Derek Fincham

Treasure, Salvage and Archaeology

John Ward Anderson has an informative update on the ongoing dispute between Spain and Odyssey Marine in today’s Washington Post.

I’ve written on this before, but here’s a short recap. In May it was announced that $500 million worth of silver and gold was discovered from a wreck Odyssey has code named the Black Swan. The discovery is probably the most valuable underwater find yet discovered. Speculation abounds that the wreck could be the Merchant Royal which sank off Cornwall, or the Nuestra Senora de las Mercedes, a Spanish frigate sunk by the British Navy in 1804 known to be carrying a great deal of silver.

Spain suspected Odyssey Marine had discovered one of her ships, and brought a legal action against the company in Federal District Court in Florida. Later in July, one of Odyssey’s vessels, the Ocean Alert, was forced to remain in port in the Spanish port of Algeciras before releasing it. Another vessel, the Odyssey Explorer, has been detained in Gibraltar because Spanish authorities have warrants to detain it if it leaves Britain’s waters. This is a difficult issue as the territorial waters in the area are open to a great deal of dispute.

In the Washington Post, we get some of the comments of the interested parties. Here’s what Greg Stemm, co-founder of Odyssey Marine had to say:

Shipwrecks are a resource like any other resource, and every other resource — scientific, cultural or otherwise, whether it’s coins, whether it’s stamps, whether it’s antiques — it’s all owned, bought, sold and traded all the time.

That’s one perspective certainly, but many archaeologists are very critical of commercial exploitation of historic wrecks. James Goold, Spain’s counsel gives his client’s view:

Everything points to Odyssey having known exactly what ship they were looking for and having then decided to claim it was unidentified,… The law is quite clear that an owner of a ship remains the owner after it sinks, and a sovereign nation has a right to protect its cultural heritage, … Spain has cultural heritage laws, and Spain has a program of underwater archaeology, and there are projects Spain undertakes by itself or with archaeological institutes for the public benefit, but not so someone can scoop up gold coins and sell them…

At present, the situation is untenable, as advances in technology make it easier to discover these wrecks. Also, the state of admiralty law is essentially just finders keepers. That does not seem likely to change unless the archaeology and heritage lobby can effectively negotiate with the interest of commercial exploitation. Perhaps some archaeological research is better than nothing?

The dispute will be interesting to watch unfold. If the vessel is Spanish, Spain may have rights to it if it is not deemed abandoned. However Odyssey will likely be entitled to some kind of salvage award, as admiralty rewards finders. Admiralty law assumes that a salvor should be rewarded for risking her life and property to rescue the property of another. From what I remember of my admiralty course in law school, it is likely that because this sunken treasure has been lost for a great deal of time, Odyssey Marine will likely get the majority of the value of the property. The ultimate determination is up to the judge to determine though, and will sometimes depend on how dangerous or how much skill was needed to find the wreck.

The 2001 UNESCO Convention on Underwater Cultural Heritage (UCH) precludes commercial exploitation of wrecks altogether. In an ideal world that rule might work. But archaeological resources–at sea or on land– are seldom left alone, and few nations have signed on to the UCH convention. I think archaeologists are understandably frustrated, because they know how much such a wreck could tell us, and we don’t really have any way of knowing what Odyssey is doing with the wreck.

A convention or a policy which only incorporates the view of the archaeologists will always fail, and that is the biggest problem with the UCH Convention. Major market nations, and historic superpowers with historic wrecks (like nuclear subs, warships, etc.) will not sign on. Ideally a pragmatic solution must be reached, similar to the Portable Antiquities Scheme in England & Wales or the Scottish Treasure Trove system whereby admiralty law should incorporate archaeological value into salvage disputes. At present the only value is that of the objects rescued. But the archaeological record has value as well, and perhaps that should be quantified as well. Salvors could be punished for destroying or failing to document the record. That will take legislation or treaties. Judges cannot inject such a requirement. The first step will be to build a consensus for action. In the interim, the simple finders keepers rule will prevail.

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

Pre-Emptive Archaeology

Elisabetta Povoledo of the NY Times had an interesting article last week on Odysseus, a kind of amateur archaeology group which legally excavates at-risk sites. Here’s an excerpt:

The Etruscan tomb was hidden in such a remote corner of Tuscany that Andrea Marcocci, the archaeology student who found and identified it about a decade ago, was not very worried that anyone else would stumble upon it.

