Getty Secures Export License for "Modern Rome—Campo Vaccino"

JMW Turner “Modern Rome—Campo Vaccino”, soon on display at the Getty

This landscape by JMW Turner has been granted an export license from the UK Culture Ministry. The painting had been on display for the last thirty years at the National Galleries in Scotland, on loan from the Primrose family. For me, the work fit well in Edinburgh, echoing nicely that city’s neoclassical architecture. It was always one of my favorites, a reason to stop in to Scotland’s national gallery. Turner’s depictions of classical ruins and renaissance buildings echoed Edinburgh’s own neoclassical features. Now the work is on its way to Los Angeles.

Calton Hill, Edinburgh

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. This work was purchased for $44.9 million at an auction in Sotheby’s last year. Will there be calls to amend the limited export regime as more works of art leave? In the past the UK had been more willing to continue to delay export, and even to offer more funding to help domestic buyers match foreign prices and ensure works of art remain in the. But austerity may be changing that. As Mike Boehm speculates

But “Modern Rome” is coming, perhaps a sign that at a time of austerity in Great Britain, a domestic arts economy that’s far more reliant on government funding than in the United States could not muster the wherewithal to take the painting away from the privately and lavishly endowed Getty. In 2004, according to a BBC report, the British government anted up more than half the money to match the Getty’s bid for “Madonna of the Pinks,” tapping a fund from lottery receipts that’s earmarked for cultural purposes.

  1. Mike Boehm, Getty Museum’s $44.9-million purchase of J.M.W. Turner masterpiece is final as sale clears U.K. export hurdle, LA Times Culture Monster, February 3, 2011, http://latimesblogs.latimes.com/culturemonster/2011/02/getty-jmw-turner-masterpiece.html (last visited Feb 4, 2011).
Questions or Comments? Email me at derek.fincham@gmail.com

More On Deaccessioning

Donn Zaretsky responds to some lazy criticism by Christopher Knight of his deaccessioning arguments.  If you want to have a serious discussion on the merits of a policy, then you should probably avoid distorting the opposing viewpoint, provide some evidence for your position, or at least take the time to read your opponnents views.  In this case, painting Zaretsky with a broad “deregulation” brush, and revealing a real distaste for lawyers generally cuts against any broader point Knight may have had.  Though the latter probably isn’t a bad idea generally—lawyers are a special breed after all—cultural policy and museum management has too long ignored and shunned sound legal principles. 

That appears to be a real shame in this case as Zaretsky probably doesn’t disagree too much with Knight’s core philosophy on collections management.  It seems to me Zaretsky points out the flaws and inherent inconsistencies in the stated policy.  As he argues “what I see myself as having been doing during this debate is pointing out the inconsistencies in, the hypocrisy that is built into, the conventional art world view on deaccessioning (namely that it is perfectly fine when the proceeds are used to buy more art, but absolutely forbidden for all other purposes).”  That seems to me to be a very valuable argument, and an important role that few others have done. 

He goes on to discuss the prominent deaccession examples of recent years, including the National Academy to avoid closing its doors, or Universities want to sell works because of substantial drops in endowments, or Thomas Jefferson decides to sell its $68 million work because nobody visits it, or a universal museum attempts to shift gears because of a declining local economy.  Now we can challenge these stated views, and certainly should maintain healthy skepticism of these attempts to deaccession works.  However the current rules prevent and even preclude this kind of debate. 

As I’ve speculated before, one wonders if in this economic climate, we may have to think about adopting the approach much of the rest of the World uses for cultural management, which is an increased level of Government support and funding.  Much of the cultural management structures in the UK, such as the Waverley Export Process, were initiated in response to economic hard times, and the loss of art and world-heritage leaving the UK and heading elsewhere, namely to the US.  It might be worth remembering, that the Universal Museums in america were formed at the expense of other nations.  Though it may be pessimistic, I’m increasingly convinced that art follows money and influence.    

