An Art Theft Anniversary

100 years ago Vincenzo Peruggia stole this painting:

The Mona Lisa

And 50 years ago Kempton Bunton stole this painting:

Goya’s The Duke of Wellington

Noah Charney discusses both in an Op-Ed for the LA Times:

These two famous art thefts, the date of the latter chosen by the colorful Bunton for the theatricality of falling on the anniversary of the former, helped to mold the public perception of art theft as a crime of oddball characters who did not really harm anyone. It is true that some of the many famous art thefts of the period preceding World War II were of this ilk, involving quirky nonviolent thieves with gentlemanly aspirations.

To read more about the Mona Lisa thefts, you can read Noah Charney’s long essay, The Thefts of the Mona Lisa: On Stealing the World’s Most Famous Painting, available from Amazon. All of the proceeds support ARCA. You can also read my short forward to the book, where I argue that perhaps we’d all be better off had the work stayed stolen.

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

United States Signs Bilateral Agreement with Greece

Hillary Clinton, at the Acropolis Museum in Greece

The United States has signed a bilateral agreement with Greece to impose import restrictions on certain archaeological and Byzantine objects dating from before the 15th Century. The agreement flows from the United States’ implementation of articles 7(b) and 9 of the 1970 UNESCO Convention.

One might be under a misimpression by reading some accounts of this signing by amateur international lawyers. To be clear, the United States has taken a unique view on the 1970 UNESCO Convention, but we should remember that the United States was the first ‘market nation’ to sign on to the convention, and no reasonable appraisal of the U.S. actions with respect to the UNESCO Convention would deem them unserious.

In fact, one might deem them more rigorous than other nations who have signed the convention but taken little or no concrete action. Though the financial burden of making a case before the Cultural Property Advisory Committee can be high, the process is straightforward, and allows for U.S. Customs agents to have clear classes of objects which they are looking out for.Those who argue that U.S. implementation does not reflect a commitment to fight the illicit trade in antiquities (an intellectually lazy assertion, particularly when it has little supporting evidence or argument) might be well-served by actually reading the text of both article 7 and 9 of the convention, and even seeking out Patrick O’Keefe’s very fine commentary on the convention itself.

Art.’s 7(b) & 9 taken together are the key provisions which the United States has enacted via the Cultural Property Implementation Act, and the Cultural Property Advisory Committee makes determinations on the imposition of import restrictions and creates a relatively streamlined process for creating bilateral agreements. Without the CPIA, treaties and bilateral agreements would be far more difficult to create because these agreements would have to go through the U.S. Senate for ratification.

Art. 7 (a) prevents national museums from acquiring cultural property originating in another State Party which has been illegally exported. If we think about this in terms of the US, what does consistent with national legislation mean? Which museums are ‘instrumentalities’ of the US government? Just the Smithsonian? There is after all no ‘American Museum’ along the lines of the British Museum or the Louvre. As a consequence, the U.S. has not implemented this article.

Art. 7 (b)(i)requires States to prohibit the import of cultural property stolen from a museum, religious or secular public monument or similar institution. Note that it requires an inventory. Very few museums have created such an inventory.

Art. 7(b)(ii) actually requires that a nation “pay just compensation to an innocent purchaser”, or one who has valid title if the object is returned.

Art. 9 is the crisis provision of the Convention. When you look to the text, terms like cultural patrimony, jeopardy and pillage are undefined. The protection of this Article extends only to “Archaeological and ethnographical materials”. It requires nations to erect import restrictions on certain classes of objects if they are in danger.

Patrick O’Keefe Argues:

[P]illage and jeopardy of a cultural heritage occur where the remains of a particular civilization are threatened with destruction or extensive movement abroad or when the sale of certain archaeological objects on the international market sets off a broad campaign of clandestine excavations leading to the destruction of important archaeological sites. …[I]t should not be considered open to a State Party to refuse to act on the ground that, in its opinion, the pillage complained of was not in fact putting the cultural heritage of the requesting State in danger. …Article [9] was against illicit traffic in cultural objects, and …the requesting State should not, therefore, be required to produce evidence as to the degree of damage or size of the illicit trade in these objects.

