Art Theft – Page 15 – Illicit Cultural Property

Estate Recovers Three Works Stolen 30 years Ago (UPDATE)

The Worcester Telegram and Gazette reported yesterday that three works stolen more than 30 years ago will be returned to the original owner’s estate according to a Federal District Court ruling in Rhode Island. Recovered were The Shore of Lake Geneva by French painter Gustave Courbet, Lady as Shepherdess by William Hamilton and In the Sun by American impressionist Childe Hassam:

The paintings were stolen by three armed, masked men the night of July 1 into early July 2, 1976, from the home of Mae Persky, 520 Grafton St. The three men cut the telephone wires to the home, bound Ms. Persky, her nurse companion and caretaker and ransacked the home. They stole the paintings, furs and other valuables. The roughly two-hour robbery ended with one of the robbers stating, “Give us an hour to get away or we’ll come back and burn the …. place to the ground,” according to the police report. The paintings had been purchased in 1945 by Mrs. Persky’s husband, Abraham Persky. The insurance company for the Persky estate paid $45,000 on the policy for the three paintings. OneBeacon Insurance Co. is the “successor-in-interest” to the insurance company at the time of the robbery, Commercial Union Assurance. Mrs. Persky, whose husband was the former president of the Worcester Knitting Co., left the paintings to Ms. Yoffie and her husband, William Yoffie, in her will. he died Aug. 21, 1979. She was 86 at the time of the robbery, according to news reports. Mr. Yoffie was president of Worcester Knitting Co. and a trustee of the Abraham S. Persky Charitable Trust. He left the interest in the paintings to his wife when he died April 2007. For years, the paintings remained missing. They resurfaced last year when Patrick Conley went to have them authenticated by a Newport, R.I., art dealer. Mr. Conley had received the three paintings from his brother William Conley as collateral for $22,000 in loans in 1998 and 1999. Because William Conley never repaid his brother, Patrick Conley kept the paintings as part of their written loan agreement. It is unclear how antiques dealer William Conley obtained the paintings. When the paintings were determined to be stolen, the FBI took custody of them and the legal battle began. In previous interviews, Patrick Conley said he had no idea the paintings were stolen.

I haven’t been able to track down the judgment yet, so I can’t comment on the legal issues involved. I can say with some certainty that this is a classic stolen art dispute between an original owner (or her successor in interest) and a subsequent purchaser or acquirer who purports to be in good faith. This is a dispute between two relatively innocent parties, and jurisdictions have very different handling of this kind of situation — not so much in the US or the UK, but in civilian systems like Iitaly or Switzerland purchasers can acquire good title to these stolen works.

UPDATE:

Donn Zaretsky notes that this was seemingly not a judgment but rather the court signed off on a settlement agreement among the parties, ending the dispute, which has not been made public. He wants to know “what did the insurance company get in return?”

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

Art Theft and Recovery Blotter

There’s a slew of news about art theft, recovery and sentencing this morning:

First, thieves broke into a museum near Stockholm and stole five works by Andy Warhol (Mickey Mouse, and Superman) and Roy Lichtenstein (Crak, Sweet Dreams, Baby!, and Dagwood).

Second, authorities in Brazil have recovered a Picasso print, The Painter and the Model, which was stolen along with four other works back in June from the Pinacoteca do Estado in São Paulo, Brazil. Police had the men under surveillance for a planned ATM robbery, and overheard mention of the Picasso.

Third, a Vermont man has been ordered to serve a five-to-20 year prison sentence for stealing bronze sculptures to sell as scrap metal. He and two other men had stolen a number of sculptures from Joel Fisher’s studio while the artist was out of the country.

Finally, Artinfo is reporting that the Art Loss Register has recovered a Mario Carreño work stolen from a New York law firm in 1993.

