Derek Fincham

Protection, Preservation and Commodification

Italy has been making tremendous strides of late in securing the return of objects. A major tenet underlying these successful repatriation claims has been the idea that by cutting off buyers of illicitly excavated objects, and by ensuring objects are not entering major museum collections, the demand for the illicit trade will be substantially reduced.

This is an important policy shift, and has unquestionably altered the cultural property policy landscape. However I think its worth asking if nations like Italy are following through with their aspirations, and if everything is being done to preserve sites and archaeological context. It stands to reason that more nations of origin will be adopting this Italian strategy, but we should ask ourselves if perhaps these efforts are looking at only one part of the problem.

In fact as I tried to point out last week, it looks like more nations of origin will be banding together and attempting perhaps to negotiate as a bloc, in much the same way that OPEC has dominated the world’s supply of oil. TIME Magazine’s Richard Lacayo in his “Looking Around” blog responded to my assertion by rightly pointing out that “OPEC is powerful because it sits on top of a natural resource that, at the end of the day, the world requires. Antiquities source nations have…..antiquities.”

He’s right of course that there isn’t nearly the same demand for antiquities as for a commodity like oil, but nations of origin do need market states in a number of ways which aren’t often fully appreciated. Italy, though it was very forceful in its recent negotiations with the Getty, the Met, and the MFA Boston chose not to use all of the legal ammunition it perhaps could have, and even reached very generous reciprocal loan agreements in exchange for the repatriated objects. The obvious question is: why be so accommodating if there were such powerful ethical principles and photographic evidence which called for the return of these objects?

The answer I think is that these nations need good relationships with other nations, and one of the major reasons is the enormous tourist dollars visitors from America (and elsewhere) can bring to these nations. Capitalizing on this tourism can have a heavy price however.

Adam L. Freeman has an excellent article on Bloomberg in which he details the struggle Italian authorities have had in properly caring for Pompeii (pictured above), “Chunks of frescoes depicting life in the Roman city are missing, carried away by visitors or eroded by the elements. Graffiti is gouged into walls. Tourists ignore signs forbidding flash photography as they take pictures of erotic designs inside the Lupanare, an ancient brothel.” This all comes as Italian Prime Minister Silvio Berlusconi attempts to cut expenditures, with the Culture Ministry likely to receive heavy cuts after the former government cut protection by 20 percent this year already. In fact, Italy has declared a state of emeregency for the ancient city and appointed Renato Profili former head policeman for Naples to oversee the situation.

Profili is quoted “It’s obvious that there is an emergency in a country like Italy where there’s so much to protect and so little money to do it.” This despite the 33 million euros generated by all the tourists who visit the city.

Other nations are having similar struggles. Robert Turnbull a few weeks ago in the New York Times details a museum/retail mall development in Cambodia near Angkor Wat, pictured here.

There aren’t easy answers of course, but merely returning objects to nations of origins won’t by itself protect sites, heritage and context.

The valuable tourist dollars which these sites bring in can help alleviate the situation, but it also carries with it the distasteful tradeoffs, such as the commodification of heritage, and the wear-and-tear which millions of visitors will always cause. Hopefully nations of origin will be able to move beyond the dramatic repatriations, which are a necessary step, and continue to work to preserve the sites themselves.

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

Art Theft and Recovery Blotter

There’s a slew of news about art theft, recovery and sentencing this morning:

First, thieves broke into a museum near Stockholm and stole five works by Andy Warhol (Mickey Mouse, and Superman) and Roy Lichtenstein (Crak, Sweet Dreams, Baby!, and Dagwood).

Second, authorities in Brazil have recovered a Picasso print, The Painter and the Model, which was stolen along with four other works back in June from the Pinacoteca do Estado in São Paulo, Brazil. Police had the men under surveillance for a planned ATM robbery, and overheard mention of the Picasso.

Third, a Vermont man has been ordered to serve a five-to-20 year prison sentence for stealing bronze sculptures to sell as scrap metal. He and two other men had stolen a number of sculptures from Joel Fisher’s studio while the artist was out of the country.

Finally, Artinfo is reporting that the Art Loss Register has recovered a Mario Carreño work stolen from a New York law firm in 1993.

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

An OPEC for Nations of Origin? (LATE UPDATE)

OPEC is the organization of oil-producing countries which regulates their production, price, etc. A number of people have suggested that perhaps a similar movement should be adopted among nations of origin for antiquities loans, repatriations, and perhaps even licit sales. It would seem to be a terrific strategy for these nations to combine their efforts, so long as they can agree upon similar strategies. A few items in the news and among other blogs point to the emergence of such a collaboration.