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

Wang on the Waverley System for Art Export in the UK

Vivian Wang has written an article “Whose Responsibility? The Waverley System, Past and Present“($) in the most recent issue of the International Journal of Cultural Property:

This article explores the history and present operation of the Waverley system, the United Kingdom’s art export policy established in 1952. A key component of the article is its attempt to illuminate the little-known story surrounding the birth of the system, which has been pieced together using treasury and Board of Trade papers held in the National Archives. The article then examines, both qualitatively and quantitatively, how responsibility for the system has evolved. The main pattern that emerges is the progressive detachment of the treasury: Although it spearheaded the formation of the Waverley system in 1952, today it is much more removed, in terms of administration and attitude, from the system.
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Another Deaccessioning Decision in Duluth

Donn Zaretsky has an interesting overview, with lots of links, to an emerging problem for the National Galleries of Scotland, which may have to find £50 million in the next four months to purchase Titian’s Diana & Actaeon.

It may have to do the same within the next four years for another one.

He concludes by arguing:

[T]o oppose the deal between Fisk University and Alice Walton’s Crystal Bridges Museum on “anti-deaccessioning” grounds just means that you would prefer that Fisk suffer whatever consequences follow from its inability to consummate the proposed sale (elimination of various athletic programs, faculty layoffs, etc.) than that the works at issue be relocated (and, in that case, for only half the time, and probably to a venue which would allow even more people to see them).

The difference in Scotland and the UK is the process is somewhat more regulated. If a work is slated for export outside of the UK, important “Waverley” level works are temporarily delayed so funds can be raised. Perhaps a similar idea could work in the United States, though that idea is anathema to the ethos of many American cultural institutions which are often eager to acquire works to build collections.

Another example is the city of Duluth, Minnesota which is considering selling this window featuring Princess Minnehaha, which is installed in the railroad depot in the city. The city is considering selling the window to help make up a $6.5 million budget gap. This window could fetch between $1-3 million at auction.

The window was commissioned by the State of Minnesota and was used in an 1893 Columbian Exposition in Chicago. A Duluth civic group bought the Tiffany window soon after the exhibition. City officials have tried to justify the sale, arguing it doesn’t have a strong Duluth connection, and that the city isn’t a museum. That may be true, but a window which has been in the city for well over a century must have begun to develop a kind of attachment to the city. I wonder what differences there might be between the city of Dulth’s potential decision to sell the window, and the Univeristy of Iowa’s potential decision to sell its Pollock.

I’d recommend to Duluth, that if it is considering selling the window, it give civic groups and interested parties an opportunity to raise funds to keep the window in Duluth (as the Waverley criteria accomplish in the UK), or try to work out a sharing agreement to allow the window to be viewed by its citizens. If so, then it seems like a good idea to allow the city to continue its day-to-day operations in exchange for auctioning off the window.

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

More on Dr. Julius No


A warm welcome to everyone who’s clicked through from Randy Kennedy’s excellent piece which appeared in yesterday’s New York Times. He managed to add some analysis and even novelty to a subject which often gets the same treatment whenever a high-profile art theft takes place.

I think he contrasts nicely the idea of an alluring art thief with the reality that “art is an exceedingly dumb thing to steal.” That certainly seems to be the conventional wisdom. But of course because “art museums are still relatively unguarded public spaces”, these thieves will continue to have the opportunity to take objects. The ultimate tragedy would be if we had to run a gauntlet of airport-like security checks to view works of art. However if these thefts continue, that may be a step certain institutions may decide to take. I particularly like the comments he elicited from Thomas McShane, the former FBI agent whose memoirs I reviewed here.

The reason myself and others like to speculate about a “Dr. No” when an extremely valuable and well-known work is stolen can be traced to the very first bond film. Dr. No was of course the unwanted son of a German missionary and a Chinese girl, and a member of the Special Executive for Counterintelligence, Terrorism, Revenge and Extortion (SPECTRE). The film makers, in a throw away moment, capitalized on the theft in 1961 of of this work by Goya, Portrait of the Duke of Wellington. Bond does a double-take when he reaches the island home of Dr. Julius No. He sees the painting and remarks “So that’s where that went”.

Hugh McLeave’s Rogues in the Gallery details the perhaps more bizarre reality. The real thief may have been a man named Kempton Bunton. He was a disabled British pensioner who confessed to committing the crime. Bunton was a retired bus driver. In 1961, Charles Wrightsman purchased the painting for £140,000. He wanted to take the work to the United States, but of course the UK’s limited export restriction applied, and money was raised to purchase the work and it was displayed at the National Gallery. At this time a great deal of press attention was paid to the work, and Bunton, upset at the amount of money he had to pay for his TV license, may have decided to break into the museum early in the morning and steal the work.

