A Cultural Property Registry?

On Thursday Donn Zaretsky at the always-enjoyable art law blog continued his discussion of the fake Gaugin Faun statue. Specifically, he wondered what kind of international registry might have prevented this kind of fraud, and asked me how I would envision a registry. I have a few thoughts on the subject, but they’re still in an early stage.

I had originally intended to put discussions of a potential registry and some concrete reforms of the market which are needed in the thesis. It’s not in there though because I simply ran out of space, and I’ll have to save those ideas for some future work I suppose. I don’t have a definitive answer for how an international registry might be constructed. Ideally an international body such as UNESCO would step forwards and create one, however that is far too ambitious an undertaking for that organization given its current state of funding. The industry itself could choose to regulate itself more closely, but it gains more profit by not revealing information information. In the end, the art market needs a registry like MLB, the NFL and other sports leagues need a test for Human Growth Hormone. But neither is likely to arise soon.

It’s a difficult potential issue because there a number of serious obstacles to creating a registry. The Art Loss Register and other databases exist, but they aren’t the answer to the whole problem. The current market structure earns more money without a registry. Here’s how: if I have a painting and want to sell it I can take it to an auction house. Now I’m a lowly PhD student, and that’s certainly not a lucrative career choice. If someone were to purchase the painting from me directly they would have a great deal of bargaining power if they knew my relative financial position. The painting might be worth $20,000; however the purchaser may realize my financial position and negotiate the deal lower. Auctions take place anonymously and avoid this. In many if not most transactions, we are unaware who the buyer and seller are. For the fake Faun, the consignor was Mrs. Greenhalgh using her maiden name. Had the buyer known she was living in council housing, might they have been less inclined to purchase the object, or even have more cause to doubt its authenticity? I think so certainly.

A good recent article in the Florida Law Review proposes a torrens registration scheme for works of art. Bruce W. Burton, IN SEARCH OF JOHN CONSTABLE’S THE WHITE HORSE: A CASE STUDY IN TORTURED PROVENANCE AND PROPOSAL FOR A TORRENS-LIKE SYSTEM OF TITLE REGISTRATION FOR ARTWORK, 59 Fla. L. Rev. 531 (2007). The introduction lays out the main argument:

At least forty percent of valuable artwork circulating in the marketplace is either forged or misattributed. Apart from this significant problem of art authenticity, the chains of title showing current ownership of many genuine and properly attributed objects are defective. These defects are due to incompleteness of the historical records, innocent error, lapse of time, fraudulent manipulation, or theft. This Article explores the dual complexities of properly establishing a valuable art object’s correct provenance-that is to say, determining both the authenticity as well as the chain of legal ownership of the work. This Article also examines the six principal legal doctrines that human society has designed to resolve competing ownership claims and the significant moral shortcomings of each doctrine. Most significantly, this Article presents a proposal for a much-needed reform in the law of art provenance.
The proposed reform is modeled on the Torrens land-title registration system in effect in Australia, parts of the United Kingdom, and a handful of states in the United States. The reform would offer the following: (1) a legal system for conclusively registering both the ownership and authenticity of any valuable piece of artwork; (2) fundamental fairness to all parties claiming an interest in the artwork; (3) assured financial compensation to any innocent party whose claim to the artwork has been injured or lost by operation of the Torrens-like system; (4) permanent and visible public records of art ownership; and (5) enhanced market stability because of the certitude and transparency afforded to art consumers by such a title registration system.

Burton makes a good case, but it would rely on individual states to implement the system, creating a patchwork of coverage. That would be better than nothing I suppose. In the end buyers of art, and even authenticators get excited by the prospect of rediscovering “lost” art or works which have gone missing. It can happen in legitimate ways as evidenced by the trash-rescue earlier this year. However, such a system leaves open the possibility of forgers, and also creates havoc in the antiquities trade for source nations and sites. The best advantage of a registration system would not necessarily be that it prevents these kinds of fraudulent transactions today, but that it builds up a body of knowledge about an object’s provenance so as to prevent such mistakes in the future. As it stands now, we still aren’t certain how many more forgeries by Greenhalgh may have been sold.

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

Comparing Digital Images to Art Theft Databases

David Nishimura at Cronaca noted a piece from Discovery News which provided more details on the cell phone technology which can take a picture of a piece of art and then compare it quickly with an art theft database. I wrote about this new development back in March. The technology allows an investigator to take a digital photo of the object with a cell phone, which is then sent to a central server. The image analysis system then compares the picture with the user’s database. It identifies similar works based on shape, outline, color, or texture, and then returns a list of the top ten closest hists.

At Present, the systems works on paintings, carpets and coins; though they hope to extend the system to work on 3-dimensional objects soon.

Nishimura seems to be a fan of the idea:

Sounds like a pretty simple and practicable idea, patching together well-established technologies. Take a database of images of stolen artworks, and search it using other images and a pattern-matching application. You’ll end up with some false positives, of course, but as long as the matching algorithm is reasonably sophisticated, you should still have a useful tool for flagging possible problem paintings for further investigation.

I think that’s right, though the problem of course is which database to check. At present there are a number of different theft databases. The largest and most successful is the Art Loss Register. However that site is not accessible to the public at large. You have to pay for and request the ALR to conduct its own search of its data. Though this technology would seem to make that process easier, Julian Radcliffe, the chairman and most vocal proponent of the ALR says “None of the imag matching is good enough to replace the art historians we use.”

That may be true, but as I’ve argued before, the first company which figures out how to make a simple, universal and easy-to-use database will really stand out, and will also really help to legitimize the art and antiquities trade generally. Until such a database exists though, we will continue to see good faith purchasers buying stolen or illicitly excavated works leading to the classic art law dispute between an original owner and a good faith purchaser. In these cases both parties are relative innocents and the law can have a difficult time evaluating the respective claims.

