Illicit Cultural Property

Provenance and the 1970 UNESCO Convention

17 of the 21 objects at the Phoenix Ancient Art
Exhibition lack pre-1970 documentation

In a lengthy recent piece in Art & Auction, Souren Melikian argued that fewer and fewer antiquities without histories which pre-date 1970 are appearing at auction. The main argument for the piece, that the 1970 Convention is slowly encouraging a reformed antiquities market, rests on the idea that higher prices are paid for objects with documented and reliable evidence showing the object was either legally exported or removed from the probable country of origin before 1970.

Yet just because higher prices are paid for licit objects (or at least objects which were only illicit before 1970) does not necessarily mean that other looted or illicit objects are appearing on the market. Nord Wennerstrom makes this point, detailing four examples of antiquities up for sale which lack provenance information predating 1970. Of course the fact that an object does not come with this history does not mean automatically that it has been looted or stolen. But it is a very very big red flag.

Nord concludes by arguing:

All of the works discussed in this blog post may well have secure provenance dating before the November 14, 1970 UNESCO accord (or other corroborating evidence) – but if that’s the case, why isn’t it being provided? Melikian is right – caveat emptor – buyers need to demand secure provenance that dates before the UNESCO accord for any antiquities they contemplate buying. However, sellers – including auction houses and private galleries – also have a responsibility. And, it would be helpful if the media, when covering the sales, also mention the number of lots lacking that all important pre-1970 provenance. Melikian writes that we should “give it another 10 years” – that’s not a long time, but it could mean a lot of looting.

Yes it does.

Souren Melikian, How UNESCO’s 1970 Convention Is Weeding Looted Artifacts Out of the Antiquities Market, ARTINFO (2012).

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

Restitution and Repatriation at DePaul, Oct. 29

On October 29 DePaul will sponsor a symposium examining the restitution and repatriation of cultural objects. From the announcement:

DePaul’s cultural heritage symposium will bring together lawyers, museum ! professionals, representatives of indigenous communities, and other scholars and experts in the field to examine the repatriation of cultural artifacts. Participants will discuss the repatriation of cultural objects appropriated in the more distant past whose restitution some view as outside the scope of existing law, but others view as a matter of restitutionary justice. They also will address the repatriation of artifacts looted in recent times whose removal is often viewed as causing contemporary damage to the cultural heritage of communities and nations and to the historical and cultural record.

It looks like a promising event, with some important advocates and figures in some current disputes. Unfortunately teaching will likely prevent me from attending.

World-renowned historian Lynn Nicholas will deliver the keynote address entitled “Restitution and Repatriation: Expectations and Reality.” Mrs. Nicholas is the author of The Rape of Europa, a groundbreaking history of the looting of art works during World War II that has become the fundamental account of this era. Her work exemplifies the best of historical research with relevance to restitutionary justice for victims of the Holocaust.

Repatriation of Archaeological and Ethnographic Objects: History & Synopsis In recent years, countries of origin have successfully recovered illegally removed archaeological and ethnographic objects. Indigenous and Native American communities also have successfully recovered cultural artifacts excavated from ancient burial sites. Such recoveries are the result of a patchwork of legal rules, treaties and extra-legal pressure placed on the current possessor. The museum community and some market participants now accept that archaeological objects unprovenanced before 1970 should not be acquired without proof of legal export. However, countries of origin have recently sought to move beyond the “1970 rule” and are requesting the repatriation of objects appropriated during earlier times as a part of imperialism, colonialism, or armed conflict. The underlying bases supporting repatriation in such cases are often unclear, and the validity of these repatriation claims is hotly debated.

Well-known examples of historical claims include Nigeria’s request for repatriation of the Benin bronzes that British troops removed during the 1897 “Punitive Expedition”; China’s efforts to seek the return of bronze animal heads, once part of the zodiac fountain clock in the Yuanming Yuan garden of the Old Summer Palace that French and English troops looted and burned in 1860, and the recent move by Turkey to recover antiquities taken before 1970, including the Zeugma mosaic. U.S. indigenous communities have recovered cultural artifacts within the legal structure of the Native American Graves Protection and Repatriation Act (NAGPRA), but some claims and museums have acted outside of NAGPRA as well. Finally, the symposium will address the tensions that arise when a fiduciary duty arguably conflicts with a perceived legal or moral obligation to return a cultural object.

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

Raising Awareness With Playing Cards

At the annual ARCA conference this summer in Amelia, a reporter based in Rome, Nancy Greenleese, was able to interview Laurie Rush and Joris Kila on efforts to protect culture during armed conflict, of which these cards are an excellent example.

