Category: Culture

Categories: Art, Culture, News – Posted on

Chasing Myanmar

By MICHAEL MCCULLOUGH          March 21, 2013

The Global Art Market in 2012

I suppose I started to notice it about eight years ago, when art fairs became the major source of income for most new galleries. Before that, collectors were content to visit individual galleries and attend shows based upon the strength of the artists and artwork on view; to a certain extent, they still are. The art fairs, however, offer a broad range of works in a single event which caters more to those who want to “find” works to buy than to those who want to be “shown” them. As a result, the major fairs have become somewhat of a status symbol for galleries to be taken “seriously” by this new breed of buyers, reminiscent of a trend several years ago where artists needed to have a presence on Google in order to sell their art. All of these are the organizing forces of a nascent global market in artwork, where information and public events provide fodder for market participants to adopt certain palates, follow major trends and purchase artwork.

TEFAF, the world’s leading art fair, opened last Friday and held a symposium to review the global art market during 2012. As TEFAF is the first major fair of the season, it’s quite clever of them to assume the wise-old-man role, and I suspect these market reviews will be a regular event at their fairs. In conjunction with this, they released a report, “TEFAF Art Market Report 2013” analyzing trends in the global art market last year. To no surprise, the worldwide art market contracted by 7% in 2012, as the Chinese market beat a retreat and shrank by almost a quarter.

Regrettably, the report suffers two major flaws from which it cannot recover completely. The first is a miscalculation of the estimated size of the private market, an understandable but fundamental error. The second is a failure to detail the volume of sales in each market sector, which is nothing short of lame.

For instance, they say the public market (auctions) makes up 48% of the total market and the private market (galleries) comprises 52%. To people who actually work in the market, these numbers are off wildly; most people estimate the private market to be at least twice as large as the public market. If my estimates are correct – and we know the global public market was at $27 billion last year- then the global private market was around $54 billion, thus the total global market should have been somewhere around $81 billion. To put this in perspective, if the art market were a separate economy then it would rank seventy-fifth, edging out Croatia and just behind Myanmar (which we should still call Burma).

To the second point, the “art market” is broadly defined as fine art, decorative art and antiques; this is a fair-enough definition, but the report fails to compile statistics on the volume of sales within each category. No reason is given for this omission, leaving the reader to wonder whether their statistics on the private market were so unreliable, or unobtainable, that a finger-in–the-air estimate of the total market size was the best they could do, with further examination relegated to the public market. In consequence of this, the report is only useful in its analysis of the trends within each sector of the market but not for comparisons among them.

One interesting observation is that 83% of the total public market by value is centered in three countries: the US, China and the UK. The US regained its leading position with 33% (up 4% on 2011), China dropped to 25% (down 5%), and the UK remained third with 23% (up 1%). What this really means is that the global public market is focused essentially in four cities: New York, Beijing, Hong Kong and London. This is equally true for the private market, as a brief review of the top galleries bears out.

We should also take note of the continuing strength of the high end of the market. In 2012, 66% of the fine art sales on the public market were of works priced over $250,000, even though these works made up only 2% of sales and 4% of total number of artists whose works sold at auction during the year. The top end of the private market, represented by gallery sales over $13 million, reported an average increase in turnover of 55%. The report mentions anecdotal evidence from gallerists that the market continues to be extremely selective, with some galleries reporting greater difficulty in selling low and medium priced works, while other galleries reported strong sales in higher priced works. Indeed, inquire of any artist or gallerist working in the middle market about its strength and you’ll likely get either a blank stare or a burst of profanity; the middle of the art market is sort of like being on the median of a major highway- everything is passing you by and you can’t seem to get off.

Perhaps feeling a need to explain these recent trends, the report suggests that investors are “minimizing risk by purchasing works by the best-known artists at the top end of the market.” This often-proposed explanation of the art market is, at best, incomplete: wealthy collectors choose art based upon their own tastes and preference with little concern for what market watchers think; investors are just following along for the ride. After all, the art market is still a collector’s market, although maybe just barely.

