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Illicit Cultural Property – Page 13 – art, heritage, & law

Work in Progress on Authenticating Art

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I’ve posted a draft of a forthcoming work on art authentication on SSRN. The piece is scheduled for publication in the Mississippi Law Journal in the fall. I probably enjoyed writing this piece more than I should have. Our appetite for stories about art forgery and art authentication are indeed boundless, and in researching the piece, they’ve been boundless for a long time. Criminologists were studying art forgery as early as the 1960s. From the abstract:

The determination of a work of art as authentic (or not) makes a tremendous difference in the value of a work of art. Owing to the millions of dollars which can be added, or subtracted, to a work of art when an authentication opinion is made, lawsuits will often be the last resort of those unhappy with an authentication. Determining with absolute certainty, the authenticity of a work of art takes the combined expertise of art historians, scientists, and art connoisseurs. Previous examinations of the problem of art fraud and counterfeit art have focused on criminal offenses, pointed to market failures, and even argued that we should not care too much about fake art at all if nobody notices. These examinations all fail to give sufficient weight to the sheer difficulty of the task. It takes tremendous expertise required to correctly determine the artist who created a work of art, and the period in which the object was fashioned. The pages which follow argue art authentication and the experts who make them have gotten a bad reputation. Instead, their analysis should be properly valued as expert testimony in court in art authentication disputes, and should be protected from vexatious litigation.
Derek Fincham, Authenticating Art by Valuing Art Experts, SSRN Scholarly Paper ID 2770705 (Social Science Research Network), Apr. 26, 2016.

Greece reported to be seeking International Justice for the Parthenon

The Ilissos sculpture, on display in London, originally adorned the Parthenon
The Ilissos sculpture, on display in London, originally adorned the Parthenon

With 2016 marking the 200th anniversary of the acquisition of the Parthenon sculptures by Parliament from Lord Elgin, there will likely be a lot of attention paid to the long-running dispute. The Guardian reported yesterday on a legal summary authored by Geoffrey Robertson, Norman Palmer, and Amal Clooney. The possibility of bringing a claim before the ICJ, raising public support, and continuing to generate goodwill towards reunification of the monument in Athens are the major themes of the 141 page summary, available via the Guardian. But the major focus of the claim now seems to be a call for justice for the sculptures, an argument I’ve made as well building on the well-established principle of environmental justice.

The reporting by Helena Smith focuses on the work by advocates in Athens:

As campaigners prepare to mark the 200th anniversary of the antiquities’ “captivity” in London, Athens is working at forging alliances that would further empower its longstanding battle to retrieve the sculptures.

“We are trying to develop alliances which we hope would eventually lead to an international body like the United Nations to come with us against the British Museum,” the country’s culture minister, Aristides Baltas, revealed in an interview.

“If the UN represents all nations of the world and all nations of the world say ‘the marbles should be returned’ then we’ll go to court because the British Museum would be against humanity,” he said. “We do not regard the Parthenon as exclusively Greek but rather as a heritage of humanity.”

But the politician admitted there was always the risk of courts issuing a negative verdict that would wreck Athens’ chances of having the artworks reunited with the magnificent monument they once adorned.

“Courts do not by definition regard [any] issue at the level of history or morality or humanity-at-large. They look at the laws,” said Baltas, an academic and philosopher who played a pivotal role in founding Syriza, Greece’s governing leftist party. “As there are no hard and fast rules regarding the issue of returning treasures taken away from various countries, there is no indisputable legal basis.”

Helena Smith, Greece Looks to International Justice to Regain Parthenon Marbles from UK, The Guardian, May 8, 2016, http://www.theguardian.com/artanddesign/2016/may/08/greece-international-justice-regain-parthenon-marbles-uk.
Derek Fincham, The Parthenon Sculptures and Cultural Justice, 23 Fordham Intellectual Property, Media & Entertainment Law Journal 943 (2013).
Christopher Hitchens, A Home for the Marbles, The New York Times, Jun. 19, 2009, http://www.nytimes.com/2009/06/19/opinion/19iht-edhitchens.html.
Michael Kimmelman, Elgin Marble Argument in a New Light, The New York Times, Jun. 24, 2009, http://www.nytimes.com/2009/06/24/arts/design/24abroad.html.
John Henry Merryman, Whither the Elgin Marbles, in Imperialism, art and restitution 98 (Cambridge Univ Pr 2006).
David Rudenstine, Lord Elgin and the Ottomans: The Question of Permission, 23 Cardozo L. Rev. 449 (2001).