Art. 9 has two prerequisites: the cultural patrimony must be in jeopardy from pillage of archaeological or ethnological materials and there must be a “concerted international effort”. So first you need to determine whether the looted objects at issue are part of the cultural patrimony of an aggrieved nation.

It can be tempting for some to lose sight of many of the other sections of the UNESCO Convention. The convention imposes obligations on both market nations and those rich with cultural resources. These obligations represent the other side of the market and obligates nations of origin to protect their own sites and museums, to police their borders and to educate their people about the value of conserving cultural heritage. These obligations include establishing a government agency that will assist in the preparation of laws for the regulation of cultural objects, establish a national inventory of protected property, promote scientific and technical institutions and supervise archaeological excavations; establishing a licensing system for the export of cultural objects and requiring dealers to maintain registers with information on the origin, supplier, description and price of items sold.

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

Footnotes

Mes Aynak, a 1400 year-old Buddhist monastary will give way to a Copper mine
  • A Chinese mining company has been granted a 30 year lease to mine copper from one of the world’s largest untapped reserves in Afghanistan, but the mining will damage the 1400 year-old Mes Aynak complex. Archaeologists have been given 3 years to salvage the site, while a proper excavation would take closer to 10 years. The US military is chipping in $1 million for the salvage.
  • Donn Zaretsky runs down the coverage of the settlement of the Brandeis-Rose Art museum deaccession lawsuit.
  • The difficult task of conserving Ur in Iraq.
  • Request denied: Italy asked if the Louvre might give up the Mona Lisa for a temporary exhibition, but the move would cause “incalculable damage” and was not worth risking.
  • Cultural heritage preservation Houston style: an original 1967 model of AstroWorld has been saved for future generations and been purchased from Craigslist, the engineering firm which purchased the model plans to donate it to the Houston Public Library.
  • Truth is an absolute defense: David Grann, author of a terrific piece on art authentication last year for the New Yorker has been sued by one of the subjects of the piece, art-authenticator Peter Paul Biro. 
  • The AV Club reviews Chasing Aphrodite.
  • The Van Gogh Museum in Amsterdam will close for 6 months for security upgrades and renovations.
  • Eight Old Master paintings will be repatriated to the Netherlands.
  • The University of Sydney decided the considerable sum a donated Picasso could bring by a sale outweighs the value in keeping and displaying the painting.
Questions or Comments? Email me at derek.fincham@gmail.com

Congratulations to David Gill

The Archaeological Institute of America (AIA) has selected Dr. David Gill, Reader in Mediterranean archaeology at Swansea University and a writer of a related blog, looting matters, for the 2012 Public Service Award. Gill has been an outspoken critic of the antiquities trade and the looting of archaeological sites, his writing has made a direct connection between looting and the market in antiquities, and plays an important role in showing the scope of the problem. He does not propose solutions, rather his work offers a slow accumulation of anecdotal examples of the problem and the presence of looted antiquities in museums and auction houses. I wish him continued success and look forward to many more opportunities to discuss (and argue about!) these vexing problems.

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

Student Note on Aid for Iraqi Cultural Heritage

Priscilla Singer haw written a student comment for Chicago-Kent Journal of International and Comparative Law titled “THE NEW AMERICAN APPROACH TO CULTURAL HERITAGE PROTECTION: GRANTING FOREIGN AID FOR IRAQI CULTURAL HERITAGE“. From the Introduction:

In reviewing the actions of the U.S. Department of State in response to the destruction of
Iraqi cultural heritage, I will first discuss Iraqi history and the background facts leading up to the U.S.-led invasion of Iraq in March 2003. Next, I will discuss two separate events involving U.S.troops and the destruction of Iraqi cultural heritage: first, the initially passive response of U.S. troops to the obliteration of the Iraq National Museum and second, the U.S. occupation of the ancient city of Babylon. When dealing with each section, I will discuss basic facts describing American involvement in these events, American international law (or even domestic law) obligations when dealing with cultural heritage, and whether the U.S. lived up to their obligations. Finally, I will discuss current American operations at rebuilding and restoring Iraqi cultural heritage. I will analyze whether the current American approach falls into the American definition of foreign aid and what, if anything, will foreign aid do for fostering Iraqi identity.

