Christie’s – Illicit Cultural Property

Steinhardt, pretrial discovery, and 1000 antiquities

Image result for Guennol Stargazer — The Guennol Stargazer, an anatolian marble female idol of Kiliya type. Chalcolithic period, c. 3000-2200 BC. 9 in (22.9 cm) high.

Michael Steinhardt has been involved in over 1,000 antiquities transactions, and he is not eager to discuss the details of any of them. That’s my key takeaway from a recent Magistrate Judge’s order which may throw a good deal of daylight on many of those 1,000 transactions through pre-trial discovery. The suit involves the Republic of Turkey, represented by Herrick, Feinstein LLP, in the ongoing lawsuit between the Republic of Turkey, Christies, and Steinhardt involving the Guennol Stargazer. That could have big implications for future potential repatriation suits involving material which passed through Steinhardt and dealers he was associated with. If he has been involved in 1,000 antiquities transactions, we could be looking at a large amount of new information coming to light. It may also lead to more actions by the Manhattan District Attorney‘s office like the one earlier this year.

First, a few observations about Mr. Steinhardt. He is a billionaire. He was one of the first hedge fund managers. He has generously funded many cultural exchanges, including the Jewish Birthright movement which pays for Jews to return to Israel. He also has a gallery named after him at the Metropolitan Museum of Art in New York, and serves on Christie’s advisory board. He has also been subject to many repatriation and forfeiture lawsuits, two notable ones including an ancient Greek gold Phiale from Sicily, and an Etruscan tomb fragment.

His dispute with Turkey involves a small sculpture which dates to the third millennium BCE, and was sold for a reported $14.5 million at Christie’s Auction House in New York on April 28, 2017. Soon after the Republic of Turkey brought suit against the auction house and the consignor, Michael Steinhardt.

At the time the ministry of Culture of Turkey published a full-page letter in the New York Times demanding repatriation of objects which have been illegally removed from that country.

Image result for turkey full page new york times letter — An Open Letter from the Turkish Ministry of Culture which ran in the New York Times in 2017, featuring the Guennol Stargazer.

Turkey brought suit in advance of the contemplated sale on April 27, 2017. Turkey sought to block any potential sale, and was denied that request. However District Judge Nathan did agree to an accession by Christie’s which would delay for 60 days the receipt of any funds by the winning bidder, and to retain possession of the object. Soon after Turkey amended its complaint on May 26, 2017 re-asserting claims that the Figure had been removed from Turkey at some point prior to 1966 in violation of Turkey’s National Patrimony Law. In the complaint, the lead attorney Lawrence Kaye argued that Turkey has had since as far back as 1906 national ownership of all undiscovered antiquities in Turkey. The only known published provenance for the Figure from Christies was the following:

Alastair Bradley and Edith Martin, New York, acquired 1966 or prior; thence by descent. with the Merrin Gallery, New York, acquired from the above, 1993. Acquired by the current owner from the above, 16 August 1993.

That current owner was Michael Steinhardt. Which brings us to the recent ruling by Magistrate Judge Aaron. The parties at this point, Christie’s and Steinhardt on one side; and Turkey on the other, are presently engaged in the pretrial discovery process. This involves Turkey asking for as much information as possible about how Steinhardt acquired his antiquities. What was his diligence before every acquisition? What if any concerns were raised? Steinhardt is justifiably reticent to hand over all of that information. As Magistrate Judge Aaron summarizes in his decision, Turkey “argues that Steinhardt’s ‘habits and practices’ with respect to antiquities transactions even after his 1993 acquisition of the Idol are relevant.” But the ultimate discovery was limited to “Steinhardt’s antiquities transactions up to and including December 31, 2006”, which was limited in two important ways. First, any transactions by Steinhardt in Anatolian antiquities; and also any antiquities transactions by Steinhardt which involved John J. Klejman. Klejman was according to Thomas Hoving, one of his favorite “dealer-smugglers“. Klejman had also handled the series of objects known as the Lydian Hoard, which was sold to the Metropolitan Museum of Art in 1966, and which was returned to Turkey in 1993.

