Author: Derek Fincham

Art & Law Symposium in Basel, June 14

I’ve been forwarded on some details of an Art & Law Symposium scheduled on June 14 in Basel. From the website, in German:

Freitag, 14. Juni 2013, 09.15-17.15 Uhr
Juristische Fakultät, Universität Basel, Peter Merian-Weg 8, Basel, Pro Iure Auditorium
In diesem Jahr dürfen Dr. Peter Mosimann und PD Dr. Beat Schönenberger bereits zum vierten Mal ein an kunstrechtlichen Fragen interessiertes Publikum zur Tagung „Kunst & Recht/Art & Law“ einladen. Wie gewohnt findet dieses Seminar am Freitag der Art Basel-Woche in den Räumlichkeiten der Juristischen Fakultät Basel statt.
Die Organisatoren konnten wiederum hochkarätige Experten aus dem In- und Ausland gewinnen, die in ihren Referaten das weit gefächerte Fachgebiet des Kunstrechts widerspiegeln. Nach dem Grusswort des Rektors der Universität Basel (Prof. Antonio Loprieno) wird ein zentrales Anliegen der Kunstsammlung an sich, nämlich das Bewahren, aus einer erbrechtlichen Perspektive beleuchtet werden (Prof. Xavier Oberson). Dabei ist insbe-sondere auch die Kunststiftung als Mittel der Erhaltung einer Sammlung von zentralem Interesse. Zeitgenössische Kunstformen, wie multimediale Werke, stellen heute nicht nur Sammler und Kuratoren, sondern auch Juristen vor neue Herausforderungen. Auch anhand der Beuys-Aktion von 1964 werden urheberrechtliche Fragen im Zusammenhang mit solchen Werken dargestellt (Dr. Gernot Schulze). Anschliessend soll aber auch ein Galerist zur Problematik im Umgang mit aktuellen Kunstformen zu Wort kommen (Stefan von Bartha). Der zweite Teil des Seminars ist zuerst dem Thema der Bewertung und Risikokalkulation bei Hingabe von Kunstwerken als Sicherheit gewidmet, wozu ein renommierter Experte aus New York referieren wird (Stephen D. Brodie). Den Abschluss der diesjährigen Tagung „Kunst & Recht“ wird ein Ausblick auf das Thema „Bildende Kunst & Politik“ machen (Yves Fischer). Die Veranstaltung wird unterstützt durch:
Stämpfli Verlag AG Bern CHRISTIES’S VON BARTHA

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

Increasing the Use of Forfeiture in Policing Heritage

The NYT’s Tom Mashberg reports that Sharon Cohen Levin and Alexander Wilson (two Assistant U.S. Attorney’s) have traveled to Cambodia to examine the site where the 10th Century Koh Ker statue was likely looted in Cambodia. I have no way of knowing whether a trip like this is unusual or not. It seems to me to be a good idea to get some context for the original looting. For those who don’t know, Assistant U.S. attorneys are the Federal government’s prosecutors. And when these folks take on a case, they do so selectively, and generally only if they are confident in a win. These offices across the country have a very high winning percentage in the cases they take on. So it is not much of a surprise that these AUSA’s have decided to make a trip to Cambodia to examine the site itself:

The NYT image of the feet at the temple
where the Koh Ker statue was likely looted

A Cambodian government spokesman, Ek Tha, said the delegation that visited the temple included Cambodian and foreign archaeologists. A federal judge is scheduled to rule in weeks on whether the government’s case to seize the statue can proceed to trial. In earlier arguments District Judge George B. Daniels has pressed prosecutors on what proof they had that the statue, called the Duryodhana, was taken in the 1970s. Sotheby’s has been trying to sell the statue, valued at as much as $3 million, on behalf of its Belgian owner since 2011. The United States government says the auction house had reason to suspect that the statue had been stolen, and that it is the rightful property of Cambodia, citing laws governing antiquities adopted when the country was a colony of France. Sotheby’s has said the statue was legally purchased in good faith from a reputable London auction house in 1975 by the owner’s husband, now deceased, who had no reason to suspect that such a sale could be bound by laws set by a government that had long passed from power. In a statement the auction house said the trip by the lawyers “will not change critical weaknesses in the government’s case — most importantly, its reliance on hopelessly ambiguous French colonial decrees.”

Those French decrees aren’t all that ambiguous when considered in light of these two feet without the rest of the statue.

