Author: Derek Fincham

The Limited Effectiveness of the Art Loss Register


Georgina Adam has a very interesting article in the Art Newspaper on the dispute between Michael Marks and Aziz Kurtha over two works by Indian artist Francis Newton Souza. Pictured here is an unrelated work by Souza, Still Life, which was purchased in 1967 for a mere 50 pounds but was sold recently for 173,000 pounds. This increase in value now makes it more profitable for individual’s to bring claims for works by Souza which may have been stolen in the past.

As Adam states:

Mr Marks says he bought the two paintings, Head of a Portuguese Navigator, 1961, and Chalice with Host, 1953, in good faith in 2006. He had conducted a check against the Art Loss Register’s (ALR) stolen art database and was not alerted that there were doubts about the works’ ownership despite the fact that they had been registered with the ALR as missing.

Dr Kurtha, who owns a collection of over 200 works by Souza, said that, at some point in the 1990s, some of these were stolen…

The two paintings in the present dispute were registered by Dr Kurtha as missing with the ALR in 2005… Mr Marks, who was then unknown to the ALR, telephoned the organisation to check the provenance of the paintings and paid the ALR search fee with a credit card. Julian Radcliffe, ALR’s chairman, admitted in court that he deliberately misled Mr Marks by telling him there was no claim on the Souzas. Mr Radcliffe said that it was sometimes necessary to mislead people who make enquiries about the database in order to establish identity and bank details, which he did in this case; Dr Kurtha then took Mr Marks to court to recover the paintings.

Speaking to The Art Newspaper, Milton Silverman, the solicitor for Mr Marks, described this as a “potentially nightmare scenario for a dealer. He could buy works of art, certain in his own mind that they are free of any problems, only to find himself landed with a dispute on their title.” Mr Radcliffe told us that the circumstances were exceptional in that Mr Marks was unknown to them. ALR would not act in the same way with a known dealer, collector or auction house, he says.

The emphasis is mine. Marks now has a potential claim against whoever he purchased the works from in 2006, whoever that may be. One would assume such a claim would probably still leave Marks in a difficult position, as works by Souza have been increasing dramatically in value in recent years.

The priority for the ALR would seem to be to return paintings to their original owners, but not necessarily to guarantee the legitimacy of current transactions, as indicated by Radcliffe’s admission that the ALR misleads some. Add to that the fact that the ALR sometimes takes commissions for facilitating the return of works of art to original owners, and we are left with what appears to be a troubling state of affairs.

As an aside, I’m not sure what the ALR guarantees when one does ask for a search of the ALR, and I’d imagine they have done their best to disclaim liability in this situation, but I wonder if Marks may have some kind of claim against the ALR itself. Though in this case the paintings have been returned to their original owner, I wonder if perhaps this kind of misleading information would give dealers pause when they are considering whether to consult the database.

The ALR is the most widely-used and cited cultural property database, however it makes no claims to being a cure-all for the problems with the cultural property trade. Though the ALR is in some cases useful, it should not be mistaken for a check on cultural property transactions generally, and it should be pointed out that Julian Radcliffe and the ALR are quick to point out that they do not attempt to police the whole market. What they do, they do well, but there are limitations to its effectiveness. David Gill and Tom Flynn have both pointed out the dubious usefulness of the ALR with respect to recently unearthed antiquities and export restrictions. As the ALR counsel, Christopher A. Marinello has recently indicated via the Museum Security Newwork, “the database does not contain information on illegally exported artefacts unless they have been reported to us as stolen.”

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

The Difficulty of Nazi Spoliation Research

Camille Pissarro’s Le Quai Malaquais, Printemps (pictured), was owned by a Jewish book publisher in 1938 in Austria. When he fled Austria, the work was lost. A history professor, Jonathan Petropoulos has been involved in attempts to return the works to the descendants.

Last week, Elise Viebeck a student reporter at Claremont McKenna College reported that Petropoulos will resign as director of the Study of the Holocaust, Genocide and Human Rights.

Yesterday Mike Boehm a LA Times Staff Writer picked up the story as well.

