Sotheby's battles US Government over Cambodian statue

Another update, this time to the Cambodian art dispute reported here.

By way of reminder, in August 2011, the US government intervened in a claim by the Cambodian government in respect of an ancient sandstone statue that was listed for auction by Sotheby's. Sotheby's then withdrew the statue from sale.

In a latest development, both sides to the dispute have filed motions with the US District Court in Manhattan accusing the other of unethical behaviour.

On it's side, Sotheby’s is accusing the US government of intervening in their negotiations to sell the statue in a private deal which would have allowed for the return of the statue to Cambodia. Their claim is that the government blocked the deal as it wanted all the credit for the statue's return.

Meanwhile, the prosecutors have accused one of their former colleagues,  Jane A. Levine, who now works for Sotheby's, of providing them with “false and misleading information” in relation to the statue.

Sotheby's, additionally, filed further evidence disputing the ability of the US government to bring the case, and asked the judge to defer the further exchange of discovery until the court has ruled on on its motion to dismiss the case.

The court has set the next hearing for 14 October.

Source: The New York Times, 13 September 2013

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

Don't be a mug: Yet another reason to avoid arrest

Lenora's eyebrow always gave the game away under interrogation

This blogger is the first to admit that she is a bit behind in her blogging efforts. However, behind the scenes she has been gathering a variety of art law updates from the summer months for your edification. The favourite of these untold stories comes from an August edition of the New York Times.

Larken Design, A US based company has discovered a surprisingly lucrative trade in selling reproductions of 1955 California police mug shots.

But have the owners of Larken design got permission to use these images? Do they even need it? According to the New York Times, the origins of the prints are as follows:

“Ms. Finke [one of the founders of Larken Design] found the original photos nearly two years ago at an antiques store in … Nevada. They were thrown out more than a decade earlier by the Alameda County Sheriff’s Department in California, when it went to an automated jail-information system. The Nevada store owner had bought about 200 of them, for $50, from an unknown local flea-market seller.”

The Larken Design website says “This poster was created from the original Police Department negative we own. Awesome, right?”

The images are indeed pretty awesome but the copyright presumably belongs to the US Government (with moral rights attaching to the police photographer). This presumption was put to the test by Casey Nice, assistant sheriff for Alameda County (the County from which the mugshots originated), who told the New York Times that “since arrest records in California are public information, dissemination does not appear to be a crime. Nor did they have copyright protection.” This blogger does not pretend to understand the nuances of US copyright law but is surprised by the above verdict. Readers who have a greater understanding of such nuances – please comment below.

The photos have also been touched up to highlight physical features and, in some instances, they have been tinted. There may have been sufficient creative input by Larken Design to create a new copyright protected work in the retouched images.

Jeff liked the Larken tinting - better than Just for Men gel

In addition to the cloud of uncertainty which surrounds the copyright in these images there is the possibility of a claim for breach of privacy. Although the individuals are not named and 55 years on they have no doubt changed in appearance they are nevertheless potentially identifiable. As the company’s success increases, the potential for an individual or class action for breach of privacy must be something the owners have considered. The New York Times looked into this issue in particular detail and obtained the opinion of Peter Swire, a law and judicial administration professor at the Moritz College of Law at Ohio State University. He believed that Larken Design would have a strong defence on the basis that “they’re not telling the names of anybody, so they’re not harming any individual, and that under the First Amendment they’re allowed to publish truthful old photos… The fact they’re making money doesn’t change the analysis.”

If you have an alternative opinion please get in touch.

Larken Design is by no means the only company to use police mugshots for commercial gain. The Smoking Gun divides its mugshots collection into civilians and celebrities. Bad and Busted is an online magazine of “ALL AVAILABLE arrest records, sex offenders, and most wanted mugshots weekly!! Now for sale in Baldwin, Greene, Morgan, Putnam & Walton counties, [Georgia, USA]”. Both sites use the mugshots for entertainment/vigilantism rather than art.

Significantly, the images on these websites are all fairly contemporary. Unlike the anonymous and gentle artistic approach of Larken Design, these images are designed to maximise the embarrassment factor for the individuals concerned.

Feeling a mug? Buy your own mug book here.

[Update: Clearly Simone and I have similar interests...! For an alternative take on the issues in these photos, please see Simone's earlier post here. Apologies to readers for the duplicated material].

No innocent owner defence for stolen art as US court orders return of painting to France

In a recent decision of the United States Court of Appeals Second Circuit, another innocent buyer of a stolen painting has had to forfeit the work to the original owner from whom the work was stolen.

The painting in question is “Le Marché,” by Camille Pissarro, which was one of two paintings stolen from the Musée Faure in Aix–les–Bains, France on November 16, 1981.
By way of background, in 1985, the claimant/appellant, Sharyl R. Davis purchased the painting at fair market value from J. Adelman Antiques and Art Gallery, to whom the thief had consigned the work, unaware that it had been stolen, and it was only twenty years later, when Davis consigned the work to Sotheby's for sale at auction that the painting's provenance came to light. At this point, the French police became aware of the impending sale and informed US law enforcement officials that the painting had been stolen twenty-two years earlier. The US Department of Homeland Security thus requested that Sotheby's withdraw the painting from auction, and following the compilation of evidence to substantiate the theft, the US government filed a complaint in the Southern District of New York in November 2006 seeking forfeiture of the painting in order to return the work to France.

On 19 January 2010, the district court gave its judgment in favour of the US government and ordered forfeiture. Davis appealed and the 2nd US Circuit Court of Appeals was required to hear the matter. Davis argued that the government had failed to demonstrate probable cause under the applicable US law, namely, 19 U.S.C. § 1595a and the National Stolen Property Act.

