Art Theft – Page 18 – Illicit Cultural Property

More on the Bolton forgers (UPDATE)

Peter Nahum has an excellent editorial in the Art Newspaper titled “How I was duped by the Bolton forgers“. Nahum, the director of the Leicester Galleries in London details the fraud in 1990

[S]he wished to sell a painting by the Scottish Colourist, Samuel John Peploe, which she had inherited from her grandfather who had owned an art gallery. This was confirmed by a label on the reverse: “The Metcalfe Gallery, 45 Dundas Street, Edinburgh”. She arranged for her husband to bring the painting to the gallery after 6pm and stated that she wanted cash… In the middle of that night I woke up and realised it was almost certainly a fake.

In fact he wasn’t duped, as he cancelled the check quickly and reported the incident to the police. It seems the Greenhalgh’s had built quite a reputation for passing forged art, but it wasn’t until 2006 that the Greenhalgh’s were finally raided. The troubling aspect of this case is the fact that these individuals were suspected art forgers, yet the state of the market is such that legitimate works cannot be distinguished from forgeries sold by known art forgers. The clear indication is that there needs to be a radical shift in the way the art market guarantees authenticity and title. Either a centralized database, or some kind of title insuring mechanism is sorely needed to prevent this kind of fraud.

One wonders how often dealers suspect the dubious nature of a work, but because a forgery may be of such a high quality, they reason that members of the public would not suspect. Nahum’s statement on this is quite telling I think:

The point about the Greenhalgh case … is that what seems to be a rock solid provenance can distract the expert’s eye from careful assessment. Every cloud has a silver lining; although I have sometimes lost money tracking down fakers and reporting them, I have gained another arrow in my street-smart quiver. Never trust a provenance until it can be verified. Trust your eye and instinct, your personal researches and any reliable expert on the subject you can consult.

At a minimum, the relevant law enforcement personnel should have circulated the names of the Greenhalgh’s among the dealing community to prevent further fraud. The understaffed Art and Antiques Unit was slow in responding as well it would seem. Another difficulty is the ambiguity which the term “provenance” encompasses. If courts in the UK had a wider sampling of cases with which to grapple, perhaps a firm conception of the term would emerge, however these cases occur relatively infrequently. As such, we are relying on industry practice to define the boundaries of “good provenance” and that has produced a deeply unsatisfying system.

UPDATE:

Jamie Grace, a friend and researcher at the University of Derby emailed me with some very interesting thoughts on this situation:

The sale of a forgery (and the resale of stolen art in general) would cause difficulties for DACS the agency that attempts to administer the Artist’s Resale Rights Regulation 2006. I support your call for an authenticity database – from my perspective, it could be linked to another mandatory database detailing sales, making the administration of the 2006 Regulations for the benefit of contemporary artists a lot easier.

As for the Art & Antiques Unit, restrictions on a researcher’s ‘right to know’ under the Data Protection Act 1998 and the Freedom of Information Act 2000 means that for ‘operational reasons’ the Unit cannot divulge many details about recovered or stolen works or art (or antiques etc.) – so a curious or suspicious art market professional cannot even go straight to the Unit to check provenance. Allowances are hard to make for the reasons of understaffing when the legal framework itself defeats the aims of sensible dealers.

Jamie knows far more about DACS than I do. From what I understand it is essentially a scheme which takes a small portion of the sale of works of art and distributes it among contemporary artists. I hope to hear more from him on that in the coming months here.

I’ll confess I was unaware of the implications of the Data Protection Act and the Freedom of Information Act, but they only seem to be undercutting the work of the Unit in this case.

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

Stolen Works Discovered in Glasgow

The BBC reported over the weekend that five paintings have been recovered by a a pensioner in his Dunbartonshire flat (just outside Glasgow). Three are the work of Robert Gemmell Hutchison, the Pink Pinafore, Feeding the Seagulls, and Cottarita. Also recovered was this work, Candlelight by Sir James Guthrie, along with Luss Road. A slideshow of all the works is here.

The works were found by an elderly man in his loft. At present, authorities are still attempting to understand how these works came to arrive there, after they had been stolen in 2002. There still aren’t many details, and I’ll update if and when more details emerge.