Then, this year, woodsmen began to clear brush in the area, and Mr. Marcocci — who had believed the tomb would be safe as long as it was concealed in a forest — realized he had to act.

“I became worried that what’s supposed to be the patrimony of mankind would become the patrimony of an individual,” he said.

Armed with a permit from the archaeological authorities (in Italy, anything found underground belongs to the state), he and a handful of volunteers began to dig.

What they found last week was a complete surprise: a tomb dating back more than 2,000 years with a cache of almost perfectly preserved ceramic and bronze funerary objects, including cremation urns for more than two dozen people.

“It was an incredible moment,” said another archaeology student, Giacomo Ghini, who was the first to spot the tops of the urns buried in dirt in the burial chamber. “We weren’t sure there would be anything there.”

This is a really interesting and exciting effort I think. Under the present system, the only sure way to insure a site will yield its historical information is to properly excavate it first. Italy has a wealth of undiscovered antiquities, but when tombaroli (meaning tomb-robbers) excavate them, the contextual information is forever lost. This group is semi-professional composed of archaeology students. Its activities were completely legal, as they had been granted a proper permit as well. These objects were also turned in to the state.

This site was not major, and thus would probably not have been excavated by anyone other than this kind of volunteer group. Even in Italy, where cultural policy is a major political issue, it is still not possible to police every archaeological site. There are simply too many.

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

Due diligence, a licit trade, and the Ka-Nefer-Nefer

David Gill over at looting matters has had some interesting things to say about due diligence in recent days. I agree with him on a number of points, including the problems caused by the destruction of archaeological sites, some of the silly rhetoric the numismatist-lobby has used on the internet and the scope of the antiquities problem generally. He has also contributed some excellent scholarly work by moving beyond mere anecdotal evidence towards concrete data.

I disagree with him strongly on the ability of a licit antiquities market to remedy some of these problems however. I think he misses the point on due diligence procedures in acquiring antiquities. You can argue they are voluntary, are not followed, or are too weak. But rigorous due diligence procedures are absolutely essential to a better state of affairs and can have a quick and quantifiable impact on the black market.

On Friday, he rightfully took John Merryman to task for using the acquisition of antiquities by Marion True for the Getty as an example of due diligence procedures which were unfairly criticized by archaeologists in 1989. Gill points out that the archaeologist’s criticisms of the policy were vindicated with the decision by the Getty to return 40 objects. I think Merryman should admit he was wrong on that point. However, Merryman’s more important point, and the one Gill fails to account for is that there needs to be a licit trade in antiquities with clean provenance, and the current state of regulation in source nations makes that impossible. We should also keep in mind that the new acquisition procedures of the Getty museum are now quite rigorous, and the Getty should be recognized for righting its ship. The Indianapolis museum of Art has also adopted some very strict procedures.

I do not think anyone would argue that the present legal framework of regulating antiquities works. Sites are looted, and the black market continues to thrive. The important question becomes how can we prevent that? Establishing provenance is a difficult thing to do, especially when they are often fabricated. Auction catalogs say “from a Swiss collection”. Such information is not enough to create a clean chain of title. Relying on such information is not enough to satisfy a proper due diligence inquiry either.

Article 4(4) of the 1995 Unidroit Convention makes a set of recommendations for the exercise of due diligence:

In determining whether the possessor exercised due diligence, regard shall be had to all the circumstances of the acquisition, including the character of the parties, the price paid, whether the possessor consulted any reasonably accessible register of stolen cultural objects, and any other relevant information and documentation which it could reasonably have obtained, and whether the possessor consulted accessible agencies or took any step that a reasonable person would have taken in the circumstances.

The next day Gill turns his attention to the Ka-Nefer-Nefer mask, pictured above. It was purchased by the St. Louis Museum of Art in 1998 from the Phoenix Gallery, run by the Aboutaam brothers who have had legal issues in both the United States and Egypt regarding antiquities transactions. An outstanding article by Malcolm Gay for the River Front Times revealed that the sculpture may have been stolen some time between its excavation in 1952 and its acquisition by the St. Louis Art Museum in 1998.

Gill points out that a number of the facts used to construct the provenance were highly questionable, including this exchange:

Hicham Aboutaam directed the Riverfront Times to a woman identifying herself as Suzana Jelinek, of Zagreb, Croatia. ‘I bought the mask many many years ago, and I sold it many many years ago,’ says Suzana Jelinek when reached at her Zagreb home. ‘I have so many things in my collection that my children don’t know what all I have.’