The descendant, Gisela Bermann Fischer, has accused Petropoulos of trying to extort 18% of the work’s value as payment for “facilitating” its return. It seems Petropoulos hoped to end controversy and spare the Holocaust center and Claremont McKenna College any more distraction. It seems his involvement may be more than a mere “distraction” as Swiss authorities are holding the painting as evidence in an ongoing German investigation into possible extortion by Petropoulos and a German art dealer, Peter Griebert. The LA Times Story has the details according to Petropoulos:

Petropoulos said he got involved at the behest of Fischer and the Art Loss Register, a London-based company that keeps a database of stolen art and in some cases helps to get it back.

In December 2006, he said, he met in Munich with Griebert, whom he knew as an art-business associate of Lohse. Griebert, the professor said, was now apparently angry with the ex-Nazi. Petropoulos said Griebert told him about papers he’d found showing that Lohse had sold the Pissarro in 1957 to a man who bequeathed it to a foundation in Lichtenstein.

Working for what he said was his customary consultant’s fee of $350 an hour plus expenses, Petropoulos said he reported the news to his client, the Art Loss Register, which was then negotiating a contract with Fischer to recover the painting. The professor said he did more sleuthing on his own, with a view to recovering the Pissarro and gathering material for a book.

In late January 2007, he said, he viewed, authenticated and photographed the painting in the conference room of a Zurich bank. He also said he dined with Fischer and Griebert later that day and that they reached a deal: Fischer, who’d had a falling out with the Art Loss Register, would sell the Pissarro at Christie’s in New York and Griebert would get his customary 10% art dealer’s fee.

Both Julian Radcliffe and prominent restitution attorney E. Randol Schoenberg are quoted as saying Petropolous got himself too involved in the negotiations to return the work, rather than simply do the research for the fee which had been agreed upon. The seems to have been a miscommunication at some point, and the “champagne” agreement that Petropolous thought he was entitled to rely upon was it seems not reduced to writing, and in return Petropolous refused perhaps to continue to bring the parties together.

The ultimate issue I suppose is what kind of compensation these kinds of experts can and should claim. The lawyers involved, and the Art Loss Register all take a healthy commission; and Petropolous certainly seems to have been amply compensated for his time at $350/hour. Though there may be powerful historical, legal and ethical arguments compelling the restitution of these Nazi spoliated works, we should perhaps bear in mind that it is the very large sums of money they fetch at acution which is driving these restitution efforts.

Related Posts:

Dividing a Nazi Art Dealer’s Collection

Compensation for Restitution Experts

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

Antiquities Recovered in Rome


Italian authorities announced on Friday they had recovered over a dozen antiquities hidden in a boat garage near Fiumicino, which is very near Rome’s Leonardo da Vinci airport. The AP report indicated:

The most spectacular find was a marble head of Lucius Verus, a portrait of the emperor who co-ruled Rome from 161 until his death in 169 alongside his adoptive brother, Marcus Aurelius.

The bearded visage of the emperor is believed to have been secretly dug out at a site in the Naples area and was probably destined for the international market, said Capt. Massimo Rossi, of a special police unit that hunts down archaeological thieves.

No arrests have been made, but 13 people are being investigated for allegedly trafficking in antiquities, Rossi said.

The announcement also indicated another recovery:

In a separate operation, Italy recovered a marble head depicting Faustina, the wife of the Emperor Antoninus Pius, the predecessor and adoptive father of Lucius Verus and Marcus Aurelius, police said in a statement.

Faustina’s portrait had been stolen in 1961 from an ancient theater in Minturno, south of Rome, and made its way to an American collector. The statue was returned by the collector through U.S. authorities after he realized it had been looted, Rossi said.

This strikes me as the more interesting announcement. It strikes me as odd, and is more indication of the means Italy has used to recover objects. They really have capitalized on this tide of repatriation from North America, and have secured a number of secondary returns, without having to resort to costly international litigation. The legal claims for this portrait, apparently illegally excavated in 1961, would have probably been expensive and time-consuming, and likely quit difficult. It is interesting the success Italy has had by eschewing litigation, and pointing out (rightly so) of the damage done to contextual information.

