Author: Derek Fincham

Two Picasso Works Stolen in Switzerland


Two works by Pablo Picasso, Verre et pichet (pictured here), and Tete de cheval were stolen from the Seedamm-Kulturzentrum in Pfaeffikon just outside Zurich Switzerland.

The thieves set of a security alarm when they were leaving, and police are speculating that the thieves may have hidden in the museum until after closing, and then broke out with the works.

Both the Telegraph and the BBC are pointing out this morning that works by Picasso are frequently stolen. One of the now-recovered works from Sao Paolo was a Picasso, and police in August recovered works stolen from the artist’s granddaughter’s home in Paris.

He’s a popular artist to steal certainly, but these works will never be sold on the open market, they are too widely known. I think a more interesting issue is security when these works are loaned out to regional museums like this one, which was the problem with works stolen in Nice last August. I think there are a lot of benefits to loaning works, and sharing collections; however there are trade-offs. Often these smaller regional museums have less-sophisticated security systems given their smaller budgets and collections.

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

Stolen Egyptian Antiquities Arrest


Edward Earle Johnson, aka “Dutch” has been arrested in Alabama and charged in Manhattan for wire fraud and selling stolen goods in connection with a 2002 theft from the Ma’adi Museum near Cairo in Egypt. Johnson is an active duty Chief Warrant Officer with the US Army, serving as a helicopter pilot.

In September of 2002 370 “pre-dynastic artifacts” were stolen from the museum, some dating to 3000 BC. Around 80 of those objects have been recovered by US authorities.

ABC News has a good overview of the story, with pictures, and has helpfully posted the unsealed complaint, sworn out by Senior Special Agent James McAndrew of the Homeland Security Department, specifically the Immigration and Customs Enforcement. The ICE press release announcing the arrest yesterday is here.

An interesting question to ask here is whether Johnson used military ships or aircraft to somehow smuggle these objects back into the United States. That would be particularly troubling. That’s just speculation on my part at this point, but it seems like a potential way for him to get those object into the US.

It is also important to note I think that this arrest stems from a theft from a museum. These objects were excavated in an archaeological dig in the 1920’s-30’s, and had been in a state collection. One interesting aspect of the case which may come to light later is how McAndrew and the ICE discovered these thefts. Did a scrupulous dealer come forward? Did someone notice these objects for sale? Were these objects cataloged and documented by the Egyptian culture ministry?

It can be extremely difficult to track stolen antiquities generally even where they have been excavated and on display, however the problems grow increasingly acute when we consider looted and illegally excavated objects, which are new to the market.

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

US Criminal Penalties and Antiquities


To a casual observer, the recent searches in California would perhaps indicate that American criminal prosecutions and investigations can have a substantial impact on the illicit trade in antiquities. I certainly think they are a welcome sign, and hope that more of them will be supported by investigators and prosecutors. However, that investigation took five years to materialize, and there is still no indication if there will be any arrests. It certainly seems likely, but even this dramatic show of force and investigative might will not, I think, end or even put a substantial dent in the illicit trade. The current regulatory framework in both nations of origin and in market states puts far too much pressure on customs agents, prosecutors, and investigators.

At least that’s what I argue in my now-available article in the Cardozo Arts and Entertainment Law Journal, WHY U.S. FEDERAL CRIMINAL PENALTIES FOR DEALING IN ILLICIT CULTURAL PROPERTY ARE INEFFECTIVE, AND A PRAGMATIC ALTERNATIVE. 25 Cardozo Arts & Ent. L. J. 597-695 (2007)

The pragmatic alternative is the approach in England and Wales with its Treasure Act, Portable Antiquities Scheme, and limited export restrictions. This legal framework and attendant cultural policy is unique, in that it effectively incentivizes obeying the relevant cultural heritage laws. It adopts a carrot and stick approach, while many nations use too much of the stick. I argue that the criminal penalties can be brought to bear in cases of clear and egregious violations, or where there are a great deal of investigative resources available. Such was the case in the California searches, in which an undercover agent posed as a buyer. However, it took five years of investigations, and it’s still not clear what the result of these investigations are.

