretsky makes the more compelling argument here.  Is art really this static?  He notes yesterday as well that:

Another question worth exploring is whether it’s sensible to draw such a sharp distinction between the acquisition of art, on the one hand, and other ways museums spend money, on the other. Take, for example, Whitechapel Gallery, only because it was just in the news earlier this week. It recently completed a $20 million renovation and expansion — a “desperately needed” makeover. “The added space will allow the gallery to remain open continuously, whereas before it had to close about 10 weeks a year when installing new art. Its educational space was too small to accommodate even an average-size school class, and the former library had no wheelchair access.” Is it not possible to see those things as every bit as important to the institution’s mission as the acquisition of additional artwork? Is keeping the museum open an extra 10 weeks a year not a good art-related reason? Does expanding space for education not count either? Why should we automatically assume that buying art always justifies a deaccessioning, but that no other use of proceeds — no matter how important to an institution’s mission — ever can?

The argument against deaccessioning is essentially that funding should be found from private donors somehow, and its better for a museum to shutter its doors, and close up shop temporarily and move across town than to sell  a work.  Let’s compare the National Academy’s decision with the difficulties at Los Angeles’ Museum of Contemporary Art.  MOCA pencilled itself into a financial corner.  The institution is in dire financial straights, but according to the LA Times’ Tim Rutten:

[T]he curatorial staff was busy putting on exhibitions that won acclaim around the world, nobody bothered about the cost. Year after year, as expenses outstripped revenue, the board let the professional managers dip into capital — the endowment — to cover the shortfall in operating expenses. More recently, they’ve also been borrowing from restricted gifts to the museum, including those for new acquisitions. While other institutions were pinching pennies and cutting back, Strick actually increased the size of MOCA’s professional staff by at least 50 people.As one trustee, who also asked to remain anonymous, said this week, “All this happened without anybody on the board screaming — and somebody should have screamed.”

 We might point to the financial mismanagement, but how much of this financial difficulty can be focused on the decision to focus on the art itself, on the acclaimed exhibitions.   MOCA seems to have focused entirely on the art, and now needs the art world equivalent of a financial bailout.  The National Academy has instead chosen to deaccession works, which has produced a dramatic reaction from the Association of Art Museum Directors essentially ostracizing the New York institution from the American Art community.  Are the two related? 

I find it very interesting how swiftly the AAMD responded to the National Academy, especially given the downright glacial pace with which it responds to instances of antiquities looting or illegal export.  But might the AAMD be also sending a message to MOCA here, and other institutions in looming financial difficulty that in the current economic climate deaccessioning is not a viable option?  (As I was writing I notice that  Christopher Knight has picked up on the same possibility).  That seems the most likely reason for the dramatic and swift response.  Fund raising and arts funding is going to be tighter in the coming years and months.  The United States has largely been immune from these kinds of painfull art departures, in large part because it has been the buyer.  But as American dominance may be waning, perhaps there will be some tension between America’s expansive art buying policy and the loss of works of art from museums and instituions.  I think there are a lot of complicated questions to resolve here, as art moves from the historical financial and economic centers of America in cities like Philadelphia or Boston to Bentonville Arkansas or even abroad.  Perhaps America’s laws will have to shift and become more ‘retentionist’ as this art loss becomes more common. 

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

Limiting Art and Antiquities Restitution?

So argues Norman Rosenthal in the Art Newspaper today.  The former Exhibitions Secretary at the Royal Academy does not see the merit in the current expansion of restitution and repatriation.  He draws parallels between antiquities restitution cases and the claims involving Nazi looted artworks. 

Since the late 1990s there has been a strong push towards provenance research of collections and museums, and restitution of items that were looted or taken by the Nazis during their period of power in Europe from 1933 to 1945. This process has been ongoing for ten years, and the items in question have often been claimed by people distanced by two or more generations from their original owners.
I have, perhaps, an idiosyncratic, non-politically-correct view that many people will disagree with, but I believe history is history and that you can’t turn the clock back, or make things good again through art.

History has always looked after works of art in strange ways. Ever since the beginning of recorded history, because of its value, art has been looted and as a result arbitrarily distributed and disseminated throughout the world. Of course, what happened in the Nazi period was unspeakable in its awfulness. I lost many relatives, whom I never knew personally, and who died in concentration camps in the most horrible of circumstances. I believe, however, that grandchildren or distant relations of people who had works of art or property taken away by the Nazis do not now have an inalienable right to ownership, at the beginning of the 21st century. If valuable objects have ended up in the public sphere, even on account of the terrible facts of history, then that is the way it is.

