Derek Fincham

Cornelius Gurlitt has died (but leaves a lot of art behind)

The apartment block in Munich where 1500 works were discovered in 2011

Cornelius Gurlitt, the 81-year-old German man who gained prominence in the fall because he was revealed to have a massive amount of artwork has passed away after a heart procedure.

The Financial Times reports:

Several claims have been lodged on behalf of the descendants of people whose works were allegedly stolen under the Nazis. Among them are the heirs of David Friedmann, a German Jewish businessman, who have laid claim to the Max Liebermann painting “Two Riders on the Beach”. August Matteis, the US lawyer in the Friedmann case, said Mr Gurlitt “never had a role in the claim” because the painting clearly belonged to Mr Friedmann’s heirs.His death removed the tax investigation as a cause of delay because any tax owed to the authorities could be covered by the sale of Mr Gurlitt’s other works. “There must be no more paralysis for the sake of delay,” said Mr Matteis.

The NYT reports on the reaction by German officials:

Monika Grütters, who oversees cultural affairs for Germany’s federal government, issued a statement on Tuesday lauding Mr. Gurlitt for allowing the investigation of his collection. “As a private person, he set an example in his commitment to moral responsibility in seeking out fair and just solutions,” the statement said. “For this step, he was rightly accorded recognition and respect.” The German authorities have held the trove at an undisclosed location, citing security reasons for the secrecy. In February, an additional 238 works — some of them said to be top-quality paintings — were removed from Mr. Gurlitt’s second home, in Salzburg, Austria, and relocated also to an unnamed location. Mr. Gurlitt was last known to have sold a painting in December 2011, when the “Lion Tamer” by Beckmann fetched 864,000 euros, or $1.17 million, at an auction in Cologne, Germany. The auction house, Lempertz, said it brokered an agreement for some of the money to go to heirs of Alfred Flechtheim, a Jewish art dealer who was forced to leave Germany and died a poor man in London in 1937. Although reporters from around the world camped outside his Munich apartment for weeks after his art collection was revealed, Mr. Gurlitt gave only one interview, to the news weekly Der Spiegel. In that conversation, he revealed little about his life, saying that the only thing he had loved were his pictures.

The question now is what becomes of Gurlitt’s estate, as reported by the Wall Street Journal:

Although that investigation will lapse now that Mr. Gurlitt is dead, fresh hurdles abound, mainly surrounding a simple question: who has inherited Mr. Gurlitt’s estate? Christopher Marinello, a lawyer for the Rosenberg heirs, says the family will continue pursuing the case, but that “we’ll have to wait for the estate process to run its course.” It is unclear, though, whom Mr. Marinello should even contact or who will be handling the estate process.

Given Mr. Gurlitt’s perpetually frail state of health, a German court appointed Munich-based lawyer Christoph Edel as his legal guardian late last year. But Mr. Edel’s position was “voided as soon as Mr. Gurlitt died,” his spokesman, Stephan Holzinger, told The Wall Street Journal. Mr. Holzinger says he doesn’t even know if Mr. Gurlitt has a will and that his own contract will only continue for “the next few days.”

Melissa Eddy & Alison Smale, Cornelius Gurlitt, Scrutinized Son of Nazi-Era Art Dealer, Is Dead at 81, The New York Times, May 6, 2014.

Mary M. Lane, German Art Collector in Nazi Loot Uproar Dies, Wall Street Journal, May 6, 2014.

Stefan Wagstyl, Cornelius Gurlitt, Son of Nazi Era Art Dealer, Dies, Financial Times, May 6, 2014.

“time to stop destruction of Middle East Heritage”

So argues Iason Athanasiadis in a wonderful opinion piece for Al Jazeera. The whole thing is worth your time, but here are two highlights. He begins by noting:

An underreported conflict is ravaging the Middle East. From sub-Saharan Africa to the Levant, an unholy alliance of profiteers, modernizers and fundamentalists is taking advantage of political instability to pillage and wreck the splendid remnants of civilization — artworks and artifacts, but also monuments, sites and buildings. Pounds upon pounds of these precious antiquities pile up in the warehouses of Cairo, Beirut and Istanbul, ready for export to glitzy auction houses. These are the ill-gotten spoils of the wars tearing through the so-called cradle of civilization since at least 2011.