The image above is an Egyptian antiquity which Jonathan Tokeley-Parry bought and sold to Frederick Schultz, who later sold it for $1.2 million in 1993. It’s an image of 18th Dynasty pharaoh Amenhotep III (ca. 1403-1354 B.C.). Tokeley dipped the sculpture in clear plastic and painted it to resemble a cheap tourist souvenir. I discuss prosecutions of both men, which took place in England and the US respectively in the article. A lot of articles discuss the Schultz prosecution, but surprisingly no articles have discussed in any real detail the corresponding prosecution of Tokeley-Parry in England, which I think is key to understanding the international nature of the illicit trade, and the kind of complex multinational criminal investigation which is difficult where criminal investigation and prosecution are time-consuming and expensive. Not to mention the substantial pressures of other and often more-pressing matters such as drugs, violent crime, terrorism and the like.

I would be quite eager to hear any comments or reactions to the piece at derek.fincham “@” gmail.com.

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

The PAS

This is the “Staffordshire Pan”, a copper alloy “patera” which is decorated with enameled scrollwork. It was found in 2003, and reported to the Portable Antiquities Scheme, and later acquired by the British Museum, Tullie House, and the Potteries Museum. You can read more about the patera at the PAS website. For those interested in the PAS, I highly recommend their blog.

Below is an interview conducted by Chris Vallance of Radio 4 with Roger Bland, the Director of the PAS, and Roy Clare of the Museums, Libraries and Archives Council which currently oversees the program. The object Bland discusses is none other than this very patera. The PAS has received a great deal of attention of late, because it is in jeopardy of funding cuts, as the MLA is itself absorbing a 25% budget decrease this year. The PAS is a remarkably successful program, and as Bland notes in the interview below, utterly unique.

On a related note, there will likely be light posting this week as I will be headed to sunny Los Angeles to discuss some of the policy implications of the PAS. Though it is a remarkable program, and very successful, I’m not sure it is necessarily a solution to looting of antiquities in all source nations, especially in the developing world. I hope to post some more detailed thoughts on that when I return early next week.

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

More on the California Searches


“I have rarely seen Federal agents come out in such force as they did today”.

That’s what LA Times staff writer Jason Felch remarked yesterday on KCRW. He also has a very nice overview of the investigation so far, with links to the search warrants in today’s edition of the LA Times.

The massive search yesterday of the LA County Museum of Art, along with Pasadena’s Pacific Asia Museum, the Bowers Museum in Santa Ana and the Mingei Museum in San Diego has yet to result in any arrests or indictments. However it seems to be just a matter of time. It goes without saying that when Federal agencies and prosecutors get involved, they seldom lose.

Much of the allegations were established by the undercover work of a National Parks Service employee. Based on the search warrants, it seems the investigation started in response to looting of Native American sites, and quickly expanded.

Robert Olson, who spends a lot of time in southeast Asia is known in the affidavits as “the smuggler”. The other main target appears to be Jonathan Markell, of the Silk Roads Gallery.

This is a powerful image which appeared in the LA Times today, with agents from the IRS, Immigration and Customs Enforcement, and the National Park Service searching prominent California art institutions. Even if this search does not amount to a criminal prosecution, it sends a powerful message to the antiquities trade, including museums that purchase these objects, that federal agents are watching, and the trade needs to quickly and efficiently change the way it does business.

I think we can take a few things away from this investigation. First, the alleged objects were of limited value. These aren’t comparable to the Euphronios Krater for example. They are smaller objects, but were bought and sold in greater quantities. Objects were allegedly illegally excavated from Thailand (most from the Ban Chiang site), China, Myanmar and Native American sites in the US.

Second, I think this is compelling evidence of a systemic problem with the antiquities trade. Many have discussed these problems before. The lack of provenance, and the ease with which smugglers can elude customs agents makes policing the trade difficult. However, it would seem now that those who would buy and sell objects can no longer afford to cut corners, and must now conduct far more detailed investigations into how objects came to market.

Finally, I think this investigation reminds us that Roman and Greek objects are not the only classes of antiquities that are smuggled, despite the attention the recent returns from US institutions have indicated. Clearly, the question now is how many indictments or convictions will ensue, and how will the individual art institutions and the relevant industry codes of practice evolve to prevent this kind of criminal activity in the future.

