The United States Supreme Court has granted certiorari and will weigh in on a Nazi-era dispute over artworks, involving the sale of a collection of medieval artworks known as the Guelph Treasure. The collection is described as something out of a film: gold, silver, and jeweled liturgical objects from the Church of St. Blaine in Brunswick, Germany. Many of the objects were crafted in what is today present-day Germany, but other objects came from the Italian peninsula or the Byzantine empire.
Here’s a quick background on the dispute. The Welfenschatz, or Guelph trove is currently in the possession of the Prussian Cultural Heritage Foundation and has been claimed by successors of art dealers who were fleeing the holocaust. These objects were originally housed in the cathedral in Braunschweig, owned by the House of Guelph. During the First World War, the House of Guelph lost reign over Braunschweig and in the 1920s the pieces were sold to a consortium of Frankfurt art dealers, including 82 items in 1929. Later in 1935 the Prussian state, led by Hermann Goering, bought the remaining pieces of the treasure in what the claimants allege was a “genocidal taking”. In 2014, a German government commission found that the transaction was not a forced sale.
The claimants then brought suit in the United States. The current possessors, the Prussian Cultural Heritage Foundation have defended that action on the grounds that as a Foreign Government, they are immune from suit in the United States under the Foreign Sovereign Immunities Act. Claimants have argued that the actions of the Prussian government fall under one of the exceptions to that law, that the actions of the Prussians was a violation of International law, namely genocide. The Supreme Court has agreed to consider two issues:
Whether suits concerning property taken as part of the Holocaust are within the expropriation exception to the Foreign Sovereign Immunities Act (FSIA). This is the legal treasure which gives the claimants a jurisdictional foothold to sue a foreign government in the United States, something that ordinarily is not allowed under American law.
Whether a foreign state may assert a comity defense that is outside the FSIA’s “comprehensive set of legal standards governing claims of immunity in every civil action against a foreign state.” In essence the appellants are attempting to use the idea that Courts should refrain from entering into the realm of foreign policy in a broader way. At least that is how I understand that issue.
Nicholas O’Donnell, an attorney for the claimants stated:
[W]e are grateful for the opportunity to address the Supreme Court on these important questions about holding Germany accountable for its Nazi-looted art. A 1935 transfer from German Jews to notorious art looter and war criminal Hermann Goering is the quintessential crime against international law, regardless of Germany’s Holocaust distortion in defending this case. Germany seeks to eliminate recourse for Nazi-looted art and the Court will have the chance to answer this question of critical importance for Holocaust victims.
Being on the side of the possessors and having to defend that possession by justifying the acquisition by such an evil historical figure as Hermann Goering cannot be an easy legal argument. The Court will likely hear the case in the Fall, likely via telephone if the never-ending pandemic continues to outwit the hapless policy makers here in the United States. The case could impact the future of Nazi-era claims, and claims for wrongdoing more generally during similar periods of atrocity. The Court will also hear a case involving Hungarian nationals who lost property during World War II.
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Christopher F. Schuetze, U.S. Supreme Court to Rule on Medieval Treasure Bought by Nazis, The New York Times, Jul. 10, 2024, http://www.nytimes.com/2024/07/10/world/europe/guelph-treasure-germany-us.html.
Supreme Court agrees to hear Nazi art case, AP NEWS (Jul. 2, 2024), http://apnews.com/3fe60cf650bee8997d7f091fe2e8d84e.
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Isabella: Artist Extraordinaire by Jennifer Fosberry, illustrated by Mike Litwin
Now for something completely different. Maintaining physical distancing and staying home presents particular challenges to those of us with toddlers. And if you are like me you likely are really, really missing the experience of seeing art in museums and galleries. Luckily, I have a remedy. There’s a terrific book that manages to combine art and staying home in a rare children’s book which is fun to read and a hit with our little one. Best of all, I receive profound joy whenever we get to the page with Edvard Munch’s The Scream, and our toddler recreates it himself. The book offers a sweet girl heroine, art that you likely know about, and a nice introduction to some major works. It has been a hit with our little book lover, and his parents.
Below you can find a useful link to the book at Bookshop, an online bookstore which supports local, independent bookstores.
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Facebook announced today that it will remove any content that is an attempt to buy, sell, or trade in “historical artifacts”. That decision is a welcome change, and the product of a terrific advocacy campaign by the Antiquities Trafficking and Heritage Anthropology Research (ATHAR) Project. in a press release, Greg Mandel, public policy manager at Facebook stated “To keep these artifacts and our users safe, we’ve been working to expand our rules, and starting today we now prohibit the exchange, sale or purchase of all historical artifacts on Facebook and Instagram”.