The report also focuses on China, which supposedly became the world’s principal market for art and antiques in 2011 with sales soaring to 30% of the global total. I recall having a good laugh over these statistics when I was in China last year, as sales figures from Chinese auctioneers were never considered by anyone in the market to be vaguely reliable. In fact, Beijing issued regulations last year to clean up an auction industry fraught with fakes, smuggling and non-payments, all of which tend to have an inflationary effect upon the market. TEFAF says the Chinese art market dropped by 24% to $13.8 billion in 2012, mainly due to a slowdown in economic growth in China and a reduced amount of high quality, high priced works coming onto the market. It also seems that many art funds and other speculative investors in China pulled away from the market last year.

Of course, the most under-reported story in the art market last year was Sotheby’s joint venture in China, which gives the company the ability to have its own auction sales on the mainland. Last September, Sotheby’s invested $1.2 million and took an 80 percent stake in a joint venture with state-owned Beijing Gehua Cultural Development Group. The joint venture, called Sotheby’s (Beijing) Auction Co. Ltd., can take advantage of the new Tianzhu Free Trade Zone in Beijing being developed by Gehua. Sotheby’s will likely gain a sharp market advantage in coming years due to the joint venture, thus propelling the company into a dominant spot in both the auction and private sales markets in China. Other perks of the joint venture are Sotheby’s ability to hold sales outside the free-trade zone and, more importantly, their ability to partner with other entities outside of China.

In fact, on Tuesday of this week TEFAF announced that it has entered into “exclusive discussions” with Sotheby’s to explore the possibilities of developing a high-end art fair for China in 2014, via Sotheby’s joint venture. “TEFAF Beijing 2014,” they say, would represent a ground-breaking collaboration between a leading international auction house and the world’s most important art and antiques fair.

Come to think of it, what is the Chinese word for market share?

Categories: Art, News – Posted on

A Crisis of Confidence?

By MICHAEL MCCULLOUGH          March 14, 2013

The Economics of Authenticating Art

In April of last year, I attended a gathering where Michael Straus of the Andy Warhol Foundation spoke about the foundation’s then recent decision to stop authenticating works by Andy Warhol. It was interesting to hear him say that part of the reason for the decision was the foundation’s confidence that the market for Warhol’s works “can take care of itself.” What this means in practical terms is that galleries, auctioneers and collectors can make their own determinations about the authenticity of a Warhol work when they decide to sell or purchase. Having worked in the art market for a decade and a half now, I’m sure the art market can take care of itself but the problem is that it really doesn’t want to.

Galleries and auctioneers rely on art experts’ opinions because it gives them cover to offer guarantees of authenticity to buyers. Only the criminally insane- though there are some out there buying- would spend millions of dollars on an artwork without some form of an authenticity guarantee. Therefore, if I own an artwork and want to sell it, I must have “the” expert on the artist bless the work; if they don’t then my artwork is practically worthless. To make this more complicated, sometimes the expert doesn’t say “no,” but determines that there is not enough information to form an opinion, which amounts to a vote of no confidence. And if I want to dispute the expert’s “no” or “no confidence” determination then I have to find not one, but two recognized experts who are willing to state that the work is authentic. The net result is that it’s difficult- if not impossible- to contest “the” expert’s authenticity determination. Moreover, sometimes it is the case that there is only one recognized expert for a certain artist’s works. The response of lately by collectors has been to bring lawsuits against “the” experts under various legal notions such as negligence, fraud, antitrust violations, and any other theory their lawyers can conceive. In consequence of this, many of the authentication boards for major artists will no longer authenticate works because too many of them have been sued by unhappy collectors.

What do we say when we want to cast doubt on a long-standing tradition that has ceased to produce useful results? We begin by saying tentatively, “Well, it’s not exactly written in stone.” Authenticity opinions were never meant to be written in stone in the first place, so it was quite predictable that the art market would be faced with this problem. Prices for highly coveted artworks have increased exponentially while the ability of collectors to authenticate those works has remained stagnant. What has changed is that collectors are no longer satisfied with their options.

Several years ago, I saw a cartoon of two art experts looking at a painting by the artist Peter Doig. One expert said to the other, “I’m certain it’s a Doig.” The other expert responds, “I think it might be a cat.” While a great deal of experience and thought might go into an expert’s decision about authenticity, in the end it’s only an opinion along the lines of “Doig” or “cat” at that particular moment in time. That is to say, the experts are offering galleries and auctioneers the ability to avow authenticity subject to future reconsideration while the economic demands placed upon collectors call for assurances on a longer continuum.

