Illicit Cultural Property

A rare moral rights vindication in Detroit

The Visual Artists Rights Act, or VARA, has since 1990 granted artists moral rights to their works of art. At least in the United States. Other nations have granted these moral rights to their artists for far longer. These are non-economic rights which prevent mutilation or destruction of works of art, and VARA lasts for the lifetime of the artist. Unfortunately much of the language of VARA is cumbersome and has relied on judicial massaging to reach a workable framework. And even despite this massaging, the concept of moral rights have not been favorably received in most courts. So it is noteworthy when an artist is able to successfully invoke the protections of VARA.

Such appears to be the case with respect to this work, “The Illuminated Mural” which was created on the side of this building on East Grand Boulevard in Detroit in 2009. At the time, Craig had received an agreement from the owner of the building that the mural would remain there for at least 10 years. When the building was sold to a new owner, the mural was jeopardized by plans to potentially redevelop the building. So in January of 2016, Craig filed a lawsuit asking for an injunction to preserve the mural.

This week, the current owner of the building has reached an agreement with Craig that will allow the mural to remain on the side of the building.

As she told Crain’s after the settlement:

“I’m really happy we got a break-through with ‘The Illuminated Mural’ where we are able to protect the work and maintain the original contract, which was the goal,” Craig said Friday afternoon. “It’s respect for the artwork that’s there and the future of the community, and the developer as well. We reached a middle ground there that I am happy with.”

How long and what the terms of the agreement may be are not public. But this large mural has earned a reprieve.

Kirk Pinho, Colorful 9-story mural to stay on Milwaukee Junction building under court settlement, Crain’s Detroit Business (Mar. 13, 2017), http://www.crainsdetroit.com/article/20170413/NEWS/170419900/colorful-9-story-mural-to-stay-on-milwaukee-junction-building-under [https://perma.cc/5R73-EPR5].

An art dealer’s prosecution casts a long shadow

In a criminal complaint filed in New York State Court last December, charges were brought against a New York Gallery owner, Nancy Wiener for dealing in stolen property. When examining a complaint, special care should be taken that they are by nature one-sided accounts that are only allegations, in this case the allegations are made by Assistant District Attorney Matthew Bogdanos.

In the New York Times yesterday, Ralph Blumenthal and Tom Mashberg reveal the identity of two anonymous alleged co-conspirators from the complaint:

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Forged antiquities and art history

An 8 foot tall forged terracotta statue, alleged to have been Etruscan. Displayed at the Met for decades. Notice it cannot bear its own weight.

I cannot speak to broader trends among art curators but I think it is a mistake to blame broad trends in the field of art history for the existence of forgeries. They have always been present, and likely always will be in some form. Failing to conduct a rigorous study of the history of an object should have course be criticized, but that kind of unfortunate mistake should be contrasted when an object which might have a good history free of the potential of looting. This happens for antiquities, works of art, and many other objects. Some forgeries are made maliciously to fool, other works of art which are inauthentic appear absent any wrongdoing of the creator.

In fact the shaming of institutions which takes place when a forgery or fake surfaces has a number of unfortunate consequences.

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Greek pot set for return thanks to photo archive

“Attic Red-Figure Nolan Amphora, ” a dual-handled vessel dating from 470 B.C.E.

Tom Mashberg reported last week for the New York Times that this red figure amphora will be sent to Italy because of a connection with Gianfranco Becchina.

The match was made thanks to the work of researcher Christos Tsirogiannis, who linked the object with some of the thousands of photographs he has been given access to by Italian authorities. The object was voluntarily relinquished by the gallery, the Royal-Athena Galleries, which have a showroom in Manhattan.

Manhattan District Attorney Cyrus Vance, Jr., in a press release stated: Continue reading “Greek pot set for return thanks to photo archive”

Tang Shipwreck Exhibition at the Asia Society

Michael Flecker took this photograph of part of the wreck of the vessel in 1998.

The Asia Society has managed to avoid the scorn of underwater heritage preservers and exhibit objects from the Tang Shipwreck. Earlier attempts to display these objects by the Smithsonian in 2011 were cancelled because archaeologists argued the archaeological documentation of the wreck was insufficient and had been done with a primary aim of profit, not the advancement of knowledge.