Some of the posts were truly shocking. Katie Paul, co-director of ATHAR was quoted in the NYT: “They literally will post pictures from auction catalogs and say, ‘See, this is how much this stuff can sell for, so go for it guys.’” And that kind of buyer-directed looting was reported by the BBC in 2024:
This welcome reform will help to prevent Facebook’s algorithms and micro-advertising campaigns from being used to sell illicit cultural objects, but likely will not end it entirely. As Prof. Amr al-Azm, from Shawnee State University in Ohio, adequate enforcement efforts will also be needed because simply “[r]elying on user reports and Artificial Intelligence is simply not enough”. Though more work may need to be done, this is a welcome development, and big congratulations should be directed at everyone at the ATHAR project and who called for this reform.
Tom Mashberg, Facebook, Citing Looting Concerns, Bans Historical Artifact Sales, The New York Times, Jun. 23, 2024, http://www.nytimes.com/2024/06/23/arts/design/facebook-looting-artifacts-ban.html.
Tracking the history looted from a warzone, BBC News (May 2, 2024), http://www.bbc.com/news/av/world-middle-east-47671566/syrian-looting-tracking-the-history-taken-from-a-warzone.
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La dea di Aidone (formerly the Getty Goddess) perhaps an instance of conscious avoidance when the Getty Foundation acquired her in the 1980s?
Karin Orenstein, an Assistant U.S. Attorney for the Eastern District of New York has published a new short essay for the North Carolina Journal of International Law titled “Risking Criminal Liability in Cultural Property Transactions”. In the Piece she references the purchases of questionable material by prominent wealthy collectors Michael Steinhardt and Steve Green. From the abstract:
This Comment explores when buyers of cultural property cross the line from taking business risks to engaging in criminal conduct. The Comment applies the National Stolen Property Act (NSPA) and the conscious avoidance doctrine to potential red flags in hypothetical cultural property transactions. When buyers are presented with red flags about a piece’s provenance and choose not to investigate, they cannot rely on deliberate ignorance as a defense to a charge that they knowingly transacted in or possessed stolen cultural property.
Orenstein, Karin, Risking Criminal Liability in Cultural Property Transactions (2024). North Carolina Journal of International Law, Vol. 45, 527, 2024. Available at SSRN: http://ssrn.com/abstract=3583457
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Marc Masurovsky, cofounder of the Holocaust Art Restitution Project (HARP) has published “A Comparative Look at Nazi Plundered Art, Looted Antiquities, and Stolen Indigenous Objects” in the North Carolina Journal of International Law and Commercial Regulation. The Piece is an ambitious and serious look at the different kinds of State-sponsored taking of art and heritage, and attempts to connect the different kinds of takings across different historical periods and cultural groups.
From the introduction:
The dispersal of Jewish collections during the Nazi years interestingly compares with the recycling of looted cultural property from conflict zones and the plunder of ritual objects from indigenous groups worldwide. There should be a common response by the international community to cultural plunder and crimes committed against culture, within the framework of State-sponsored persecutions of entire groups. And there should be common standards for prevention, seizure, and restitution. This Article explores these issues.
Marc Masurovsky, A Comparative Look at Nazi Plundered Art, Looted Antiquities, and Stolen Indigenous Objects, 45 N.C. J. Int’l L. & Com. Reg. 497 (2024). Available at: http://scholarship.law.unc.edu/ncilj/vol45/iss2/8
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“The Parsonage Garden at Nuenen in Spring”, Vincent van Gogh; stolen from the Singer Laren Museum in March amid the pandemic.
Octave Durham, who stole two works from the Van Gogh Museum in Amsterdam told Siegal “My number one rule is talk smooth, be cool, have a fast car and never touch anyone”.
Nina Siegal has written a ssr梯子购买 on that recent theft of a work by Vincent van Gogh from the Singer Laren Museum. That theft was likely a quick crime of opportunity, as the thief must have underestimated the chances of turning that work into a future profit. That’s the big takeaway from the well-reasoned piece by Siegal, who gets a former thief Octave Durham, Ursula Weitzel the lead public prosecutor for art crimes for the Netherlands Public Prosecution Service, and the art theft investigator Arthur Brand to reveal the hard truths of art theft: the art itself is a silly thing to steal.