If, because of provenance research, works of art are taken from museums, whether in Russia, Germany, France, the US or the UK, and are then sold on for profit or passed around for political expediency, it is nearly always the rich who are making themselves richer. The vast majority of individuals, who were beaten up or killed during the Nazi period—or indeed by other oppressors in different parts of Europe—did not have art treasures that their children and grandchildren can now claim as compensation. The concept of the “universal museum” is also, in certain circumstances, a politically useful euphemism. Nonetheless, it has to be good that important works of art should be available to all through public ownership. Restitution claims from museums go against this idea and result in the general culture being impoverished.

He makes a good point that much of the restitution litigation has been very profitable for both attornies and auction houses.  But these claims are in response to very clear violations of the law.  Perhaps we need to be more careful about what circumstances an art or antiquity claim should be made, but when laws are broken claimants should have a right to justice.  He concludes by arguing for a statute of limitations on these claims.  However such limitations periods currently exist.  The difficulty is not the amoutn of time we might choose for a period, but rather what circumstances trigger the running of that limitations period. 

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

Ninth Circuit Hears Nazi Restitution Appeal

It’s not often works of art are implicated by both World Wars, but these paintings present a conflict between successors of claimants from the First World War and claimants from the Second World War.

The Ninth Circuit Court of Appeals yesterday heard an appeal over these 500-year-old works of art seized by the Bolsheviks and the Nazis, Saher v. Norton Simon Art Museum, 07-5669. Pictured here are Adam and Eve by Lucas Cranach the Elder, 1520. 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 ment returning the purchase price received from the Germans.

The Dutch government transferred those works to George Stroganoff-Scherbatoff, the heir of a noble Russian family who was thought to have lost the paintings to the Bolsheviks during the Russian Revolution.

The issue here is the timeliness of the action, which may have implications for other claimants — including antiquities. Kenneth Ofgang, Staff Writer for Metropolitan New-Enterprise has more:

“This has nothing to do with foreign policy,” Kaye told the judges. U.S. District Judge John Walter of the Central District of California had ruled that Code of Civil Procedure Sec. 354.3 is preempted because it conflicts with federal primacy in foreign affairs. Fred A. Rowley Jr. of Munger, Tolles and Olson, representing Pasadena’s Norton Simon Art Museum and its supporting foundation said the district judge was correct and the dismissal of Marei Von Saher’s action should be affirmed. Von Saher, a Connecticut resident, sued last year following the collapse of mediation over her claim that she and her family have lawful title to Adam and Eve, a diptych painted by famed German artist Lucas Cranach the Elder in the 16th Century.Von Saher’s late husband, Eduard “Edo” Von Saher, was the son of Jacques Goudstikker, a Dutch Jew who was one of Europe’s leading art dealers in the years leading up to World War II. Goudstikker fled Holland when the Nazis invaded in 1940, but was killed in an accidental fall aboard ship. His widow, Desiree Goudstikker, and their son eventually came to the United States and became citizens, having left behind their gallery; hundreds of art works, many of them by famous painters; and valuable real estate. Young Edo Goodstikker became Edo Von Saher after his mother remarried. The parties agree that Jacques Goudstikker purchased the wood panels at an auction in Berlin in the 1930s. But while Von Saher claims that her father-in-law acquired good title from the Soviet government, the foundation charges that he knew that Cranach’s work had been wrongfully expropriated from the wealthy and powerful Stroganoff family after it fled the Russian Revolution. The museum and foundation say museum benefactor Norton Simon lawfully acquired the panels for $800,000 from Commander George Stroganoff-Scherbatoff, who renounced his hereditary title, became a U.S. citizen, and served in the Navy during World War II.

The primary issue is whether California’s special limitations rule for works looted during the Holocauset era, Sec. 354.3 conflicts with an Executive Order issued by President Truman.

See here for more on Jacques Goudstikker.

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

Peru Files Suit Against Yale

Last Friday, in the United States District Court for the District of Columbia, Peru quietly filed suit against Yale University seeking the return of a number of objects from in and around Machu Picchu. The objects were excavated and removed to the United States by Hiram Bingam in the early part of the 20th Century. This is the culmination of a long process between Peru and Yale, in which the parties had seemingly agreed to a beneficial compromise for both. The suit will of course be interesting to unfold, as it would seem to push the boundaries for a court resolution of a dispute over objects which were removed from Peru in the waning years of the imperial age.

The suit was expected, as Peru had made the tentative decision last month to bring suit. This after what had appeared to be a happy resolution to the dispute, with Yale offering a very substantial settlement including an international traveling exhibition and the construction of a new museum and research center in Peru in exchange for a new 99-year lease on the objects.

That deal fell through, and now Peru has decided to seek redress in Federal Court.

