Second Circuit Rules for MoMA

“Hermann-Neisse with Cognac”

Last Thursday, the Second Circuit Court of Appeals upheld a Federal District Court ruling denying the attempts by the late painter George Grosz to seek the return of three works currently held by the Museum of Modern Art in New York. The estate argued Grosz was forced to leave the works with his art dealer when the artist fled Nazi persecution in 1938.

In New York, the limitations period does not begin to run until a claimant demands, and is refused, a disputed work. So after that first request the claimant has three years to bring suit. In this case, the latest time in which that occurred was in 2005, while suit was not brought until April 10, 2010.

“Republican Automatons”

The Grosz estate argued that settlement negotiations were ongoing in 2005, and that under principles of fairness and equity (what the law calls equitable estoppel) the suit should not be time barred. So, an unsuccessful repatriation suit. The Met had declined to borrow at least one of the works in 2006 due to concerns about its provenance.

The disputed works were, Hermann-Neisse with Cognac, Self-Portrait with Model, and Republican Automatons.


Grosz v. Museum of Modern Art, (2nd Cir., 2010)

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

Getting the UNIDROIT Convention all wrong

In a disappointing article today in the International Herald Tribune/NYT Global Edition, Souren Melikian manages to royally confuse anyone not familiar with the 1995 UNIDROIT Convention. Though Mr. Melikian has been a long time art editor of the International Herald Tribune, he appears to have a limited understanding of the UNIDROIT Convention. He spends a great deal of time discussing the beauty and merit of antiquities up for auction, but misses the point of the flawed antiquities trade. Instead he should have focused on the history of these objects and the due diligence required by purchasers.

As I’ve written elsewhere, the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (“UNIDROIT Convention”) was an ambitious effort aimed at harmonizing the private laws of various states so as to reduce the harmful effects that occur when laws conflict. It established common rules for the restitution and return of cultural objects between states party to the Convention.  At present there are twenty-nine states party to the Convention. The UNIDROIT Convention primarily seeks to return objects to their original private owner.  It attempts to fill the gaps in the UNESCO Convention by firmly placing regulatory efforts on the market end of the illicit supply chain. It recognizes the inherent difficulty in relying on developing nations to police their own borders and archaeological sites.  UNIDROIT creates a uniform law which requires cultural property to be returned even if a theft cannot be firmly established. It also allows for a private right of action. Its major focus is the harmonization of private international law. It produced a number of excellent and innovative approaches to the problem. Unfortunately, a number of fatal flaws render its widespread application in most major art-market states highly improbable.

Immediately after its completion, the UNIDROIT Convention was met with a great deal of criticism, especially among art and antiquities dealers. The European Fine Arts Foundation threatened in 1996 to move its fairs away from Basel and Maastricht if Switzerland or the Netherlands ratified the Convention. James Fitzpatrick argued that dealers, collectors and museums could find themselves constantly in court in expensive . . . time-consuming, distracting and debilitating litigation.” Much of this criticism seems unfair and exaggerated, but it would not be a surprising reaction to any effort to seriously modify the art trade.

The best way to understand the UNIDROIT Convention may be to compare it with the 1970 UNESCO Convention. The UNESCO Convention allowed only states party to the Convention to request restitution of stolen or illegally exported objects; the UNIDROIT Convention remedies this oversight by allowing private parties to initiate restitution. Secondly, UNIDROIT attempts to remedy problems with UNESCO’s treatment of undiscovered antiquities. Third, the UNIDROIT Convention applies to unlawfully excavated, or lawfully excavated but unlawfully retained, objects. Unlike the UNESCO Convention, it does not require museum certification or cataloguing by a source nation. Lastly, UNIDROIT provides that a bona fide purchaser of stolen objects will not receive good title. The purchaser must instead return the object, and is entitled to “payment of fair and reasonable compensation,” provided she had no knowledge of the object’s prior theft and exercised due diligence when the object was purchased. This important good faith requirement could act to deter illicit trade, by requiring each purchaser to police their own acquisitions.

The UNIDROIT Convention introduced three significant changes which could have a beneficial impact on the illicit trade in cultural property. First, it provided that good-faith purchasers or acquirers of stolen or illegally exported cultural objects, who have exercised due diligence but who are required to return the objects, are entitled to compensation upon their return. Second, it attempted to limit and describe the situations in which a buyer can claim to have exercised due diligence. Finally, it set out and defined a limited right of return for illegally exported objects.

