Urice on Holocaust Art Restitution

Van Gogh, View of Asylum and Church at St. Remy

Stephen Urice, Associate Prof. of Law at the University of Miami has posted Elizabeth Taylor’s Van Gogh: An Alternative Route to Restitution of Holocaust Art?

The Third Reich confiscated, looted, or otherwise wrongly took vast numbers of works of art from public and private collections in Germany and in occupied countries. Holocaust victims were particular targets of this cultural property theft. For complex reasons, in most instances nearly fifty years elapsed between the end of World War II and the assertion of claims in U.S. courts for restitution of this stolen, “Holocaust art.” That time lapse creates an insurmountable burden for some plaintiffs’ efforts to recover their property: the current possessor’s assertion of a statute-of-limitations defense. This article describes an alternative route to restitution in those situations. Under federal law, stolen property is forfeitable if the government demonstrates an indictable offense under the National Stolen Property Act (NSPA). This kind of in rem civil forfeiture action is independent of, and does not require the government to undertake, a criminal prosecution under the NSPA. To prevail in a civil forfeiture action predicated on an NSPA violation, the government must prove, by a preponderance of the evidence, the elements of an NSPA violation. In 1986, Congress amended the NSPA in ways that create an opportunity for the government to accomplish restitution in situations where a civil plaintiff would be time-barred under state law. First, Congress replaced the NSPA’s former requirement that the stolen goods be in interstate commerce with the requirement that the stolen goods have crossed a U.S. or state border. That change eliminated a defense predicated on goods having left interstate commerce by, for example, coming to rest. Second, Congress added “possession” of stolen goods as an enumerated offense. The effect of these amendments is to eliminate a defense based on the passage of time: The statute of limitations for possession of stolen goods commences to run only when the possessor divests herself of possession. Under federal forfeiture statutes the government has authority to return forfeited property to its original owners. Thus, federal law may permit the government to achieve for Holocaust victims what they, as civil plaintiffs, cannot accomplish themselves. The United States has adopted clearly articulated policies favoring restitution of Holocaust art. This paper argues that the United States could support those policies by pursuing this novel application of the NSPA. However, it also questions whether such cases are appropriate, given the rationales supporting statutes of limitations.

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

Nemeth on Antiquities (UPDATE w/ image)

Erik Nemeth has recently posted a number of interesting articles on SSRN examining ‘cultural security’ and the task of quantifying antiquities looting.

Cultural Security: From Concept to Engagement:

Recent armed conflict in Iraq and Afghanistan and political violence in Egypt have revealed the strategic significance of cultural property. This paper assesses the role of historic sites and antiquities in foreign engagement. Over the past century, U.S. foreign policy has had successes and shortcomings in leveraging protection of cultural patrimony to strategic advantage. The contrast of successful policy on the protection of immovable cultural property, such as religious monuments, in armed conflict and missed opportunities for tactical intelligence on the trade in movable cultural property, such as antiquities trafficking, identifies potential for development of foreign policy.

Market Value of Culture: Quantifying the Risk of Antiquities Looting:

The traditionally clandestine nature of the art market poses challenges to assessing looting and trafficking in developing nations. In the absence of direct information on transactions in source nations, sales at auction provide a sense of the market value and trade volume of antiquities and primitive art. Auction houses openly publish results of auctions and enable access to sales archives through web sites. On-line access to sales archives creates a substantive pool of data on hammer prices from auctions around the world. Sales archives also contain detailed descriptions of the artworks. The description that accompanies an auction lot can identify the geographic origin of the artwork. Data mining of sales archives for hammer price and origin enables analysis of market value by source nation. The analysis assesses relative market value and, thereby, contributes to an assessment of relative risks of looting across developing nations.

Both short essays are highly recommended.

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

Footnotes

Google Earth Image of Leptis Magna, one of Libya’s Important Heritage Sites

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

Did Marion True Ever Catch a Looter or Dealer?

One of the stolen Mosaics at issue in the case

Some folks on the internet are not too pleased about the letter I collaborated on with Noah Charney re-examining Hugh Eakin’s review of Chasing Aphrodite. A pointed response by David Gill here, and another critic wonders “whether anything done by Marion True herself actually led to the capture and conviction of a single looter of archaeological sites, or advanced any “Research into Crimes against Art”?

