Tag: antiquities

Categories: Art, cultural property, Culture, Iran, News, Persepolis – Posted on

Time and Tide Make Us Mercenaries All

Does Stolen Property Ruin Everything?

By MICHAEL MCCULLOUGH          January 10, 2018

It is easy enough for me to say that theft continues to be a problem for those who buy and sell artwork. One might question the art market’s historical indifference to the victims of theft, but the more useful question would be, Is there a better way to prevent the trade in stolen artwork?

New York law on the topic is both established and chaotic. I choose an exemplary quotation from a legal brief filed by the New York District Attorney’s Office, or “DANY” for short, in a recent case:

“New York law prevents a purchaser of any kind from acquiring good title from a thief…. a good faith purchaser of an artwork has the burden of proving that the work was not stolen.”

That is, by and large, a good summary of the law, though it is by no means an exhaustive one.

In October of last year, DANY obtained a search warrant to seize a Persian Limestone Relief that once resided in Persepolis, an ancient city that was the ceremonial capital of the Achaemenid Empire, currently situated in Iran. Leaving aside any tentative judgments about New York State protecting the property interests of the Iranian Government, the warrant was based upon criminal laws that allow a court to hold property thought to be stolen until a criminal case is filed against a person related to the theft. Oddly, DANY alleged no improper conduct against the owners of the Relief and no criminal charges were expected to be brought against anyone connected to the Relief. Why, then, was the artwork seized?

The simple facts of the case are these. The Relief was donated to the Montreal Museum of Fine Art in 1951 and was on display there until it was stolen from the museum in September 2011. The Relief was insured by AXA and the museum was paid for its loss. The Royal Canadian Mounted Police recovered the Relief in Edmonton, Canada- a location not well known for the harboring of stolen artwork- and eventually returned it to the museum in January 2014. Thereafter, AXA took possession of the Relief, as it was then the owner after having paid the insurance claim, and sold it to Rupert Wace Ancient Art in London, England. Wace then sold a half interest in the sculpture to Sam Fogg. In October 2017, Wace shipped the Relief from London to New York for display at the TEFAF NY art fair. Federal law required Wace to obtain a license from the U.S. Office of Foreign Assets Control because of the US trade embargo against Iran, subject to exception for fine art, which he did obtain.

On October 27, 2017, Matthew Bogdanos of DANY visited the TEFAF NY fair with a warrant and three agents to seize the Relief because it was allegedly stolen from Persepolis in the mid-1930’s and was to be returned to Iran. True, an eighty-year-old theft sounds like a cold case, but the stolen property laws, in the first instance, don’t discriminate against old thefts. Think of the Nazi-looting between 1933-1945 and the legitimate need for claimants to retrieve their property despite the passage of time.

And New York law would have no problem with the Government of Iran bringing a lawsuit in the New York courts to recover its property. The question here was whether DANY could use the criminal laws to seize the Relief and return it to Iran. The owners of the Relief thought not. AXA, Wace, and Fogg filed papers with the court arguing that, absent the filing of criminal charges, the court should retain possession of the Relief until the question of its ownership could be resolved in a civil lawsuit that AXA had filed in Montreal days after the seizure.

Not surprising, the judge agreed with the owners. Judge Jackson said that the court had no power to allow DANY to return the Relief to Iran because there was no criminal prosecution of the owners. In consequence of this, DANY was ordered to retain custody of the Relief pending a determination its rightful ownership in the Montreal court, in which AXA is arguing, among other things, there is no proof that the Relief was stolen from Iran.

Going forward, DANY cannot seize and forfeit allegedly stolen artwork in the absence of a criminal prosecution, a ruling that invites future declaratory judgment title actions against foreign governments where the is no criminal intent of the current owners.

