Derek Fincham

Bonneau on nonrepresentational art

Most agree that Jackson Pollock's "Number 5" should be afforded First Amendment protection, but why? — Most probably agree that Jackson Pollock’s “Number 5” should be afforded First Amendment protection, but why?

Sonya G. Bonneau, a Professor of Legal Research and Writing at Georgetown, has posted a working paper: “Ex Post Modernism: How the First Amendment Framed Nonrepresentational Art” to SSRN. Here’s the abstract:

Nonrepresentational art repeatedly surfaces in legal discourse as an example of highly valued First Amendment speech. It is also systematically described in constitutionally valueless terms: nonlinguistic, noncognitive, and apolitical. Why does law talk about nonrepresentational art at all, much less treat it as a constitutional precept? What are the implications for conceptualizing artistic expression as free speech?

This article contends that the source of nonrepresentational art’s presumptive First Amendment value is the same source of its utter lack thereof: modernism. Specifically, a symbolic alliance between abstraction and freedom of expression was forged in the mid-twentieth century, informed by social and political influences that have now disappeared. What remains in its wake is a vague artifactual referent, historically untethered and conceptually reduced. This article reveals modernism’s invisible yet surprisingly tenacious hold on the relevant legal discourse, demonstrating how an embrace that appears both expansive and central to artistic expression is actually narrow and anachronistic. It obscures the big picture. To realign First Amendment theory and jurisprudence with artistic expression, the law should acknowledge the changes wrought by postmodernism.

Marion True Resurfaces

MARION TRUE, curator of the Getty Museum. LA Times photo by IRIS SCHNEIDER. 10/24/99

Geoff Edgers managed to snag an interview with Marion True, former curator of antiquities at the Getty Museum, and the subject of an antiquities-trafficking trial in Rome. A trial that even Paolo Ferri admits was only to “show an example of what Italy could do.”

I don’t imagine many will change their view of True based on the reporting or her comments. There is nothing especially revelatory here—perhaps its best viewed as a reporting coup by Edgers in getting access to True. But its also an initial first step by True in seeking to get her own book published. The piece even links to a few small excerpts of her memoirs. Here are the handful of paragraphs which stood out to me:

A decade after her downfall, True knows that she was singled out, with Hecht, by the Italians to strike fear in American museums. The strategy worked. The Getty and others, fearing prosecution, returned hundreds of objects worth millions of dollars.

True was never found guilty — the trial ended in 2010 without a judgment – and the curator maintains her innocence. But today, for the first time, she is talking openly about the way she and her museum world colleagues operated. Yes, she did recommend the Getty acquire works she knew had to have been looted. That statement, though, comes with a qualifier:

If she found out where a work had been dug up from, she pushed for its return. In contrast, many of her colleagues did little, if anything, to research a work’s source. None of them were put on trial.

The pursuit of True was aided by raids of dealers and a massive leak of internal Getty documents to a pair of Los Angeles Times reporters. That paper trail linked looted sites in Italy to the museum’s Malibu galleries.

True plainly did recommend the acquisition of looted material. A revelation that few if any in the museum community have acknowledged publicly. But the fact that Edgers fails to acknowledge in his reporting is the damage done to future sites. The sums of money paid by the Getty fueled more looting.

Geoff Edgers, One of the world’s most respected curators vanished from the art world. Now she wants to tell her story., The Washington Post, August 19, 2015, http://www.washingtonpost.com/entertainment/museums/the-curator-who-vanished/2015/08/19/d32390f8-459e-11e5-846d-02792f854297_story.html (last visited Aug 20, 2015).