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

French Man Pleads Guilty to Art Theft Conspiracy

Last week the US Department of Justice issued a press release announcing a Frenchman named Bernard Jean Ternus pleaded guilty to conspiring to sell four works of art stolen last August from the Musee des Beaux-Arts in Nice, France.

According to the release, Ternus and another man attempted to sell two of the works to undercover agents in Barcelona, Spain for three million euros. They sold two works, and attempted to keep the other two as leverage in case they got arrested. This plan revealed its flaws in June though when Ternus’ co-conspirators were arrested in Southern France when they attempted to exchange the final two works.

Ternus was arrested by FBI and ICE agents in Florida, and its likely a condition of his plea agreement was to give testimony about the thefts themselves, which should aid French authorities in their prosecution of the co-conspirators in Europe.

The arrests are a very good thing, but it will be interesting to see what Ternus’ and his conspirators prison sentances will be, as art theft is typically not given long prison terms. Though the armed nature of the robbery may lead to harsher penalties for the actual thieves in Europe.

This is nonetheless a very good example of cooperation of Federal Agents and prosecutors, and their French and Spanish counterparts. Its a job very well done, and an indication why theft of these kind of high-profile works is very silly. I’ve included images of the recovered works from the press release below:

Permanent loan, Musée des Beaux-Arts, Nice; © Musée d’Orsay, Paris Claude Monet (French, 1840-1926). Cliffs Near Dieppe, 1897. Oil on canvas. 65 x 100 cm (25 9/16 x 39 3/8 in.).

©Musée des Beaux-Arts, Nice Jan Brueghel the Elder (Flemish, 1568-1625) and Hendrik van Balen the Elder (Flemish, 1575-1632). Allegory of Water, ca. 1611. Oil on panel. 53 x 94 cm

Permanent loan, Musée des Beaux-Arts, Nice; © Musée d’Orsay, Paris Alfred Sisley (French and British, 1839-1899). The Lane of Poplars at Moret, 1890. Oil on canvas. 76 x 96 cm (29 15/16 x 37 13/16 in.). (20 7/8 x 3)

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

Portrait of Wally Forfeiture Progressing

Martha Lufkin has news of some movement in the Portrait of Wally civil forfeiture proceeding currently underway in Federal District Court in Manhattan.

[Judgment] on a long-running lawsuit in New York which helped launch a world outcry over Nazi-looted art at museums and prompted many institutions to begin examining their collections for history of Nazi theft, has been postponed to let the US government review new evidence. On 3 June the schedule was suspended on a case brought by the US government in 1999 to seek confiscation of Egon Schiele’s Portrait of Wally from the Leopold Museum in Vienna, under the US National Stolen Property Act. The US says the Leopold knew that the art was stolen by a Nazi in 1939 from its Jewish owner, Lea Bondi. The case, which the parties had asked the court to resolve without a trial, is before the federal district court in Manhattan.

It’s true that the Portrait of Wally dispute has probably caused some museums to re-examine their collections, but its also been pointed to as a risk to art loans and traveling exhibitions. It also puts a lot of power in the hands of prosecutors when they can use a forfeiture proceeding like this, as the government essentially brings suit against the object itself, with the benefit of far lower burdens of proof. Historically, federal prosecutors have intervened on behalf of source nations or claimants when they have potential claims. It’s a very useful thing for claimants to get this kind of assistance in these cases. I’m very interested to know what new information may be coming to light.

My understanding of the facts in this case indicates its a difficult case for the prosecutors to prevail. Hopefully a resolution is pending, as the work has been in storage for nearly a decade now.

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

Andrew Wyeth Recovered (LATE UPDATE)

Artdaily is reporting on the recovery of A Bridge, Race Gate by Andrew Wyeth. The work was stolen from a Houston home, along with 22 other works in 2000. The painting was then registered on the ALR database.