And he concludes by arguing the looting and theft erases the future for the Middle East:

Memory is a notoriously malleable tool, subject to revisionist narratives and manipulation. If our physical heritage is destroyed, we will rely on memory all the more. That’s not necessarily a good thing when the education received by the majority of schoolchildren in the region is skewed toward dominant religious and ethnic narratives.

If those of us who inhabit the region allow the last palpable, visible traces of a multiethnic and multireligious heritage to be eradicated, we will also prevent future generations from developing a rich, nuanced regional and cultural identity. Erasing or selling off the past will make it even harder to reconstitute these deeply traumatized societies once the fighting ends.

The great Arab author Abdelrahman Mounif died in 2004 after witnessing Washington’s demonstration of “shock and awe” over Baghdad. His “Cities of Salt” quintet gloomily chronicled the process by which a culture is deracinated, surrenders to modernity and fades. Unsurprisingly, it was banned in the Gulf Arab states, which in the 40 years since the oil boom have become disturbing examples of populations dislocated from their past and living in an alienated hypermodern present, whether in Dubai, Doha, Riyadh or Kuwait City.

Athanasiadis, Iason. “It’s Time to Stop Destruction of Middle East Heritage | Al Jazeera America.” Al Jazeera America, May 5, 2014. http://america.aljazeera.com/opinions/2014/5/middle-east-heritagearabspring.html.

Reuniting the Sidamara Sarcophagus

A fragment of the Sidamara Sarcophagus; the head resides at the V&A, the Sarcophagus in Istanbul

In 1882 Sir C.W. Wilson, Britain’s consul-general in Anatolia did what many British diplomats did in the 19th century when visiting the classical world. He took pieces of it back with him to London. In this case this small infant’s head which was removed from what is know known as the Sidamara Sarcophagus. Wilson hacked off the head, and reburied the Sarcophagus hoping to return for the whole thing later. He was never able to return, and the sarcophagus was ‘rediscovered’ in 1898 (can anyone tell me by whom?). I remember seeing this small head at the V&A some years ago, and it always struck be then, without knowing th efull story, that it was incredibly odd to have just a small little head on display.

The Sidamara sarcophagus 3d C. AD; now in display in Istanbul

The sarcophagus now is on display at the Archaeological Museum in Istanbul. Though the head is in the collection of the V&A Museum in London. Turkey has renewed calls for its return. But the V&A has resisted these calls for return. Why? The value of the small head—aesthetic, cultural, historical, or otherwise of this little head would seem to be limited. Instead as Martin Bailey reports for the Art Newspaper, the V&A is concerned about what appear to be some easy legal hurdles to overcome, and even the precedent that would emerge for other pieces of marble in British collections: Continue reading “Reuniting the Sidamara Sarcophagus”

An immunity from seizure bill makes museums havens for stolen art?

One of the works at issue in the Malewicz v. Amsterdam immunity from seizure litigation, titled Suprematism 18th Construction, by Kazimir Malevich

In a provocatively-titled op-ed in the conversation, Tess Davis and Marc Masurovsky argue that a proposed bill would make American art museums a haven for stolen art by allowing them to “knowingly exhibit stolen art”. Their argument:

On March 25, backed by the art trade lobby, Republican Congressman Steve Chabot reintroduced the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act to the House of Representatives. On its face, HR 4292 asks Congress to “clarify” a small section of the the law. But in truth, the bill goes far beyond mere clarification.

It would instead undo established US law and policy by allowing American cultural institutions to block legal claims to artwork on loan from abroad. Museums would knowingly be able to exhibit stolen and looted art and antiquities. It would leave the rightful owners without any legal recourse to recover their property in US courts.