It seems a bit odd though that we do not learn of the collector, how she acquired the object, or who the dealer was who sold it. At a certain point, it may be worth asking the Italian authorities where all these recovered objects are going to be studied or displayed, and if these “repatriation exhibitions” will serve to decrease illegal excavation and export, or merely serve to display some drugs on the table. Perhaps this display does give heart to the authorities and heritage advocates, however these gains also provide other political benefits; and may provide an distorted image of the effectiveness of Italian and international efforts. After all, even well-known sites are being damaged in the heart of Rome.

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

Baghdad Museum: Five Years On

Without question the invasion of Iraq has produced tremendous theft from Museums, as well as illegal excavation. It has been five years since the Iraqi National Museum was ransacked. At the time, reports were too-quick to judge the damage, and many outlets reported that as many as 170,000 objects had been taken. As it turns out, present estimates indicate that perhaps 15,000 objects were taken, and of that number a still-disheartening half are missing. Plus, the museum itself still seems a long way from opening its doors.

Last week, at the National Press Club in Washington D.C. the University of Chicago’s Cultural Policy Center held a panel discussion, “Antiquities Under Siege,” to examine the ongoing situation in Iraq. The event is in conjunction with the publication of Antiquities Under Siege: Cultural Heritage Protection after the Iraq War, edited by Lawrence Rothfield. I haven’t yet had a chance to read this, but the work aims to look at went went wrong with the protection of Iraqi heritage, and what can be done better in the future. Also last week, there was an exhibition called “Catastrophe!” at the University of Chicago’s Oriental Institute Museum.

Setting aside the issue of whether the invasion was even an acceptable course of action, it seems to me a straightforward problem arose, which was entirely predictable. Looting of art and cultural sites is an inevitable outflow of armed conflict, and where the US and coalition forces did not have nearly enough troops to accomplish what they had intended, looting of all kinds occurred.

Below is a riveting interview with a couple of journalists, John Burns and Dexter Filkins of the New York Times. If you pick up the interview at just before the 40-minute mark, Filkins is describing the theft of Arabian horses on April 9, 2003 from the Iraqi Olympic headquarters right in front of American marines. There were only 7,000 troops policing an area where Saddam had had 250,000.

There’s another very interesting article in the Sunday Times by John Curtis of the British Museum who had conducted digs in Iraq in the past, and who flew to Baghdad on April 22 with reporters from the BBC:

Files, papers, index cards, photographs, films and computer software had all been swept off the shelves and onto the floor. It seemed that the intention had been to start bonfires, but fortunately this did not happen. All the safes in the building had been broken open. It was also clear that the intruders had broken into the storerooms, but at this stage nobody had been inside to assess the extent of the losses. There has been much speculation as to whether the looting that took place was spontaneous or organised – and who, precisely, was behind it. Theories have ranged from the involvement of Ba’athist loyalists, determined to cause maximum civilian unrest, to the connivance of international antique-dealers, requesting items to be stolen to order. Five years on, these questions remain unanswered. The whereabouts of looted material is also hotly disputed. There is clearly a black market in Iraqi antiquities, but where the pieces have ended up is not yet known.

The Baghdad museum suffered theft which has been well-documented, but a number of other sites have been damaged at the hands of coalition forces and looters, including the looting of a museum in Mosul, and the damage at Babylon. Coalition forces are finally now being educated and informed, but there is a continuous problem of widespread looting in more remote regions.

I think it is great that more attention is being paid to Iraqi Heritage at the 5-year anniversary. However this looting and theft will continue into the foreseeable future. Policing of sites is important, however that seems incredibly difficult given the security situation in the country. Perhaps we could continue to make sure the appropriate penalties are in place for buying and selling these objects as both the US and the UK have done; but the looting appears to be ongoing. Buyers all over the world seem inclined to buy these objects, and this demand will likely continue to make it profitable to steal objects and illegally excavate sites.

