Derek Fincham

"they forgot about culture"

David Glenn, who is doing some very good writing on the antiquities trade for the Chronichle of Higher Education has a Q & A with Larry Rothfield discussing the invasion of Iraq and the looting of sites and museums there ($) (cross-posted at Safe-Corner). Here is an excerpt:

Q. Why did the United States do such a bad job of protecting the museum in 2003?
Before the war, nobody except archaeologists was worried about civilians looting the archaeological sites and the museum. And that includes the Iraqi exiles who were advising the State Department’s Future of Iraq Project, which was supposed to develop plans for the postwar period. They set up working groups on all sectors of society — but they forgot about culture.

Q. But would it have made a difference if the Future of Iraq Project had paid attention to culture?
No, it wouldn’t have made any difference at all, given that the military threw all of their plans in the garbage can anyway.

Now, the military itself was very interested in doing its job in terms of protecting cultural sites and museums. But under international law, its job is defined as not destroying or looting cultural sites itself — not as preventing civilians from destroying sites.

So before the war, they reached out to archaeologists, and they did a perfect job of identifying sites to put on a no-strike list. None of those sites was destroyed in active combat operations.

Unfortunately, they ignored warnings from the same archaeologists they were working with that the museums and sites might be looted by Iraqis. The Pentagon should have known about that issue. Nine museums were looted after the 1991 Gulf War. The military did not learn its lesson from that experience.

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

More on the Conservation of the two Italian Bronzes

Reader Francesca Tronchin has much more to offer on the conservation work being done at the Getty to the two bronzes from Italy which I mentioned last Friday:

First off: I am an employee of the Getty and every time I enter or leave my building, I see these two statues, trussed up in a conservation lab.

Nevertheless, I am NOT an official mouthpiece of the Getty and these are my own thoughts on the matter.

Moreover, I am an archaeologist and an Italian citizen, which makes my position even more complicated! 🙂

Although it might be easy to be very cynical and suspicious of the Getty’s involvement in the conservation of these statues, given the Museum’s appalling past practices, I hope that people come to realize that this is in fact a great gift to Italy. (The ‘collaboration agreement’ notwithstanding.)

The two bronzes have been the subject of some pretty terrible conservation practices in the past. I am not a conservator myself, but one of the Getty conservators gave me a tour of the shocking methods of restoration, etc. on the two statues. Neither of these works have been on display for at least ten years, as they both were languishing in Italian conservation labs, partway through various phases of restoration work. (One, if not both of the bronzes were in Florence, far from their home in Pompeii.)

The Getty is treating these two statues with state-of-the-art methods and materials of conservation, practices that are unfortunately out of reach for most Italian (European, even) labs.

These two works of ancient Roman sculpture–while not of tremendously high quality as far as ancient art goes–will be conserved for generations because of Getty’s interventions. All at no cost to Italy at all. The statues will be displayed here after their conservation for a period of a couple of months, and then returned to Italy in a state better than when they left their homeland.

As far as I know, none of the other American museums previously under fire for their illegal/immoral acquisition practices (e.g. the Met, the MFA) have offered this kind of service to the Italians. Those agreements seem to be simply traditional loans rather than including the costly, time-consuming, but ultimately invaluable work of conservation.

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

The "Collaboration" Begins at the Getty Villa

These are the first two works from Italy to arrive at the Getty Villa as a part of the agreement reached in 2007. These bronzes, Ephebe as a lampbearer and Apollo as an archer will be loaned for two years. The Ephebe will go on display at the end of April, and the other will be displayed in a year after study and conservation. Karol Wight, the Getty’s curator of antiquities says in the LA Times’ art blog “We want the partnership to be mutually beneficial . . . But of course our concerns are highly aesthetic.”

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

My Article on Conflict of Laws and Cultural Property

I have posted on SSRN the final version of my paper titled How Adopting the Lex Originis Rule Can Impede the Flow of Illicit Cultural Property, 32 Columbia Journal of Law and the Arts 111.