Student Note on Aid for Iraqi Cultural Heritage

Priscilla Singer haw written a student comment for Chicago-Kent Journal of International and Comparative Law titled “THE NEW AMERICAN APPROACH TO CULTURAL HERITAGE PROTECTION: GRANTING FOREIGN AID FOR IRAQI CULTURAL HERITAGE“. From the Introduction:

In reviewing the actions of the U.S. Department of State in response to the destruction of
Iraqi cultural heritage, I will first discuss Iraqi history and the background facts leading up to the U.S.-led invasion of Iraq in March 2003. Next, I will discuss two separate events involving U.S.troops and the destruction of Iraqi cultural heritage: first, the initially passive response of U.S. troops to the obliteration of the Iraq National Museum and second, the U.S. occupation of the ancient city of Babylon. When dealing with each section, I will discuss basic facts describing American involvement in these events, American international law (or even domestic law) obligations when dealing with cultural heritage, and whether the U.S. lived up to their obligations. Finally, I will discuss current American operations at rebuilding and restoring Iraqi cultural heritage. I will analyze whether the current American approach falls into the American definition of foreign aid and what, if anything, will foreign aid do for fostering Iraqi identity.
Questions or Comments? Email me at derek.fincham@gmail.com

"neither party has blinked’

Le Marche by Camille Pissarro

So writes Second Circuit Judge Gerard Lynch in an opinion rejecting the innocent owner claim of Sharyl Davis. The case, previously discussed here, is an example of the Federal forfeiture power and pitted two seemingly innocent parties against one another. Ms. Davis, the loser in this dispute purchased this Pissarro monotype in 1985 for its market value, and had no knowledge that it had in fact been stolen from a Museum in Aix-les-Bains in France in 1981. 


Twenty years later the US government brought a forfeiture action against Ms. Davis when she consigned the painting to Sotheby’s for auction, but the Department of Homeland Security, after a request from the French police, asked that the painting be returned. It was this second sale which triggered a reaction, as the painting appeared in the Art Loss Register’s files—revealing perhaps some progress the art trade has made in uncovering stolen works of art.



The case reveals the continuing preference of American Courts generally for the original owner. In this case Davis—who now runs a B&B in Anthony Kansas—was in the unenviable position of having to defend an action against Federal Prosecutors, for the wrongful activity of Emil Guelton. Even though Davis prevailed on two of three of the forfeiture actions brought by the government, she was unable to maintain possession of the work. And in fact, despite winning those two cases she was unable to recover attorney’s fees (which must have been substantial). Though CAFRA, a statute meant to ease some of the burden of defending forfeiture actions, does allow claimants to receive and award of attorney’s fees who “substantially prevail”, the material relationship with the painting was lost on one of the forfeiture claims, and Davis is left without a Pissarro and with a substantial legal bill.

  1. Kate Taylor, “Buyer of Stolen Pissarro Work Suffers Hefty Loss,” The New York Times, June 8, 2011, sec. Arts / Art & Design, http://www.nytimes.com/2011/06/09/arts/design/buyer-of-stolen-pissarro-work-suffers-hefty-loss.html?_r=1.
  2. United States v. Davis (2nd Cir. 2010).
I’ve embedded the opinion after the jump:
Questions or Comments? Email me at derek.fincham@gmail.com

Chasing Aphrodite Reviewed

 “Chasing Aphrodite: The Hunt for Looted Antiquities at the World’s Richest Museum” (Houghton Mifflin Harcourt: 375 pp).

Jason Felch &
Ralph Frammolino

Disputes over works of art and antiquities take many forms. Nations and individuals with claims to cultural objects pursue their claims in a number of areas; only seldom are these battles seen in courts of law. As a consequence many of the precedents set for party’s actions are seen outside the public view. This underscores the terrific resource which Jason Felch and Ralph Frammolino have created with their new book, officially released yesterday.

