Good luck to all the teams competing in Chicago at the National Cultural Heritage Law Moot Court competition this weekend! This competition is put together by DePaul College of Law with the help of the Lawyers’ Committee for Cultural Heritage Preservation. It’s a great showcase for these soon-to-be-lawyers and this field.
The problem this year:
The 2014 Competition will focus on the Convention on Cultural Property Implementation Act (CPIA), 19 U.S.C. §§ 2601-13, which establishes a framework for imposing import restrictions on undocumented archaeological and ethnological materials. The problem will address the questions of whether agency action taken pursuant to delegated presidential authority is subject to judicial review under the Administrative Procedure Act and whether an intentional violation of the CPIA can serve as the basis for a criminal prosecution under the customs statute.
This summer I’ll be teaching a 1-credit “International Cultural Heritage Law” course in Istanbul. Its a terrific city for the course, home to the Alexander Sarcophagus and the Hagia Sophia, we’ll have a rich set of local examples to draw from for our class discussions. The program is run by the University of Kansas and co-sponsored by William Mitchell College of Law, and my school South Texas College of Law. Information about the other courses and the program is available here.
Here’s the description of my course:
International Cultural Heritage Law (1 credit) Professor Derek Fincham
This course will examine the intersection between law and material cultural heritage. It will show how nations and individuals resolve disputes over art and antiquities. We will examine the international conventions governing cultural heritage and show how they have been useful for nations like Turkey, Italy and Greece in securing repatriation of art and antiquities. Particular attention will be given to the private and public laws used to resolve the growing number of international cultural heritage disputes.
The Shiva bronze statue which the National Gallery of Australia purchased in 2008 for $5 million
A lawsuit filed in New York State court last week could provide one of the strongest disincentives yet to dealing in looted cultural objects. Subhash Kapoor‘s gallery in New York, Art of the Past, has been sued for a laundry list of private law violations; including “fraud, rescission, unjust enrichment, contractual indemnity, and breach of contract” based on the sale of this bronze statue known as Shiva as Lord of the Dance (Nataraja). The plaintiff is the Australian gallery which purchased this work in 2008.
This lawsuit is exactly what should happen when a purchaser with clean hands purchases a work of art from a dealer who knew that a work of art was looted or stolen. I’ve argued before that acquisitions like this defraud the legitimate trade in works of art, and also corrupt our understanding of history.
The NGA lawsuit, to our knowledge, is unprecedented. American museums and private collectors have returned hundreds of looted objects to Italy, Greece, Turkey, India, Cambodia and other countries in recent years. In nearly all those cases, dealers had provided standard warranties guaranteeing good title to the objects. And yet not one museum or collector had filed a similar lawsuit…that we know of.
So why haven’t lawsuits like this occurred with more regularity? Here’s why I think they have been rare. They should be happening every time looted art is repatriated. As any first year law student learns, if someone sells you stolen property, every legal system allows you to bring an action against the launderer of stolen property. But this has not happened in the antiquities trade for a couple reasons. First, many curators and museum officials had too much knowledge of the illicitness of objects they were acquiring. A lawsuit like this would have embarrased institutions like the Getty or the Met or the MFA in Boston by raising uncomfortable question about what due diligence was taken before an acquisition. In this case, it seems as if the National Gallery of Australia is comfortable in defending its due diligence procedures to a court. The NGA alleges in its complaint that it undertook due diligence procedures, while also relying on the warranties given by Art of the Past. But the NGA asked the Art loss register if the statue was stolen, examined letters from the previous owner of the statue, consulted the ‘Tamil Nadu Police website’, checked the records produced by the Archaeological Survey of India, and finally consulted with a bronze expert in India who supported the acquisition.
Perhaps another reason that a suit like this is unique, is the secret nature of the art trade itself. Buyers and sellers are anonymous. But that is changing. When you can trace the path of material through the various purchasers, the market for illicit material shrinks. And that is a very good thing, and why we should all watch this suit in New York closely.
At least according to Daniel Grant. James Turrell, the artist whose medium is color itself, should instead turn to art law to gain more attention. The premise is exaggerated for effect, but only slightly when you consider the range of recent art law disputes questioning the very foundation of the visual arts. It is a great time to be interested in the intersection of art and law.