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

A Magritte is Recovered

Magritte’s Les Reflets du Temps has been recovered. The work had been stolen from storage in 2006. The work may be worth up to £350,000. The work was discovered by a member of the public who checked it against the London Stolen Art Database. This is welcome news, and perhaps will give pause before planned cuts the the Art and Antiques unit take place.

Det Supt Vernon Rapley, head of the unit, said: “For anyone considering buying art, antiquities or cultural property the database is an invaluable resource to help buyers check that they aren’t being sold stolen items.

“I am really pleased that the database has enabled this Magritte to be found so that the victim can have it returned to them.”

Exactly right, but the website explicitly states that it should not be used for due diligence purposes. The problem with databases, is there are too many, and they are divided regionally. Ideally there would be one overarching database any prospective buyer could check.

There is no word either on who stole the work. Unfortunately that is often the case when stolen art like this is recovered. The thieves are long gone, and the authorities main priority (and perhaps rightly so) is the recovery of the work. This also makes it appear as if there are little or no penalties to be had for stealing works though.

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

Stolen Rockwell and Spielberg and Theft Databases

Steven Spielberg has discovered a stolen Norman Rockwell painting, Russian Schoolroom in his art collection. The work was listed on the FBI’s art crimes web site. There don’t seem to be any good images of this work on the web. This is a small thumbnail. In terms of the original theft, the FBI website states the following:

On June 25, 1973, an original Norman Rockwell painting, entitled Russian Schoolroom, was stolen during a late night burglary in Clayton, Missouri. The painting was part of a Norman Rockwell Exhibit sponsored by the Chicago office of the Circle Galleries, later known as Arts International Galleries. At the time of the theft, the Russian Schoolroom, oil on canvas, measured 16″ X 37″, and was presented in a 2′ x 4′ frame of dull gold-white molding. This painting may also be referred to as The Russian Classroom or Russian Schoolchildren.

Records for the Russian Schoolroom indicate that after the theft in 1973 and prior to 1988, the painting’s location was unknown. In October 1988 Russian Schoolroom was sold at auction in New Orleans, Louisiana. Records revealed that at that time, the painting was associated with Circle Galleries (Chicago) and the Danenburg Gallery (New York). Neither gallery exists today.

Recent information determined that the same Russian Schoolroom was allegedly advertised for sale at a Norman Rockwell Exhibit in New York, circa 1989.

In July 2004, upon receipt of the information above, the FBI’s newly formed Art Crime Team initiated an investigation to locate and recover the Russian Schoolroom.

It seems a member of Spielberg’s staff came across the site. The FBI was then notified. There is no indication that Spielberg had any knowledge of the work’s theft when he purchased it. Spielberg is a well-known collector of Rockwell. What this example does illustrate is a need for better and more comprehensive art databases. If collectors can check a work against one comprehensive database, then this kind of mistake will surely be avoided, and the incentive for stealing art will decrease dramatically.

The Art Loss Register is the most prominent of the stolen art databases. Here is a recent article on the work it does. It has been responsible for a number of high-profile recoveries. However, I am a bit skeptical because it is a closed database. It costs about $50 per search, and not everyone can search it. Julian Radcliffe, the ALR’s chairman has said in interviews in the past that the reason the database is not public is it would allow the thieves to know the status of a work they have stolen. That may be true, but I’m still a bit skeptical. If it became routine to post a picture of your painting on a free, easy-to-use website, I think the same goals would be furthered.

It seems a company may have designed a way to use simple camera phones to compare a work to a stolen art database:

Thanks to a new development from the Fraunhofer Institute for Production Systems and Design Technology IPK, the investigator can now simply take a photo of the art object with his cell phone and send it instantly to a central server. The researchers’ new image analysis system automatically compares this picture with the user’s database. The system identifies similar objects on the basis of visual features such as their shape, outline, color or texture, and returns a list of the top ten closest hits to the cell phone in a matter of seconds. If the picture is among the works in the database, the art detective can react immediately. “The system is remarkably easy to operate,” says Dr. Bertram Nickolay, head of the department for security systems. “Since it was built mostly from standard modules, it’s also a cost-effective solution.” Furthermore, the system is immune to interference factors such as a poor photograph of the work of art. Reflections caused by flash photography or by excessive brightness have no effect on the image analysis in the central server.

This could work, and it could work well. I imagine that the first company which figures out how to make a simple and easy database will earn a lot of money, and will do wonders for insuring the legitimacy of the art trade. My personal preference would be to have a free system similar to wikipedia, which allows anyone to use and access the site. Until there is a comprehensive database which ties together all of these various databases though, we will continue to see people unwittingly purchasing stolen works.

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

Church Thefts

In today’s New York Times, this piece details the theft of colonial art from Mexico’s rural churches. Apparently, theft from churches in Mexico’s colonial heartland near Mexico City has become widespread. According to the National Institute of Anthropology and History in Mexico, 1,000 colonial pieces have been stolen since 1999. In response, the Mexican government is attempting to register the nation’s sacred art. According to the Times piece, 600,000 items have been inventoried so far. The institute is also preparing its own Web site of stolen art, so dealers and collectors can no longer claim that there is no record of the theft.

Such a database is both a welcome change, and worrying at the same time. In theory, a database should put dealers of Mexican colonial art on notice that a certain set of objects may be tainted. However, there are a number of such websites now available. See the Art Loss Register for example. The more of these databases there are, the harder it will be for the law to realistically impose an obligation on buyers and sellers of art and antiquities. If each segment of the cultural property market has its own database, this would almost certainly lead to confusion and overlap. One unified website would be a much better system. A buyer or seller could easily check a single website t insure their piece is not stolen.

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