December 2014 – Illicit Cultural Property

Two Ways of Policing Heritage

A red-figured krater withdrawn from auction at Christie's in Dec. 2014 after Christos Tsirogannis connected the image to David Swingler, who has been investigated by US Customs Authorities and was sentenced to prison in absentia in Italy — A red-figured krater withdrawn from auction at Christie’s in Dec. 2014 after Christos Tsirogannis connected the image to David Swingler, who has been investigated by US Customs Authorities and was sentenced to prison in absentia in Italy

Christie’s had an auction of antiquities on Dec. 11, and some of the objects up for auction were ‘matched’ with photographic archives seized from dealers and collectors who deal in illicit material. These matches have always left me a little uneasy. If an object is matched, it means it is most likely looted. But the auction houses have no good way to match these objects because these photo archives are closely held by law enforcement agencies and a group of researchers. There are claims that the auction houses could go directly to Greek or Italian officials and have these objects checked against these databases for free. As Christos Tsiogiannis answered when asked by Catherine Schofield Sezgin: “The auction houses, and the members of the international antiquities market in general, always have the opportunity to contact the Italian and Greek authorities directly, before the auctions. These authorities will check, for free, every single object for them.” But it seems they do not do this. Objects are invariably withdrawn after a match, where they disappear back into collections in most cases, and we are left with little progress in stemming future looting and protection of sites. And so each new antiquities auction continues the cycle of public shaming and return. But the looting continues.

That was the core point of a paper I presented last year in a meeting of ISPAC and the United Nations office on Drugs and Crime in Courmayeur. Some of the papers have been collected and published by Stefano Manacorda and Arianna Visconti. I’ve posted my short paper “Two Ways of Policing Cultural Heritage” on SSRN. From the introduction:

The title of this paper is, of course, a play upon the title of Professor John Henry Merryman’s well-known essay which laid out the ways of conceptualizing cultural property law there are two ways to think about cultural objects. One as part of a national patrimony, and second as a piece of our collective cultural heritage. In a similar way there are two ways to envision jurisdiction of cultural heritage crime. Criminal law can of course apply to policing the individuals responsible for stealing, looting, selling and transporting illicit art and antiquities. Or, law enforcement resources can be used to secure the successful return of stolen art, and the protection of sites. The criminal law can regulate people; and it can also regulate things. In order to produce meaningful change in the disposition of art, it must do both effectively. Focusing on art at the expense of criminal deterrence for individuals is an incomplete strategy.

Fincham, Derek, Two Ways of Policing Cultural Heritage (December 10, 2013). Courmayeur Mont Blanc, Italy, edited by Stefano Manacorda, Arianna Visconti, Ed. ISPAC 2014 . Available at SSRN:http://ssrn.com/abstract=2536542

The British Museum is loaning a Parthenon sculpture

The Ilissos sculpture, loaned to the State Hermitage Museum in St. Petersburg

For the first time since the sculptures were removed from the Parthenon under the orders of Lord Elgin some 200 years ago, the British Museum has announced it is loaning a Parthenon sculpture. Specifically the Ilissos statue to the State Hermitage Museum in St. Petersburg. This very short loan, which will last only until January 18th has caused a great deal of outrage and criticism amongst those who think the sculptures should be ultimately reunited in Athens.

Greeks in particularly have been angered, with the Greek Prime Minister Antonis Samaras calling the loan a provocation: “The Parthenon and its sculptures were pillaged. We greeks identify with our history and culture. They cannot be torn apart, loaned, and ceded.”

And there is I think part of the problem for the Greeks. They have made compromise exceedingly difficult. I have argued before that justice requires the sculptures be reunited in Athens. But ownership and property law has limits that cannot resolve this dispute. So much time has passed between Elgin’s actions, and the actions of Ottoman officials, that definitively litigating those actions is difficult. Rather that criticizing this loan, perhaps Greeks, and those who think the sculptures belong in Athens should see this as a loosening of the British Museums’s grips on these sculptures, and may be a precedent upon which future loans could ultimately achieve the return of these objects to Athens, if not permanently, then at least on a temporary basis.