You really should go read the whole piece, but here are two clips. First, disputes over the nature of art itself have been examined, including whether art is art without its certificate of authenticity:
In May, a Puerto Rican art collector and dealer named Roderic Steinkamp brought a lawsuit against Chicago art gallery owner Rhona Hoffman for having lost a work of art that he had consigned to her. Well, sort of. He had entrusted to her a certificate of authenticity and a diagram for a Sol Lewitt wall drawing, not the wall drawing itself, and she somehow lost this paperwork. Big deal, you think: you ask the Sol Lewitt estate for a duplicate certificate and diagram, maybe pay a fee for the trouble, just as you would if you lost the deed to your house or car. However, the Lewitt estate said no. “We don’t give duplicates,” said Susanna Singer, long-time business manager for Sol Lewitt and now an advisor to the estate. “We don’t want two certificates out there, raising the question of which is the real one.” . . . It’s the view of the estate that the certificate of authenticity and especially the diagram are the actual work of art; the paperwork is the art, rather than an installation of the wall drawing, and in this instance no installation appears to have taken place.
Grant concludes:
The portion of the legal community that focuses on the arts (literary, performing, and visual) is still small, in part because there aren’t really that many disputes requiring counsel, and also because the people most likely to be wronged are lesser-known artists without the resources to pay for lawyers. It was big money that drove the lawsuits most recently, but these cases are also notable because they ask basic questions, from what is art to who decides where and how it will be sold and displayed. They’re questions that in an earlier age might have been more a part of the general discourse but are now left to the courts to decide. Perhaps, if he wants more attention, James Turrell should write a legal brief.
The birth of art law as a field can only really be traced to 1979 and John Henry Merryman at Stanford, though there were of course legal disputes over art long before that. Yet he got lawyers and artists to think in an organized way about the intersection between law and the visual arts. Those questions seem to be getting more foundational as art becomes more conceptual, challenging our ideas of how value for art is created and how to resolve the inevitable disputes. Lawyers follow money sure, but so does art.
One of the highlights of my year is getting to travel to Amelia every summer to teach in ARCA’s postgraduate program, and to organize its annual conference. There seem to be a wave of great art and heritage conferences all over the world now that are helping to promote the field—one that is still very much in its early stages. I want to make a push for what I think is a unique conference, ARCA’s annual conference in Amelia. With many of us experiencing the latest cold snap here in the states, it might be a good time to cast your attention to thoughts of summer and warm Umbrian sunshine. Our conference hopes to promote study of art crime and cultural heritage by focusing attention on the good writing and work being done, and offering a collegial space for folks to come together. Many of us rely on the internet to communicate and interract, so it is a real treat to meet folks you’ve been emailing and reading for years. And best of all the conference offers plenty of time for socializing and taking in the Umbrian countryside. Our panels are organized into groups of 3-4 speakers, with 20 minutes per speaker. Presenters hail from a terrific range of backgrounds including: law, criminology, art history, law enforcement, archaeology, journalism, and others.
If you are interested in submitting a proposal to present, or attending (there’s no admission fee, just a small charge for lunch and dinner) keep reading below the jump for the particulars.
Palestinian MInistry of Tourism and Antiquities via Bloomberg
Vernon Silver reported on Friday for Businessweek on the Gaza Apollo. The Bronze was found in remarkably good condition in shallow waters off the Gaza strip, just north of the Egyptian border. Silver is an archaeologist who wrote a terrific account of the Euphronios Krater in 2010 called “The Lost Chalice“. He’s done some excellent reporting on this Bronze. We learn a Palestinian fisherman, Jouda Ghurab, found the statue while diving with a net last August. Silver reports that with the help of his brother and other men, they were able with some difficulty to bring the Bronze ashore.
Ghurab dove down with the rope and tied it to the statue’s neck. Using the boat, they managed to right the statue. They tied another line around its base and tried to lift it so they could tow it to shore. Instead, they nearly sank the boat. Finally, Ghurab and another diver were able to turn the statue, sliding it head over foot, and foot over head, spinning it along the sea bottom until it reached the beach. They finished around 4:30 p.m., almost five hours after Ghurab had discovered the prize. It took six of them to lift the bronze onto a donkey cart. They took it to a nearby cluster of buildings Ghurab shares with other family members. Among the structures is a hut with a sand floor, a roof of palm fronds, and a wall made from a plastic banner picturing Sheikh Ahmed Yassin, the spiritual leader of Hamas, whom Israel assassinated using Hellfire missiles in 2004. The men placed the statue on the floor of a house in the compound, unaware they had discovered what might be the most valuable archaeological find of the century. Soon, though, things would get very complicated. After all, it is Gaza.
It does not sound like much of the archaeology was recovered or even considered.
Jawdat Khoudary, “an antiquities collector who makes his money in construction” was asked to find a buyer for the Bronze. Yet conservation is essential. A Bronze which has been preserved by the ocean for so long needs expert care, and time is extremely precious during the early moments of discovery.