Soldiers often enter conflict zones with limited knowledge of local cultural and historical nuances. Archaeologist Laurie Rush recognized that their ignorance can make conflicts worse. So she helped create a deck of playing cards that displays photos and messages about cultural heritage in Iraq, Afghanistan and Egypt. The Ishtar Gate of ancient Babylon Troops see pictures of Buddhist statues and tablets when playing poker and other games with the cards. They may discover that buying and selling antiquities is illegal or be reminded to look before digging. And Rush’s concept has caught on: Soldiers from the US and other countries have snapped up more than 165,000 decks. The US invasion of Iraq offered examples of what troubled Rush about soldiers’ cultural knowledge. When American and Polish forces were building a camp in the ancient Iraqi city of Babylon in 2003, they inadvertently crushed ancient brick pavement and marred dragon decorations on the Ishtar Gate. “It immediately occurred to me that a better educated force would not have made those kinds of mistakes,” Rush told DW.

Though I write about cultural heritage law, I spend most of my time teaching law students. It can sometimes be hard to explain to my colleagues just what it is that I write about, apart from the broad “art law”. So when I was fortunate enough to get my hands on one of the decks of cards which are increasingly being given to troops who enter conflict zones abroad, I thought at once of framing them.

Nancy Greenleese, It’s all in the cards, Inside Europe (2012), http://bit.ly/O29VOY.
Nancy Greenleese, Archeologist saves cultural treasures with cards Deutsche Welle (2012), (last visited Aug 27, 2012).

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

Examining the Wartime Looting of Art with Art

I have been alerted to a very interesting project conceived by Rob van Leijsen, Art Handling in Oblivion. It is a catalogue of five different instances of wartime looting. As issues of theft and looting become more widely understood I think more and more artists will decide to take up these issues in their own work. From the description:

The catalogue does not pursue to answer questions of restitution, but evokes discussion by contextualizing the objectives and procedures of wartime art looting. The glued catalogues are cut open on a predefined spot on the table. The central part of the display is designed for consultation and reading, and on the other end envelopes with copies addressed to the concerned museums are placed. This project was conceived by Rob van Leijsen as a graduation project at the Master Design Spaces & Communication at Head Genève (Haute École d’Art et de Design). 185 x 260 mm, 368 pages, laserprint on 70 gr. Edixion Offset, 20 copies (first edition).

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

Forger Ken Perenyi on NPR

After John F. Herring by Ken Perenyi, circa 1989.

A genuine fake painting by Ken Perenyi

Ken Perenyi, the author of a new book detailing his 30-year career as an art forger does not exactly seem to have reformed. If you are going to forge, don’t forge Picasso, and the experts practically fool themselves.

Perenyi made millions of dollars over 30 years with more than 1,000 forgeries, allowing him to jet set around the world. His highest earning work was a Martin Johnson Heade forgery that sold for more than $700,000. Perenyi tells the story of how he got away with it in his new book, Caveat Emptor: The Secret Life of an American Art Forger. So does he hold on to guilt about duping individuals, museums and galleries who paid top dollar for his work? “No. Not at all,” Perenyi tells Laura Sullivan, guest host of weekends on All Things Considered. “I take pride in my work, and I think it speaks for itself. I would find it difficult to feel bad about creating beautiful paintings.”

“A Contest Of Wits”: A Former Forger Recalls His Art, NPR.org (2012), http://www.npr.org/2012/08/26/159369271/a-contest-of-wits-a-former-forger-recalls-his-art.

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

Conference Announcement: World Heritage Convention at Rutgers

Rutgers’ Graduate Program in Cultural Heritage and Preservation Studies (CHAPS) will be holding a conference October 12-14:

Marking the 40th anniversary of the World Heritage Convention and the 20th anniversary of the inclusion of Cultural Landscapes as a category within the convention, Rutgers University will convene an international conference—Cultural Landscapes: Preservation Challenges in the 21st Century. The conference has been designated an official UNESCO World Heritage Anniversary event.

Cultural landscapes provide a new perspective that challenges traditional notions of historic preservation by taking a dynamic, multifaceted approach to conservation. Constituting “combined works of nature and humankind [that] express a long and intimate relationship between peoples and their natural environment, ” cultural landscapes are defined by human relationships to place as much as by physical features. They embody diverse interactions between humans and their environment, seek to protect living traditional cultures, and preserve the traces of cultures that have disappeared. The UNESCO Recommendation on the Historic Urban Landscape (HUL), approved by the 17th General Assembly of ICOMOS in November 2011, Assembly of ICOMOS in November 2011, applies an interdisciplinary “cultural landscape approach” to cities, towns and settlements, as a way to integrate diverse aspects of urban vitality within our shared urban heritage. This international conference will bring together leading scholars and practitioners from around the world to examine five core themes around the concept, implementation, and management of cultural and historic urban landscapes. The conference will provide an interdisciplinary forum for forward-looking approaches to 21st century challenges, with the objective of mapping strategies for a ten-year plan of action within these areas. Conference proceedings will be published.

