September 2009 – Page 2 – Illicit Cultural Property

Undoing a Sale to HItler

The Austrian Culture Ministry has revealed that it has received a formal request for the restitution of this work, The Art of Painting by Johannes Vermeer. The family of Jaromir Czernin has urged its return for nearly 40 years, but the Austrian authorities refused on the grounds the sale was voluntary. However an attorney for the Czernin family argues the work was sold to guarantee the safety of Czernin and his family. The work was sold to Hitler in 1940 for 1.65 million Reichsmark. Irrespective of the outcome of this request, arguing Hitler purchased the disputed work is not exactly the kind of publicity Austria’s Kunsthistorisches Museum would enjoy.

Philippe Schwab, Vienna museum fears restitution of stolen Vermeer [AFP, Sep. 13, 2009].

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

No Libraries in Philadelphia?

We get the State and City we deserve. Another sign of the dismal state of liberal arts funding generally. If the Pennsylvania State Legislature doesn’t allocate funds, the Philadelphia Free Library will close on October 2nd and end all programs and services. All books are due on October 1st.

The Pennsylvania senate is unable to pass a budget, and this late-arriving state funding will force the closure of the entire system. Perhaps a Pirate Party can fill the void for the citizens of Philadelphia to get access to books, movies and music.

All Free Library of Philadelphia Branch, Regional and Central Libraries Closed Effective Close of Business October 2, 2009 [Free Library of Philadelphia]

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

Early Review of the Art of the Steal

The Art of the Steal is a new documentary on the Barnes foundation and its planned move from Merion. Scott Tobias has a review for the AV Club:

As a forward-thinking art collector in the ‘20s, Dr. Albert Barnes snapped up an extraordinary wealth of post-impressionist and modernist paintings from the likes of Matisse, Picasso, Renoir, and Cezanne; though dismissed by tastemakers at the time, his collection is now valued in the tens of billions. In his will, Dr. Barnes was very specific about what the trustees were to do with his assets: He wanted them to remain housed in his small, meticulously conceived institution in the Philadelphia suburb of Merion, never to be loaned out or sold to other museums. He wanted the Barnes trustees to continue his educational mission. And most of all, he wanted to make sure the corporate foundations and politicians in Philly didn’t get their grubby paws on it. The Art Of The Steal is about how Barnes’ seemingly ironclad wishes were withered away by unscrupulous trustees, coffer-draining legal battles, and the overwhelming force of a city looking to bring in the tourist dollar. There are two sides of the story—the other being that the Barnes Foundation simply didn’t have the capital to be a sustainable entity—but the film makes its allegiances clear. And that’s not a bad thing: In this David and Goliath story, Goliath kicks the ever loving shit out of David, and the film is convincing and righteous in its advocacy. It also leaves you with troubling questions about the runaway commodification of art, the extent to which it does or does not belong the public, and just how much power the individual really has in society. Grade: B

Toronto Film Festival ’09: Day 4 [AV Club].

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

Reward Offered for Stolen Warhol Works

A series of prominent Andy Warhol portraits of 1970’s-era athletes has been stolen from the home of Robert Weisman in Los Angeles earlier this month. It seems the thieves knew what they were looking for, as the home wasn’t ransacked. A reward of $1m has been offered for information leading to the return of the paintings. As has been noted many times, the theft of these works was probably the easy part, the difficulty will be trying to sell these well-known works.

Why were these works stolen?

Mark Durney wonders why these works were taken:

Were thieves simply enticed by the popularity of Warhol’s athletic icons? Maybe they sought to steal Weisman’s most emotionally important pieces of personal property. Could there be a market of potential buyers who feel dejected by the “absurdly” high asking price for the series in 2007?

There are four other possibilities:

The first, is that a collector admires the piece, and hired a thief to take it for him. We can call this the Dr. No situation. This seems the least likely possibility, but the one that strikes a chord with the imagination. Writers in this subject frequently cite the Dr. No as being responsible for thefts, and I admit it makes for good Bond villains, but there has been no convincing evidence that thsi is why people are stealing rare objects. Another similar possibility which seems far more likely is that an unscrupulous dealer may have a similar piece for sale, and if he can establish some excitement around these kinds of pieces, the price for his clock may go up. This is just wild speculation, and assigns a quite sinister tak to arts and antiquities dealers, a habit far too many writers in this field are fond of doing.