This raises a number of questions certainly. However, Gill fails to acknowledge the most important thing the museum did, it contacted the Cairo Museum in Egypt:

“I think for 1998, the year that this mask was acquired, the level of diligence that was done here is exemplary,” says Brent Benjamin. “We had an inquiry hand-delivered to the Cairo Museum’s director, Mohammed Saleh, saying that this was an object that had been offered to the museum for acquisition, and did he know any reason why the museum should not do that. We got a written response from Dr. Saleh that raised no concerns about the acquisition.”

The letter the museum sent Saleh contains sparse details. The letter, penned by Sidney Goldstein, the museum’s antiquities curator who initiated and oversaw the mask’s purchase, says the museum has “been offered a mummy mask of the 19th dynasty and I was wondering if you know of any parallels to this object. I have never seen anything quite like it with a reddish copper-like face probably owing to the oxidation of the gold surface. It is currently on exhibition in the Egyptian exhibition at the Museum of Art and History in Geneva. I would greatly appreciate your thoughts on any parallels you might know of this piece and hope that I might have the opportunity to speak with you in several weeks by telephone about this opportunity.”

Goldstein sent a photograph and physical description of the mask along with his letter to Saleh, but he did not mention Goneim by name, nor did he refer to the Saqqara excavations.

“The excavation information was not on the description of the mask because the letters [to Saleh] were sent out before the entire provenance was even discussed,” says Jennifer Stoffel, director of marketing for the Saint Louis Art Museum. “This was early on, when we were only considering the object.”

That is a very important fact Gill misses. To be sure, the acquisition should have raised a number of red flags; and I think the Egyptians probably have an excellent ethical claim for repatriation. But there will not be a tenable legal claim under US law. It does not appear Egypt had adequately documented their collection. If they had, and the collection was stolen from a storeroom as the article indicates, Egypt would have had an absolute legal right to the object because it was stolen, and the museum would have had a claim for the purchase price against the Phoenix gallery. This would have rewarded a diligent purchaser, punished the Phoenix gallery for selling a dubious work, and the object would have returned to Egypt.

A very important and inexpensive step which source nations absolutely must do is to document their collections. Granted, such a step may have been more difficult 10 or 20 years ago, and the letter could have provided more details to Saleh, but Egypt needs to make it easier to check provenance, not harder. The museum made a questionable acquisition to be sure, but Egypt dropped the ball as well. This reinforces Merryman’s persuasive argument that source nations should consider excess cultural objects which are merely gathering dust in a storeroom. At the very least I think antiquities leasing or long-terms loans should be used. It adds to the cultural exchange, and most importantly creates revenue which can be used to protect sites and excavate them before looting takes place.

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

The Pirate Party

Frank Pasquale of concurring opinions has a fascinating post on Rick Falkvinge, head of the Swedish Pirate Party.

You might be forgiven if you thought a Pirate Party was a bit comical, but it seems their positions are surprisingly thoughtful. They advocate a reform of copyright law, arguing copyright laws today “restrict the very thing they are supposed to promote.” I think that’s exactly right in some cases, as copyright protection should not provide an endless revenue stream. Mickey Mouse should not dictate the life of a right. It should reward creators for their original creations, not create endless monopolies. As they argue “a five years copyright term for commercial use is more than enough”. They also advocate a respect for the right to privacy, and tie in such advocacy to recent European history, “We Europeans should know better. It is not twenty years since the fall of the Berlin Wall, and there are plenty of other horrific example sof surveillance-gone-wrong in Europe’s modern history.”

Falkvinge spoke in July about “Copyright Regime vs. Civil Liberties” at Stanford University. It sounds cutting-edge, and it would be great to get him to come to Aberdeen as a part of our visiting scholars program. From what I can gather, he argues copyright first came about as censorship and a way to preserve the stationer’s guild in England after the advent of the printing press.

As Pasquale writes:

[H]e admitted that certain works that cost a huge sum wouldn’t be produced if their makers had no hope of financial return, so he favored some copyright protection for commercial uses of those works. However, Falkvinge said the threat to privacy posed by modern copyright enforcement techniques was too great to allow any legal monitoring of personal use of works.