As ‘Okkie’ Durham is quoted:
“I just did it because I saw the opportunity,” Mr. Durham said. He noticed a window at the museum that he thought would be easy to smash. “I didn’t have a buyer before I did it,” he said. “I just thought I can either sell them, or if I have a problem I can negotiate with the paintings.”
As Weitzel points out: “Unless it’s a crime of passion, usually the motive is to make money,” she said. “It’s as simple as that. People don’t steal it because they want to hang it on the wall. That kind of theft for pride or status, I haven’t seen that. It’s usually for money. Or, for safekeeping, in the event that it may be necessary.” And the hard truth of the difficulty in seeing a profit off of a theft means those stolen works stay hidden with a very low return on the market value of the work according to Brand.
Nina Siegal, What Do You Do With a Stolen van Gogh? This Thief Knows, The New York Times, May 27, 2024, http://www.nytimes.com/2024/05/27/arts/design/van-gogh-stolen.html.
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A cuneiform tablet which may reveal a portion of the epic poem of Gilgamesh.
Today the United States Attorney for the Eastern District of New York announced the filing of a civil forfeiture action against a cuneiform tablet which was most recently purchased by the Museum of the Bible. The Government’s allegations show a familiar pattern: fake the history of an object, have the object published in a scientific publication, earn the endorsement of a prominent expert, and conduct the sale in secret. The complaint is docketed at Civ. No. 20-2222. Here are some of the best allegations from the government’s complaint, available here.
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This tablet was seized from the Museum of the Bible in September, and is storing the tablet at at U.S. Customs and Border Protection in Queens, which may help explain why the EDNY U.S. Attorney’s office has filed this action and not another office. It may also be because this office is one which has good track record of successful civil forfeiture actions.
HSI Special Agent-in-Charge Peter Fitzhugh stated in the press release:
The laws at issue here are parts of the Customs laws and the National Stolen Property Act:
One interesting aspect here, and I’m not sure what the appetite for the Museum of the Bible will be to defend this action in court given the absolute devastating series of seizures, investigations and scandals, but they may have some legal defenses due to the difficulty in tracing an illicit antiquity to its point of origin. Federal law still hinges in many ways on pinning a specific time and place for a criminal act involving a piece of cultural heritage, whether that act is looting from context, theft, smuggling, etc. The government will have to show I think that this tablet did originate in Iraq after an applicable Iraqi heritage or patrimony law. Of course if the Museum of the Bible wants to do the right thing and just let this object be returned, those legal arguments are moot. But the complaint does I think leave open the specific origin for the fragment, and when. A very typical problem with illicit objects like this one.
The best argument the government laid out in the complaint is that the Museum of the Bible and the Auction House engaged in some really clumsy post-sale due diligence which only made the problems worse, and acknowledge Iraq as the origin:
United States Attorney for the Eastern District of New York Richard P. Donoghue also stated in the release:
“Whenever looted cultural property is found in this country, the United States government will do all it can to preserve heritage by returning such artifacts where they belong, In this case, a major auction house failed to meet its obligations by minimizing its concerns that the provenance of an important Iraqi artifact was fabricated, and withheld from the buyer information that undermined the provenance’s reliability.
The forfeiture action is a very powerful and useful remedy to police specific objects, but it really may not do all that much long-term to disincentivize actors from doing this kind of thing in the future. A forfeiture every now and then is just the cost of doing business.
United States Files Civil Action to Forfeit Rare Cuneiform Tablet Bearing Portion of the Epic of Gilgamesh (May 18, 2024), http://www.justice.gov/usao-edny/pr/united-states-files-civil-action-forfeit-rare-cuneiform-tablet-bearing-portion-epic.
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Maddalena penitente (Mary Magdalene Penitente), By Caravaggio, c. 1594-1595, currently hanging in the Doria Pamphilj Gallery in Rome
Professor Stephen Clowney of the University of Arkansas School of Law has written an interesting article examining the role of markets in certain special categories: things like organs, human lives, sex, and works of art. He has an interesting summary of the scholarship critical of markets; and he suggests I think that markets are not inherently corrupt. He ably points out flaws in the scholarship which criticizes commodification, yet he makes his own grave errors in relation to the role of the market on the art trade and its allied fields and disciplines. His approach is a kind of ethnographic study of art appraisers and prostitutes. The article is well-written and entertaining, but I just don’t think you get a complete picture of the art market by only talking with appraisers. He also ignores large areas of helpful scholarship from criminologists, totally ignores the Knoedler forgery scandal, and does not acknowledge the problems presented by the antiquities trade. But if you want an entertaining read, I can recommend it.
