July 2012 – Illicit Cultural Property

Student Comment on the Law of Art Theft

Amber Slattery, a J.D. Candidate at Villanova school of Law has a comment titled “TO CATCH AN ART THIEF: USING INTERNATIONAL AND DOMESTIC LAWS TO PAINT FRAUDULENT ART DEALERS INTO A CORNER” which appears in 19 Villanova Sports & Ent. L. J. 827 (2012). From the introduction:

Legal problems pertaining to the art world typically address ownership and repatriation of stolen cultural works to their original countries. Examples of Nazi-looted art spring up every year, creating uncomfortable demands between aggrieved former owners and current good-faith purchasers. Famous auction houses sell antiquities for which provenance cannot be established. Implicit in many legal issues pertaining to art is the fact that at some point, a crime took place. Fraud, theft, and trafficking are all crimes that begin with an act of greed and end with a piece of art or cultural property relegated to the status of contraband. . . This Comment explains the occurrence of high profile art fraud as it fits into the larger picture of art theft crimes. Section I introduces art fraud and the Wildenstein affair. Section II provides a comprehensive background on art theft. Section III addresses the underlying cultural reasons for nations’ differing policies and laws on cultural property. Section IV provides a survey of international laws and domestic laws from around the world that address art crimes. Section V addresses the effectiveness of American fraud law when applied to art crimes and discusses specific examples of recent art crimes. Finally, section VI addresses the viability of an ignorance defense to fraud charges in France and other civil law countries, how the defense would affect outcomes in the U.S., and how to prevent fraud of this nature from occurring again.

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

Student Note Examining Bakalar v. Vavra and choice of law in New York

Egon Schiele, Seated Woman With Bent Left Leg (Torso)

The June issue of the Columbia Law Review has an interesting student note by Laurie Frey, Bakalar v. Vavra and the Art of Conflicts Analysis in New York: Framing a Choice of Law Approach for Moveable Property, 112 Colum. L. Rev. 1055 (2012). The case involves this 1917 gouache and crayon work which passed through an Austirian shipping company during the holocaust era.

From the introduction:

The facts of Bakalar v. Vavra presented a familiar scenario in Holocaust-era art cases. A good faith purchaser, who thought he had bought clear title to a drawing, went to sell the drawing at auction in New York and found himself confronted by the claims of alleged heirs, who asserted that the painting was taken from their ancestor by the Nazis. Typical of art cases, the drawing had passed through a number of jurisdictions before arriving in New York, and the court in Bakalar faced the difficult question of what jurisdiction’s laws to apply to determine which of the parties had title to the drawing. This Note examines the particular importance of choosing the law to apply in disputes between good faith purchasers of artworks and the artworks’ original owners, or their heirs—disputes in which the law chosen may lead to dramatically different results. The Note then reviews the evolution of the analysis for choice of law generally and in New York particularly. Prior to Bakalar, the law in New York appeared to be a combination of an interest analysis and the more traditional lex situs approach, which focused on the location where a particular transaction took place. This Note argues that the Second Circuit misconstrued prior New York case law in its application of the interest analysis without regard to the lex situs. The Second Circuit’s analysis created uncertainty and unpredictability in New York choice of law rules, and New York needs a revised choice of law rule for property conflicts that gives both predictability and nuance to the law post-Bakalar. This Note proposes a return to an interest analysis that places particular emphasis on the location of the property transfer at issue in the case. Such a rule would lead to more predictable results, since the law of the transaction location would typically apply, but it would also give judges discretion to weigh other relevant factors.

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

Another theft of a Henry Moore bronze

This sundial sculpture by Henry Moore was stolen earlier this week. All scrap metal shops should be on notice to look out for the piece, and I’m sure police are in contact with scrap metal buyers in the region:

The 22-inch (56cm) high “Sundial” sculpture had been placed in the garden of The Henry Moore Foundation in Much Hadham, Herts, to be enjoyed by visitors. The structure, in the shape of two interlinked crescents, is believed to have been stolen between Tuesday afternoon and Wednesday morning, when members of staff spotted it missing. Police have now launched an investigation into the theft, amid fears it could have been stolen to be melted down.

Let’s hope this half a million pound work of art won’t be sold for only a few hundred pounds and is recovered quickly.

Hannah Furness, Henry Moore sculpture worth £500,000 stolen from grounds of his former home, Telegraph.co.uk, July 12, 2012.