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

Friday Reading Recommendations

A few noteworthy articles have been published by The Fordham Journal of International Law (volume 31) via a symposium on cultural property. Many thanks to Gary Nurkin for passing these along:

Copyright (c) 2008 Fordham University School of Law Fordham International Law Journal, February, 2008, 31 Fordham Int’l L.J. 684, 2207 words, SYMPOSIUM: PERSPECTIVES ON CULTURAL PROPERTY & THE LAW: INTRODUCTION: NEW DIMENSIONS OF CULTURAL PROPERTY, Susan Scafidi*

Copyright (c) 2008 Fordham University School of Law
Fordham International Law Journal, February, 2008, 31 Fordham Int’l L.J. 690, 14197 words, ESSAY: NEW WAYS OF THINKING ABOUT CULTURAL PROPERTY: A CRITICAL APPRAISAL OF THE ANTIQUITIES TRADE DEBATES, Alexander A. Bauer*

Copyright (c) 2008 Fordham University School of Law Fordham International Law Journal, February, 2008, 31 Fordham Int’l L.J. 725, 6526 words, ESSAY: THIEVES OF BAGHDAD: COMBATING GLOBAL TRAFFIC IN STOLEN IRAQI ANTIQUITIES, Colonel Matthew Bogdanos*

Copyright (c) 2008 Fordham University School of Law Fordham International Law Journal, February, 2008, 31 Fordham Int’l L.J. 741, 16383 words, ESSAY: REPATRIATION OF THE KOHINOOR DIAMOND: EXPANDING THE LEGAL PARADIGM FOR CULTURAL HERITAGE, Saby Ghoshray*

Copyright (c) 2008 Fordham University School of Law Fordham International Law Journal, February, 2008, 31 Fordham Int’l L.J. 781, 15892 words, ARTICLE: THE FOREIGN SOVEREIGN IMMUNITIES ACT: USING A “SHIELD” STATUTE AS A “SWORD” FOR OBTAINING FEDERAL JURISDICTION IN ART AND ANTIQUITIES CASES, Lauren Fielder Redman*

There are no links on the journal’s website yet, and they don’t appear to be on SSRN so the only way to get these at the moment is probably via lexis/westlaw/hein online.

Another recommendation is the work of a fellow arts blogger who I’ve rediscovered recently when he started blogging again last autumn: Tom Flynn an art historian writes at Art Knows. Highly recommended.

Finally, I’ve added a few new bells and whistles to the blog at the left. One is a search box, which allows you to search this blog, the blogs I recommend, and the sites I’ve linked to. I’m still figuring out how to maximize it, but this has already really proved useful to me, hopefully others will as well.

Second, blogger has a great new blog list feature; I’ve included a list of blogs which I read often, with the title of the most recent post.

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

Strong Criticism of the Artist Resale Right in the UK (UPDATE)


There exist strong differences of opinion with respect to the question of whether the sale of contemporary art–such Damien Hirst’s next “pickled shark”, or For the love of God –should be subject to a royalty scheme which takes a piece of the sale price and gives it back to contemporary artists. For two years now, the UK has implemented such a royalty scheme, commonly known as “droite de suite”.

A report by Toby Froschauer, sponsored by the Antiques Trade Gazette has strongly criticized the Artists’ Resale Right (ARR). The report indicates the ARR has “caused serious problems since its introduction in the UK two years ago.” The ARR pays royalties to artists on a sliding scale, and was dictated by an EU directive. Directive 2001/84/EC of the European Parliament was adopted in 2001. The ARR in the UK was implemented in the UK in February 2006 by SI 2006 No. 346.

Melanie Gerlis of the Art Newspaper explained the royalty scheme and Froschauers’s findings:

The royalty, which is paid to artists on a sliding scale of up to 4% of their works resold above E1,000 ($1,500; and with a E12,500 threshold), was found to have benefited just 1,004 EU artists (of which 568 were British) in the first 18 months of implementation. The top 20 artists—including Damien Hirst, David Hockney, Peter Doig and Banksy—were found to have received 40% of the total amount collected (£3.8m; $7.6m) in the first 18 months since ARR’s introduction. The bottom 30% received payments of less than £100 ($200), the report said. In his foreword to the report, Antiques Trade Gazette editor Ivan Macquisten, said that the ARR “singularly fails to benefit the very people it was set up to help”.

