Two Ways of Policing Heritage

A red-figured krater withdrawn from auction at Christie's in Dec. 2014 after Christos Tsirogannis connected the image to David Swingler, who has been investigated by US Customs Authorities and was sentenced to prison in absentia in Italy
A red-figured krater withdrawn from auction at Christie’s in Dec. 2014 after Christos Tsirogannis connected the image to David Swingler, who has been investigated by US Customs Authorities and was sentenced to prison in absentia in Italy

Christie’s had an auction of antiquities on Dec. 11, and some of the objects up for auction were ‘matched’ with photographic archives seized from dealers and collectors who deal in illicit material. These matches have always left me a little uneasy. If an object is matched, it means it is most likely looted. But the auction houses have no good way to match these objects because these photo archives are closely held by law enforcement agencies and a group of researchers. There are claims that the auction houses could go directly to Greek or Italian officials and have these objects checked against these databases for free. As Christos Tsiogiannis answered when asked by Catherine Schofield Sezgin: “The auction houses, and the members of the international antiquities market in general, always have the opportunity to contact the Italian and Greek authorities directly, before the auctions. These authorities will check, for free, every single object for them.”  But it seems they do not do this. Objects are invariably withdrawn after a match, where they disappear back into collections in most cases, and we are left with little progress in stemming future looting and protection of sites. And so each new antiquities auction continues the cycle of public shaming and return. But the looting continues.

That was the core point of a paper I presented last year in a meeting of ISPAC and the United Nations office on Drugs and Crime in Courmayeur. Some of the papers have been collected and published by Stefano Manacorda and Arianna Visconti. I’ve posted my short paper “Two Ways of Policing Cultural Heritage” on SSRN. From the introduction:

The title of this paper is, of course, a play upon the title of Professor John Henry Merryman’s well-known essay which laid out the ways of conceptualizing cultural property law there are two ways to think about cultural objects. One as part of a national patrimony, and second as a piece of our collective cultural heritage. In a similar way there are two ways to envision jurisdiction of cultural heritage crime. Criminal law can of course apply to policing the individuals responsible for stealing, looting, selling and transporting illicit art and antiquities. Or, law enforcement resources can be used to secure the successful return of stolen art, and the protection of sites. The criminal law can regulate people; and it can also regulate things. In order to produce meaningful change in the disposition of art, it must do both effectively. Focusing on art at the expense of criminal deterrence for individuals is an incomplete strategy.
Fincham, Derek, Two Ways of Policing Cultural Heritage (December 10, 2013). Courmayeur Mont Blanc, Italy, edited by Stefano Manacorda, Arianna Visconti, Ed. ISPAC 2014 . Available at SSRN:http://ssrn.com/abstract=2536542

 

Auctions and Civil Disobedience (UPDATE)

The Christie’s Auction catalog with a bronze rabbit head

Earlier this week I was able to watch a screening on Earth Day of ‘Bidder 70’ a new documentary which examines the story of Tim DeChristopher. He was sentenced to two years in prison, and a $10,000 fine. His crime? He attended an oil and gas lease auction and bid on Utah land which was being leased for oil and gas exploration with no intent to buy the land (he didn’t have the money) or to drill on it. I’m not as interested in going through a review of the documentary itself. I thought overall its well worth taking a look at, but my biggest frustration with the story was it left out a lot of the details of the auction process, how he was able to bid and refuse to pay, and how his act of civil disobedience ended up being successful.

From what I gathered the Bush administration in their last weeks in office put opened up lots of land for oil and gas leases, and that DeChristopher successfully ruined these auctions. And then when the Obama administration took office the Department of the Interior later decided not to auction these parcels of land after all. The film does a great job of presenting DeChristopher’s story, and conveying his indignation at the ruination of what appears to be some pristine Utah wilderness.

But watching the documentary I was most struck by the connections between a couple of events that I’ve traced here before: the Bronze zodiac auctions in France from the Yves Saint-Laurent sale, and the sentencing of antiquities looters in Utah. Environmental and cultural heritage issues are inextricably linked, and the different priorities of prosecution and sentencing on display here were really striking.

