Author: Derek Fincham

Student Note on Nazi-Era Claims and the Internal Revenue Code

Joseph F. Sawka has a student article in Volume 17 of the the Miami International and Comparative Law Review, “Reconciling Policy and Equity: The Ability of the Internal Revenue Code to Resolve Disputes Regarding Nazi-Looted Art”.  A copy can be downloaded here.  He argues that one way to mitigate the harms which can occur when an innocent current possessor of a holocaust-era work of art that should be returned to claimants might be to allow the innocent current possessor to receive a tax deduction through a 501(c)(3) nonprofit organization.  An interesting proposal, here is his abstract:

During World War II, the Nazi regime plundered numerous amounts of cultural property and artwork throughout Europe. Many of the items found their way into the hands of good-faith purchasers in the United States. With the growth in technology and communications in the last fifty years, claims for the return of the stolen property have become more prevalent. However, principles of legislative policy and moral equity tend to conflict in litigation involving Nazi-looted art. Should a good-faith purchaser with a large investment in an item be forced to surrender it? Are courts suited to handle the deep emotional, psychological, political, and moral underpinnings associated with the context of World War II? As litigation costs rise exponentially, it is often vital for parties to find alternatives to litigation. This article explores the ability of the Internal Revenue Code, via Section 501(c)(3), to solve disputes involving Nazi-looted art claims. When property, such as artwork, is indivisible, the result of litigation is usually winner-take-all. However, the Internal Revenue offers an alternative solution. It can allow the good-faith purchaser and claimant to emerge without a total loss.

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

Footnotes 5.10.2010

  • Fritz Lang’s famous film Metropolis has been recovered, due in large part to Argentine film archivist Fernando Pena.
  • A misappropriation of a da Vinci by Christie’s could have cost one woman millions.
  • Zahi Hawass of Egypt calls for a unified approach on stolen antiquities.
  • Is American architecture coming to an end?
  • Indonesia is auctioning off over 250,000 antiquities from a recently discovered 10th century shipwreck near Java.
  • Pieces of silver were recently stolen from the National Trust’s Kedleston Hall.
  • Turkish forgeries were found hanging on the walls of the State Painting and Sculpture Museum in Ankara.
  • Organized crime networks in Iraq show no intention of halting the valuable business of looting ancient artifacts.
  • An English man is on trial for stealing valuable horticultural books from a famous library in London.
  • This is old news, but the Getty Trust elected Ronald Spogli, former U.S. ambassador to Italy, to its board, possibly in an attempt to strength its ties with Italy.
  • Click here to read in depth on the recently held ABA Section of International Law Panel on the 1970 UNESCO Convention.
Questions or Comments? Email me at derek.fincham@gmail.com

Kimmelman on Drawing the Borders of Culture

Michael Kimmelman has a piece discussing the Parthenon sculptures and how it has influenced other repatriation debates.  He seems to favor a cosmopolitan approach, and borrows a good deal from James Cuno without mentioning him by name.  After all the mention of Cuno in some circles often shuts off any reasoned discourse.  And though he seems to be frustrated with his conclusion—that the Parthenon sculptures taken by Elgin should remain in London—he manages to make some thoughtful observations.  His best argument may be comparing the Euphronios Krater to the Parthenon sculptures:

And in the end patrimony is about ownership, often of objects that as in the marbles’ case, come from bygone civilizations. What, in this context, does it really mean to own culture?

Italy recently celebrated the return of a national treasure after the Metropolitan Museum gave back a sixth-century B.C. Greek krater by the painter Euphronius that tomb robbers dug up outside Rome during the 1970s. Stolen property is stolen property. But how curious that an ancient Greek vase, which centuries after it was made came into the possession of an Etruscan collector (a kind of ancient Elgin) living on what is now the outskirts of Rome, and then ended up buried for thousands of years below what became modern Italy, is today Italian cultural patrimony. By that definition, Elgin’s loot is arguably British patrimony.

Thought-provoking stuff, well worth a read. 

  1. Michael Kimmelman, Who Draws the Borders of Culture?, The New York Times, May 4, 2010, http://www.nytimes.com/2010/05/09/arts/09abroad.html?partner=rss&emc=rss&pagewanted=all (last visited May 6, 2010).
Questions or Comments? Email me at derek.fincham@gmail.com

Heritage Neglect in Moscow

The Moscow Times has the story of a 17th-century merchant’s home in central Moscow which has been damaged by fire, neglect, water and ice:

Cracks can be seen in the facade of the four-story historic building in the center of Moscow, but it is only when you look at the side that you can see the calamitous state it is in. Part of the roof has fallen in after a fire hit the building last December.

Since then the building has been at the center of a struggle between preservationists and the city department that is supposed to protect the building.

Fyodor Bogatyryov from preservation organization Arkhnadzor brought a suit against the city property department and the city cultural heritage committee for their failure to act to save or even attempt to repair the building since the fire. The suit was rejected by the Zamoskvoretsky District Court last week.