The works are estimated to be worth £246,000. Of course that doesn’t measure the artistic or cultural value of the works which have been stolen. In fact cultural value was the main reason the Norweigian Supreme Court gave for increasing the sentences of two thieves who took Edvard Munch’s The Scream and the Madonna as they are of “irreplaceable national cultural value.” It’s this cultural value which gives art theft a prominent place in the news, and arouses such interest. However I think measuring it, especially for courts, can often be difficult, especially for lawmakers who aren’t trained in art history. Increasing punishment for well-renowned masterpieces such as Munch’s works, this cultural value may be pretty easy to measure; however these works recovered in Glasgow may be harder to measure culturally, and our only gauge is the price they may garner at auction.

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

Recovery in Sao Paulo

The AP is reporting that the two works stolen last month in Brazil have been recovered in Sao Paulo. The recovered works, Portrait of Suzanne Bloch, 1904 by Pablo Picasso and O Lavrador de Cafe, 1939 by Candido Portinari were recovered in a home on the outskirts of Sao Paulo on Tuesday. The works were stolen last month, by thieves using only crowbar and a car jack. Given that, are the assualt rifles, pistols, and bullet-proof jackets worn by guards at yesterday’s press conference necessary?

Julio Neves, the president of the Sao Paulo Museum of Art said the works are “in absolutely perfect condition”, and “[t]he museum is upgrading and improving its security system to prevent this kind of thing from happening again.” There is no word on how the works were recovered, as police are still investigation as “other suspects remain at large and providing details could jeopardize the ongoing investigation.” Given the comments of the city’s chief police inspector Mauricio Lemos Freire, it seems like they are investigating this as a theft-to-order, and are still going after the buyer who ordered the theft.

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

2007 in Review

One of the best things about the end of the year is the chance to catch up on things I’ve missed out on during the year. I love the year-end best music lists, all of which are helpfully compiled on largehearted boy. Movie lists are great as well, though many of the Onion’s favorite movies have yet to appear in most theaters. Dahlia Lithwick, the always-excellent legal reporter for Slate also runs down the “Bush administrations Dumbest Legal Arguments of the Year“.

It’s also been an eventful year in the cultural policy world, and in that spirit I’ve compiled the Top Ten Cultural Property events of the past year.

10. The Major theft in Brazil of Picasso’s Portrait of Suzanne Bloch and a work by Brazilian artist Candido Portinari from the greatest South American Art Museum, the Sao Paulo Museum of Art. Much of the subsequent US media coverage of the theft has misleadingly depicted the Sao Paulo Museum of Art as a poor and bumbling institution that couldn’t afford insurance. That’s highly misleading, because even the wealthiest institutions have difficulty insuring their works. It’s expensive to insure a work worth $100 million, and its often more cost-effective to spend that money on security. Of course the security was not up to the task in this case, but one wonders if a major theft of this nature from an American or European museum would be so quick to blame the museum?

9. The still-to-be revealed extent of the forgeries created by Shaun Greenhalgh, who lived in Council Housing in Bolton with his aging parents. His forgeries fooled the British Museum, the Art Institute of Chicago, and some of the world’s leading experts on Gauguin. The most surprising aspect may be the breadth of the forged objects which ranged from an ancient Greek kouros to Egyptian to ancient cuneiform to a sculpture by Gauguin. How many more Greenhalgh’s are on display now? We don’t know for sure. It calls to mind Orson Welles’ final masterpiece F for Fake: “It’s pretty but is it art? How is it valued? The value depends on opinion, opinion depends on the expert, a faker … makes fool of the experts – so who’s the expert? Who’s the faker?”

8. The recovery in August of three Picasso works stolen from the artist’s granddaughter in February.

7. Another major story is the state of antiquities–discovered, displayed, stolen– in Iraq.

6. The theft in August in Nice France, in which thieves stole 4 works by Monet, Sisley, and Bruegel. It’s probably not possible to sell these works on the open market, but at least two of these paintings had been stolen in 1999. A theft to order seems the likely explanation.

