Today Italy’s Corte di Cassazione will hear the Getty’s appeal in the dispute over this “Bronze Statue of a Victorious Youth”. The Bronze was acquired by the Getty in 1977, and has been a cornerstone of its collection. But in 2007 a new seizure suit was brought in Pesaro. The most recent ruling ordered the Bronze seized, wherever it is located.
The question then must be, if the High Court in Rome upholds the seizure, will an American court enforce it? I wrote an essay titled “Transnational Forfeiture of the Getty Bronze“, soon to be published in the Cardozo Art & Entertainment Law Journal, examining this question.
My conclusion is that yes, the Mutual Legal Assistance Treaty between the United States and Italy, in conjunction with U.S. law, does provide for U.S. assistance in an American court. The law in question, 28 U.S.C. § 2467, provides a framework for enforcing these foreign orders. But the Office of International Affairs in the State Department still has discretion in determining whether to bring suit to help enforce these foreign orders. The only guidance given in the law is to let the “interest of Justice” guide the decision made by the official. The Getty no doubt will be arguing today in Rome in the hopes that the case ends today before Italy inevitably requests assistance from the State Department.
The art forger Wolfgang Beltracchi was the subject of a lengthy 60 minutes profile last night. It was a reminder of how little safeguards protect genuine works of art from forgeries. Fakes defraud the public and dilute an artist’s body of work. When a staged photo counts as the ‘gold standard’ for provenance, the art trade is in serious trouble.
Beltracchi is reported to have been the most ‘successful’ art forger in recent history. He was caught and prosecuted by German authorities. Titanium White was able to do what the art trade could and would not: determine a fake from the real thing. Here’s an interview with forensic authenticator Jamie Martin:
Bob Simon: You actually take little pieces off of the painting?
Jamie Martin: We take very little pieces. We take only the minimum amount that’s required. Smaller than the width of a human hair.
He uses what is called Raman spectroscopy, which can help detect historically inaccurate pigments. That’s what cut Beltracchi’s career short. He was sentenced to six years in a German prison. His wife, Helene, to four. But the chaos they wrought has not been undone. Now, galleries and auction houses who vouched for his forgeries have been sued by the collectors who bought them.
Why then was Beltracchi so forthcoming to 60 minutes producers?
And no one disputes that they are awfully good. Beautiful. This $7 million dollar fake Max Ernst is being shipped back to New York. Its owner decided to keep it even after it had been exposed as a fake. He said it’s one of the best Max Ernsts he’s ever seen.
Beltracchi spent a year and a half in this grim penitentiary, but is now allowed to spend many days at home, where he is launching a new career. Beltracchi is painting again and is signing his works Beltracchi. He needs to get his name out there, which is probably why he agreed to talk to us. He’s lost everything is now facing multiple lawsuits totaling $27 million.
Good luck to all the teams competing in Chicago at the National Cultural Heritage Law Moot Court competition this weekend! This competition is put together by DePaul College of Law with the help of the Lawyers’ Committee for Cultural Heritage Preservation. It’s a great showcase for these soon-to-be-lawyers and this field.
The problem this year:
The 2014 Competition will focus on the Convention on Cultural Property Implementation Act (CPIA), 19 U.S.C. §§ 2601-13, which establishes a framework for imposing import restrictions on undocumented archaeological and ethnological materials. The problem will address the questions of whether agency action taken pursuant to delegated presidential authority is subject to judicial review under the Administrative Procedure Act and whether an intentional violation of the CPIA can serve as the basis for a criminal prosecution under the customs statute.
This summer I’ll be teaching a 1-credit “International Cultural Heritage Law” course in Istanbul. Its a terrific city for the course, home to the Alexander Sarcophagus and the Hagia Sophia, we’ll have a rich set of local examples to draw from for our class discussions. The program is run by the University of Kansas and co-sponsored by William Mitchell College of Law, and my school South Texas College of Law. Information about the other courses and the program is available here.
Here’s the description of my course:
International Cultural Heritage Law (1 credit) Professor Derek Fincham
This course will examine the intersection between law and material cultural heritage. It will show how nations and individuals resolve disputes over art and antiquities. We will examine the international conventions governing cultural heritage and show how they have been useful for nations like Turkey, Italy and Greece in securing repatriation of art and antiquities. Particular attention will be given to the private and public laws used to resolve the growing number of international cultural heritage disputes.
A lawsuit filed in New York State court last week could provide one of the strongest disincentives yet to dealing in looted cultural objects. Subhash Kapoor‘s gallery in New York, Art of the Past, has been sued for a laundry list of private law violations; including “fraud, rescission, unjust enrichment, contractual indemnity, and breach of contract” based on the sale of this bronze statue known as Shiva as Lord of the Dance (Nataraja). The plaintiff is the Australian gallery which purchased this work in 2008.
This lawsuit is exactly what should happen when a purchaser with clean hands purchases a work of art from a dealer who knew that a work of art was looted or stolen. I’ve argued before that acquisitions like this defraud the legitimate trade in works of art, and also corrupt our understanding of history.
