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

Arrests in the Fitzwilliam Theft

There are reports that between two and six individuals have been arrested in connection with the theft of 18 Chinese objects from the Fitzwilliam Museum in Cambridge. The theft was the subject of BBC’s Crimewatch Tuesday:

The stolen pieces had been given as gifts or bequests to the museum, with some experts estimating the artifacts to be worth approximately £18 million (about $28.7 million Cdn). None of the artifacts has been recovered. Police sought help from the public through a segment on the BBC-TV program Crimewatch on Tuesday evening. The show aired closed-circuit camera footage of four suspects sought in conjunction with the robbery.

As Dick Ellis explained in an interview last week, these thieves probably saw the booming trade in Chinese artworks, and may not have understood how difficult an eventual sale would be. Much in the same way similar objects were stolen from the Durham museum.

17th Century jade "imaginary beast" stolen from Fitzwilliam MuseumNoah Charney speculated last week that the stolen objects will be “smuggled [to China] . . . for in China the general rules about not purchasing art without performing Due Diligence and checking stolen art databases do not apply. Provenance is far less of an issue, sometimes for cultural reasons, but also for practical ones–Internet black-outs mean that many in China could not check stolen art databases, even if they were inclined to do so.” I’m not sure that will be the case.

The Chinese have—on paper at least—the most regulated art market in the world, with a tiered series of regulation. It is one of the only sets of regulations which puts direct regulation in the art market, at the point of sale. Are there problems and corruption? Perhaps. But what art market—whether its in Rome, Paris, London, or New York is not corrupt?

In 2002, the Standing Committee of the National People’s Congress passed the Law on the Protection of Cultural Relics. The 2002 Law legalizes private transactions involving cultural relics in five circumstances, (1) legal inheritance or gift; (2) purchase from cultural relics shops; (3) purchase from cultural relics auction enterprises; (4) exchanges or transfers between individual citizens; and (5) other methods authorized by the central government. Many of these transactions take place at officially sanctioned cultural relics shops and auction enterprises; and the 2002 Law prohibits a cultural relic shop from running an auction and vice versa.

Under Article 58, the government may buy any cultural relic submitted to a mandatory inspection before sale pursuant to Article 56. During this mandatory inspection, under Article 56, the government is given a kind of right of first refusal, with the purchase price determined by the government representative. Pursuant to article 57, in the event of a sale to a private individual, a report is produced, effectively tracking the buyers and sellers of cultural objects. This new regulatory framework seems a very aggressive strategy, and one that, if implemented effectively, could positively impact the illicit trade in China. However, implementing this strategy may be difficult and subject to corruption.  And yet by recording who buys what, it may be possible not only to track the chain of title of specific cultural objects, but also to evaluate whether individuals are routinely buying and selling stolen, looted, or suspicious objects. What other nation does this routinely? Perhaps the Italian Carabinieri, but that may be it.

Many in the West have an immediate reaction to all things China. And I think that quote above does not really convey the reality of the Chinese art market. Prof. Paul Bator remarked in 1983 that China was the great under-researched area of the world when it comes to sources of heritage theft (he called it art theft). Despite s few reports, that is still the case. We can blame the Chinese for other problems perhaps, but the Chinese art market does not I think bear the collective guilt for the Fitzwilliam theft. Rather it seems to be a more homegrown set of thieves from East London.

  1. He Shuzhong, Protection of China’s Cultural Heritage, 5 J. Art, Antiquity & L., 19 (2000).
  2. J. David Murphy, Plunder and preservation : cultural property law and practice in the People’s Republic of China, (1995), http://www.bcin.ca/Interface/openbcin.cgi?submit=submit&Chinkey=204154 (last visited May 2, 2012).
  3. Andrew Jacobs, China Hunts for Art Treasures in U.S. Museums, The New York Times, December 17, 2009, http://www.nytimes.com/2009/12/17/world/asia/17china.html?_r=2&hp (last visited Dec 17, 2009).
  4. Peter Foster, China to study British Museum for looted artefacts, Telegraph.co.uk, October 19, 2009, http://www.telegraph.co.uk/news/worldnews/asia/china/6374959/China-to-study-British-Museum-for-looted-artefacts.html (last visited Oct 20, 2009).
Questions or Comments? Email me at derek.fincham@gmail.com

Cezanne Recovered in Serbia

Boy in the Red Vest, Cezanne

There are reports today that one of the works stolen from the Emil Buehrle Collection in Zurich has been recovered in Serbia. ARCA’s blog has a good rundown of the current press reports. The work was stolen in 2008 along with 3 others.