Younging on Traditional Knowledge and Intellectual Property

A Caribbean Steel drum, an instrument made using traditional knowledge
A Caribbean Steel drum, an instrument made using traditional knowledge

Dr. Gregory Younging, at the University of British Columbia, has an interesting essay in the Pennsylvania Journal of International Law titled “Traditional Knowledge Exists; Intellectual Property is Invented or Created“. From the introduction:

Prior to contact with Europeans between 300 and 600 years ago, Traditional Knowledge (TK) systems had developed and flourished over thousands of years in various parts of the world. These knowledge systems are rich and varied, ranging from soil and plant taxonomy, cultural and genetic information, animal husbandry, medicine and pharmacology, ecology, zoology, music, arts, architecture, social welfare, governance, conflict management, and many others. Most of these TK systems continue to exist and evolve; at the same time, they have been appropriated and subjected to Western legal regimes. Indigenous cultural expressions are manifestations of TK that are passed on by Indigenous ancestors through successive generations. They are, in turn, inherited by current, to be passed on to future, generations.

Some thoughts on Remote Houston

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Downtown Houston, part of our Remote “Tour”

What would happen if some thoughtful people added some real art to the idea of the audio guide. What if you ditch the whole name. What if you took the best parts of Radiohead’s OK Computer, flashmobs, our fears of mortality, our reliance of technology, confronted 50 people with the idea of a city, and took them through the parts of a city we often ignore?

You’d end up I think with something like “Remote Houston”. An experience put together by the arts collective Rimini Protokoll based in Berlin. The idea is adaptable to different cities, and each tour is modified to account for the quirks of different cities. “Remote Houston” begins in Evergreen Cemetery, and ends in the heart of Houston’s downtown.

What you get out of each tour will be personal and different. I was struck by how the tour was tied so closely to the idea of life and death and the passage of time. All concepts that we teach in law school, with are given arcane names with course titles like “Trusts and Estates” and cover concepts like “dead hand control” and the like. These doctrines are integral to our courses and doctrine, but never really made tangible. At least not in this way.

As Molly Glentzer, an art critic for the Houston Chronicle discussed during our recent tour together pointed out in her review:

Continue reading “Some thoughts on Remote Houston”

House Task Force discussing Terrorism Financing and Antiquities

This morning a Congressional Task Force to Investigate Terrorism Financing is discussing terrorism and the antiquities trade:

Witnesses include:

Here is the Memo prepared by the Congressional Research Service prepared for the House Committee on Financial Services:

 

041916 Tf Supplemental Hearing Memo

Student Note on Pre-Columbian Antiquities

Pre-Columbian antiquities from the Rufino Tamayo Museum in Oaxaca
Pre-Columbian antiquities from the Rufino Tamayo Museum in Oaxaca

The Texas Law Review has published a student note by Ryan Phelps titled  Protecting North America’s Past: The Current (and Ineffective) Laws Preventing the Illicit Trade of Mexican Pre-Columbian Antiquities and How We Can Improve Them, 94 Tex. L. Rev. 785 (2016).

The piece is noteworthy mainly due to the prestige of the Journal, as the comment largely consolidates the arguments for advocating for more policing of the antiquities trade at the source and educating the buyers of illicit material at the market end.