The pre-trial discovery process in America can be a long carefully argued process with each party arguing about how much or little information should be conveyed to the other parties in a lawsuit. Though Mr. Steinhardt has demonstrated a willingness to aggressively litigate to defend his possession or in this case sale proceeds of antiquities, he has not always been successful. At the very least this recent ruling highlights just how much information may be discoverable, how many transactions he was engaged in, and raises an important point moving forward. If this material is not transmitted back to nations of origin, or if a nation of origin cannot be ascertained, what Museum would want this collection of objects with incomplete histories? Wouldn’t we have a much more interesting story to tell about the Guennol Stargazer if we know which tomb it came from? David Gill has speculated that the Guennol Stargazer may have been found with a similar Stargazer which has been acquired by Shelby White.

Republic of Turkey v. Christie’s Inc., No. 1:17-cv-03086 (AJN) (SDA), 2018 BL 170526 (S.D.N.Y. May 14, 2018), available at https://scholar.google.com/scholar_case?case=14654938921966793717&hl=en&lr=lang_en&as_sdt=6,44&as_vis=1&oi=scholaralrt

Suzan Mazur, Klejman or Hecht?–Who Sold the Guennol Stargazer to Tennis’s Alastair Martin?, Huffington Post (Sept. 19, 2017), https://www.huffingtonpost.com/entry/klejman-or-hecht-who-sold-the-guennol-stargazer-to_us_59c03f89e4b082fd4205b935.
Smuggled Anatolian idol sold in US, Hürriyet Daily News, http://www.hurriyetdailynews.com/smuggled-anatolian-idol-sold-in-us–112576.
Sam Hardy, The antiquity of the Guennol Stargazer – legal, looted, fake?, conflict antiquities (Mar. 0, 2018), https://conflictantiquities.wordpress.com/2018/03/09/turkey-guennol-stargazer-legal-looted-fake/.

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

Gold Hand Sculpture Stolen from Christie’s

Auction houses are often in the news for the fantastic sums their works achieve, or for protesting they didn’t know this or that work was looted or stolen. It’s not often they are the victims of theft. This work by Turner prize-winner Douglas Gordon has been stolen from Christie’s auction house. There are fears it is likely going to be melted down for its scrap value. Given the work is solid gold, that scrap value is considerable, likely £250,000. Apparently Christie’s was not forthcoming about details of the theft to the artist, who was also the sculpture’s owner:

He said Christie’s only told him about the disappearance of the sculpture after he had spoken about the theft elsewhere. Gordon, who owns the work, said: “It is like someone borrowing your car, and then you finding out from a neighbour that it has been crashed,” he said. “It looks like I am the last person in the chain to know.” Gordon said he had first heard of the theft second-hand, from a curator, last week; a Christie’s representative contacted him on the morning of 29 November, 16 days after the crime was reported to the police. Scotland Yard confirmed it was “investigating the alleged theft of a piece of artwork from a secure warehouse in the King Street area of Westminster. The incident was first reported to police on 12 November”. A Christies’s spokesman said: “This matter is under investigation and we are in contact with all parties involved. We cannot comment further.” A source at the auction house said Gordon’s gallery had been informed right away, and that a Christie’s representative had attempted to contact the artist on 28 November. The theft from Christie’s storage facility – which claims on its website “world-class security, management and expertise” – is likely to cause significant reputational damage for the auction house. A spokesman declined to comment on arrangements at the storage facility, citing the need to keep security measures confidential. A source said: “Given the sheer volume of works of art that come in, this as an extraordinarily rare thing to happen.”

There are no reported details about the theft from the storage facility.

Charlote Higgins, Turner prize-winner’s work stolen from Christie’s, http://www.guardian.co.uk/artanddesign/2012/nov/29/turner-sculpture-stolen-christies (last visited Nov 29, 2012).

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

More Reactions to the "Medici Dossier"

Kimberley Alderman starts a discussion on whether Italy should release all the images in the “Medici Dossier”.

