Tag: Auction

Massive Restitution Auction


Carl Vogel of the New York Times discusses the planned 3-stage auction of a portion of a group of 170 old master paintings recently returned to the heirs of Jacques Goudstikker. Over at the ArtLaw blog, Donn Zaretsky has more.

Goudstikker was a prominent art dealer who quickly fled Amsterdam in 1940. His successors, Mrs. von Saher and her two daughters, all currently Connecticut residents, are planning an international exhibition of many of the works, including some which will not be part of the auction. Last year’s settlement with the Dutch government marked the culmination of an 8-year legal battle. The three auctions will be in April in New York, in July in London, and finally in November in Amsterdam. One work which could fetch between $3-5 million is this painting, Ferry Boat With Cattle on the River Vecht Near Nijenrode by Salomon van Ruysdael.

One of the heirs, Charlene von Saher said the traveling exhibition would reveal to the world “a historical injustice put right.” Certainly, Goudstikker lost his collection of art, and the restitution may be correcting a historical wrong. Make no mistake though, the 3 heirs of Goudstikker, their legal counsel, and Christie’s all stand to make a great deal of money. Money is at the heart of restitution, not righting historical wrongs. Consider the recent decision of a Dutch court to award Roelof van Holthe tot Echteen, a lawyer for the 3 heirs, a $10.4 million bank guarantee for his services in working for the restitution.

I notice that in the US, Lawrence Kaye represents von Saher and her two daughters in the dispute. Kaye, along with Howard Spiegler operate a prominent art restitution practice in New York. The two have become celebrities of sorts. I was contacted a couple of weeks ago by Kelly Crow of the Wall Street Journal regarding the reputation of the two in the legal and scholarly community. I’m afraid I was not able to offer her too much for her story. The two have published quite a bit, and have been part of some of the most important art and antiquities cases in recent years. If you want to initiate a restitution action, they are the lawyers to call.

However, I don’t really think that the law looks at individuals as champions of a cause. They are partisan representatives for their client. Their duty is to advocate zealously for their client. Sometimes this might put them on the right side, others it may put them in more objectionable territory. Perhaps it is just my view on this, but I do not consider them “heroes” as such. That said, I would jump at the chance to join their restitution practice after I complete my thesis.

I am of two minds about restitution litigation. On the one hand, I think we should certainly endorse a practice which remedies past historical injustices, and Nazi spoliation is certainly a grave injustice. However, restitution is not always a positive development. I discussed the Schiele litigation earlier this week, which is a very sad situation. Also, these works were displayed at museums in Amsterdam accessible to the public. Is there not a value in having the works displayed there? Also, what is the rationale for returning works from WWII, but not earlier conflicts. Why should the Louvre not be emptied of all the works looted by Napoleon?

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

Public Art Thefts (UPDATE)


Publicly displayed art is at risk as well it seems. In Austin, Texas thieves dismantled the base of this 10 foot Gibson guitar called “Sharp Axe”, and carted it off. I’m not sure how you don’t get spotted carrying a 10 foot fiberglass Gibson guitar. Were some Austin revellers having a bit too much fun on Sixth street perhaps? It’s one of a number of sculptures around Austin as part of a GuitarTown public art project. It was found later in a local restaurant. I guess if something looks good enough, somebody is always going to want to take it.

A similar situation occurred in New Zealand. Today it was reported that at the New Zealand Fringe Festival, artist Mat Hunkin had his public art stolen in broad daylight, the first day it was installed. It was the first day of a 5 day massive comic strip, so things don’t bode well for the other 4 days. He didn’t sound too depressed though, “Sure, it’s not Edvard Munch’s ‘The Scream’ or anything like that, but I’m kind-of stoked that someone liked it so much that they would nick it in broad daylight. Who knows? It might end up in Sotheby’s art auctions one day.” Indeed, perhaps it will. They’ll have to wait until the statute of limitations has expired and or they manage to scrounge up a good faith purchaser though. Curiously, for an up-and-coming artist, a theft may be a great way to raise your profile.

UPDATE:

It seems that this was not a theft at all. As Victor Engel commented, “‘Sharp Axe’ was never stolen. It apparently fell off its weak mount onto its face, breaking the neck of the guitar. Another Elephant Room customer and I moved it into the entryway to the Elephant Room at around midnight Sunday for safekeeping and notified the bartender.”

That story makes much more sense of course, but labelling something an art theft makes it much more newsworthy.

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

Federal Art Theft Charges


Stephen Kurkjian and Shelley Murphy have an article in yesterday’s Boston Globe about the arrest of Robert Mardirosian, an attorney charged with attempting to possess, conceal, store, and sell stolen art. The Boston Herald has a story as well.