Yes, she certainly did, according to the Seventh Circuit Court of Appeals. As anyone should know who claims to study looting of archaeology and heritage, Marion True was the hero of one of the most prominent antiquities cases of the last thirty years, AUTOCEPHALOUS GREEK-ORTHODOX CHURCH OF CYPRUS vs.GOLDBERG, 917 F. 2d 278 (7th Cir., 1990) (available here). The case involved an antiquities dealer, Peg Goldberg, as well as Michel van Rijn. A helpful summary of the case is available here from IFAR.  I discuss the case at some length in  an article where I argue the nation of origin’s law should be applied more often in cross-border trafficking in pieces of cultural heritage.

But with respect to Marion True, she is the unabashed hero of the case. From the opinion by Chief Judge Alex Bauer:

Peg Goldberg’s efforts soon turned to just that: the resale of these valuable mosaics. She worked up sales brochures about them, and contacted several other dealers to help her find a buyer. Two of these dealers’ searches led them both to Dr. Marion True of the Getty Museum in California. When told of these mosaics and their likely origin, the aptly-named Dr. True explained to the dealers that she had a working relationship with the Republic of Cyprus and that she was duty-bound to contact Cypriot officials about them. Dr. True called Dr. Vassos Karageorghis, the Director of the Republic’s Department of Antiquities and one of the primary Cypriot officials involved in the worldwide search for the mosaics. Dr. Karageorghis verified that the Republic was in fact hunting for the mosaics that had been described to Dr. True, and he set in motion the investigative and legal machinery that ultimately resulted in the Republic learning that they were in Goldberg’s possession in Indianapolis.

(emphasis added)

The opinion is also widely cited because of a concurring opinion by Judge Cudahy embedding the 1954 Hague Convention and the 1970 UNESCO Convention into cultural heritage law, a precedent which has had a number of important effects.

Marion True is no saint, nobody would argue she is, but her story is more complicated than merely painting her as the endpoint for looted antiquities. She did so much more, as Jason Felch and Ralph Frammolino explain in their book. Italian officials will tell you if asked that the case was brought against her because they had the evidence, not necessarily because she was the worst offender. And yes, she was instrumental in returning at least one looted object.  group of looted objects.

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

An Art Theft Anniversary

100 years ago Vincenzo Peruggia stole this painting:

The Mona Lisa

And 50 years ago Kempton Bunton stole this painting:

Goya’s The Duke of Wellington

Noah Charney discusses both in an Op-Ed for the LA Times:

These two famous art thefts, the date of the latter chosen by the colorful Bunton for the theatricality of falling on the anniversary of the former, helped to mold the public perception of art theft as a crime of oddball characters who did not really harm anyone. It is true that some of the many famous art thefts of the period preceding World War II were of this ilk, involving quirky nonviolent thieves with gentlemanly aspirations.

To read more about the Mona Lisa thefts, you can read Noah Charney’s long essay, The Thefts of the Mona Lisa: On Stealing the World’s Most Famous Painting, available from Amazon. All of the proceeds support ARCA. You can also read my short forward to the book, where I argue that perhaps we’d all be better off had the work stayed stolen.

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

What did go wrong at the Getty (and elsewhere)?

La dea di Morgantina, as she was displayed at the Getty

The New York Review of Books has published a mostly polite back-and-forth between Hugh Eakin and the authors of Chasing Aphrodite, Jason Felch and Ralph Frammolino. In June Eakin offered a rather tepid review of the book (Felch and Frammolino deemed it “begrudgingly complimentary”). Noah Charney also took note of the review and he and I collaborated on a letter to the Editors of the NYRB, which was not published. I reprint the text of our letter here:

We would like to revisit Hugh Eakin’s review of Chasing Aphrodite: The Hunt for Looted Antiquities at the World’s Richest Museums (“What Went Wrong at the Getty” July 13, 2011). As Mr. Eakin points out, the central antagonist, the former Getty curator Marion True, stands for many as a symbol representing the heart of the larger problem of museums purchasing illicit antiquities. And yet she was the museum-world’s most outspoken critic of the acquisition of looted antiquities. Chasing Aphrodite tells the story of the scandals at the Getty Museum, related to their purchase of looted antiquities and the use of fraudulent appraisals to secure grossly-exaggerated tax benefits. The authors admirably demonstrate that key officials at the Getty new full-well that the treasures they were purchasing were illicit, yet they bought them anyway. Pressure from the Italian government, particularly on the part of the former Minister of Culture, Francesco Rutelli, and the brilliant lawyers, Maurizio Fiorilli and Paolo Giorgio Ferri, has led to the return of numerous looted artifacts purchased by major American museums, including the Met and the MFA, but most of all, the Getty.

