Three Suspects Arrested in Relation to the Kunsthal Museum Theft, Yet Paintings Remain MIA

Empty wall space where Matisse's "La Liseuse en Blanc et Jaune"
once hung in the Kunsthal Museum in Rotterdam.
Source: The Star. 

On January 22, Romanian police arrested three suspects believed to be involved with Rotterdam's Kunsthal Museum theft.  Although the men are now in custody, the stolen paintings remain missing.  On October 16, 2012, thieves made off with seven paintings valued together in a wide range of estimates: $79 million by The Daily Telegraph, $395 million by The Independent, $160 million by The Times, $130 million by the Bloomberg News, over $100 million by Forbes, and between $63 to $95 million by The Art Loss Register.  

 The Romanian Insider reports that the police became involved when a Matisse with questionable provenance was offered to a Romanian buyer.  A former girlfriend of one of the three identified the suspects from a photograph as Mihai-Alexandru Bitu, Eugen Darie and Radu Dogaru.  Initially it was reported that two paintings were found in one of the suspects homes, but this turned out to be false. 

Romanian police arrest one of the three suspects.
Source: Adevraul via ARCA.

Much remains unknown.  Speculation, grandiose headlines, misinformation and even some mud slinging abound.  All that is known, however, is that seven master works, prized pieces of art history, are missing and in danger.  They include Meyer de Haan's Self Portrait (1890), Gauguin's Girl in Front of Open Window (1898), Monet's Waterloo Bridge, London (1901) and Charing Cross Bridge, London (1901),  Matisse's Reading Girl in White and Yellow (1919), Picasso's Harlequin Head (1971), and Lucian Freud's Woman with Eyes Closed (2002).  

The list is almost a eulogy, but certainly not an obituary.  The arrests are the first step toward finding the paintings.   

Sources: Association for Research into Crimes Against Art, BBC News, The Telegraph, The Romanian Insider. 

Getty's Efforts to Verify Ownership x 45,000

Museums loath to admit that some objects that they hold have dubious provenance or questionable title. From time to time, it is inevitable that one or two pieces may need verification of ownership. In the case of the J. Paul Getty Museum this little house cleaning, verification process will affect 45,000 objects.

Co-author of "Chasing Aphrodite," Jason Felch, wrote an article about Getty's plans; it appeared in the January 19, 2013 issue of LA Times. He writes: "In the wake of a scandal over its acquisition of looted antiquities, the J. Paul Getty Museum is trying to verify the ownership histories of 45,000 antiquities and publish the results in the museum's online collections database. The study, part of the museum's efforts to be more transparent about the origins of ancient art in its collection, began last summer, said Getty spokesman Ron Hartwig."

Allegedly, Getty abandoned acquisition of ancient art, but the existing holdings will consume "unparalleled resources" before and if historians succeed in uncovering their provenance history.

Read the full story about the collection with so many objects acquired with problematic ownership here.

Pragmatic not Sympathetic US rejects ADR forum for Nazi looted art

Three special envoys for Holocaust issues later and 14 years after the adoption of the Washington Principles on Nazi Confiscated Art, the promise of a U.S. COMMISSION ON ART DISPLACED DURING 1933-1945 is no more. On November 27, 2012, at the International Symposium on Alternatives to Litigation in Nazi-Looted Art Disputes (the "Symposium"), Douglas Davidson, the current US Special Envoy for Holocaust Issues (the "Special Envoy") delivered a somber verdict, U.S. cannot afford to resolve World War II related art claims by means of alternative dispute resolution (ADR).

The Symposium was hosted by the Dutch Restitution Committee, known as The Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War. Many European countries, not only the Netherlands, rely on advice issued by national commissions tasked with processing claims and recommending to the cultural ministries whether particular contested property should be returned to the claimants or retained by the museums as good title owners. In his role as the Special Envoy, Davidson is "responsible for developing and implementing U.S. policy pertaining to the return of Holocaust-era assets to their rightful owners, compensation for wrongs committed during the Holocaust, and Holocaust remembrance."