The BBC report notes:

Authorities have not named the painting, but local media have reported it is The Boy in the Red Vest, which was taken from Zurich’s Emil Buehrle Collection. Police said three people had been arrested in connection with the theft. It added an art expert was being flown in to confirm the authenticity of the 1888 painting, worth $109m (£68.3m).

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

Connecting Art and Drug Crime

LS Lowry’s The Viaduct, stolen in 2007

We can make at least one more connection between the drug trade and art theft. A number of stolen artworks have been recovered near Manchester. The investigation was primarily aimed at the sale of illegal narcotics, the paintings were ancillary to that investigation. The theft of the paintings in 2007 was a troubling example of a violent art theft:

A man posing as a postman knocked on the Aird family’s door in Cheadle Hulme. When Louise Aird, who was carrying the couple’s two-year-old daughter Sabrina in her arms, opened the door, she was confronted by Miller brandishing a 10-inch knife. Three other men followed him into the house. “They tied me up with a cable and had a knife in my back,” Aird, 46, said. “They said they would slit my throat. Then they said they would kill the baby if we moved, that’s what they kept saying. They took everything out of the bottom half of the house.”

The four men stole 14 pieces of art. In 2009 one of the thieves was jailed, while three remain at large. The two arrests in connection with this drug raid do not appear to have a connection to the theft itself. Rather the arrested men acquired the paintings through the black market. Though these works are well known and could not have been sold on the open market, these paintings do have value on the black market as leverage. The connections between other criminal activity and art theft are often discussed, but seldom shown in such sharp contrast as we see in this case. Interesting that the defendants thought the police were investigating them for the art, when it was a drug investigation instead that led to the recovery.
  1. Victim of LS Lowry paintings robbery relieved after thieves jailed, the Guardian, March 22, 2012, http://www.guardian.co.uk/artanddesign/2012/mar/22/ls-lowry-paintings-robbery (last visited Mar 22, 2012).
  2. LS Lowry Masterpieces Found In Anti-Drugs Raid In Liverpool, The Huffington Post,  http://www.huffingtonpost.co.uk/2012/03/21/ls-lowry-masterpieces-worth-17m-found-liverpool-anti-drugs-raid_n_1370727.html (last visited Mar 22, 2012).
Questions or Comments? Email me at derek.fincham@gmail.com

Footnotes

“Le Marché” 

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

Update on the Athens Theft

This Picasso was given to Greece in 1949, because the Greeks resisted the Nazis
The Ink Drawing by Caccia 

No recovery or arrests yet, but there has been a little new information to shed light on the recent theft from the Athens’ National Gallery. Police have said that one man entered the National Gallery through a small balcony door, after he had deliberately and repeatedly set off alarms the night before, which led to a guard disabling one of the alarms. There has been speculation that Greek austerity and budget cuts contributed to the theft, which seems overblown and a bit unfair to the Greeks. Whenever a security breach or theft takes place, the museum looks bad. And whether budget cuts and poorly paid security played a role remains to be seen.

Greek authorities have said that the theft was probably done to benefit a private collector. That seems at this point to be speculation, and is an attractive, if unlikely motive for the theft. There just aren’t that many real-life versions of Dr. Julius No.

But there is a good idea about what uses these stolen works may be put to:

A 20th Century landscape by Piet Mondrian

 Dick Ellis, director of Art Management Group in England, who set up the art theft division for Scotland Yard more than 20 years ago, said there’s a good chance they will be recovered and, if not, used as collateral to fund other criminal enterprises. “Government indemnity doesn’t cover theft. They [thieves] are looking for a ransom route that is not going to be forthcoming. We’ll have to see the caliber of the criminal,” he told SETimes. “It’s obviously an important Picasso, and it adds to its prominence that it was given by the artist himself,” said Ellis, who recovered in Serbia two Picassos stolen from a Swiss museum five years ago. 