5. A significant continuing story is the increasing number of WWII-era art claims.

4. In October da Vinci’s Madonna of the Yarnwinder was recovered from a Solicitor’s office in Glasgow, four years after its theft from Drumlanrig Castle. It was a major recovery because it was a da Vinci, but also because it was recovered in a solicitor’s office. I’m looking forward to more details as the criminal trial unfolds in 2008.

3. A major story in the UK is the trouble for arts and museum funding in the face of the London Olympic bid. This funding shortage could destroy much of what makes the UK cultural policy tick, including the Waverley limited export scheme, the Portable Antiquities Scheme, and arts funding generally.

2. A major milestone this year was the legal claims brought by Iran in England to seek to block the sale of antiquities. The first was Iran v. Berend [2007] EWHC 132 (QB) (an unsuccessful attempt to block the sale of a limestone relief from Persepolis). The other major dispute involved chlorite objects from the Jiroft region of Iran. The High Court ruling Iran v. Barakat Galleries Ltd. [2007] EWHC 705 held Iran was not able to establish an ownership interest, however this was overturned by the Court of Appeal in Iran v. Barakat Galleries [2007] EWCA Civ 1374. These decisions received surprisingly little media coverage, but will have long-lasting consequences for years to come as they have extended the standing of the 1970 UNESCO Convention, and provided important precedent for other nations which may seek to prevent the sale of antiquities in London’s bustling antiquities markets.

1. The story I found myself writing the most about this year was the interminable dispute between Italy and the Getty, which finally culminated in an agreement this summer for the return of dozens of important works to Italy. The dispute has a number of related stories, including the ongoing dispute over the Bronze Statue of a Victorious Youth, and the Marion True/Robert Hecht criminal trial in Italy. Will it fundamentally change the antiquities trade? Does it signal the end of the universal museum? Will cultural policy matter in nations other than Italy? Perhaps 2008 has the answer to those questions.

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

Major Theft in Brazil

Thieves have stolen works by Pablo Picasso and Candido Portinari from the Sao Paulo Museum of Art. The theft was made known early Thursday morning. The stolen Picasso is pictured here, Portrait of Suzanne Bloch, 1904. Early estimates place the monetary value of the stolen works at $100 million USD. However these are major works, the Picasso is from the artist’s blue period. Portinari is a major Brazilian artist. The AP story is here.

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

Stewart Gardner Resolution?

Is a resolution eminent in the largest art theft in history? Perhaps, with word this morning that a Boston grand jury is scheduled to hear evidence this week into the 1990 theft from the Isabella Stewart Gardner Museum, estimated at between $300-500 million. One of the stolen works is the Concert by Vermeer.

Stephen Kurkjian of the Boston Globe has the story, in which he was given details of a subpoena from a former museum employee who worked there at the time.

The former worker said two FBI agents questioned him about his recollection of the theft several days ago and handed him a subpoena to testify before the grand jury in Boston tomorrow.

The agents told him they were gathering facts on the case and were hoping that the grand jury would “shake things up” in the long-stalled investigation, said the former worker, who asked not to be identified.

The agents did say that they were pursuing the possibility that the theft may have been carried out by three individuals – and not two as has long been publicly believed, the former employee said.

On Friday, a spokeswoman for US Attorney Michael J. Sullivan’s office declined to comment on the grand jury, stating that the office never confirms or denies the existence of such a session.

A spokeswoman for the Gardner Museum also declined comment.

The former museum employee read portions of the subpoena to the Globe and said it was signed by Brian T. Kelly, a veteran prosecutor in the US attorney’s office. Kelly has helped spearhead the federal investigation into and the crackdown of James “Whitey” Bulger’s criminal enterprise.

It is often said that a grand jury is both a sword and a shield. It protects the rights of criminal defendants, but also allows prosecutors to use their subpoena power to compel testimony. Whether a resolution will emerge remains to be seen, but right now there are more questions than answers, most notably: where are the paintings?

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

Italy, Culture and Politics

Barbie Nadeau has an interesting article online at Newsweek. It makes the same kind of point that a number of commentors, me included, have noticed. Namely, that Italian politicians are often adroit at using Italian heritage for political gain.

