No Real Decision yet in In re Fisk University

A decisions of sorts has been reached in the case remanded to Davidson County Chancery Court in Tennessee in which Fisk University sought permission to sell an interest in the Stieglitz Collection to the Crystal Bridges Museum.  Lee Rosenbaum has done some terrific reporting on this decision here and here, and posted the decision online (embedded below).  The end result? The court is open to the sale, but also wants to hear more about whether there is an option to keep the art in Nashville. 

Fisk/Crystal Bridges Decision

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

Footnotes

A work depicting the martyrdom of St. Lawrence, recently attributed to Caravaggio
Questions or Comments? Email me at derek.fincham@gmail.com

Urice and Adler on the "Executive Branch’s Extralegal Cultural Property Policy"

Stephen K. Urice (Associate Professor at the University of Miami School of Law) and Andrew Adler (Law Clerk for the 11th Circuit Court of Appeals and adjunct Professor at the University of Miami School of Law) have posted a recent paper on the Executive Branch’s Cultural Property Policy on SSRN, Unveiling the Executive Branch’s Extralegal Cultural Property Policy.  Here is the abstract:

In this Article we reveal that the executive branch of the United States has consistently – and astonishingly – exceeded constraining legal authority with respect to the movement of cultural property into the United States. To illustrate this assertion, we identify three distinct categories of extralegal cultural property practices. First, we describe how the Department of Justice, misapplying the National Stolen Property Act, has obtained the return of cultural objects to their countries of origin by filing legally-deficient civil forfeiture complaints. Second, we describe how the Justice Department has pursued this same objective by proceeding under a legally-erroneous interpretation of the Archaeological Resources Protection Act. Third, we describe how the Department of State has repeatedly undermined the statutory structure and mandatory criteria of the Convention on Cultural Property Implementation Act, resulting in significant import restrictions on cultural property. All of these practices exceed constraining legal authority and lead to a similar result. Accordingly, we describe this pattern of practices as forming an extralegal cultural property policy. We express no opinion about the wisdom of this policy. Rather, our purposes in unveiling this policy are to promote a rigorous and transparent review of the executive’s practices and to restore the rule of law. In our conclusion we speculate as to why the executive has undertaken these practices and, among other observations, suggest with some sympathy that the current legal framework is outdated.

Many readers will likely find the arguments these authors make troubling.  I’d encourage you to give the piece a read on its own merits.  Though these authors are critical of the policies of the Executive branch, this does not mean that they endorse the looting of sites or the black market—rather they are pointing out flaws in how the Executive branch and the Cultural Property Advisory Committee has attempted to restrict the trade in illicit antiquities.  Very interesting and worthy of serious attention.

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

Ancient Underground Tomb Discovered in Looting Raid

AP Photo:  Turkish Culture Minister Ertugrul Gunay

 Authorities in Turkey have discovered an “important archaeological site” while searching for looted antiquities, reports the Associated Press.  The discovery was made near Milas, in western Turkey.  This sarcophagus may have contained artifacts, but they have disappeared, likely lost in the illicit trade.  The piece describes the tunnels:

[T]he suspects had dug two tunnels — 6 and 8 meters (yards) long, from the house and an adjacent barn, leading to the tomb that is buried some 10 meters (yards) deep.
They used sophisticated equipment to drill through the thick marble walls of the tomb and were working to remove the coffin from the underground chamber when they were detained, according to the Culture Ministry.
“I would have wished that this (archaeological find) had been discovered through our digs and not through digs conducted by a band of treasure hunters,” Anatolia quoted Gunay as saying.
“This is not an ordinary treasure hunt. It is very organized and it is obvious that they received economic and scientific help,” Gunay said, adding that Turkey also would investigate the suspects possible overseas links.

  1. Turkey Discovers Ancient Underground Tomb : NPR, , http://www.npr.org/templates/story/story.php?storyId=129174682 (last visited Aug 13, 2010).
Questions or Comments? Email me at derek.fincham@gmail.com

Footnotes

Adieu Australia, by Garry Shead, recently stolen in Sydney
  • Eighteen works stolen from a home in Sydney. 
  • The city of New York is suing Christie’s over architect Jacob Wrey Mould’s watercolor drawings which were found in the garbage fifty years ago.  
  • The remanded trial to determine whether Fisk University can sell parts of the Stieglitz collection continues. 
  • Eli Broad says museums need to “get art out of the basement“.  
  • A Henry Moore sketch has been stolen from a gallery in south Worcestershire. 
  • Another lenient sentence handed down in the 4 corners case, this time only 3 years probation.  This is the eighth of the defendants to receive a lenient sentence, though the prosecution claims that the massive investigation has sent a message that this kind of looting will be punished. 
  • “Joyance”, a statue by William Goscombe John has been stolen from a park in Cardiff. 
  • Thieves have defaced a Louise Bourgeois sculpture on Lafayette square in New Orleans—given as a gift by the artist to the city at his own expense after the storm. 
  • The Iraqi Tourism and Antiquities Minister Qahtan al-Juburi says that more than 36,000 artifacts have been recovered in the past seven years. 
  • Looting continues in Cambodia. 
Questions or Comments? Email me at derek.fincham@gmail.com