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

Owners of ‘orphaned’ objects find donations difficult now

A detail from one of the Sevso objects, the most
notorious collection of ‘orphaned’ objects

An interesting report in today’s N.Y. Times discusses the difficulty some collectors of antiquities are having when they decide to donate their collections to museums:

But his giving days are largely over, he said, pre-empted by guidelines that most museums now follow on what objects they can accept. “They just won’t take them — can’t take them,” Mr. Dewey said. Alan M. Dershowitz, the Harvard law professor, is in a similar bind. An antiquities collector, he is eager to sell an Egyptian sarcophagus he bought from Sotheby’s in the early 1990s. But he is stymied, he said, because auction houses are applying tighter policies to the items they accept for consignment. “I can’t get proof of when it came out of Egypt,” Mr. Dershowitz said.

The main omission from the report though, is that it only really gives the perspective from the point of view of collectors, without really giving much in the way of the consequences of buying these illicit objects.

There is a collection of reactions which give the perspective of the cultural heritage movement. But one big piece missing from the report involves the tax deductions received for these donations (and I’m pretty sure Neil Brodie and Patty Gerstenblith would have made this known to the authors of the piece).When an illicit object is donated, the donor receives a lucrative tax deduction, which can often exceed its real value. As a consequence the American taxpayer is then subsidizing the illicit antiquities trade, and helping to pay for the continued looting of sites.

I can appreciate the concerns of collectors who have acquired objects without informing themselves of the issues involved in the antiquities trade; who now find themselves surprised to have a very valuable piece of ancient art; and nobody is now willing to accept it as a donation. But this is a necessary consequence of the lack of information given by auction houses and dealers to these folks—especially the buyers who have money, but don’t know what they are actually buying. Some objects may be orphaned, but if the trade itself responds to this correction and pressure exerted on behalf of the owners of these ‘orphans’, then that might very well be worth the costs. Buyers won’t be buying objects if there is no further market for these objects, and the market itself rejects objects without provenance and information.

Consider as well that many of these objects may not be real to begin with. Without information on an object’s history, we have lost the best most cost-effective means of knowing if an objects is in fact not a fake.

Ralph Blumenthal & Tom Mashberg, Antiquity Market Grapples With Stricter Guidelines for Gifts, N.Y. Times, July 12, 2012.

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

Footnotes

Now you see them: the eternal allure of lost art | Art and design | The Guardian Source URL:http://www.guardian.co.uk/artanddesign/2012/jul/01/gallery-of-lost-art These early modern artists were rebelling against the pompous art world of the 19th century, where rich and lauded painters would exhibit massive oil paintings at the Paris Salon or the Royal Academy, each developed through an academic series of drawings. Why, these rebels asked, should art be a glossy treasure? Working in ramshackle studios, drinking absinthe, they treated their own genius in a deliberately nonchalant and casual way. In the National Gallery in London, you can see Edouard Manet’s 1867-8 painting The Execution of Maximilian – or at least fragments of it. This pioneer of the avant garde cut off part of the canvas himself; after he died, it was cut up further in order to be sold in pieces. It took his admirer Degas to buy all the fragments he could find and paste them together as best he could. Growing Number Of Tourists Stealing Artifacts In Rome, Italy | Gadling.com Source URL:http://www.gadling.com/2012/06/28/growing-number-of-tourists-stealing-artifacts-in-rome-italy/ For those who love admiring ancient artifacts, you may want to visit Rome while they’re still there. According to police, there has been an outbreak of tourists stealing mosaic pieces, marble mile markers, cobblestones and other pieces of the city’s history. Luckily, airport security has been vigilant and is on the lookout for the items. In fact, they’ve been able to return a large amount of artifacts stolen in the last six months. Moreover, they’re finding the majority of the thieves are travelers coming from Britain and northern Europe. These people are not arrested, but instead given a stern warning. Says Police Chief Antonio Del Greco, “I can understand the legend and splendor that is Rome but that does not mean bits of it should be stolen … If they want a souvenir of their visit then they should buy something from a shop.” Sea surrenders pristine Roman sarcophagus – The Art Newspaper Source URL:http://www.theartnewspaper.com/articles/Sea+surrenders+pristine+Roman+sarcophagus+/26909 A Turkish press report describes the sarcophagus discovery Diving school trainer Hakan Gulec came across more than fish and flotsam during a recent trip to the bottom of the ocean near Antalya off the coast of southern Turkey. An object protruding through the sand on the sea bed caught Gulec’s attention, prompting the intrepid explorer to dislodge and photograph the mystery find. Vandalized Banksy piece worth up to $620,000 is whitewashed over – latimes.com Source URL:http://www.latimes.com/entertainment/arts/culture/la-et-cm-london-vandalized-banksy-20120706,0,4757465.story?track=rss&utm_source=dlvr.it&utm_medium=twitter&dlvrit=175674 A Banksy piece in London was vandalized by graffiti crew Team Robbo. (www.london24.com) By Jamie Wetherbe July 6, 2012, 8:10 a.m. A defaced stencil by the elusive street artist known as Banksy — which might have quadrupled in value after being vandalized — has been cleared from a London neighborhood. The artwork of a boy blowing bubbles that spell out the name “TOX,” a prolific tagger jailed last year for his handiwork, appeared last August on a wall along Jeffrey’s Street in the city’s northwest neighborhood of Camden Town. Smugglers lead police to ancient loot | News.com.au Source URL:http://www.news.com.au/breaking-news/world/smugglers-lead-police-to-ancient-loot/story-e6frfkui-1226420093890 POLICE in Karachi have seized dozens more stolen ancient artefacts dating from the Gandhara civilisation. The catch came thanks to leads obtained from those arrested in a similar raid the day before, officials said. The antiquities had been illegally dug from the country’s restive northwest where Pakistan’s army is battling against Islamist militants. The latest raid on a warehouse in the eastern Ibrahim Hyderi neighbourhood unearthed two large boxes stuffed with ancient Gandhara art.