What did prompt the United States to consider having an ADR forum for resolving World War II art claims in the first place? In 2009, galvanized by the Prague conference and in response to the growing number of Nazi era art-related claims brought in the United States (Museum of Fine Arts v. Serger-Thomschits, 2009 U.S. Dist. LEXIS 58826 (D. Mass. Filed Jan. 22 2008); Detroit Inst. Of Arts v. Ullin, 2007 U.S. Dist. LEXIS 28364 (E.D. Mich. March 31, 2007); Toledo Museum of Art v. Ullin, 477 F. Supp. 2d 208 (N.D. Ohio 2006)), domestic attorneys, politicians and academics began in earnest discussing the dispute resolution models adopted in Europe in hopes of finding an alternative forum to resolve domestic Holocaust-era related disputes.

In the fall of 2009, U.S. Department of State hosted a series of town hall meetings in Washington, DC to discuss the viability of creating an advisory commission in the United States. In November of 2009, Ambassador J. Christian Kennedy, then the United States Special Envoy for Holocaust Issues, circulated the first draft of a proposal for forming such a panel. He solicited and received  comments from the trial attorneys, academics and museum counsel. The comments were mixed, for example, during the second annual Art Litigation and Dispute Resolution Institute, held in New York on November 20, 2009, a group of panelists debated the merits of the proposal. The panelists included Ambassador Kennedy, Charles A. Goldstein, of counsel for Herrick Feinstein and Director of the Commission for Art Recovery, Prof. Jennifer Kreder, NKU Salmon B. Chase College of Law, and Prof. Edward Gaffney, Valparaiso Law School. Goldstein argued that the European models, such as the U.K. Spoliation Advisory Panel and the Dutch Commission are not adoptable to the American legal landscape, because most European museums are almost exclusively government-owned, their the restitution or compensation decisions require government action, where is in the United States, most museums are private non-profit organizations and a federal or state decision to deaccessioning something would be unconstitutional as seizure of property. Kreder and Gaffney were more optimistic about benefits of a U.S. Advisory Panel.

There was little talk about the Panel/Commission since 2009. Three years later, Davidson was asked to comment on the U.S. progress in creating an advisory entity "to deal with ownership disputes over Nazi-confiscated art in the United States." Polite and circumspect ("Like many things that involve the large and disparate and in many ways unique country I come from, this is not so simple a subject. I doubt I can do this topic justice in the brief time allotted to me today, either"), Davidson tried to paint a picture of the "current thinking within the United States Government in regard to this controversial topic."

He admitted that in 2009 there was a basic agreement that a U.S. Commission would provide an ADR forum to allow claims for lesser value objects be brought against the current possessors without claimants incurring high litigation costs. "We have not yet, however, come up with a model of a commission – what qualifications commissioners should have, how they would be appointed, where in the federal government structure the commission would fit, what its exact responsibilities would be, how it would be funded."

Davidson came short of admitting that the idea of forming a U.S. Commission was rejected permanently. He listed many impediments both financial and institutional that all but make a U.S. Commission impossible to create and operate. He identified the following impediments:

• the unique nature of the American system of government, aka the “Federal Government,” without a  Ministry of Culture. "Given our history, traditions, and inclinations, it also strikes me as highly unlikely that we will create such a cabinet department any time soon."
• privately owned museums; "As the website of the American Alliance of Museums laments, “Only a small (and shrinking) percentage of America’s 17,500+ museums receive federal funding of any kind.”  Whereby European museums are government owned and sponsored, they are more likely to follow orders from their proper governments. There is less direct control over the American museums.
• location of the displaced art, "the amount of art displaced between 1933 and 1945 and still in Europe is also considerably larger than the amount of displaced art now in the United States. 
• inability to locate the commission in the United States Department of State (despite the fact that there is a Cultural Property Advisory Committee under the Department of State already).

