Facebook will remove posts selling cultural objects

Facebook announced today that it will remove any content that is an attempt to buy, sell, or trade in “historical artifacts”. That decision is a welcome change, and the product of a terrific advocacy campaign by the Antiquities Trafficking and Heritage Anthropology Research (ATHAR) Project. in a press release, Greg Mandel, public policy manager at Facebook stated “To keep these artifacts and our users safe, we’ve been working to expand our rules, and starting today we now prohibit the exchange, sale or purchase of all historical artifacts on Facebook and Instagram”.

Some of the posts were truly shocking. Katie Paul, co-director of ATHAR was quoted in the NYT: “They literally will post pictures from auction catalogs and say, ‘See, this is how much this stuff can sell for, so go for it guys.’” And that kind of buyer-directed looting was reported by the BBC in 2019:

This welcome reform will help to prevent Facebook’s algorithms and micro-advertising campaigns from being used to sell illicit cultural objects, but likely will not end it entirely. As Prof. Amr al-Azm, from Shawnee State University in Ohio, adequate enforcement efforts will also be needed because simply “[r]elying on user reports and Artificial Intelligence is simply not enough”. Though more work may need to be done, this is a welcome development, and big congratulations should be directed at everyone at the ATHAR project and who called for this reform.

Tom Mashberg, Facebook, Citing Looting Concerns, Bans Historical Artifact Sales, The New York Times, Jun. 23, 2020, https://www.nytimes.com/2020/06/23/arts/design/facebook-looting-artifacts-ban.html.

Carlie Porterfield, Facebook Bans Artifacts Trade After Uptick In Posts Of Looted Objects, Forbes (Jun. 23, 2020), https://www.forbes.com/sites/carlieporterfield/2020/06/23/facebook-bans-artifacts-trade-after-uptick-in-posts-of-looted-objects/.

Steve Swann, Facebook Bans “loot-to-Order” Antiquities Trade, Jun. 23, 2020, https://www.bbc.com/news/world-middle-east-53140615.

Tracking the history looted from a warzone, BBC News (May 2, 2019), https://www.bbc.com/news/av/world-middle-east-47671566/syrian-looting-tracking-the-history-taken-from-a-warzone.

Orenstein on ‘risking criminal liability in cultural property transactions’

La dea di Aidone (formerly the Getty Goddess) perhaps an instance of conscious avoidance when the Getty Foundation acquired her in the 1980s?

Karin Orenstein, an Assistant U.S. Attorney for the Eastern District of New York has published a new short essay for the North Carolina Journal of International Law titled “Risking Criminal Liability in Cultural Property Transactions”. In the Piece she references the purchases of questionable material by prominent wealthy collectors Michael Steinhardt and Steve Green. From the abstract:

This Comment explores when buyers of cultural property cross the line from taking business risks to engaging in criminal conduct. The Comment applies the National Stolen Property Act (NSPA) and the conscious avoidance doctrine to potential red flags in hypothetical cultural property transactions. When buyers are presented with red flags about a piece’s provenance and choose not to investigate, they cannot rely on deliberate ignorance as a defense to a charge that they knowingly transacted in or possessed stolen cultural property.

Orenstein, Karin, Risking Criminal Liability in Cultural Property Transactions (2020). North Carolina Journal of International Law, Vol. 45, 527, 2020. Available at SSRN: https://ssrn.com/abstract=3583457

Masurovsky compares ‘Nazi plundered art, looted antiquities, and stolen indigenous objects

Marc Masurovsky, cofounder of the Holocaust Art Restitution Project (HARP) has published “A Comparative Look at Nazi Plundered Art, Looted Antiquities, and Stolen Indigenous Objects” in the North Carolina Journal of International Law and Commercial Regulation. The Piece is an ambitious and serious look at the different kinds of State-sponsored taking of art and heritage, and attempts to connect the different kinds of takings across different historical periods and cultural groups.

From the introduction:

The dispersal of Jewish collections during the Nazi years interestingly compares with the recycling of looted cultural property from conflict zones and the plunder of ritual objects from indigenous groups worldwide. There should be a common response by the international community to cultural plunder and crimes committed against culture, within the framework of State-sponsored persecutions of entire groups. And there should be common standards for prevention, seizure, and restitution. This Article explores these issues.