As a general tenet of life, people are created equal but opinions are not. When you receive an opinion from a doctor about your health you expect you can rely on it; we know that not every aspect of human body is if fully understood, but we at least expect to be given the variables and a prognosis of the disease. On the other hand, when a stockbroker tells you that a certain stock is a “must buy,” then you should run for the hills because you know something else is coming your way. Experience in life teaches us whom we should trust.

It shouldn’t be a surprise to anyone that art experts’ opinions are rarely meant to be final decisions. Scholarship, they will tell you, changes based upon new information discovered from time to time about artists’ techniques and materials, and new works are found that add to their knowledge of the artist’s oeuvre. An opinion about an artwork is more akin to who will win the World Series this year- it will be a choice of one of two, but no more can be said for certain at this time.

Unavoidably, this is exactly how the courts have treated art experts’ opinions; without exception, all of the lawsuits against art experts over the past several years have failed miserably. Judges and juries are in no position to gauge the authenticity of artwork, so they rely on the trusted experts. The Warhol Foundation was sued twice in the last few years and won both cases, though that smile on the courthouse steps probably cost them several million dollars. This means, practically speaking, that the authenticity quandary is more of an economic problem than a crisis of confidence. A much better reading of the situation would gather that art experts are not being compensated at an appropriate level. Think about other trades where people offer their opinions as a paid service: the credit rating agencies in the financial industry have been subject to vicious lawsuits- and probably justifiably- over the past few years and we don’t see any of those companies getting out of the credit rating business. Why? Because credit rating agencies make barge-loads of money every day- paid for by the very financial institutions that rely on their opinions to sell their wares. Does this sound familiar? If art experts were compensated in the same manner as credit rating agencies then the art market would not be having this debate. The Warhol Foundation should charge five percent of the fair market value of a work in order to authenticate it, and I suspect they would willingly withstand the judicial activism directed at them by any disgruntled patrons.

Just today, I came across another cartoon of two art experts standing in a gallery looking at a taxidermy wolf covered in a sheepskin pelt and enclosed in a glass case. One expert said to the other, “I’m afraid it’s a fake.” How very appropriate.

Categories: Art, News – Posted on

Our Greatness and Our Goods

A Letter from Deep in the Heart

By MICHAEL MCCULLOUGH          March 8, 2013

Most budget debates in the US Congress are conducted on an astonishingly low cultural and intellectual level, marked by both parties claiming clairvoyance over what is required to “make the country a better place for our children and grandchildren.” While their concern for posterity is always welcomed, it leaves one wondering how the yet-to-be born where regarded when the deficits were created in the first place. After all, it takes a great deal of time and effort to create monumental budget deficits such as the ones we now maintain. And in a sign of utter incompetence, the Congress and President have now left the budget debate in the hands of the bureaucracy to work out; we’re all anxious to see if they can come up with a more rational method of balancing the Federal checkbook.

So far, being “sequestered” – in the budgetary sense- doesn’t seem so bad, but think how strange it is to see budget cuts that don’t disproportionately affect the National Endowment of the Art. Since the Reagan administration, the NEA has been the whipping boy for federal budget excess, as if the small amounts given to arts funding in the US has any real impact on the budget. Perhaps this is because the government’s role in defining and regulating cultural life in America has always been controversial: Americans, true to their pilgrim roots, detest government interference in most areas of life but especially the cultural and spiritual.

Every now and then, usually while visiting Europe, I realize how late the US was to funding the arts. In the early 20th century, philanthropists were creating great museums and libraries, while the Federal government’s support of the arts was- at best- sporadic, leaving many people in the arts community in despair and disbelief. In 1955, President Eisenhower tried and failed to introduce legislation to establish a Federal Advisory Council of the Art, a modest proposal by any means. President Kennedy revived the effort in 1961 but the bill was defeated in the House 166-173 on a roll-call vote (some things never change). Kennedy tried and failed again in 1963, but Congress passed a bill in 1964 creating an advisory body, the National Council on the Art, in the Executive Office of the President. In consequence of this, President Johnson was the first president in American history to employ a Special Assistant to the President on the Arts, a full-time arts adviser. This led to Johnson’s 1965 State of the Union demand for a foundation on the arts and to Johnson’s submission of a bill to Congress in March of 1965 to establish arts funding. Johnson decided that the bill was a “must” piece of legislation and firmly pressed the Speaker of the House to push the Committee of Rules to move the bill to a vote.