In his presentation, Davidson was frequently and at length quoting Ambassadors Kenned and Stuart E. Eizenstat. For example:

"As Ambassador Kennedy pointed out in a speech in Potsdam in 2007 entitled “The Role of the U.S. Government in Art Restitution”: [A]rt restitution in my country has generally involved a private citizen who discovers that an artwork once held by his or her family is now hanging in a museum or private collection. A claimant new to the art field may need to hire experts who can help with this process. On the other side of these cases, we find the holder of the art, usually a museum or collection. This holder may have done some provenance research on its holdings but has sometimes been unaware of the complete history of the individual works. Usually working through their respective attorneys, the two parties attempt to establish and agree on the facts of the case, and then to work out a settlement. Agreements between parties without resort to judicial channels have been frequent. If the talks break down, or if they fail to get started at all, the claimant has the option of turning to the courts. Many museums, as I am reminded from time to time by museum officials, do in fact voluntarily return works of art to those they deem the rightful owners. Our larger art galleries, like our larger art auction houses, even employ officials to research the provenance of their holdings or of the art they wish to sell." 

Davidson's address seemed to cover all the basis, he said things that were for the ADR forum ("One could envision a litigant with a claim that is time-barred attempting to pursue that claim before an art commission, if such a thing existed in the United States, with no statute of limitations.") and against it ("...we need to keep these words in mind as we examine the current state of efforts to create an art spoliation commission in the United States of America, if only because, as I pointed out earlier, our national laws, procedures, and practices are perhaps another example of what we like to call “American exceptionalism.”). He quoted articles stating that litigation is not the best avenue for resolving disputes regarding art works looted during the Nazi era, and yet he posited as to why the US should re-invent the wheel if there are organizations and laws in place already that handle such disputes, namely the HCPO/Holocaust Claims Processing Office, the Federal Bureau of Investigation, The Immigration and Customs Enforcement of the Department of Homeland Security ("I sometimes think these are actually our most effective alternate dispute resolution mechanisms for cases of Nazi-confiscated art.") 

Many quotes and digressions later, Davidson concluded "To put it briefly, no one within the United States Government has given up on the idea of the commission that Ambassadors Eizenstat and Kennedy outlined two to three years ago. ...  it remains United States policy that alternatives to litigation are preferable in dealing with Holocaust-era claims. So, in the end, we have begun to turn our attention outwards. We have begun, in other words, to explore an alternate means of creating an alternate dispute resolution mechanism for art displaced before and during the Second World War." Does not two negatives make a positive, would not an alternative to an alternative to litigation be litigation?! RIP U.S. Art Spoliation Commission.

For the full text of Davidson's presentation, visit U.S. Department of State.
Additional comments about the Symposium. 

New Declaration Proposed for Saving Cultural Property

During the Seventh World Archaeological Congress held in Jordan last week, January 13-18, 2013, Professors Friedrich T. Schipper (University of Vienna) and Patty Gerstenblith (DePaul University, Chicago) organized a program entitled "Archaeology as a Target." It focused on the recent and ongoing efforts concerning the protection of cultural property in the event of armed conflict and civil-military cooperation. During the Congress, Schipper and Gerstenblith allegedly proposed a "Declaration on the Protection of Cultural Property in the Event of Armed Conflict,” with fifteen recommendations as to how governments may protect their cultural property. The Declaration includes the following:

1. In regard to the damage to cultural property in the most recent conflicts, e.g. in Syria, Mali and other countries around the world, WAC expresses its serious concern at the ongoing disregard by States as well as conflict parties, state and non-state, of the instruments of international humanitarian law and subsequent principles to protect cultural property.

2. WAC states that intentional destruction of the cultural property of others – constituting a basic tangible aspect of cultural heritage and identity – is increasingly becoming a central element and high priority target in armed conflicts, and the cultural cleansing of whole regions as a prime goal of warfare, which has to be considered as an aspect of ethnic cleansing and a crime in terms of international humanitarian law.

3. WAC calls on all States to ratify the various instruments of international humanitarian law to protect such cultural property, above all the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague 1954) and its two Protocols (1954 and 1999) as well as the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Paris 1970) and others; to swiftly and efficiently implement them into national legislation and in the sense as originally intended by the conventions, and to observe and enforce them.

4. WAC calls on non-state actors involved in armed conflicts to observe the principles of these international conventions and of customary international law; to respect the cultural property of others, and to refrain from negligently or intentionally destroying or damaging cultural property during conflict.

5. WAC voices its concern about the increasing use by States of private military/security companies in armed conflicts and calls on such States as well as on above said companies to ensure that the principles of international law in general, and such international law concerning cultural property protection in particular, are observed by such companies.