I’ve had a chance to quickly read over the complaint and I see a number of interesting issues:

  • The degree to which the 1970 UNESCO Convention may apply — as an international instrument and policy imperative.
  • If there will be further development of the requirements neeeded to establish national ownership over an object. The complaint cites an 1893 Decree which prohibited removal of objects absent special permission from the government. A potential issue may be what kind of special permission –if any — Hiram Bingham had from Peruvian authorities at the time.
  • Also, there will likely be an interesting back and forth over whether Peru’s suit is timely. The complaint argues that there has only recently been a demand and refusal of the objects, though there appears to be the possibility of a strong laches defense for Yale given the time which has passed since the objects left Peru. Yale may have a strong defense by arguing it has held the objects in a transparent way, and Peru has impinged Yale’s rights by waiting so long to bring a claim.
  • Finally, there may be interesting conflicts of law issues which arise.

A win for Peru in court may set a precedent for other future claims from the imperial age, and may extend further the window for nations of origin to seek the repatriation and restitution of objects. This would be a powerful legal option going forward, in which the pendulum has seemingly already swung back to favor nations of origin already.

However even if the court dispute is unsuccessful, Peru may still have a good outcome if they can sway public opinion at home or abroad. I have more questions than answers at this point. I wonder to what extent Peru may be seeking a public shaming of Yale in the hopes of punishing them or forcing them to apologize for taking these objects away. It should be noted that the objects themselves are primarily interesting for their intellectual value. They are not prized for their inherent beauty or value. Their primary purpose would seem to be to assist in research and other pursuits. One wonders if Peru would be able to perform this research function as well as Yale University? Or, if those intellectual pursuits might have been best advanced if Peru had been able to reach an agreement with Yale which would have resulted in the construction of a research center in Peru. Isn’t the ‘star’ of the ancient city the well-preserved ruins themselves?

The initial complaint is here ($).

Hat Tip: Peter Tompa.

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

Recovery in Odessa

This work titled Caravaggio’s Taking of Christ or Kiss of Judas (though it might in fact just be a copy of another Caravaggio) has been recovered after it was taken from the Museum of Western and Eastern Art in Odessa.  No deatils on the recovery yet.  The work was stolen in July.

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

"Christies takes disputed earrings off auction block"

From today’s Christian Science Monitor:

The gold neo-Assyrian earrings were claimed by Iraq but awaiting the highest bidder Monday in New York. Just days before the sale of ancient art and antiquities, however, Christie’s took the jewelry, believed to be from the treasure of Nimrud, off the auction block. 

Christie’s says it is cooperating with an investigation into whether the earrings were in fact stolen from Iraq.

“When Christie’s learned that there might be an issue with the provenance of the earrings they withdrew the lot from the sale,” says Sung-Hee Park, a spokeswoman for the auction house in New York. “The lot is still with Christie’s in New York, but we are cooperating in the investigation.” 
As of Wednesday night, when a Monitor story detailed an Iraqi petition to stop the sale, the earrings were still part of the Dec. 9 auction. On Thursday morning, the auction house website said Lot 215 – a pair of neo-Assyrian earrings believed to be between 9,000 to 10,000 years old – had been withdrawn. 
US officials say they have been involved for at least several weeks in trying to prevent the earrings from being sold after they were alerted that the ancient jewelry might have been part of the treasures of Nimrud, one of Iraq’s greatest archaeological finds. 
“This is an issue we have been aware of for quite some time,” says Adam Ereli, spokesman for the US Embassy in Baghdad.
The Christie’s spokeswoman said she did not know why they were publicly withdrawn from sale only Thursday.
The treasures of Nimrud are considered one of the most important finds of the last century – the hundreds of pieces of gold jewelry, bowls, and ornaments compare in lavishness to the jewelry from King Tut’s tomb. A prominent Iraqi archaeologist, who photographed the hundreds of pieces excavated from the ancient Assyrian capital in 1989, says the earrings are unique. 
“I’m sure it is from the collection. I’ve been there during the excavations, I know the pieces,” says Donny George, former director of the Iraq museum and now a professor at Long Island’s Stony Brook University.

The interesting issue now is whether there’s going to be enough evidence or a fruitful investigation.  Who consigned the earrings to Christie’s?  Removing the earrings from auction is great, and Christie’s should be commended, however that is just the first step.  Iraq protested the sale earlier, but this earlier CSM article may have helped prod Christie’s along. 

Are we able to investigate back up the stream of commerce to discover who stole or looted these earrings?   There are very strong import restrictions in place to prevent these objects from being imported into the US.  The difficulty is the efficacy of those restrictions, given the massive amount of objects which flood America’s ports. 

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