This bill is just the latest attempt by the less responsible players in the art market to weaken US law. American legal principles have long held that a thief cannot transfer good title. The receipt, possession, and transport of stolen property is a crime. US legislation has carved out a narrow exception to prevent the judicial seizure of art imported for exhibition, but only in very limited circumstances, which it clearly enumerates. HR 4292 would greatly expand this exception by divesting our courts of all jurisdiction over such objects.

Those are strong statements. And it must be said that the text of the proposed bill, at least by my reading, seems to do just the opposite. It makes it easier for Nazi-era claimants to pursue claims against possessors who send their art on temporary exhibition to the U.S.

It clarifies the concept of “commercial activity”; something needed after a 2005 case, Malewicz v

. City of Amsterdam, which saw heirs of Malevich bringing suit against Amsterdam in federal court in Washington D.C.

Since 1965 the Exemption from Judicial Seizure of Cultural Objects Imported for Temporary Exhibition act grants immunity for temporary exhibitions for material being brought into the U.S. if the loan is in the national interest, and the objects are of cultural significance. Rick St. Hilaire and others have supported this clarification. And on its face the clarification seems necessary. Perhaps what Masurovsky and Davis really want is an end to all art immunizations—but they don’t really come out and say that. Instead they accuse Americn Museums of knowingly exhibiting and gathering stolen art. Though there are certainly examples of this on the extreme margins, the examples that the authors use both cut against their underlying position. The Portrait of Wally litigation never involved Federal immunity, only New York State immunity. And the Koh Ker material was not loaned to the United States, it was acquired or up for auction, and the Federal Prosecutors initiated forfeiture actions.

I am not a provenance researcher, and I am not familiar with how in-depth the State Department grants of immunity checks are, but it seems to me the authors have exaggerated their position. Perhaps I’m missing something, but I don’t see any example of any museum in North America being able to knowingly exhibit stolen material.

Renfrew on the Sevso hoard

A detail from the hunting plate, which refers to locations in present-day Hungary

Lord Colin Renfrew has offered a comment on the Sevso hoard in the Art Newspaper. He revisits the multi-claimant scramble of a lawsuit which saw three nations attempting to wrest control of the hoard from the investment trust; and we learn perhaps why Hungary only purchased a portion of the silver:

Through his lawyer, Peter Mimpriss of Allen and Overy, Wilson was able to interest the Marquess of Northampton in the silver as a proposition for investment, and by 1987, the Marquess of Northampton 1987 Settlement Trust was the sole owner of what by then was a collection of 14 pieces of impressive Roman silverware. The plan for Sotheby’s to sell the silver by auction in Switzerland in 1990 was halted by the seizure of the treasure on a publicity tour to New York, when Lebanon, and then Hungary and Croatia, laid claim to it in the New York State Supreme Court. The court did not find in favour of either Hungary or Croatia, Lebanon having withdrawn its claim, and the treasure was returned to London to the custody of the Marquess of Northampton.

It is important to note that the judge did not rule that the marquess was the legal owner, simply that neither Hungary nor Croatia had demonstrated good title. Not surprisingly, the Marquess of Northampton was disappointed by the sale fiasco of his investment, and (with a new lawyer) sued Mimpriss and Allen and Overy, winning a settlement—reportedly of £24m—in 2000.

In November 2006, the 14 pieces of silver (and the copper container in which they were found) were placed on display at Bonhams auction house for an invited audience. Then the scene went quiet, until the announcement in late March by Victor Orbán, Hungary’s prime minister, that seven pieces of the treasure had been successfully repatriated (at a cost of €15m) and put on public display.

The vendors, who are €15m better off, did not include the Marquess of Northampton; the silver was instead sold by a trust. Its beneficiaries are the two sons of the late Peter Wilson, who made the initial, ill-fated purchase in 1980. Ludovic de Walden, the current lawyer of the marquess, indicated last week that the marquess is still the owner of the remaining seven pieces.