The painting was registered on the ALR’s database of lost and stolen artworks and nearly a decade later, the painting emerged at Simpson’s Gallery in the very city from which it was stolen. When a suspicious would-be consignor arrived at his auction house looking to unload the Wyeth, Ray Simpson recognized the quality of the work and the celebrity of its artist. He agreed to take the picture in for an evaluation and suggested that its seller return in a few hours. Mr. Simpson, trusting his instincts and first impressions, then called the New York office of the ALR to request a search of the suspect picture, at which time it was matched by art historian, Erin Culbreth.

The story goes on to say “After significant research and assistance from Nationwide Insurance Company, the ALR was able to determine the owner of the painting and broker a deal for its return. In the end, it was the instinct of Ray Simpson that set the wheels of the recovery in motion.” I’d like to know a lot more about these details, because what generally happens in these cases is the original owner and victim of the theft has probably received an insurance settlement, which usually gives the insurance company title to the work. As such, that’s why the work will be sold at a Christie’s auction in Dec. 2008. The ALR may have been very helpful in this case to the insurance company, and the gallery owner should be commended, however this is still not a happy ending for the original owner, they don’t usually get their insured painting back.

UPDATE:

I’ve been informed that the original owner actually had an opportunity to purchase the work at a substantial discount, but decided against it because she did not need the money. The point I was attempting to make is it is often very difficult for a thief or subsequent possessors to sell a work by such a well-known artist after it has been stolen, which makes it a real shame because often times fully compensating the original owner is difficult if not impossible. That’s not the case here though as the owner had an opportunity to purchase the work and could have then auctioned the work and made a substantial profit perhaps.

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

Looting in Southern Illinois

Len Wells of the Evansville Courier Press had an interesting article Sunday on the looting of Native American burial grounds in Southern Illinois.

“We noticed a trail going out through a wheat field and followed it,” said John Schwegman of Metropolis, Ill., who works with the Kincaid Mounds Support Organization. “We found they had dug a hole about 6 feet long, 4 feet deep and 3 to 4 feet wide.”

Schwegman said the same site had been looted last summer. The hole was filled in then, but it was targeted again this spring.

“We believe there are at least two, and maybe more looters working, since they were working two holes at the same time,” Schwegman said. “They’re pretty bold, since they parked their vehicles in our own parking lot.”

Investigators said the looters have dug three holes in the Pope County ground and a fourth one a short distance away in Massac County. Pieces of broken flint and stones were discovered near the holes after looters abandoned the sites. The first holes were discovered about six weeks ago.

The Kincaid Mounds Historic Site consists of 105 acres in the heart of the Kincaid Mounds Archaeological Site. Portions of the site extend to private property north and east of the site. The state property has been designated a National Historic Landmark and is on the National Register of Historic Places.

Portions of the site had been excavated, but not the area targeted by the looters. The $2,000 reward is a good incentive, but the odds appear slim that these objects will be found or the culprits caught. This kind of theft carries criminal penalties under the National Stolen Property Act, as well as the Archaeological Resources Protection Act. However these criminal measures will likely not assist in bringing these looters to justice, and the huge land area makes patrolling this and other Native American sites – which would allow officials to catch the looter in the act – difficult and impracticable.

Can we consider eliminating the market in these objects? Yes, but for many objects found on private land in the United States, not associated with burial grounds or religious practices, it is legal for individuals to excavate. I’m not aware of how many native American objects are purportedly found on private land, I’d expect most objects come from National Historic Places, or Federal or State parks which have been set aside, and are protected de jure, but this may not always result in de facto protection.

There is a tendency perhaps to get too focused on looting which just occurs in Italy or the Mediterranean. The reality is it takes place everywhere, and the current legal and policy measures aimed at stopping it are having some effect, but much more can and should be done. Perhaps more scrutiny of the Portable Antiquities Scheme in England and Wales could help alleviate some of these problems…

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

Picasso Thefts in Sao Paulo

ABC News has some more on the thefts last week of Picasso’s Minotaur, Drinker and Women (1933), pictured here, and The Painter and the Model (1963). Also taken were works by two Brazilian artists, Women at the Window (1926) by Emiliano Augusto Cavalanti de Albuquerque Melo, and Couple (1919) by Lasar Segall. All four works were stolen from the Pinacoteca Museum by 3 men who paid their entrance fee, took the elevator to the second floor, drew their weapons and forced the guards to tell them where the four works were located.