Student Comment on Culture and Development in Vietnam

Lauren Saltiel has a student comment for the University of Pennsylvania Journal of International Law, Cultural Governance and Development in Vietnam, 35 J. Int’l L. 893 (2014), which looks at UNESCO’s efforts to track culture and development in Vietnam through a pilot program. From the Introduction:

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A practical view from an archaeologist on looting

The IAL blog has a terrific preview of an upcoming interview with Kathryn Morgan, a PhD candidate and archaeologist who has dug at the ancient site of Gordion in Central Turkey. Nina Nieuhaus asked Morgan what can be done, from an archaeologist’s perspective to stem looting of sites. Here’s a brief excerpt:

Education and economic incentives are probably the two most effective anti-looting “measures,” if they can be called measures. Education, because if people value the past for itself and think that it’s important, they don’t want to loot; and economic incentives, because if they are reliably prosperous without relying on looting, they don’t have to. Alternatively, you can try to foster the idea that an excavation itself and/or the tourism that it brings is a more sustainable long-term alternative source of income than a quick loot-and-sell operation. As far as I understand it, looting often isn’t that profitable a business for the looter: he’s giving whatever he finds to a middle man, who may be giving it to someone else, and him to someone else, until it finds a legitimate seller and a legitimate buyer who hasn’t dirtied his hands with any of the illegal activity. So, for the little guy, it’s dangerous – because looting is of course illegal – and he’s not making that much money off of it; he’s not going to do it unless he has to. If you can foster a good relationship with locals – providing them with employment opportunities, buying food for the project from within the village, some projects get students to teach English or organize pick-up soccer games with the workmen – those personal relationships are key to the long-term success of your project. But that’s kind of a warm and fuzzy answer that doesn’t deal with all of the complicated motivations that real people have in the real world.

Realistically, what do we do? What can we do? The Gordion project employs a site guard year round who checks on the site. We give a map of the area to the local Jandarma, the police force, of the “most sensitive” areas archaeologically, that they need to keep an eye on. Also, in Turkey, sites that are looted or in danger of looting can be eligible for special “salvage excavation” permits. Near Gordion, several tunnels were dug into a large tumulus, looking for the burial chamber, over the past few winters. Last year, the Turkish authorities decided to excavate the tomb themselves, in a careful, scientific fashion with conservators on call – rather than allowing looters to make another attempt. The Gordion project was invited to contribute to the effort, which we did gladly. So, sometimes pre-emptive excavation is a necessary solution.

And there are other interesting insights, so I look forward to reading the whole exchange. Practical change is slow in coming to the antiquities trade.

Gerhardt on the publication doctrine and art history

The coal Glen Mine in North Carolina was the site of a series of explosions in 1925. 53 miners were dead, but the account is not listed in most North Carolina history texts, perhaps because the images of the scene like this are not copyrighted and in the public domain. — The coal Glen Mine in North Carolina was the site of a series of explosions in 1925. 53 miners died, but the account is not listed in most North Carolina history texts according to Gerhardt, perhaps because the images of the scene like this are not made available.

Deborah Gerhardt, an Assistant Professor at North Carolina School of Law has written an interesting discussion on the public domain and the publication doctrine, which would make it possible to place a number of images in the public domain, which has important consequences for art historians. From the abstract:

This Article is the first to use the copyright publication doctrine to clarify whether art, photographs, films, and historical documents that fill our museums and libraries are in the public domain. Knowing whether a photo, painting, film, or original letter was published is critically important to anyone who wants to use it today. Before 1989, publishing a work with no copyright notice dedicated the work to the public domain. Unpublished works without a notice are likely protected by copyright, and their unauthorized use can result in severe federal penalties. Unfortunately, the meaning of “publication” in copyright law is notoriously ambiguous. The federal statutory definition suggests that works “made available” to the public are published, while leading treatises generally assume that works given to public museums and libraries are unpublished. Confronted with this uncertainty, risk averse institutions too often assume that archived works are protected by copyright. Misunderstanding the law can keep cultural treasures locked in dark archives, vaults and basements, preventing their use as a foundation for new expression and distorting our sense of history.