If you aren’t familiar with the sad saga of the Chinese Zodiac heads, here’s a quick overview. Over 150 years ago the Summer Palace near Beijing was looted by British troops. Lots of art was burned, looted, destroyed, or lost. Some objects which had been taken were parts of a beautiful ornate fountain/clock mechanism which had the 12 Chinese zodiac animals. A handful of these still existing heads have been purchased by Chinese repatriation advocates on the open market. And two of these bronze figurines, the rabbit and the rat were acquired by Yves Saint Laurent. Well on his death many objects from his estate were set to go up for auction at Christie’s in Paris. But the looting of the Chinese Summer Palace is a notorious event in Chinese history, and the Chinese government lodged a number of protests at the sale. When the two heads were up for auction, the successful bid was nearly 32 million Euro. The winning bidder was Cao Mingchao, owner of a small auction house in China. After the auction he refused to pay the bid, exacting the same kind of civil disobedience that DeChristopher went to prison for. After the auction Mingchao stated “What I want to stress is that this money cannot be paid (…) I think any Chinese person would have stood up at that moment. It was just that the opportunity came to me. I was merely fulfilling my responsibilities.” Despite some hints at a French prosecution of the bidder, those never materialized and the heads as I understand it were never actually auctioned.

There have been a number of controversial sales of Precolumbian and native american sacred items in France in recent months. And it seems that despite some legal attempts to block sales, this kind of technically legal, but morally objectionable auction; which the current heritage law framework deems ok; will only be blocked if an auction house bends to public pressure or if there’s a bidder exercising civil disobedience.

Remember that in this part of the country the Four-Corners investigation uncovered a large network of illicit native american objects. That investigation led to 3 suicides and a number of citizens being indicted and later pleading guilty to heritage crimes. But no custodial sentences have been imposed. The sad takeaway is I think that you can loot native american sites, and the Federal government will have irregular investigations, but mess with the leasing of oil and gas, and you’ll feel the weight of the federal government.

Here’s the trailer for Bidder 70:
Bidder 70 – Trailer from Gage & Gage Productions on Vimeo.

UPDATE:

And now it looks like the rat and rabbit will be returned to China: http://bit.ly/ZpP67I

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

A Hollow Victory for Mexico in the Barbier-Mueller Sale

Lot 137, which did sell,
for 2,001,500 Euro

On Friday and Saturday in Paris Sotheby’s auctioned a number of allegedly Pre-Columbian objects from the Barbier-Mueller collection.

Nord Wennerstrom reports that many of the lots sold for less than the low estimate, and 79 of 151 lots failed to sell. His take: the auction ended as “inauspiciously as it began”. Sotheby’s lists its sale results here.

The auction generated considerable interest last week. In anticipation of the sale Mexican officials protested and noted: “Of the 130 objects advertised as being from Mexico, 51 are archaeological artifacts that are (Mexican) national property, and the rest are handicrafts”. In this case “handicrafts” is a very polite way of pointing out that some of the objects are fakes or forgeries. In this case the sale continued, but the considerable notoriety surrounding the sale certainly diminished the market value of these objects, and in many cases made these objects too toxic perhaps for some buyers.

French diplomats last week did not intervene in the sale noting that none of the objects had appeared on the Interpol database, or the “red list” published by the International Council of Museums.

Sotheby’s Paris on its website stated the collect was started in 1920 by Jose Mueller. His son-in-law Jean Paul Barbier-Mueller broadened the collection. Sotheby’s described Barbier-Mueller as “a great aesthete and man of culture”.

Here’s an extended quote from the overview given by Sotheby’s:

In 1908 and 1909 Josef Mueller acquired major works by Hodler and Cézanne in Paris. While initially focusing on Western masterpieces of universal appeal, he soon became attracted by important works of Pre-Columbian art, his first purchase being an Aztec ‘water goddess’ in Paris in 1920. His son-in-law Jean Paul Barbier-Mueller, a great aesthete and man of culture, brought this high standard of collecting to other fields, such as African Art, Oceanic Art and Cycladic Art. His dedicated focus has resulted in the well-deserved reputation for excellence that the collections have today. Mr. Barbier-Mueller and his wife Monique Barbier-Mueller (Josef Mueller’s daughter), who has pursued modern and contemporary art, have achieved one of the foremost collections of art in private hands, one defined by their sophisticated knowledge and refined eye.