Marc Masurovsky, A Comparative Look at Nazi Plundered Art, Looted Antiquities, and Stolen Indigenous Objects, 45 N.C. J. Int’l L. & Com. Reg. 497 (2020).
Available at: https://scholarship.law.unc.edu/ncilj/vol45/iss2/8

This is how you write about art theft

“The Parsonage Garden at Nuenen in Spring”, Vincent van Gogh; stolen from the Singer Laren Museum in March amid the pandemic.
Octave Durham, who stole two works from the Van Gogh Museum in Amsterdam told Siegal “My number one rule is talk smooth, be cool, have a fast car and never touch anyone”.

Nina Siegal has written a terrific story on that recent theft of a work by Vincent van Gogh from the Singer Laren Museum. That theft was likely a quick crime of opportunity, as the thief must have underestimated the chances of turning that work into a future profit. That’s the big takeaway from the well-reasoned piece by Siegal, who gets a former thief Octave Durham, Ursula Weitzel the lead public prosecutor for art crimes for the Netherlands Public Prosecution Service, and the art theft investigator Arthur Brand to reveal the hard truths of art theft: the art itself is a silly thing to steal.

As ‘Okkie’ Durham is quoted:

“I just did it because I saw the opportunity,” Mr. Durham said. He noticed a window at the museum that he thought would be easy to smash. “I didn’t have a buyer before I did it,” he said. “I just thought I can either sell them, or if I have a problem I can negotiate with the paintings.”

As Weitzel points out: “Unless it’s a crime of passion, usually the motive is to make money,” she said. “It’s as simple as that. People don’t steal it because they want to hang it on the wall. That kind of theft for pride or status, I haven’t seen that. It’s usually for money. Or, for safekeeping, in the event that it may be necessary.” And the hard truth of the difficulty in seeing a profit off of a theft means those stolen works stay hidden with a very low return on the market value of the work according to Brand.

Nina Siegal, What Do You Do With a Stolen van Gogh? This Thief Knows, The New York Times, May 27, 2020, https://www.nytimes.com/2020/05/27/arts/design/van-gogh-stolen.html.

EDNY Files Forfeiture for Gilgamesh Dream Tablet

Gilgamesh Dream Tablet
A cuneiform tablet which may reveal a portion of the epic poem of Gilgamesh.

Today the United States Attorney for the Eastern District of New York announced the filing of a civil forfeiture action against a cuneiform tablet which was most recently purchased by the Museum of the Bible. The Government’s allegations show a familiar pattern: fake the history of an object, have the object published in a scientific publication, earn the endorsement of a prominent expert, and conduct the sale in secret. The complaint is docketed at Civ. No. 20-2222. Here are some of the best allegations from the government’s complaint, available here.

First off, the Government rightly points out the scourge of looting in Iraq, and the discovery of the epic of Gilgamesh in 1853:

This tablet was seized from the Museum of the Bible in September, and is storing the tablet at at U.S. Customs and Border Protection in Queens, which may help explain why the EDNY U.S. Attorney’s office has filed this action and not another office. It may also be because this office is one which has good track record of successful civil forfeiture actions.

HSI Special Agent-in-Charge Peter Fitzhugh stated in the press release:

“We are proud of our investigation that led to this reclaiming of a piece of Iraq’s cultural history.  This rare tablet was pillaged from Iraq and years later sold at a major auction house, with a questionable and unsupported provenance, HSI New York’s Cultural Property, Arts and Antiquity Investigations program will continue to work with prosecutors to combat the looting of antiquities and ensure those who would attempt to profit from this crime are held accountable.”

The laws at issue here are parts of the Customs laws and the National Stolen Property Act:

One interesting aspect here, and I’m not sure what the appetite for the Museum of the Bible will be to defend this action in court given the absolute devastating series of seizures, investigations and scandals, but they may have some legal defenses due to the difficulty in tracing an illicit antiquity to its point of origin. Federal law still hinges in many ways on pinning a specific time and place for a criminal act involving a piece of cultural heritage, whether that act is looting from context, theft, smuggling, etc. The government will have to show I think that this tablet did originate in Iraq after an applicable Iraqi heritage or patrimony law. Of course if the Museum of the Bible wants to do the right thing and just let this object be returned, those legal arguments are moot. But the complaint does I think leave open the specific origin for the fragment, and when. A very typical problem with illicit objects like this one.

The best argument the government laid out in the complaint is that the Museum of the Bible and the Auction House engaged in some really clumsy post-sale due diligence which only made the problems worse, and acknowledge Iraq as the origin:

The forfeiture here alleges some serious fraud and wrongdoing by a prominent new museum, the Museum of the Bible; but also dealers, antiquities experts, and prominent auctioneers.



