Cambodian art dispute

Last week saw the latest step in an art dispute between Cambodia and Sotheby's.

The dispute concerns a 10th century sandstone statue. Sotheby's listed the statue for auction on 24 March 2011.

The press release noted that the auction of Indian & Southeast Asian Works would "be led by a spectacular 10th century Khmer Koh Ker period Athlete from a European private collection (est. $2/3 million). Acquired by the original owner over 40 years ago, the figure is mate to the Koh Ker athlete at the Norton Simon Museum in Pasadena that is almost identical in posture and physical appearance." Indeed, it is reported that in 2007, archaeologists were able to match the statue to its pedestal at a temple site in Koh Ker, a temple complex 60 miles northeast of the more well-known Angkor Wat.

At the last minute, however, the statue was removed from the auction following a claim from the Cambodian government that it had been illegally removed from Cambodia during the reign of the Khmer Rouge and should be returned to the country. Subsequently, following a request from Cambodia, US federal prosecutors filed a forfeiture claim on Cambodia's behalf. Then, in June of this year, Sotheby’s filed an unsuccessful motion to dismiss the claim on the grounds that there was no evidence that the statue had been stolen from Cambodia.

Most recently, on 21 August 2012, evidence was filed that accused Sotheby’s of knowing that the sculpture had been stolen from Cambodia when it put the work up for auction in March 2011. In this respect, the New York Times reports that:

"In their new filing, the prosecutors included statements from two heritage law experts who said that, under Cambodian and British law, the statue should be treated as stolen property.

One expert, Matthew Rendall, said the statue is covered under Cambodian statutes, royal orders and decrees dating to the early 1900s that declare such items to be the “exclusive” and “immovable” property of the government. Mr. Rendall noted five occasions between 1985 and 1997 when Sotheby’s returned sculptures to Cambodia after claims they had been looted sometime after 1970.

Sotheby’s says the sculpture could have been spirited away any time during its thousand-year history and was bought in good faith by the husband of its current owner in 1975 from a London dealer.

Experts cited by the United States and Cambodian governments insist the statue was removed more recently. The say it was too remotely located and too heavy – more than 600 pounds — to have been carried off until adequate roads were built into the region sometime after 1960."

Disputes over ownership of looted artworks are not new. However, the decisions do go either way. It remains to be seen whether the statue will be returned to Cambodia. If it can be shown that Sotheby's knew that the statue was stolen, there is a good chance that the US attorney's claim will be successful. But, it is unlikely to be very easy to prove Sotheby's knowledge. Perhaps a better standard, in any case, is whether Sotheby's ought to have known. As one of the world's largest art auctioneers, it is difficult to believe that Sotheby's did not question the origin of the statue when it was offered to them for sale.

Source: The New York Times, 21 August 2012

Art as a crime deterrent: the Greens End experiment

In "Could babies' faces reduce crime?", posted today on the BBC website here, Daniel Gordon writes (in relevant part):

"A host of conventional measures have been tried to control anti-social behaviour - CCTV, community policing, court orders, and tougher sentencing - but could paintings of babies and other offbeat techniques help?

A parade of shops in south-east London is the site for an experiment.

As evening draws in, the shop shutters along Greens End, a street in Woolwich, come down, revealing a gallery of portraits of local babies. They were painted by a collective of graffiti artists, who worked from family photos sent in by people living close by. The Greens End shops were badly damaged by looters in the riots of summer 2011. The mobile phone shop belonging to Zaffar Awan was among those attacked. ... Awan is delighted with the face of Max - the little boy, dressed in blue, whose smile now adorns his shop front outside business hours.

"It's been here about three weeks now," he says, "Most passers-by who see him smile. I wish we could keep the shutters down and open the shop at the same time. That would be ideal."

Tara Austin, of Ogilvy and Mather advertising agency, which paid for and initiated the scheme, points to a series of research papers, published as long ago as the 1940s, into the effect that seeing an image of a baby has on an adult stranger: "The evidence suggests that babies' faces, the round cheeks and the big eyes, promote a caring response in human beings," she says. ... ".

This blogger hopes that the interests of the children portrayed are being adequately taken care of, since at that age they are unable to fend for themselves in terms of privacy and exploitation of their image in a manner that might prove embarrassing in their later lives.

If you're a man -- don't look! But is it discrimination?