The 72 year-old Madirosian had been entrusted with the paintings by his client the thief nearly 30 years ago. This work, Paul Cezanne’s Pitcher and Fruits was stolen from Michael Bakwin, back in 1978. He recovered the work a few years ago, and it was sold by Sotheby’s for close to $30 million.

In a strange series of events, the paintings were hauled all over the world in an attempt to sell them, from Massachusetts to Switzerland, London and Monaco. As the Boston Herald’s AP article details:

In 1988, Mardirosian moved the paintings to Monaco, thinking he might have a legal claim to ownership or a 10 percent ”finder’s fee,” according to a May 2006 affidavit from FBI Special Agent Geoffrey Kelly, also unsealed Tuesday.

Lloyd’s of London was contacted in 1999 by an unknown person about insuring the paintings before sale, the affidavit says, and discovered they were listed with the database Art Loss Register as having been stolen. It says Julian Radcliffe, chairman of Art Loss Register, determined that the paintings were being sold by a Panamanian corporation called Erie International Trading Company, later found to be registered to Mardirosian.

Radcliffe contacted Bakwin and brokered a deal with unnamed agents of Erie, who agreed to return the Cezanne in exchange for the other six paintings. Two months after retrieving the Cezanne, Bakwin auctioned it through Sotheby’s in London for $29.3 million.

As part of the contract, the owner of Erie agreed to disclose his identity in a sealed envelope. A British judge later ruled the contract void because Bakwin ”signed it under duress.” He ordered the envelope unsealed, revealing Erie’s owner as Robert Mardirosian, and ordered the lawyer to pay Bakwin $3 million.

It’s fascinating stuff, and reveals a number of things about the current state of the market. First, the shroud of secrecy surrounding transactions is not productive. Second, import controls are not working. It is just not possible to adequately inspect most of what gets shipped around the world. Finally, how does an attorney expect to get away with this kind of thing? It seems the final straw was the fact that Madirosian’s colleague, Paul Palandjian, got tired of having the stolen works in his own attic and went to the police.

This prosecution is sure to generate a great deal of attention. These works high value continues to fuel illegal activity. The only sure way to prevent it is to erect safeguards in the market place. On one level, its very easy to criticize Mardirosian’s behavior. However, how many of us would think twice about turning over a $30 million work to the police, no questions asked? I would like to think most of us would, but that kind of money must be extremely tempting.

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

No renvoi in Iran v. Berend (UPDATE)

The opinion in Iran v. Berend [2007] EWHC 132 (QB) has been released.

The dispute involved a fragment of an Achaemenid limestone relief from the city of Persepolis. This image, which I took from an organization called Cultural Heritage News, compares Berend’s limestone, with the site in Persepolis. It makes for pretty damning evidence. The Cultural Heritage News agency is operated out of Iran, and I’m not sure where they get their funding, and their articles on this dispute strike me as a bit one-sided. Nevertheless, they did provide a good background to the dispute.

Denyse Berend purchased the limestone fragment in 1974. As the opinion states, “It was sold to her through an agent at a New York auction in October 1974.” The object has been on display in Berend’s Paris apartment since the purchase. Iran brought suit against Berend when she tried to sell it at an auction at Christie’s London in 2005.

The dispute ultimately came down to which nation’s law should apply to the dispute, France or Iran. Under Iranian law, the object would be returned, but under French law, the 30 year statute of limitations period had elapsed, and Berend would have clear title. Two conflicting private international law principles were at play here. First, is the lex situs doctrine which holds that the law of the location of the object at the time of the transaction should apply. Under that rule, French law would apply.

Iran wanted Justice Eady to apply the rule of renvoi, which would have dictated that Iranian law would apply. The renvoi choice of law principle occurs whenever a court is called upon to interpret the law of another nation. It has been applied to wills and some family law, though never to movable objects.

No English court has applied renvoi to movables, and it seams Justice Eady was reluctant to do the same in this case. According to Wikipedia, a recent Australian High court decision applied the rule in Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54 (29 September 2005). In that case, the Australian High Court applied the rule in a tort case. The plaintiff injured herself in an apartment in China. The apartment was overseen by her husband’s employer, an Australian company. The court applied the law of Australia, because both parties to the suit were Australian. Applying the Australian court’s logic to this case, it doesn’t seem likely that the principle of renvoi would be applicable, and even in the Australian case, there seems to be a great deal of criticism of the decision.

