Derek Fincham

Public Comment on the U.S.-Italy Memorandum of Understanding

The State Department Cultural Heritage Center has announced it wants public comments on the potential renewal of the Memorandum of Understanding (MOU) between the United States and Italy.

There will be a meeting of the Cultural Property Advisory Committee on Thursday, May 6, 2010, from 9 a.m. to approximately 5 p.m., and on Friday, May 7, 2010, from 9:00 a.m. to approximately 3 p.m., at the Department of State, Annex 5, 2200 C Street, NW., Washington, DC. During its meeting the Committee will review a proposal to extend the“Memorandum of Understanding Between the Government of the United States of America and the Government of the Republic of Italy Concerning the Imposition of Import Restrictions on Categories of Archaeological Material Representing the Pre-Classical, Classical and Imperial Roman Periods of Italy” signed in Washington, DC on January19, 2001 and amended and extended in 2006 through an exchange of diplomatic notes.

There is also an opportunity to write a letter and express your opinion on the MOU, the deadline is April 22, 2010. The Archaeological Institute of America has information on the letter-writing process here. Note that you should either fax (202-632-6300) or email (culprop@state.gov) your letter due to security delays with traditional mail.

This is one of the ways in which the United States has chosen to implement the 1970 UNESCO Convention. The MOU does a number of things. It restricts the import of certain classes of undocumented objects from Italy. But if those objects carry the appropriate documentation, importation is allowed. It also calls for long-term loans of Italian objects, and collaboration between the United States and Italy.

Those interested in the MOU and the practical impact it has or has not had should look to the recent edited volume, Criminology and Archaeology (Simon Mackenzie and Penny Green, 2009). I review the volume in the Spring issue of the Journal of Art Crime. Of particular interest is Gordon Lobay’s contribution, which looks empirically at how the U.S.-Italy MOU has made an impact on the antiquities market—at least the observable licit market. I encourage interested readers to check out the volume, as his conclusion has been that the volume of objects sold, and their prices have increased over time. The most profound impact has been that auction houses have begun to “pay more attention to provenance.” Though typically this is not the findspot or complete history but rather reference to an earlier sale of an object.

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

Footnotes 4.8.2010

Bamiyan after the intentional destruction, in 2005

An update nine years after the Bamiyan Buddhas were destroyed.
Oakland, CA may cut its art budget in half.
Feds collect more relics stolen in the Four Corners region art theft.
In an apparent effort to improve its image with Italy, the Getty has named the former American ambassador to Italy to its board of trustees.
On a positive note from the world of stolen art, the FBI Art Crime Team returned looted art to Peru.
A new book by Robert K. Wittman alleges that attempts to recover stolen Vermeers were foiled by FBI infighting.
Some improvement has been shown at Brandeis University, but the Rose Museum is still struggling.
Fisk University‘s legal struggles continue in an attempt to sell a portion of the Stieglitz/O’Keeffe collection to the Crystal Bridges Museum in Bentonville, AR.
The Owensboro Museum of Fine Arts in Kentucky is dangerously close to shutting down.
A solo traveling exhibition by artist Peju Layiwola centered on the looting of African artifacts in Benin opened on April 8th, 2010.

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

Profile of Claude Cassirer

In September of last year the 9th Circuit held that Claude Cassirer can pursue a case against the Kingdom of Spain over this work, Rue St.-Honoré, Après-Midi, Effet de Pluie, painted by Camille Pissarro in 1897. In a profile of Cassirer in the L.A. Times, the 88 year-old argues the Spanish “have been most unfriendly, not cooperative in any way,” with respect to his claims for restitution. The 9th Circuit Court of Appeals will hear the appeal again en banc, with an 11 judge panel, sometime in the coming months. The work had been taken from Cassirer’s grandmother in 1939 before she fled Munich. The Spanish government purchased the painting in 1993 as a part of the Baron Hans-Heinrich Thyssen Bornemisza’s collection. The work has been valued now at $20 million.

Spain paid the baron $50 million in 1988 to lease his collection for a decade, and halfway through bought it outright. The baron had designated Spain for his prized collection, valued at more than $2 billion, an apparently sentimental gesture honoring the last of his five wives, a former Spanish beauty queen. Thyssen-Bornemisza died in 2002.

“The Thyssen-Bornemisza Collection Foundation thoroughly reviewed the complete historical record on Mr. Cassirer’s alleged claim and respectfully denied it,” said Thaddeus J. Stauber of Nixon Peabody LLP’s Los Angeles office, which represents the foundation.