Pictured here is a Byzantine mosaic from the Hagia Sophia in Istanbul, similar to the mosaics taken from Northern Cyprus which gave rise to the Goldberg suit. The Seventh Circuit Federal Court of Appeals upheld the default—and problematic for cultural property disputes—lex situs rule in holding “Indiana law and rules govern every aspect of this action, from the statute of limitations issues through the application of the substantive law of replevin.” The trial court had noted that although Switzerland was the location of the wrongful activity, it bore little connection to the cause of action. None of the parties or important actors was Swiss; the mosaics had never been in the stream of commerce in Switzerland; and they had only been on Swiss soil for four days. The jurisdiction with the closest connection to the objects was Cyprus, not Indiana. After all, the mosaics had been firmly fixed to the church for over 1400 years. Although it would therefore make sense to give concessions in the law to jurisdictions such as Cyprus, courts have shown a hesitancy to apply the law of the source nation, or lex originis.

Here is the abstract:

The International trade and transfer of art and antiquities faces problems because nations have erected very different rules with respect to movable property. All nations forbid theft, however most cultural property disputes involve an original owner and a subsequent good faith possessor. Different jurisdictions have chosen to allocate rights and responsibilities between these two relative innocents in very different ways. Disharmony in the law is seldom a good thing, but in the realm of cultural property it can be particularly damaging to the interests of nations, museums, individuals, and our collective cultural heritage. The lack of harmony ensures no overarching policy choices will be furthered, which prevents parties from anticipating legal outcomes and giving substance to policies.

This article explores the default conflict of law rules which are applied to cultural property, and shows how the lex situs rule exploits the various legal rules which apply to art and antiquities. It challenges the lofty position enjoyed by the lex situs rule and proposes a radical reform of the default choice of law analysis. By employing the law of the Nation of Origin or lex originis courts can ensure the jurisdiction with the most tangible connection to an object enjoys the benefit of applying its legal rules to a given dispute. This will not only ensure the security of art and antiquities transactions, but impart much-needed transparency into the cultural property trade, and finally will decrease the theft and illegal excavation of art and antiquities.

The article begins by presenting some examples of recent disputes, and the problems they present for the law and cultural heritage policy. Section II describes the fundamental difficulty of adjudicating claims between two relative innocents, and the disharmony which has resulted as different jurisdictions have resolved this conundrum in very different ways. Section III lays out the ways in which private international law impacts art and antiquities disputes. Section IV analyzes the 1995 UNIDROIT Convention, the most recent attempt to harmonize the law affecting cultural property. Section V proposes a radical reform of the choice of law enquiry taken by courts.

Keywords: art, antiquities, private international law, conflict of laws, international law, lex originis, lex situs, renvoi, art theft, antiquities, cultural heritage, cultural property

I’d be delighted to hear any reactions to the work at derek.fincham “at” gmail.com.

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

Montclair Art Museum to Deaccession 50 Works

James Panero reports in the WSJ on the decision by the Montclair Art Museum in Montclair NJ to deaccession 50 works from the museum’s permanent collection:

[T]his plan will include the sale, or “deaccession,” of 50 works from the museum’s permanent collection, among them a Jackson Pollock drawing valued at $300,000 to $500,000 and several Hudson River School and American Impressionist works with estimates ranging from $25,000 to $300,000, according to a prospectus prepared by Christie’s. The auction house believes the sales will generate between $2.9 million and $4.3 million for the institution, which says it will use the funds for future acquisitions. Presented as curatorial housekeeping, but in fact motivated by financial exigencies, the Montclair sales — if allowed to proceed — will set another sorry example of an institution cashing out on art in the public trust. . . .

Now, as its overall endowment has dipped 25%, to $6 million from $8 million, the museum risks not having enough cash on hand to back its loans. That’s where this deaccession comes in — to raise cash to satisfy the requirements of its bank bonds. What’s most troubling is that nothing on the books is designed to stop it, even though Montclair is liquidating art in its permanent collection to raise the aggregate collateral for its loans — precisely what AAMD claims to oppose.

