Many thanks for a terrific ARCA conference last weekend!

Toby Bull demonstrating a fake antiquity in the first panel on Saturday

Here was the conference schedule and programme:

ARCA 2013 Annual Conference Programme

Yes, antiquities with good history are worth more

More anecdotal evidence this week that the prices paid for antiquities continues to reflect not only the intrinsic value of the object, but the quality of its history as well. Unprovenanced objects are not selling. Souren Melikian reports on the importance of a pre-1970 history for antiquities at recent auctions in Paris:

At Pierre Bergé on May 29, an Egyptian portrait painted in encaustic on panel of the type conventionally associated with the Fayum area rose to €1.46 million, or nearly $2 million, paid by the Metropolitan Museum of Art. The portrait, datable to the years 54 to 68 A.D. on the basis of the hairdo, was owned by a European collector as early as 1968. A week later, it was the turn of Boisgirard-Antonini to score with Egyptian art. The wooden mask of a woman, with its ancient polychromy unfortunately altered by heavy waxing, realized 10 times the estimate, at more than €75,000. It had surfaced in the Paris trade in June 1912. Two lots down, the star piece in the sale, an Egyptian torso of the fourth century B.C. more than tripled its high estimate as it went over €2.26 million. Hieroglyphs carved on the back name a prince who was the governor of Upper Egypt. The inscription was debated at length in three separate German publications before World War II. At the end of a sustained bidding match, the room broke out in applause. The contrast with the dead silence that greeted scores of bronzes, some very fine, from ancient Afghanistan, Iran, Iraq, Yemen and other areas was striking. None were documented and the majority remained unwanted at low prices ranging from €1,000 to €5,000 euros. In five to 10 years, these hot potatoes may not even make it to the auction rooms.

1. Souren Melikian, Antiquities, With a Proven Record, Drive Auction Market, N.Y. Times, June 14, 2013, http://www.nytimes.com/2013/06/15/arts/15iht-melikian15.html.

Will the Statute of Frauds Crack the Art Market’s Shield of Anonymity in New York?

The Jenack Auction house, outside Chester, NY

In his seminal 1982 article, Harvard Law Professor Paul Bator noted that the art trade is shrouded in mystery. In the thirty years since Bator examined the international art market, little has changed with respect to the basic information which is made available when works of art are bought and sold at auction. Auction house catalogues typically include little more than a cursory “this work is from a private collection”. That may change, at least in New York when the State’s highest court will take up a recent auction dispute.

In September of 2008, a 19th century “fine Russian silver/enamel covered box with gilt interior” was slated to be auctioned by the William J. Jenack Auctioneers. Prior to the auction, the auction house received an absentee bid from Albert Rabizadeh. This absentee bidder’s form included Mr. Rabizadeh’s name, phone number, address, email address and credit card number. The defendant was assigned bidder number 305 as indicated on his form, and his bid for a price of $400,000 was the winning bid for the antique box. This dispute arose, as so many of them do, when the winning bidder refused to pay for the antique. Auction houses rely on the binding nature of these bids in conducting their business, so it should come as no surprise that the Jenack auction house brought a suit against the allegedly derelict bidder. The low of contract might ordinarily be sufficient to require Mr. Rabizadeh to pay the asking price. At the initial trial Mr. Jenack successfully sued and the trial court held Rabizadeh was required to make good on his winning bid. However a well-established principle of English and American law, the statute of frauds requires that certain agreements be reduced to writing. And the district court ruling was overturned on appeal.

The Earl of Nottingham authored the Statute of Frauds in 1677

The statute of frauds was called an anachronism as far back as 1928 in an influential article appearing in the Indiana Law Journal. The Statute itself was passed by Parliament in 1677 and has been adopted by statute or common law by most American states. The statute of frauds has a simple purpose: to prevent any fraud caused by perjury. In essence ensuring that the legal system would wrongfully not enforce certain important legal agreements. These included: conveyances of land (what lawyers call real property); trusts; wills; and certain contracts which were made in consideration of marriage, contracts which couldn’t be performed within one year, or contracts for the sale of goods which exceed a certain value.

Under New York’s version of the Statute, if the disputed goods are sold at a public auction, an auctioneer can satisfy the statute of frauds if the auctioneer at the time of the sale enters into the sale book the nature of the object sold, the sale price, the name of the purchaser, and the name of the person on whose account the sale was made. In the Russian box auction, Mr. Rabizadeh’s name was not reduced to writing.

Mr. Rabizadeh successfully convinced a four judge panel of the New York appellate court that the law requires the name of the purchaser be in writing, and the incomplete paperwork by the Jenack auction house did not comply with the New York Statute of frauds. At present the case is pending before New York’s highest appellate court, and the court has two likely options to choose from. First, the court could hold that the auction house could have complied with the Statute by merely requiring a signature on the bidders form, which would have collectively created a sufficient body of written evidence that could have successfully prevented a perjury in this case. The court could look to the origins of the Statute and hold that this extra information would be sufficient to prevent perjury.