Their terrific series of investigative reports for the Los Angeles Times served as the jumping off point for the work. That series of articles was a finalist for the 2006 Pulitzer Prize and helped me crystallize much of my thinking about the antiquities trade and the role of art museums. Those reports, though terrific, were limited by the length of a newspaper article, and the authors continued their reporting in the form of this work to allow the space to explore these issues. In so doing they have created what will stand as the definitive account of the troubled times at the Getty from its creation in the 1970s through 2007. The book takes the form of a straightforward and rigorous account of the events which led to first the creation of the wealthiest art-acquiring institution in the world, its unfortunate choices, and its painful public shaming.

The authors maintain their reporters tone, which serves the material well. I think partisans on both sides of the heritage debates will find much to admire in the consistent and accurate depiction of characters and events. One point for which the authors deserve high marks is their description of the laws at issue—they swiftly and accurately describe the complex network of U.S., Italian and International laws without letting it overwhelm the story they are telling. There are also references and notes for further readings. The book maintains a lively and direct style throughout. I was provided an electronic copy of the work, which had no page numbers, so I am unable to reference the quotations below.

The sources for the book are impressive. They include the personal records of Arthur Houghton, who emerges as an early attempted reformer, Getty records, private correspondence, court records in Rome, and interviews with over three-hundred key individuals. The authors note the only important figures they were not able to interview were J. Paul Getty; Jiri Frel, the first antiquities curator at the Getty, who emerges as an early villain; and Marion True, a complicated figure who because of her unwise acquisitions at the Getty all while championing reform leave me feeling more baffled as to her motivations than ever.

From Left: Barbara Whitney, Deborah Gribbon, John Walsh and
Marion True in happier days

One really does wonder at times with the benefit of hindsight what True was thinking. She earned the contempt of her colleagues in the Museum community for aggressively implementing stringent acquisition standards at the Getty and criticizing the acquisitions by other museums, all while directly purchasing objects which were surely looted. The authors really do well in juxtaposing her actions at the Getty with her public rhetoric about the antiquities trade. Their description of her testimony at a 1999 Cultural Property Advisory Committee meeting evaluating an Italian request for import restrictions into the United States really highlights the hypocrisy:

. . . True strongly defended the Italian request. She deemed “improper” the suggestions of some that it was better to have illicit antiquities on well-tended American shelves than to let the careless Italians keep them in dusty exhibits. American museums were just as careless with their objects, True said. Many still didn’t have updated inventories or pictures of their own items . . . True noted that Italy was becoming more generous with loans of ancient art. Policies that expected Italy to be able to document objects that had been looted, like the one the Getty used to rely on, were irretrievably flawed.

Such comments surely did not endear True to her colleagues. In fact, the Getty had violated many legal and ethical rules to acquire their objects, and once they had a renowned collection had declared, under True’s direction, that the rules of the trade had changed, and other institutions must follow the Getty’s lead. This may perhaps explain why the Getty helped support True by paying her legal fees in her criminal trial in Rome, but had distanced itself publicly.

The “Getty Bronze”, one of the
few disputed objects
which has not been returned

Anyone who has followed the Getty and cultural heritage issues in recent years knows well how this story ends, so the most fascinating parts of the book emerge at the beginning, with an account of the chance discovery and smuggling of the “Getty Bronze” from the Adriatic and the town of Fano, and the early days of the Getty.

Those early days set the Getty on what seems to have been a course which could not have avoided trouble. Particulary in chapter four, titled “Worth the Price”. Perhaps because he seems to have offered a great deal of assistance to the authors, Arthur Houghton emerges as an important early figure who attempted to check some of Jiri Frel’s unethical and illegal conduct, particularly in . Early on Houghton recommended that the Getty adopt what he called “optical due diligence” which meant “[t]he Getty should create the appearance that the objects it was acquiring had been carefully vetted, but at the same time avoid ‘certain knowledge’ of where they were actually coming from.” This concept of optical due diligence will likely strike a familiar chord with many observers, but a phrase which I have not seen expressed with such simplicity before.