The Design and Artists Copyright Society (Dacs) is responsible for distributing the royalty payments to artists. The art market in the UK has claimed that the ARR puts it at a disadvantage when compared with other art markets without these so-called droite de suite arrangements. Dacs has responded to this study by saying the interviews with dealers and auctioneers are “not an acceptable scientific methodology”, and also that they are preparing data to send to the Antiques Trade Gazette.

A different survey by Maven Research, commissioned by Dacs last year found “87% of art market professionals say that the resale right has not damaged their business.” That would seem to comport with another recent study conducted by Katy Graddy, Noah Horowitz and Stefan Szymanski, “A study into the effect on the UK art market of the introduction of the artist’s resale right“. The study, sponsored by the UK Intellectual Property Office found “there is no evidence that ARR has diverted business away from the UK, where the size of the art market has grown as fast, if not faster, than the art market in jurisdictions where ARR is not currently payable.” It also found that there have been difficulties in establishing the nationalities of artists, and a “significant minority of art market professionals, including the major auction houses, deem the administration of ARR to be intrusive and burdensome”.

As an aside, one wonders if more of these royalty schemes might be implemented in the future, and whether they will expand. It strikes me that such a royalty scheme for antiquities might be a potential model for reinvesting the proceeds of antiquities transactions into source nations; though given the controversy surrounding the program with respect to contemporary art, the likelihood of such a change may be remote.

UPDATE:

Jamie Grace, who has done some research of his own on this topic has forwarded me a letter he wrote to the Art Newspaper with respect to their article:

Dear Sir/Madam,

I am an associate lecturer at the University of Derby, and I myself am conducting research into the resale right as part of a PhD programme over the next three years. Firstly, I must highlight how simply expected Froschauer’s findings are – the 2006 legislation is experiencing predictable teething problems. These are problems that need to be resolved, but a campaign for better understanding of the resale right itself might allow DACS and other organisations to better serve the interests of commercial artists.

Allow me to give one example:

Toby Froschauer has been attributed as reporting, by the ATG, that galleries are discouraged from promoting younger artists’ work as a result of the resale right reducing their margins – and instead are relying more so on established artists, whose prestige allows those galleries to preserve more of their profit.

I believe this is an incorrect assumption on the part of Froschauer; or perhaps a misinterpretation of the legislation guiding the resale right by the galleries concerned.

The 2006 Regulations quite clearly state (Regulation 12(4)) that no royalty be paid by a gallery or other art market professional on an original work sold within three years of direct purchase from the creator his or herself; and where the later sale by the gallery etc. does not exceed 10,000 Euros.

Clearly this exemption leaves a great deal of scope for the promotion of the interests of younger, up-and-coming or lesser-known artists.

Kind regards,

Jamie Grace.

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

Stripping Trajan’s Forum

Trajan’s forum was built by the order of its namesake after the conquest (and the pillaging which ensued) of Dacia, which ruled parts of present day Romania and Moldova. The forum opened in 112 AD, and Trajan’s column was inaugurated a year later. Parts of the market and Trajan’s column remain.

However yesterday archaeologists in Rome said the Forum had been stripped of all the statue fragments and amphorae shards. An Italian reporter also carried away boxes of ancient artifacts without being challenged. Malcolm Moore has more in today’s Telegraph:

An archaeologist working at the site, who asked not to be named, said: “Everything has been taken from Trajan’s Forum. The close-circuit television cameras are pointless, and the gates are practically non-existent. Even a child could climb over them.

“The treasures of ancient Rome are very vulnerable, but there are lots of gaps in the security system of one of the most important archaeological areas in the world.” He added that he had often seen people in restricted areas, collecting keepsakes.