Eady was understandably reluctant to go out on a limb and apply the principle in this case. As he said, “English law has held for many years, in order partly to achieve consistency and certainty, that where movble property is concerned title should be determined by the lex situs of the property at the time when the disputed title is said to have been acquired.”

I wonder if Iran may choose to appeal the decision. In any event, though the limestone relief seems to have clearly come from Persepolis, Iran has no legal right to the object under English law. On a side note, there may be damages stemming from the grant of the original injunction against Berend’s attempted auction of the object at Christies in London. One wonders why Iran did not pursue its claims in 1974, when the object was first sold. I wonder as well whether the 2005 auction had taken place in Christie’s New York, rather than London, if the more generous statute of limitations provision would have allowed for a much different result.

UPDATE:

Over at the Journal of Private International Law’s blog, conflictoflaws.net, Martin George has gone into some more detail on the choice of law implications at play in the decision. He rightly points out that an English court adopting a renvoi rule for movable property would have caused a lot of headaches. However, he misses the cultural policy implications: the limestone relief was almost certainly taken from Persepolis. The relief came from what is essentially the Persian Acropolis. In the event the ruling stands (which seems most likely) look for Iran to press for the return of the relief based on ethical principles. In any event, the potential sum the relief may bring at an auction seem quite diminished. I wonder if Berend and Iran may try to work out some kind of a settlement. It seems likely that quite a few potential purchasers have been scared away by the Iranian claims.

Postscript:

I have noticed a lot of folks are still interested in this case. For a much better and complex account of the decision you can download my case note published by the International Journal of Cultural Property here.

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

Buy a brushstroke, "save" a Turner


This watercolor by JMW Turner, “Blue Rigi” was sold at a Christie’s auction in June, 2006 for £5.8 million. Here is an article from the Guardian, discussing the sale at auction, which set a record for the highest price ever paid for a British watercolor. The buyer’s identity is, of course, a complete mystery. The work has been deemed of Waverley quality, and thus export of the work has been temporarily delayed to allow British institutions to raise enough funds to keep the work. The arts minister, David Lammy placed a temporary restriction on the work until July 22, but that delay has been extended until March 20. That may not be the final date though, dates have been extended in the past to allow for money to be raised. The arts minister should be very wary of extending the date too long though, as the private purchaser may decide to challenge the legality of the whole scheme as a violation of human rights. The law authorizing the ban was actually an emergency provision passed in 1939 on the eve of the Second World War, and was later adapted to allow UK institutions a chance to raise funds to buy the work. One consequence of this rather haphazard system is the reliance upon the ability of the interested parties to raise enough funds. That becomes increasingly difficult as the price for art increases. Also, if the seller of the work chooses, she can simply decide not to sell the work.

The only example I’m aware of the Waverley Criteria temporary export prohibition being challenged was in 1994 when the Getty tried to challenge repeated extensions to the ban on the export of the Three Graces which is currently jointly owned by the Tate and the National Gallery of Scotland.

This also draws strong parallels to the recent successful efforts to prevent the Gross Clinic from leaving Philadelphia. At least that work was publicly displayed. This Turner is privately owned, and not displayed to the public. How has the cultural heritage of the UK been damaged if a seldom-shown work is sold to a different individual in another country? I think that “saving” this work is a bit of a misnomer, especially considering two slightly different Rigi’s exist, one displayed in Australia, and another in the US National Gallery. If nothing else, the campaign to purchase this work is really ingenious. One wonders why it took so long, but in the last few days the Art Fund has just initiated a really creative fund-raising project. One can choose to “buy a brushstroke” for as little as five pounds, and the website gradually shows how much of the work has been “saved”. I suppose the market will decide. If you think the cultural patrimony of the UK will be forever tarnished by allowing the work to be owned by a mysterious foreign individual, you can donate to the effort. So far, £25,214 has been raised. Hopefully the seller will not choose to keep the painting if the funds are raised.

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

How Do Dealers Acquire Antiquities?


Bo Emerson of the Atlanta Journal Constitution has a nice article in yesterday’s edition tracking the efforts of Jasper Gaunt, curator for Emory’s Michael C. Carlos Museum, in his successful attempt to acquire this Hellenistic marble head of a goddess, dating from the 2nd or 1st century BC. The work sold at a Sotheby’s auction in New York for $486,400.

It’s a very interesting article, and highlights the way the insular antiquities-buying community works. One thing struck me about the article. Though dealers may, with the best of intentions, strive to acquire objects with a detailed provenance, thereby insuring the objects were not illicitly exported or excavated, you pay a premium for them. That is, if an upstart cultural institution is trying to expand its collection, and has only limited funds, it may be difficult to pay a higher sum for works which are provenanced. It would seem to pose a difficult moral dilemma. Should a curator risk buying an unprovenanced object if it means they might add to the prestige of their institution? I think that’s a very real temptation. Of course, working against that temptation is the increasing scrutiny leveled at cultural institutions who are accused of holding illicitly excavated, looted, or illicitly exported objects.