The biggest provision preventing states from signing on to the Convention is, Article 18 provides, “No reservations are permitted except those expressly authorized in this Convention.” This means that States Party are unable to pick and choose which provisions they accept, making it an international legal instrument with real teeth, and also one that many states are unwilling to sign on to.

  1. Souren Melikian, Antiquities Auctions: Unidroit Convention Drives Up Prices, The New York Times, December 17, 2010, http://www.nytimes.com/2010/12/18/arts/18iht-melik18.html?_r=3&ref=arts&pagewanted=all (last visited Dec 17, 2010).
  2. Derek Fincham, How Adopting the Lex Originis Rule Can Impede the Flow of Illicit Cultural Property, 32 Colum. J. of L. & the Arts 111 (2008).  
Questions or Comments? Email me at derek.fincham@gmail.com

Urice on "Unprovenanced Antiquities and the National Stolen Property Act"

Stephen K. Urice, an Associate Law Professor at the University of Miami has an interesting piece (nicely titled) called Between Rocks and Hard Places:  Unprovenanced Antiquities and the National Stolen Property Act, 40 N. Mex. L. Rev. 123 (2010). He examines the implications of a conviction or acquittal in the investigation stemming from the search of four California museums in early 2008.

From the introduction:

This  article  argues  that  continued  application  of  the  NSPA  in  cases  involving unprovenanced antiquities risks outcomes that undermine one or both of two U.S. policy goals: (1) protecting the global archaeological record and (2) promoting museums’ charitable and educational missions. Accordingly, this article suggests that the current uncertainty in how courts apply the NSPA in the unique circumstances of determining title to undocumented antiquities might best be resolved by pursuing alternatives to continued reliance on the NSPA in these circumstances. 
Part II introduces necessary background information on the concept of provenance;  the  distinction  between  foreign  nations’  export  and  vesting  statutes  (referred  to  collectively  as  “patrimony  statutes”);  and  the  relationship  between foreign patrimony statutes and the NSPA. Part III explores, in detail, the application of the NSPA in criminal cases involving unprovenanced antiquities, emphasizing  the  distinction  between  the  Fifth  and  the  Second  Circuit  Courts  of  Appeals’ approaches.  Part  III  also  describes  Congress’s  1986  amendments  to  the  NSPA, which (without apparent legislative intent to do so) have made application of the NSPA in cases involving unprovenanced antiquities especially problematic. Part IV addresses, in the context of existing U.S. policies, allegations in the search warrants that two California museums possess stolen Thai antiquities. Part V describes potential outcomes of any criminal prosecution under the facts alleged in the search warrants. Part VI concludes with simple sketches of three possible alternatives to the United States’ existing framework for combating trafficking in unprovenanced antiquities.
Questions or Comments? Email me at derek.fincham@gmail.com

The Met Sued in Bolshevik-era Restitution Suit

“Portrait of Madame Cezanne”, Pierre Cezanne (1891)

The Met has been sued by Pierre Konowaloff over this work. The claimant argues the work was stolen from his great-grandfather during the Russian Revolution, Ivan Morozov. Morozov was a Russian textile merchant, who collected a number of works by Cezanne. His works were zeized in 1918, and Morozov’s home was made a state museum.  This work was apparently purchased by Morozov in 1911, and he owned the work for seven years. In contrast, the Met has had the work for the last 50 years. The work was donated to the Met in 1960 by Stephen Clark, who purchased it from a gallery in 1933.

This suit, if successful, would really extend the limits of restitution claims further into the past to touch not just the Second World War, but the first one as well.

Konowaloff is currently defending a declaratory judgment suit brought by Yale University over the disposition of Vincent Van Gogh’s “The Night Cafe”. Yale is seeking a court determination that it is the rightful owner of that work, which would preclude a sale by the claimant.

  1. Philip Boroff, Met Museum Sued Over Cezanne Painting Stolen by Bolsheviks From Collector, Bloomberg, December 8, 2010, http://www.bloomberg.com/news/2010-12-09/met-museum-sued-over-cezanne-taken-by-bolsheviks-from-collector.html (last visited Dec 10, 2010).
Questions or Comments? Email me at derek.fincham@gmail.com

Embassy Cables Discuss Odyssey Marine, and a Nazi era Dispute

So the World is buzzing with all the revelations, mundane and otherwise, offered by the release of diplomatic cables via wikileaks. This has touched all manner of foreign and diplomatic relations, even cultural property and heritage issues. The Guardian has reprinted and summarized a series of recent cables which detail meetings between US officials and Spanish officials between 2007 and 2010. The various positions and points of concern related here really don’t come as much of a surprise. What is perhaps heartening to note is the importance of these issues at the highest levels of international relations. Nations take these disputes very seriously.