The result was the National Foundation on the Arts and Humanities Act of 1965. Johnson stated at the signing ceremony that the legislation was meant to address the curious fact that “[s]omehow, the scientists always seem to get the penthouse, while the arts and humanities get the basement.” The Arts and Humanities Act established the NEA and provided for 26 citizens to serve as advisers to the agency as members of the National Council on the Arts. Members are appointed by the President and approved by the Senate for six-year, staggered terms. Congress has since reduced the membership of the Council to 18 members of the National Council on the Arts and an additional six members of Congress to serve in an ex officio, non-voting capacity for two-year terms.

It’s difficult to know Johnson’s personal thoughts on the arts, and I’m not well familiar with the various biographies of Johnson. It’s unlikely that Johnson’s early upbringing had a major influence on his understanding of the arts; it’s easy to miss Johnson City, Texas while driving on Highway 289 between Fredericksburg and Austin. It seems more likely that Johnson’s approach to the arts was an intellectual one, and this plays out in many of his speeches and writings on the topic.

The legislative files on the Arts and Humanities Act of 1965 in the LBJ Presidential Library- a collection well worth the visit- offer some useful hints at Johnson’s views on the arts. The Johnson White House wrote dozens of letter to supporters of the legislation, but very few written by Johnson himself- most of the correspondence was delegated to aides. However, in a letter from Johnson to one of the early and keen supporters of the Arts and Humanities Act, Dr. Barnaby Keeney of Brown University, he wrote “[w]e have indeed begun to worry as much about our greatness as about our goods- – and it is a giant step forward.”

This theme of intellectual progress is reflected again in Johnson’s first annual report to Congress on the NEA, delivered in January 1967. The first draft of the address, written by aides, was a dry, bureaucratic checklist of accomplishments. To the final draft, Johnson added “[i]n countless American towns there live thousands of obscure and unknown talents. What this bill does is to bring active support to this great national asset.” He continued on to say, “[t]hose who believe that the quality and appreciation of art is one test of a nation’s maturity and greatness will take heart from this report.”

In another letter, written to the actor Kirk Douglas in thanks for his support of the Arts and Humanities Act, Johnson wrote, “[n]o society is truly great unless the arts are alive. If we can help nourish them, then history will favorably record our times.” As memories of the Vietnam War- and of Arthur Miller- fade, perhaps it’s time to reflect more upon Johnson’s support for the arts and his great legacy of arts funding.

Categories: cultural property, Culture, News – Posted on

Presidential Power

From Drones to Drachms

By MICHAEL MCCULLOUGH          February 21, 2013

From the very beginning of the Republic, Americans have always delighted in accusing their chief magistrate of having totalitarian ambitions. With extraordinary derisiveness, every president since FDR has been called a “fascist” for alleged subversion of the Constitution, even in spite of Orwell’s observation in 1944 that misuse of the term had rendered it “almost entirely meaningless.” As a result, it’s become tradition for the wielder of power to be regarded with mistrust, a disagreeable but perhaps necessary state of affairs for both president and people.

Thus, it’s not surprising to find two very different demonstrations of the royal prerogative being criticized in recent weeks: the use of drones to kill Americans and import restrictions on ancient coins. And if you are remotely interested in the proper functioning of our government, each example provides ample opportunity for evaluation and reflection.

It is widely known that the “executive power” of the President enumerated in Article II of the Constitution was meant to create a strong executive. The Framers of the Constitution, who lived through a disastrous government under the Article of Confederation, viewed legislative government as too fragmented and episodic. It’s less known that the role of the Federal courts in explicating constitutional law is mentioned nowhere in the Constitution. Judicial review of executive and legislative actions was created out of whole cloth by the Supreme Court itself in the famous case of Marbury v. Madison. And since the power of the courts constitutional review is not structural to the Constitution but only a practical condition upon its successful operation, it need not be exercised whenever a court perceives an invasion of the Constitution. Courts always consider the threshold question of how importunately the occasion demands an answer. Sometimes it’s better to leave the issue to be worked out without an authoritative solution and other times the circumstances require a decision.