Cultural Landscapes: Preservation Challenges in the 21st Century provides a unique opportunity in time and place for the United States to reaffirm its presence within the international arena of cultural heritage preservation. Cultural landscapes and historic urban landscapes are at the nexus of current efforts in the United States to address our diverse cultural heritage and to revitalize the livability of the nation’s communities through preservation of the authentic sense of place. Rutgers’ Graduate Program in Cultural Heritage and Preservation Studies (CHAPS) in the School of Arts and Sciences will sponsor the conference. Co-sponsors include the US National Park Service, Penn Cultural Heritage Center (UPenn), the Columbia Historic Preservation Program (Columbia), the Center for Art and Cultural Policy Studies, Woodrow Wilson School (Princeton), the International Institute for Cultural Property (Princeton), the Center for Heritage and Society (UMass/Amherst), Joukowsky Institute for Archaeology & the Ancient World (Brown University), the School of Environmental and Biological Sciences (Rutgers), the Edward J. Bloustein School of Planning and Public Policy (Rutgers), the Initiative on Climate and Society (Rutgers), and Rutgers Law School, Newark.

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

The Cleveland Museum of Art Acquires 2 Antiquities

A Roman bust of Drusus Minor

Last week the Cleveland Museum of Art announced that it had acquired these two antiquities. Both are, based on the pictures, quite beautiful. And certainly would be objects one one expect to see at a museum. The problem with them though is we don’t know nearly enough about where they have come from, which means there is a very good chance they may have been looted from their context, stolen, or perhaps even fakes. And given that the museum returned 13 antiquities in 2008, and Turkey has also pressed repatriation claims, one would have thought that the museum would have been cautious to acquire newly-surfaced objects with

The Drusus Minor head has been listed on the AAMD’s object registry site. It is a kind of clearing house where museums can place objects with limited histories and allow potential claimants to come forward. The problem of course is how can a nation know an object has been looted from its context. The site lists the country of origin for the object as “probably Algeria although could be anywhere within the ancient Roman Empire”. Here is the history of the object listed there:

The Cleveland Museum of Art has provenance information for this work back to the 1960’s, but has been unable to obtain documentary confirmation of portions of the provenance as described below. The work was sold at public auction in 2004 when it first appeared on the art market. The work was initially identified and published as Tiberius, but was later (after 2007) recognized as a likeness of his son, Drusus Minor. A certificate of origin was issued dated the day after the auction by Jean-Philippe Mariaud de Serres (deceased 2007), who assisted the prior owner and consigner, Fernand Sintes. The certificate stated the sculpture came from the collection of Mr. and Mrs. Sintes of Marseilles; that the sculpture had been in Mr. Sintes’s family for many generations; that the family’s name was Bacri; and that they had lived in Algeria since 1860. The museum contacted Mrs. Sintes who confirmed on behalf of herself and Mr. Sintes that Mr. Sintes’ grandfather, Mr. Bacri, had owned the sculpture; that Mr. Sintes inherited the sculpture from his grandfather; that Mr. Sintes brought it from Algeria to Marseilles in 1960; that he had inherited it from his grandfather prior to bringing it to Marseilles; that the sculpture was sold at the Hôtel Drouot in 2004; and that they had worked with Mr. de Serres. The portrait, monumental in scale and of great historical importance, belongs to a major category of Roman imperial portraiture not otherwise represented in the collections of the Cleveland Museum of Art.

The acquisition of these objects-without-history has raised a great deal of attention. As David Gill notes, the earliest documented history of this object was 2004. And the rest of this history is I think little more than mere speculation, with very little solid evidence.

Rick St. Hilaire argues as much:

There is no explanation why the museum did not contact Fernand Sintes. There is also no information about Mr. Bacri’s first name, how he came to own the artifact, or if there was paperwork specifically describing that Fernand Sintes would inherit the marble head after his grandfather’s death. Did the museum seek out other family members or those in the Bacri family to get a more complete collecting history? That is not known.

A glazed Mayan vessel

And of course the Mayan vessel has a history which only slightly predates 1970. It has appeared in photographs in New York in 1969. But that was the time when the sites in Central and South America were being pillaged on a grand scale. Beautiful objects of course, but what price has been paid for them.

Randy Kennedy, Cleveland Museum Buys Antiquities, Stirs Ethics Debates, The New York Times, August 12, 2012, http://www.nytimes.com/2012/08/13/arts/design/cleveland-museum-buys-antiquities-stirs-ethics-debates.html (last visited Aug 23, 2012)
Steven Litt, Cleveland Museum of Art buys important ancient Roman and Mayan antiquities The Plain Dealer – cleveland.com (2012), http://www.cleveland.com/arts/index.ssf/2012/08/cleveland_museum_of_art_buys_i.html (last visited Aug 23, 2012).

