Footnotes 4.8.2010

Bamiyan after the intentional destruction, in 2005

  • An update nine years after the Bamiyan Buddhas were destroyed.
  • Oakland, CA may cut its art budget in half.
  • Feds collect more relics stolen in the Four Corners region art theft.
  • In an apparent effort to improve its image with Italy, the Getty has named the former American ambassador to Italy to its board of trustees.
  • On a positive note from the world of stolen art, the FBI Art Crime Team returned looted art to Peru.
  • A new book by Robert K. Wittman alleges that attempts to recover stolen Vermeers were foiled by FBI infighting.
  • Some improvement has been shown at Brandeis University, but the Rose Museum is still struggling.
  • Fisk University‘s legal struggles continue in an attempt to sell a portion of the Stieglitz/O’Keeffe collection to the Crystal Bridges Museum in Bentonville, AR.
  • The Owensboro Museum of Fine Arts in Kentucky is dangerously close to shutting down.
  • A solo traveling exhibition by artist Peju Layiwola centered on the looting of African artifacts in Benin opened on April 8th, 2010.
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Profile of Claude Cassirer

In September of last year the 9th Circuit held that Claude Cassirer can pursue a case against the Kingdom of Spain over this work, Rue St.-Honoré, Après-Midi, Effet de Pluie, painted by Camille Pissarro in 1897.  In a profile of Cassirer in the L.A. Times, the 88 year-old argues the Spanish “have been most unfriendly, not cooperative in any way,” with respect to his claims for restitution.  The 9th Circuit Court of Appeals will hear the appeal again en banc, with an 11 judge panel, sometime in the coming months.  The work had been taken from Cassirer’s grandmother in 1939 before she fled Munich.  The Spanish government purchased the painting in 1993 as a part of the Baron Hans-Heinrich Thyssen Bornemisza’s collection.  The work has been valued now at $20 million. 

Spain paid the baron $50 million in 1988 to lease his collection for a decade, and halfway through bought it outright. The baron had designated Spain for his prized collection, valued at more than $2 billion, an apparently sentimental gesture honoring the last of his five wives, a former Spanish beauty queen. Thyssen-Bornemisza died in 2002.
“The Thyssen-Bornemisza Collection Foundation thoroughly reviewed the complete historical record on Mr. Cassirer’s alleged claim and respectfully denied it,” said Thaddeus J. Stauber of Nixon Peabody LLP’s Los Angeles office, which represents the foundation.
Citing the statute granting foreign states immunity from U.S. lawsuits except under a few defined conditions, Stauber said “we do not think that the case properly belongs in the U.S. courts.”

  1.  Carol J. Williams, Pissarro masterpiece travels a twisted history, L.A. Times, April 7, 2010.
  2. Cassirer v. Kingdom of Spain, 580 F.3d 1048 (9th Cir. 2009).
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On Polite Discourse

Yesterday I posted a link and an abstract of a recent student article, Cultural Pragmatism:  A New Approach to the International Movement of Antiquities, 95 Iowa L. Rev 667 (2010).  I see that the paper has drawn the interest of David Gill, who has offered a response to some of Hoffman’s arguments as he indicated below in the comments.  I’d like to temper some of the aggressive criticism of the paper (and Matthew, I can’t find your email address on the Iowa website, so drop me a line if you would).

When I promote these pieces, I am promoting the field of study, and letting you all know something new has been written. This is a student paper, and though we might be critical of some of his assertions, we should also be respectful.  At least that is how I approach the work of others—particularly student writers.

Hoffman certainly makes some mistakes, and one of the common mistakes legal writers fall into is they can often write elegantly, but fail to conduct enough background research into an area before jumping in.  This piece might be a good example of that in parts, but I think the student here is also extending a line of argument espoused by writers like John Merryman, and now Jim Cuno that some will find distasteful.  I didn’t get to comment on a draft of the piece, I’ve never met the student, nor read his paper before yesterday.  If I had I probably would have advised him to make a few changes.

I appreciate this can be an emotive issue, but when you beat up on a student writer, and fail to extend professionalism to a newcomer to the field, you not only diminish your own arguments, but the field as well.

I think he is on to an interesting argument when he argues for a tiered approach, in the same way Japan treats objects removed from Japan.  Japan would seem to lack sufficient regulation on the market end, as Gill points out with respect to the Miho museum.  Yet how do these returns actually affect the protection of sites, that is the question I think Hoffman could have addressed, and perhaps others will take up the argument and correct any errors or admissions they see in his piece—that’s what scholarship is right?