Other Links:

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

Breaking News: Major Antiquities Investigation

In what may result in the next large-scale antiquities smuggling prosecution in the United States, federal agents today served search warrants on four California museums and an art gallery. Warrants were served on the Los Angeles County Museum of Art, Pasadena’s Pacific Asia Museum, the Bowers Museum in Santa Ana and the Mingei International Museum in San Diego. Jason Felch has the story in the LA Times. The Silk Roads Gallery is apparently a major focus of the five-year investigation.

This could be the first major antiquities prosecution in the United States since the conviction of antiquities dealer Fred Schultz. It goes without saying though that this kind of massive investigation is unprecedented. The warrants claim Southeast Asian and Native American artifacts were looted and smuggled into local museums.

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

Pre-Empting a Holocaust Art Claim


In the Boston Globe Geoff Edgers has the details of a dispute brought by the MFA Boston against an Austrian woman who claims an interest in this work by Oskar Kokoschka, Two Nudes (Lovers) 1913. It’s a declaratory judgment action, in which the museum is asking the court to declare it the owner, rather than wait for the claimant to bring suit.

The potential claimant, Claudia Seger-Thomschitz, claims the painting was sold by Oskar Reichel a physician and gallery owner in Austria. In its complaint, the MFA Boston argued the “painting was never confiscated by the Nazis, was never sold by force as a result of Nazi persecution, and was not otherwise taken”.

After the work was sold in 1939, the work was sent to Paris; in 1945 it was sold to a New York dealer for $1,500; Sarah Blodgett purchased the work in the 1940s; she gave the work to the MFA Boston in 1972.

Nobody would dispute the persecution the Reichel’s faced before and after the sale of the work:

The Nazis occupied Vienna in early 1938. Over the next year, Reichel was forced to sell his gallery and close his medical practice, they said. Two of his sons left Austria. A third son, Max, died in a concentration camp. Reichel’s wife, Malvine, was deported to a camp during the war but survived. In 1943, Reichel died in Vienna of natural causes.

However, does that injustice give the claimant an interest in the painting, which has been owned by the MFA Boston since 1972? The museum says no. It’s similar in nature to a claim brought by the Toledo Museum of Art last year, which I discussed earlier.

In two earlier cases the institutions initiated their legal actions in quiet title actions. In this way the institutions can choose the forum and the relevant law which will apply to the action. This is a new strategy for art museums. Professor Jennifer Anglim Kreder has a short but informative article on the practice in an October 2007 issue of the Art, Cultural Institutions and Heritage Law Committee Newsletter, available on her SSRN page. She also details an action by the Detroit Institute of Art against the same heirs asserting a claim against the Toledo Museum of Art.

This strategy actually discourages claimants from coming forward and seeking compromise. It’s been noted many times that these kinds of disputes are between two relative innocents. In such cases, there may often be room for reasonable compromise such as initial payments or title-sharing agreements of some kind. However if a claimant shows her hand early, she now will risk the possibility that an institution will quickly seek itself declared the owner and preclude any claim.

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

St. Ninian’s Isle Treasure

Shetlandtoday is reporting that the MSP for the Highlands and Islands and member of the Scottish National Party Dave Thompson has welcomed Alex Salmond’s calls for the return of the Lewis Chessmen as a positive indication that the St. Ninian’s Isle treasure will be returned to St. Ninian’s Isle. Thompson wrote in a letter to the Scottish culture minister and the director of the National Museums of Scotland:

I am pleased the First Minister has decided to raise the matter of the Lewis Chessmen. I think it opens up an interesting debate on how we support our local museums. For the past two months I have been acting on behalf of the people of Shetland to try and secure the St Ninian’s Isle Treasure back to its rightful home. I firmly believe that artefacts of local significance should be kept locally. It undoubtedly boosts local tourism and is beneficial to the community as a whole, both historically and culturally.

As I argued last week, I’m not sure what ethical basis Salmond can make for the Lewis Chessmen. They were acquired legally and rightfully, and they were in fact almost certainly created in Norway. Norway would seem to have a better ethical and cultural claim to the objects than would Scotland. If Salmond does want the Chessmen returned, that precedent could be used to repatriate a great deal of objects currently on display at the National Museum of Scotland and elsewhere. It might also commit him to abandon the notion of a “Museum of Scotland”.