I thought the comments of Rick St. Hilaire were interesting, he argued that this trip was a kind of show of force by the AUSA’s. Not sure if that is true or not, or even if these folks even need to be concerned with a  show of force, but it does highlight I think how even remote areas like this temple complex are more closely connected than before, and that makes a forfeiture proceeding like this more likely to proceed.

  1. Tom Mashberg, United States Officials Travel to Cambodia in Statue Case, The New York Times, March 1, 2013, http://www.nytimes.com/2013/03/02/arts/design/united-states-officials-travel-to-cambodia-in-statue-case.html (last visited Mar 4, 2013).
Questions or Comments? Email me at derek.fincham@gmail.com

Cleveland Hires a full-time provenance researcher

Stevel Litt reports for the Cleveland Plain Dealer that the Cleveland Museum of Art has hired a full-time provenance researcher. To my knowledge, that make Cleveland and the MFA in Boston as the only two major U.S. museums who have brought in full-time provenance researchers. From Litt’s report:

One report links drugs and antiquities smuggling in Texas

This report from a local Dallas news station details yet another example of how illicit networks piggyback off each other. We know that in Italy antiquities smugglers used other illegal and grey networks to smuggle antiquities up into the freeports of Switzerland.

It comes as no surprise then that the illegal narcotics trade, a big problem on the border towns of the US and Mexico, has also opened up pathways for looted and stolen antiquities.

According to Homeland Security Investigations, thieves removed thousands of items from archaeological sites in the area of Northern Mexico near Big Bend National Park. Other artifacts were stolen during a museum heist in Cuatro Cienegas, Coahuila, and smuggled across the border. “From here, they’d be just like drugs or any other stolen property,” Stone said. “They’d be moved and transshipped to other locations.” Undercover agents intercepted some of the items by infiltrating the smuggling ring. “We were able to set up some meetings and view these artifacts posing as buyers,” said Bill Fort, a Homeland Security Investigations agents who helped crack the case.

Here’s the video report:

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

The Race to Reform in the American Museum Community

The DMA returned ownership of this red-figure krater (4th century BC)—
Italian officials allowed the piece to remain at the museum on loan

Max Anderson is leading the way towards reform in the American Museum Community. The Director of the Dallas Museum of Art has an OpEd in yesterday’s Dallas Morning News responding to recent criticism in the New York Times of the decision by museums to return looted works of art. Here’s the introduction to the piece:

Protecting the world’s cultural heritage is essential to all of us. Like the natural environment, the material record of the past is irreplaceable and easily damaged. Whether you live in a country rich in archaeological finds, or a country with curiosity to learn about the past, every citizen wants to protect archaeological sites from intentional or accidental destruction. And every scholar and museum professional wants to share our most complete understanding of the objects and beliefs that people treasured in the past. The illicit trade of these objects is responsible for one of the largest international black markets, and the destruction of archaeological sites is often the result. It is not museum purchases that have been fueling the damage in recent years: As a result of strict, self-imposed guidelines, those acquisitions have slowed to a trickle over the last decade. However, private purchases are not subject to such guidelines and take place invisibly. Additionally, the construction of public works, from roads to buildings, causes undocumented harm to historic sites every day around the globe, not to mention accidental discoveries on private property, quickly hidden or destroyed. Natural disasters and armed conflict also take their toll on the world’s cultural heritage.

With this and other statements, Anderson is distinguishing himself and his institution from the old days of optical due diligence and the acquire-at-all-costs attitude of so many other American museums. Those policies have slowly been reformed, bu many still cling to that old idea, that these museums should acquire beautiful objects, despite the looting and theft which brought them to a shady international market. I hope that more and more museums look for more creative and sustainable means of acquisitions in the way Anderson has done. Nations of origin and foreign museums really do need each other. Now the mark of a great museum is not how many ancient objects it can acquire— in the past Anderson has called this lust for acquisition the desire to make museums ‘treasure houses’. Instead cooperators with nations like Italy will find collaborative relationships and long-term loans in exchange for cooperation in returning looted objects. Rather than hoard the ill-gotten acquisitions of the past, I think museums will find themselves working quickly to get at the head of the collaborative line with these nations. Anderson’s opinion piece, and the recent nudge towards reform in the AAMD guidelines are the most recent indication of what one hopes will be a positive shift.