Recently, the Department of Justice released a “White Paper” on the legality of killing American citizens who are believed to be “senior operational leaders” of al-Qaida or “an associated force.” Despite the obvious vagueness of terms that leaves one wondering how remote the “association” need be to avoid the breach, the central concern here is use of executive power without some form of judicial review.

The United States after September 11th, our “Homeland America,” has new structures of constitutional democracy created by the Bush the Younger and Obama Administrations. In consequence of this, people have been denied rights that have long been regarded as fundamental, giving rise to indefinite, incommunicado detention, torture and abuse, and the denial of a fair chance to contest life-and-death charges.

The “White Paper,” written by government lawyers, makes a pointed but unsubstantiated case for an unconstrained executive, necessary to deal with the security threats of today’s world. This new view sees terrorism and associated threats to Homeland America as qualitatively different from past security threats. As a result, a more flexible kind of “executive power” is required; one that cannot be readily accommodated within the traditional scheme of judicial and legislative oversight. As it turns out, the unique qualities of “executive power”- what Hamilton described in the Federalist Papers as the capacity to act with “decision, activity, secrecy and despatch” – are unique and essential advantages in this new world. And the nature of warfare against these new enemies relies more on intelligence gathering and covert action, so waiting for the courts or Congress to review or ratify executive action may compromise America’s ability to defend itself.

The problem with this new theory of executive power is that neither the nature of structural constitutional interpretation nor the security policy premises on which these claims are based support the case for the kind of expansive executive power found in the “White Paper.” Fundamentally, a theory of structural constitutionalism should not depend so heavily on something as transitory as the security threat du jour. It is also difficult to understand how these security threats are so very different from those faced before, and even if they are, one could easily conclude that unchecked “executive power” is not an effective means to meet them.

For the purpose of contrast, the President’s imposition of import restrictions on ancient coins provides a more traditional look at “executive power.” Last week, the Ancient Coin Collectors Guild filed a Petition of Certiorari asking the Supreme Court to review the lower courts’ failure to conduct a “political question” analysis of the President’s actions before dismissing the Guild’s complaint.

Three years ago, the Guild filed its lawsuit alleging that the government failed to comply with specific statutory requirements of the Convention on Cultural Property Implementation Act (“CPIA”). The CPIA imposes certain procedural and substantive constraints on the President’s authority to impose import restrictions on cultural objects. Over time, the President’s authority was delegated down to the Assistant Secretary of State, Bureau of Educational and Cultural Affairs of the State Department. Once the State Department authorized import restrictions on coins from Cyprus and China, U.S. Customs and Border Protection published regulations in the Federal Register imposing those import restrictions.

After briefing and oral argument, the district court dismissed the case without allowing any discovery, prompting an appeal. On appeal, the Guild asked the circuit court to rule that the district court had the authority to review the President’s action and that any import restrictions on coins must be written to comply with the plain meaning of the CPIA (N.B., This correspondent represented three coin organizations in filing an amicus curiae brief in support of the Guild). The court of appeals declined the Guild’s request, saying that anything but the most cursory review of the Federal Register “would draw the judicial system too heavily and intimately into negotiations between the Department of State and foreign countries.”

The Guild wishes to address the Supreme Court to argue that the power and duty to decide constitutional disputes was accepted by the judiciary in Marbury v. Madison. Moreover, the Supreme Court decided over a quarter of a century ago, in a case called Japan Whaling Association v. American Cetacean Society, that “one of the Judiciary’s characteristic roles is to interpret statutes, and [it] cannot shirk this responsibility merely because of the interplay between the statute and the conduct of the Nation’s foreign relations.” And if the Supreme Court agrees, then the Guild will ask the Court to direct the court of appeals to apply the “political question” analysis enunciated in Baker v. Carr, which says that a court can decide to review a presidential decision by applying “a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in light of its nature and posture in a specific case, and the possible consequences of judicial action.”