The wreck was discovered in 1998 off the coast of Indonesia by sea cucumber divers. The vessel confirmed the sea routes between West Asia and Iraq or Iran. As the Asia Society’s director, Boon Hui Tan describes the exhibit:

[G]lobalisation is a very, very old concept—and it’s not just a Western concept . . . . There was a kind of economic dynamism [in the Tang Dynasty] that came from, in a sense, being connected with the outside world . . . . The Belitung shipwreck is one of the most significant archaeological finds in recent history . . .

The wreck held as many as 60,000 objects, including ceramic bowls; decorated mirrors; and valuable silver and gold objects. By all accounts this really was a chance find, fishermen were said to have been looting the wreck, so there was some urgency to recover the objects from the vessel while also undertaking research into the underwater archaeology. Whether that scientific undertaking was hastily done in order to secure financial rewards by putting together this kind of travelling exhibition, or the Indonesian authorities did the best they could with a limited budget is a question very much open to debate. The exhibit titled “Secrets of the Sea: A Tang Shipwreck and Early Trade in Asia” will run through June 4, 2017.

Robin Pogrebin, A Sunken Treasure Will Appear in New York Despite Its Controversial Excavation, The New York Times, Feb. 21, 2017, https://www.nytimes.com/2017/02/21/arts/shipwreck-treasure-new-york-display.html.
Victoria Stapley-Brown, Controversial trove from imperial Chinese shipwreck lands in New York (Mar. 7, 2017), http://theartnewspaper.com/news/museums/controversial-trove-from-imperial-chinese-shipwreck-lands-in-new-york/.

Evaluating the Damage done at the Mosul Museum

This large hole in the floor of the museum allowed looters to carry away smaller portable antiquities

As Iraqi forces are slowly gaining ground against ISIL fighters in Mosul, journalists have been shown the damage done to the museum in Mosul. The museum now sits almost completely empty, with many objects either carted away or smashed.

To be clear though, many of the objects in the museum had been taken away from the museum, an estimated 75% of the collection, as the museum was slated for renovation. Even some of the objects that were damaged and destroyed in the ISIL videos were likely museum-quality reproductions, so though the damage looked to have been catastrophic, many things survived. As for the portable objects, that material seems destined for the international antiquities market, likely with a fabricated history.

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Smith on ‘Community Rights to Public Art’

Cathay Smith (Asst. Prof. at Montana School of Law) has published an article in the St. John’s Law Review, Community Rights to Public Art. The article surely would have generated the attention of the student editors of the St. John’s Law Review, as the 5 Pointz building, until it was demolished in 2014, was located just a few miles away from the St. John’s campus. From the abstract:

In 1932, the Rockefeller family commissioned Diego Rivera to paint an enormous mural as the centerpiece of the RCA Building lobby in Rockefeller Center in New York City. The colorful mural that Rivera painted, titled Man at the Crossroads, included images of social, political, industrial, and scientific visions of contemporary society. One night in February of 1934, the Rockefellers hired workers to chisel the mural off the wall without any warning or notice. The mural was broken into pieces before being carted away and dumped. The destruction of his mural shocked Rivera. More importantly, however, the destruction of Rivera’s mural permanently deprived the public of a significant work of public art and heritage. The public was stunned at the destruction of the mural; protesters called the Rockefellers’ act “art murder” and “cultural vandalism.” Nevertheless, the mural was the Rockefeller’s property and, despite public support for the mural, they had the legal right to destroy it. More than eight decades later, communities still face this type of loss of heritage through the destruction of public art. For instance, public outrage followed the 2014 demolition of 5 Pointz in New York, when the owner of 5 Pointz whitewashed and destroyed the 20-plus-year-old “graffiti Mecca” to make way for two new $400 million luxury high-rise apartment towers. On the opposite coast, just last year, Piedmont Avenue neighbors in Oakland were shocked when the owner of Kronnerburger Restaurant demolished a beloved community mural in connection with its construction of a new trendy burger restaurant.

Property owners generally have the right to destroy their own property. This Article argues, however, that certain property is so connected to a community’s identity that the community’s right to preserve its heritage may trump a property owner’s right to destroy. This Article explores existing, yet underutilized, legal solutions a community may use or adapt to preserve public art when that art has become a part of its cultural heritage. Finally, recognizing that preservation has its limits, and that without destruction there will be no space for creation, this Article ultimately sets forth questions communities will need to grapple with as they weigh whether and how to protect works of public art as cultural heritage.