  1. Maxwell Anderson, Giving back art — how museums see it, Dallas News, Feb. 8, 2013.
Questions or Comments? Email me at derek.fincham@gmail.com

Call for Presenters, ARCA’s 5th Annual Conference, June 21-23, Amelia Italy

Association for Research into Crimes against Art 
5th Annual Conference, June 22-23, 2013, Amelia Italy
Call for Presenters

Aims of the Conference

The conference brings together experts and practitioners to examine crimes against art in all its forms—theft, looting, destruction, and fraud. Presenters are welcome from any allied fields which touch on art crime, including: law, criminology, law enforcement, security, art history, archaeology, conservation, journalism, and any other relevant field. Presenters are grouped into thematic panels of 3-4 speakers. Each speaker will be strictly limited to a 20 minute period, with ample time for questions at the conclusion of each panel, to allow for a lively and engaging conference.

The conference is held in the beautiful town of Amelia, in the heart of Umbria, Italy. The conference will include a cocktail reception on Friday, June 21 at an elegant palazzo, as well as an awards dinner on Saturday evening, to honor recipients of ARCA’s annual awards for scholarship, lifetime service, art security and recovery, and policing.

To submit a proposal or to attend:

Please contact me at Derek.fincham@artcrimeresearch.org

Presentation submissions should include a short title which summarizes the main idea of your presentation, and a longer but still concise summary of your proposed presentation topic.

There is a small fee to offset the cost of the cocktail and conference dinner, but there is no registration fee for the conference. Please contact Dr. Fincham if you plan on attending, as we can put you in touch with Monica Di Stefano, ARCA’s accommodations director in Amelia who can direct you to suitable accommodation and assist with travel arrangements. We regret that, as a small non-profit, we have very limited travel funds available to assist presenters or attendees.

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

Reactions to Hugh Eakin’s Anti-repatriation NYT Op-Ed

A recent looter’s pit in Cerveteri

I’m not sure who is editing the New York Times Sunday Review, but this Sunday’s piece by Hugh Eakin contained a stunning array of factual inaccuracies. To pick a passage:

Since 2006, more than 100 statues, bronzes, vases, mosaics and other works have left public collections in the United States. Among them was the Euphronios krater, depicting a scene from the “Iliad,” which awed visitors to the Met for decades, and a rare limestone and marble statue of a Greek goddess, which the Getty purchased for $18 million in 1988. In nearly every case, the museums have not been compelled by any legal ruling to give up the art, nor are they receiving compensation for doing so. And while a few of the returned works have been traced to particular sites or matched with other fragments residing in the claimant country, many of them have no known place of origin.

Eakin may not know, but these returns, particularly from the Getty, were accompanied by corresponding loans heading in the other direction. The bronze “Chimera of Arrezzo” is hardly nothing.

No mention is made of breaking up the once-called “Getty Goddess” to transport in the trunk of a car; nor the destruction of context. Having seen a looters pit and visiting these sites must I think cause any thinking person to change his or her views of the proper place for looted objects. Moreover, museums are repositories of works of art and cultural objects, but not at the expense of the rule of law. Eakin’s false claim that these objects were not returned with the benefit of a legal ruling breezes over the unassailable fact that many of these institutions have been challenged in court, and in many cases museums return objects well in advance of a legal ruling or claim lest their own curatorial staff be subject to criminal prosecution in the United States or abroad. Not every return can be so casually dismissed as museums making up evidence of theft and looting. It would be a bizarre legal system that said that so long as a murder occurs and the perpetrator can hop off to another country, the defendant should get off free and clear. But that’s the casual indifference displayed by Eakin. Here are a few other reactions.

Lynda Albertson, ARCA CEO notes that Eakin hasn’t been speaking with anyone in Rome:

Having just spent last Thursday, January 24th at the round table symposium at the Villa Giulia hosted by Alfonsina Russo, Superintendent Archaeologist for Southern Etruria, in reviewing the work conducted in these contentious cases over the last 15+ years I can assure you that extortion is not, nor has it ever been, a nefarious motive in seeking the return of Italy’s looted antiquities. Italy’s motive, if it can be summed-up in a simple statement, is to preserve and protect the country’s antiquities for all its generations and in doing so, by recording objects in their discovered contexts, expanding upon our knowledge of the ancient world.