Bauzou at the Université d’Orléans was one of the experts Khoudary called. The French archaeologist corresponded with the Gaza Ministry of Tourism and Antiquities, using photographs to assess the bronze. “This statue is a major discovery,” he wrote in a Sept. 23 letter in which he expressed alarm over the work’s conservation. “I do not like the light green spots visible on the pictures … it is an emergency!” He said specialists in metal preservation and restoration needed to be called in at once to decide how to proceed. The transition from the dark color seen by the fisherman to the new green hue might be a sign of a type of corrosion akin to a grave dermatological condition.
. . .
Bauzou concluded from his research that the statue dated from between the 5th century B.C. and 2nd century A.D. “The Apollo of Gaza is exceptional because it is the only classical Greek bronze life-size statue found in the whole Middle East,” he wrote in another report, dated Oct. 4.
Silver notes of course that one of the difficulties plaguing the Bronze is the uneasy position that the Hamas government finds itself in. It is not an independent state yet, and has yet to be recognized by many foreign governments. Given that our current system of cultural heritage laws are predicated on state ownership and regulation, the Gaza Apollo is an uneasy case which stands in a gap in heritage law. A fact that some have speculated is quite convenient for the current possessors of the Bronze, and has led to speculation that the Bronze may have been discovered elsewhere and taken to Gaza.
The surprising thing, as Silver points out, is that the statue shows little evidence that it was submerged in the sea for centuries. Is the reported find-spot a blind to distract the authorities from a ‘productive’ site?
Yet Silver’s reporting would seem to preclude that possibility.
The Art-Law Centre in Geneva is organizing a conference June 13-14th in Geneva. The full call for papers is here. From the call:
The Art-Law Centre of the University of Geneva is convening all those engaged in research and teaching in the field of Art and Cultural Heritage Law to the First All Art and Cultural Heritage Law Conference. At the Conference, the three themes described below will be examined and discussed. For each theme, a panel of 4 experts has been selected, and other experts will be drawn from this call for papers. The panel’s chair will lead the discussion which will take place before the conference between the panelists and the authors. At the conference, the results of that exchange will be presented and further developed.
Repatriated Etruscan objects, part of the Nostoi exhibition
Dr. Christa Roodt has written a piece for the International Law Journal of Southern Africa titled “Restitution of art and cultural objects and its limits”. She is a Research Lecturer at the University of Glasgow. Her piece is available from Trafficking Culture.
The abstract:
Art and cultural objects have a complex nature and status. A legal approach cannot escape having to state which objects come within the scope of the definition, but an objective legal definition in abstracto is difficult to provide. Because the flows of licit and illicit objects are so intermixed, both the legitimate and underground art markets are implicated in the trade involving these objects. Global legal diversity further complicates the distinction between the licit and the illicit trade. This article takes stock of restitution and suitable dispute settlement mechanisms against this backdrop. Restitution processes have become more openly policy-oriented, and the meaning of ‘restitution’ now extends to overcoming the legal obstacles in the way of return. Law can provide the framework for negotiation and dispute settlement in many cases, but the ethical dimension is a particularly powerful agent for restitution of Nazi spoliated art and human remains.
Burt Lancaster as French Resistance fighter Labiche in The Train
As the George Clooney project Monuments Men, based on the work by Robert Edsel, finally nears its release on February 7th, it may be worth revisiting a 1964 masterpiece.
How many men should die to save a work of art? How much money should be devoted to its protection and preservation? The Train forces us to consider our answer. Set in 1944, in the final days of the war, the conflict has all but been decided, and the question raised by the film is not the simple question of whether a Monet or Braque should be worth the sacrifice of human lives, but a more complicated question. Director John Frankenheimer asks the audience to consider how many men and women should die to keep the works in France at the end of a long and deadly struggle. The film weighs the lives against innocents, against enough money to equip “ten panzer divisions”, and against the lives of French resistors. The result is one of the very best anti-war films.
On Friday in Cairo three explosive devices have killed a reported five people. One of those explosions was close to the Museum of Islamic Art in central Cairo. The facebook page titled ‘Egypt’s Heritage Task Force’ reports:
Unfortunately, the hanging ceiling at the museum collapsed due to the explosion while several of the objects such as those of glass and ceramics have been seriously damaged. The museum dates back to 1870 and as can be seen from the images, its front face has been seriously affected. In Dar el-kutub behind the museum, 8 manuscripts have been destroyed and several others damaged and are currently being transferred to a safe place.
The Islamic Art Museum in Cairo, picture via Egypt’s Heritage Task Force
There may be more risks to museums in the coming days. January 25th marks the three-year anniversary of the Revolution of 2011 which ousted former Prime Minister Hosni Mubarak. It also led to increased looting of remote archaeological sites, and coincided with thefts at the Cairo Museum of Antiquity, along with other incidents of damage, looting and destruction. But there were also examples of Egyptians standing up and shielding their own heritage from destruction.
The Museum of Islamic Art was re-opened in 2010 after an eight-year renovation project.