 6. WAC reminds individuals as well as conflict parties – state and non-state actors including private military/security companies – that destruction of cultural property has served as a basis for criminal tribunal prosecutions following both World War II and the Yugoslav Wars and that destruction of cultural property in armed conflict will continue to serve as a basis for criminal prosecution.

7. WAC calls on the United Nations to include the principles of cultural property protection in the authorization of any forces deployed under UN mandate; to ensure that cultural property protection is integrated into all Rules of Engagement of forces deployed under UN mandate; to require pre-deployment training in cultural property protection of such forces in general, and of their officers in particular, deployed under UN mandate, and to create the position of expert/liaison officers for cultural property protection in such forces deployed under UN mandate. WAC calls on States that participate in missions under UN mandate to do their utmost to preserve cultural heritage in the areas subject to this mission. WAC further calls on other multinational, international, intergovernmental, supranational etc. treaty organizations, under whose auspices forces may be deployed into conflict areas, to adopt the same principles listed here.

8. WAC calls on the United Nations to explicitly prohibit trade in cultural materials illegally removed from all areas of conflict and occupation (as it did during the Iraq war of 2003).

9. WAC calls on all States and actors – considering the Second Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict – to refrain from any interference with cultural heritage – that is to refrain from cultural property preservation, conservation, renovation, archaeological excavation and other forms of such work – in occupied territories, except where strictly required for salvage purposes.

10. WAC calls on all nations and actors to respect the pluralistic religious and cultural heritage of their regions and, in particular, to preserve historic structures, religious buildings and other forms of cultural property of minority groups located within their territory.

11. WAC calls on market nations – considering the First Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict and Article 11 of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property – to prohibit the import of cultural objects from areas subject to armed conflict and military occupation and – further considering the principles of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property – to prohibit the import in any way of cultural objects whose provenience is not clearly and thoroughly proven according to best practice international standards.

12. WAC calls on all States that suspended their funding of UNESCO to resume its funding, which constitutes the basic requirement for the fruitful and pacifying work of UNESCO in general and its cultural heritage work in particular.

13. WAC calls on all States Parties to the Second Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict and moreover to all States Parties to the said Convention to regularly and substantially meet their obligation to contribute to the Fund for the Protection of Cultural Property in the Event of Armed Conflict established in Article 29 of the Second Protocol.

14. WAC calls on all scholars, in particular its members, to study the instruments of international law that protect cultural property, to consider them in their scholarly work where appropriate, to promote them within their communities and towards the governmental authorities in their home countries, and to carefully and responsibly use them and to refrain from abusing them in a polemic mode.

15. WAC invites all scholars, in particular its members, to actively get involved in UNESCO affiliated NGO-work fostering cultural property protection whenever and wherever feasible and appropriate, in particular via ICOM, ICOMOS, and Blue Shield.

Sources: SAFE; WAC7

Serra Threatens to Withdraw Work from the Broad Collection

Serra's installation at the Metropolitan Museum of Art in 2011.
The United States Destroys  Art (1989) is on right. 

According to The Art Newspaper, Richard Serra is threatening to remove a piece from the Eli and Edythe Broad Collection.  The issue boils down to dating.  

Richard Serra in front of one of his
monolithic installations.

Serra is well known for reworking and recreating works that are damaged and destroyed.  Recently, Serra resurfaced The United Stated Government Destroys Art in the collection of Eli and Edythe Broad.  The Broad's, now the Broad Art Foundation, plan to date the work to reflect the changes.  Yet, Serra is arguing that the work should remain dated to 1989 when the work was originally completed.

The drawing was part of Serra's Metropolitan Museum of Art retrospective in 2011.  The Met resolved the issue of dating by labeling the pieces with two dates-- the first representing the original date of completion and the second identifying the date of modification.  Magdalena Dabrowski, curator of the Serra retrospective, explained the dating of The United States Government Destroys Art: "Serra felt that 1989 was the inception and therefore the drawing was only a 1989 work.  Moral rights gave him the right to date as opposed to historical accuracy."