The “particular question” posed by the Guild is quite narrow: whether the Government promulgated and applied import restrictions on coins in compliance with the CPIA. Courts have ample experience in determining whether a specific grant of power by the legislature is being followed by the President. This matter, argues the Guild, is thus well within the competence of a court to handle. Furthermore, the court of appeals’ dismissal of the Guild’s case because it touched on “foreign policy,” but without performing any further analysis of the particular legal issue actually before the court, places its decision making squarely at odds with that of the Supreme Court and other federal appeals courts, which have applied the “political question” analysis found in Baker v. Carr in a “foreign policy” context. Under these circumstances, the Guild asks the Supreme Court to grant certiorari to secure and maintain the applicability of its decisions by bringing the court of appeals and the two other circuits that have not addressed the issue into line with the decisions of the Court.

While I doubt that Mr. Obama is giving this case much thought, it’s equally doubtful that Supreme Court will ever get another case presenting less benign “consequences of judicial action.” Although, I wouldn’t be taking any bets on the Guild’s chances of getting through the golden doors, as the Supreme Court accepts a mere 1-2% of the cases submitted on appeal. However, the odds get considerably better once the doors close behind the Guild; the Supreme Court has reversed or vacated this court of appeals in 61% of past cases.

But no matter what happens in these two instances, the traditional view of “executive power” is not apt to be revived anytime soon. The portentous reluctance of the judiciary is not more use to us than the capriciousness of our legislators who are constantly trying to figure out what the next “serious” security threat will be when it is plain that the next “serious” security threat is their own stupidity.

Categories: Art, cultural property, Culture – Posted on

Ownership Cui bono

American  Law and Claims to Cultural Property

By MICHAEL MCCULLOUGH          February 14, 2013

There are so many important questions that people who write about cultural property issues never get around to asking. Fascinated as we all are to know the curious circumstance of an object’s removal from a foreign land, the writer never gets around to addressing the more vital questions about the American legal system and how it deals- or does not deal- with ownership rights in cultural property. For instance, does U.S. law provide for a mechanism to deal with a dispute over “looted” cultural property? Does a foreign government have an enumerated right to the return of “looted” cultural property? Many people assume there is- or should be- an absolute right of a foreign government to seek the return of its cultural property. Although this sort of idealism is thought to be central to American jurisprudence, I suggest that American law is chary of the risks involved with entertaining foreign government claims, resulting in the tendency to limit such claims to only the most conspicuous cases.

It is interesting to learn that the word “looted” is mentioned nowhere in the United States Code. Apparently the Congress never deemed the “looted” status of an object something worth considering or worth granting legal significance. Why? My theory is this: the European immigrants to the United States invested scrupulous resource in destroying the indigenous culture of their new home, so much so that the fundamental assumption by the mid-19th century was that all important cultural objects in the United States originated in foreign counties (the corollary to this is that, until relatively recently, there never was any real desire to retain any of the important objects from the Native American cultures). And if all the important objects in your museums and private collections come from abroad, then you really can’t appease every foreign government’s claim of “looting,” which are usually defective on their face for pointing out only the nature of the taking. With the change of a noun or two, we could easily get this discussion on track.

When is a cultural object considered stolen? If an object was stolen, then does the owner have an absolute right to its return? This is a more useful approach to the matter, as the law is not concerned at the outset with how an object was taken- cultural objects have always been taken without consent, and usually by force- but, rather, from whom an object was taken. The difficulty in establishing an individual ownership right in an object considered the property of an entire culture is inherent, but cannot be avoided because, with limited exception, the laws in the United States treat cultural property as personal property that can be freely owned and traded. To put it bluntly, all cultural objects were owned by somebody in a foreign country, and the question in the context of a request for return is whether that somebody is the party making the demand.

Since the 1940’s, US law has prohibited the importation of stolen property: the National Stolen Property Act makes it illegal to transport in interstate or foreign commerce any item known to have been stolen. And an object is stolen if it is taken from its owner without consent and with the intent to deprive the owner of the benefits of ownership. Therefore, in a civil case for the return of an object, a foreign government, or the US government on its behalf, must perfect its claim by proving that the foreign government- and not a private party- owned the object when it was taken. If the foreign government cannot prove ownership in fact, either by deed or by ongoing possession, then US courts will allow them to prove ownership through a law granting the government ownership of all such objects. The only limitation here is that the law granting blanket ownership must clearly and unambiguously declare the foreign state the owner of the objects and the foreign government must actually enforces its own laws as an owner.