First, a bit of background of the St. Ninian’s Isle treasure. The objects were discovered by a University of Aberdeen archaeologist in 1958. The treasure is comprised of 28 silver objects and a porpoise bone. The resulting dispute Lord Advocate v. University of Aberdeen and another, 1963 S.C. 533, saw the University unsuccessfully challenge the notion that the found objects should fall to the Crown. St. Ninian’s Isle is a small body of land a short distance from Shetland. In 1955 a University of Aberdeen team of researchers began excavation work aimed at finding the ruins of a medieval church. In July of 1958 the 8th century Celtic hoard was discovered. The Lord Advocate then brought an action seeking a declaration that the find belonged to the Crown, while the University and the landowner contested the claim.

In the ensuing legal dispute two arguments were advanced by the University. First, it was argued the feudal common law rule had no application in Shetland and Orkney where land was “udal”, and not subject to the feudal rules, as a result of their acquisition in the 15th century from Denmark and Norway. However the trial judge Lord Hunter held

[A]lthough treasures found in the ground are inter regalia, in the sense of things which the law appropriates to princes and states, and exempts from private use, the right to treasure is a right belonging to the sovereign by virtue of his royal prerogative and as head of the national community rather than by virtue of his position as universal landlord.

This argument was supported on appeal. The second argument urged the court to recognize rights in udal lands as superior to those of the crown. In advancing the argument the University compared treasure trove to undiscovered minerals. However this reasoning proved unsuccessful as well, as “plenary ownership of land carries with it everything a caelo usque ad centrum, including even all moveable articles in or on the land.” As such the ordinary laws of Scotland would apply and objects qualifying as treasure under Scots law “must be precious; they must be hidden in the ground; and there must be no proof of their property or reasonable presumption of their former ownership.”

The case presented interesting legal questions for Scots property law, but from a cultural property policy perspective, the excavation, study and display was a complete success. The site was professionally excavated, the archaeological context was recorded, and the treasure is now on public display in Scotland. The question is, does Shetland have a claim for the objects? In my view that’s a question of allocation domestically. Scotland, which is roughly the size of South Carolina, has a surprising degree of local and regional pride which can sometimes turn heated.

I think it may be worth asking whether the St. Ninian’s treasure should be returned to Shetland, however that would require Salmond and the SNP to formulate a cohesive cultural policy. At present it would appear if he is merely making statements, which are often misleading, to depict Scotland as a continuing victim of English imperial aggression. If that happens though, there will be trade-offs. Researchers may have more difficulty studying objects as they may not have access to objects from other cultures which have been returned, and creating a safe and secure display facility for all of these various objects will certainly be an expensive undertaking. These are important questions to be sure, but I haven’t seen a serious analysis of these issues despite these calls for return.

(Hat tip: Archaeology in Europe).


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

St. Ninian’s Isle Treasure

Shetlandtoday is reporting that the MSP for the Highlands and Islands and member of the Scottish National Party Dave Thompson has welcomed Alex Salmond’s calls for the return of the Lewis Chessmen as a positive indication that the St. Ninian’s Isle treasure will be returned to St. Ninian’s Isle. Thompson wrote in a letter to the Scottish culture minister and the diirector of the National Museums of Scotland:

I am pleased the First Minister has decided to raise the matter of the Lewis Chessmen. I think it opens up an interesting debate on how we support our local museums.

“For the past two months I have been acting on behalf of the people of Shetland to try and secure the St Ninian’s Isle Treasure back to its rightful home.

“I firmly believe that artefacts of local significance should be kept locally. It undoubtedly boosts local tourism and is beneficial to the community as a whole, both historically and culturally.

As I argued last week, I’m not sure what ethical basis Salmond can make the claim to the Lewis Chessmen. They were acquired legally and rightfully, and they were in fact almost certainly created in Norway. Norway would seem to have a better ethical and cultural claim to the objects than would Scotland. If Salmond does want the Chessmen returned, that precedent could be used to repatriate a great deal of objects currently on display at the National Museum of Scotland and elsewhere.

The St. Ninian’s Isle treasure was discovered by a University of Aberdeen archaeologist in 1958. The treasure is comprised of 28 silver objects and a porpoise bone. The resulting dispute Lord Advocate v. University of Aberdeen and another, 1963 S.C. 533. saw the University unsuccessfully challenge the notion that the found objects should fall to the Crown.