The Visual Artists Rights Act (1990) does give Serra the right to date works as he deems appropriate. 17 USC § 106A (McKinney 1990).  Serra argues that although the drawing was resurfaced, the concept remains the same.  He stated: "Let me put it this way: usually... if a work is destroyed or damaged and there is the possibility of recovering it, then if it can be saved, I try to save it.... I think it's my responsibility to make sure the work exists in the way I want it to exist."  

Tilted Arc, 1981, Federal Plaza NYC, removed
March 15, 1989.

Serra's sensitivity to VARA is understandable, but he has never exercised his right to disclaim authorship of a work.  He previously threatened to disclaim authorship of Titled Arc during government proceedings to remove the work from Federal Plaza in New York City.  The installation was removed, following massive controversy, in March 1989.  Since VARA became effective in December 1st, 1990, Serra had no moral rights over Titled Arc.  The naming of The United States Government Destroys Art drawing, created itself in 1989, reflects his feelings toward the incident and is possibly the motivation behind Serra's potential VARA claim.  The action would certainly be symbolic.    

When The Art Newspaper questioned Serra about his plans he only answered, "That's hypothetical."    The issue has yet to be resolved and legal action is possible down the road.  It is a situation to watch carefully since VARA is still being tested in court and has only recently begun to build precedent.     


Sources: The Art Newspaper, The Huffington Post, "A Guide to the Visual Artists Rights Act" by Cythia Esworthy

Of Brooklyn Museum, Colonel, and [Cy Pres]

Once upon a time, the Brooklyn Museum was poised to be the largest art museum in the world. The building of the Brooklyn Museum, designed by McKim, Mead and White, opened in 1897, and the Museum received thousands of donations and bequests from affluent city residents and natives, including Colonel Michael Friedsam (1932 bequest) and Minor C. Keith (1934 purchase).

Friedsam bequest contains almost one thousand works, of which a quarter is deemed undesirable (fakes, misattributions or shabby). According to the terms of the bequest, the museum must obtain permission from the Friedsam estate's executors to deaccession any of these objects. According to the Museum's general counsel, Francesca Lisk, the last Friedsam executor died fifty years ago in 1962. Therefore, it is impossible to give literal effect to the bequest document.

Apparently, the Brooklyn Museum is working with the New York State Attorney General’s Office to resolve the bequest conundrum, further complicated by Friedsam's will... (to be continued).

Source: The New York Times;
Image: Portrait of Louis XI, marked for deaccessioning (Brooklyn Museum).

The Recovery of a Henri Matisse is a Victory for the Art Loss Register and a Reminder that Art Theft is Increasing

Henri Matisse's Le Jardin recently recovered
by the Art Loss Register.

When Henri Matisse's Le Jardin was stolen from the Museum of Modern Art (Moderna Musset) in Stockholm on May 11, 1987 it was believed to be a total loss.  The painting is now on its way home to Sweden after 25 years thanks to the Art Loss Register (ALR).

Charles Roberts, owner of Charles Fine Art, is also being lauded for his due diligence.  When a Polish collector approached Roberts to inquire about selling Le Jardin, he searched the ALR database and identified the painting.

Roberts notified the ALR and its director, Christopher Marinello, stepped in personally to begin negotiations with the Polish collector. Marinello is keeping the exact details private, but told the BBC "No payments were made, no arms were broken."  He happily noted: "Let's just say this was a Christmas present for the people of Sweden."  Kristen Ek, the spokeswoman for the Museum of Modern Art Stockholm, agreed: "It is fantastic that the painting has turned up again.  It was stolen so long ago that really we had almost given up hope."

The recovery is a significant victory for the ALR, the largest international private database of stolen, missing, and looted artwork.  At an International Foundation for Art Research (IFAR) lecture in December, Marinello strongly reiterated that art thefts are on the rise and that diligence is increasingly important.  Following drug trafficking, money laundering and arms trading, art theft is the most lucrative blackmarket activity internationally.  Current predictions are that the sale of stolen art now totals over $7 billion every year.  Unfortunately, only five to ten percent of stolen artwork is recovered.

Christoper Marinello, director of the Art
Loss Register, proudly displays
the recovered Matisse.