At this point I find myself wishing there was a more fitting law attending to the ownership rights of cultural objects taken from foreign countries. The only US law addressing foreign cultural property, the Cultural Property Implementation Act does not prohibit the importation of stolen cultural property unless it was stolen from the inventory of a museum or cultural institution, and the theft occurred after January, 1983; objects from illegal excavations and other takings, as well as objects stolen from museums or cultural sites before 1983, are not covered by this law.

A recent legal case in a Manhattan federal court deals with these very issues and will likely provide us with further guidance once a decision is rendered. The dispute itself is very simple: a man purchased a sculpture at a London auction in 1975. It was kept in his family for thirty five years until his wife decided to sell it at auction in New York at Sotheby’s- hardly a unique story and one repeated time and again during the British Empire’s decline in the last century. The sculpture itself, a sandstone figure of a god, was made in Cambodia over ten centuries ago and was placed in the courtyard of a temple where it stood for most of that time until it was removed at some point that nobody can be exactly sure of. Shortly before the auction was to commence in March, 2010, the Cambodian government asked Sotheby’s to return the sculpture because it was said to be stolen from the temple. The US government then leaned its weight into the debate by seizing the sculpture and starting a legal action in federal court to force the owner to forfeit the object so it could be returned to Cambodia. Not a very complicated story, one would think, on the initial read.

Your first reaction to this tale might be the most useful one; if the Cambodian government actually owned the statute and they can prove it was stolen from them, then they should get it back. If not, then tough luck.

The fundamental question in this case is not really a matter of American law in the first instance, as when an object is stolen in a foreign land, it’s that country’s laws which establish the theft. Once an object is deemed stolen under a foreign law, the National Stolen Property comes into play and the claim can go forward. Which gets to the core of the case against the Cambodian sculpture: did Sotheby’s know that the object was stolen? Or could they have assumed the object was not stolen unless some specific information came to their attention suggesting otherwise? The answers to these questions, like most other things in life, depend upon where you sit.

Sotheby’s believes there was never any proof that the sculpture was owned by the Cambodian government, nor was there any evidence about when the sculpture was removed from Cambodia and by whom. In reading between the lines of their court papers, one can conclude that Sotheby’s either determined or presumed the Cambodian government did not own the sculpture and no specific information in the object’s known ownership history suggested it had been stolen, as there are many reasons why a religious object would have been removed from the country, especially during the time of civil war. Who can argue with a fair assumption on a fair day?

The US Department of Justice believes the temple was built by a Cambodian king in the 10th century and ownership of the temple was passed to successive regimes down through the centuries until the French colonized the region. The French provincial laws from colonial Indochina establish that the temple complex was owned by the French colony, which then passed ownership by succession to the modern Cambodia state. If this is true, it follows that Sotheby’s should have known that the temple complex and all of the structures on it were owned by the Cambodian government.

Sotheby’s argues that the theory of the temple’s continuous succession of ownership from the 10th century onward is undocumented and the French colonial laws are unclear and cannot be recognized under the National Stolen Property Act as establishing the Cambodian government’s ownership in the sculpture. The government, they go on to say, cannot infer knowledge of a theft based upon obscure French provincial laws, and without actual knowledge of the theft they cannot be guilty of importing or handling stolen property.

It’s true that an object can only be considered stolen under US law if the foreign country’s declaration of ownership is clear and unambiguous, as well as actually enforced as such. The US government’s theory of the Cambodian government’s ownership is a novel one and untested by previous court decision. It will be up to the Judge Daniels to decide whether succession in ownership of the temple by political regimes coupled with the French colonial laws are reliable markers of the sculpture’s ownership.

The irony here can’t be avoided: the sculpture may have been removed from the temple to avoid the wrath of the Khmer Rouge, who, in the early 1970’s, were not only slaughtering hundreds of thousands of innocent people but cutting down large parts of Cambodia’s historical past, with particular vitriol for its religious icons. And there can be no doubt that the United States’ illegal carpet bombing of the Cambodian countryside in 1970 played some role in fall of the Cambodian government leading to the ascendancy of the Khmer Rouge regime, although the exact impact is still being debated by historians. Perhaps the sculpture was rescued from the temple by concerned citizens and sold in order to insure its protection- it wouldn’t be the first time a baby was put into a basket downriver in the hopes of its survival. But the resolution of this case depends primarily upon whether the Cambodian government owned the sculpture at the time of its taking.