As the authors note, Houghton was far more concerned with tax fraud that Frel was committing on a grand scale. He would routinely accept donations from wealthy donors, vastly increasing the appraised value of the objects. As the authors note the optical due diligence “was a surprisingly cynical position for Houghton to take, given his moral outrage at Frel’s transgressions. But in his mind, tax fraud and forgery were entirely different from breaking the export laws of a neglectful foreign country, especially when the goal was to educate and enlighten Americans.” In fact, Houghton’s actions were probably consistent with the vast majority of American curators at the time. And given the culture in the early 1980’s, Houghton was probably right that the Getty would likely earn a lot of trouble for itself fast if the IRS discovered the endemic tax fraud.

Aphrodite (or Persephone)
 has been returned to Aidone

Though the Getty now boasts an impressive legacy of research and vast works of art, the early days of the institution are less-than-stellar. One wonders if J. Paul Getty was really the dour, humorless penny-pincher he is depicted to be. The Getty originated not as part of some grand passion for the arts but as a passing hobby of a fantastically rich oil man. As such, those early founders of the Getty trust emerge as important trend-setters who would struggle initially with vast sums of money, and a desire to create one of the world’s foremost cultural institutions. That they succeeded is a testament to the vast wealth they were provided, and also the passion that these objects instill. But the question we must ask is at what cost?

A major theme I see emerging from the book are the incentives which helped fuel this looting. More attention has been directed at recently-acquired objects certainly, but Marion True was an early star in her field because she created galleries and exhibitions of objects with skill in such a way that made the public take notice. The public likes to look at these beautiful objects, and advocates need to continue to do the hard work to essentially train them to be ‘context connoisseurs’, meaning just because an object is beautiful, does nto mean that it should belong in a museum. The path these objects take matters. Had the Getty played by the rules, and not acquired many of these dubious objects, would it have emerged as such an important cultural institution? I’m not sure it would have. We see many poor choices by Marion True in the work, but she also emerges as one of a number of individuals at the Getty, yet she is the only one to have been shamed in such a public way and put on trial. In a perfect world many more probably should have taken blame for these acquisitions.

And the reason for that likely lies in the special esteem that the looted objects instill in us. The Italian government wanted to do everything it could to secure the return of these objects while also ensuring that future illicit activity would not take place, but to secure those returns took many years of hard investigation, and time-consuming and expensive legal negotiation. The Italian team which worked to pressure the Getty and other institutions into returning objects—Maurizio Fiorilli, Paolo Ferri, Francesco Rutelli and others—all emerge as sympathetic figures. Yet they would have had grave difficulty securing the returns had they employed a more direct strategy of prosecution of individuals at the Getty. Their efforts to focus charges on Robert Hecht, Giacomo Medici and Marion True appear to have been an effort to pressure the Getty into returning objects.

The work focuses on the Getty and Marion True and the direct line which can be drawn to looters in Italy. The limestone Aphrodite (which may in fact be Persephone) serves as an apt metaphor for the antiquities trade as a whole. When you heap such esteem on objects, without respecting its past, you risk distorting the object into something it never was. The limestone statue and its marble head, with its stunning depiction of billowing fabric was likely looted from Morgantina in Sicily. The authors introduce the objects at issue well I think, describing their composition, what we know of their history, and also noting what has been destroyed by looters. One feels outrage at the way this statue, perhaps the finest example of classical Greek sculpture outside of London or Greece was smuggled to Switzerland in a carot truck:

Some had seen the body of the statue—without the head—in three pieces at the house of a looter in Gela . . . The huge statue had been toppled over onto a blunt object, breaking it cleanly into three pieces that would be easier to hide during transport. The clean breaks also would make the statue easier to reassemble. The pieces were then driven to Milan, buried under a load of carrots in the back of a Fiat truck, and transported north across the border to Chiasso [Switzerland].

They note as well that Morgantina “proved a bonanza for local looters. After the excavators returned home from a summer of digging, the site fell prey to looters from the nearby hill town of Aidone. [Malcolm] Bell did what he could to fend them off, hiring guards to watch the site during the winter months. But the tombaroli . . . proved tenacious competitors for the relics of the ancient city. Bell once returned to the ruins after Sunday supper and stumbled upon a group hastily emptying a tomb of some 350 objects.” These accounts are disturbing, and it was the Getty’s purchase of objects which, though beautiful and rare, had destroyed context.