The court will explain its reasoning Wednesday, and Arkhnadzor will almost certainly appeal the decision.

When activists from Arkhnadzor went inside the building after the fire, they discovered a hidden gem.

“The cellar is 17th century, the first floor is 18th century, and the second floor is 19th century,” Bogatyryov said. Nineteenth-century interiors are preserved on the first and second floors, including intricate oak balusters and stucco ceilings. All of it would have been destroyed if the building’s investor’s original plans went ahead.

Before they thought of bringing the case, Arkhnadzor appealed to the cultural heritage committee, held meetings, picketed, but nothing was done, Bogatyryov said. “We decided on more radical methods,” he said.

It was not just the fire that had damaged the building, one of a series of blazes that have hit old Moscow buildings in the last year. The water used to put out the fire turned to ice and, with no repairs done since, has melted causing serious damage to the building. With part of the roof falling in, the building has been exposed to the elements for more than four months.

  1. Kevin O’Flynn, Arkhnadzor Sues City Over Heritage Neglect | Arts & Ideas | The Moscow Times The Moscow Times, http://www.themoscowtimes.com/arts_n_ideas/article/arkhnadzor-sues-city-over-heritage-neglect/405408.html#no (last visited May 6, 2010).
Questions or Comments? Email me at derek.fincham@gmail.com

Using Injunctions to Stop Fossil Hunters in England

The Jurassic Coast in Devon

Carolyn Shelbourn, a Senior Lecturer at the Sheffield University School of Law has forwarded on a couple of interesting stories on the use of injunctions to prevent the taking of fossils in England.  In England, fossils have very little legal protection, and authorities have had to resort to injunctions, because the criminal provisions which apply to certain classes of antiquities do not apply to fossils. 

Recently the National Trust and the Charmouth council won an order banning a Somerset man from extracting fossils out of cliffs on the coast.  The National Trust has said:

The man has been involved in extracting large numbers of fossils by digging expressly against the wishes of the landowners and the guidance of the West Dorset fossil collecting code of conduct. His actions have also placed the public, including walkers and families, at risk from falling rocks.

Another injunction was made against “unknown persons” from digging in the area.  Fossils may still be collected from the beach, but not the cliffs.  The wholesale, perhaps even commercial taking was causing damage, and these injunctions were perhaps the only way to prevent these takings.  Shelbourn notes that this “persons unknown” injunction is a recent development in the law, first used perhaps to prevent a pre-publication of one of the Harry Potter books.  She notes also that “[t]hey have also been used here to try to prevent planned environmental protests . . .  The [National Trust] appear to have had to use civil law because of the lack of legal protection via criminal law.”   

  1. Jurassic ban for fossil diggers, BBC, March 25, 2010.
  2. Diarmuid MacDonagh, Rogue fossil hunters banned from Jurassic Coast section (From Dorset Echo) (2010) (last visited May 4, 2010).
Questions or Comments? Email me at derek.fincham@gmail.com

Auction Houses and the Sale of Heritage

“You have to know the dirty tricks, there are dirty tricks”.

So says Claude Pariset an antiques dealer from Champagne, discussing the art trade in the New York Times yesterday. 

A number of recent stories of this ilk continue to show why the auction house system of the sale of art and antiquities, with its anonymous sellers and buyers has had devastating consequences on our heritage.  As I’ve argued, these auction houses play an important role in the market, know exactly what they are doing, and yet the anonymity continues to shield their practices, and allow for the sale of looted and stolen pieces of heritage. 

First, an update on the wrongdoing at the Hôtel Drouot auction house in Paris.  Late last year French authorities had uncovered stolen artworks, and an art-trafficking network.  Now there are further reports of corruption, including faking bids, collusion to keep prices down, and theft as well. 

This comes as Bonham’s auction house tries to find some antiquities to sell in its auction today.  It has withdrawn a marble statue which was included amongst the notorious Medici polaroids. It has also withdrawn some Roman funerary sculptures that bore signs that they had recently been illegally excavated, pictured above.  An Anglo-Saxon stone was also removed from auction.

After concerned authorities and archaeologists contacted Bonham’s, these objects have all been withdrawn from auction.  But that does not mean they won’t be sold again privately, and does not mean that we know who the sellers were. 

  1. Scott Sayare, Chatter of Swindles and Scams at Auction House, The New York Times, April 26, 2010.
  2. Dalya Alberge, Roman sculptures withdrawn from auction amid fears they are stolen, The Guardian, April 27, 2010.
  3. Mike Pitts, Save our Anglo-Saxon stone!, The Guardian, April 24, 2010.
Questions or Comments? Email me at derek.fincham@gmail.com

Student Comment on Recovering WWII-Era Art from Russia

Michael Cosgrove has a student comment on remedies for the return of art from Russia:  Still Seeing Red: Legal Remedies for Post-Communist Russia’s Continued Refusal to Relinquish Art Stolen During World War II, 12 Gonzaga Journal of International Law (2009).  From his introduction:

