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

HM Customs Arrest

“Certain export controls are put in place to protect our country’s cultural heritage”

-Customs Director of Operations Euan Stewart

I saw via the Museum Security Network that a British art dealer has been arrested in connection with the illegal export of paintings valued at $34 million. One of the works is this 17th century painting Portrait of an Artist by Michiel van Musscher.

My question is why? The government put a temporary export ban on the work in 2006 because it was of “outstanding aesthetic importance and of outstanding significance for the study of Dutch art and painting techniques.” But no funds were raised and an export license was granted. The work was then sold to the Prince of Liechtenstein Hans-Adam II. What’s the problem? The wire story doesn’t give any details, and it seems the customs spokesperson refused to comment further.

I think the arrest may reveal troubling shortcomings with UK export restrictions. The art dealer must have been attempting to defraud either the ultimate buyer or the Waverley system in one of two ways.

He may have lied about the size of the offer on the table, making it harder for domestic fund-raising of matching funds.

Or he could have stated there was a buyer when there really was none.

This is possible because there is no requirement that the buyers of Waverley-quality objects disclose their identity. The lack of provenance and the secrecy surrounding art transactions continues to cause problems. It’s a pity he tried to game the system, as the Waverley Criteria really are a model system. This kind of fraud must be thwarted for the system to work properly; and I would anticipate a new requirement into full disclosure to customs authorities will be the end result.

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

The Cultural Property Advisory Committee

The Museum Security Network mailing list today circulated a really fascinating blog entry by Gary Vikan from last month. Vikan was discussing a NY Times article on the Cultural Property Advisory Committee. It’s a State Department body which recommends whether the US should adopt import restrictions on certain classes of objects. It’s the way the US chose to implement the 1970 UNESCO Convention.

Here’s a link to the NY Times article, Is the US Protecting Foreign Artifacts? Don’t Ask. You can access it via the timesselect service, which is free to academics and students. `

Here’s a link to Gary Vikan’s post. Of particular interest are some of the comments after the post.

Here’s an excerpt of what Vikan had to say:

The work of CPAC, which was created in 1983 by legislation intended to give effect to ratification of the UNESCO Convention on cultural property (1970), is to make recommendations to the State Department on applications from foreign nations asking, in effect, that their export laws governing cultural property become our import laws. From its inception, the committee’s activities have been highly secretive; in recent years, its internal deliberations have become increasingly contentious, as the archaeologists’ voice has come to dominate the collectors and dealers on the committee.

The hot issue now is whether the State Department will accept, on CPAC’s recommendation, a sweeping ban on the import of Chinese art and artifacts predating 1911. (The often-repeated counterarguments are that the Chinese have yet to clean up their own art-dealing house and that the share of the Chinese trade is relatively small, and will simply go elsewhere.)

The points made by Kahn, and through him, by his many sources on and off the committee, including its present chair, Jay Kislak, are right on the mark. The archaeologists’ voice and values are disproportionately strong among the CPAC membership, and its activities are overly secretive and exclusionary.


Vikan’s perspective is very enlightening, as he served on the CPAC from 2000-2003, and resigned after the looting of the National Museum of Iraq. Both links are essential reading if you are interested in cultural policy or the protection of antiquities.

Much of this controversy centers around China. China may be one of the most important source nations for antiquities. Two aspects make it unique. First, as John Henry Merryman says “China, with its many centuries of high civilization and its vast area and large population, may be the richest source of cultural property of all.” Second, China has used some unique regulatory techniques, including a ratings system for antiquities and a state right of purchase, which might both prove useful if implemented properly. Unfortunately, China’s current legal framework does a poor job of preserving antiquities and their accompanying archaeological context, as antiquities may be the single most valuable commodity smuggled out of the country.



Without regard to the reasons given for the panel’s secrecy, from an academics perspective it is indeed frustrating that we can’t have a clearer picture of how the advisory committee reaches its decisions. However, all 11 requests for import restrictions have been granted. Whether that will continue for China and Cypress remains to be seen. The importance of the committee internationally should not be underestimated, as the US by most accounts is considered the largest importer of art and antiquities.

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

Modigliani in a toilet


This portrait of Rosalie Tobia by Modigliani was left in a staff bathroom close to a customs checkpoint in the Bergamo airport last week. Richard Owen of The Times has an article here.

The painting may be worth as much as $1.2 million. It was found wrapped in a sheet, packed in a box. Authorities have speculated that someone was trying to smuggle it out of the country. Italy’s Ministry of Culture would most likely have prevented the painting from leaving the country. Authorities also fear this may be part of a larger smuggling operation.

What seems most likely is a smuggler lost her nerve right before going through customs. Of course, the work has yet to be authenticated, so someone could have just forgotten a painting.