St. Ninian’s Isle is a small body of land a short distance from Shetland. In 1955 a University of Aberdeen team of researchers began excavation work aimed at finding the ruins of a medieval church. In July of 1958 the 8th century Celtic hoard was discovered. The Lord Advocate then brought an action seeking a declaration that the find belonged to the Crown, while the University and the landowner contested the claim.

In the ensuing legal dispute two arguments were advanced by the University. First, it was argued the feudal common law rule had no application in Shetland and Orkney where land was “udal”, and not subject to the feudal rules, as a result of their acquisition in the 15th century from Denmark and Norway. However the trial judge Lord Hunter held

[A]lthough treasures found in the ground are inter regalia, in the sense of things which the law appropriates to princes and states, and exempts from private use, the right to treasure is a right belonging to the sovereign by virtue of his royal prerogative and as head of the national community rather than by virtue of his position as universal landlord.

This argument was supported on appeal. The second argument urged the court to recognize rights in udal lands as superior to those of the crown. In advancing the argument the University compared treasure trove to undiscovered minerals. However this reasoning proved unsuccessful as well, as “plenary ownership of land carries with it everything a caelo usque ad centrum, including even all moveable articles in or on the land.” As such the ordinary laws of Scotland would apply and objects qualifying as treasure under Scots law “must be precious; they must be hidden in the ground; and there must be no proof of their property or reasonable presumption of their former ownership.”

The case presented interesting legal questions for Scots property law, but from a cultural property policy perspective, the excavation, study and display was a complete success. The site was professionally excavated, the archaeological context was recorded, and the treasure is now on public display in Scotland.

Axes!

Bus driver Tom Peirce has discovered 500 Bronze Age metallic objects with his metal detector in Dorset. The Daily Mail has the story with photos.

The discovery includes 268 complete axe-heads, one of the biggest hoards ever found in Britain. The find, as it constitutes a “prehistoric” metallic object qualifies as “Treasure” and is the property of the Crown.

Archaeologists believe the hoard was buried in the field as some form of ritual offering to the gods.

Grandfather Mr Peirce, from Ringwood, Hants, said: “When we took them out of the ground, some of them were so pristine you would think you had just bought them at B&Q yet they were 3,000 years old.”

There were so many of the artefacts that the pair couldn’t collect them all so returned the following day with fellow detectorist Brian Thomas,75, to gather the rest.

Mr Peirce, who has been a metal detectorist for five years, added: “We went back and dug in another hotspot and found a load more.

“We were very lucky because there was not much else in the field.

“If we had tried another place or walked in a different direction, we’d never have found them.”

Mr O’Connell, 62, who has owned the farm for four years, said: “Within about half an hour of Tom searching, he came rushing over to me looking shocked.

“During the war, a plane had crashed in the same field and for a minute I thought he had found a bomb.

“We went back up there on my tractor and saw the axe heads. I didn’t have a clue what they were – I thought it was scrap metal at first.

“I have owned the farm for four years and had no idea they were up there. It is very exciting.”

The find will now be valued, and the finder and the landowner will split the market value, which is estimated to be £80,000.

It’s this reward scheme under the Treasure Act which encourages the reporting of these finds. The difference between this policy and the typical approach in source nations is it encourages finders to come forward with finds; however it also encourages more metal detecting, which can be seen as a trade-off. The compensation scheme is a pragmatic balancing of interests, which places a higher value on the acquisition of the find, and bringing discoveries to light, rather than leaving objects in the ground. I think it’s an excellent policy for the UK, but it may be questioned whether such an approach would work as well in other nations without the economic resources to fund the scheme.

Those objects which don’t qualify as treasure are subject to the voluntary Portable Antiquities Scheme. Treasure basically includes precious metals (i.e. gold and silver), prehistoric base-metal like these bronze objects, and objects found with them. Since 1997, objects which don’t qualify as treasure can be recorded by the Finds Liaison Officers which have forged connections with local metal detectorists, and have compiled information which has led to a more complete understanding of important sites.

I should note, that it’s my understanding that Greece and Italy both have similar rewards schemes, but not a lot has been written about them to my knowledge. My initial conclusion is these schemes are not funded as well, and have not produced the kind of results the PAS has. I believe both nations reward finders at something like 25% of an object’s value if it is discovered by chance. If any readers have knowledge of these kinds of rewards schemes I’d appreciate a post in the comments.

(Hat tip: Will Anderson).

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