This Article critically examines mistaken assumptions about copyright publication. It finds that neither the statutory definition nor leading treatises adequately identify when a work is published. A better standard for determining when a work is published and in the public domain is needed to free works from being locked up by copyright uncertainty. The best solution would clarify the boundaries of a stable public domain. In a recent decision, the Supreme Court took a wrong turn in dismissing the importance of the public domain. Knowing what content may be freely used is critical to preserving First Amendment values and freeing cultural treasures from copyright’s bondage. The copyright ambiguity of archived works should be resolved in a way that honors the expressive and historical value of the public domain. After considering several alternatives, this Article shows how precedential patterns point to the best solution to the publication ambiguity. Drawing on empirical analysis of federal cases interpreting copyright publication, I identify the variables that are most important in determining whether archived works are published. The suggested solution focuses on copyright owner intent and the availability of authorized copies. Other factors described as significant in leading treatises — such as the type of work or archive — actually mask these two fundamental inquiries. The proposed standard provides a much needed solution to clarify which pieces of our cultural heritage are in the public domain and freely available as raw materials for educational sharing, expressive work, historical research, and public discourse.

Gerhardt, Deborah R., Copyright at the Museum: Using the Publication Doctrine to Free Art and History (September 5, 2014). Available at SSRN: http://ssrn.com/abstract=2505041.

As always, if you have a draft or an article related to art law, antiquities law, or cultural heritage generally, please consider posting a draft on SSRN or another open access site.

“Yamatane” and temporary art

Yusuke Asai, "Yamatane", Rice University, Houston 2014. — Yusuke Asai, “Yamatane”, Rice University, Houston 2014.

So much effort goes in to thinking about where art belongs, how it should be preserved and conserved. So in many ways I can be guilty of taking the idea of preservation for granted. But more attention should be paid to thinking through what exactly preservation means. After all, preservation comes with costs. And thinking about how much does not get preserved, and how much effort it takes to preserve art and sites can seem overwhelming. Which is why it can be refreshing to just enjoy some art every now and then. Yusuke Asai, a Japanese painter created a massive installation at Rice University titled “yamatane” (Japanese for mountain seed). But you can’t see it any more, it has been “deinstalled”, which was the idea all along. As a result he gently forces the viewer to enjoy and take in the work while you can.

Asai's soil samples from Houston and Texas — Asai’s soil samples from Houston and Texas

He uses dirt and earth as a medium. In Houston he had Rice students and volunteers collect soil samples from around Houston and Texas, which he used to create 27 different shades.

Of his works he says:

I do not decide on a story or meaning before I start painting. Imagery of figures and creatures comes to me in the moent. Fox, bird, cat, and sunshine – everything has a role; parts disappear and something is added. The world accepts it and keeps changing. I begin each work thinking of the countless small things that come together to make a larger world. I choose to use the earth as a medium because I can find dirt anywhere in the world and do not need special materials. Dirt is by nature very different than materials sold in art stores! Seeds grow in it and it is home to any insects and microorganisms. It is a “living” medium.

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Prott on Australian museums and illicit art

The 900-year-old bronze Dancing Shiva (Shiva Nataraja) returned by the National Gallery of Australia to India in 2014

Lyndel Prott, Honorary Prof. of International Heritage Law at the University of Queensland has authored a timely Op-Ed for the Conversation. In it she argues the 1970 UNESCO Convention has a role to play in impeding the flow of illicit art. But wonders about its impact on the recent spate of illicit material revealed in Australian Museums:

In September the Australian Prime Minister personally returned a 900-year-old bronze Dancing Shiva (Shiva Nataraja) to the Prime Minister of India which had been bought by the National Gallery of Australia (NGA) and was subsequently found to have been stolen from a temple in southern India.

In a country which has been a party to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property – 1970 since 1989, how did the AGSA, the NGA and the AGNSW find themselves in such egregious situations?

Despite the passage of the Protection of Movable Cultural Heritage Act 1986 which implements for Australia the provisions of the 1970 Convention, the holding institutions have not undertaken the effort that they should have over the last 25 years.

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