Colin Renfrew, Shame still hangs over the Sevso hoard The Art Newspaper (2014), http://www.theartnewspaper.com/articles/Shame-still-hangs-over-the-Sevso-hoard/32545 (last visited Apr 29, 2014).

Federal Investigation into the Knoedler aftermath

A work once exhibited as a Jackson Pollock

Last week Federal prosecutors in Manhatten revealed more details of the sad demise of the Knoedler gallery. In particular the work of two Spanish brothers and the forger Pei Shen QianThough Knoedler is not mentioned by name, that must be the gallery referred to in the indictment as “Gallery 1”. The indictment contains a long list of art crimes including: wire fraud, money laundering, conspiracy to defraud the IRS, tax fraud, false statements, and conspiracy to commit wire fraud and money laundering. The indictment was unsealed after two of the men in the indictment were arrested in Spain. As reported in the NYT:

The art dealer, Jose Carlos Bergantiños Diaz, who has been sought for many months, was arrested by the Spanish police on Friday at a luxury hotel in downtown Seville, according to the official, who is with the Spanish Interior Ministry in Madrid. He asked for anonymity because he was not authorized to speak publicly.

Mr. Bergantiños’s brother, Jesus Angel Bergantiños Diaz, was also arrested, according to another person with knowledge of the case, who spoke on the condition of anonymity because no charges have been announced in the case. It was not immediately clear whether the United States will seek his extradition as well, but some $33 million netted from the scheme was transferred to bank accounts in his name in Spain.

The Spanish Interior Ministry official said that Jose Carlos Bergantiños Diaz, who had an anxiety attack after his arrest and was briefly hospitalized, was being held by the police in Seville. But he is likely to be transferred to Madrid in the coming days, the official said, where he will appear before a judge pending an expected extradition request from the United States.

The indictment itself alleges:

By knowingly and falsely claiming that the Fake Works were painted by these famous artists, Jose Carlos Bergantinos Diaz, Jesus Angel Bergantinos Diaz, Qian, and Rosales were able to trick purchasers and prospective purchasers into paying tens of millions of dollars in total for many of the Fake Works which, as the defendants and Rosales well knew, were essentially worthless, as the defendants well knew, the Fake Works were created not by famous artists, but by Qian, with guidance from Jose Carlos Bergantinos Diaz, Jesus Angel Bergantinos Diaz, and Rosales. Jose Carlos Bergantinos Diaz, Jesus Angel Bergantinos Diaz, and Rosales also created and refined at least two false provenances (i.e., historical ownership records) for particular Fake Works in order to dupe purchasers into believing that those Fake Works were painted by particular famous artists, instead of by Qian. The defendants earned more than $33 million from the scheme to create and sell the Fake Works. To conceal the illegal nature and origin of the proceeds from the scheme, Jose Carlos Bergantinos Diaz and Jesus Angel Bergantinos Diaz, the defendants, and Rosales worked together to launder the proceeds by transferring the proceeds through foreign and domestic bank accounts that they controlled. In addition, as set forth below, to increase the amount of proceeds he kept from the unlawful scheme, Jose Carlos Bergantinos Diaz, the defendant, unlawfully impeded and obstructed the Internal Revenue Service (‘IRS’) by hiding millions of dollars in his unlawful income from the IRS and by knowingly failing to report the existence of the foreign bank accounts that he controlled or maintained an interest in, as required by law.

You can fool some of the art market, but not the IRS. The tale of the Knoedler is a sad one, it was a storied gallery that had a hand in creating the collections of countless American art museums. I was reminded of this a couple weekends ago when we visited the MFA Houston’s special exhibition of John Singer Sargent, which brings together the Brooklyn and Boston collections of Sargent’s wartercolors. The Knoedler was able to sell one exhibition wholesale to Brooklyn in 1909 and then to Boston in 1912. One imagines the Knoedler was not using a serial forger in 1909, but it was this storied history which perhaps allowed buyers of art to avoid asking uncomfortable questions. If such a storied gallery can make so many egregious ethical and legal lapses, what about other galleries. How can we trust with absolute certainty the authenticity of any work? One may almost feel like Lord Byron in describing the Palace and Prison on each hand as he stood on the Bridge of Sighs.

