I’ve written a great deal here about the ongoing dispute between the Getty Museum and officials in Italy over this ancient Greek statue.
In the wake of a pair of regional court rulings in 2010 and 2012 in Pesaro, Italy there seemed a chance that Italy would secure a trans-Atlantic forfeiture of the athlete (which I considered in an article).
But now those Italian court orders have been ruled in violation of the European convention on human rights because the cases were not heard in open court. This should not come as a great surprise, as the Italian court of cassation remanded the case to an Italian constitutional court in 2014, and a favorable result seemed remote. And Italy is now left with an embarrassing and incomplete forfeiture effort, which was only ever going to be the first step of a legal strategy which would be given high marks for degree of difficulty. So this “Fano Athelete” as the Italians describe him will likely not be taking a trip to Italy any time soon.
At present the bronze is a part of the “Power and Pathos” exhibition currently on display at the National Gallery in Washington.
I’ll be presenting a short paper on the Ka-Nefer-Nefer forfeiture case at the Society for American Archaeology Annual meeting this Saturday morning. Our panel is scheduled from 8-10.15 A.M. in the Golden Gate 4 room of the Hilton San Francisco Union Square.
Here are the other scheduled papers:
Antiquities, drugs, guns, diamonds, wildlife: toward a theory of transnational criminal markets in illicit goods
The Kapoor Case: International collaboration on antiquities provenance research
Alternative Strategies in Confronting Looting and Trafficking in Defense of Peruvian Portable Heritage
The Ka Nefer Nefer and Federal Intervention in the Illicit Antiquities Trade
Geospatial strategies for mapping large scale archaeological site destruction: The case from Egypt
Bones of Contention: Further Investigation into the Online Trade in Archaeological and Ethnographic Human Remains
Duncan Chappell & Damien Huffer
The ruin of the Maya heartland: successes, failures, and consequences of four decades of antiquities trafficking regulation
Syria: Cultural Property Protection Policy Failure?
Morag Kersel will also be presenting a paper on her project Follow the Pots
In a provocatively-titled op-ed in the conversation, Tess Davis and Marc Masurovsky argue that a proposed bill would make American art museums a haven for stolen art by allowing them to “knowingly exhibit stolen art”. Their argument:
On March 25, backed by the art trade lobby, Republican Congressman Steve Chabot reintroduced the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act to the House of Representatives. On its face, HR 4292 asks Congress to “clarify” a small section of the the law. But in truth, the bill goes far beyond mere clarification.
It would instead undo established US law and policy by allowing American cultural institutions to block legal claims to artwork on loan from abroad. Museums would knowingly be able to exhibit stolen and looted art and antiquities. It would leave the rightful owners without any legal recourse to recover their property in US courts.
This bill is just the latest attempt by the less responsible players in the art market to weaken US law. American legal principles have long held that a thief cannot transfer good title. The receipt, possession, and transport of stolen property is a crime. US legislation has carved out a narrow exception to prevent the judicial seizure of art imported for exhibition, but only in very limited circumstances, which it clearly enumerates. HR 4292 would greatly expand this exception by divesting our courts of all jurisdiction over such objects.
Those are strong statements. And it must be said that the text of the proposed bill, at least by my reading, seems to do just the opposite. It makes it easier for Nazi-era claimants to pursue claims against possessors who send their art on temporary exhibition to the U.S.
It clarifies the concept of “commercial activity”; something needed after a 2005 case, Malewicz v
. City of Amsterdam, which saw heirs of Malevich bringing suit against Amsterdam in federal court in Washington D.C.
Since 1965 the Exemption from Judicial Seizure of Cultural Objects Imported for Temporary Exhibition act grants immunity for temporary exhibitions for material being brought into the U.S. if the loan is in the national interest, and the objects are of cultural significance. Rick St. Hilaire and others have supported this clarification. And on its face the clarification seems necessary. Perhaps what Masurovsky and Davis really want is an end to all art immunizations—but they don’t really come out and say that. Instead they accuse Americn Museums of knowingly exhibiting and gathering stolen art. Though there are certainly examples of this on the extreme margins, the examples that the authors use both cut against their underlying position. The Portrait of Wally litigation never involved Federal immunity, only New York State immunity. And the Koh Ker material was not loaned to the United States, it was acquired or up for auction, and the Federal Prosecutors initiated forfeiture actions.
I am not a provenance researcher, and I am not familiar with how in-depth the State Department grants of immunity checks are, but it seems to me the authors have exaggerated their position. Perhaps I’m missing something, but I don’t see any example of any museum in North America being able to knowingly exhibit stolen material.
Today Italy’s Corte di Cassazione will hear the Getty’s appeal in the dispute over this “Bronze Statue of a Victorious Youth”. The Bronze was acquired by the Getty in 1977, and has been a cornerstone of its collection. But in 2007 a new seizure suit was brought in Pesaro. The most recent ruling ordered the Bronze seized, wherever it is located.