Clowney, Stephen (2024) “Does Commodification Corrupt? Lessons from Paintings and Prostitutes,” Seton Hall Law Review: Vol. 50 : Iss. 4 , Article 3. Available at: http://scholarship.shu.edu/shlr/vol50/iss4/3
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This is as close as we’ll be able to get to the MFA Houston for a while…
I miss museums, and it sounds like the next time I visit one I’ll look like I’m trying to rob the place.
Garty Tinterow, the director of the Museum of Fine Arts, Houston offered some insights into how his institution is planning to safely reopen, whenever that may be. He did a useful Zoom interview with the Houston Chronicle’s Molly Glentzer, and here’s a brief excerpt:
I check my mail every day but the crystal ball hasn’t arrived yet. Opening by July 1 seems to be feasible, given our most pessimistic models. The pandemic will bring permanent change to art museums such as ours. We’re going to have to live with this virus for quite some time. Our biggest challenge is learning gradually; it’s going to have to begin with baby steps. We’ll all learn how to visit a museum differently. We are adopting procedures for low-touch entrances, exits and visits. We’re going to change the way we deliver information so individuals so they won’t have to touch things or pick up things that aren’t their own. An attendant with a mask and gloves will open the door. You’ll probably be wearing a mask. We won’t hand you gallery guides unless they can be sanitized; you’ll probably download material on your own device.
Many museums provide a textbook case of how to live in this new world. For a survey of the Association of Museum Directors, we calculated how many visitors we could admit based on the square feet in our display spaces. If they have six feet of circumference around them and move through the space as equally distributed as atoms of oxygen, how many people would there be? Probably 800 at a time. We can easily accommodate that. They won’t be in one space; they’ll be throughout our campus in multiple buildings. Maybe, if we have a film program in Brown Auditorium, people can be seated on every other aisle and alternate seats. There is room at the MFAH for social distancing.
Gary Tinterow
Molly Glentzer, What Will Your next Visit to the Museum of Fine Arts, Houston Be Like?, Houston Chronicle, Apr. 23, 2024, http://www.chron.com/life/article/What-will-your-next-visit-to-the-Museum-of-Fine-15223418.php [http://perma.cc/4S7T-8VLT].
Theft of a Van Gogh at the Singer Laren Museum
The Parsonage Garden at Nuenen in Spring 1884, Vincent Van Gogh
In the early hours of Monday March 30, thieves broke the front glass window of the Singer Laren museum east of Amsterdam. The thief or thieves stole an early work by Vincent Van Gogh. In a press conference on Monday annnouncing the theft Singer Laren museum director Jan Rudolph de Lorm expressed shock and sadness:
I’m shocked and unbelievably annoyed that this has happened . . . . This beautiful and moving painting by one of our greatest artists stolen – removed from the community . . . . It is very bad for the Groninger Museum, it is very bad for the Singer, but it is terrible for us all because art exists to be seen and shared by us, the community, to enjoy to draw inspiration from and to draw comfort from, especially in these difficult times.
Most art thieves are awful people; but those responsible for this theft are especially vile. Art thefts seem to cluster around holidays and periods of inactivity. As the world looks increasingly to starve the Coronavirus of new hosts, and more and more people stay home, art museums are closed. And they are at increased risk from thefts.
Dutch museum says van Gogh painting stolen in overnight raid, AP NEWS (Mar. 30, 2024), http://apnews.com/e635b833e60dfcb01351752976d818df.
Vincent van Gogh painting stolen from Netherlands museum, The Independent (Mar. 30, 2024), http://www.independent.co.uk/news/world/europe/vincent-van-gogh-painting-stolen-singer-laren-museum-netherlands-a9435666.html.
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Welcome to the Illicit Cultural Property Blog. I am a Professor at South Texas College of Law Houston where I teach art and cultural heritage law, among other subjects. I work to provide regular updates on thefts, antiquities looting, scholarship involving these disputes, and legal developments in the field.
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Some Highlights
Tang Shipwreck Exhibition at the Asia Society
Egypt Secures Return of 19 Objects
Why did the Met Return Objects to Egypt?
"James Turrell should write a legal brief"
Getting the UNIDROIT Convention all wrong
Manhattan DA has Charged Kapoor and 7 Others
Supreme Court Rules Objects from the Persepolis Collection will stay at Chicago