It is certainly possible to over-emphasize the importance of these, but both parties certainly seem to have very different priorities. In a 2008 cable, Spanish Culture Minister Molina is concerned with the then-emerging dispute with Odyssey Marine, while the American Ambassador focuses on Spain’s dispute with Claude Cassirer. As the embassy cable summarized,

The Ambassador stressed the USG’s interest in direct discussions between the Spanish government and Claude Cassirer, the AmCit claimant of a painting by Camille Pisarro (“Rue St. Honore”) in the Thyssen Museum. The Ambassador noted also that while the Odyssey and Cassirer claim were on separate legal tracks, it was in both governments’ interest to avail themselves of whatever margin for manuever they had, consistent with their legal obligations, to resolve both matters in a way that favored the bilateral relationship. The minister listened carefully to the Ambassador’s message, but he put the accent on the separateness of the issues. Molina said that no Spanish government could return the painting (if this is what the claimant wants). To begin with, while the minister presides over the board that manages the Thyssen Museum’s collection, the minister could not oblige the board to return the painting without a (Spanish) legal judgment. The minister added that paying compensation, as the British government has reportedly done in a number of cases, also posed legal problems.

  1. Giles Tremlett, WikiLeaks cables: Art looted by Nazis, Spanish gold and an embassy offer, The Guardian, December 8, 2010, http://www.guardian.co.uk/world/2010/dec/08/wikileaks-us-spain-treasure-art (last visited Dec 9, 2010).
Questions or Comments? Email me at derek.fincham@gmail.com

The Morgantina Treasure Returns to Sicily

“Here they are not orphans.”

So says Enrico Caruso, the director of the Archaeological park in Morgantina upon the installation of the Morgantina Silver in Aidone, Sicily. The 16 ancient Greek silver objects had been partially returned to Italy as a part of a 2006 agreement between Italy and the Met, and will now be on display near the site where they were likely looted nearly 30 years ago. Both Italy and the Met will share joint custody of these objects, and the objects will rotate between Aidone and the Met every four years. In this way visitors to both the Met and Aidone will be able to decide for themselves where they prefer to view and appreciate this collection of objects.

One of the tireless campaigners for the return of the silver objects has been Malcolm Bell III who is quoted in the New York Times:

“’The silver can perhaps shed light on the brutal, dramatic circumstances of the final years of the Second Punic War and, seen within the framework of the house, we get a sense of the art and the material culture of Hellenistic Sicily,’ said Malcolm Bell III, professor emeritus of art history and archaeology at the University of Virginia and the director of excavations at Morgantina. ‘They have truly been recontextualized, and that is really important.’”

The Morgantina Objects, as displayed at the Met

And yet I think the reason this recontextualization is important can be tied to the experience of viewing the landscape, the situs of the objects, and the current culture in the region.

Next year the Getty will return the statue of Aphrodite to Aidone, and residents there surely hope visitors will seek out the repatriated objects and boos the local economy. One of the striking themes which emerged from Elisabetta Povoledo’s reporting of the story are the economic benefits which will accrue to the city and territory when visitors flock to see the ancient objects. There appears to be a shift in culture, away from tolerating the looting of sites and the clandestine sales of these objects and a move towards responsibly managing these pieces of heritage.

And yet I wonder as well whether much would be made of this collection of silver, or the Aphrodite had these objects not been displayed in Los Angeles and New York, and then sent back in a very public way.

  1. Elisabetta Povoledo, Morgantina Silver Returns to Italy in Aidone Museum, The New York Times, December 5, 2010, http://www.nytimes.com/2010/12/06/arts/design/06silver.html?_r=2&sq=Morgantina&st=cse&adxnnl=1&scp=1&adxnnlx=1291737663-LJxPa3Cb/2lTVd2f0CM/fg (last visited Dec 7, 2010).
Questions or Comments? Email me at derek.fincham@gmail.com

Footnotes

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