Author: Derek Fincham

Congratulations to Loyola’s Cultural Heritage Law Team

I want to congratulate the members of Loyola University New Orleans’ Cultural Heritage Law Team, which won the Cultural Heritage Law Moot Court Competition in Chicago this weekend.  The team consisted of David Vicknair, Geoff Sweeney and Daniel Shanks.  They were coached by third-year law student Lindsey Surratt.  I had the great pleasure to act as faculty adviser to the team, and enjoyed hearing some terrific arguments on a difficult area of the law. 

Congratulations to all the competitors, and to DePaul University College of Law and the Lawyers’ Committee for Cultural Heritage Preservation for sponsoring a great competition.

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

Chen on Fiduciary Duty and Deaccession

Sue Chen (United States Court of Appeals for the Tenth Circuit) has posted on SSRN her article entitled Art Deaccessions and the Limits of Fiduciary Duty, 14 Art Antiquity & Law 103 (2009).

Art deaccessions prompt lawsuits against museums, and some commentators advocate using the stricter trust standard of care, instead of the prevailing corporate standard (business judgment rule), to evaluate the conduct of non-profit museum boards. This Article explores the consequences of adopting the trust standard by applying it to previously unavailable deaccession policies of prominent art museums. It finds that so long as museum boards adhere to these policies, their decisions would satisfy the trust standard. This outcome illustrates an important limitation of fiduciary law: the trust standard evaluates procedural care but cannot assess deaccessions on their merits. Yet this limitation, far from undercutting the trust rule, balances judicial review with protecting boards’ management discretion. This article ventures beyond formalist analysis of fiduciary duty and examines the non-legal, substantive rules governing art deaccessions. It argues that complemented by non-legal rules, the trust standard provides the best framework for adjudicating deaccession lawsuits because it ensures judicial scrutiny of deaccession procedures while leaving appraisal of deaccessions’ merits to museum professionals and the public they serve.

via

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

Yet Another Suicide Connected to Four-Corners Antiquities Investigation

The informant who was instrumental in the federal antiquities investigation in the Southwest has committed suicide.  This comes after two others accused of wrongdoing killed themselves. 

From the AP:

 The undercover operative who helped federal officials build a case against more than two dozen people for allegedly looting American Indian artifacts in the Southwest has apparently committed suicide.

Two defendants in the case killed themselves last year.

Police say 52-year-old Ted Dan Gardiner shot himself Monday at a home in a Salt Lake City suburb. He shares the name, date of birth and address of the man identified in court documents as the informant in the case that led to indictments against 26 people.

Gardiner worked with the FBI and the Bureau of Land Management for more than two years, coordinating deals with artifacts collectors, dealers and diggers in Utah, Colorado, New Mexico and Arizona.

Gardiner’s father and his son told The Associated Press on Tuesday that they could not explain his death. The FBI and the U.S. attorney’s office in Salt Lake City declined comment.

Two defendants — a Santa Fe, N.M., salesman and a prominent Blanding, Utah, physician, James Redd — committed suicide after their arrests in June.

Gardiner, an antiquities dealer, offered in 2006 to help federal authorities set up what turned into a long-running sting operation in the black-market trade in prehistoric relics. Court papers say he was typically paid $7,500 a month for secretly recording transactions across the Southwest for more than two years.

He was still being paid for helping agents prepare for court cases, and he was to receive more money if he had testified. Gardiner had received $162,000 in payments plus expenses, for a total of $224,000, when most of the arrests were made in June.

Federal authorities and Gardiner, who also ran an [artifact] authentication business, have insisted he was never in trouble with the law.

Unified Police Sgt. Don Hutson says a preliminary autopsy shows Gardiner’s gunshot wound was probably self-inflicted. An officer fired a round during a standoff Monday night, but it didn’t hit Gardiner.

Deputies were called to Gardiner’s home Saturday night on a report that he was suicidal, Hutson said. Gardiner was transported for mental health treatment and his gun was taken away. Gardiner used another gun Monday night.

Gardiner’s father, Dan Gardiner, declined further comment Tuesday, handing over the phone to one of Ted Gardiner’s sons, who said, “We don’t know any more than you.” The son declined to give his name.