Second, the thief may not have known that the object was so rare as to make its subsequent sale difficult.

Third, the thief may simply be trying to kidnap the object. They could then insure its safe return for a generous reward, or negotiate its return.

Finally, perhaps the market is doing such a poor job of regulating what is and is not legitimate, that it may not be all that difficult to sell this piece after all. This strikes me as the most troubling possibility, but also not very likely.

Joel Rubin, Fortune in Warhol Pop Art stolen [LA Times, Sep. 12, 2009].

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

Soft Cultural Power

The Economist examines how well UNESCO manages its list of World Heritage Sites:

This year’s most dramatic move was a rare decision to strip a place—Dresden and the surrounding Elbe valley—of its status as a “World Heritage Site”: that is, a location deemed to be of universal worth to humanity by virtue of its built environment, ecological importance or both.

The German metropolis, belatedly restored to its Baroque glory after massive wartime bombing, was punished because of a motorway bridge that threatens to wreck the skyline. (The only other place to have been delisted is an antelope sanctuary in Oman, where the government actually wanted to renounce the status.) Meanwhile UNESCO accepted 13 new sites, including a sacred peak in Kyrgyzstan and a fortress in Burkina Faso, bringing to 890 the number of places under its purview.

What makes this whole procedure tolerable (and indeed, respected) is that it is a voluntary arrangement between governments, with groups of states taking turns to form committees that duly exercise UNESCO’s moral power. At least in theory, it is not the permanent staff of the World Heritage Centre (a smallish part of the UNESCO bureaucracy) who exercise dominion over the glories of the earth, but the 186 states that have ratified the World Heritage Convention and thus signed up to the notion that some places are too precious to be left at the mercy of one government alone.

For an earlier post on the promise and peril of declaring an area a World Heritage Site, see this earlier post.

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

Roerich Thieves Arrested

The thieves who stole two paintings from the Roerich Museum in Manhattan were arrested last week as they tried to sell one of the stolen works to an undercover cop at a Starbucks:

On Sept. 3, Ryjenko and Croussouloudis — carrying the painting in a blue paper shopping bag — traveled to a Lower East Side Starbucks to meet with the detective, police said.

While Ryjenko waited outside, Croussouloudis met with the phony collector and asked for $20,000 for the painting. She even warned him that the work of art had been stolen and that he would be unable to freely display it in his gallery, police said.

The cop then asked her to come with him to his gallery where he would give her the money. As she and Ryjenko walked with him up Allen Street, they were arrested.

A law-enforcement source said the couple denied having stolen the painting.

Couple busted with Stolen painting [New York Post, Sep. 10, 2009].

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

Navigating the Deaccessioning Crisis

I have posted on SSRN a working manuscript of my piece Navigating the Deaccession Crisis.

I’d like to acknowledge my cohort of arts bloggers who have looked in terrific detail at many aspects of the issue, and the piece is far richer for their insights. In particular, Donn Zaretsky at the art law blog; Lee Rosenbaum at CultureGrrl; Tyler Green at Modern Art Notes; Sergio Muñoz Sarmiento at the Deaccessioning Blog; Richard Lacayo at Looking Around; and many others.

My proposal has three parts. First, the unnecessary restriction on deaccession proceeds should be eliminated. Second, when an important work of art is deaccessioned, other museums should be given an opportunity to purchase a work – to keep it in the public trust or its region – in much the same way the United Kingdom and other nations regulate the export of works of art. Finally, when any museum is considering a deaccession, it must provide reasons for the sale and publicize the decision to allow for public comment.

My thinking on deaccession first took shape in the wake of the controversy which surrounded the proposed sale of this painting, Thomas Eakins’ Gross Clinic, back in 2006. Why so much anger over the sale of a painting people weren’t seeing? Are there inconsistencies in the American Museum community with respect to deaccession and the acquisition of potentially looted antiquities? Can the process be streamlined? Will it happen more often? I sought an answer to these questions in the piece, and I’d be much obliged as always to hear any thoughts or reactions.