Mr. Eakin does well to note that Dr. True, while certainly guilty of serious wrongdoing, is not the central villain in the story of looted art, nor is she even the most culpable individual featured in Chasing Aphrodite, a point mentioned by Paolo Giorgio Ferri as well as others such as Fiorilli and Rutelli, who have collaborated with our our organization, ARCA (Association for Research into Crimes against Art), an international non-profit research group on art crime. When one compares the number of returned objects acquired under the direction of Philippe de Montebello at the Met, one should perhaps wonder why he received accolades and a grand retirement while Dr. True was made an example of. Italian officials had a case against her and in order to prevent further illicit acquisitions they chose to frighten and deter other curators, officials, and museums and drag them into cooperation with the cultural heritage laws of nations like Italy. She was selected because the Italian legal team had a vast array of damning evidence against her, much more so than they had against others who were equally guilty, at the Getty and other museums. As Chasing Aphrodite notes, the Getty in many ways “threw her under the bus” when this came to light, in an effort to distance the institution from the person.

Since long before her trial in Rome began, Dr. True has tried to preach against other curators and museums making the mistake of violating heritage laws. The cynic would say that her only regret was having been caught, but there seems to be a genuine passion in her call for resisting the temptation of a beautiful but looted object, and working to end the purchase by museums of illicit antiquities. Indeed, few have spoken out against the perpetuation of the illicit trade in antiquities with greater fervor.

Becchina sold the Getty this Kouros, which may be fake

The 2011 ARCA Award for Art Policing and Recovery was given this July 9 and 10 in Amelia, Italy at ARCA’s annual Conference on the Study of Art Crime to Paolo Giorgio Ferri, the lawyer who spearheaded the case against the Getty. As he made clear in his remarks at the ARCA conference, an array of prominent officials at the Getty were lured into buying looted art by three renowned leaders of large-scale organized looting rings, Robert Hecht, Giacomo Medici and Gianfranco Becchina, who are truly to blame, and would shame even the villains of a Greek tragedy. While Dr. True is no saint, she does not represent the core of the problem. And in fact she played a part in setting in motion a sea-change in the way in which museums acquire antiquities. For those efforts she should be applauded, and perhaps even put before the ARCA Trustees and Board of Editors of the Journal of Art Crime for an annual award to recognize the good work she did, even while she found herself unable to resist the pressure to acquire some beautiful but looted objects.

Noah Charney
Adjunct Professor of Art History, American University of Rome & Founder and President, Association for Research into Crimes against Art (ARCA)

Derek Fincham

Asst. Prof. South Texas College of Law & Academic Director, Association for Research into Crimes against Art (ARCA)

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

Protecting Art from Vandalism

The Gauguin, attacked for a second time

Emily Wax reports for the Washington Post on the attempt by a woman to damage a Gauguin painting for the second time. She gets a number of comments from various security professionals, but the best response was this one:

 Mike Kirchner, director of security for Harvard Art Museums, says the first line of defense is alert guards and museum employees. 

“Everyone has to start a relationship with a smile, a nod, a good morning with people coming into the museum,” he said. “You can scan the crowd, you can try to look for people who don’t want to make eye contact. Everyone should always be on alert.” 

The National Gallery declined to comment on Friday’s attack because the incident is under investigation. According to D.C. Superior Court records, Burns, who has schizophrenia, is under observation at St. Elizabeths. Nonetheless, some guards at the museum said Sunday that they had photocopied her mug shot and put it in their coat pockets. 

For this time, no harm done, and in the future, the best line of security (which still allows us to enjoy the art) is a friendly and active security guard.

 

  1. Emily Wax, Museums’ fine art of protecting masterpieces (2011), http://www.washingtonpost.com/lifestyle/style/museums-fine-art-of-protecting-masterpieces/2011/08/15/gIQAfRfvHJ_story.html?hpid=z4 (last visited Aug 16, 2011).
Questions or Comments? Email me at derek.fincham@gmail.com