United States Attorney for the Eastern District of New York Richard P. Donoghue also stated in the release:

“Whenever looted cultural property is found in this country, the United States government will do all it can to preserve heritage by returning such artifacts where they belong, In this case, a major auction house failed to meet its obligations by minimizing its concerns that the provenance of an important Iraqi artifact was fabricated, and withheld from the buyer information that undermined the provenance’s reliability.



The forfeiture action is a very powerful and useful remedy to police specific objects, but it really may not do all that much long-term to disincentivize actors from doing this kind of thing in the future. A forfeiture every now and then is just the cost of doing business.

United States Files Civil Action to Forfeit Rare Cuneiform Tablet Bearing Portion of the Epic of Gilgamesh (May 18, 2020), https://www.justice.gov/usao-edny/pr/united-states-files-civil-action-forfeit-rare-cuneiform-tablet-bearing-portion-epic.

Clowney on corruption in the art market and in prostitution

Maddalena penitente (Mary Magdalene Penitente), By Caravaggio, c. 1594-1595, currently hanging in the Doria Pamphilj Gallery in Rome

Professor Stephen Clowney of the University of Arkansas School of Law has written an interesting article examining the role of markets in certain special categories: things like organs, human lives, sex, and works of art. He has an interesting summary of the scholarship critical of markets; and he suggests I think that markets are not inherently corrupt. He ably points out flaws in the scholarship which criticizes commodification, yet he makes his own grave errors in relation to the role of the market on the art trade and its allied fields and disciplines. His approach is a kind of ethnographic study of art appraisers and prostitutes. The article is well-written and entertaining, but I just don’t think you get a complete picture of the art market by only talking with appraisers. He also ignores large areas of helpful scholarship from criminologists, totally ignores the Knoedler forgery scandal, and does not acknowledge the problems presented by the antiquities trade. But if you want an entertaining read, I can recommend it.

Clowney, Stephen (2020) “Does Commodification Corrupt? Lessons from Paintings and Prostitutes,” Seton Hall Law Review: Vol. 50 : Iss. 4 , Article 3.
Available at: https://scholarship.shu.edu/shlr/vol50/iss4/3

What your next Museum visit may be like

This is as close as we’ll be able to get to the MFA Houston for a while…

I miss museums, and it sounds like the next time I visit one I’ll look like I’m trying to rob the place.

Garty Tinterow, the director of the Museum of Fine Arts, Houston offered some insights into how his institution is planning to safely reopen, whenever that may be. He did a useful Zoom interview with the Houston Chronicle’s Molly Glentzer, and here’s a brief excerpt:

Q. When do you expect the museum to reopen, and what will be different?

I check my mail every day but the crystal ball hasn’t arrived yet. Opening by July 1 seems to be feasible, given our most pessimistic models. The pandemic will bring permanent change to art museums such as ours. We’re going to have to live with this virus for quite some time. Our biggest challenge is learning gradually; it’s going to have to begin with baby steps. We’ll all learn how to visit a museum differently. We are adopting procedures for low-touch entrances, exits and visits. We’re going to change the way we deliver information so individuals so they won’t have to touch things or pick up things that aren’t their own. An attendant with a mask and gloves will open the door. You’ll probably be wearing a mask. We won’t hand you gallery guides unless they can be sanitized; you’ll probably download material on your own device.

Many museums provide a textbook case of how to live in this new world. For a survey of the Association of Museum Directors, we calculated how many visitors we could admit based on the square feet in our display spaces. If they have six feet of circumference around them and move through the space as equally distributed as atoms of oxygen, how many people would there be? Probably 800 at a time. We can easily accommodate that. They won’t be in one space; they’ll be throughout our campus in multiple buildings. Maybe, if we have a film program in Brown Auditorium, people can be seated on every other aisle and alternate seats. There is room at the MFAH for social distancing.

Gary Tinterow

Molly Glentzer, What Will Your next Visit to the Museum of Fine Arts, Houston Be Like?, Houston Chronicle, Apr. 23, 2020, https://www.chron.com/life/article/What-will-your-next-visit-to-the-Museum-of-Fine-15223418.php [https://perma.cc/4S7T-8VLT].