Christie’s is being criticized for leaving on the auction block three items which have been alleged by archaeologists and an Italian prosecutor to have originated from the famous and illicit antiquities trader, Giacomo Medici. Italy, however, has not submitted a formal request for repatriation of the objects to the U.S. government or even a title claim to Christie’s.

She offers some strong comments from attorney William G. Pearlstein:

What the Italians are doing is outrageous. They are deliberately withholding the Medici files from the public, allowing hot pieces to remain in circulation and then playing up every seizure for maximum publicity value. They continue to play the role of victim when actually they have became cynical predators on American institutions that want nothing more than to do the right thing.

David Gill responds with his typical pointed questions about diligence for buyers, Christies, and collecting histories. I think many good points are made here, and we need to have an open conversation about what role the market and auction houses can or should play in this trade. Damage is done, demand remains high, and the current rules aren’t preventing destruction or producing an honest market. I’ve argued that auction houses need to be held to a higher standerd, because they act as heritage market makers, and the fact that an object comes up for auction means something, and is an important event in the history of an objects such that increased liability should attach when these objects are found to be lost or stolen.

David Gill, Christie’s, the Medici Dossier and William G. Pearlstein Looting matters (2010), http://lootingmatters.blogspot.com/2010/06/christies-medici-dossier-and-william-g.html (last visited Jun 7, 2010).
Kimberley Alderman, Is Italy “Asking For It” By Refusing to Release the Medici Photographs? Three items at Christie’s raise questions « The Cultural Property and Archaeology Law Blog, http://culturalpropertylaw.wordpress.com/2010/06/06/is-italy-asking-for-it-by-refusing-to-release-the-medici-photographs-three-items-at-christies-raise-questions/ (last visited Jun 7, 2010).

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

Sotheby’s Refuses to Disclose Executive Bonuses

Sotheby’s auction house is refusing to disclose to government regulators how much its executives receive in bonuses. They defend the refusal by noting that if Christie’s (which as a private corporation does not have to disclose the same information) were to learn the bonuses, they could lure away these executives. Any follower of the art trade will hardly be surprised by the hesitancy to disclose this information, but Jeremy Telman at the Contracts Prof blog outlines pokes three holes in Sotheby’s argument:

1. Sotheby’s and Christie’s are undoubtedly at the top of the heap in the art dealing industry. Based on my circle of acquaintances, which includes many unemployed or underemployed artists, art curators and art experts, it seems likely to me that Sotheby’s and Christie’s benefit from being in a buyer’s market when it comes to hiring executives. If both companies under-compensated their executives, where would those executives go? And if they left, so what? Couldn’t Sotheby’s and Christie’s easily find highly competent replacements who would work on paint fumes just for the honor of getting those great auction houses on their resumes?
2. But even if I’m wrong about that, if Christie’s were really interested in luring executives away from Sotheby’s, couldn’t they just ask the executives about what sort of compensation package it would take to motivate them to move? Is there a number one rule of Sotheby’s Club that you don’t talk about Sotheby’s Club?
3. In any case, didn’t Sotheby’s waive its right to whine about the hassles of disclosure when it went public?

Daniel Wakin, Sotheby’s Keeps Its Executive Bonus Plan Under Wraps – ArtsBeat Blog – NYTimes.com.

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

"Christies takes disputed earrings off auction block"

From today’s Christian Science Monitor:

The gold neo-Assyrian earrings were claimed by Iraq but awaiting the highest bidder Monday in New York. Just days before the sale of ancient art and antiquities, however, Christie’s took the jewelry, believed to be from the treasure of Nimrud, off the auction block.

Christie’s says it is cooperating with an investigation into whether the earrings were in fact stolen from Iraq.

“When Christie’s learned that there might be an issue with the provenance of the earrings they withdrew the lot from the sale,” says Sung-Hee Park, a spokeswoman for the auction house in New York. “The lot is still with Christie’s in New York, but we are cooperating in the investigation.”