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

Mayor Street Drops Historic Status


Philadelphia Mayor John Street has withdrawn the nomination of The Gross Clinic for designation as a historic object. It seems the only way the work can remain in Philadelphia is for the matching process to take over. It’s not clear where the fund raising efforts are at now, but Lee Rosenbaum reports that they are more than halfway there based on her interview with the major gifts officer of the Philadelphia Museum.

The work, recognized as one of the greatest American paintings, has been sold for $68 million to the new Crystal Bridges museum in Bentonville Arkansas (a scale model is pictured here), which will share the work with the National Gallery. Trustees of Thomas Jefferson University voluntarily agreed to delay the sale so Philadelphians could come up with funds to keep the work in Philadelphia.

I am not terribly surprised that Mayor Street has declined to continue the Historic Designation procedure, as it amounts to a municipal export restriction. Many nations have export restrictions which prevent the export of works, but the US is the main exception. With the lone exception of some Native American artifacts covered under NAGPRA, generally, any work of art can be freely exported from the US. This is not the first time Philadelphia has acted to prevent the removal of a work of art. Donn Zaretsky pointed out to me that Philadelphia used the historic designation process to keep The Dream Garden in the city in 1998.

Efforts to prevent or delay the sale provide an interesting new way to think about export restrictions. Export restrictions are a reality for the art and antiquities market, but they are quite controversial. They generally involve underdeveloped source nations (such as Peru, Guatemala, or Nigeria) and wealthy market nations (like Japan, the US, or the UK). At issue in the source nation debate are inherent concerns about the less developed world, cultural appropriation, and the continued exploitation of the underdeveloped world. If Philadelphia had continued to prevent the sale, it would have sharply cut against the prevailing position of the US, which generally frowns on export restrictions.

From an intellectual standpoint, I’m disappointed the historic designation process has been abruptly halted. The Eakins debate strips away those concerns, as Philadelphia is on roughly the same footing as Bentonville. This allows us to focus in on the core issue, which asks, do certain works belong in a certain context? Might context be secondary to the interests of the University, which plans to use the funds to expand its campus. Also, might there be a greater value in allowing more of the public to view the work?

It’s not clear why exactly the mayor chose this moment to halt the process. Perhaps he did not want the process to get dragged through a lengthy court battle, or perhaps he wants the civic fund raising efforts to receive priority. One potential solution which has not been explored is for Philadelphia to buy a share of the work, which would let it display the work periodically. This would allow people to see the work in Philadelphia from time to time, while allowing a greater audience for the work. Some have estimated that as few as 500 people saw the work last year. The main disadvantage would be the risks inherent in transporting valuable works of art, however, the work will already be traveling anyway, between Arkansas and the National Gallery.

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

The "Gross Clinic" featured on NPR

Morning edition today features a story on Thomas Eakins’ “The Gross Clinic” and attempts by Philadelphia to prevent it from leaving the city. Trustees of Thomas Jefferson University have given the city and benefactors until December 26th to raise enough funds to keep the work in the city. The City has also chosen to invoke its Historic Preservation law to prevent the work from leaving the City. This is a fascinating example of a city choosing to exercise an export restriction, which normally only takes place at the national level.

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

More Thoughts on the Sale of the Gross Clinic


I have written a number of posts on the proposed sale of Thomas Eakins’ “The Gross Clinic” in recent weeks, but the dispute is a fascinating one, because it cuts to the heart of the importance of the connection between art and its location. Do works of art or antiquities inherently belong in a given location?

Eakins, pictured here, is recognized as one of America’s greatest artists. He was known for bringing a stark realism to his work, which could often be unflattering to his subjects. The work has been sold for $68 million to heirs to the Wal-Mart fortune for the new Crystal Bridges museum in Bentonville, Arkansas. Trustees of Thomas Jefferson University voluntarily agreed to delay the sale so community leaders in Philadelphia could come up with the funds to keep the work in the city. This is a voluntary version of the UK’s export restriction, which allow the UK government time to raise funds to keep a work at home before it is exported. Some have argued that as few as 500 visitors saw the work in Philadelphia last year. I wonder if debate surrounding the sale would be quite so adamant if the work was being sold to the Met, or the MFA in Boston, rather than what some may see as a new “Wal-Mart Museum”.

Efforts to prevent or delay the sale provides an interesting new way to think about export restrictions. Many nations use export restrictions to prevent the loss of important cultural works. The US is one of the few nations without such restrictions. Philadelphia’s mayor has nominated the work for historic status, which would effectively act as an export restriction at the municipal level. Export restrictions are a reality for the art and antiquities market, but they are quite controversial. They generally involve underdeveloped source nations (such as Peru, Guatemala, or Nigeria) and wealthy market nations (like Japan, the US, or the UK). At issue in the source nation debate are inherent concerns about the less developed world, cultural appropriation, and the continued exploitation of the underdeveloped world. If Philadelphia continues to prevent the sale, it would countervene the prevailing position of the US, which generally frowns on export restrictions.