My firm made similar arguments in another case brought last year against DANY regarding the seizure of a Marble Archaic Bull’s Head that was allegedly stolen from Government of Lebanon. The Bull’s Head was purchased by our clients, William and Lynda Beierwaltes from Robyn Symes in 1996. Michael Steinhardt purchased the Bull’s Head from the Beierwalteses in 2010 and, shortly thereafter, loaned it to the Metropolitan Museum of Art. Here, one would expect a similar outcome to the Relief, but for the fact that DANY alleged that the Beierwalteses were in the business of buying and selling antiquities, an important allegation because New York law creates a presumption that people in the business of buying, selling, or dealing in property can be charged with criminal possession of stolen property “if [he or she] obtained it without having ascertained by reasonable inquiry that the person from whom he [or she] obtained it had a legal right to possess it.” This charge was leveled against the Beierwalteses because their bankruptcy attorney- in an obscure 2014 bankruptcy disclosure statement- said that the Beierwalteses “primary business for much of their adult lives has been the acquisition, management and sale of an extremely extensive and valuable body of art works … [in] … a category of art known as antiquities.” Deterred, the Beierwalteses dropped their claim to the Bull’s Head.

This criminal presumption means that anyone in the business of buying and selling artwork can be charged with a crime and their artwork can be seized and forfeited, if they did not make a “reasonable inquiry” of the seller’s lawful ownership of the object. In New York, at least, a person in the art business is required to make a reasonable inquiry into the ownership history of the artwork being acquired. While the law does not define “reasonable inquiry” and New York courts haven’t addressed the definition in the context of the sale of artwork, courts have done so in other fields: business owners have failed to make a reasonable inquiry by acquiring goods under suspicious circumstances, by failing to inquire as to the ownership of the property being purchased, and by failing to create internal documentation of the purchases.

I revert to my original question to say that while the duty to inquiry about the ownership of an artwork is a sensible one, some thought should be given to what amounts to a reasonable response. Put another way, there are various degrees in quality of information and sources in the international art market; we should be working to create a regulatory scheme to establish what is reasonable and what is not. Even more important is the need to provide art buyers and sellers a platform to vet undocumented artwork. An owner’s publication of an undocumented artwork in a public database should gain the owner some repose against claims after a sufficient period of public reflection, say seven years or so. Such publication should also remedy the owner’s failure to make a reasonable inquiry at the time of acquisition. Otherwise, there is great incentive for us to all become mercenaries without any regard to the loss of money, livelihood, and freedom of those who buy and sell artwork for a living.

Categories: Art, cultural property, Culture, News – Posted on

Iron and Light

By MICHAEL MCCULLOUGH          May 31, 2013

MoMA Exhibition, “Henri Labrouste: Structure Brought to Light”

Very little in museum exhibitions of contemporary prints and photographs makes any deep impression on me these days. That is a confession of something lacking in myself, but it is not, as it may appear at first sight, a reason for ignoring the exhibition schedules entirely. MoMA’s special exhibition, “Henri Labrouste: Structure Brought to Light,” is a fascinating study of the evolution of architecture in the 19th Century from neoclassic idealism to modern rationalism, a transition accomplished through a re-interpretation of the ancient art forms, a reminder of why the study of Antiquity is still important today.

Henri Labrouste was a French architect who, from 1824 to 1830, studied at the French Academy in Rome, where he developed his ideas on “romantic rationalism” in architecture. Before Labrouste, the Beaux-Arts school insisted that architectural design should conform to certain ideals of structural form agreed upon by the Academy. Labrouste believed that architecture should reflect the needs of society, and his work reflects this rationalism by incorporating the technical aspects of industrial society in its design. Labrouste’s reputation rests on his Bibliothèque Sainte-Geneviève, Paris (1838–50), a superbly clear design in which an elegant cast iron structure seems to have been slotted into the cage of masonry: it was one of the first monumental, rather than utilitarian, public buildings to have an exposed cast iron frame in the interior. The masonry exterior is a powerful Cinquecento essay employing a range of semicircular-headed windows to illuminate the great library space inside. His work on the Bibliothèque Sainte-Geneviève placed Labrouste in the highest echelons of French Government architects, and between 1854 and 1875 he created the iron and glass interior of the Reading Room at the Bibliothèque Nationale in Paris. In consequence of these achievements, Labrouste was one of those rare artists whose works became a benchmark for aesthetic design, both in France and around the world. And Labrouste’s libraries are, to me, two of the most beautiful spaces in all of Paris.