Here is the abstract:

A deaccession crisis confronts the American Museum community. Deaccession of art occurs when a museum decides to sell or dispose of a work of art. The crisis stems not from the practice itself – though there are indications deaccession will occur with increasing regularity. Rather the curious mixture of trust and estates law, state law, tax policy, nonprofit governance, professional guidelines, and doctrines governing deaccession all combine to form a body of rules which lack clarity and often conflict. These general and ephemeral standards preclude reasoned appraisal of whether any given sale may benefit the public. More care should be taken when crafting the rules governing our collective cultural heritage.

This article attempts to define the public interest in works of art, and provide a framework to guide in the deaccession of works of art to ensure those sales do in fact serve the public interest. The decision to sell works of art should be taken with care; but the current rules lead to a number of pernicious consequences. They have caused the loss of works from the public trust, the closure of museums and unnecessary legal battles.

Current guidelines require that deaccession proceeds be used only to purchase more art; however this rule appears to be a product of one high-profile scandal involving New York’s Metropolitan Museum of Art. To assist donors, museum directors and state Attorney Generals, this article proposes three changes. First, the unnecessary restriction on deaccession proceeds should be eliminated. Second, when an important work of art is deaccessioned, other museums should be given an opportunity to purchase a work – to keep it in the public trust or its region – in much the same way the United Kingdom and other nations regulate the export of works of art. Finally, when any museum is considering a deaccession, it must provide reasons for the sale and publicize the decision to allow for public comment.

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

Buying Fake Antiquities (UPDATE)

Felix Salmon has an interesting discussion of the sale of fake antiquities, prompted by Charles Stanish’s initial article, with a lengthy response by Prof. Stanish himself. As I commented there, those who follow these debates have enjoyed a thought-provoking series of responses to Prof. Stanish’s terrific initial article. I don’t doubt that many collectors are buying fakes. But I wonder at the efficacy of the typical archaeologist position—calling their actions an “irrational behavior” may be true enough, but is it wise?

As a lawyer, trying to craft a legal solution to these problems given the limits of funding and law enforcement resources is only made more difficult when partisans shout across the divide like this. I don’t dispute there are fakes, or that individuals shouldn’t perhaps collect many of the objects they collect. But we will never eradicate the desire of collectors to collect. Are there compromise positions which archaeologists may adopt that would shift this desire in helpful directions? Yes, but insulting those with a different view of material cultural heritage doesn’t get us any closer to any pragmatic solutions.

(UPDATE):

Paul Barford responds here. He uses as examples of things which should not be compromised: the collection of wild bird eggs, drink driving, ivory poachers and child abuse. Unfortunately he doesn’t follow through with any of these analogs, and they strike me as a bit bizarre.

He states archaeologists should not compromise. That is one view of course, and it is played out in Mr. Barford’s own blog, which does not allow commenting and has badly distorted many of my positions in the past. Mr. Barford and I probably don’t disagree on many of the core problems, indeed he probably doesn’t disagree with what many collectors state publicly. There exists broad consensus that looting of sites is a problem, and should be illegal. The disagreement arises when we consider the legal measures which should respond. He seems to take every instance of looting as an indication that “stronger” laws are needed. But of course he never gives any concrete details. I’d encourage Mr. Barford to consider the sentiments of Colin Renfrew, which I’ll paraphrase: in the 30-plus years since the 1970 UNESCO Convention, has there been a decrease in the looting of sites? Why? Is it all because of collectors? Or is it instead the inevitable result of some of these laws and regulations which have created a stronger black market? What is Mr. Barford’s ideal legal framework? Despite a primary interest in artifact hunting since the 1990’s, he hasn’t bothered to think about models for future policy as far as I can tell. I’d be interested to read them.

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

Deaccessioning in the UK (UPDATE)

The Southampton City Council has decided to sell parts of its permanent collection, including Rodin’s Crouching Woman, pictured here, and Alfred Munnings’ After the Race. The decision was announced in July, but nobody really noticed.