SBS.com reports today on a complaint that the banning of men from watching images of Muslim women without veils in an exhibition due to open in New Zealand next month constitutes unlawful discrimination. The exhibition is to be held at the Dowse Art Museum, Wellington. The Dowse is hosting the world premiere of an art installation which includes a video by Qatari writer and film-maker Sophia Al-Maria called "Cinderazahd: For Your Eyes Only". The video features women getting ready for a wedding without wearing hijabs, or veils.

Dowse director Cam McCracken -- who, in keeping with Al-Maria's wishes, has not viewed the video -- explained that Al-Maria's work would be off-limits to men in keeping with the artist's wishes. He adds:

"I've bought into the fact that we take this work on the proviso that no men see it. We respect the artist and the privacy of the women who are portrayed."

However, a man by the name of Paul Young has complained to the Human Rights Commission and it is reported that Nicholai Anderson, a senior associate at the law firm Chen Palmer, has said that banning men would be unlawful discrimination by the museum or the people displaying the work, both under New Zealand's Human Rights Act and its Bill of Rights Act. While people had rights to their own religious beliefs, he explained, the laws of New Zealand, this was discrimination on account of one's sex.

While the Human Rights Commission has yet to comment on the issue, Al-Maria has issued a statement that images should be treated as privileged and private, for women's eyes only.

Ecco Homo and a botched restoration: call for the Inquisition?

Before ...

Few items of religious art have had such indignities heaped upon them as Ecce Homo ("Behold the Man"), a church fresco by Elias Garcia Martinez which has decorated the Sanctuary of Mercy Church near Zaragoza Spain, for more than a century.  According to this item on today's BBC news, this celebrated artefact -- which was in admittedly poor condition -- has fallen victim to a someewhat surreal rescue attempt by Spanish pensioner Celicia Gimenez.  According to the BBC,

" ... The woman took her brush to it after years of deterioration due to moisture. Cultural officials said she had the best intentions and hoped it could be properly restored. ... [Giminez] claimed to have had the permission of the priest to carry out the job.

"(The) priest knew it! He did! How could you do something like that without permission? He knew it!"

... [T]he delicate brush strokes of Elias Garcia Martinez have been buried under a haphazard splattering of paint. The once-dignified portrait now resembles a crayon sketch of a very hairy monkey in an ill-fitting tunic ...

Art historians are expected to meet at the church soon to discuss how to proceed. ...

The fresco is not thought to be very valuable, but has a high sentimental value for local people.

... [T]he local centre that works to preserve artworks had just received a donation from the painter's granddaughter which they had planned to use to restore the original fresco. .."

... and after

Apart from the usual issues (possible actions for criminal vandalism, negligence, insurance claims), there is one point which should not be forgotten.  Cecilia Gimenez's botched restoration is so far from the original that it is inconceivable that anyone but she could be regarded as its author and original copyright owner.  Had she done the job properly, bringing the fresco back to its original form, the work would not have been the result of her own intellectual creation and, as a reward for her skill and accuracy, by recreating that which previously existed she would have had no greater right than anyone filling in a Painting by Numbers template.

Now for an irreverent footnote: Cecilia's surname -- Gimenez -- is the modern spelling of Ximenes.  Those familiar with the Spanish Inquisition may recall the name of Ximenes de Cisneros, a Cardinal who held strong views on matters of religious orthodoxy.  Had Cecilia been around at the time of her namesake, might she have been burned at the stake for blasphemy?

English Court grants injunction in transatlantic art dispute

On 7 August, in the case of Lord Edward Albert Charles Spencer-Churchill v (1) Faggionato Fine Arts Ltd (2) Gerard Faggionato (3) Jombihis Corp (4) Alberto Mugrabi [2012] EWHC 2318 (Ch), the English High Court granted an interim injunction preventing the sale of this painting by Jombihis Corp (J) without first giving notice to the previous owner of the painting, Lord Edward Albert Charles Spencer-Churchill (Lord Edward).