When a theft like this takes place, security is front and center, and the Greeks are noting that security was robust at the museum:

Niki Katsantonis, a spokeswoman for the culture ministry, told SETimes that “The National Gallery, as well as all the other museums and archaeological sites, are equipped with modern security systems,” and pointed out that there have been thefts at many other museums around the world. She said the gallery will build a 46.5m-euro extension this year with EU funds, an addition that “won’t just improve the grounds, but it will fortify them as well”. Police spokesman Athanassios Kokkalakis said, “These were no amateurs. Their moves and operation together were very well calculated. With the publicity this heist has received, it’s unlikely these works will ever make their way into the black market.” 

 Robert Wittman noted, “You can’t judge art only on the dollar value, but what it means to civilisation. Your biggest agony is if it is destroyed or damaged. . . . About 99.99% of the time they are not stolen to order, but on the ability of the thieves to go in and get them. Most of the time they will take what’s easy to get and carry. . . . If they get caught in an armed robbery or something else, they can use it to negotiate.”

  1. Andy Dabilis, Greek investigators search for missing masterpiece, January 13, 2012, http://setimes.com/cocoon/setimes/xhtml/en_GB/features/setimes/features/2012/01/13/feature-03 (last visited Jan 18, 2012).
Questions or Comments? Email me at derek.fincham@gmail.com

Stolen Magritte Returned

Olympia by Rene Magritte, has been returned

In 2009 two armed thieves stormed the former home of Rene Magritte outside of Brussels. They held the three curators and two tourists at gunpoint while they stole the work.  Given the events yesterday at the Athens Museum, it is perhaps reminding ourselves why art thieves decide to steal. At the time I ran through some possible motives of stealing a work of art:

The first, is that a collector admires the piece, and hired a thief to take it for him. We can call this the Dr. No situation. This seems the least likely possibility, but the one that strikes a chord with the imagination. Writers in this subject frequently cite the Dr. No as being responsible for thefts, and I admit it makes for good Bond villains, but there has been no convincing evidence that thsi is why people are stealing rare objects. Another similar possibility  . . .  is that an unscrupulous dealer may have a similar piece for sale, and if he can establish some excitement around these kinds of pieces, the price for his similar work may go up. 

Second, the thief may not have known that the object was so rare as to make its subsequent sale difficult.

Third, the thief may simply be trying to kidnap the object. They could then [ensure] its safe return for a generous reward, or negotiate its return.

Finally, perhaps the market is doing such a poor job of regulating what is and is not legitimate, that it may not be all that difficult to sell this piece after all. This strikes me as the most troubling possibility, but also not very likely.

We can also add a fifth possibility, that organized criminals use these works as collateral in a kind of shadow version of the stock market.

In this case it seems the second possibility was exactly right, as now the work has been returned because the thieves were unable to find a buyer. In a report the Curator of the Magritte museum, Andre Garitte said the painting was returned after the thieves “understood they wouldn’t be able to sell it because it was too well-known,” he said. “It became an embarassment and they preferred to get rid of it. Luckily they didn’t destroy it.”

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

Art Theft from the Athens National Gallery

This Picasso was given to Greece in 1949, because the Greeks resisted the Nazis
The Ink Drawing by Caccia 

A 20th Century landscape by Piet Mondrian

Shortly before 5 am this morning in Athens thieves broke into the back of the gallery, forced open a balcony door and stole a painting by Picasso, and Mondirian painting, and a sketch by Guglielmo Caccia. The works were stripped from their frames, and might have been damaged. The museum guard heard an alarm, and saw a person running from the building. The thief dropped a painting, a landscape by Mondrian as he escaped. The thieves had distracted the guards all night by perhaps triggering alarms from outside the building, which prompted the guards to disable at least one of the alarms. Police say the theft took only seven minutes.