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

Call for Papers, ARCA Conference, July 2010

Call for Papers
2nd Annual ARCA Conference in the Study of Art Crime
Amelia, Italy
10-11 July 2010

ARCA (The Association for Research into Crimes against Art), an international non-profit think tank and research group dedicated to the study of art crime and cultural property protection, is pleased to announce a Call for Papers for its second annual conference. Papers are welcome from scholars and professionals in any field relevant to art crime and protection, including law, policing, security, art history, conservation, archaeology, and criminology. Please submit a title and abstract (up to 250 words) as well as a professional biography (up to 150 words) by email to director@artcrime.info by May 1.

The conference will be held in the elegant Zodiac Room of Palazzo Petrignani, in the beautiful town of Amelia in the heart of Umbria. The conference will feature the presentation of the annual ARCA Awards to honor outstanding scholars and professionals dedicated to the protection and recovery of international cultural heritage. The goal of the conference is to bring together international scholars, police, and members of the art world to collaborate for the protection of art worldwide.

Please direct any queries and submit papers to director@artcrime.info. For more information on ARCA, please visit www.artcrime.info.

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

“He has no proof, and I have all the proof”

So says Joanne King Herring in the Houston Chronicle earlier this week when discussing her suit to regain this work by Sir Henry Raeburn.  Herring has an auction catalog receipt and a 1986 police report which was filed when the work disappeared from a framing shop. 

The work had been missing since, until Geoffrey Rice recently consigned the painting to Sotheby’s.  When he did, the painting raised flags with the Art Loss Register.   Rice claims to have purchased the painting from Hart Galleries in Houston, an auction house that is now shuttered because of misapplication of fiduciary property.  Rice has no paperwork for the work and claims to have stored the painting in his laundry room for years, and only recently decided to sell the work.  Probably not the best provenance.  I like Herring’s chances to regain the work.  As Herring says “I wouldn’t any more press a case if I didn’t have a bill of sale than fly to the moon.”

Rice has defended Herring’s suit on a statute of limitations defense.  However she has done everything a prudent victim should—contacting the police and reporting the theft to the Art Loss Register.  As a consequence the limitations period will probably not begin until she discovered the present possessor of the painting.  

  1. Douglas Britt, Artwork socialite reported stolen now caught in custody battle, Houston Chronicle, February 21, 2010.
Questions or Comments? Email me at derek.fincham@gmail.com

Footnotes 2.22.2010

  • Google Earth offers new perspectives on the past, with views of a Japanese-American internment facility.
  • Sotheby’s in New York will exhibit works from the 1999 Polaroid Abrams catalogue in mid-March.
  • Should looted artefacts be returned to countries, like Nigeria, with inadequate security and other major issues? Read more on this issue discussed by Maurice Archibong.
  • Brandeis University continues to make budget cuts, which does not bode well for its Rose Art Museum.
  • The Penn Museum in Philadelphia has jewelry of questionable origin purchased over 40 years ago.
Questions or Comments? Email me at derek.fincham@gmail.com

Footnotes 2.19.2010

  • Two Banksy admirers buy wall, but have difficulty selling the wall for profit because they are unable to authenticate the work as Banksy’s.
  • Shephard Fairey filed a motion to postpone his deposition until the federal criminal investigation him is complete.
  • A lawyer is attempting to collect more that $125,000 in legal fees after an unsuccessful suit to regain a Pissarro.
  • The Antiquities Market, a section on news and on the illicit traffic in antiquities, will be a regular feature of the Journal of Field Archaeology.
  • The Corcoran Gallery of Art sells school building to a partnership that includes the Rubell family, and later will exhibit art from the Rubell family collection, all while saying the two are not connected.
  • Picasso and Portinari paintings stolen from a Brazilian art museum have been recovered by Brazilian police.
  • Fair use issues arise when photographs are taken of public art.
  • Edward Winkleman gives insight on purchasing deaccessioned works from museum sales.
Questions or Comments? Email me at derek.fincham@gmail.com

Italian Appeals Court Orders the Return of the Getty Bronze

A surprising ruling today by Judge Mussoni in the case involving this statute, known as “The Bronze Statue of a Victorious Youth” currently on display at the Getty Villa in Malibu.  I’ve looked at the merits of Italy’s repatriation case in some detail before, here and here.  Essentially, this Bronze was found in the Adriatic in the 1960’s, and Italian fishermen and others smuggled the work abroad.  It was eventually purchased by the Getty.  Criminal proceedings were brought against some of the smugglers decades ago, but they were never convicted.  