I will make a bold and unsupportable prediction that copyright and privacy issues will become increasingly contentious, and a major political issue as the generations which grew up with the internet mature and become a political force. Pasquale has written before on copyright and civil disobedience via an AALS panel. One argument seemed particularly compelling:

Larry Solum presented an impressive application of rival philosophical views to the issue of principle-driven disobedience of copyright laws. After canvassing the shortcomings of utilitaran and deontological approaches, he presented his own virtue theory, essentially arguing that we should seek congruence between societal norms and laws. He also noted how far our DRM-loaded, anticircumvention-obsessed predicament diverges from that happier state of affairs.

It’s some really fascinating stuff, and the convergence between jurisprudence and copyright laws is interesting: Rawls and piracy or the morality of cartelization, seem very interesting and move the argument beyond mere utilititarian and economic justifications for the current state of affairs.

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

Upcoming Antiquities Conference at SMU

There looks to be an excellent conference coming up at Southern Methodist University called the Future of the Past: Ethical Implications of Collecting Antiquities in the 21^st Century. It aims to “explore the ethically complex and challenging world of collecting ancient cultural objects.” It will be held October 18-19, 2007 in Dallas , Texas at SMU. I’m disappointed I will not be able to attend as I will be preparing for the AALS Faculty Recruitment Conference instead.

There certainly looks to be an impressive array of cultural policy scholars:

Michael Adler, Ph.D.
Executive Director, SMU-in-Taos
Associate Professor, Department of Anthropology
Southern Methodist University

Alex Barker, Ph.D
Director, Museum of Art and Archaeology
University of Missouri-Columbia

Susan B. Bruning, J.D.
Adjunct Lecturer in Law
Southern Methodist University

Emma C. Bunker
Research Consultant, Denver Art Museum
Associate/Adjunct Member of Art History,
University of Pittsburgh

Donald Forsyth Craib III, Esq.
Attorney at Law
Craib Law Office, PLC

Torkom Demirjian
Ariadne Gallery
New York, New York

David Freidel, Ph.D.
University Distinguished Professor of Anthropology
Southern Methodist University

Patty Gerstenblith, J.D., Ph.D.
Professor of Law
DePaul University College of Law

Jay I. Kislak
Founder and President, Jay I. Kislak Foundation
Chair, Cultural Property Advisory Committee

Leigh Kuwanwisiwma
Hopi Cultural Preservation Office

Lee Wayne Lomayestewa
Hopi Cultural Preservation Office

John Henry Merriman, J.D, L.L.M, J.S.D
Sweitzer Professor of Law and Affiliated Professor of Art Emeritus
Stanford University

Phyllis Mauch Messenger
Director, Wesley Center
Hamline University

Timothy Potts, Ph.D.
Director
Kimbell Museum of Art

Gary Vikan, Ph.D.
Director
The Walters Art Museum

P. Gregory Warden, Ph.D.
Professor of Art History
Southern Methodist University
Director, Mugello Valley Archaeological Project

Randall White, Ph.D.
Department of Anthropology
New York University

Henry Wright, Ph.D.
Professor of Anthropology
University of Michigan

Donny George Youkhanna, Ph.D.
Iraqi Scholar
Visiting Professor
Stony Brook University

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

An Overview of the Antiquities Trade

Saving Antiquities for Everyone is a non-profit organization aimed at promoting awareness of the illicit antiquities trade. They have an excellent collection of interviews which give an overview of the problem. I came across some of these podcasts a few months ago, and never got around to posting the links. There are interviews with journalists Roger Atwood, author of Stealing History and Peter Watson, co-author of The Medici Conspiracy and author of Sotheby’s The Inside Story. All three are outstanding and accessible works which do a good job of giving some excellent anecdotal accounts of the antiquities trade.

There are also interviews with law Professor Patty Gerstenblith, as well as the former Chairman of the Iraqi State Board of Antiquities Donny George Youkhanna.

The interviews are a bit dated. Roger Atwood in particular talks about the acquisition policies of museums. He says if museums refused to accept unprovenanced objects from collectors, this would really cut to the heart of the antiquities trade, as collectors would be unable to get the lucrative income tax deductions. That was exactly right just a few years ago, but the decisions by the Indianapolis Museum of art as well as the Getty seem to indicate the position of American art museums has shifted dramatically just in the last 12 months.

