A couple of art museum intruders did their best Third Man impression in Houston last night. Two people allegedly broke into the Bayou Bend Collection and Gardens, a satellite museum run by the Museum of Fine Arts in Houston. The individuals set off a security alarm at the Bayou Bend and were chased by a security guard. They then apparently hopped on a boat on Buffalo Bayou and evaded law enforcement long enough to scurry into a large storm drain and were able to escape.
The episode calls to mind the theft in 2000 when gunmen took works of art by Rembrandt and Renoir and then escaped the waterfront National Museum of Sweden by boat. There was also speculation in 2020 that thefts from the University of Oxford’s Christ Church Picture gallery were done by thieves who came and went by boat on either the River Cherwell or the River Thames near Oxford.
These unsuccessful Bayou bandits were not able to take anything of value according to the Museum of Fine Arts in Houston, but were able to lose a perfectly good boat in their escape attempt.
Here’s the local ABC13 affiliate report this morning:
Two antiquities dealers have been arrested today in connection with what prosecutors allege was an antiquities fraud scheme from 2015-2020. The dealers were announced in an unsealed Indictment in Manhattan federal court today: Erdal Dere of Fortuna Fine Arts Ltd., and his alleged “associate and co-conspirator” Faisal Khan. The defendants are alleged to have defrauded buyers and brokers in the antiquities trade through the use of false provenance. The false histories allegedly fraudulently used the identities of deceased individuals. Fortuna is described in the indictment as a Manhattan-based gallery which sells “antiquities and numismatics”. The indictment here seems to be targeting the false information provided by the defendants to buyers and brokers, which included names of deceased collectors and fabricated documents. The indictment alleges the material originated from Asia and was given false history with fabricated documents.
The criminal offences alleged to have been violated include Wire Fraud under 18 U.S.C. §1343, conspiracy to commit wire fraud, and identity theft under 18 U.S.C. 1028A.
In a press release today announcing the arrests, statements from the U.S. Attorney and FBI Assistant Director attempt to tie this investigation into broader efforts to regulate the art and antiquities trade. Audrey Strauss, the Acting United States Attorney for the Southern District of New York said:
The integrity of the legitimate market in antiquities rests on the accuracy of the provenance provided by antiquities dealers, which prevents the sale of stolen and looted antiquities that lack any legitimate provenance. As alleged, Erdal Dere and Faisal Khan compromised that integrity, and defrauded buyers and brokers of the antiquities they sold, by fabricating the provenance of those antiquities, and concealing their true history. Now, thanks to the FBI’s Art Crime Team, Dere and Khan are in custody and facing prosecution for their alleged crimes.
Also, FBI Assistant Director William F. Sweeney Jr. tied the investigation into safeguarding the objects themselves:
Antiquities and art allow us to see a piece of history from a world that existed hundreds and, in some cases, thousands of years ago. As alleged, the men who trafficked in fake documents and used dead people’s names to bolster their lies had no care for the precious items they sold and no regard for the people they defrauded.
The alleged actions certainly link up with much of the conduct that researchers and criminologists have shown to run through the trade in art and antiquities. The use of identity theft and wire fraud charges are noteworthy and likely particularly useful. The fraud charge seems to me to be a particularly useful avenue as it gets at the core wrong of so much of what dodgy dealers engage in, as I have argued elsewhere. Remember that these arrests and the information contained in the complaint are only allegations, and it will be up to the prosecutors to meet their burden if they are to convict these men.
The United States Supreme Court has granted certiorari and will weigh in on a Nazi-era dispute over artworks, involving the sale of a collection of medieval artworks known as the Guelph Treasure. The collection is described as something out of a film: gold, silver, and jeweled liturgical objects from the Church of St. Blaine in Brunswick, Germany. Many of the objects were crafted in what is today present-day Germany, but other objects came from the Italian peninsula or the Byzantine empire.
Here’s a quick background on the dispute. The Welfenschatz, or Guelph trove is currently in the possession of the Prussian Cultural Heritage Foundation and has been claimed by successors of art dealers who were fleeing the holocaust. These objects were originally housed in the cathedral in Braunschweig, owned by the House of Guelph. During the First World War, the House of Guelph lost reign over Braunschweig and in the 1920s the pieces were sold to a consortium of Frankfurt art dealers, including 82 items in 1929. Later in 1935 the Prussian state, led by Hermann Goering, bought the remaining pieces of the treasure in what the claimants allege was a “genocidal taking”. In 2014, a German government commission found that the transaction was not a forced sale.