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

Iraq Challenges a German Auction


Iraqi authorities have challenged an auction of two Sumerian artifacts which took place on Tuesday. One item was a limestone statue of a Sumerian (similar to the one pictured here), which dates to 2500 BC. The other was a nail made of clay bearing an inscription which puts its age between 2097 – 2095 BC. Iraq’s culture ministry appealed to UNESCO to intervene, but there is not much the organization can do in this case, other than publicize the problem and force German authorities to take action. There isn’t much information available on Iraq’s claim, so it’s very difficult to gauge the strength of their claim. Perhaps more information will come to light, but at this point, the German authorities are claiming that domestic law does not allow them to take any action. If this had occurred in the US, federal prosecutors may have been able to bring a forfeiture claim, if they were convinced the object was indeed stolen or illicitly excavated. I am not sure if Germany has a similar legal mechanism.

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

Italy Reclaims Two Antiquities

ANSA is reporting that two Second Century AD Roman antiquities have been recovered by Italian authorities. One is this marble head of Dionysus, and the other is a headless statue. The head was stolen from the Villa Torlonia gallery in the 1980’s, and was recovered after it was discovered in a Christie’s in New York auction catalogue. This is yet another example of the aggressive diplomatic and legal strategy being employed by the Italians. It seems a high-profile recovery or repatriation comes every couple of days. Italy certainly stands as the model for source nations who want to combat illicit excavation or seek the return of objects taken in the past.

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

Venture Capitalists fuelling Nazi restitution claims?


Georgina Adam of the Art Newspaper had an article last week about some of the potential driving forces behind recent repatriation litigation. Pictured here is Gustav Klimt’s “Portrait of Adele Block-Bauer I” (1907), recently repatriated after binding arbitration found Maria Altmann the rightful of this and four other works.

The increasing number of Nazi repatriation claims, and the booming art market lead to the possibility that not all the parties involved are motivated by high-minded ideals. As Federal District Court Judge Jed Rakoff noted during his ruling dismissing a claim over a Picasso, “[art auctions are] all guided by their belief in and beauty…though one might suspect that this is just a fight about money”. In her piece Adam labels some of these opportunistic lawyers “Nazi bounty hunters,”as they are actively seeking war loot. She references Washington lawyer Willi Korte who has been approached by venture capitalists prepared invest $1 million in the hopes that it would lead to a successful restitution claim.

It seems some lawyers are working backwards. They consult art historians about what works might have been looted, and then search for heirs who may want to bring claims. Jost von Trott, a Berlin lawyer, who specializes in this type of research says to the Art Newspaper

It might be that while doing research in these matters, one of the historians [I work with] comes across a further name of another Jewish family who lost property during the Nazi period. If the researchers find another name in the archives, then they or we could contact them as well and see if we can help in recovering lost objects.

Initially, I don’t see anything wrong with the work von Trott describes here. It seems quite a valuable service. Consider though that these firms charge as much as 40% to 50% of the sale price of a work for a successful recovery, while there is no charge if the claim is unsuccessful. Other claims beside the recent Picasso dismissal have been criticized as opportunistic and quickly dismissed as well. A $1.8 billion class action suit was brought by the Association of Holocaust Victims for Restitution of Artwork and Masterpieces against Sotheby’s.

Though there are certainly clear cases where restitution is called for, some of these cases stretch the limits of the law, and are causing unnecessary and costly litigation for owners of these works. The idea of venture capitalists seeking out an attorney and urging him to pursue research on potential claimants strikes me a particularly unpleasant though, and strongly cuts against the whole nature of restitution claims.

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

$15.4 Million for a Hidden Rockwell

Norman Rockwell’s “Breaking Home Ties” sold at a Sotheby’s auction yesterday for $15.4 million. The work was rediscovered last March behind a false panel in a home in Sandgate Vermont. Art historians have long noticed discrepancies between the image which appeared on the cover of the Saturday Evening Post, and what was believed to have been the original, on temporary exhibition at the Norman Rockwell Museum in Stockbridge, Massachusetts. It appears that cartoonist Don Trachte Jr. bought the work for $900 in 1960.

It seems that the cartoonist may have forged the work, and hidden the original in his Vermont home to prevent his ex-wife from gaining the work in a messy divorce in 1973. His sons discovered the work last Spring after their father’s death.

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