Last month Veltroni and Rutelli unveiled another gem on the Palatine Hill: the “Lupercale,” the ancient grotto where, legend has it, a she-wolf nursed Rome’s founder, Romulus, and his twin brother, Remus. The showing of the Lupercale delighted Italians with the suggestion that the legend might be true. But while the romantics were studying the mythology, the cynics were asking questions about just why the finds were being shown off at that time. The grotto, after all, was discovered last January, during the restoration of Augustus’s palace and the iconic collapsed wall. Back then Irene Iacopi, the archeologist in charge of the Palatine Hill, said she discovered the cavern, which is covered with frescoes, niches and seashells, after inserting a 52-foot probe into the ground. So why did it take almost a year for the authorities to make a public announcement about the find?

The answer, it would seem, lies in politics and power. Just days before the showcasing of the Lupercale, Silvio Berlusconi had disclosed his plans to form a new political party that would compete with Rutelli and Veltroni. The news about the grotto, however, effectively eclipsed Berlusconi’s news, leading the former prime minister to describe the timing as “suspect.”

It’s an interesting point I think. But when culture is such an important political issue in Italy, it seems only natural for politicians to manage the news in much the same way the President might shape the news with respect to the economy, the War in Iraq, or other matters.

I do have issues with one claim made in the article though. It is claimed that “Getty Museum curator Marion True went on trial in Rome for conspiracy and receiving stolen artworks for the Los Angeles institution. The trial, which began during Berlusconi’s term and is still ongoing, has directly led to the return of more than 100 artifacts from other American museums that purchased items of questionable provenance, including 40 from the Getty.” I think that may be overstating the importance of the True trial. Certainly it has had an impact, but more important is the concrete Polaroids and other evidence detailed in the Medici Conspiracy. That evidence came as a result of investigation of a theft of objects from Italy which were later traced to Switzerland. That investigation, of which the True prosecution has emerged, is the root cause I think.

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

Lex Situs Conference last Friday

Last Friday in London I had the great pleasure to present a bit of my own work at the Lex Situs seminar organized by the Institute of Art and Law and sponsored by Withers LLP. Incidentally there is another seminar tomorrow which looks to be interesting as well, on the consideration of anti-seizure legislation.

It was an enjoyable afternoon, and a lot of fun for me to hear what people like Prof. Norman Palmer, Kevin Chamberlain, and Marc-André Renold had to say on the topic, as I’ve read and relied on their work a great deal in the last few years.

The highlight for me was hearing from Jeremy Scott, of Withers LLP who represented Iran in the recent high court case with Barakat galleries. It may be useful for people to know a bit about what the speakers had to say on this rule. For the non-law readers, apologies if this post is a bit lawyerly, but some of these private legal concepts are a bit involved.

The lex situs rule essentially dictates that when a stolen piece of cultural property crosses national boundaries, and laws conflict, the law of the jurisdiction where the sale took place (i.e. lex situs) will apply. This is a nearly unanimous rule which applies to movable objects. Two speakers gave particularly good insights.

Dr. Janeen Carruthers, a reader at the University of Glasgow gave a very informative overview of the whole scope of the lex situs rule. It was great to hear her thoughts, as an expert on Private International Law. She had some interesting things to say, especially arguing clandestine removal may have many things in common with the clandestine removal of antiquities, and this similarity may be a useful tool for arguing the lex situs rule should not perhaps hold the prominent position it does today.

I also particularly enjoyed hearing Professor Johan Erauw of the University of Ghent in Belgium talk about Talk about a new Belgian amendment to the Code of Private International Law in 2004 which provided for a lex originis choice-of-law rule in certain limited circumstances. It was an interesting amendment of the general rule, but he argued persuasively that the rule was substantially weakened, and the reasons may be tied to certain Belgian museums, who were concerned about losing some or all of their collection with a new more generous rule for source nations.