Citing the statute granting foreign states immunity from U.S. lawsuits except under a few defined conditions, Stauber said “we do not think that the case properly belongs in the U.S. courts.”

Carol J. Williams, Pissarro masterpiece travels a twisted history, L.A. Times, April 7, 2010.
Cassirer v. Kingdom of Spain, 580 F.3d 1048 (9th Cir. 2009).

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

On Polite Discourse

Yesterday I posted a link and an abstract of a recent student article, Cultural Pragmatism: A New Approach to the International Movement of Antiquities, 95 Iowa L. Rev 667 (2010). I see that the paper has drawn the interest of David Gill, who has offered a response to some of Hoffman’s arguments as he indicated below in the comments. I’d like to temper some of the aggressive criticism of the paper (and Matthew, I can’t find your email address on the Iowa website, so drop me a line if you would).

When I promote these pieces, I am promoting the field of study, and letting you all know something new has been written. This is a student paper, and though we might be critical of some of his assertions, we should also be respectful. At least that is how I approach the work of others—particularly student writers.

Hoffman certainly makes some mistakes, and one of the common mistakes legal writers fall into is they can often write elegantly, but fail to conduct enough background research into an area before jumping in. This piece might be a good example of that in parts, but I think the student here is also extending a line of argument espoused by writers like John Merryman, and now Jim Cuno that some will find distasteful. I didn’t get to comment on a draft of the piece, I’ve never met the student, nor read his paper before yesterday. If I had I probably would have advised him to make a few changes.

I appreciate this can be an emotive issue, but when you beat up on a student writer, and fail to extend professionalism to a newcomer to the field, you not only diminish your own arguments, but the field as well.

I think he is on to an interesting argument when he argues for a tiered approach, in the same way Japan treats objects removed from Japan. Japan would seem to lack sufficient regulation on the market end, as Gill points out with respect to the Miho museum. Yet how do these returns actually affect the protection of sites, that is the question I think Hoffman could have addressed, and perhaps others will take up the argument and correct any errors or admissions they see in his piece—that’s what scholarship is right?

For those of you who may not know, the Iowa Law Review is a well-respected legal journal, and an article dealing with this issue offers at the very least an opportunity to raise the profile of this issue. A common practice in American legal publications is to publish a few student articles in each issue. These are commonly referred to as “notes” or “comments”, as I indicated in the original title below. I’m happy to post cites and links to anybody’s serious writing on the topic, irrespective of viewpoint. I’ll also continue to treat these writers with respect even when I disagree with their assertions. I would hope others could do the same.

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

Student Note on "Cultural Pragmatism"

Matthew Hoffman, J.D. candidate at the University of Iowa has an article, Cultural Pragmatism: A New Approach to the International Movement of Antiquities, 95 Iowa L. Rev 667 (2010). Here is his abstract:

ABSTRACT: Since World War II, the debate between cultural internationalists and cultural nationalists has shaped international cultural-property law. Recently, some American museums, engaged in their enduring struggle to balance a mission of public education and scholarly study with the increasing risk of acquiring artifacts of disputed provenance, began to promote a middle ground of “cooperation, mutual understanding, and respect” between acquiring museums and source countries that builds upon the goals of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. This new approach, defined here as “cultural pragmatism” attempts to bridge the impasse between advocates of the two opposing doctrines that has resulted from the adversarial climate following the Second Circuit’s decision in United States v. Schultz and the new power of foreign patrimony laws to reach antiquities imported into the United States. This Note analyzes the new approach and offers the classification system of the Japanese Law for the Protection of Cultural Properties as a means to its further implementation.

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

Unsuccessful Restitution Suit by German Museum


An Ancient gold tablet, excavated from Northern Iraq in 1913.

A German Museum has lost an action against Riven Flamenbaum to recover this ancient gold tablet that may be worth as much as $10 million. You can read the opinion here, in Matter of Flamenbaum, File No. 328416.

The tablet has quite a history. It was unearthed in 1913 in Ashur, present day Qual’at Serouat by German archaeologists. It was bound for a German museum, but World War I forced the ship carrying it to Portugal, where the object was stored until 1926. In 1934 the tablet was put on display in the Vorderasiatisches Museum. At the end of the war, in 1945 it was discovered the tablet was missing, perhaps looted by Soviet troops. It is at this point that Flamenbaum—a survivor of Auschwitz—encountered the tablet, which he may have purchased on the streets of post-war Berlin for some cigarettes. He took the tablet with him when he emigrated to New York in 1949. He had no inkling of the object’s value, after it had been apparently appraised for as little as $100 at one point. The family contacted the Museum in 2006 after Flamenbaum’s death, and the museum brought suit to recover the tablet.