Lora Urbanelli, the director of the museum gives the case for the deaccessioning in this case:

We took out tax exempt bonds at a certain time in our history. And when you do that — we are diligently paying them off — but whenever you do that, as part of the agreement, you agree to have a certain amount on hand in an endowment fund. At times when our endowment is flagging, we go below that line. So this is a creative way to keep the endowment full and to stay above the water line to grow our endowment for acquisitions — just so we are in the good graces with the bond covenants. All the bank wants to know is that the endowment is a healthy one for the size of the institution. There’s nothing untoward. There is nothing to hide. The deaccessioning that we’re about to do has been more or less in the works for years. What we’re doing now is considering an acceleration of a process. . . . The AAMD sees no problem with the way we are handling this situation.

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

"Art isn’t reduced here to a litany of obscene auction prices"

So writes Michael Kimmelman in a piece detailing the destruction resulting from the recent earthquake:

Italy is not like America. Art isn’t reduced here to a litany of obscene auction prices or lamentations over the bursting bubble of shameless excess. It’s a matter of daily life, linking home and history. Italians don’t visit museums much, truth be told, because they already live in them and can’t live without them. The art world might retrieve a useful lesson from the rubble.

Italy’s prime minister, Silvio Berlusconi, has been busily soliciting foreign aid for cultural restoration after the quake. More than 11,000 volunteers and rescue workers have rushed to help. Milko Morichetti is one, a 39-year-old art restorer from Mogliano, in the Italian Marches.

“Without the culture that connects us to our territory, we lose our identity,” he said. “There may not be many famous artists or famous monuments here, but before anything, Italians feel proud of the culture that comes from their own towns, their own regions. And when we restore a church or a museum, it gives us hope. This is not just about preserving museum culture. For us, it’s about a return to normalcy.”

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

MoMA Sued in Nazi-era Restitution Suit

The successors in interest of German artist George Grosz filed suit in federal court last friday to claim three works: Portrait of the Poet Max Herrmann–Neisse (1927), Self-Portrait With Model (1928) and the watercolor Republican Automatons (1920) (pictured here).

The claimants allege the works were left with Grosz’s dealer Alfred Flechtheim when the artist was forced to leave Germany in 1933. The New York Times summarizes the plaintiff’s version of events

Charlotte Weidler, an art dealer and curator for the Carnegie Institute in Pittsburgh, said that she had inherited “Portrait of the Poet Max Herrmann-Neisse” from Flechtheim and that she gave it to Curt Valentin, a German dealer in Manhattan, to sell to the Museum of Modern Art in 1952. The museum bought “Republican Automatons” from a Toronto collector in 1946 and was given “Self-Portrait With Model” in 1954.

Back in 2006 the Met declined to borrow the work Portrait of the Poet Max Herrmann–Neisse due to the potential lawsuit.

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

Palestinian PM Makes Claim for Dead Sea Scrolls

The Toronto Star has a nice piece on the demand by the Palestinian Authority to cancel an exhibition of Dead Sea Scrolls. Palestinian officials claim the objects were stolen by Israel from Palestinian territories. It is an indication of the increasingly prominent role antiquities are playing in national politics and notions of national heritage and even past wrongdoing. The calls share similarities with other nations who have urged repatriation of objects, from Scotland to Peru and others. Hamdan Taha, the director-general of the archaeological department of the Palestinian Ministry of Tourism and Antiquities, “The exhibition would entail exhibiting or displaying artifacts removed from the Palestinian territories . . . I think it is important that Canadian institutions would be responsible and act in accordance with Canada’s obligations.”

The Royal Ontario Museum will host a six-month long exhibit of the scrolls, operated in conjunction with the Israel Antiquities Authority. The Dead Sea Scrolls are a collection of about 900 manuscripts, dating to 70 AD. The caves in which the scrolls were found were located near Qumran (see map below), in what is now the Palestinian West Bank. From the piece in the Toronto Star:

Beginning in 1947, and for nearly a decade, experts from the Rockefeller Museum in East Jerusalem, the Jordanian Department of Antiquities, and the École biblique et archéologique française excavated the caves and salvaged the scrolls, only a few of which were found whole. The rest were scattered into thousands of fragments.