            When the Red Army entered Germany at the end of World War II, it seized 2.3 million objects including paintings, sculptures, and other works of art. At the time of this writing in 2009, the bulk of those objects are still in Russia. In addition to hundreds of thousands of pieces that belonged to German citizens and German museums the Russians hold paintings that the Nazis had stolen from all over Europe. Many of the works in question have been kept in locked rooms in the basements of museums since the end of the war. Although there were some encouraging signs that the art might be returned, or at least allowed to be displayed, with the end of the communist government, it does not appear that Russia is considering a large scale return of the art at this time. To the contrary, the Russian government has long held that the art is restitution for the destruction and theft of Russian art by the Nazis, and passed a law in 1998 that declares that the art is state property. This article explores the international legal remedy for procuring that art from the Russian government. “[U]ntil every one of those paintings, prints, sculptures, tapestries, and artifacts is returned, it will be impossible for us to walk through most of the world’s museums and galleries without wondering if we are staring into the haunted face of the spoils of war.” At the outset, a conclusion: favorable verdicts are obtainable, but the successful conclusion of litigation will only be the beginning of the exceedingly difficult task of enforcing a verdict against an obstinate and neo-nationalistic Russian government.

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

Footnotes 4.23.2010

  • Works found in a Parisian vault 40 years after WWII, including this Andre Derain, are going to be sold in a Sotheby’s auction after being tied up for 30 years in court.
  • An odd lawsuit over a breach of confidentiality has ensued between a Miami art collector and a New York art dealer.
  • Artists are rallying support for Brandeis’ Rose Museum by hosting a benefit to raise money for legal costs.
  • Stephen Spielberg should never have had to give up his “stolen” Normal Rockwell.
  • The video from the CUNY panel discussion on cultural heritage from April 7, 2010 has been posted.
  • Mark Durney argues terrorism and the illicit drug trade are linked to the $6 billion a year art theft industry.  Art theft is perhaps the 3rd highest grossing criminal trade over the last 40 years.
  • Zahi Hawass, the Secretary General of Egypt’s Supreme Council of Antiquities, has done a tremendous job of elevating the profile of Egyptian antiquities. However, he continues to attack museums for not returning artifacts to Egypt.
  • An attorney in the Four Corners antiquities case wants evidence thrown out because the deceased FBI informant Ted Gardiner can’t be questioned about the evidence.
Questions or Comments? Email me at derek.fincham@gmail.com

Five Defendants Cleared in Leonardo Extortion Trial

The five defendants who were tried for attempting to extort £4.25m from the owner of this painting, Madonna of the Yarnwinder, attributed to Leonardo da Vinci have been cleared in Edinburgh.  Three defendants were found not guilty, while the other two received not proven verdicts.  Not proven is a Scots law verdict, essentially just as good as not guilty, but allows a jury to acknowledge they thought a defendant committed wrongdoing, though not enough to prove the offence.

My initial response: I think this was a terrible verdict, though I didn’t get the benefit of hearing the whole trial.  Based on published reports, these defendants made it easier for an art thief to profit off a theft, and are just as culpable as the men who stole the work. 

From the Guardian:

The jury at the high court in Edinburgh decided today that the prosecution had failed to prove that the three solicitors and two private detectives were guilty of a complex conspiracy targeting the Duke of Buccleuch, one of the country’s most senior peers. The five were accused of threatening to destroy Madonna of the Yarnwinder, a Da Vinci painting that was insured for £15m but unofficially valued at £30m to £50m – unless the duke paid them £4.25m for its return.
The jury said the charges against Marshall Ronald, 53, a solicitor from Skelmersdale, Lancashire, and Robert Graham, 57, a private detective from Ormskirk, Lancashire, were not proven – the Scottish verdict that stops short of declaring someone not guilty. After deliberating for two days the jury also decided that Graham’s partner, John Doyle, 61, also from Ormskirk, and two senior commercial lawyers from Scotland, Calum Jones, 45, from Kilmacolm, Renfrewshire, and David Boyce, 63, from Airdrie, Lanarkshire, were not guilty of the charges.
Doyle, Graham and Ronald were jubilant. They insisted they had been honestly trying to broker the return of the 500-year-old painting – one of only two Da Vinci paintings in private hands – in return for what they believed was a fair reward. They accused two undercover police officers who posed as the duke’s agents of deliberately conning them into believing their offer had been accepted.
The prosecution alleged that all five men were guilty of an elaborate extortion attempt: they had repeatedly refused to alert the police that they knew how to recover the stolen painting, and had threatened that “volatile” individuals would destroy the Da Vinci unless their ransom demands were met.
After leaving court, Doyle and Graham insisted that they were still entitled to a reward. Doyle said: “What we did was to bring back a culturally significant masterpiece, which is something neither the police nor the insurers could do. We brought it back and we have been through two and a half years of hell since.”

Background on the recovery of the work here.  

  1. Severin Carrell, Five cleared of trying to extort £4.25m from duke for return of stolen Leonardo painting, The Guardian, April 21, 2010.
Questions or Comments? Email me at derek.fincham@gmail.com