John Singer Sargent, The Bridge of Sighs, c. 1903–04, translucent and opaque watercolor with graphite and red-pigmented underdrawing, Brooklyn Museum, purchased by Special Subscription. — John Singer Sargent, The Bridge of Sighs, c. 1903–04, Brooklyn Museum.

United States v. Diaz et al., 14 Crim217, Sealed Indictment (S.D.N.Y. 2014).
Julia Halperin, Everything You Ever Wanted to Know About the Knoedler Forgery Debacle But Were Afraid to Ask, Artinfo (2011), http://www.blouinartinfo.com/news/story/753301/everything-you-ever-wanted-to-know-about-the-knoedler-forgery.
William K. Rashbaum, Key Suspect in Art Scheme Is Under Arrest in Spain, N.Y. Times, April 20, 2014, http://www.nytimes.com/2014/04/21/nyregion/suspected-player-in-art-scams-is-arrested-in-spain.html?_r=0.

Heritage and Museums: Ethics & Values May 13 in Warwick

I’ve been forwarded on information about a super networking project at Warwick in two weeks:

Heritage & Museums: Values, Ethics and Communities

Clive Gray and Charlotte Woodhead of the University of Warwick, UK cordially invite you to the second of our roundtable discussions – this time on the topic of Ethics and Communities. These sessions aim to bring together academics and practitioners from the museums and heritage sector to identify and discuss some of the core questions faced in practice.

This free event on +Tuesday 13^th May 2014 comprises a series of brief presentations showing contrasting viewpoints on particular aspect of ethics. This will be followed by the opportunity to discuss the implication of these for the development of more specific research networks with a view to identifying key issues of concern to develop into innovative research initiatives. Full details can be found on the project website (details of which are set out below).

Speakers include: Jonathan Ferguson (Royal Armouries), Kathryn Walker-Tubb (University College London), Janet Ulph (University of Leicester), Mike Robinson (Ironbridge Institute for Cultural Heritage, University of Birmingham) and Vikki McCall (Stirling University).

The roundtable discussion will take place at the University of Warwick on +Tuesday 13^th May 2014 (all day event). If you would like to attend this event (there is no charge to attend and there is even a complimentary lunch!) please complete our online form to reserve a place so that we can make appropriate catering arrangements.

Checking in on Repatriated works

One of the Lysi frescoes on display in Houston at the Menil's Byzantine Chapel Museum — One of the Lysi frescoes on display in Houston at the Menil’s Byzantine Chapel Museum

Rachel Donadio reports for the New York Times on a number of repatriated antiquities back in their nation of origin. The list includes la dea di Aidone in Sicily, the Weary Heracles in Turkey, the Lysi frescoes on Cyprus, and the Euphronios Krater in the Villa Giulia.

Only the Lysi frescos, returned by the Menil to Cyprus after a 20 year loan agreement were acquired with permission of the creator communities:

In rare cases, a repatriation is arranged so that a collector knowingly buys works identified as stolen to protect them from being further damaged or broken up. That happened in 1985, when the art collector Dominique de Menil bought some 13th-century Byzantine frescoes from a Turkish art dealer after the Greek Orthodox Church of Cyprus and government officials there identified them as having been stolen.

When she was first offered the works, depicting Christ Pantocrator and the Virgin Mary with the Christ child surrounded by the archangels Michael and Gabriel, Mrs. de Menil was skeptical about their provenance. She quietly approached the Church of Cyprus, which said the frescoes had been secreted out of the apse and the dome of the church of St. Euphemianos in Lyssi, in a part of Cyprus that had been annexed by Turkey in 1974.

Mrs. de Menil pledged to buy them — and return them to Cyprus in 20 years. The Menil Collection in Houston paid for the frescoes’ restoration, which took years. It built a bespoke minimalist space for them next to its Rothko Chapel and put them on display there in 1998. Themuseum had been hoping that Cyprus would extend the agreement and allow them to keep the works on view.