Marcelo Araujo told the Folha De Sao Paulo newspaper that the security was appropriate, “In cases of armed robbery we can’t run the risk of resisting, because there could be unforeseeable consequences for the employees and for the public.” That is probably correct, and there is an inherent tension between keeping galleries an open space for the public versus protecting against armed robbery. Such robberies seem to be taking place with regularity in Sao Paulo though, which may make displaying art to the public more difficult there.

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

Personal Note

I am pleased to announce that my PhD thesis has been completed, successfully defended, corrected and printed. It’s titled “Preventing and Repairing These Losses: The Legal Response of the United States and the United Kingdom to the Illicit Trade in Cultural Property”. I think I should have perhaps chosen a more succinct title.

It feels great to be finished, and it was a lot of hard work with some tough decisions, but it wouldn’t have been possible without a lot of help and support from my colleagues here in Aberdeen and Joni (aka “my funder”). I’m sorry to say much of that support was undermined by our French Spaniel and serial abuser pictured here.

I’ve included the table of contents below. I’m still not sure if I want to try and publish it, which would mean a lot more work, and I suppose part of that will depend on where I land in the coming months. I started this little blog as a way to stay productive, even when I couldn’t quite get things going on the thesis. I’ve found it invaluable, and for anyone who writes I think a blog is a great way to keep in the habit of writing.

I’m not sure where we will end up at this point, I plan to continue research into cultural heritage issues, or at least a related field which will allow me to continue the work I’ve been doing. I had what I thought was a good shot at a couple of postdoctoral funding opportunities which would have allowed me to look in some real depth at repatriation, but unfortunately those fell through. On a happier note I am involved with a really exciting project with some people which will create a really great cultural heritage resource, which I’ll talk about in much more depth here in the coming months.

Posting will likely be very light for the next few weeks, as we’re heading back to the States to catch up with family and friends.