David Gill also notes that just because we don’t see a lawsuit filed doesn’t mean the possibility wasn’t mentioned to recalcitrant museums:

He suggests that foreign governments have been threatening legal action over the return of antiquities. But I suspect that major museums have been secretly relieved to avoid that course of action. I do not know if Eakin has seen the photographic and documentary archives, but the thought of this material being unpacked in a courtroom where every image would be analysed in the media is one that would probably make the blood of most museum directors run cold. It is sufficient to say that Italy has probably claimed less than 1% of the objects in the photographic archives. This suggests great restraint, understanding and flexibility from the Italian authorities. But it also calls for flexibility from the North American museum community.

Rick St. Hilaire notes that stolen property cannot be lawfully retained:

Waiting for a court order to demand the repatriation of stolen or smuggled artifacts when potential settlement options are available disrespects the rule of law and undercuts a museum’s reputation. Attorneys, museum directors and trustees, museum donors, the general public, and the courts likely would not support the courtroom clashes resulting from “The Great Giveback’s” call to legal arms. Museums are highly respected, and there is an expectation that they will “do the right thing” by finding acceptable legal solutions before initiating or inviting litigation that might result in the forced return of stolen or smuggled property.

Lee Rosenbaum also notes the problems with reality in Eakin’s argument and rightfully argues it should have been ignored had it not graced the pages of the Grey Lady on Sunday:

Since Eakin has extensively covered the Cultural Property Wars in pieces for many publications, his misstatements and distortions regarding repatriations are likely to have been either deliberate or indicative of how much he has forgotten about what he once knew. A third possibility is that he is prone to blanket statements that he believes to be true but hasn’t adequately researched.

  1. Hugh Eakin, The Great Giveback, The New York Times, January 26, 2013, at 12.
A sample of some other essays from my own files demonstrate Eakin’s view has changed very little:
  1. Hugh Eakin, What Went Wrong at the Getty, New York Review of Books, June 23, 2011, http://www.nybooks.com/articles/archives/2011/jun/23/what-went-wrong-getty/?pagination=false (last visited Jun 6, 2011).
  2. Hugh Eakin, Italy Focuses on a Princeton Curator in an Antiquities Investigation, The New York Times, June 2, 2010, http://www.nytimes.com/2010/06/03/arts/design/03curator.html?pagewanted=all (last visited Jun 3, 2010).
  3. Hugh Eakin, Who Should Own the World’s Antiquities?, The New York Review of Books, May 14, 2009, http://www.nybooks.com/articles/archives/2009/may/14/who-should-own-the-worlds-antiquities/ (last visited Aug 27, 2011).
  4. Randy Kennedy & Hugh Eakin, Met Chief, Unbowed, Defends Museum’s Role, The New York Times, February 28, 2006, http://www.nytimes.com/2006/02/28/arts/28mont.html (last visited Aug 26, 2011).
  5. Randy Kennedy & Hugh Eakin, The Met, Ending 30-Year Stance, Is Set to Yield Prized Vase to Italy, The New York Times, February 3, 2006, http://www.nytimes.com/2006/02/03/arts/03muse.html&ref=euphronioskrater (last visited May 4, 2011).
Questions or Comments? Email me at derek.fincham@gmail.com

Tsosie on ‘Indigenous peoples and epistemic injustice’

Prof. Rebecca Tsosie of Arizona State has a new article in the Washington Law Review titled “Indigenous Peoples and Epistemic Injustice: Science, Ethics, and Human Rights”. From the Abstract:

This Article explores the use of science as a tool of public policy and examines how science policy impacts indigenous peoples in the areas of environmental protection, public health, and repatriation. Professor Tsosie draws on Miranda Fricker’s account of “epistemic injustice” to show how indigenous peoples have been harmed by the domestic legal system and the policies that guide the implementation of the law in those three arenas. Professor Tsosie argues that the theme of “discovery,” which is pivotal to scientific inquiry, has governed the violation of indigenous peoples’ human rights since the colonial era. Today, science policy is overtly “neutral,” but it may still be utilized to the disadvantage of indigenous peoples. Drawing on international human rights law, Professor Tsosie demonstrates how public policy could shift from treating indigenous peoples as “objects” of scientific discovery to working respectfully with indigenous governments as equal participants in the creation of public policy. By incorporating human rights standards and honoring indigenous self-determination, domestic public policy can more equitably respond to indigenous peoples’ distinctive experience. Similarly, scientists and scientific organizations can incorporate human rights standards into their disciplinary methods and professional codes of ethics as they respond to the ethical and legal implications of their work.

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