Museum Security (Broadway Meltdown) by Jean-Michel Basquiat

The background to the case is as follows. Until the end of 2011, Lord Edward was the owner of the painting. In 2010, Lord Edward instructed the second respondent, Gerard Faggionato (GF), an art dealer, to find a purchaser for his painting. At this time, Lord Edward claims, he specified that he did not want to sell to Alberto Mugrabi (Mugrabi), the fourth defendant. In late August 2011, GF informed Lord Edward that he had received an offer of $6 million for the painting. GF informed Lord Edward that the offeror was a Floridian collector. Lord Edward was unsure as to whether this was a good offer and so asked GF to consult auction houses to deduce the reasonableness of the offer – with regards to the likely sale price of the painting at auction. Subsequently, GF told Lord Edward that he had spoken to auction houses and their opinion was that the painting could be offered for sale at auction with an estimate of $4-6 million but with no guarantee. Therefore, advised Lord Edward to accept the offer, which he did.

It later transpired that:

• There was no Floridian collector. The offer was actually from Mugrabi – the invoice for the sale was addressed to Jombihis Corp (J), which was a corporate vehicle used to hold art for AM's benefit;
• GF had received secret commission from Mugrabi or J in connection with the sale; and
• GF had not consulted auction houses as requested by Lord Edward.

Earlier this year, Lord Edward heard that the painting was to be sold at auction by Christie's New York on 8 May 2012, with a guide price of $9 million and a guarantee in place. On 4 May, Lord Edward's solicitors wrote to Christie's, GF and J advising them that Lord Edward would not prevent the proposed sale or dispute the title of any purchaser if escrow arrangements were put in place in respect of the net proceeds of the sale above $6 million. On the day of sale, however, Christie's withdrew the painting, amid concerns of the threat of litigation and rumours in the marketplace about the dispute.

On 3 July, Lord Edward brought proceedings on the basis that the painting remained vested in him because the purported sale was unauthorised and therefore void. This was followed, on 5 July, by inter alia an application for an interim injunction to restrain J from dealing with the painting until final judgment or further order.

The issues in respect of this application were, therefore, the standard oft-labelled American Cyanamid questions to be considered in respect of interim injunctions, namely: (i) whether there was a serious issue to be tried, and if so; (ii) where the balance of convenience lay.

On the first question, the Court said that there was no doubt that Lord Edward had a real prospect of success in his claim and that his point was an arguable one. Accordingly, there was a serious issue to be tried.

The Court then turned to the balance of convenience. In this respect, it noted the:

"...the position of both sides was "more than a little paradoxical:

(1) Lord Edward frankly acknowledges that his concern is only to maximise the amount of money that he received for the painting, yet seeks an injunction restraining J from dealing with the painting.

(2) J, on the other hand, disclaims any present intention to dispose of the painting...Yet despite this, J opposes the injunction sought, and is insistent that Lord Edward's cross-undertaking in damages should be fortified by security in the sum of $6 million."

But, whilst the Court acknowledged that there was force in J's submission that Lord Edward's claim was a money claim for the value of the painting and so its sale should not be prevented, it found that a sale in the current climate would have been unlikely to be at the best price reasonably obtainable if there were no dispute as to ownership. Therefore, damages would not have been an adequate remedy because of the obvious difficulties in valuing works of art. Further, Lord Edward had already been the victim of wrongful conduct by virtue of the secret commission given to GF. Accordingly, Lord Edward was entitled to protection against further possible wrongdoing.

However, the Court said that it was not appropriate to grant an unqualified interim injunction, and thus an injunction restraining J from dealing with the painting without first giving Lord Edward 28 days' notice of any proposed dealing was granted. In such a situation, unless J could satisfy Lord Edward that the proposed dealing was beneficial, Lord Edward would be able to return to court for an injunction preventing J from carrying the proposal into effect.

Already, this case has provided an insight into the exclusive and intriguing art market. I'll be certain to keep an keen eye out for further developments.

Indian artifacts smuggling continues affecting major museums

There are two main crimes in the world of dealing antiquities: selling forgeries and selling artifacts with improper provenance, particularly items that may have been stolen from archaeological sites. To this last purpose, two weeks ago federal authorities broke open a Manhattan storage where they found $20 million  allegedly looted ancient bronze and statue. Such illicit treasure belongs to Subhash Kapoor, a famous Indian art dealer based in New York.

Dozens of high-profile museums and galleries have acquired works of art through gifts or purchased from Mr Kapoor, through his gallery called "Art of the past" including: the Metropolitan Museum of Art (which has 81 works from Kapoor) in New York, the Los Angeles County Museum of Art (61), the Toledo Museum of Art  (44) and the National Gallery of Art in Australia (21), only to name few. However, other museums have acquired works from the Indian art dealer as: the Museum of Fine Arts in Boston, the Musee des Arts Asiatiques-Guimet in Paris and the Royal Ontario Museum in Toronto. 