But the second, less likely option could have far-reaching consequences for the art market. The court may decide that buyers could back out of any purchase where the name of the buyer or seller is not provided. That would quickly remedy the anonymous buyer and seller problem in the art market. And with one simple decision—that this auction house initiated to punish a reluctant buyer—the art market in New York could be dramatically changed. 

(this editorial appeared in the Spring 2013 edition of the Journal of Art Crime).

Federal agents have seized $100m from Subhash Kapoor

Jason Felch reports that Federal agents have seized a whopping $100 million in art in the past couple years from Subhash Kapoor. Kapoor, an American citizen, is subject to potential criminal charges for dealing in looted and stolen art: a pending criminal trial in India; and he may be prosecuted in the United States as well.

Felch reports on the staggering number of esteemed Museums which have purchased material from Kapoor since:

Since 1974, Kapoor and his Madison Avenue gallery Art of the Past have sold or donated ancient art to the Metropolitan Museum of Art in New York City, the Los Angeles County Museum of Art, the Norton Simon Museum, the Asian Art Museum of San Francisco, the Art Institute of Chicago, the Toledo Museum in Ohio and others. Abroad, his clients included the Musée des Arts Asiatiques-Guimet, Paris; the Museum f¿r Indische Kunst in Berlin; the Royal Ontario Museum in Toronto; the Asian Civilisations Museum in Singapore; and the National Gallery of Australia. To date none of the museums has been accused of possessing stolen art or conspiring with Kapoor. Several have acknowledged having objects from Kapoor but declined to comment on the ongoing investigations.

 This is a staggering array of objects and some very fine Museums.

The piece demonstrates how integral federal forfeitures are in policing the art and antiquities trade in the United States. Whether all that art will be repatriated to Southeast Asia remains to be seen, but the institutions which have material which passed through Kapoor would be wise to start preparing a strategy for the inevitable questions which will arise. Right now he looks to be as big an alleged antiquities smuggler as any of the names we've seen deal in art from Europe or even some of the notorious dealers in looted Mediterranean antiquities.

1. Jason Felch, Feds pursue Manhattan art dealer suspected of smuggling, L.A. Times, June 11, 2013, http://www.latimes.com/entertainment/arts/culture/la-et-cm-asian-artifact-smuggling-20130611,0,3469733.story.

ARCA's Fifth Annual Conference, June 21-23, Amelia

Toby bull, Senior Inspector, Hong Kong Police Force, "Property of a Hong Kong Gentleman, Art Crime in Hong Kong - Buyer Beware";

Ruth Godthelp, PhD Candidate Vrije Universiteit of Amsterdam, Senior Police officer art related crime, Amsterdam Police, "The nature of crimes against Arts, Antiques and Cultural Heritage: A description of art-related crime in the Netherlands";

Saskia Hufnagel, Research Fellow, ARC Centre of Excellence in Policing and Security, "Shifting Responsibilities: The Intersection of Public and Private Policing in the Area of Art Crime";

James Moore, retired trial lawyer and student of Caravaggio, "The Outrageous Theft of Caravaggio's Masterpiece The Nativity with Saint Francis and Saint Lawrence";

James Bond, ARCA Alumnus, Certificate 2011, "The Theft of Rare Books from the largest Home in the United States";

Chris Dobson, Former Master Armourer to the Royal Armouries at the Royal Armouries Museum in Leeds, "Claiming Fake 'Fakes' in the Trade in Arms and Armour";

Stefano Alessandrini and Derek Fincham will lead a discussion on the Fano Athlete/Getty Bronze;

Joris Kila, Senior Researcher at the University of Amsterdam, ARCA award winner 2012, "An update on Armed Conflict and Heritage";

Nicholas M. O'Donnell, Partner with Sullivan & Worcester LLP, "American Wartime Art Restitution Litigation in the 1990s and Beyond-- Has it All Been Worth it?"

Jerker Rydén, Senior Legal Advisor Royal Library of Sweden, "Skullduggering in the Stacks: Recovering stolen books for the Royal Library of Sweden";

Judith Harris, author and free-lance journalist, regular contributor to the New York monthly ARTnews, "The Role of Collectors";

Felicity Strong, PhD Candidate, University of Melbourne, "The mythology of the art forger";

Joshua Nelson, MA Candidate in Art & Visual Culture, University of Guelph, "Framing the Picture: The Canadian Print Media's Construction of an Atypical Crime and its Victims";

Theodosia latsi, MA in Global Criminology, Utrecht University, "The Art of Stealing: The Case of Museum Thefts in the Netherlands";

Verity Algar, Art History Student, University College London, "Cultural memory and the restitution of cultural property: Comparing Nazi-looted art and Melanesian malanggan";

Giulia Mezzi, PhD Candidate University of Reading, "The origins of Cultural Heritage Protection in Italy, a historical survey"

Carrie Johnson, JD Candidate South Texas College of Law, "Cultural Property in Crisis: Whose Burden is it?"