First, Italy and Greece have continued their cooperation. The Greek Minister of Culture, Mihalis Liapis and Sandro Bondi, the Italian Minister for Culture have signed a memorandum of cooperation on cultural issues. As part of the agreement, the Nostoi exhibition will travel to the New Acropolis Museum in Athens in September, and there will likely be more pressure on institutions and private collectors to return objects, as David Gill recently noted with the news that Shelby White will return objects to Greece.

This news comes as Egypt continued its recent efforts and signed yet another agreement, this time with Ecuador. Egypt has already signed agreements with Italy, Cyprus, Denmark, Cuba, Kazakhstan, Jordan, Peru and Switzerland according to the Egyptian weekly Al-Ahram.

I think we can take a couple of lessons from these efforts. First, it is another indication that UNESCO has had a difficult time building consensus, and the spread of these bilateral agreements is a sign the UNESCO Convention itself does very little if a signatory does not want to give much teeth to its accession.

Second, these repatriations and cooperation may be a very good thing, however the real test of these efforts remains how well sites are protected, and whether there remains a workable heritage management policy in these nations. Recent news out of Greece suggests they are not. It seems last month the Greek parliament has taken a step last month to allow divers to access the entirety of the Greek coastline. This would be very good for tourism, but how are the objects these divers find going to be managed or educated? How will sites be affected?

Pictured here of course is the Bronze Statue of a Victorious Youth, a statue found by chance in the Adriatic in the 1960s. How many more of these objects will be uncovered if the Greek coast is opened up to divers? I know very little about how the Greek waters are currently protected, but it would seem to me to be a poor policy which only criticizes foreign institutions and buyers while not properly protecting domestic objects and sites before they are exported.

LATE UPDATE:

David Gill has kindly noted in the comments, and on his blog that the report I noted above is out-of-date and most likely inaccurate. It seems Greece is not, of course, thinking about opening its coast to amateur underwater salvors. However, I think the underlying question I raised is still valid in Greece and elsewhere: what can and should be done about underwater sites and wrecks

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

French Man Pleads Guilty to Art Theft Conspiracy

Last week the US Department of Justice issued a press release announcing a Frenchman named Bernard Jean Ternus pleaded guilty to conspiring to sell four works of art stolen last August from the Musee des Beaux-Arts in Nice, France.

According to the release, Ternus and another man attempted to sell two of the works to undercover agents in Barcelona, Spain for three million euros. They sold two works, and attempted to keep the other two as leverage in case they got arrested. This plan revealed its flaws in June though when Ternus’ co-conspirators were arrested in Southern France when they attempted to exchange the final two works.

Ternus was arrested by FBI and ICE agents in Florida, and its likely a condition of his plea agreement was to give testimony about the thefts themselves, which should aid French authorities in their prosecution of the co-conspirators in Europe.

The arrests are a very good thing, but it will be interesting to see what Ternus’ and his conspirators prison sentances will be, as art theft is typically not given long prison terms. Though the armed nature of the robbery may lead to harsher penalties for the actual thieves in Europe.

This is nonetheless a very good example of cooperation of Federal Agents and prosecutors, and their French and Spanish counterparts. Its a job very well done, and an indication why theft of these kind of high-profile works is very silly. I’ve included images of the recovered works from the press release below:

Permanent loan, Musée des Beaux-Arts, Nice; © Musée d’Orsay, Paris Claude Monet (French, 1840-1926). Cliffs Near Dieppe, 1897. Oil on canvas. 65 x 100 cm (25 9/16 x 39 3/8 in.).

©Musée des Beaux-Arts, Nice Jan Brueghel the Elder (Flemish, 1568-1625) and Hendrik van Balen the Elder (Flemish, 1575-1632). Allegory of Water, ca. 1611. Oil on panel. 53 x 94 cm

Permanent loan, Musée des Beaux-Arts, Nice; © Musée d’Orsay, Paris Alfred Sisley (French and British, 1839-1899). The Lane of Poplars at Moret, 1890. Oil on canvas. 76 x 96 cm (29 15/16 x 37 13/16 in.). (20 7/8 x 3)

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

Update on Wednesday’s Art Crime Panel

Wednesday’s panel at the British Society of Criminology was very engaging, and would have garnered a great deal of attention among cultural heritage scholars. But I’m sad to report that I’ve had considerably more folks email me to ask about the presentation than were actually present at the presentations.

Lucky for us, all of the papers we were discussing are published (or in my case will be soon).

My presentation was based on a forthcoming article in the International Journal of Cultural Property on the Treasure Act and the Portable Antiquities Scheme. I’ll shamelessly self-promote that when I have a copy available.