Charles Saumarez Smith reports on the sale for the Art Newspaper, “[E]veryone in the museum world is aware that attitudes towards so-called de-accessioning are shifting in favour of allowing museums, in certain carefully defined circumstances, to consider the possibility of sales. It is, nevertheless, worth asking whether or not it is right that sales from one of Britain’s more significant regional art collections can reasonably be ignored.”

The works could raise upwards of £5m, and only 200 works in the 3,500 piece collection can be displayed at one time. What will the funds be used for? They will help to construct a £15m maritime museum commemorating the sinking of the Titanic. Saumarez Smith asks the pointed question:

[I]s it sensible for Southampton town council to break trust with generations of previous town councillors, who have diligently and systematically and with a great sense of civic pride built up one of the best and most impressive public collections of works of art in the country to sell some of those works in order to celebrate the sinking of the Titanic?

Perhaps not, but if we were to apply the current rules of the AAMD to this sale, the sale would be perfectly acceptable would it not? These works do not fall within the scope of the Southampton’s collection. In July, Councillor John Hannides, the Culture head said these works said “The Munnings has not been seen in Southampton for quite some time and that also goes for the other items too. While they have been on display on occasions they are not central to the collection.” The good news for critics of this sale? These works may be purchased by private individuals, but they won’t leave the UK if they satisfy the Waverley Criteria, giving British cultural institutions an opportunity to pre-empt any sale abroad.

Tomorrow I’ll post a working version of my piece on Deaccessioning, which encourages American museums and States to adopt a similar approach.

De-accessioning and responsibility in the UK: Why Southampton is wrong to sell works of art to fund a Titanic museum [Charles Saumarez Smith, The Art Newspaper from issue 205, September 2009, Published online 6 Sep 09]

UPDATE:

Donn Zaretsky notes that I may be wrong about whether the AAMD would permit the sale:

I don’t think that’s right. Apparently the sales proceeds will be used to help “construct a £15m maritime museum commemorating the sinking of the Titanic.” Remember, under the AAMD approach, there is only one thing you can do with the proceeds from sales of art (buy more art); you can’t go and build a Titanic-commemorating museum. What’s more, from an AAMD point of view, it doesn’t matter whether the works “fall within the scope of the collection” or not. You can sell work that falls right square in the middle of your collection and that’s okay, just so long as you use the proceeds to buy art. But if you want to use the proceeds for any other purpose, that’s forbidden, even if the work no longer falls within the scope of the collection.

He’s right of course if the funds are used just to construct a new museum. However if these funds are used to purchase works of “art”, a slim likelihood perhaps given that the museum is focusing on the Titanic. But if the museum purchases artifacts from the Titanic that could be classified as “art” then the sale would be permissible under the guidelines, in the same way the Albright-Knox shifted its focus to contemporary art. But of course the funds from deaccessioning must be made “only to acquire other works of art—the proceeds are never used as operating funds, to build a general endowment, or for any other expenses.”

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

More on the Rose

Via the Art Law Blog I see that Alana Abramson has an update on the Rose Art Museum lawsuit in the Brandeis University Student Paper:

The date of the first hearing regarding the lawsuit filed against the University by three members of the Rose Art Museum Board of Overseers and the deadlines for filing motions of dismissal and preliminary injunctions were set at the case management conference that took place Tuesday, Sept. 1, according to University outside legal counsel Thomas Reilly.

The motion to dismiss a case or to file a preliminary injunction, an injunction that takes place before the verdict is determined, must be filed on or before Sept. 15, according to a schedule provided by Jill Butterworth, deputy press secretary for Massachusetts Attorney General Martha Coakley. The first hearing is scheduled for Oct. 13, and the deadline to oppose the motion to dismiss the case is Oct. 6.

The lawsuit was filed by Rose overseers Jonathan Lee, Meryl Rose and Lois Foster July 27 in the Supreme Judicial Court of Massachusetts and was subsequently transferred to the Suffolk Probate Court. The lawsuit seeks to maintain the Rose’s collection by stating that the University’s decision to close the museum and sell its paintings would violate both the museum’s ethical codes and Brandeis’ commitment to the Rose family to maintain the museum solely as a public museum.

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