Footnotes

The Curious Case of SpongeBob SquarePants Illustrator Todd White, Three Ninjas, and an Art Caper | Culture | Vanity Fair

A truly bizarre tale:

Artist Todd White seemingly had it all. With a multi-million-dollar art brand, collectors and clients ranging from Sylvester Stallone to Coca-Cola, and a burgeoning reputation in art-mad Britain, his days as lead character designer of SpongeBob SquarePants were but a distant memory. But, as David Kushner reports, when his confidante and gallerist Peggy Howell reported a burglary of his paintings at the hand of ninjas, things took a turn for the even stranger.

Theft of Dalí Drawing Was Incongruous in its Simplicity – NYTimes.com

The man who stole a drawing by the Surrealist painter Salvador Dalí on Tuesday wore only the most basic of disguises: that of an everyday gallery visitor, walking past the Jeff Koons and Damien Hirst works on display. And he brought only the most basic of tools for his heist: a black shopping bag. When he left the new Venus Over Manhattan gallery on Madison Avenue and escaped into a sunny afternoon, no one — not the security guard standing watch in the gallery, not the guard in the building’s lobby — realized that a thief was making his getaway. The loss of the drawing, “Cartel de Don Juan Tenorio,” valued at $150,000, was a blow to the gallery, near East 77th Street, which has been open for only a month. Its high-society origins and high-concept exhibition have attracted much attention. Its owner is Adam Lindemann, a wealthy art collector and writer whose wife runs another gallery.

And of course the painting was recovered after it was mailed back to the US from Greece.

To keep the looters away from De Soto site and Spanish mission, Ashley White came up with an elaborate ruse | Gainesville.com

“The artifacts, individually, are not very valuable monetarily, but historically they have tremendous value,” White said. But treasure hunters aren’t easy to deter. To keep the looters away from the real treasures, White had to come up with an elaborate ruse. White created a phony archaeological dig on a distant part of his property near Orange Lake, complete with orange markers, wooden grids and strings methodically placed to give the illusion that important work was taking place there.

An account of ARCA’s annual conference by Rebecca Junkemeier with SPI:

Here at SPI, we want to provide local communities with the entrepreneurial opportunities to create sustainable income from their cultural heritage; income that is dependent on the preservation of the site. SPI left Amelia with the conviction that focus on the local is imperative to success, and that, now more than ever, the development of local economies is instrumental in saving the world’s cultural heritage for future generations to study and enjoy.

Master forger comes clean about tricks that fooled art world for four decades | Art and design | The Observer

An extraordinary memoir is to reveal how a gifted artist managed to forge his way to riches by conning high-profile auctioneers, dealers and collectors over four decades. The book, Caveat Emptor: The Secret Life of an American Art Forger, will be published next month and tells the story of Ken Perenyi, an American who lived in London for 30 years. The revelations within it are likely to spark embarrassment on both sides of the Atlantic.

U.S. returns stolen art worth millions to Italy | Reuters

The United States on Wednesday returned stolen art works worth millions of dollars to Italy, including two 2,300-year-old ceramic vases, a Roman sculpture and a Renaissance painting. The seven works, which Italian police said were illegally smuggled into the United States by organized crime groups specializing in stolen art, will now be returned to their owners and museums. “The recovery of these works of art was thanks to professional cooperation between law enforcement in Italy and the United States,” said Italian Culture Minister Lorenzo Ornaghi. “The recovery of art is an important chapter in our history of cooperation,” he told a news conference at the U.S. embassy.