  1. Picasso stolen from Greek gallery, BBC, January 9, 2012, http://www.bbc.co.uk/news/entertainment-arts-16470459 (last visited Jan 9, 2012).
  2. Associated Press, Art thieves rob Picasso from Athens museum, http://www.cbsnews.com/8301-202_162-57355197/art-thieves-rob-picasso-from-athens-museum/ (last visited Jan 9, 2012).
  3. Picasso and Mondrian paintings stolen from Greece’s biggest state art museum, The Telegraph, January 9, 2012, http://www.telegraph.co.uk/culture/art/art-news/9002976/Picasso-and-Mondrian-paintings-stolen-from-Greeces-biggest-state-art-museum.html (last visited Jan 9, 2012).
  4. Greek national gallery robbed of Picasso, Mondrian, CBC, http://www.cbc.ca/news/arts/story/2012/01/09/greece-art-theft-picasso-mondrian.html (last visited Jan 9, 2012).
Questions or Comments? Email me at derek.fincham@gmail.com

France Seizes Painting Stolen in 1818

Christ Carrying the Cross, Nicolas Tournier

The owner of Weiss Gallery in London is in “complete shock” after officials from the French ministry of culture have refused to allow The Carrying of the Cross, by Nicolas Tournier to be taken from France back to England. The gallery purchased the painting at a Maastricht art fair last year for 400,000 Euros. The gallery took it to a small old master art fair in Paris called Paris Tableau, but France has now detained the work of art.

Mark Weiss, the owner of the gallery stated “I’ve been in communication with the director of the Toulouse museum since I acquired the painting in 2010, and at no stage has he ever stated that the picture was a stolen painting.” The work originally hung in a chapel in Toulouse, but during the French Revolution the work was confiscated and moved to a museum. It was then apparently stolen from a museum in 1818. It would be interesting to know more about what those conversations were like between Weiss and the Toulouse museum.

France has argued this is the rediscovery of a long-lost work, yet it was stolen nearly two centuries ago. Have there been persistent claims for its return? I’m not sure. It is difficult to envision the French have the legal right to seize the painting so long after its theft. They do have the de facto power perhaps to temporarily detain the work, and make life very difficult for the gallery owner. Any experts in the area of French law care to offer any opinions? The newspaper accounts have merely focused on the seizure, without diving into the merits.

  1. AFP: British gallery rejects France’s claim to painting, (2011) (last visited Nov 9, 2011).
Questions or Comments? Email me at derek.fincham@gmail.com

Art Cops: Overworked and Under-resourced

Over the weekend in the Baltimore Sun Tricia Bishop reports on the current state of heritage policing in the United States:

America is the largest consumer of artwork in the world, with a 40 percent share of the $200 billion global industry. It’s also the scene of nearly half of the illegal art trade estimated to be worth another $7 billion worldwide. 

Yet other countries pay far more attention to art fraud. Italy has several hundred detectives on its Carabinieri Art Squad, and Greece, France, Germany and Belgium all have national units working the detail. 

In contrast, the FBI’s Art Crime Team, co-founded by a Baltimore native whose father ran an antiques shop on Howard Street, is made up of one archaeologist and 13 agents, who work the beat on the side. And the Los Angeles Police Department’s Art Theft Detail consists of just one investigator, a man who is delaying retirement because he’s afraid the division will die if he leaves without a trained successor.

The piece looks at three of the main groups tasked with art crimes in the United States: The Art Crime Team, the Archival Recovery Team, and Don Hrycyk at the LAPD. As I said in the piece, these folks have an essential job, and given the fact these crimes are still relegated to the status of non-violent property crimes in many cases, they don’t rise to the level of illegal narcotics or terrorism or other priorities law enforcement must tackle. But there is a fundamental difference between property and historical objects and art, and more attention should be paid to them. America as a country might be thinking too much about owning and buying these objects, and not enough about acting as stewards.

  1. Tricia Bishop, Art investigators: Saving the country’s cultural heritage, one recovered work at a time, Baltimore Sun, October 23, 2011, http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-history-thieves-20111007,0,443863,full.story (last visited Oct 26, 2011).
Questions or Comments? Email me at derek.fincham@gmail.com