The claimants then brought suit in the United States. The current possessors, the Prussian Cultural Heritage Foundation have defended that action on the grounds that as a Foreign Government, they are immune from suit in the United States under the Foreign Sovereign Immunities Act. Claimants have argued that the actions of the Prussian government fall under one of the exceptions to that law, that the actions of the Prussians was a violation of International law, namely genocide. The Supreme Court has agreed to consider two issues:
Whether suits concerning property taken as part of the Holocaust are within the expropriation exception to the Foreign Sovereign Immunities Act (FSIA). This is the legal treasure which gives the claimants a jurisdictional foothold to sue a foreign government in the United States, something that ordinarily is not allowed under American law.
Whether a foreign state may assert a comity defense that is outside the FSIA’s “comprehensive set of legal standards governing claims of immunity in every civil action against a foreign state.” In essence the appellants are attempting to use the idea that Courts should refrain from entering into the realm of foreign policy in a broader way. At least that is how I understand that issue.
Nicholas O’Donnell, an attorney for the claimants stated:
[W]e are grateful for the opportunity to address the Supreme Court on these important questions about holding Germany accountable for its Nazi-looted art. A 1935 transfer from German Jews to notorious art looter and war criminal Hermann Goering is the quintessential crime against international law, regardless of Germany’s Holocaust distortion in defending this case. Germany seeks to eliminate recourse for Nazi-looted art and the Court will have the chance to answer this question of critical importance for Holocaust victims.
Being on the side of the possessors and having to defend that possession by justifying the acquisition by such an evil historical figure as Hermann Goering cannot be an easy legal argument. The Court will likely hear the case in the Fall, likely via telephone if the never-ending pandemic continues to outwit the hapless policy makers here in the United States. The case could impact the future of Nazi-era claims, and claims for wrongdoing more generally during similar periods of atrocity. The Court will also hear a case involving Hungarian nationals who lost property during World War II.
Now for something completely different. Maintaining physical distancing and staying home presents particular challenges to those of us with toddlers. And if you are like me you likely are really, really missing the experience of seeing art in museums and galleries. Luckily, I have a remedy. There’s a terrific book that manages to combine art and staying home in a rare children’s book which is fun to read and a hit with our little one. Best of all, I receive profound joy whenever we get to the page with Edvard Munch’s The Scream, and our toddler recreates it himself. The book offers a sweet girl heroine, art that you likely know about, and a nice introduction to some major works. It has been a hit with our little book lover, and his parents.
Below you can find a useful link to the book at Bookshop, an online bookstore which supports local, independent bookstores.
This is an unsolicited plug—I have no doubt that many folks are very familiar with the good work that the International Foundation for Art Research (IFAR) has done for many years. But one of its most remarkable accomplishments is its Art Law and Cultural Property Database. If you are a student, attorney, art professional, or cultural heritage advocate and not availing yourself of this resource, you are likely duplicating work and failing to account for much of the advocacy and scholarship which has come before. I encouraged my own librarians to secure a subscription for my work, and the work of students in my Art Law Seminars. I’ve used this terrific resource many many times in preparing lectures and informing my own scholarship, and I encourage you to consider adding a subscription for your own firm or institution.
Catherine Hickley reports for the Art Newspaper that a new study has shown that serious state-sanctioned seizures of privately-held artworks continued long after the conclusion of World War II, particularly in east Germany. The study examined acquisitions between 1945 and 1989 by four museums: the Viadrina Museum, and museums in Strausberg, Eberswalde, and Neuruppin. The study was conducted by the German Lost Art Foundation, and was intended as a pilot project to guide further research.
One of the most common ways that art confiscated from individuals wound up in East German museum collections was through the clearance of the residences of people who had fled the country, especially in the second half of the 1950s, Sachse says. At the end of 1961, just a few months after the Berlin Wall was erected, East German Minister for State Security Erich Mielke gave orders for a secret operation to force open and empty unused, privately rented bank vaults, safety deposit boxes and safes at around 4,000 locations across the country and empty them of their contents. The stealth operation, known as Aktion Licht (Operation Light), amounted to an orchestrated, state-sanctioned mass theft from people who had left the country. The treasures belonged to East Germans who had escaped to the West, but also to Jewish people forced to flee or who were taken to concentration camps during the Third Reich. The Stasi valued its findings at 4.1m deutschmarks (around $10m at the time). After 1970, the preferred method of theft by the East German authorities was to invent astronomical tax bills and then seize art when the victims could not pay.