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

The Weiss Case: Pleading Guilty to Getting Duped

Two “genuine fake” ancient coins

My grandfather once had a shiny piece of jewelry (I think it was a cubic zirconia pinky ring) which he would describe as a “genuine fake diamond ring”. He would say it fast enough that if you weren’t listening close you thought he would just say ‘genuine’.

Early this year a prominent physician, Arnold Peter C. Weiss, was arrested and charged with dealing in recently looted coins. Last week Weiss pleaded guilty to three counts of attempted criminal possession of the coins. He thought they had been recently excavated. But they were in fact modern forgeries—a predictable consequence of not asking enough questions about the history of these objects before their acquisition. Unlike Charles Stanish, who is heartened by these fakes which don’t cause the looting of a site, I think these fakes do pollute our understanding of the past and defraud our collective cultural heritage.

Chasing Aphrodite reports that as part of the plea agreement reached with the Manhattan District Attorney’s office, the defendant must serve 70 hours of community service, forfeit 23 other ancient coins seized, and pay a $3,000 fine. But he has some writing to do as well:

The court also required Weiss, the former treasurer of the American Numismatic Society, to write a detailed article in the society’s magazine detailing the widespread practice of dealing in coins with unclear ownership histories. It will describe the corresponding threat to the archaeological record and propose solutions for reforming the coin trade. In a statement, a spokeswoman for the Manhattan District Attorney’s office said, “Thanks to today’s disposition, the article to be written by the defendant for a coin trade magazine will raise needed awareness about unprovenanced coins, and will promote responsible collecting among numismatists.”

It should be a real page turner. I suspect Matthew Bogdanos, the Manhattan assistant DA had much to do with that writing assignment.

Paul Barford notes of the fakes:

Those coins always looked to me suspect, too fussy and the Akragas looked like it was a copy of another in a published collection, but who am I to question what the US authorities are up to, eh? (back in January, I was asked to keep my suspicions to myself, so did, but glad to see I am not going crazy). Anyway it turns out that those “priceless ancient coins” “weren’t worth a wooden nickel”.

Rick St. Hilaire thinks this case may be the start of increased use of state laws to police the illicit antiquities trade:

Indeed, all fifty states have receiving stolen property laws on the books, which can be applied in cases where a person is in criminal possession of stolen cultural property. The states also have “attempt” laws, which would cover a person’s attempt to possess stolen cultural property or possession of forged cultural property believed to be authentic. Beyond these statutes, the states maintain consumer protection laws with applicable penalties to guard against the appearance of fraudulent and stolen items in the marketplace. The states also have nonprofit enforcement statutes that may be applied to specific cultural institutions or boards of directors that acquire illegal art, archaeological finds, or ethnological artifacts.

Let’s hope so. But the same obstacle to state prosecutions exists for federal prosecutions as well. The trade makes it terribly difficult to gather sufficient evidence to establish wrongdoing in an anonymous trade. Bogdanos has been looking hard for a dodgy antiquities dealer to prosecute since the Baghdad museum looting. He has one now. But Weiss was duped by the under-regulated antiquities trade. Perhaps that notion will cause him to sit down to write his assignment with some real vigor (Peter, if you are reading, I’m happy to read a first draft).

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

Troubling News of Destruction in Mali

This image taken from a video shows armed men smashing a
15th century mosque in Timbuktu on Monday

Members of an armed group in Northern Mali have committed a number of acts of destruction in Timbuktu and the surrounding areas. They have smashed the “sacred door” of one of three ancient mosques. As many as six other mausoleums have been intentionally destroyed. Intentional destruction during armed conflict presents difficult problems, and Mali has asked the international community for concrete assistance.

The first step is a threat by the ICC. The prosecutor of the International Criminal Court Fatou Bensouda has described this destruction as a war crime: “My message to those involved in these criminal acts is clear: stop the destruction of the religious buildings now. This is a war crime which my office has authority to fully investigate”. Her claims may have an impact, but more other concrete steps may be needed to halt this intentional destruction.

The destruction mimics that which took place in 2001 when the Bamiyan Buddhas were destroyed. Extremist groups in Mali are systematically destroying sites. Perhaps urgent action by the ICC, or better yet the United Nations Security Council can halt this systematic destruction.

From Al Jazeera, here is a report showing the destruction:

Pascal Fletcher, Timbuktu tomb destroyers pulverise Islam’s history, Reuters, July 3, 2012, http://www.reuters.com/article/2012/07/03/uk-mali-crisis-timbuktu-idUSLNE86202G20120703 (last visited Jul 3, 2012).

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