Cathay YN Smith, Community Rights to Public Art, 90 St. John’s Law Review 337 (2016).

Five paintings stolen from the Museum of Modern Art in Paris feared destroyed

Nature Mort au Chandelier, Fernand Léger, 1922

The Associated Press reported this week that five important works stolen from the Museum of Modern Art in Paris in 2010 may have been destroyed. This work by Léger was apparently stolen to order, and in his zeal to capitalize on his time in the museum, the thief managed to make life considerably more difficult for his alleged co-conspirators because he stole some more very notorious works which only served to attract more attention from the authorities.

At a trial in Paris, one of the defendants, Yonathan Birn, claimed to have destroyed the works after fears that the investigation into their disappearance would lead to him.

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Operation Pandora nets 75 arrests in Europe

This Byzantine depiction of Saint George was one of the artworks recovered.

Earlier this week police in Europe announced the fruits of operation Pandora, an investigation into an international art trafficking network. In total, 75 people were arrested and 3,500 objects and artworks were seized. The investigation centered in Spain and Cyprus. The network allegedly moved works of art from conflict areas, and dealt in objects stolen from museums. The Europol press release boasted that over 48,000 individuals were investigated, almost 30,000 vehicles were investigated (along with 50 ships).

According to the release the aim of the investigation was to:

[d]ismantle criminal networks involved in cultural theft and exploitation, and identify potential links to other criminal activities. Moreover, there was a special focus on cultural spoliation, both underwater and on land, and the illicit trafficking of cultural goods, with a particular emphasis on conflict countries.

The operation was supported by UNESCO, INTERPOL, the World Customs Organization, Europol, and law enforcement officials from 18 countries. This was an extensive operation, which took a great deal of cooperation and resources. The investigators and policy makers who made this investigation successful should be commended. And yet, is this kind of large scale investigation sustainable? Will art thieves and traffickers be chastened and refrain from art crimes? Will the arrests actually produce successful prosecutions unlike so many of American investigations?

Raphael Minder, 75 Arrested in European Crackdown on Art Trafficking, The New York Times, January 22, 2017, https://www.nytimes.com/2017/01/22/world/europe/75-arrested-in-european-crackdown-on-art-trafficking.html (last visited Jan 25, 2017).
3561 artefacts seized in Operation Pandora, Europol, https://www.europol.europa.eu/newsroom/news/3561-artefacts-seized-in-operation-pandora (last visited Jan 25, 2017).
“Operation Pandora”: police in Spain and Cyprus lead major bust of antiquities traffickers, , http://theartnewspaper.com/news/operation-pandora-police-in-spain-and-cyprus-lead-major-bust-of-antiquities-traffickers/ (last visited Jan 25, 2017).

Kreder on the Public Trust

“The Gross Clinic”, Thomas Eakins, 1875. This work was sold by Thomas Jefferson University to the Philadelphia Museum of Art and the Pennsylvania Academy of Fine Arts in 2006, prompting discussion of whether this work had entered the “public trust”.

Prof. Jennifer Anglim Kreder has published an article examining the concept of the “Public Trust” in the Pennsylvania Journal of Constitutional Law. The doctrine has been used in environmental and museum law, but has a richer history:

It seems as if no one really knows the meaning of the term “public Trust” used in the Religious Test Clause of Article VI of the U.S. Constitution. This Article is the first scholarly attempt to define the term by exploring historical evidence pre-dating the nation’s founding through the Constitution’s adoption, including British and colonial trust law that influenced the Founders’ conception of the term. Today, one can find the term used only in the cases and scholarship concerning environmental law, tax law and museum law. After a thorough analysis of the old and new sources, this Article proposes the following original definition of term “public Trust”: “Any entity given special privilege by the government, beyond the simple grant of a state corporate charter often coupled with state or federal tax waivers, so long as that entity is legally obligated to engage in conduct that could traditionally have been performed by the government itself for the public’s benefit.”

Kreder, Jennifer Anglim, The ‘Public Trust’ (January 21, 2016). 18 University of Pennsylvania Journal of Constitutional Law 1425 (2016).