Theft of a Van Gogh at the Singer Laren Museum

The Parsonage Garden at Nuenen in Spring 1884, Vincent Van Gogh

In the early hours of Monday March 30, thieves broke the front glass window of the Singer Laren museum east of Amsterdam. The thief or thieves stole an early work by Vincent Van Gogh. In a press conference on Monday annnouncing the theft Singer Laren museum director Jan Rudolph de Lorm expressed shock and sadness:

I’m shocked and unbelievably annoyed that this has happened . . . . This beautiful and moving painting by one of our greatest artists stolen – removed from the community . . . . It is very bad for the Groninger Museum, it is very bad for the Singer, but it is terrible for us all because art exists to be seen and shared by us, the community, to enjoy to draw inspiration from and to draw comfort from, especially in these difficult times.

The Dutch Police announced that the work is only 25×57 centimeters, oil on paper, and was one of Van Gogh’s early works before he moved to southern France. The thief or thieves smashed the glass door entrance and set off the alarm, but were able to steal the small work before police arrived.

Most art thieves are awful people; but those responsible for this theft are especially vile. Art thefts seem to cluster around holidays and periods of inactivity. As the world looks increasingly to starve the Coronavirus of new hosts, and more and more people stay home, art museums are closed. And they are at increased risk from thefts.

Dutch museum says van Gogh painting stolen in overnight raid, AP NEWS (Mar. 30, 2020), https://apnews.com/e635b833e60dfcb01351752976d818df.

Vincent van Gogh painting stolen from Netherlands museum, The Independent (Mar. 30, 2020), https://www.independent.co.uk/news/world/europe/vincent-van-gogh-painting-stolen-singer-laren-museum-netherlands-a9435666.html.

Victory for 5Pointz Artists in the Second Circuit

5pointz artworks being whitewashed in 2013

In a ruling which will likely feature in future art law coursebooks, the Second Circuit has affirmed a $6.75 million judgment against a real estate developer for whitewashing a number of murals at 5Pointz. This is a rare victory for artist’s moral rights in an American court.

The site became known as a prominent aerosol art haven in 2002 when the developer Gerald Wolkoff asked Jonathan Cohen to install some art on a warehouse in Long Island City in Queens. Cohen curated the space and had a rotation of various artists use the building. It attracted worldwide attention. It also displayed itself to passengers every time a 7 train would pass by:

As is often the case with moral rights cases that have been litigated under the Visual Artists Rights Act, changed circumstances for the building led to the deveoloper seeking to capitalize on the new-found gentrification of the neighborhood. In 2013 artists learned that Wolkoff was planning to destroy the warehouses to build a condominium complex. The artists sought landmark status and asked for an injunction under the Visual Artists Rights Act. That injunction was not granted, and rather than wait for the legal process to play out, or wait to let the artists preserve their works, Wolkoff whitewashed the art. That act probably did more harm to Wolkoff’s argument than any thing, with the district court finding the art had achieved recognized stature and imposing the maximum statutory damages of $150,000 per work (45 works in total) of art in order to sanction Wolkoff’s conduct and to vindicate the policy supporting the moral rights act.

Donn Zaretsky in commenting on the ruling wrote that the damages may have been the most interesting part of the ruling:

Now, it may be the facts of this case were so unique and so egregious that it won’t have a wider impact — basically what happened is that early in the litigation the artists got a TRO preventing the demolition of the site, it expired, and, while the district court was considering their application for a preliminary injunction to replace it, the developer had the work painted over, “without any genuine business need” to do so, “simply, as the district court found, an ‘act of pure pique and revenge.'” But the idea that significant statutory damages can be awarded in a VARA case even where actual damages can’t be proven could be a big deal.

The Art Law Blog

Moral rights are rights that have been around for a very long time. They originated in the French Revolutionary idea of ‘droit moral de l’auteur’, stemming from the idea that if art is harmed, the artist also is harmed.

I am always surprised when I encounter art lawyers and academics who are critical of the idea of moral rights. They will often make the argument that artists do not want or need moral rights, and developers like Wolkoff will not allow art anywhere near their buildings ever again. But this elides the reality, these condominium developments have as I understand it been built to take advantage of the newly gentrified neighborhood, and the new ‘luxury’ development will still be called 5 Pointz, and feature aerosol art. The art will happen no matter what, this ruling just gives the artists vindication for the personality of these artists that was bound up and integral in these images. Developers like Wolkoff claim that these moral rights damage their property rights; but a moral right is not an economic right. Instead it accounts for the psychological suffering which takes place when an artist’s art has been harmed in some way.

The IFAR Art Law & Cultural Property Database

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.

Information on the database is available here.