The Eakins debate strips away those concerns, as Philadelphia is on roughly the same footing as Bentonville. This allows us to focus in on the core issue, which asks, do certain works belong in a certain context? Might context be secondary to the interests of the University, which plans to use the funds to expand its campus. Also, might there be a greater value in allowing more of the public to view the work? I think so, but one thing remains clear, I’m sure the painting has earned far more visitors in recent weeks because of the controversy.

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

Philadelphia’s Export Restrictions (UPDATED)

Thomas Eakins’ “The Gross Clinic” has been nominated for protected status by Philadelphia’s mayor. This may effectively mean the work will not be sold later this month as proposed. I’ve written about the proposed sale before here. Donn Zaretsky has posted a number of interesting developments as well.

Stephan Salisbury of the Philadelphia Enquirer reported yesterday that Philadelphia’s mayor has designated the work as a historic object, which would prevent the work from being sold, as proposed by the trustees of Thomas Jefferson University. The University had agreed to sell the work for $68 million to a new museum in Arkansas funded by heirs to the Wal-Mart fortune. The University voluntarily gave local institutions until December 26th to match the price and keep the work in Philadelphia. However, the city has stepped in to prevent removal.

This is an interesting turn of events, and is the only example I’m aware of a city preventing the export of a work of art. Many nations attempt to prevent the export of works of art, but I am aware of no individual cities preventing the removal of an important work. The US is among the few nations in the world which has no export restrictions on works, due in part to its status as the largest art importer in the World. It’s quite interesting to see an individual city make make similar claims to that of source nations such as Peru, Mexico or Egypt. The potential litigation in this case should be very interesting to watch unfold, if the trustees are unable to reach a satisfactory resolution with the city.

UPDATE:

Donn Zaretsky points out that this is not the first time Philadelphia has used historic designation to keep a work in the city: In 1998, “[in] the case of Dream Garden, a collaboration of Maxfield Parrish and Louis C. Tiffany whose sale ignited considerable public controversy, the Historical Commission acted after receiving a nomination request from then-Mayor Ed Rendell.” The Commonwealth Court’s decision on the case is available here.

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

Export Restrictions, The Waverley Criteria and Eakins’ "The Gross Clinic"


A recently attributed work by English landscape painter John Constable has been temporarily denied export under the UK’s Waverley Criteria. The work, “Flatford Lock from the Mill House” (~1814) which was only attributed to Constable in 2004, has been sold to a foreign buyer, whose identity is unknown. The UK has a limited export restriction scheme, which temporarily halts the export of a work if it falls under one of the three Waverley Criteria:

  1. Is it so closely connected with our history and national life that its departure would be a misfortune?
  2. Is it of outstanding aesthetic importance?
  3. Is it of outstanding significance for the study of some particular branch of art, learning or history?

If a work can fall under any one of these three categories, export will be temporarily restricted by the Department of Culture, Media and Sport (DCMS) so a UK buyer can raise enough money to keep the work in the UK. The export license for this work may be delayed until 11, May 2007. I am not sure who owns the work, or if it is even publicly displayed. It was part of an exhibition at the Tate Gallery from June – August of this year. The restriction begs the question though, if the work is not generally on display to the public, do UK residents get some kind of inherent benefit out of having the work in private hands?

Such is not the argument over the recent decision by Thomas Jefferson University in Philadelphia to sell Thomas Eakins’ “The Gross Clinic” (1875) for $68 million, pictured below. Of its own volition, the University has decided to delay the sale so that Philadelphia can attempt to raise enough money to keep the work in the area. For information on the fund-raising attempts, see Stephan Salisbury’s piece in the Philadelphia Inquirer. Donn Zaretsky’s Art Law Blog has a good analysis of the decision to sell here.

At the heart of both of these decisions, lies a question which often plagues cultural property. Do very beautiful and valuable works have a single true home, or should they be displayed anywhere? These works engender civic and national pride, and a city or nation is loathe to give them up without a fight. However, at least with respect to the Waverly Criteria, the UK’s position seems quite contradictory. How much of the British museum would have been left in its source nation if Waverley Criteria had been applied? The answer is not much. However, there is a good argument to be made that the Museum is taking good care of these objects, and millions of visitors get to view and experience them. There are not any easy answers to this question. Ultimately, though we may criticize the decision of Thomas Jefferson University to sell the work, it went about the sale in a responsible manner, in such a way that allows concerned parties to raise funds for the work to stay in Philadelphia.

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