Not Enough Support for Deaccessioning Bill in New York

The Brodsky Bill looks to be dead for now.  The bill would have made it more difficult for cultural institutions to deaccession parts of their collection.  Many of the prohibitions contemplated under the bill are already in place by regulations promulgated by the New York state Board of Regents and to a lesser extent by the AAMD.  As a result at least Donn Zaretsky won’t be shedding any tears for the bill. The bill was criticized by the Met and a number of other institutions like zoos and public libraries which would have faced unintended difficulties with certain aspects of the legislation as well.   

You can read what I think of all this in more detail here. 

  1. Robin Pogrebin, Bill to Stop Museums From Certain Art Sales May Die, The New York Times, August 10, 2010, http://www.nytimes.com/2010/08/11/arts/design/11selloff.html?_r=1&partner=rss&emc=rss (last visited Aug 11, 2010).
  2. Erica Orden & Craig Karmin, Chelsea Museum Risks Losing Charter, wsj.com, August 10, 2010, http://online.wsj.com/article/SB20001424052748703428604575419751923867136.html (last visited Aug 11, 2010).
Questions or Comments? Email me at derek.fincham@gmail.com

Personal Note

Greetings readers.  I beg your apologies for the light posting in recent weeks.  Joni and I have been undertaking a move from New Orleans to Houston, where I will take up a position as Assistant Professor at South Texas College of Law.  I hope to have lots more time for posting here in the coming months.

I’ve also taken on a role with ARCA (the Association for Research into Crimes against Art).  Many of you are probably familiar with this organization.  I’ve taken on a co-directorship with my wife Joni.  She’ll be bringing her experience in running and operating non-profit organizations, and I’ll have a terrific opportunity to run the Masters certificate program held in Amelia, Italy each summer.

It has been a very fast four years since I first started posting here about law and art, and I thank you for your continued readership.  These new opportunities should help to continue to elevate the importance of heritage law and policy, and provide invaluable opportunities to write and think about these important ideas.

Thanks as always for reading!

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

Footnotes

Philome Obin’s “Last Supper” at the Cathedral of Sainte Trinite in Haiti

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

Hungary Sued in US Over Nazi-Era Restitution Claim

One of the claimed works
“The Annunciation of Saint Joachim”, by Lucas Cranach the Elder, 

Carol Vogel reports that the descendants of a Hungarian banker have filed suit in United States District Court over the disposition of a number of works of art.  The defendants include Hungary and a number of Hungarian museums.  The claimants are the descendents of Baron Mor Lipot Herzog, a jewish-Hungarian banker.  Vogel reports that most of the disputed works have been “hanging in Hungarian museums, where it was left for safekeeping during World War II or placed after being stolen by the Nazis and later returned to Hungary.”  
I have not been able to track down the plaintiff’s complaint just yet, so I cannot really comment on the substance of these claims.  Vogel reports that this suit raises new issues in that the claimants are seeking 40 specific works, but have also asked for an accounting of other works which may have once been owned by the Herzog family.  It seems curious that these claimants are bringing suit in the United States for these objects, jurisdiction must surely play an important role in the case, as will the timeliness of these claims.  It seems the claimants have been requesting these works for nearly twenty years.  A court in Hungary has ruled against the claimants in 2008, so it remains to be seen how an American court will be able to exercise jurisdiction over a dispute involving works once owned by a Hungarian, which are now on display in Hungary, and which have been previously ruled upon by a Hungarian court.  
A Renaissance portrait by Georg Pencz, recently restituted
We can contrast the litigation of these issues with the approach of the Spoliation Advisory Panel in the United Kingdom.  Rather than litigate these issues, the panel is charged with evaluating the claims of those who were dispossessed of their works of art during the Nazi era.  It recently handed over this work to the descendants of Baron Mor Lipot Herzog, and was recently sold for 5.6 million pounds at a Christie’s auction.  
Reading Vogel’s account, we are left wondering why exactly Hungary has refused to work with the claimants.  It appears they approached Hungary and asked to “split” the paintings under dispute but were refused.  These are important works, and one can understand why a State or museum would be reluctant to lose them.  Yet Vogel’s account paints Hungary as a villain, unable and unwilling to account for Nazi-era works.  Is it really that simple?  Surely there must be a principled reason for Hungary refusing to return these works?  Anyone who has access to the complaint or to the recent Hungarian decision, please do drop me a line (derek.fincham “at” gmail.com).  
  1. Carol Vogel, Hungary Is Sued Over Large Holocaust Art Claim, The New York Times, July 27, 2010, http://www.nytimes.com/2010/07/28/arts/design/28lawsuit.html?_r=2&partner=rss&emc=rss (last visited Jul 28, 2010).
Questions or Comments? Email me at derek.fincham@gmail.com