From Koh Ker to Mediocre

A Sale Bombs and a Million Dollar Sculpture Lost in the Same Week.

By MICHAEL MCCULLOUGH          April 19, 2013

One of the affecting moments among many in Ben Affleck’s Argo is when the Hollywood producer Lester Siegel theorizes about why he was such a terrible father. “The bullshit business,” he says, “it’s like coal mining; you come home to your wife and kids and you can’t wash it off.” We know that people who work in media and public relations are expected to make things sound much better than they really are, being paid for doing that very thing. As supportive as I am of the auction market, I still winced when reading Sotheby’s press release for the Barbier-Mueller sale that described the auction as “new world record for a sale of Pre-Columbian Art.” A more sobering approach would have left that line out and started off with the next sentence where they admit that the auction “achieved less than expected.”

The sale brought in $13.3 million against pre-sale estimates of $19 million to $23 million. Even this statistic begs further scrutiny, as auctioneers always include their buyer’s premium in the sales results, thus making them look more impressive than they really are (pre-sale estimates do not reflect the premium). If one were to back out the buyer’s premium- which is a sliding scale but averages about 20%- from the Barbier-Mueller results then you get a sale of $11.1, which is 53% of the median pre-sale estimate. Put another way, only 147 of the 313 lots found a buyer, a 47% sell-through-rate which is a disastrous result for a single owner collection.

It would be interesting to know exactly what Sotheby’s was expecting from the sale when they published the catalogue. There is a general perception among art sellers that France is a more hospitable market for selling ethnographic art. The French government enforces the UNESCO accession dates, so as long as the objects were outside of their source countries before the 1970’s then the sale was safe.

Then what happened? Very simply, several major US collectors decided not to participate. And since we’re talking about sensitivities, there’s a general perception among art buyers that the US government is trying to accomplish administratively what it could not do legislatively: to stop objects from entering the country even though they meet the UNESCO standards. Ironically, the seizure last year of a Cambodian sculpture from Sotheby’s was fueling most of this speculation and, unfortunately for Sotheby’s, that case wasn’t decided until three days after the Barbier-Mueller sale.

Much of this concerning among US buyers is, in my view, unwarranted for the reasons they state; the allegations against the Cambodian sculpture could only occur because the object is site-specific, thus allowing the Cambodian and US governments the opportunity to investigate the events of the object’s removal from Cambodia. Sotheby’s was hopeful to get the same ruling as the St. Louis Museum obtained last year when a judge in St. Louis denied the government’s attempt to take the Ka Nefer-Nefer mask, another site-specific object that went missing from a storage facility in Egypt. In the St. Louis case, the judge decided that the government failed to state a factual statement of theft. Rather, the complaint merely stated that the mask was found to be “missing” from Egypt in 1973.

In Sotheby’s case, the Judge decided that the government did provide a factual basis that the sculpture was stolen from Cambodia. According to the government’s amended complaint, the sculpture was stolen from the temple complex at Koh Ker in 1972 by an “organized looting network” and shipped to Thailand for sale by a dealer in Bangkok. Never mind that there was no specific information about who removed the object, exactly when it was removed and under what circumstances; let’s just accept the fact that it takes more to impress a judge in Missouri than it does in New York. And since the government was able to point to laws in place in Cambodia in 1972 that purport to deem the sculpture property of the Cambodian government, there is reason to believe that Cambodia owned the sculpture at the time of its taking.

In fact, very few cultural objects are from specific or known sites, so the decision in the Cambodian sculpture case has limited utility. What’s more significant was the government’s dedication to the case, as the initial decision to seize an object will always cost the owner at least fifty to a hundred thousand dollars in legal fees just to try to dismiss the case. Moreover, it’s unlikely that Sotheby’s had any idea about the sculpture’s removal from the temple in 1972, a fact that was discovered by the joint investigation of two governments with dozens of investigators examining the case. As a matter of fact, a private seller could never match these resources and herein rests the real uncertainty in the market: exactly how much investigation need a seller do in order to avoid seizure? In the case of a site-specific object, the answer seems to be whatever it takes to exhaust every possible doubt about the object’s ownership, a proposition that’s commercially unfeasible but for the most expensive objects on the market.

The most puzzling part of the whole story is why Sotheby’s waited until after the sculpture was imported to investige the object’s status. In retrospect, that was a costly error that can’t be explained by the usual “mistakes were made.” Much of the government’s criticism of Sotheby’s was unfair and exaggerated, showing a real lack of sophistication, but the failure to protect its interests sits squarely with venerable auctioneer.

I suspect that Sotheby’s and the sculpture’s owner will attempt to settle the case in an effort to avoid the cost of having to endure an expensive and uncertain trial. Even if they were successful at trial, the object would only sell for a fraction of the original asking price, so very little would be gained by continuing to pursue the case. Sotheby’s only real chance at success was to convince the judge that the Cambodian laws were too vague to be enforced and the story of the object’s removal too uncertain to be reliable, and that attempt has failed. This demonstrates the impossibility of importing site-specific cultural objects until clearer laws are passed defining exactly when an object can be considered stolen.

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.