From the Introduction:

With the problem at hand, this Note suggests that the current laws and recourses available that protect and deter the theft of Mexican pre-Columbian antiquities and these artifacts’ illegal import into the United States are ineffective at their goal of reducing these types of crime. Instead, a new policy is recommended that focuses on the active preservation of these antiquities before they are looted in the first place. This policy will rely primarily on educating the people of Mexico and the United States about the damage that this illicit trade causes and the penalties for those involved in this destruction. Specific groups of people will be targeted for this education, including people living in rural areas who may find or help transport stolen antiquities, border agents and tourists who may discover the antiquities as they are smuggled, museums and dealers who often serve as intentional or unintentional fences for these artifacts, and people involved in international transportation who may witness or take part in the trade.

Student Note on the Retroactivity of the 1970 Convention

Katarzyna Januszkiewicz has placed a student note in the Brooklyn Journal of International Law examining the “Retroactivity in the 1970 UNESCO Convention: Cases of the United States and Australia“.

From the Introduction:

This Note explores the domestic application of the United Nations Educational, Scientific, and Cultural Organization Convention on the Means of prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of 1970 (“UNESCO Convention” or “Convention”) by both the United States and Australia. The currently growing trend of returning looted artifacts to their countries of origin highlights the need for stricter law enforcement procedures and a possible reevaluation of the U.S. policy of the nonretroactive application of the UNESCO Convention, as applied to domestic law. As a major market country, the United States can lead the way in encouraging repatriation and in establishing better relations with source countries that do not have the resources to fight for their lost heritage on their own.

The Note argues that the non-retroactive features of the Convention lead to problems with it, which I’d argue is not really a major flaw of the Convention. Overall its a useful student note, but one that could have benefited from some editing by someone more familiar with the Convention and the literature examining it. Law students, if you are writing on cultural heritage, please get in touch. I’m happy to read drafts and offer suggestions on your writing and arguments.

On those Asia Week Seizures

Image from ICE, CBP, This seizure contained a 2nd Century Bodhisattva schist head from the Gandhara region (likely from what is now known today as Swat Valley, Pakistan,) and is estimated to be worth hundreds of thousands of dollars.
Image from ICE, CBP, a 2nd Century Bodhisattva schist head from the Gandhara region (likely from what is now known today as Swat Valley, Pakistan,) and is estimated to be worth hundreds of thousands of dollars.

The Asia Week in New York is an effort by galleries and Museums to exhibit Asian art and promote sales. According to Tom Mashberg’s reporting in the New York Times, it generated $360 million in sales last year.

But this year the event also generated considerable law enforcement attention, with by my count the seizure of eight antiquities. At least so far It revealed again the depressing scope of antiquities looting networks. Even when a network is revealed, and dismantled, objects appear again on the market for years after a successful investigation—in some cases decades or more. The ICE press release estimated that the Kapoor investigation and Operation Hidden Idol has secured over 2,500 objects, worth an estimated $100 million, with a total of four arrests.

The seizures at Asia Week this year stem largely from the investigation by Federal Agents, in cooperation with Indian authorities, of Subhash Kapoor.

Chasing Aphrodite has comprehensive coverage, and offers this background on the investigation:

Continue reading “On those Asia Week Seizures”

A couple of Heritage Law events on the East Coast

It is getting harder and harder to keep up with all of the cultural heritage law events and conferences which are happening. One of the best resources is the opportunities list put together every week by Donna Yates on her excellent blog. In the next few days, there are two excellent heritage law events, first in New York, and another in Washington D.C.

First off is the Lawyers Committee for Cultural Heritage Preservation Annual Conference on Friday March 25. It includes panels on the Parthenon Sculptures, Restitution, Conflict-Related looting, and digital heritage. The full schedule and speakers are available here.

And then next week on Tuesday and Wednesday a conference titled “Intersections in International Cultural Heritage Law” at Georgetown University Law Center offers six panels on topics including human rights and cultural heritage, International criminal law and Heritage, the World Court and the Temple of Preah Vihear, and the ongoing situation in Syria and Iraq.

The full schedule for that event is here.

I was able to arrange my schedule and will be at both events. I’ll try to tweet the noteworthy comments and happenings, so you can follow along, but more importantly, if you are there, I’d be very happy to grab a beer or a coffee.