Chapter 1: Introduction.. 1

I. The Aims. 1

II. Foundational Issues and Terminology. 3

A. Illicit Cultural Property. 3

B. Source and Market Nations. 3

C. Provenance. 4

III. The Nature and Extent of the Illicit Trade. 6

A. Art 8

B. Antiquities. 9

IV. Laying the Theoretical Framework. 10

A. Values Inherent in Cultural Property Policy. 10

1. Preserving the Object 11

2. Preserving Archaeological Context 12

3. Preserving the National Patrimony. 13

4. International Movement 14

5. Accessibility. 15

B. Cultural Heritage or Cultural Property?. 16

C. How Sympathetic Facts Distort Cultural Property Law.. 17

V. The Scope of this Work. 21

Chapter 2: Regulating Cultural Property at the Source.. 22

I. Introduction: How to Prevent the Illicit Trade at Its Source?. 22

II. Regulation in Source Nations. 23

A. The Typical Approach: Guatemala. 24

B. Other Examples. 27

1. Peru. 27

2. Mexico. 28

3. Nigeria. 29

C. China. 30

D. Italy. 36

E. Cultural Property Strategies in Developing Nations. 39

1. Nationalizing Cultural Property. 39

2. Efficacy of Export Restrictions. 42

3. What can a Source Nation do when an Object has been Exported?. 46

4. Combating the Illicit Trade v. Bare Retentionism… 47

III. Domestic Regulation of Cultural Property in Market States. 50

A. Domestic Regulation in the United States. 52

1. Initial Federal Efforts. 53

2. The Archaeological Resources Protection Act of 1979. 54

3. The National Historic Preservation Act 56

4. Native American Graves Protection and Repatriation Act 58

5. The Law of Finds. 60

B. Domestic Regulation in the United Kingdom… 63

1. Scheduled Ancient Monuments. 63

2. Treasure Trove and the Portable Antiquities Scheme. 65

3. Scotland. 69

4. Limited Export Restrictions: The Waverley Criteria. 74

IV. Summary: What are the Key Components to Effective Domestic Regulation?. 78

Chapter 3: Public International Law and Cultural Property.. 80

I. Introduction: Public International Law and Cultural Property. 80

A. Origins of the Protection of Cultural Property. 81

II. Attempts to Forge a Workable International Framework. 84

A. 1954 Hague Convention. 84

1. Defining Cultural Property in the Convention. 86

2. Shortcomings of the Convention. 87

3. The First Protocol 88

4. The Second Protocol 89

III. The 1970 UNESCO Convention. 92

A. Individual Articles. 93

1. Problems with Interpretation: Articles 3 and 6. 93

2. The “Heart” of the Convention: Article 7. 95

3. Defining the Scope of Protection. 97

B. Impact of the Convention. 97

C. Implementation and Bilateral Agreements. 100

1. Implementation of the UNESCO Convention in the US. 100

2. Switzerland. 105

3. Implementation in the UK.. 106

IV. A Case for the Reform of UNESCO.. 108

A. The Perceived Bias in UNESCO Undermines its Efforts. 109

B. The 1995 UNIDROIT Convention. 113

C. The 2001 UNESCO Convention For the Protection of the Underwater Cultural Heritage. 114

V. Summary. 115

Chapter 4: Conflict of Laws in Cultural Property Disputes. 117

I. Introduction: The Problem When the Claims of Two Relative Innocents Collide. 117

II. Manifestations of the Conflict 120

A. Entrustment v. Theft or Wrongful Dispossession. 121

B. When the Conflict Involves Statutes of Limitations. 123

C. When Tort Rules Conflict 127

D. When Movable Property Rules Conflict 129

E. The Consequences of the Choice of Law Challenge in Art and Antiquities Litigation. 131

III. The 1995 UNIDROIT Convention. 135

A. What UNIDROIT Got Right 136

1. Compensation for the Diligent 136

2. Highlighting Due Diligence. 137

3. Limited Right of Return. 139

B. Two Weaknesses Prohibit Widespread Implementation. 140

IV. The General Choice of Law Inquiry and Alternatives. 141

A. The General Rule: Lex Rei Sitae. 141

B. Renvoi 142

C. Lex Originis. 147

V. Summary. 149

Chapter 5: Market Regulation of Cultural Property in the UK.. 151

I. Introduction. 151

II. Recent Reform in the UK.. 151

A. The Select Committee Inquiry. 152

B. The Illicit Trade Advisory Panel 153

C. After Five Years, What Result?. 155

III. UK Restrictions on the International Movement of Cultural Property. 156

A. Customs Powers. 157

B. EU Legislation Governing Cultural Property. 158

C. Accession to the 1970 UNESCO Convention. 161

D. Public Laws of Foreign States. 161

1. Nationalization and Export Restrictions. 162

2. Stigmatizing Illegally Exported Objects. 163

3. The Recent Iranian Claims: Unpacking Public Laws and Unclear Nationalization. 164

4. Why Not Enforce Public Laws?. 168

IV. The Treatment of Cultural Property in the Law of England and Wales. 170