The NGA lawsuit, to our knowledge, is unprecedented. American museums and private collectors have returned hundreds of looted objects to Italy, Greece, Turkey, India, Cambodia and other countries in recent years. In nearly all those cases, dealers had provided standard warranties guaranteeing good title to the objects. And yet not one museum or collector had filed a similar lawsuit…that we know of.
So why haven’t lawsuits like this occurred with more regularity? Here’s why I think they have been rare. They should be happening every time looted art is repatriated. As any first year law student learns, if someone sells you stolen property, every legal system allows you to bring an action against the launderer of stolen property. But this has not happened in the antiquities trade for a couple reasons. First, many curators and museum officials had too much knowledge of the illicitness of objects they were acquiring. A lawsuit like this would have embarrased institutions like the Getty or the Met or the MFA in Boston by raising uncomfortable question about what due diligence was taken before an acquisition. In this case, it seems as if the National Gallery of Australia is comfortable in defending its due diligence procedures to a court. The NGA alleges in its complaint that it undertook due diligence procedures, while also relying on the warranties given by Art of the Past. But the NGA asked the Art loss register if the statue was stolen, examined letters from the previous owner of the statue, consulted the ‘Tamil Nadu Police website’, checked the records produced by the Archaeological Survey of India, and finally consulted with a bronze expert in India who supported the acquisition.
Perhaps another reason that a suit like this is unique, is the secret nature of the art trade itself. Buyers and sellers are anonymous. But that is changing. When you can trace the path of material through the various purchasers, the market for illicit material shrinks. And that is a very good thing, and why we should all watch this suit in New York closely.
At least according to Daniel Grant. James Turrell, the artist whose medium is color itself, should instead turn to art law to gain more attention. The premise is exaggerated for effect, but only slightly when you consider the range of recent art law disputes questioning the very foundation of the visual arts. It is a great time to be interested in the intersection of art and law.
You really should go read the whole piece, but here are two clips. First, disputes over the nature of art itself have been examined, including whether art is art without its certificate of authenticity:
In May, a Puerto Rican art collector and dealer named Roderic Steinkamp brought a lawsuit against Chicago art gallery owner Rhona Hoffman for having lost a work of art that he had consigned to her. Well, sort of. He had entrusted to her a certificate of authenticity and a diagram for a Sol Lewitt wall drawing, not the wall drawing itself, and she somehow lost this paperwork. Big deal, you think: you ask the Sol Lewitt estate for a duplicate certificate and diagram, maybe pay a fee for the trouble, just as you would if you lost the deed to your house or car. However, the Lewitt estate said no. “We don’t give duplicates,” said Susanna Singer, long-time business manager for Sol Lewitt and now an advisor to the estate. “We don’t want two certificates out there, raising the question of which is the real one.” . . . It’s the view of the estate that the certificate of authenticity and especially the diagram are the actual work of art; the paperwork is the art, rather than an installation of the wall drawing, and in this instance no installation appears to have taken place.
The portion of the legal community that focuses on the arts (literary, performing, and visual) is still small, in part because there aren’t really that many disputes requiring counsel, and also because the people most likely to be wronged are lesser-known artists without the resources to pay for lawyers. It was big money that drove the lawsuits most recently, but these cases are also notable because they ask basic questions, from what is art to who decides where and how it will be sold and displayed. They’re questions that in an earlier age might have been more a part of the general discourse but are now left to the courts to decide. Perhaps, if he wants more attention, James Turrell should write a legal brief.
The birth of art law as a field can only really be traced to 1979 and John Henry Merryman at Stanford, though there were of course legal disputes over art long before that. Yet he got lawyers and artists to think in an organized way about the intersection between law and the visual arts. Those questions seem to be getting more foundational as art becomes more conceptual, challenging our ideas of how value for art is created and how to resolve the inevitable disputes. Lawyers follow money sure, but so does art.
One of the highlights of my year is getting to travel to Amelia every summer to teach in ARCA’s postgraduate program, and to organize its annual conference. There seem to be a wave of great art and heritage conferences all over the world now that are helping to promote the field—one that is still very much in its early stages. I want to make a push for what I think is a unique conference, ARCA’s annual conference in Amelia. With many of us experiencing the latest cold snap here in the states, it might be a good time to cast your attention to thoughts of summer and warm Umbrian sunshine. Our conference hopes to promote study of art crime and cultural heritage by focusing attention on the good writing and work being done, and offering a collegial space for folks to come together. Many of us rely on the internet to communicate and interract, so it is a real treat to meet folks you’ve been emailing and reading for years. And best of all the conference offers plenty of time for socializing and taking in the Umbrian countryside. Our panels are organized into groups of 3-4 speakers, with 20 minutes per speaker. Presenters hail from a terrific range of backgrounds including: law, criminology, art history, law enforcement, archaeology, journalism, and others.
If you are interested in submitting a proposal to present, or attending (there’s no admission fee, just a small charge for lunch and dinner) keep reading below the jump for the particulars.