Robert Wittman, former Senior Investigator and Founder of the FBI National Art Crime Team (ACT) and author of Priceless: How I Went Undercover to Rescue the World's Stolen Treasures, stressed at IFAR's December lecture that art thieves are not Pierce Brosnan from the "Thomas Crown Affair" or Cary Grant from "To Catch a Thief."  Most thieves know nothing about art. Our recent coverage on the recovery of two Henry Moore sculptures illustrates just this.  Liam Hughes and Jason Parker both pleaded guilty of stealing two Henry Moore bronzes worth $930,000 from the grounds of the Henry Moore Foundation.  At their sentencing in December, Carlo Coccarro, the lawyer representing Parker and Hughes, argued that the sculptures were stolen because of their easy access.  In reference to Moore's Working Model for a Sundial, he stated: "It was never the intention to take it for artistic value."  The Daily Mail reported that Parker and Hughes were not aware that the two pieces had any market value and sold them as scrap metal.

Public awareness of art theft only becomes a news story after a major incident.  On March 18, 1990, the theft at the Isabella Stewart Gardner Museum captivated international audiences.  Paintings by Vermeer, Rembrant, Degas and Manet worth over $500 million disappeared overnight.  The heaviest loss was arguably The Concert, one of only 36 known Vermeer paintings.  The theft continues to fascinate the public 23 years later.

Vermeer's The Concert stolen from
the Gardner Museum in 1990. 

Art thefts have grown with the economic downturn in 2007. The Wall Street Journal  reported that between 2007 and 2008 thefts increased from 14,981 to 16,117.  The numbers for 2012 are, as yet, unavailable, but the continuing budget cuts at museums and the increasing sophistication of thieves only compound the trend.  Many museums can no longer afford to maintain security systems, let alone update them.  In addition, the method of art theft has changed.  Although there are exceptions, modern thieves now rob museums by force using weapons, rather than the old school manner of sneaking into museums by the cover of darkness. According to the International Council of Museums (ICOM), thieves are now raising the stakes.

The Museum of Modern Art in Stockholm is still missing three Picasso paintings and one Braque stolen in 1993.  If you have any information contact the ALR, the FBI Art Crime Team or Interpol.

Sources: The Wall Street Journal, The Isabella Stewart Gardner Museum: Theft Overview, The Daily Mail, BBC, The Art Loss Register, International Foundation for Art Research "Anatomy of an Art Sting" Lecture, Center for Art Law. Images from BBC, The Art Loss Register and the Isabella Stewart Gardner Museum.

Change in Tides: Warhol Foundation Wins Suit Against Insurance Provider

The tides have turned for The Andy Warhol Foundation (the Foundation).  On December 12, 2012, ArtInfo announced that the Foundation recovered $4.6 million plus interest from their insurer, the Philadelphia Indemnity Insurance Company (PIIC).  Judge O. Peter Sherwood of the New York Supreme Court dismissed PIIC's petition for summary judgement and ordered the company to pay up.  

The Foundation was shaken to its core last November when they settled a largely disputed anti-trust case referred to as the "Simon Action." The settlement left the organization with $6.6 million in legal fees and led the Foundation to decide that they would no longer authenticate Warhol pieces.  The Foundation purchased the PIIC coverage to protect themselves from future legal fees.  Michael Straus, chair of the Warhol Foundation board stated: "The Foundation was forced to defend two meritless but costly lawsuits, and PIIC has wrongfully refused to honor its obligation under the policies to reimburse us for those costs."  

The Foundation will use the recovered funds to continue their dedication to foster the arts through grants and public service.  Nicholas Gravante, Jr. of Boise, Schiller & Flexner noted: "The resources the Warhol Foundation will have to expend fighting PIIC, which it paid and trusted to protect it in this precise time of need, brings squarely into focus whether it still makes economic sense for art authentication boards to exist and provide their free public service.  Aside from the wasted time, every dollar it spends litigating is diverted from the Foundation's promotion of the arts, which is its one and only mission."  

The Warhol Foundation's latest initiative offers assistance to art organizations affected by Hurricane Sandy.  The Foundation has allocated $2 million to the cause.  If you are interested in the program contact the New York Foundation for the Arts, which will be administering the funds.  

Sources: The Andy Warhol Foundation for the Visual Arts, ARTnews, Artinfo.