Metal Detecting Permits up in Greece

Two illegally excavated ancient male statues recovered from antiquities smugglers in southern Greece are displayed at the National Archaeological Museum in Athens, Tuesday, May 18, 2010. Greek authorities say two farmers have been arrested for allegedly illicitly excavating the statues, which date between 550 and 520 BC, and trying to sell them to a foreign buyer for euros 10 million. Police are seeking a third suspect. (AP Photo/Thanassis Stavrakis)

Nick Romeo reports for National Geographic that the economic downturn in Greece may be leading to a spike in looting of ancient sites. Apparently there has been an increase in the applications for permits to use metal detectors:

As the Greek economic crisis has intensified over the past five years, police detectives with the Greek Department of Antiquities and Cultural Heritage have noticed not only that illegal excavations and thefts of archaeological artifacts increased, but also that the typical profile of looters has changed.

Before the crisis, many looters were members of criminal networks that also trafficked in guns and narcotics. Now it appears that regular people with access to tools for digging are unearthing pieces of Greece’s past and selling them for quick cash.

This surge comes at a time when agencies charged with protecting the country’s antiquities are underfunded and understaffed because of government budget cuts.

“We need more staff, more people,” said Evgenios Monovasios, a lieutenant in the Security Police Division of Attica. He estimated that in all of Greece there are roughly 60 employees who work exclusively to prevent and disrupt looting. While cooperation with local police departments across Greece expands this capacity, it’s difficult to monitor more than a fraction of the country’s vast and varied landscape, which ranges from the mountainous north to hundreds of islands in the Aegean and Ionian Seas.

“It would take an army to catch everything,” said Elena Korka, the Director General of Antiquities and Cultural Heritage. “It’s impossible not to find antiquities in Greece; they are literally everywhere.”

The increase in looting in Greece can be connected to the economic stagnation there, and also the limited resources the heritage officials have to combat this destruction. How much both of these factors contribute to looting is debatable. What is not debatable is the appetite of the antiquities trade for ancient works of art without documented histories continues to lead to the loss of context and damages Greece’s (and our) heritage.

Nick Romeo, Strapped for Cash, Some Greeks Turn to Ancient Source of Wealth National Geographic News, http://news.nationalgeographic.com/2015/08/150817-greece-looting-artifacts-financial-crisis-archaeology/ (last visited Aug 18, 2015).

Chechi on human rights and restitution

Roman ruins with a prophet, by Giovanni Pannini, 1751.

Alessandro Chechi, a post-doctoral researcher at the Art-Law Centre in Geneva has published a thoughtful discussion on human rights and restitution. From the abstract:

The legal and political discourse over cultural heritage is today dominated by a number of sophisticated conceptions. First, the term cultural heritage is used to focus attention on the manifestations that do not assume tangible form but that represent evidence of the way of life and thought of a particular society. Such a shift of interest witnesses the perception of culture as a human centred, socially constructed legacy belonging to all mankind. Secondly, cultural heritage can be seen as part of the physical public space that we normally call the ‘environment’ or the ‘landscape’. This approach takes into account the interactive link of such heritage with the life of people inhabiting it. Thirdly, cultural heritage may also be seen as a powerful tool to build a sense of nation. It is a fact that, since the 19th century, nations have used representative cultural treasures as means for supporting or legitimising claims to self-determination and independence or for creating a cohesive national identity. Fourthly, cultural heritage today can be seen as the object of individual as well as collective rights. In this sense, cultural heritage becomes an important dimension of human rights.

Chechi, Alessandro. Safeguarding the human rights dimension of cultural heritage through restitution [online]. Human Rights Defender, Vol. 24, No. 2, Jul 2015: 11-12. Availability: <http://search.informit.com.au/documentSummary;dn=376874607084084;res=IELHSS>ISSN: 1039-2637.

John Henry Merryman and Art Law

I’m sad to relay the news that John Henry Merryman passed away on August 3. He was 95. No single individual did more to establish the field of art law, and I’m not sure any work on art or cultural heritage law can be written without accounting for his groundbreaking scholarship. He will certainly be missed, but he left behind a wonderful body of scholarship.