A. Criminal Law.. 170

1. Theft Act (1968) 170

2. Dealing in Cultural Objects (Offences) Act 2003. 172

B. Private Litigation. 176

1. Contract 177

2. Tort 180

3. Restitution. 182

4. Limitations Rules. 183

V. The Scots Law Treatment of Cultural Property. 186

A. Criminal Law.. 188

1. Common Law Theft 188

2. Reset and Criminal Activity Outside the UK.. 190

3. The Draft Culture (Scotland) Bill 194

B. Private Claims. 194

1. Ownership and Possession. 195

2. Restitution. 196

3. Spuilzie. 200

4. How Might Restitution and Spuilzie Apply. 202

5. Contract and Delict 203

6. Limitations Periods. 204

VI. Summary. 206

Chapter 6: Market Regulation of Cultural Property in the United States. 207

I. Introduction. 207

II. Federal Criminal Regulation. 208

A. National Stolen Property Act Prosecutions under the McClain Doctrine. 209

1. The McClain Cases. 211

2. United States v. Schultz. 214

B. Federal Criminal Forfeitures. 217

1. A History of Forfeiture. 218

2. The Litigation Surrounding Egon Schiele’s Portrait of Wally. 222

3. One Oil Painting Entitled Femme En Blanc by Pablo Picasso. 224

C. US Customs Regulations. 226

D. The Cultural Property Implementation Act 231

III. Civil Remedies. 232

A. The Substantive Claims. 233

B. Limitations Rules. 236

1. Adverse Possession. 237

2. Demand and Refusal 239

3. The Discovery Rule. 241

4. Laches. 243

C. Cultural Property and the UCC.. 244

IV. Summary. 246

Chapter 7: In Conclusion: A Way Forward.. 247

I. In Summary. 247

Appendix I: The 1970 UNESCO Convention.. 250

Appendix II: 1995 UNIDROIT Convention.. 256

Appendix III: The Dealing in Cultural Objects (Offences) Act 2003. 262

Appendix IV: The National Stolen Property Act.. 264

Appendix V: The Cultural Property Implementation Act.. 266

Bibliography.. 279

Cases Cited.. 286

Table of Legislation

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

Afghanistan’s Lost Treasures

The traveling exhibition “Afghanistan: Hidden Treasures From the National Museum, Kabul” opened at the National Gallery of Art in Washington DC yesterday. On display are objects mostly excavated between 1930 and 1980. Many objects have been destroyed or stolen during the Soviet invasion in 1979, Taliban rule, or during the recent US invasion. The exhibition brings together a number of objects which had been feared lost or destroyed.

Here’s how Neely Tucker of the Washington Post describes the exhibition:

“This is probably our best picture of how the Silk Road actually worked,” Hiebert is saying, giving a walk-through of the exhibit. He gets enthusiastic, pointing to a series of decorative plaques. They are flat and rectangular and carved of ivory. They depict women in various poses, sitting, standing, reclining. All these were part of an elaborate chair or throne, the rest of which is missing. On the adjacent wall, a flat-screen monitor shows a rotating three-dimensional re-creation of how all the pieces would have been placed together on the throne. “This is the first time in 2,000 years anyone has seen that throne,” Hiebert says.

Last year, there was criticism that this show was a bad deal for Afghanistan, and many of these objects were on previous display in Paris. Hopefully, the traveling exhibition will produce some excellent benefits for Afghanistan, as its position on the Silk Road made it one of the most interesting places in the ancient world. These kind of loans are of course often used as examples as potential solutions to ameliorate the illicit trade in antiquities.

Photo Gallery.

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

Iraqi Museum Objects Seized in Syria

The AP is reporting (via Syria’s official news agency) that Syrian customs officials have seized 40 objects stolen from the National Museum in Baghdad.

The report quotes the chief of the customs department, Nabil al-Sayyouri, as saying the pieces were seized at al-Tanaf crossing on the Syrian-Iraqi border. They were hidden in a bag in an Iraqi crossing into Syria. The artifacts include different-sized glassware and clay tools.

Al-Sayyouri said the seized pieces were “rare and would be handed back to Iraq.”

This is the third smuggling attempt aborted in less than two months by Syrian customs officials. Last month, the Syrian Cultural Ministry handed Iraq back some 700 pieces of looted priceless antiquities seized inside Syria.

Syria really seems to be taking the lead on policing its borders, with a number of important seizures in recent months.

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