Museums are cooperating with American authorities and many of them have instructed their curators to look at their collection to discover if they obtained Indian antiquities from Kapoor.

Meanwhile, Kapoor was arrested in Germany and extradited to India for face smuggling charges. One of his defences is that such works were actually given to the museum as forgeries, so that scholars could use them to identify fake items in their collections.

Many museums have been told that if Mr Kapoor is found guilty of smuggling, the only thing to do is to return such antiquities to India.



Skilled in the art: legal answers to questions of authenticity

An interesting issue which has been flagged by the press recently is whether the courts are qualified to make judgments as to the authenticity of artworks.

Reports the New York Times:

Federal District Court Judge Paul G. Gardephe’s résumé includes many impressive accomplishments but not an art history degree. Nonetheless he has been asked to answer a question on which even pre-eminent art experts cannot agree: Are three reputed masterworks of Modernism genuine or fake.

Judge Gardephe’s situation is not unique. Although there are no statistics on whether such cases are increasing, lawyers agree that as art prices rise, so does the temptation to turn to the courts to settle disputes over authenticity. One result is that judges and juries with no background in art can frequently be asked to arbitrate among experts who have devoted their lives to parsing a brush stroke.

The three art cases on Judge Gardephe’s docket in Manhattan were brought by patrons of the now-defunct Knoedler & Company who charge that the Upper East Side gallery and its former president Ann Freedman duped them into spending millions of dollars on forgeries.

The judge’s rulings may ultimately rely more on the intricacies of contract law than on determinations of authenticity. But the defendants and plaintiffs are busily assembling impressive rosters of artistic and forensic experts who hope to convince the judge that the works — purportedly by Jackson Pollock, Willem de Kooning and Mark Rothko — are clearly originals or obvious fakes.

Of course judges and juries routinely decide between competing experts. As Ronald D. Spencer, an art law specialist, put it, “A judge will rule on medical malpractice even if he doesn’t know how to take out a gallstone.” When it comes to questions of authenticity, however, lawyers note that the courts and the art world weigh evidence differently.

Judges and juries have been thrust into the role of courtroom connoisseur. Legal experts say that, in general, litigants seek a ruling from the bench when the arguments primarily concern matters of law; juries are more apt to be requested when facts are in dispute.

 The problem is that ultimately it may not matter what the judge or jury decides. In reality, if the art experts declare that a work is fake, a legal pronouncement is likely to have little effect – the market will heed the experts.


One of the paintings, attibuted to Jackson Pollock,
 in respect of which Judge Gardephe will be required to rule



Source: New York Times, 5 August 2012

Christie's conditions of sale found to be reasonable

The recent case of Avrora Fine Arts Investment Ltd v Christie, Manson & Woods Ltd (2012) saw Christie's' terms and conditions of sale put under scrutiny by the English High Court.

The case concerned a painting called “Odalisque” which the claimant, Avrora Fine Arts Investment Limited (“Avrora”), bought at an auction held by Christie's. The painting was said to be by a famous Russian artist Boris Mikhailovich Kustodiev. However, after the sale, an art dealer who had been asked to view Avrora's collection expressed doubts about the authenticity of the painting, and certificates were later obtained from Russian museums stating that the painting was not by Kustodiev.

The sale was conducted pursuant to Christie's' conditions of sale. These included a limited warranty enabling a buyer to cancel a sale and obtain a refund in the event that the item sold was found not to be authentic. They also provided that all statements made were statements of opinion; that, subject to the limited warranty, Christie's would not be responsible for errors and omissions in the catalogue; that each item would be sold "as is"; and that, subject to the limited warranty, no representation, warranty or guarantee would be given in respect of matters such as attribution, authenticity and provenance.

Avrora brought the claim to cancel its purchase of the painting and get a refund pursuant to the warranty given by Christie's. It also made claims against Christie’s for negligence and misrepresentation under the Misrepresentation Act 1967.

In respect of the first claim, the Court held that since the evidence indicated quite strongly that Kustodiev was not the painter, Avrora was entitled to cancel its purchase of the painting and to recover the money paid.