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

Be careful what you throw away

Wild story from Earth times:

Vienna – An old cross recovered by an Austrian woman from a garbage container turned out to be an 800-year-old French masterpiece stolen from a Polish collection by the Nazi regime, Austrian police said on Thursday. In 2004, the woman from Zell am See in the province Salzburg got permission from her neighbours to look through a garbage container of things they had thrown out. Among other things, she took an old, gold-coloured cross. As nobody else liked it, the woman kept the gold-plate and enamel cross under her couch until showing it to art experts earlier this year. According to experts from Vienna’s Fine Arts Museum, the piece of garbage turned out to be a passion cross from a manufacturer in Limoges in France made around 1200. Similar pieces fetched up to 400,000 euros (537,000 dollars) at international auctions. Police traced the origin of the cross, showing the piece had been stolen by the Nazi regime from the Polish art collection of Izabella Elzbieta of Czartoryski Dzialinska in 1941. Pieces from the collection were moved from Warsaw to Austria, where the trail ended in 1945. The cross’s fate still remains unclear. The London-based Commission for Looted Art, informed by the Polish authorities, is representing the heirs. The local court in Zell am See decided that for the time being the garbage-treasure was to be kept at the local heritage museum at Leogang, where it could be properly stored.

Pretty cool find. One wonders how much is thrown away that does not get rescued. The case presents some interesting legal issues. I imagine the heirs of the deceased collector would perhaps have a claim. I’m not sure what the relevant limitations period in Austria would be, but it may be that the limitations has expired and the finder would get to retain title.

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

Napoleon III and the NSPA

Lomi Kriel of the San Antonio Express-News has an interesting account of the FBI’s confiscation of a carbine rifle owned by Napoleon III which was stolen from the Musée de l’Armée during WWII. French authorities saw an advertisement for the weapon on the internet. French authorities contacted interpol, which later involved the FBI’s Art Crime Team.

Napoleon III served as the emperor of France from 1852-70, and this carbine was one of the earliest breech-loading arms produced. Ralph Diaz, the special agent in charge of the FBI’s San Antonio Division said “In the big picture, the FBI doesn’t typically get involved in the pursuit of a rifle… But this weapon is of great historical value to the country of France.” One wonders how the rifle was stolen. I wonder if it was perhaps an American soldier, as was the case with the Quedlinburg treasures.

The FBI did not identify the seller, and it seems he did not know the weapon was stolen when he acquired it for his collection. Federal prosecutors are reviewing the case, but charges are probably unlikely. The rifle was listed for sale at $12,000, a sum which is likely far below what it would have fetched at an open auction.

There are a few interesting things about this case. First, it reveals the extent to which the National Stolen Property Act can impact the trade in art or antiquities. In this case, charges probably will not be filed, but the NSPA allowed authorities to seize the weapon and return it to France. Also, collectors of any object which might have cultural value would be wise to conduct a thorough provenance check, and if a seller cannot or will not provide one, red flags should be raised.

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

Catching Up

Frank Pasquale of Concurring Opinions talks about how the difference between viewing a digital reproduction on the internet is much less effective than viewing a photograph in person, and perhaps this is a good argument for strong IP protection of works of art.
Michael Lewis in Commentary magazine talks about efforts by the Prussian Cultural Heritage Foundation to compile a stolen art database of works taken from Prussia. Many of them are now in Russia, where they were removed after WWII.
Stephen Farrell of the NY Times reports on Baghdad hiring dozens of artists to paint murals on concrete barriers in the city.
Bradley Hope of the New York Sun reported on a ceremony to return an ancient Egyptian vessel which appeared in a Christie’s auction last year.
David Gill on looting matters compares archaeologists to animal rights activists; one would hope that not too many archaeologists take their ideas too far as some animal rights activists have done.

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

3 Picasso Works Recovered

Police have recovered 3 important works by Pablo Picasso stolen from the home of the artist’s granddaughter in February. These two canvases– Portrait de femme, Jacqueline pictured on the left and Maya à la poupée on the right. Another drawing, Marie-Thérèse à 21 ans was recovered as well. Details of the February theft are available here.

Three suspects have been arrested. In February police estimated the drawings may have been worth as much as $66 million. It seems the suspects were shopping the works to art dealers, and one of the dealers contacted French police. The suspects would have had a very difficult time selling the works, as they are widely known. Hopefully there will be a similar recovery of the works stolen from Nice on Sunday.

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