Some of this collection had been in existence since the early part of the 20th century. But not all of it. In a case like this, Mexico and other nations of origin have a limited range of options here. Their best way to attack the sale of these objects is exactly what it did. Make a public protest over the sale, and enlist the power of the press to reduce the market value of these under-provenanced objects. We are unsure now what will happen to the objects which did not sell. Contrast this situation with what might have happened had this auction occurred in the United States.

Increasingly unprovenanced objects are being regulated by Federal prosecutors, at least in New York and St. Louis. We certainly don’t know if a forfeiture would have happened in this case, or indeed if that was even a consideration in the decision to sell these objects in Paris rather than New York. But it is yet another example of the complex web of legal rules and norms which apply to the antiquities trade.

  1. Mark Stevenson, Mexico demands Sotheby’s halt auction of artifacts, The Washington Post, March 23, 2013, http://www.washingtonpost.com/entertainment/mexico-demands-sothebys-halt-auction-of-artifacts/2013/03/21/e5d18316-9274-11e2-bdea-e32ad90da239_story.html (last visited Mar 25, 2013).
  2. Mike Boehm, Mexico trying to stop antiquities sale at Sotheby’s in Paris, Los Angeles Times, March 22, 2013, http://www.latimes.com/entertainment/arts/culture/la-et-cm-mexico-wants-to-stop-sothebys-precolumbian-art-auction-20130321,0,5085665.story?track=rss (last visited Mar 25, 2013).
Questions or Comments? Email me at derek.fincham@gmail.com

Can the Statute of Frauds Impart More Transparency into the Art Trade?

A recent ruling in the New York State court, Appellate Division, has caused quite a stir among folks who follow the art trade.  There has been some initial speculation among observers of the art trade that this ruling may cause the trade to meaningfully shift the way it does business and impart much-needed transparency into the sale of art. Unfortunately the shift is incremental only, and will not in itself change the way the art market does business. Larry Rothfield hopes the ruling “will give policymakers a reason to start thinking more carefully about how that market could and should be regulated in ways that do the most possible to prevent looting of archaeological sites.” Paul Barford similarly  thinks about what this might mean for auction houses and the “old argument that the collecting history has been lost can no longer be believed by those who want to shut their eyes to freshly ‘surfaced’ (from ‘underground’) material.” In reality though, the likelihood that this ruling will have much of an impact on the art trade or the antiquities trade generally remains remote. Here’s why.

The facts of the case are straightforward. A buyer, Albert Rabizadeh, refused to pay the purchase price for a work of art he won at auction, and because the Jenack auction house failed to comply with the Statute of Frauds, the appellate court in New York has held the contract to be unenforceable. The provision at issue is a New York state law known as the statute of frauds. the term stems from a jolly old legal principle which the English Parliament passed in 1677. The original purpose of the law was to prevent fraud from being given legal effect in certain important agreements. It encouraged contracting parties to reduce their bargain to a writing so as to prevent a 17th century jury from enforcing contracts that had never been made. This provision has now been largely done away with under English law, but survives in the U.S. under the Uniform Commercial Code.

Currently the legal safeguards known as the statute of frauds require a signed writing for certain kinds of contracts to be enforced (the sale of goods over $500, the sale of land, contracts that can’t be performed within a year, etc.). The contract at issue in the dispute between Rabizadeh and Jenack was over a silver and enamel box, a Russian work of art, which was bid for $460,000 including the buyers premium. It might have looked something like this.

New York’s state law provision requires that at the time of sale the nature of the property, the terms of sale, the name of the purchaser, and the name of the person on whose account the sale was made shall be entered in something called a sale book. N.Y. Gen. Oblig. Law § 5-701(a)(6)(2012). Both New York and California have enacted these kinds of provisions, and it should be noted these two states surely account for the bulk of the American art market and a substantial share of the world art trade as well. Any changes made to how auctions are conducted in these jurisdictions demands serious attention. General practice in the art trade has been to skirt by and assume that the anonymous number is enough to satisfy the requirement that the seller and buyer are named in writing, and this is the argument the Jenack auction house pressed unsuccessfully on appeal.

The New York court held that the consignor’s number (in this case 428) was not enough to satisfy the plain language of the statute. Now the question becomes, does this ruling require auction houses to reveal the identity of buyers and sellers? Yes, but only to each other. From my reading of the decision, only the auction house, the buyer and the seller would know who each other are. And even so, the only time that this requirement of transparency were to be enforced would be if a buyer refused to pay, as happened here, or if there were some other difficulty with the agreement. There may be other creative steps the auction house could take to ensure buyers who do not pay their winning bids can be removed from the auction process.