From Stanford Law School’s Remembrance:

Merryman introduced the idea for the new course “Law, Ethics and the Visual Arts,” in 1970 to a somewhat skeptical law faculty. Merryman taught the course in 1971, the first of its kind. Elsen collaborated and co-taught with Merryman — the two delving into questions of tax, copyright, contracts, regulation, cultural property, ethics and more — creating a syllabus for the nascent field of study and publishing the groundbreaking book Law, Ethics and the Visual Arts, now in its fourth edition.

Before that, Merryman was a comparative law scholar of international standing.

“His great book on The Civil Law Tradition caused a fundamental rethinking of comparative law and subsequent scholarship — and courses based on that scholarship — were powerfully strengthened as a result,” said Thomas Ehrlich, dean of Stanford Law School from 1971 until 1976. “John’s many works relating to art and cultural property, as well as his multiple courses in that arena, were no less groundbreaking. He deployed his strengths in comparative law to produce penetrating analyses on the ownership of antiquities, as well as on art and the law more generally. Students from across the Stanford campus and beyond flocked to John’s classes. John was one-of-a-kind, as colleague and as dear friend.”

Picasso Work Seized in Corsica

"Head of a Young Woman" by Pablo Picasso was seized by French customs officials on the island of Corsica — “Head of a Young Woman” by Pablo Picasso was seized by French customs officials on the island of Corsica

French customs officials seized this work by Pablo Picasso from a yacht off the coast of Corsica. It was reportedly about to be flown to Switzerland on a private jet. Henry Samuel reported for the Telegraph that:

The work Picasso painted in 1906 and valued at “more than €25 million” is the property of Spanish billionaire Jaime Botin, the largest shareholder of Bankinter and whose great grandfather founded Spain’s largest bank, Santander. Mr Botin reportedly bought the painting in 1977 at the Marlborough Fine Art Fair in London for his personal collection.

He has a stake in the company that owns the yacht where the painting was found but “was not on board at the time”.

The seizure is the latest chapter in a three-year battle by the 79-year-old billionaire, Spain’s 15th richest man according to Forbes, to take the Picasso out of Spain and auction it off in London.

Agence France-Presse, Authorities in France Seize Picasso Painting Banned from Leaving Spain, The Guardian, Aug. 4, 2015, http://www.theguardian.com/artanddesign/2015/aug/04/authorities-in-france-seize-picasso-painting-banned-from-leaving-spain.
Henry Samuel, Picasso worth €25m seized from British-registered yacht off Corsica (8–4, 2015), http://www.telegraph.co.uk/news/worldnews/europe/france/11782480/Picasso-worth-25m-seized-from-British-registered-yacht-off-Corsica.html.

Cultural Heritage Conservation Easements

Mount Vernon, George Washington's estate, was preserved thanks in part to conservation easements — Mount Vernon, George Washington’s estate, was preserved thanks in part to conservation easements

Jessica Owley of SUNY Buffalo has posted a piece examining the use of conservation easements in the context of Cultural Heritage Protection. From the abstract:

Conservation easements are quickly becoming a favored tool for protection of cultural heritage. Perpetual encumbrances on the use of private land, most cultural heritage conservation easements are held by private conservation organizations known as land trusts. With minimal public oversight, land trusts decide which lands to protect in perpetuity and what the rules regarding use of those lands should be. A variety of concerns arise when protection of cultural heritage resides with private organizations. First, as governments abdicate cultural heritage protection to private organizations, the public’s role in site protection shifts. When private organizations and landowners negotiate which properties to protect and how to protect them, some culturally important sites go unprotected. Privatizing protection of cultural sites may reduce the ability of some members of the public to become involved in the decision of what to protect as well as hamper public oversight and enforcement of land-use restrictions. It may even reduce overall protection as public entities remove themselves from the cultural heritage protection game, ceding the territory to land trusts. Second, private perpetual restrictions problematize the balance between intergenerational rights and present responsibilities. Reverence of past cultural events and properties may hamper future growth as users of conservation easements restrict properties in perpetuity without enabling communities to revisit or modify the restrictions. Third, conservation easements may be protecting sites that were not in danger of exploitation. In such cases, conservation easements subsidize landowners with questionable public benefits. Finally, using conservation easements to protect sacred sites commoditizes cultural heritage. Paying people to protect cultural heritage could degrade cultural heritage or civic responsibility.