The present case was brought by the Italian government, seeking a forfeiture of the statue.  The Getty has indicated it will appeal; but the confiscation order will take effect immediately according to Maurizio Fiorilli, an attorney representing the Italian government.  There are a few hurdles to be crossed before the Getty has to pack up the Bronze and ship it to Italy however.

I haven’t had time to research the legal specifics yet, but I would like to offer some tentative observations.  First, I do not see how the Italian court has jurisdiction over the statue; and getting it returned will require the cooperation of the State Department or Department of Justice.  Second, this case presents a unique situation.  I’m not aware of any case in which a nation of origin brings suit in a domestic court to seek the return of an object from abroad.  If the Italians are successful in securing the return of the bronze, it would rewrite the law governing repatriation in many respects.  But finally, none of the law may matter.  As I’ve argued before, the court of public opinion is often the most important arbiter in many of these cases.  Italy would seem to have a difficult time compelling the State Department or DOJ to compel the Getty to ship the Bronze to Italy; but they could impose a kind of cultural embargo on the Getty, or on other American archaeologists if they want to force the repatriation of the Bronze.

It should come as no surprise then that the Getty’s Press Release this afternoon was critical of the decision:

The Getty is disappointed in the ruling issued February 11 by Judge [Lorena] Mussoni in Pesaro, Italy, involving the Statue of a Victorious Youth, often referred to as the Getty Bronze. The court’s order is flawed both procedurally and substantively.

It should be noted that the same court in Pesaro dismissed an earlier case in 2007 in which the same prosecutor claimed the Statue of a Victorious Youth belonged to Italy. In that case, the judge held that the statute of limitations had long since expired, that there was no one to prosecute under Italian law, and that the Getty was to be considered a good faith owner.

In fact, no Italian court has ever found any person guilty of any criminal activity in connection with the export or sale of the statue. To the contrary, Italy’s highest court, the Court of Cassation, held more than four decades ago that the possession by the original owners ‘did not constitute a crime.

The Getty will appeal the Pesaro court’s order to the Court of Cassation in Rome and will vigorously defend its legal ownership of the statue.

  1. Court orders seizure of Getty bronze, ANSA, Feb. 11, 2010.  
  2. Nicole Winfield, Italian court orders contested bronze statue confiscated from Getty Museum, CP, Feb. 11, 2010.  
Questions or Comments? Email me at derek.fincham@gmail.com

Footnotes

  • Modern technology has collided with Ancient Rome, with the addition of Pompeii to “Google Street View.”
  • Park West galleries sell nearly $450 million in art every year.
  • Dartmouth Math professor has created a digital method for identifying suspect artworks.
  • After a flood ruined the University of Iowa’s Museum of Art, the “Envisioning Committee” is calling for a bigger museum to be built closer to campus.
  • A Byzantine era mosaic was stolen from Old Town Aqraba in the northern West Bank.
  • While Cambodia and Thailand lead the pack of Southeast Asian countries that experience the most severe looting dilemmas, Vietnam might now be in their league.
  • With the record-breaking sale of Giacometti’s Walking Man I, the art market has gone from recession-induced anorexia back to bilious over-indulgence.
  • For the first time, a Swiss museum will show the Impressionist and post-Impressionist collection two years after a $160 million heist of the collection.
  • Valuable Iraqi antiques were seized at the Dubai International airport.
  • Taking photographs of pyramids in Egypt is becoming increasingly difficult, not to mention prohibited.
  • The Indianapolis Museum of Art has created the IMA Lab, to address the needs specific to the museum community regarding the use of innovative digital technology.
Questions or Comments? Email me at derek.fincham@gmail.com