But in 2012, Cyprus asked for them back, in a climate in which the new government and leadership of the Church of Cyprus have been increasingly aggressive in their campaign to call attention to the deconsecrated Christian religious sites in the areas of Cyprus that Turkey still controls.

The Menil Collection made good on its promise. “Of course we were sad, but in the end we were very proud because ethically, from a moral point of view, this was exactly what needed to happen,” said Josef Helfenstein, the director of the Menil Collection.

The frescoes are now on view in the Archbishop Makarios III Foundation Byzantine Museum and Gallery in Nicosia, Cyprus’s second-most visited museum, “until the day they will be put back in the chapel,” said John Eliades, the director of the Byzantine Museum. That might not be so easy.

Rachel Donadio, Repatriated Works Back in Their Countries of Origin, N.Y. Times, April 17, 2014, http://www.nytimes.com/2014/04/20/arts/design/repatriated-works-back-in-their-countries-of-origin.html.

Klerman on ‘Choice of Law and Property’

One of the stolen Mosaics at issue in AUTOCEPHALOUS GREEK-ORTHODOX CHURCH OF CYPRUS vs.GOLDBERG, 917 F. 2d 278 (7th Cir., 1990)

Daniel Klerman, of the University of Southern California Law School, has a new paper titled “Jurisdiction, Choice of Law and Property” up on SSRN. The piece looks at international choice of law generally, but he argues that the situs rule produces bad outcomes with respect to stolen art disputes. Instead, he argues the lex originis rule produces better outcomes. From the abstract:

Jurisdiction and choice of law in property disputes has been remarkably stable. The situs rule, which requires adjudication where the property is located and application of that state’s law, remains the norm in most of the world. This article is the first to apply modern economic analysis to choice of law and jurisdiction in property disputes. It largely confirms the wisdom of the situs rule, but suggests some situations where other rules may be superior. For example, in disputes about stolen art, the state where the work was last undisputedly owned may be both the most efficient forum and the best source of applicable law.

My article on Italian Forfeiture of the Getty Bronze

My article “Transnational forfeiture of the Getty Bronze” examining the Italian efforts to forfeit the Getty Bronze will be appearing in Volume 32 of Cardozo Arts and Entertainment Law Journal (forthcoming, 2014) soon. Later in May the Italian Court of Cassation is expected to perhaps give a final ruling.

In the meantime here is my analysis of how Italy could successfully use its Mutual Legal Assistance Treaty with the United States to secure repatriation.

From the Introduction:

Italy has been engaged in an ongoing fifty-year struggle to recover an ancient Greek bronze. The “Bronze Statue of a Victorious Youth” has a remarkable story. It was lost at sea in the Adriatic in antiquity; found by chance in international waters; smuggled into the Italian seaside village of Fano; hidden first in a bathtub, then a cabbage field; smuggled and hidden in Brazil; later conserved in Germany and London; and ultimately purchased by the Getty Museum only months after the death of the Trust’s namesake, J. Paul Getty. Getty refused to allow his museum to purchase the statue during his lifetime without a thorough and diligent inquiry into the title history of the Bronze, a step the trustees of the Getty did not take prior to acquisition of the Bronze.

The question is not whether the Bronze was illicit when the Getty trustees made the decision to acquire it. It most certainly was, and still is. The question now is whether the Getty will be able to continue to retain possession. In the press and in cultural property circles, the Bronze is considered nearly un-repatriatable given this convoluted history. But an Italian forfeiture action in Pesaro has quietly set in motion a means by which Italy might repatriate the Bronze through a Mutual Legal Assistance Treaty. This transnational forfeiture marks the creation of a useful new tool in the struggle to repatriate looted and stolen cultural objects. And perhaps more importantly, the dispute signals a continuing trend reflecting the importance of domestic law in source nations in cultural heritage law.