In New York, this action was within the statute of limitations because the period does not begin to run until an original owner demands an object and is refused—which in this case was 2006. However Surrogate John Riordan held that the museum had waited too long to bring this claim under the doctrine of laches—an equitable doctrine which essentially posits that it wouldn’t be fair to allow the claimant to regain title. The court held the lack of any real effort by the museum to seek the return of the tablet was unreasonable. Surrogate Riordan placed a good deal of weight on an apparent 1954 report of the object’s location. But the opinion does not offer any details of this report.

The Museum had not really had possession of the tablet for very long, and had not made extensive efforts to contact post-war authorities or stolen art registries. But of course it is not necessarily clear if those efforts would have even been successful. Moreover, in some cases publicizing a theft in this way seems to run counter to the policy which underpins New York’s Demand and Refusal rule. If you publicize the theft, that recovery may make diligence less likely, and might encourage other possessors of objects with questionable histories to move objects to other jurisdictions.

One wonder perhaps how much the underlying equities were a factor in the decision as well, with a seemingly-innocent Holocaust survivor acquiring the small tablet, without knowing its true value.

Vesselin Mitev, German Museum Loses Attempt to Reclaim Artifact From Estate, New York Law Journal, April 6, 2010.

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

Footnotes

Mardi Gras Indians in New Orleans file copyright suits against photographers who take their photographs without compensating them.
Deaccessioning running rampant in today’s art world.
The Department Interior’s decision to return human remains to Indian tribes and Native Hawaiians that are currently in museums and natural history collections will take effect May 14, 2010.
A couple of New York art dealers have recovered stolen art, but these recoveries are only minor successes in the $6 billion a year art theft industry; the art was found in Canada.
The two authors of Property Outlaws have written a detailed article about the law of fair use and “permission-based” creation of art.
Federal appeals court justices debated whether a U.S. man should sue in Spain and Germany before suing in the U.S. to recover a Pissarro painting stolen by the Nazis.
Hundreds of artworks from a state-run museum in Ankara, Turkey have perhaps been replaced by fakes or even gone missing.

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

Two Guilty Pleas in Four-Corners Antiquities Investigation

On Monday two pleaded guilty to stealing government property and violating the Archaeological Resources Protection Act. Both Brent Bullock and Tammy Shumway had been among those indicted during a federal investigation into looting Native American sites in the Four Corners region in the Southwest. From the AP:

Bullock, 61, sold several ancient Indian items to an undercover operative in 2007, including a blanket fragment for $2,000 and a hoe-like tool for $500, according to court documents. He also offered to sell several ceramic figurines taken from U.S. Bureau of Land Management land.

Bullock said he wanted to sell the items because he was in debt, according to a search warrant affidavit.

Investigators said Bullock acknowledged to the informant that the items came from public land in Utah but filled out paperwork saying they were from private land in Colorado.

Shumway, who introduced Bullock to the informant, was charged because the 40-year-old woman aided and abetted the deals and signed a falsified paper about the items’ origin as a witness, federal officials said.

In U.S. District Court on Monday, Bullock and Shumway acknowledged they knew the items had been illegally dug up from public land in Utah. As part of a plea deal, they each pleaded guilty to one count of trafficking in stolen artifacts and theft of government property. Prosecutors agreed to seek a reduced sentence.

A couple points which might not be evident from some of the coverage of these plea deals. First, sentencing will occur in July; and the AP piece notes the maximum sentence is 12 years in prison. Neither of these defendants will likely receive anything close to the statutory maximum. That is because when a defendant enters into a plea deal, they do so in most cases to achieve a recommendation from prosecutors on sentencing; which will often fall far below the maximum sentences. This should not be construed as authorities in the United States not taking these crimes seriously—rather a reflection of the general criminal procedures when plea agreements are reached.