The question then must be, if the High Court in Rome upholds the seizure, will an American court enforce it? I wrote an essay titled “Transnational Forfeiture of the Getty Bronze“, soon to be published in the Cardozo Art & Entertainment Law Journal, examining this question.
My conclusion is that yes, the Mutual Legal Assistance Treaty between the United States and Italy, in conjunction with U.S. law, does provide for U.S. assistance in an American court. The law in question, 28 U.S.C. § 2467, provides a framework for enforcing these foreign orders. But the Office of International Affairs in the State Department still has discretion in determining whether to bring suit to help enforce these foreign orders. The only guidance given in the law is to let the “interest of Justice” guide the decision made by the official. The Getty no doubt will be arguing today in Rome in the hopes that the case ends today before Italy inevitably requests assistance from the State Department.
The Chasing Aphrodite blog has the story of a noteworthy new federal forfeiture involving billionaire hedge-fund manager and buyer of antiquities, Michael Steinhardt. At issue is this lovely fresco allegedly looted from Paestum. The name Steinhardt will likely be a familiar one as he was a claimant who lost another federal forfeiture action over the Gold Phiale, which helped set useful precedents for federal prosecutors.
The Federal prosecutor’s complaint alleges the importation of the fresco violated US customs law, §1595a, which prohibits the importation of objects contrary to law. The fresco was part of a FedEx shipment into Newark in 2011 that was detained by Customs and Border Protection. the shipment had a customs declaration form, but again, just like with the Godl Phiale case there appears to been misstatements on the customs form with respect to the country of origin for this object. The form declared the origin to be Macedonia, while the complaint alleges the fragment was taken from a tomb in Paestum.
The provenance for the object claims that the fresco was acquired by Lens Tschanned from a Swis art gallery in 1959, and it had been in his home from then until April of 2011. The fresco had no export permissions.
Customs and Border Protection contacted the Italian Carabinieri, and the Tutela Patrimonio Cultrale was able to identify the object as the pediment of a painted tomb north of Paestum in present-day Salerno. This site is known as the necropolis of Andriuolo. The complaint alleges that the figures on the fresco in question are painted in mirror image to another fresco from tomb 53 suggesting they may have likely been installed on different sides of the same tomb.
Here’s the mirror image fresco from tomb 53, which is not on display at the National Archaeological Museum in Paestum. Federal prosecutors appended both of these images in the complaint:
Chasing Aphrodite gives some background of the company Mat Artcare, based in Switzerland:
Mat Securitas is the same Swiss shipping service that transported the Getty Museum’s looted goddess of Aphrodite from Switzerland to London. (See Chasing Aphrodite p. 148).Their motto is “Safe. Discrete. Reliable.”
Will Steinhardt litigate this dispute as aggressively as he did in the 1990’s with the Gold Phiale forfeiture? The Federal complaint makes an extremely compelling case that this fragment was looted from a tomb in Paestum. It’s connection to macedonia seems ludicrous when compared to the other pediment which was excavated and is on display at the museum there.
The Telegraph has a good extended look at Eric Prokopi and the trade in illegal fossils:
The law regarding ownership of fossils differs from country to country. In the UK, they are normally treated as “minerals” and, thus, ownership of fossils lies with the person who owns the mineral rights to the land on which the fossil is found. In America, ever since a Sioux rancher won the right to sell fossils found on his land and went on to auction a skeleton of a T. rex, in 1997, for a staggering $8.4million, fossil-hunting has become an expensive activity. Ranchers now sell the rights to any fossils that may be found on their land to the highest bidder.
As, a result, people have started looking farther afield, to countries where the law is not so rigorously applied. Mongolia prohibits the personal ownership of items of cultural significance, such as dinosaur remains, and is also a signatory to a UN convention prohibiting the “illicit import and export of cultural property”. However, an area like the Gobi desert, with its vast, remote landscape, is not only difficult to police but also includes an expanse of sandstone – known as the Nemegt Formation – which is one of the top two dinosaur sites in the world, in terms of diversity of specimens. It has proved irresistible to black-market dealers.
More than 1,000 works of art have been seized by authorities in Albania after the discovery of an art-trafficking operation. Albania’s Prime Minister Edi Rama was quoted by the BBC:
Welcoming the police operation, Mr Rama said the artwork had “risked joining the long list of works that have crossed the country’s borders”.
He said it was one of the largest operations against art trafficking, but that it marked just the beginning of a campaign in which he appealed to Albanians to “redress this lamentable plight of our heritage”.
Experts say that Albania’s Orthodox churches have been plundered of much of their art work since the fall of communism, and that the trafficking of stolen art is widespread.
“[Albanian society] has forgotten that this might be our temporary house, but it remains the perennial abode of generations to come and we owe it to them to pass on the country we inherited from our ancestors,” the prime minister said.