All of this would only incrementally shift the needle towards imparting the light of day into the art trade, which is anonymous and involves a labyrinthine set of relationships between all the parties involved. I have been a big advocate of more transparency in the trade, but I do not think this ruling by itself will accomplish much in that regard. At present it seems likely that the auction house, likely joined by others will attempt to appeal this case to New York’s highest court. And even if this ruling were to be upheld it seems likely that that the big auction houses would attempt to have the New York state legislature correct any errors they feel were made. Justice Skelos himself acknowledge this in the opinion:

To the extent that the requirement in General Obligations Law § 5-701(a)(6) that the memorandum contain the name of, rather than an assigned number for, the “person on whose account the sale was made” may be at odds with the general industry practice, and may be burdensome to consignors or auction houses or both, a change in the law to eliminate that requirement may be warranted. However, consideration of the propriety of that change is not for the courts, but rests with the Legislature.

So we will wait then for this dispute to reach a final result, and wait for any potential action by the legislators in Albany. Should more consideration be given to the role of the UCC and the art trade, this would give heritage advocates an opportunity to revisit the current practice of the auction art market, which would be a welcome change.

Finally a quick reply to Tom Flynn, who I’ve never known to have much good to say about lawyers. There’s nothing wrong with that of course, but in this case he badly misses the mark badly. He brandishes a quick indifference to the role of courts and makes the claim that this four-judge panel has dealt a blow to the New York art market and the “judges, largely ignorant of the nuances of the art trade” have done damage here by as he puts it: “sticking their oar in.” If one disagrees with this ruling, the real culprit is the New York state law, which was likely drafted to assist auction houses in using the courts when difficulties arise in an auction. The court merely applied the plain text of New York’s statute of frauds. If one were impolite enough to label anyone ignorant, it would hardly be these judges. If given the opportunity to thoroughly read the court’s straightforward opinion and word his thoughts more carefully one hopes Tom would see that what the New York court has done here is apply the law as it was given to them by the New York legislature.  It was the auction house itself which brought suit, attempting to enforce a bid. I can understand frustration with a result, but judges do not simply pick a tree and grab a rope. They apply the law as it is, to the facts as they are presented.

  1. Jenack Inc. v. Rabizadeh, 2012 NY Slip Op 6211 (2012).
Questions or Comments? Email me at derek.fincham@gmail.com

Guns, Degas, and Legal Disputes

A work purportedly by Degas, at the center of a legal dispute in Florida

Details of an odd art dispute are unfolding in Florida. A law firm is being sued by its client for failure to release this work, allegedly by Degas. All the red flags are up in this case, yet it wasn’t the auction house Sotheby’s which delayed the auction, but rather a dispute over legal fees and a $1 million retainer.

In August, a pleasantly cool month in Chile, Bonati was in Santiago, where he and McInnis boarded the chartered, nine-seat Cessna. The plane refueled in Ecuador and landed in Fort Lauderdale after the 4,000-mile flight.
As the men headed for the terminal, they drew suspicion because of what the law firm later called their “bizarre” conduct.
“Bonati carried the multi-million dollar painting in his arms as the pair made their way across the tarmac . . . while McInnis walked alongside with a gun holstered at his waist,” the firm said in a court filing. 

“Bonati was also carrying in excess of $10,000 in cash on his person, a sum which he did not declare to U.S. Customs as required by law.” 

Anyone taking more than $10,000 in currency into or out of the country must file a report with customs. 

Paintings and other original works of art also must be declared, though most are allowed to enter the United States duty-free. But with art theft a major international problem, U.S. Immigration and Customs Enforcement has stepped up efforts to ascertain the ownership of potentially valuable works. 

In January, the agency returned to France a Degas painting stolen from a museum there in 1973. It resurfaced last fall in the catalog of a Sotheby’s auction in New York. 

That episode “shows why we take an interest in these kind of cases and if it is stolen, returning it to its rightful owner,” says Danielle Bennett, an ICE spokeswoman.