In 2017 the Council of Europe opened the Nicosia or ‘Blood Antiquities’ Convention up for signature. The new initiative is the first of its kind devoted to the criminal and penal aspects of policing cultural property. I wrote a discussion of the Treaty, examining its provisions in detail and thinking about what this initiative may mean for the future of cultural heritage law.
In 2017 the Council of Europe opened for signature the first ever international treaty aimed at policing cultural property. As more attention has been paid to the damage done by the theft, looting, and illicit trafficking of cultural objects, the Council of Europe has met this challenge with an ambitious convention which aims to fill gaps in the current criminal laws. These gaps have too often been exploited by individuals in the illicit antiquities trade. The author had an opportunity to present his analysis of a draft version of the Council of Europe’s Convention at a meeting held in Lucca, Italy in 2017. The meeting of that group of experts revealed a document that had the benefit of grand ambitions and tough talk on the policing of illicit antiquities. Yet there was pessimism expressed by many experts that the Convention would accomplish the goals which it set out to achieve. The essay which follows is an expansion of the remarks given at that meeting. It argues that the cultural property trade badly needs to be properly regulated. This includes not simply seizure and forfeiture of objects, but also the prosecution of persistent bad actors. The Nicosia Convention opens up new possibilities for prosecution at all levels of the illicit trade. Although the Convention is the first of its kind, it has been met with surprisingly little attention in the cultural heritage law academy. This essay introduces the main reforms offered by the Convention and argues that it points the way forward for future policing of the illicit trade in cultural property.
Professor Janet Ulph of Leicester Law School has written a handy and concise discussion of how fossils fit into the overall picture of cultural heritage crime.
This article explains why museums should avoid acquiring fossils which lack sufficient provenance and where the circumstances are suspicious. It argues that, regardless of whether one considers fossils to be cultural property or not, the Museums Association’s Code of Ethics should be followed not only in order to maintain public trust in museums but also to ensure compliance with current laws
Professor Hope Babcock, of Georgetown Law, has published an interesting discussion on public art which carries forward a number of ideas presented by Joseph Sax and the public trust. She looks at the interesting problem of art which is withheld from public enjoyment. In other words should this iconic work of Winslow Homer enter the public patrimony, and thus be prevented from disappearing into a private collection if the Met would ever decide to deaccession it?
Private hoarding of important works of art is a phenomenon that has caused their disappearance from public view. The loss of this art undermines republican values like education, community, and citizenship, and therefore should be resisted. This Article explores various legal tools to prevent this from happening, including doctrines and laws that protect artists’ rights in their work, but which offer the public little relief. Turning to two well-known common-law doctrines—public dedication and public trust—to see whether they might provide a solution, the author favors the latter because it is nimbler and better suited to the public nature of important works of art. But she recognizes that making viable use of the public trust doctrine requires enhancement with incentives, such as those offered by listing the art on a register, the tax code, and external norms of social behavior. The Article is a tribute to Professor Joseph L. Sax’s public trust scholarship, which has inspired so many of us who follow in his footsteps.
Anne-Sophie V. E. Radermecker, affiliated with the Department of History, Arts and Archaeology (Cultural Management) Université libre de Bruxelles, Brussels, Belgium has published a paper devoted to the market for anonymous Flemish paintings which were sold between 1955-2015.
This paper explores the market for indeterminate works of art. Our data set includes 1578 sales of fifteenth and sixteenth-century anonymous Flemish paintings, mainly collected from the Blouin Art Sales Index over the period 1955–2015. After a brief introductory section to the issue of anonymity in early modern art, and the different situations of information failure generated by anonymous paintings, the empirical part examines the supply and demand for paintings by unrecorded artists, using a hedonic pricing model. We find evidence that the degree of specification of the spatio-temporal designations given to the paintings (e.g. Flemish school, sixteenth century) affect prices differently (H1). The more specific the designation is in time and space, the more it tends to make up for the lack of information, and to positively affect the market value of anonymous paintings. When the artist name is missing, we also argue that purchasers pay greater attention to other quality signals. Four other hypotheses, which are expected to influence the buyer’s willingness to pay, are successively tested: H2) the physical condition of the painting; H3) oral or written interventions by an expert; H4) the length of the lot essay; and H5) previous attributions to named artists. The results suggest that most of these variables operate as significant pricing characteristics. We finally compare price indices of named artists, indirect names and spatio-temporal designations.