Given such a distinguished panel, I set the bar pretty low for myself. My main argument, and perhaps its one that’s more common sense than anything, is that the lex situs rule is ill-equipped to regulating and limiting the illicit trade in art an antiquities. I do think a convincing and compelling policy argument can be made that the general lex situs rule governing title to movable objects across national boundaries should be limited in some situations, and in fact this is the approach taken by Belgium.

When public international law offers no remedy, claimants are often forced to seek redress through private law. Of course all nations forbid theft; and every jurisdiction recognizes that a thief cannot possess superior title to the original owner. The classic dispute in cultural property litigation does not involve the original owner and the thief, but rather the original owner and a subsequent purchaser. Both of these parties are relative innocents. The difficulty in private international law disputes hinges on the ways in which different states have chosen to allocate burdens, rights and responsibilities between these two relative innocents.

States could take the Belgian approach and use another choice of law principle. There could be a call to reform good faith purchaser rules in Civilian jurisdictions. We might decide that art and antiquities should be registered when they are bought and sold. These all strike me as plausible and sensible reforms, however we must start from the position that the current default legal framework does not effectively distinguish illicit objects. The problem, and its one that’s been noted by many cultural heritage scholars, is that nations and lawmakers too often respond to the illicit trade rather than create a workable legal regime to prevent problems before they occur. The Belgian example strikes me as an important and noteworthy exception to this rule.

Should there be an antiquities market in some form? If the answer is yes, as it currently stands there is not a workable system to ensure antiquities are licit. To erect such a system will require substantial compromise on the part of source nations and the antiquities market. The market will have to radically shift the way it conducts itself to provide adequate safeguards that antiquities are legally excavated or from older collections. In turn, it seems likely that source nations will have to find a way to provide licit antiquities to meet market demand. Until such a compromise is brokered, courts in market nations will continue to be faced with difficult issues.

It was a really enjoyable seminar, and I’d like to thank the organizers and the Institute of Art and Law for being kind enough to allow a PhD candidate to present alongside such an impressive panel.

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

Shocking theft… in 1994

Is it any wonder that 7% of the Italian GDP comes from Mafia crime? The Italian city of Catania on Sicily has announced the disappearance of 51 works of art, after a 1995 document regarding their disappearance was recently “rediscovered” and provided to the carabinieri. The works were taken from the art gallery, housed in the Ursino castle pictured here, and were discovered by a new Catania councillor responsible for culture, Silvana Grasso. This is probably not the kind of news Francesco Rutelli wanted on the heels of the discovery of what may be the Lupercale, under Augustine’s palace on the Palatine Hill.

At least one step which should be taken by all museums, and even individuals who own art, is to take a photo of the works. One of the works stolen is a Rembrandt, but there’s no photograph of the work, rendering recovery nearly impossible. If there’s an image, recovery is possible. Ask Peter Crook, who recovered two works by his grandfather GF Wetherbee from the US via the Art Loss Register.

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

Germany Creates a Restitution Commission

Germany has decided to create a kind of Nazi Spoliation Office. From the AP:

BERLIN (AP) — A new office within Germany’s Institute for Museum Research is opening in January to help identify and research art stolen by the Nazis, Germany’s culture minister said Wednesday.

The office, which comes under the State Museums of Berlin, will help museums, libraries and archives identify items that were taken from their rightful owners during the Nazi period, Culture Minister Bernd Neumann said.

“I expect from this an important push in Germany in the clarifying of restitution questions,” he said.

Neumann founded a working group to look into how to deal with restitution issues, after Berlin sparked controversy with a decision last year to return Ernst Ludwig Kirchner’s “Berlin Street Scene” to the heirs of a Jewish collector who said the Nazis forced the family to sell it in the 1930s.

Some art experts questioned whether the expressionist work was sold under duress and whether its return was legal.

With the new office, which has a $1.47 million annual budget, Neumann said he hoped the restitution process would be better coordinated and more transparent.

This appears to be a good idea, and perhaps will preclude the need for private legal disputes when, for example, these works are displayed abroad as is the case with Schiele’s Portrait of Wally. Will this commission help to return works to claimants? Offer settlements? Or, will it instead merely warn German institutions that certain objects are suspect and should not be loaned abroad?

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