Simon Mackenzie‘s paper is: “Performative Regulation: A Case Study in How Powerful People avoid Criminal Labels” British Journal of Criminology 2008 48(2):138-153.

Carolyn Shelbourn’s presentation was based on a few articles:

Shelbourn, C “Time crime” – looting of archaeological resources and
the criminal law in England and the United States [2008] Criminal
Law Review, 204-213.

Shelbourn, C. Protecting Archaeological Resources In The United
States: Some Lessons For Law And Practice In England? [2007] Art
Antiquity and Law, 259-278.

Shelbourn C, Bringing The Skeletons Out Of The Closet? The Law and
Human Remains In Art, Archaeology and Museum Collections [2006] Art,
Antiquity and Law 179-198.

These two presentations were excellent and I enjoyed them a great deal. One problem with the current state of Heritage Law Scholarship, is that many of the best work is in specialty journals that can be hard to find. I think in particular a lot of the work by UK academics is underutilized by American authors because they don’t know about it. I’m working on a project which should help to correct a lot of those problems, and I’ll have a lot more to say about that in a few weeks hopefully.

Some of the journals, in particular Art, Antiquity and Law are not available electronically as far as I am aware. This is a real shame, and I think more authors should consider putting their work online so it can be accessed via sites like SSRN and others (or those journals need to consider putting stuff online). There are tradeoffs perhaps, and some Journals may not like stuff being given away, but I don’t see much point in writing articles if people are unaware of them or don’t read them.

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

Presentation Tomorrow At British Society of Criminology Conference

Tomorrow afternoon I will be presenting a short paper at the British Society of Criminology 2008 Conference in Huddersfield along with Carolyn Shelbourn and Simon Mackenzie. It should be a great panel, I’m looking forward to both the other presentations, and I’ll post a short summary of my talk and the panel on Thursday. For any who may be attending, the information on the panel is here:

1.7 ART CRIME: UK AND US RESPONSES TO ANTIQUITIES LOOTING

Simon MacKenzie, University of Glasgow
PERFORMATIVE REGULATION: THE CRIMINALISATION OF
DEALING IN ILLICIT CULTURAL OBJECTS AS A CASE STUDY OF
THE INTERSECTION OF POLITICAL AND TRADE INTERESTS.

Carolyn Shelbourn, University of Sheffield
MAKING THE PUNISHMENT FIT THE CRIME – ‘ARCHAEOLOGICAL
VALUE’ AND THE ASSESSMENT OF CRIMINAL AND CIVIL
PENALTIES FOR ‘TIME CRIME’ IN THE UNITED STATES.

Derek Fincham, University of Aberdeen
CAN INCREASED CRIMINAL PENALTIES EVER SUBSTANTIALLY
IMPACT THE ILLICIT TRADE IN ANTIQUITIES: WHAT THE US CAN
LEARN FROM UK CULTURAL POLICY

Chair and panel leader: Simon MacKenzie, University of Glasgow

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

Portrait of Wally Forfeiture Progressing

Martha Lufkin has news of some movement in the Portrait of Wally civil forfeiture proceeding currently underway in Federal District Court in Manhattan.

[Judgment] on a long-running lawsuit in New York which helped launch a world outcry over Nazi-looted art at museums and prompted many institutions to begin examining their collections for history of Nazi theft, has been postponed to let the US government review new evidence. On 3 June the schedule was suspended on a case brought by the US government in 1999 to seek confiscation of Egon Schiele’s Portrait of Wally from the Leopold Museum in Vienna, under the US National Stolen Property Act. The US says the Leopold knew that the art was stolen by a Nazi in 1939 from its Jewish owner, Lea Bondi. The case, which the parties had asked the court to resolve without a trial, is before the federal district court in Manhattan.

It’s true that the Portrait of Wally dispute has probably caused some museums to re-examine their collections, but its also been pointed to as a risk to art loans and traveling exhibitions. It also puts a lot of power in the hands of prosecutors when they can use a forfeiture proceeding like this, as the government essentially brings suit against the object itself, with the benefit of far lower burdens of proof. Historically, federal prosecutors have intervened on behalf of source nations or claimants when they have potential claims. It’s a very useful thing for claimants to get this kind of assistance in these cases. I’m very interested to know what new information may be coming to light.

My understanding of the facts in this case indicates its a difficult case for the prosecutors to prevail. Hopefully a resolution is pending, as the work has been in storage for nearly a decade now.

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

Why Repatriations Really Happen

With all the talk about the new AAMD guidelines, James Cuno’s arguments, and the like, it may be worth remembering why antiquities get sent back to their country of origin: simple evidence of a crime committed.