My first encounter with the Bibliotèque Sainte-Geneviève was not in person, but through the eyes and ears of Stephen Daedalus in Chapter Two of James Joyce’s Ulysses:

Aristotle’s phrase formed itself within the gabbled verses and floated out into the studious silence of the library of Saint Genevieve where he had read, sheltered from the sin of Paris, night by night. By his elbow a delicate Siamese conned a handbook of strategy. Fed and feeding brains about me: under glowlamps, impaled, with faintly beating feelers: and in my mind’s darkness a sloth of the underworld, reluctant, shy of brightness, shifting her dragon scaly folds. Thought is the thought of thought. Tranquil brightness. The soul is in a manner all that is: the soul is the form of forms. Tranquility sudden, vast, candescent: form of forms.

As a young adult I visited Paris with the intention of photographing French architecture, and I remember being mesmerized by the quiet strength and utter accessibility of the Bibliotèque Sainte-Geneviève.  What I failed to realize at the time- but know now after seeing MoMA’s exhibition- is that Labrouste’s perspective on rationalism was not a revolutionary thought but an evolutionary one gained by re-interpreting the meaning of ancient Etruscan architecture.

The Beaux-Arts School in France in the 19th Century was modeled on the study of classical antiquities, so there was a great emphasis on maintaining classical forms of structure. Labrouste, as a young student, decided to look at the classical forms with a fresh eye. In his Master’s thesis on the Greek temples at Paestum, Italy, Labrouste was the first to theorize that the architecture at the site had evolved from the classical Greek architectural styles introduced by Greek migrants. The Beaux-Arts school taught that the buildings at the site that didn’t meet the perfection of classical Greek style must have been earlier and poor attempts that missed the mark. To Labrouste, the structures at the site, all built within 100 years of each other, marked the localization of techniques imported from Greece; Labrouste argued that the building that closely resembled classical Greek proportions was build first and the other structures came later, as the buildings evolved from a process of adaptation to the new colonial environment at a time when the local inhabitants “having grown more powerful, wished to create a new architecture.” These thoughts on the evolution and adaptation of architecture informed later architects on the purpose of their craft and are still with us today.

Labrouste_1
Henri Labrouste, Capital and base of a column of the portico at the Pantheon, Rome, 1925-1928, Pen, ink, graphite and wash on paper.

MoMA does a superb job of underscoring Labrouste’s contribution to modern architecture, but equally impressive is the reflection on Labrouste’s study of ancient design and how the ancients helped Labrouste find modernity. We’re reminded how the study of ancient art can help form great minds. It’s easy and sometime convenient to associate the collecting and study of ancient art with the wealthy class, but in reality the middle class is the main beneficiary of our museum collections of ancient art. Wealthy American student can afford to visit Italy and Greece on extended stays, and ancient art is readily accessible to them in situ, much the same as it was for Labrouste. Middle class students in America access ancient art by visiting museums and working with academic collections, and only on occasion do they travel abroad. And let’s not make the mistake of thinking that ancient art can be studied through photographic images; the exhibition also tells us how important it is for students to view ancient art in person. On display is Labrouste’s pen and ink drawing of a capital and base of a column from the Pantheon in Rome, an amazing study of structure and light that has an almost photographic quality to it; never could this work have been done without him spending countless hours viewing the site. Likewise, in his drawings of Paestum, the rendered shadows of feathers from arrows and the shadows of shields lashed to the marble columns are drawn so elegantly that it’s almost impossible to believe they were done by a human hand.

Recently, American museums have been pressured to return ancient artifacts to their source countries due to theft and misappropriation. While these institutions must comply with the law, some thought should be given to safeguarding the collecting of ancient art, as to insure that future students have access to broad collections of ancient art without having to travel thousands of miles to see them. As history teaches, the future will always depend upon the reconsideration of the past.
______________________
“Henri Labrouste: Structure Brought to Light”
Until June 24, 2013
The Museum of Modern Art, Special Exhibitions Gallery, third floor

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.