Alesia Koush, Foundation Romualdo Del Bianco-Life Beyond Tourism in Florence, MA Candidate at the University of Cologna under Prof. Luciano Carrino, "The Right to Culture"; and

Cynthia Roholt, JD Candidate South Texas College of Law, "Human Remains: Permission and Plastination".

The conference will open with cocktails at Palazzo Farrattini on Friday evening, June 21. The speakers will present at Chiosto Boccarini on Saturday and Sunday. Imbedded in the conference will be tthe ARCA Award Presentations: Art Policing and Recovery Award to Sharon Cohen Levin, Chief of the Asset Forfeiture Unit in the United States Attorney's Office for the Southern District of New York; Art Protection and Security Award to Christos Tsirogiannis, Archaeologist, Illicit antiquities researcher, University of Cambridge, former member of the Hellenic Ministry of Justice; Eleanor and Anthony Vallombroso Award for Art Crime Scholarship to Duncan Chappell, Professor in the Faculty of Law at the University of Sydney, Australia; and the Lifetime Achievement in Defense of Art to Bianco Nino Norton, Consultant Petén Development Project for the conservation of the Maya Biosphere Reserve, Ministry of Environment of Natural Resources/BID, Delegation of World Heritage Guatemala, Treasurer ICOMOS Guatemala, Presently serving as a Council Member for ICCROM.

To attend, please just RSVP to me at derek.fincham@gmail.com

That Picasso Vandal was Sentenced to two years in prison

In the informal straw poll I've taken with Houston artists, art student and all-around jerk Uriel Landeros is universally reviled.

In June last year he spray painted a work by Picasso, woman in a Red Armchair, at the Menil here in Montrose. His lawyer attempted to partially defend the crime by arguing he was making an artistic statement. I find that a particularly unconvincing defense, as it seems the sentencing judge did as well.

A video of the damage was posted on youtube and Landeros fled to Mexico. But he turned himself in at the border in January, and agreed to plead guilty to a graffiti charge. He was sentenced to two years, but with his 5 months already served he may be eligible for parole soon. Glasstire reports that he may be planning to return to the University of Houston for his final semester.

Here's hoping he's denied admittance to Houston's museums. And he can't use this notoriety to further his art career.

1. Paula Newton, Picasso Vandal Sentenced to Two Years, Glasstire (May 21, 2013).

Jason Felch Updates the Southland Antiquities Investigation

In Sunday's LA Times, Jason Felch reports on a languishing federal antiquities investigation. In 2008 there was a loud showy raid on five museums in Southern California, including: the Bowers Museum, the Pacific Asia Museum in Pasadena, the Mingei Museum, and the LA County Museum of Art. We are now five years since those raids, which resulted in the seizure of 10,000 objects, but has not resulted in any objects being returned, or even in any prosecutions. At least not yet. Which is strange, because if agents display such force in searching and seizing material in a simultaneous early morning raid, surely that investigation should bear fruit.

One reason for that is the death of those under investigation. Some of those are the result of natural causes. But not the sad death of Roxanna Brown—a witness for investigators and later a target—who died while in federal custody, in a shameful display of federal mismanagement. Here is a full history of Brown:

Roxanna Brown’s story: Part I, Part II, Part III and settlement.

Many who follow this investigation probably echo Prof. Stephen Urice, professor at the University of Miami Law School, who is quoted:

I'm baffled . . . Given the amount of illicit antiquities moving through the U.S. borders, these guys are really hacks. Surely there must be more significant people out there.

 Felch reports that a criminal case against two men will begin in June: Robert Olson, aged 84; and Marc Pettibone, 62. Prosecutors allege that both men conspired to bribe officials in Thailand to secure export, and that the objects were then sold in the United States. And they would then use inflated appraisals for the objects and would secure excessive tax deductions for their donation.

All in all a troubling story on many levels. Few would dispute the staggering amount of objects which are being removed from Southeast Asia. But the prosecution and this investigation may be even more troubling. Its been a long investigation, with some very bad outcomes. The tragic death of targets of federal investigation is a growing trend in antiquities prosecutions. Think also of the three suicides which took place after the display of federal force in the four-corners antiquities investigation.

We can't of course blame federal investigators and prosecutors entirely, but they do share blame here, and if as many argue we are using these prosecutions to deter future smuggling, looting, and tax fraud, well the deterrent impact is very much in doubt. Criminologists can articulate this better than I, but a well-established truth that irregular regulation, even one which results in custodial sentences, cannot effectively deter. And when there is such a pall of controversy over these federal investigations, it may actually ossify the attitudes of individuals in the trade that they are being unfairly and unjustly targeted.

1. Jason Felch, Stolen-artifacts case has cost much, yielded little, critics say, Los Angeles Times, May 18, 2013.