Many will likely point to the illegal and unethical conduct of the Getty in the work, and they are right to do so. Yet the archaeological community and nations of origin have much to answer for as well. When these ancient cities are studied, concern needs to be directed at the source to how the locals will react. What good is a trained archaeologist who painstakingly unearths parts of an ancient city, only to have her work undone at night by looters. That really is the legacy of the dispute between Italy and the Getty which the authors skillfully detail. Moving forward how can we envision a collaborative network which follows the law, but also protects sites, allows for professional excavation, and allows us to steward these precious resources for future generations.

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

“I have argued against the laws, but I haven’t broken the laws.”

So says James Cuno in Jason Felch’s report on the new Getty president and chief executive:

Cuno’s awkward embrace of a point of view he has long criticized creates a potential stumbling block for the Getty, which today relies heavily on cooperative relationships with Italy and other nations Cuno has openly criticized.

As director of the Chicago Art Institute since 2004, Cuno has rarely had to wrestle with claims by other countries that certain antiquities belong to them and not the museum that acquired them. The position Cuno staked out is largely a philosophical one, embracing the concept of “cosmopolitanism” — that antiquities are the common heritage of mankind and not the property of one nation.

He has denounced what he considers politicized claims by modern nations like Italy that, in his view, have only weak ties to the ancient civilizations that once occupied the same land.

Cuno’s arguments are perhaps the clearest articulation of a view that American museum officials used for decades to justify the acquisition of antiquities with no clear ownership record. That practice has largely ended as direct evidence of looting forced leading museums, collectors and dealers to return hundreds of objects to Italy and Greece in recent years.

Yet while many museums moderated their stances during that controversy, Cuno became more outspoken.

“Cultural property is a modern political construct,” he said in a 2006 debate at the New School hosted by the New York Times. In March of this year, he described laws that give foreign governments ownership over ancient art found within their borders as “not only wrong, it is dangerous.”

  1. Jason Felch, James Cuno’s history of acquiring ancient art – latimes.com, L.A. Times, May 12, 2011, http://www.latimes.com/entertainment/news/la-et-cuno-antiquities-20110512,0,7395453,full.story (last visited May 12, 2011).

Cuno on the Getty’s New Acquisition Policy

“I have argued against the laws, but I haven’t broken the laws.”

So says James Cuno in Jason Felch’s report on the new Getty president and chief executive:

Cuno’s awkward embrace of a point of view he has long criticized creates a potential stumbling block for the Getty, which today relies heavily on cooperative relationships with Italy and other nations Cuno has openly criticized.

As director of the Chicago Art Institute since 2004, Cuno has rarely had to wrestle with claims by other countries that certain antiquities belong to them and not the museum that acquired them. The position Cuno staked out is largely a philosophical one, embracing the concept of “cosmopolitanism” — that antiquities are the common heritage of mankind and not the property of one nation.

He has denounced what he considers politicized claims by modern nations like Italy that, in his view, have only weak ties to the ancient civilizations that once occupied the same land.

Cuno’s arguments are perhaps the clearest articulation of a view that American museum officials used for decades to justify the acquisition of antiquities with no clear ownership record. That practice has largely ended as direct evidence of looting forced leading museums, collectors and dealers to return hundreds of objects to Italy and Greece in recent years.

Yet while many museums moderated their stances during that controversy, Cuno became more outspoken.

“Cultural property is a modern political construct,” he said in a 2006 debate at the New School hosted by the New York Times. In March of this year, he described laws that give foreign governments ownership over ancient art found within their borders as “not only wrong, it is dangerous.”

You can read the Getty’s acquisition policy here: http://www.getty.edu/about/governance/pdfs/acquisitions_policy.pdf

Not much room for acquiring illegally-acquired objects

  1. Jason Felch, James Cuno’s history of acquiring ancient art – latimes.com, L.A. Times, May 12, 2011, http://www.latimes.com/entertainment/news/la-et-cuno-antiquities-20110512,0,7395453,full.story (last visited May 12, 2011).