As of Wednesday night, when a Monitor story detailed an Iraqi petition to stop the sale, the earrings were still part of the Dec. 9 auction. On Thursday morning, the auction house website said Lot 215 – a pair of neo-Assyrian earrings believed to be between 9,000 to 10,000 years old – had been withdrawn.

US officials say they have been involved for at least several weeks in trying to prevent the earrings from being sold after they were alerted that the ancient jewelry might have been part of the treasures of Nimrud, one of Iraq’s greatest archaeological finds.

“This is an issue we have been aware of for quite some time,” says Adam Ereli, spokesman for the US Embassy in Baghdad.

The Christie’s spokeswoman said she did not know why they were publicly withdrawn from sale only Thursday.

The treasures of Nimrud are considered one of the most important finds of the last century – the hundreds of pieces of gold jewelry, bowls, and ornaments compare in lavishness to the jewelry from King Tut’s tomb. A prominent Iraqi archaeologist, who photographed the hundreds of pieces excavated from the ancient Assyrian capital in 1989, says the earrings are unique.

“I’m sure it is from the collection. I’ve been there during the excavations, I know the pieces,” says Donny George, former director of the Iraq museum and now a professor at Long Island’s Stony Brook University.

The interesting issue now is whether there’s going to be enough evidence or a fruitful investigation. Who consigned the earrings to Christie’s? Removing the earrings from auction is great, and Christie’s should be commended, however that is just the first step. Iraq protested the sale earlier, but this earlier CSM article may have helped prod Christie’s along.

Are we able to investigate back up the stream of commerce to discover who stole or looted these earrings? There are very strong import restrictions in place to prevent these objects from being imported into the US. The difficulty is the efficacy of those restrictions, given the massive amount of objects which flood America’s ports.

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

"Iraq bids to stop Christie’s sale of ancient earrings"

It is imperative, given the current state of regulation of the antiquities trade, for nations of origin to document their existing collections. Unfortunately they are not always willing or able to do that.

From the Christian Science Monitor:

Baghdad – They were earrings that literally could have been worn by a queen. The neo-Assyrian jewelry, 9,000 to 10,000 years old, is Lot 215 in an auction of ancient art and antiquities to be held at Christie’s in New York next week. They are expected to fetch up to $65,000.

But Iraqi authorities say they might have belonged to the treasures of Nimrud, excavated by an Iraqi team in 1989, just after the devastating Iran-Iraq War. They have been publicly exhibited only twice – the second time for just one day under the US coalition authorities.

“I am 100 percent sure they are from the same tombs from Nimrud,” says Donny George, the former director of the Iraq Museum and now a professor of archaeology at Stony Brook University in New York. “Nothing of this nature has been excavated from it before – I witnessed the excavation. I would say it is 100 percent from there.”

Iraqi authorities have petitioned to stop the sale. “We’re hoping to get them back,” says one official.

The auction listing says the elaborate gold hoops were acquired from their previous owner before 1969. As of Tuesday evening, the auction house said they had not been withdrawn from sale. On Wednesday, they were still listed on Christie’s website, which refers potential buyers to a German archaeological text “for a similar pair from a royal tomb at Nimrud.” A UNESCO convention enacted in 1970 made it more difficult to trade in illegal antiquities.

The difficulty here is the amount of evidence Iraqi officials can muster to show the objects were once in an Iraqi state collection. These objects might be 10,000 years old. Where did they come from? Can something like this really be purchased in ‘good faith’? Indications are that the objects came from the excavation of Nimrud by Iraqi archaeologists.

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

Christie’s Halts two Russian lots

Christie’s International has removed two lots from their Nov. 29th auction of Russian books and manuscripts. John Varoli has an account at Bloomberg, and Reuters has a story as well. In total, 41 Russian army documents were removed, most once belonging to Marshall Georgi Zhukov. It seems “a cultural watchdog agency said they were stolen.” Varoli speculates that:

Prices for Russian art, books, manuscripts and historical memorabilia have risen rapidly since 2000, and this has been accompanied by an increase in thefts from Russian museums and archives. In August 2006, the Hermitage disclosed that 226 Russian works of art had been stolen by staff over the previous decade.