The Court then turned to Avrora’s claims under the Misrepresentation Act – that Christie's (i) had been negligent in attributing Odalisque unequivocally to Kustodievd; and (ii) had impliedly represented that it had reasonable grounds for attributing “Odalisque” unequivocally to Kustodiev when it did not in fact have such grounds. Both claims raise issues relating to the “requirement of reasonableness” in the Unfair Contract Terms Act 1977 (“UCTA”).

On the first point, the Court said that Christie's' conditions of sale made it clear that it was not assuming responsibility to Avrora. Therefore, the negligence claim must fail unless the conditions were found to be contrary to UCTA. However, on the second claim, the court found that a misrepresentation had been made as it was clear that Christie's had not only warranted that Odalisque was by Kustodiev but had represented that this was its opinion. Since Christie's was giving its opinion as well as a warranty, it had impliedly represented that it had reasonable grounds for holding that opinion.

The Court then considered UCTA. Avrora had submitted, that UCTA applied and Christie's' conditions failed the requirement of reasonableness as required under the Act since they would, if effective, preclude a negligence claim against Christie's. Christie's said that UCTA did not apply. The Court found that UCTA did apply as: "the conditions did “[part] company with reality” insofar as they negated the assumption of responsibility. The reality was that Christie’s had taken responsibility for the attribution of “Odalisque” to Kustodiev. It stated that that was its opinion; it gave Avrora a warranty to that effect; it indicated that its views reflected research (for example, by presenting itself as a centre of excellence and, more specifically, by explaining in the “Important Notes and Explanation of Cataloguing Practice” that more qualified catalogue entries – e.g. “Attributed to …” - were “based upon careful study” and represented “the opinion of experts”, tending to suggest that an unequivocal attribution would be too); and it was intending to charge the buyer a substantial premium."

The next question was, therefore, the “requirement of reasonableness” under UCTA was met. If Christie's' conditions failed to meet this requirement, the conditions could not bar a claim for negligence under the Misrepresentation Act. The Court found that the requirement of reasonableness was met. The court listed a number of reasons for this conclusion, including:

- there was no question of Avrora being left without a remedy if “Odalisque” proved not to be by Kustodiev, since Christie’s was giving a warranty;
- it was not unreasonable for Christie’s to exclude its liability in the event that the authenticity of the painting was incorrect;
- while Christie’s only contracted on its own standard terms, Avrora is a vehicle for a particularly rich man and it was under no economic imperative to deal with Christie’s if it did not wish to; and
- Avrora appeared to have some familiarity with Christie’s’ terms, and in any event could reasonably be expected to know of them.

Accordingly, the relevant parts of the conditions were not invalidated by UCTA and so could serve to bar the claims for negligence and misrepresentation.

To summarise, therefore, Christie's can continue to conduct business under its standard conditions of sale, under which it can contract out of liability in relation to the lots it sells. However, if it is established that a painting bought at a Christie's auction, under those conditions, is a forgery, the purchaser should be entitled to cancel the purchase and claim a refund of the money paid.

Colosseum won't be restored in a day

A Colosseum's view

Italian cultural officials announced that the  Colosseum, the most important monument in the world, will be entirely restored starting from December 2012 till 2017. Restoration will cost around 25 million Euro and will be sponsored by the fashion brand Tod's, thanks to a contract signed among: such shoes company, the city of Rome and other public authorities as the Ministry of the Italian Culture. 

The conservative works of Colosseum will eventually start after an Italian consumers' association currently lost their legal suit, where they challenged the sponsorship agreement with Tod's, saying that other potential benefactors were illegally excluded from the  public bid. 

The restoration will start 73 years after the last works on the monument took place and will be divided into  three stages. The first stage of restoration involves cleaning and restoring the monument façades and the substitution of the metal enclosures that seal off the ground-level arches: this first period is expected to end by mid 2015.

The second stage deals with the creation of a service center and should finish at the end of 2015, whereas the last stage will involve the restoration of: various galleries, underground spaces inside the monument, besides all the Colosseum surroundings and will finish in 2017.

Diego della Valle, Tod's chairman, said he hopes his sponsorship can incentive other businessmen, both Italian and foreigner, to do the same helping to preserve Italian artistic patrimony. However, the sponsorship of the restoration will grant Tod's the exclusive right to use the Colosseum logo for 15 years on its products, print Tod's trademark on entry tickets, besides managing a reception center.

Finally, visitors to Colosseum will be glad to hear that the most important symbol of the Imperial Rome will remain open throughout the conservation works. The total space that can be visited will be increased by 25% once the restoration is complete