The wave of antiquities which were sent back to Italy in the last few years are the direct result of a massively successful criminal investigation which had solid photographic evidence that some of these masterworks (such as the Euphronios Krater) were looted and smuggled. It’s an open question whether individuals at the acquiring museums could have been subject to criminal penalties, however

Lee Rosenbaum appears to have completely missed the point in her attempt to arrange a “ceasefire in the antiquities wars“. She argues the AAMD needs to decide “[w]hat should its member museums do about all those objects they already own that wouldn’t have entered their collections had the new standard been applied at the time of their acquisition?” She advocates a 1983 cutoff, the year Congress passed the Cultural Property Implementation Act which implemented the 1970 UNESCO Convention in the US. This seems to me like a bad idea. Commenters and museums seem concerned with cataloging their collection and worrying about what objects they currently have which might end up being shipped back (or might be subject to a public dispute). Perhaps cataloging these objects might make the institutions or others feel better about what might be at risk, when the real problem was the complete ignorance of the law and good practice at the time these objects were acquired.

Picking a date is not helpful, nor does Rosenbaum offer any reason why Congressional action in 1983 is a watershed moment for museum directors and curators. When she says “It’s only a matter of time before other source nations follow Italy’s lead” she ignores the fact that Italy has been so successful because they had the evidence. Without the proof not other nation will be able to achieve Italy’s success. There are countless other examples of this, the Sevso Treasure being the most prominent.

David Gill seems to understand this, and he shares my skepticism of this 1983 date. He points out that the returns to Italy represent only 1% of the objects in the Geneva Polaroids.

Picking an arbitrary date will not end the controversy, nor will it protect any more antiquities currently at risk. We need a cooperative coordinated approach which rests on a transparent market and loan procedure which works in conjunction with law enforcement and customs officials of many nations.

In Part II, she makes a few seemingly simple suggestions for future repatriations. One in particular is a collossally bad idea: that when objects are returned museums should give a “[d]etailed disclosure of why the museum has relinquish[ed] the objects”. (David Gill thinks this is a good idea as well).

This will never happen, and probably shouldn’t in most cases, because museum directors would potentially be admitting criminal wrongdoing and might open themselves up to criminal prosecution or investigations by State Attorneys General. I could perhaps see an argument for a detailed disclosure when an object which has been in a collection for 50 years or more, but for the short term acquisitions, museum directors would be making a collossal mistake. Would Marion True have been better served about telling Italy how and why objects acquired under her watch were returned to Italy?

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

Cuno and Conforti on KCRW

James Cuno and AAMD President Michael Conforti appeared on KCRW‘s The Politics of Culture a couple of weeks ago to discuss the new guidelines and their views. It’s a short discussion, and not much of it is new but I found it interesting nonetheless. It serves as a good overview of Cuno’s book, and an overview of the new guidelines. Thanks to Kwame Opoku for passing this along.

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

Andrew Wyeth Recovered (LATE UPDATE)

Artdaily is reporting on the recovery of A Bridge, Race Gate by Andrew Wyeth. The work was stolen from a Houston home, along with 22 other works in 2000. The painting was then registered on the ALR database.

The painting was registered on the ALR’s database of lost and stolen artworks and nearly a decade later, the painting emerged at Simpson’s Gallery in the very city from which it was stolen. When a suspicious would-be consignor arrived at his auction house looking to unload the Wyeth, Ray Simpson recognized the quality of the work and the celebrity of its artist. He agreed to take the picture in for an evaluation and suggested that its seller return in a few hours. Mr. Simpson, trusting his instincts and first impressions, then called the New York office of the ALR to request a search of the suspect picture, at which time it was matched by art historian, Erin Culbreth.

The story goes on to say “After significant research and assistance from Nationwide Insurance Company, the ALR was able to determine the owner of the painting and broker a deal for its return. In the end, it was the instinct of Ray Simpson that set the wheels of the recovery in motion.” I’d like to know a lot more about these details, because what generally happens in these cases is the original owner and victim of the theft has probably received an insurance settlement, which usually gives the insurance company title to the work. As such, that’s why the work will be sold at a Christie’s auction in Dec. 2008. The ALR may have been very helpful in this case to the insurance company, and the gallery owner should be commended, however this is still not a happy ending for the original owner, they don’t usually get their insured painting back.

UPDATE:

I’ve been informed that the original owner actually had an opportunity to purchase the work at a substantial discount, but decided against it because she did not need the money. The point I was attempting to make is it is often very difficult for a thief or subsequent possessors to sell a work by such a well-known artist after it has been stolen, which makes it a real shame because often times fully compensating the original owner is difficult if not impossible. That’s not the case here though as the owner had an opportunity to purchase the work and could have then auctioned the work and made a substantial profit perhaps.

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