After chatting up the security guards, Bunton allegedly learned the electronic security system would be turned off early in the morning. He used tape and paper to insure the door and a window in the toilet would be unlocked, and made his way around back early in the morning and took the painting. He later said “I raced back to the lodgings. Taking the picture from behind the wardrobe, I stood it on the bed with the frame leaning against the wall and looked at it in triumph. Wellington returned my stare with cold contempt and I swear I saw his lips move, with the imaginary voice that said: ‘thou low-born wretch, I’ll break thee for this.’ And somehow I believed he would.”

Bunton seemed to be after some notoriety and fame. Letters were soon sent to newspapers, one asked for donations to charity to allow the poor to pay for TV licenses.

In 1965, four years after the theft, Burton reportedly returned the painting via a left luggage office at the Birmingham New Street Station. Soon after he went to the police and confessed to the crime. The police initially rejected him as a suspect, as they didn’t think a pudgy 61 year-old disabled man could have committed the crime. However charges were soon filed and the jury only convicted Bunton of the theft of the frame, which was not returned. Judge Aarvold explained to the jury that if they thought he meant to return the painting if a ransom bid failed, they must acquit him. If they felt he would keep it until he got the money, they would have to convict. The jury found Bunton not guilty of stealing the painting, but guilty of stealing the gilt frame, which was never returned. Bunton served only three months in prison.

The law was changed soon after as a direct result of this light sentence. A provision in the Theft Act 1968, sec. 11 makes it a crime to remove without authority any object displayed or kept for display to the public in a building to which the public have access. It does not require an intention to permanently deprive.

As for Bunton, there are some indications that he may have perhaps been innocent. In 1996 the National Gallery released an unsolicited and simple statement that he may have been innocent. What actually happened is still subject to some speculation.

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

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

Trouble Ahead for UK Museum Funding


Back in July, Martin Bailey wrote in the Art Newspaper that the National Gallery is “facing its most serious acquisition crisis for over 100 years, with the threat of losing pictures on loan worth around £200m.” Why the cause for alarm? A number of works currently on loan at the National Gallery will be going up for sale, and public funds are scarce. The works on the market include:

  • Rubens’ Apotheosis of King James I, a sketch for the Banqueting House in Whitehall just down the street from Trafalgar Square. It was created by Rubens around 1629-30 in preparation for Indigo Jones’ new building. It has been on display since 1981, and is owned by Viscount Hampden’s family trust.
  • Five works by Poussin, known as The Sacraments; pictured here is one of the five, The Eucharist. Originally there were seven paintings. One was lost to fire in the 19th century, while the other is on display in the National Gallery in Washington D.C. The remaining five belong to the Duke of Rutland.
  • Also, Titian’s Portrait of a Young Man is up for sale as well. The National Gellery offered “the after-tax equivalent of £55m” for the work two years ago, but Lord Halifax rejected the offer.

The sale of these important works is going to put pressure on the funding arrangement, which has been substantially cut in recent months to prepare for the London Olympics. The Heritage Lottery Fund set has previously set aside £80m for arts projects. This year that number was reduced to £40m, but in the next two years the number will be decreased to £20m. As Giles Waterfield’s editorial in the Art Newspaper makes clear,

When the Heritage Lottery Fund (HLF) was set up in 1994, the trustees’ prime priority was to update Britain’s museums. This certainly needed doing: since repairs made after World War II, remarkably little had been spent on the fabric of museums, or on new construction. Compared to France, Germany or the United States, the number and quality of new museum buildings were laughable.

This will all change to free up funds for the London Olympic bid. As Charlotte Higgins wrote in the Guardian recently “The lottery fund was due to lose an initial £143m to the Olympics, but in March a further £90m was taken”.

I’m not an art historian, and I don’t feel qualified to comment on whether these works warrant these sums, or if all of them are integral to the cultural heritage of the UK. It is a pity that arts funding has been sacrificed for the Olympic bid to this extent. The decision to sell these works will also continue to put pressure on the funding system, especially given the tremendous upswing in the art market. The UK export restrictions are a model, and one which cuts a great compromise between retention of art and an open market. Those works which rise to the Waverley Criteria are delayed export until domestic funding can be secured. That system though depends on the availability of funds. If arts funding is decreased in this manner, such efforts will become more difficult.


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

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