Second, Tammy Shumway is the widow of Earl Shumway, a notorious antiquities looter. Shumway became a national figure in the 1980’s, who boasted that he began looting at three years old with his father. He sold a large collection of over thirty prehistoric baskets and sold them for a great deal. Though he was prosecuted for selling those baskets, he cooperated with authorities and only received probation. He went right back to looting, using a helicopter and even lookouts to avoid authorities. He boasted to the media that he could never be apprehended. Though he was not caught in the act of looting, authorities did secure a conviction using DNA evidence found on Mountain Dew soda cans he left in the areas he looted. In 1995 he received a 5-year prison sentence which sent a message that Federal agents and prosecutors took this kind of crime seriously.

Timothy Egan, In the Indian Southwest, Heritage Takes a Hit, N.Y. Times, November 2, 1995.
Mike Stark, 2 Utahns plead guilty in sweeping artifacts case, AP, March 29, 2010.

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

New 6-week Course on First Aid to Cultural Heritage

I’ve been forwarded information on a new course sponsored by the International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM) on First Aid to Cultural Heritage in Times of Conflict in collaboration with UNESCO and the Blue Shield network.

Here are the details:

Dates: 17 September – 29 October 2010 (6 weeks)

Place: Rome, with study visits to other cities in Italy

With the cooperation of: UNESCO, Blue Shield and specialized international and national agencies

Background

In the past decades, armed conflicts worldwide have involved deliberate or accidental damage to cultural heritage. Conflicts cause the weakening of governments and societies and endanger the core values that hold communities together. Cultural heritage thus plays a crucial role in recovering from such situations. In times of conflict, however, all operations can be delayed because access is often restricted by military, security, or law enforcement agencies. Consequently, it is essential for everyone working in these areas to understand how and when to intervene to protect endangered cultural heritage while humanitarian efforts are under way.

Objectives

Understand the values associated with cultural heritage and the impact that conflict has on them;

Apply ethics and principles of conservation in extreme conditions;

Assess and manage risks to cultural heritage in conflict situations;

Take peacetime preparatory action to improve response in times of conflict;

Secure, salvage and stabilize a variety of cultural materials;

Understand international legal instruments protecting cultural heritage during conflicts;

Communicate successfully with the various actors involved, and work in teams;

Methodology

The course will comprise of interactive lectures, group activities, practical sessions, simulations, site visits and case studies. Participants will be asked to develop case studies drawing from their own experience and work context.

Participants

The course is aimed at those who are actively involved in the protection of cultural heritage within a variety of institutions (libraries, museums, archives, sites, departments of antiquities or archaeology, religious and community centres, etc.). It is also aimed at professionals from humanitarian and cultural aid organizations, as well as military, civilian and civil defense personnel. Those with experience in conflict situations are particularly encouraged to apply.

A maximum of 22 participants will be selected.

Working Language: English

Course Fee: 900 € (Euro)

Travel, Accommodation and Living Expenses

Participants are responsible for their round-trip travel costs to and from Rome, Italy, and for all living expenses. To cover the cost of living, participants should plan for a minimum allowance of 2,000 € (Euro) for the entire duration of the course. This sum is based on the cost of moderately priced accommodations. Candidates are strongly encouraged to seek financial support from sources such as governmental institutions, employers and funding agencies.

Financial Assistance

Upon request, the organizers will offer financial support to a limited number of selected candidates who can demonstrate their inability to secure funding.

Application

Please use the ICCROM application form [http://www.iccrom.org/eng/01train_en/forms_en/applfrm_en.doc]. In your submission, include a 700-word personal statement that summarizes your experience and highlights the relevance of the course to your current or future projects. Applications should be sent by regular mail to the following address or by e-mail:

First Aid to Cultural Heritage in Times of Conflict

Collections Unit – ICCROM

Via di San Michele,13

00153 ROME RM, ITALY

Tel +39 06 585531 Fax +39 06 58553349

E-mail: aidinconflict@iccrom.org

Application deadline: 14 May, 2010

This initiative received the financial support of the Italian Ministry of Culture (MiBAC)

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

Footnotes 3.26.2010

King Tut is taking a tour through New York, first stopping at the Met (for the 30 year anniversary), then the Brooklyn Museum, and lastly Times Square.
An interesting new art and literary magazine, title Sw!pe, speaks from the viewpoint of museum security staff.
Some feel that museums have a moral obligation to return Nazi-looted .
The Staffordshire Hoard will remain in the north of England.
Mark Durney will take over as new management of the Museum Security Network, though it appears Ton Cremers will continue to forward on information to the network.
Colonel Matthew Bogdanos, author of Thieves of Baghdad, will be speaking at Georgetown University Law Center on April 13th at 7:00pm.

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