Will any charges ensue? Someone made up a provenance for these objects somewhere between their theft in Moscow and consignment to Christie’s. I’d imagine it wasn’t the final consignor though, these letters probably passed through a few hands first, and were “laundered”. Perhaps not enough to justify their sale, but probably enough to preclude criminal charges or an investigation.

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

Export Problems

Martin Bailey of the Art Newspaper has an excellent story on the apparent export-bungling by Christie’s and UK authorities of this £3m Rubens masterpiece. The Hunt of Meleager and Atalanta was granted a temporary export permit for 5 days to allow it to be displayed in New York. The work sold in London on December 2005 for £3,144,000 to an anonymous New York buyer. It was then re-exported after the sale.

In a statement to the Art Newspaper Christie’s said:

Our policy is to adhere strictly to all applicable laws and standard processes for the international transport of works of art. In the exceptional case of The Hunt of Meleager and Atalanta, a human error led to the accidental shipping of the picture to a client without completion of the appropriate export licensing process. Christie’s regrets the error and are co-operating fully on this matter with all relevant authorities to rectify this situation.

Some error. One would think a work of this magnitude would be double checked. Christie’s is subject to criminal penalties, and the New York buyer must be upset as well. Incredibly the Export Reviewing Committee flew to New York to examine the work and has deemed it of Waverley quality. A fundraising effort may now begin.

It’s uncertain whether the funds can be raised (as there are other works which need to be matched) or even if the New York buyer would consider selling the work. If she does not, the work will have certainly lost value, and I’d anticipate Christie’s would be subject to a civil suit brought by the buyer. Though the work cannot be recovered because the US does not enforce the UK export restrictions, it will not be able to be sold or even travel to Europe in all likelihood. Both Christie’s and HMS Customs have come out looking

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

Persepolis Fragment on Sale

This Persepolis relief fragment owned by Denyse Berend will be up for sale at a Christie’s auction on October 25th. Iran temporarily blocked the last auction in an unsuccessful bid to reclaim the fragment. You can read about the case and my reaction to the High court decision by clicking on the label below.

All indications are that Iran will not bid on the fragment. I wonder if there was any attempt by Iran to work out a compromise with Mme. Berend?

I’m reminded of a 2004 article by Professor James Nafziger (A Blueprint for Avoiding and Resolving Cultural Heritage Disputes, 9 Art, Antiquity and Law 3 (2004)). In it he points out that cultural heritage disputes are adversarial. In this case, both parties have solid, and perhaps legitimate arguments but only one side will retain the tablet. He discusses the parable of the two sisters, each of whom wants one orange:

How should it be allocated? One solution would be to award the orange to the sister with the greater ‘rights’ to the orange. That is the strictly adversarial approach that often characterizes the formal resolution of cultural property disputes today. A second solution would be to award half of the orange to each of the sisters, an appealing compromise until it becomes apparent that one sister wants the orange only to eat its pulp whereas the other wants only the orange peel for cooking. Thus, although compromises may often be preferable to either/or solutions, they typically fail to take contending interests, as opposed to stated positions, into account. A third, better informed allocation of the disputed orange would be to encourage the sisters to express their respective interests in the orange and then to work out a mutually productive, more-than-zero-sum solution to a dispute.

Professor Nafziger and the International Law Association have proposed a more collaborative process which has a great deal of merit I think. In this case, Mme. Berend wants to sell the tablet without admitting any wrongdoing, and Iran wants the tablet returned, and perhaps a vindication that its cultural heritage has been taken. Surely there is a middle ground here? In any event the auction will be quite interesting, and I wonder if Iran’s legal challenge will have an impact on the purchase price. It could open any cultural institutions to an ethical claim for repatriation or it more likely cemented the purchaser’s title which is now beyond legal challenge.
(Hat tip to Chuck Jones for alerting me to the auction).

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