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

My New Work on the Parthenon/Elgin Marbles Dispute

The New Acropolis Museum and the Parthenon

Apologies for the lack of posting in recent weeks. I’ve been furiously finishing up some writing before the new semester really gets into full swing. If you, gentle reader, will forgive the shameless self-promotion, I’ll post a link to the work-in-progress titled “The Parthenon Sculptures and Cultural Justice“. Here’s the abstract:

From government and philosophy to art drama and culture, the ancient Athenians, as most everyone knows, gave future generations so much. Yet the pinnacle of their artistic achievement, the Parthenon, remains a damaged and incomplete work of art. 2012 marks the two-hundredth anniversary of the last removal of works of art from the Parthenon. That taking was ordered by an English diplomat known to history as Lord Elgin, and it reminds us that cultures create lasting monuments. But not equally. Cultures which remove the artistic achievements of other nations have increasingly been confronted with uncomfortable questions about how these objects were acquired. Nations of origin are increasingly deciding to press claims for repatriation of works taken long ago. They proceed through history mindful of the irresistible genius of their forebears have created and are unwilling to cease their calls for return. The majority of the surviving sculptures from the Parthenon in Greece now are currently on display in the British Museum in London. The Greek government and cultural heritage advocates, have been asking for reunification of these sculptures in the New Acropolis Museum in Athens. Greece has offered a number of concessions, but the British Museum and the British Government have repeatedly refused to seriously discuss reunification. Mounting pressure on the British Museum, and the inescapable fact that the Parthenon was an ancient unified work of art both mean that the Parthenon marbles will either eventually be returned to Greece or subject to an endless repatriation debate. Here I offer a series of principles which the Greeks and the British Museum can take to jointly create a just return. Because the way the British Museum and Greece resolve this argument will have much to say for the future of the management of our collective cultural heritage.

I hope to find a good placement for the piece this fall submission cycle. As always, I’d be very grateful for any comments, criticisms or suggestions (derek.fincham@gmail.com).

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

New Book on Illicit Trade

Asif Efrat has a very interesting new work titled: Governing Guns, Preventing Plunder: International Cooperation against Illicit Trade (Oxford University Press). In an email Asif summarized the work:

The book’s main empirical chapter examines the efforts against the illicit trade in antiquities. This chapter explains why the United States and Britain initially resisted UNESCO’s efforts for the protection of the cultural heritage, and why both countries ultimately reversed course (several decades apart) and joined the 1970 UNESCO Convention. I analyze the domestic political debates over antiquities in the United States and in Britain, examining the views and arguments of the main contenders in these debates: archaeologists, museums, and dealers. The analysis highlights important similarities in the American and British experience as well as notable differences, such as the different positions taken by the museum communities in the two countries and the divergent responses of the American and British bureaucracies to the problem of illicit trade.

Looks to be a very good examination with the benefit of empirical data. It is a longer follow-up to an earlier work, which I mentioned here a few years ago.

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

Student Comment on the Law of Art Theft

Amber Slattery, a J.D. Candidate at Villanova school of Law has a comment titled “TO CATCH AN ART THIEF: USING INTERNATIONAL AND DOMESTIC LAWS TO PAINT FRAUDULENT ART DEALERS INTO A CORNER” which appears in 19 Villanova Sports & Ent. L. J. 827 (2012). From the introduction:

Legal problems pertaining to the art world typically address ownership and repatriation of stolen cultural works to their original countries. Examples of Nazi-looted art spring up every year, creating uncomfortable demands between aggrieved former owners and current good-faith purchasers. Famous auction houses sell antiquities for which provenance cannot be established. Implicit in many legal issues pertaining to art is the fact that at some point, a crime took place. Fraud, theft, and trafficking are all crimes that begin with an act of greed and end with a piece of art or cultural property relegated to the status of contraband. . . This Comment explains the occurrence of high profile art fraud as it fits into the larger picture of art theft crimes. Section I introduces art fraud and the Wildenstein affair. Section II provides a comprehensive background on art theft. Section III addresses the underlying cultural reasons for nations’ differing policies and laws on cultural property. Section IV provides a survey of international laws and domestic laws from around the world that address art crimes. Section V addresses the effectiveness of American fraud law when applied to art crimes and discusses specific examples of recent art crimes. Finally, section VI addresses the viability of an ignorance defense to fraud charges in France and other civil law countries, how the defense would affect outcomes in the U.S., and how to prevent fraud of this nature from occurring again.

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