Jessica Owley, Cultural Heritage Conservation Easements: The Problem of Using Property Law Tools for Heritage Protection (2015), http://papers.ssrn.com/abstract=2243129.

Profile of Syrian Preservation Group

“A human life doesn’t have much value without culture to go with it” says Markus Hilgert, director of the Pergamon Museum. He’s interviewed in a CNN profile of Heritage for Peace, a group working to document the destruction taking place there. The group walks a delicate line, trying not to take a stand in the dispute. The group has limited funding and works with a number of volunteers with founder Isber Sabrine:

A 29-year-old archaeologist from a village near the Mediterranean coast in western Syria, Sabrine is using modern technology to trace and document the looting and destruction of his country’s ancient heritage.

Working from Berlin, he runs a network in Syria of around 150 volunteers — archaeologists, architects, students and simply concerned citizens — who often pose as antiquities buyers to see what has been stolen in the course of Syria’s now more than four-year uprising. He communicates with them via Skype when the Internet in Syria is working, which isn’t often.

“They go to the locals and they say look, we are interested. They cannot buy, but at least they make photos and they send us photos,” says Sabrine. “Like this we have a list of looted materials from Syria.”

That list is shared with law enforcement, auction houses and collectors. CNN asked if we could publish some of those photographs — we saw statues, mosaics and coins — but Sabrine declined for fear the photos might expose the volunteers.

After years of chaos, the market for stolen antiquities is flooded, and dealers are holding back some of their most valuable items. “We know that the most important objects don’t go to market now,” says Sabrine. “The big dealers are waiting, maybe two, three or four years, and then when the opportunity is right, they will sell.”

Ben Wedeman, Syria’s Struggle to Save the Past – CNN.com, CNN.

A Polke Painting Discovered in Thrift Shop?

A detail from a painting which may be by Sigmar Polke, via ABC News

A thrift store called The Guild Shop in Houston may have sold an original work by Sigmar Polke in May. It had been sitting in the shop for 100 days until Ray Riley bought the work for $90.

Continue reading “A Polke Painting Discovered in Thrift Shop?”

Roodt and Benson on Databases for Stolen Art

Christa Roodt, of the University of Glasgow and the University of South Africa, and Bernadine Benson, of the University of South Africa have an article in the June issue of the South Africa Crime Quarterly examining databases for stolen art with a particular emphasis on the South African position post-Apartheid. They make a good common-sense argument in favor of a centralised database for South Africa which would assist both the market and law enforcement. Here’s the abstract:

Addressing the illicit trade in stolen works of art and other heritage items is notoriously difficult. Before thefts of heritage items can be recorded, the object in question must be identified as having special significance. The investigation of the circumstances in which such an object was acquired and the enforcement of legal and ethical standards of acquisition become unduly complicated in the absence of a comprehensive national inventory of museum holdings and of a database of stolen art and cultural objects. This article considers the development of inventories and databases in South Africa and elsewhere. We argue that cross-sectoral cooperation in sharing databases needs to improve significantly in order to boost compliance with due diligence standards. To help restore the credibility of the trade in art and cultural objects, the South African Heritage Resources Information System site must be endorsed as the centralised database for heritage crime. This would provide ready access to databases, helping art market participants, law enforcement officers and customs officials in the investigation of stolen art works.

Christa Roodt and Bernadine Benson, “Databases for Stolen Art: Progress, Prospects and Limitations,” South Africa Crime Quarterly, no. 52 (June 2015).