Written mainly in Hebrew, and partly in Aramaic and Greek, the scrolls include about 200 copies of portions of the Jewish Bible.

At first, the scrolls were housed in the Rockefeller Museum in East Jerusalem, which was under Jordanian control at the time.

After the 1967 Six Day War, however, Israel unilaterally absorbed the eastern sections of the city, an act most Western nations – including Canada – regard as illegal under international law. The Israelis removed the scrolls from East Jerusalem and took them to the western city, where they remain.

According to Shor at the Israel Antiquities Authority, portions of the scrolls frequently have been put on display in other countries – including the United States, Britain, Switzerland, Germany, and Australia – over the past 10 years or so.

This raises the question, should nations use these antiquities as instruments of foreign policy? Will the end result be more difficulty in holding international loans and travelling exhibitions?

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

More On Deaccessioning

Donn Zaretsky responds to some lazy criticism by Christopher Knight of his deaccessioning arguments. If you want to have a serious discussion on the merits of a policy, then you should probably avoid distorting the opposing viewpoint, provide some evidence for your position, or at least take the time to read your opponnents views. In this case, painting Zaretsky with a broad “deregulation” brush, and revealing a real distaste for lawyers generally cuts against any broader point Knight may have had. Though the latter probably isn’t a bad idea generally—lawyers are a special breed after all—cultural policy and museum management has too long ignored and shunned sound legal principles.

That appears to be a real shame in this case as Zaretsky probably doesn’t disagree too much with Knight’s core philosophy on collections management. It seems to me Zaretsky points out the flaws and inherent inconsistencies in the stated policy. As he argues “what I see myself as having been doing during this debate is pointing out the inconsistencies in, the hypocrisy that is built into, the conventional art world view on deaccessioning (namely that it is perfectly fine when the proceeds are used to buy more art, but absolutely forbidden for all other purposes).” That seems to me to be a very valuable argument, and an important role that few others have done.

He goes on to discuss the prominent deaccession examples of recent years, including the National Academy to avoid closing its doors, or Universities want to sell works because of substantial drops in endowments, or Thomas Jefferson decides to sell its $68 million work because nobody visits it, or a universal museum attempts to shift gears because of a declining local economy. Now we can challenge these stated views, and certainly should maintain healthy skepticism of these attempts to deaccession works. However the current rules prevent and even preclude this kind of debate.

As I’ve speculated before, one wonders if in this economic climate, we may have to think about adopting the approach much of the rest of the World uses for cultural management, which is an increased level of Government support and funding. Much of the cultural management structures in the UK, such as the Waverley Export Process, were initiated in response to economic hard times, and the loss of art and world-heritage leaving the UK and heading elsewhere, namely to the US. It might be worth remembering, that the Universal Museums in america were formed at the expense of other nations. Though it may be pessimistic, I’m increasingly convinced that art follows money and influence.

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

"Peru v. Yale: A Battle Rages Over Machu Picchu"

I’m quoted in David Glenn’s article for the Chronicle of Higher Education on the dispute between Yale University and Peru over artifacts taken from in and around Machu Picchu by Hiram Bingham between 1911 and 1916. The piece is behind their subscription wall, but it really is worth the effort to get your hands on a copy. It’s a good overview of the dispute, with a timeline and an overview of the parties’ public statemetns which gives us an idea of the competing legal claims.

The dispute draws some of the important ramifications the dispute has for repatriations generally. We are all eagerly waiting for Yale’s responses on the merits. At this point the parties are still disputing the proper federal court for the dispute. If and when the dispute reaches some of those important substantive points, whether the action was timely will likely be a prominent issue, as I speculate in the piece.

One of the important potential ramifications of this dispute may be whether nations of origin have the right to try to reach back and challenge some of these past agreements.

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