Under section 1595a, merchandise “introduced into the United States contrary to law,” may be subject to forfeiture if that property “is stolen, smuggled, or clandestinely imported or introduced.” To satisfy the “contrary to law” requirement, the government alleged that the thief had violated the NSPA by stealing Le Marché from the Musée Faure back in 1981, transporting it into the United States, and then consigning it to Adelman. Davis submitted that the district court committed three errors in its application of the NSPA. Firstly, Davis argued, “contrary to law” referred only to violations of the customs laws, not to violations of the NSPA. Second, Davis said that the district court erred in granting summary judgment to the government on whether Le Marché's value met the NSPA's statutory minimum of $5,000. Finally, Davis argued, Le Marché was no longer “stolen” property within the meaning of Section 1595a(c), and was therefore not subject to forfeiture.

Unfortunately for Davis, the Court rejected each argument. In particular, in relation to Davis claim that she should have been allowed to assert an innocent owner defence, the court noted: 

• The statute states that property introduced into the U.S. contrary to law "shall" be forfeited.
• Use of the word 'shall' “indicated that Congress intended forfeiture under §1595a(c)(2) to happen as a matter of course.
• Such definite language was not susceptible to an interpretation that a legitimate possessory interest in the property might defeat an otherwise valid forfeiture claim.
• It was unsurprising that the law — enacted more than eighty years ago — would require forfeiture of property regardless of the owner's culpability.
• Early statutes used to enforce the customs laws․ generally, contained no innocent owner defence. Historically, the owner of forfeited property could be entirely innocent of any crime, and, indeed, the Supreme Court had held, in a case addressing another provision of the Tariff Act of 1930, that “forfeiture may be enforced even against innocent owners․ The penalty is at times a hard one, but it is imposed by the statute in terms too clear to be misread.”

This judgment is an important reminder of requirement for sound due diligence in the purchase of art. Not only did Davis have to pay the costs of a drawn out court action, but she also lost the benefit of her long term investment.

Read the full decision here.

More fighting around Egyptian art

As reported here, it was not long ago that political battles were threatening artworks in Egypt. Now, there is a legal battle over a piece of Egyptian art in the US.

The artwork is an Egyptian mummy mask known as the Mask of Ka-Nefer-Nefer, said to be approximately 3,200 years old, which was discovered in about 1952.

Presently the mask is the possession of The Saint Louis Art Museum which has recently filed a complaint in the US District Court for the Eastern District of Missouri in Saint Louis. The Museum seeks declaratory relief that the US government (and in particular the US Department of Homeland Security) is not entitled to seize the mask from it.

The Complaint sets out the background as follows.

After the mask was discovered, in the early 1960s, it became part of a private collection which was purchased by a Croatian collector in Switzerland. In around 1995, the Croatian collector sold the mask to a Swiss company (Phoenix Ancient Art SA).

Subsequently, towards the end of 1997, the Museum initiated an investigation into the provenance of the mask as it intended to purchase the mask from Phoenix. At this time, the Museum made multiple enquiries into the mask's provenance to ensure that it was not stolen. These enquires were made of a number of individuals and entities, including: the director of the Museum of Egyptian Antiquities in Cairo, The Art Loss Register (as previously discussed here on this blog), INTERPOL, the International Federation of Art Research ad the Missouri Highway Panel (as an INTERPOL constituency). None of these, or other, background checks, established that the mask was stolen. Accordingly, in April 1998, the Museum purchased the mask from Phoenix.

However, from the end of 2005, a number of communications were sent to the US government alleging that the mask was stolen and asking the government to take action to return the mask to Egypt.

Eventually, at the end of 2010, the Museum was contacted by the US Attorney's Office for the Eastern District of Missouri in St Louis to attend a meeting regarding the mask. At that meeting, in January 2011, the Assistant US Attorneys informed the Museum of their intention to seize and forfeit the mask under the Tariff Act, 19 USC § 1595a – on the ground that it is reasonable to believe that the mask was “stolen, smuggled, or clandestinely imported or introduced” into the US.

The Museum claims in the alternative that

1. the US government is precluded from seizing and/or forfeiting the mask pursuant to the provisions of the Tariff Act because such recovery is time-barred by the applicable Statute of Limitations, 19 USC § 1621 – which provides that any action for forfeiture pursuant to the provisions of the Tariff Act must be commenced with 5 years after the time when the alleged offence is discovered – since at least as early as 2005, the government had constructive or actual knowledge that the mask was stolen

2. the US government cannot show probable cause that the mask was “stolen, smuggled, or clandestinely imported or introduced” into the US – on the basis that the museums investigations prior to purchasing the mask revealed no evidence that the mask was owned by Egypt under applicable Egyptian law, or that the mask was stolen from Egypt, or that the mask had unlawfully entered the US; and because Egyptian Law No. 215 on the Protection of Antiquities, which was applicable at the time the mask was discovered and excavated, allowed for the personal and private ownership of Egyptian antiquities, provided that antiquities could be sold or gifted, and thus did not establish ownership of the mask by Egypt.

As we have seen previously on this blog, Statute of Limitations arguments have proved very successful in the past in the US in relation to recovery of art works. We will have to wait and see whether it is once more in this case.

Snap away in NYC

Photographers in New York City are finally free to photograph federal buildings and public spaces without the fear of interference (including the confiscation of memory cards, 35mm film or other photographic equipment).

The New York Civil Liberties Union (NYCLU) has been campaigning on this issue since the measures were first introduced post 9/11. Following legal action, the US government has now agreed to issue a written instruction to all relevant personnel to state that there are no general security regulations which prohibit external photography (note internal photography of public spaces remains restricted). There is still the possibility for local rules to override this provision but in general this is good news for New York photographers and anyone planning a holiday to NYC in the near future.

Source: HyperAllergic