The newspaper blamed the 20 million tourists who pass through the city each year for the looting. “Who knows how many of these small fragments now adorn living rooms all over the world?” it said…

“This is an open-air museum,” said Eugenio La Rocca, the head of Rome’s cultural heritage authority.

“You have to bear in mind that we cannot cover every angle, especially since restoration work is going on. We cannot put bunkers of guards everywhere. If we did the whole of Rome would be a giant bunker.

“However, the area is closed off and the television monitoring system is connected to a cabin staffed by guards. It is also connected to the police.”

Recently the Italian authorities announced the recovery of 1.000 objects from Trajan’s Villa which had been stolen in 2002. Even policing known sites, in the middle of a city is difficult. The protest really points out the difficulty in this kind of heritage tourism. It brings tremendous economic benefits, but does have negative consequence, including disturbing sensitive areas, and also this kind of petty looting and taking. I’m not sure if the answer to this problem is more security, though that would certainly help. Perhaps what is needed is more public education about why this kind of taking is destructive, and damages these ancient monuments.

I wonder if perhaps these protests are too quick to blame foreign tourists. It seems possible Italians may want a piece of the forum as well.

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

100 Antiquities Returned to Mexico

There is a report in the Dallas Morning news on the repatriation of 100 pre-Columbian objects to Mexico, many of which were of museum-quality.

A treasure-trove of about 100 artifacts, believed to be pre-Columbian, is on its way to Mexico, its presumed home, U.S. customs agents and Mexican diplomats said Tuesday.

Among the antiquities is a stone mask of a broad-featured man, which is believed to come from the Olmec civilization, the oldest in the Americas, and it dates as far back as 1000 BC, experts said. Other items include figurines in jadeite, precious stones symbolically linked to fertility for the people of ancient Mesoamerica and once valued more than gold.

“We’re so very happy about the return of these pieces,” said Eduardo Rea Falcón, the consul in charge for Mexico’s diplomatic post in Dallas. “It is unfortunate that through looting and robbing, these items fell into private hands.”

One of the most stunning pieces is the mask, Mr. Rea said.

But when the experts at Mexico’s National Institute for Anthropology and History unpack the goods, they may unravel far more significant mysteries, as authentication deepens, he said. “They may find something of incalculable value,” Mr. Rea said.

Equally mysterious is the trajectory of the smuggled artifacts into the Dallas vaults of U.S. Customs and Border Protection.

The goods represent several seizures in Texas and New Mexico, including an initial seizure in 2001, said Carlos Fontanez, a CBP spokesman in the Houston office.

But Mr. Fontanez gave few details to the whodunit tale. No one has been charged with smuggling the goods into the U.S., he said, though it is illegal to traffic in antiquities under U.S. law.

It’s an odd story, as there is no indication of how or under what circumstances these objects were seized. Dealing and importing these objects is of course illegal; one wonders why there was no arrest, and also why it took so long to return them to Mexico. One possible answer is the objects were being held for possible prosecution or criminal charges.

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

Yours Truly on the Americana Show

SHMU is a community media organization, and it operates a volunteer radio station here in Aberdeen. It reminds me in many ways of some of the very best things about College and community radio back in the US.

I don’t often write about it here, but one of the things that got me started researching cultural property issues were my early interest in copyright law in law school. It’s perhaps a tenuous link, but the animating ideas behind a lot of my ideas on cultural property law and heritage are directly related to what I think about excessive copyright laws and other restrictions on how we consume music and visual works in digital form. No matter how easy it may become to find music in the future (either legally, illegally or quasi-legally) I think music still needs to be curated.

As such I was very pleased to be a guest on my good friend Dougie Thomson’s Americana show last weekend. The man has an incredible knowledge of some great American tunes; and he was kind enough to let me bring in some of my favorites. The show will be archived for a few days if any care to listen in. I had a great time, though I think I need quite a bit of work on my DJ skills. Hopefully I was at least charmingly inept. If nothing else the contrast between my neutral midwest accent and Dougie’s Scottish accent should be worth a listen. Those interested in the Slovenian sensation I mention on the show can learn about him here.

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