  1. Susan Taylor Martin, Doctor’s legal battle reveals potential art trove, St. Petersburg Times, March 6, 2011, http://www.tampabay.com/news/courts/civil/doctors-legal-battle-reveals-potential-art-trove/1155579 (last visited Mar 8, 2011).
Questions or Comments? Email me at derek.fincham@gmail.com

Why Can’t the Public see the Medici Polaroids

The Euphronios Krater, which passed through Medici

I’ll offer my best guess, and invite any comments below.  First, a little background.  In 1995 authorities seized a number of looted antiquities and photographs from the freeport warehouse of Giacomo Medici.  The investigtion was chronicled in Peter Watson’s The Medici Conspiracy: The Illicit Journey of Looted Antiquities–From Italy’s Tomb Raiders to the World’s Greatest Museums. These photographs continue to play a role when antiquities are auctioned, particularly when auctioned objects correspond to these photographs.  They are released intermittently.  Francesco Rutelli discussed a few of them at the ARCA Conference in July of 2009

 David Gill calls these antiquities “toxic” and cautions dealers and auction houses to perform “ultra-rigorous due diligence searches” when these objects correspond to the Medici polaroids. Mark Durney has confirmed with the Art Loss Register that the Medici archive is registered on its database, but “it only has half of the total number of photographs that were said to have been seized from Medici’s warehouse”.  Mark then asks how many pictures (and more importantly how many discrete objects were photographed): “Were there in fact 4,000 photographs recovered from Medici’s warehouse?”  So we have a rough estimate of some 14,000 images, only some of which may have been included in the Art Loss Register.  Mark asks:

Why have the estimated 14,000 photographs seized from various Swiss warehouses not yet been made available to the public? Clearly, one of Interpol’s intentions when it opened its database to the public in August 2009 was to increase the public’s awareness of a fast-growing problem. Full and open disclosure of significant photographic evidence related to looting and the illicit antiquities trade, such as the Medici archive, would be in the interests of preserving cultural heritage. Only then will we be able to publicly examine the realities and challenges inherent in that goal.

So many of these photographs have not been publicly released. Some may not even have been given to the ALR.  Why not?  I’ll offer my best guess.  Because if there is a publicly available, search-able database of these Medici images, then there is a limited effect to the images.  They can only be used to limit the sale of objects which were actually looted and photographed.  By reserving and holding on to the images, the authorities now have a kind of  “penumbra” to impact the market for the antiquities which have been photographed, but also any object which might plausibly have passed through Medici’s warehouse. 

But this causes its own problems.  There are not really any negative consequences when an auction house puts an object up for sale and then is asked to withdraw it.  There may be some negative publicity, but surely this must be factored into the cost of auctioning these objects.  What a mess of a market. 

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

Auction Houses and the Sale of Heritage

“You have to know the dirty tricks, there are dirty tricks”.

So says Claude Pariset an antiques dealer from Champagne, discussing the art trade in the New York Times yesterday. 

A number of recent stories of this ilk continue to show why the auction house system of the sale of art and antiquities, with its anonymous sellers and buyers has had devastating consequences on our heritage.  As I’ve argued, these auction houses play an important role in the market, know exactly what they are doing, and yet the anonymity continues to shield their practices, and allow for the sale of looted and stolen pieces of heritage. 

First, an update on the wrongdoing at the Hôtel Drouot auction house in Paris.  Late last year French authorities had uncovered stolen artworks, and an art-trafficking network.  Now there are further reports of corruption, including faking bids, collusion to keep prices down, and theft as well. 

This comes as Bonham’s auction house tries to find some antiquities to sell in its auction today.  It has withdrawn a marble statue which was included amongst the notorious Medici polaroids. It has also withdrawn some Roman funerary sculptures that bore signs that they had recently been illegally excavated, pictured above.  An Anglo-Saxon stone was also removed from auction.

After concerned authorities and archaeologists contacted Bonham’s, these objects have all been withdrawn from auction.  But that does not mean they won’t be sold again privately, and does not mean that we know who the sellers were. 

  1. Scott Sayare, Chatter of Swindles and Scams at Auction House, The New York Times, April 26, 2010.
  2. Dalya Alberge, Roman sculptures withdrawn from auction amid fears they are stolen, The Guardian, April 27, 2010.
  3. Mike Pitts, Save our Anglo-Saxon stone!, The Guardian, April 24, 2010.
Questions or Comments? Email me at derek.fincham@gmail.com