For those of you who may not know, the Iowa Law Review is a well-respected legal journal, and an article dealing with this issue offers at the very least an opportunity to raise the profile of this issue.  A common practice in American legal publications is to publish a few student articles in each issue.  These are commonly referred to as “notes” or “comments”, as I indicated in the original title below.  I’m happy to post cites and links to anybody’s serious writing on the topic, irrespective of viewpoint.  I’ll also continue to treat these writers with respect even when I disagree with their assertions.  I would hope others could do the same.

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Student Note on "Cultural Pragmatism"

Matthew Hoffman, J.D. candidate at the University of Iowa has an article, Cultural Pragmatism:  A New Approach to the International Movement of Antiquities, 95 Iowa L. Rev 667 (2010).  Here is his abstract:

ABSTRACT: Since World War II, the debate between cultural internationalists and cultural nationalists has shaped international cultural-property law. Recently, some American museums, engaged in their enduring struggle to balance a mission of public education and scholarly study with the increasing risk of acquiring artifacts of disputed provenance, began to promote a middle ground of “cooperation, mutual understanding, and respect” between acquiring museums and source countries that builds upon the goals of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. This new approach, defined here as “cultural pragmatism” attempts to bridge the impasse between advocates of the two opposing doctrines that has resulted from the adversarial climate following the Second Circuit’s decision in United States v. Schultz and the new power of foreign patrimony laws to reach antiquities imported into the United States. This Note analyzes the new approach and offers the classification system of the Japanese Law for the Protection of Cultural Properties as a means to its further implementation.

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Unsuccessful Restitution Suit by German Museum

An ancient gold tablet excavated in Iraq from the site of an ancient Assyrian temple by German archaeologists in 1913
An Ancient gold tablet, excavated from Northern Iraq in 1913.

A German Museum has lost an action against Riven Flamenbaum to recover this ancient gold tablet that may be worth as much as $10 million.  You can read the opinion here, in Matter of Flamenbaum, File No. 328416

The tablet has quite a history.  It was unearthed in 1913 in Ashur, present day Qual’at Serouat by German archaeologists.  It was bound for a German museum, but World War I forced the ship carrying it to Portugal, where the object was stored until 1926.  In 1934 the tablet was put on display in the Vorderasiatisches Museum.  At the end of the war, in 1945 it was discovered the tablet was missing, perhaps looted by Soviet troops.  It is at this point that Flamenbaum—a survivor of Auschwitz—encountered the tablet, which he may have purchased on the streets of post-war Berlin for some cigarettes.  He took the tablet with him when he emigrated to New York in 1949.  He had no inkling of the object’s value, after it had been apparently appraised for as little as $100 at one point.  The family contacted the Museum in 2006 after Flamenbaum’s death, and the museum brought suit to recover the tablet. 

In New York, this action was within the statute of limitations because the period does not begin to run until an original owner demands an object and is refused—which in this case was 2006.  However Surrogate John Riordan held that the museum had waited too long to bring this claim under the doctrine of laches—an equitable doctrine which essentially posits that it wouldn’t be fair to allow the claimant to regain title.  The court held the lack of any real effort by the museum to seek the return of the tablet was unreasonable.  Surrogate Riordan placed a good deal of weight on an apparent 1954 report of the object’s location.  But the opinion does not offer any details of this report. 

The Museum had not really had possession of the tablet for very long, and had not made extensive efforts to contact post-war authorities or stolen art registries.  But of course it is not necessarily clear if those efforts would have even been successful.  Moreover, in some cases publicizing a theft in this way seems to run counter to the policy which underpins New York’s Demand and Refusal rule.  If you publicize the theft, that recovery may make diligence less likely, and might encourage other possessors of objects with questionable histories to move objects to other jurisdictions. 

One wonder perhaps how much the underlying equities were a factor in the decision as well, with a seemingly-innocent Holocaust survivor acquiring the small tablet, without knowing its true value.


  1. Vesselin Mitev, German Museum Loses Attempt to Reclaim Artifact From Estate, New York Law Journal, April 6, 2010.
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  • Mardi Gras Indians in New Orleans file copyright suits against photographers who take their photographs without compensating them.
  • Deaccessioning running rampant in today’s art world.
  • The Department Interior’s decision to return human remains to Indian tribes and Native Hawaiians that are currently in museums and natural history collections will take effect May 14, 2010.
  • A couple of New York art dealers have recovered stolen art, but these recoveries are only minor successes in the $6 billion a year art theft industry; the art was found in Canada.
  • The two authors of Property Outlaws have written a detailed article about the law of fair use and “permission-based” creation of art.
  • Federal appeals court justices debated whether a U.S. man should sue in Spain and Germany before suing in the U.S. to recover a Pissarro painting stolen by the Nazis.
  • Hundreds of artworks from a state-run museum in Ankara, Turkey have perhaps been replaced by fakes or even gone missing.
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