According to an old Roman proverb, "art has no enemy except ignorance." Common usage of the proverb frequently references non-conventional works of art that break with the status quo by challenging aesthetic and/or cultural norms, and are subsequently decried by the establishment. However, in light of recent high-profile court cases to recoup rare cultural icons from world class museums, the proverb takes on new meaning with respect to collectors of antiquities. Indeed, remaining ignorant with respect to a work's provenance can be a costly mistake (and a public relations nightmare) for museums, galleries, and collectors alike.
Over the last two years, there have been many high-profile court cases to recoup rare cultural treasures from illustrious museums whose ranks include the J. Paul Getty Museum in Los Angeles, the Metropolitan Museum of Art in New York and the Museum of Fine Arts in Boston. The Getty recently agreed to return forty priceless artifacts to Italy, all of which were featured in a major exhibition in Rome. Italy also pursued a civil lawsuit against Marion True, the former curator of antiques at the Getty Museum, which was dropped after the parties reached an accord. More recently, the extensive looting that has occurred in Afghanistan and Iraq may lead to more cultural patrimony disputes. In the present environment, the focus for buyers of antiquities has thus shifted from an emphasis on authenticity, price and condition to provenance and clear title.
In recent years, patrimony laws have been the main basis for granting antiquities restitution claims. Many countries with a rich cultural heritage, such as Italy, Greece, Egypt or Mexico, have enacted so-called “patrimony laws,” which declare all antiquities discovered within a country’s border after the enactment of the statute to be the property of the state. More rigorous patrimony laws also impose restrictions on the export and sale of antiquities that had been discovered in that country prior to the enactment of the statute. Generally, such laws protect property with significant historical and archeological value or interest.
In recent cases, U.S. courts have determined antiquities possessed or disposed of by individuals in violation of a country's patrimony law to be "stolen property" pursuant to the National Stolen Property Act (“NSPA”). See, e.g., U.S. v. Schultz, 333 F. 3d 393 (2nd Cir. 2003). In order for a foreign government to succeed on the merits under the NSPA, it must prove that the artifact in question had been removed from the country without the government’s consent and in violation of that country’s patrimony law.
The U.S. is also signatory to multinational conventions such as the UNESCO Convention on the Means of Prohibiting the Illicit Import, Export and Transfer of Ownership of Cultural Property, each of which establishes import restrictions on cultural property, and has entered into bilateral treaties with countries including Mexico, Guatemala and Peru for the protection of cultural property. More recently, the U.S. has taken specific efforts to prevent the import of archaeological objects that have been illegally removed from Iraq, and has made significant progress working with China to protect its archeological sites by imposing heavier restrictions on the importation of Chinese art and antiquities.
After years of expensive, time-consuming, high-profile lawsuits, government officials and museum representatives alike have begun to resolve disputes related to cultural patrimony outside of the courthouse. For example, in November 2007, Italian cultural officials and American museum directors met in Rome to discuss possible future collaborations, such as art loans programs and joint scholarships in an attempt to alleviate demand for illicit Italian cultural patrimony in the U.S. After a successful meeting, the Italian Minister of Culture, Francesco Mutelli, stated that “[t]he phase [i.e., era] that was tied to illegal activity through unacceptable channels is closed, and we have arrived at a turning point where we have become partners against illegal traffic”. In the spirit of cooperation, Italy has extended loan periods and offered to expand collaboration with American museums on archeological excavations and related research. Despite the recent progress made between the U.S. and Italy, experts argue in favor of a global (as opposed to bilateral) solution to international cultural patrimony disputes.
As foreign governments become increasingly aggressive pursuing lawsuits to reclaim their cultural property, the provenance of artifacts will become an increasingly important consideration when determining the price and marketability of cultural treasures. Accordingly, thorough provenance research and extensive due diligence should become a routine practice for art buyers and dealers alike. Central databases such as The Art Loss Register (www.artloss.com), which aggregate information on stolen and looted works of art, are a good starting point for carrying out due diligence on prospective antiquities purchases. In a similar manner, purchase agreements involving cultural artifacts must be meticulously drafted, in particular those provisions relating to representations, warranties and indemnifications. Finally, to state the obvious, when the provenance of an artifact remains questionable despite extensive due diligence, the prospective buyer should seriously consider the financial and public relations risk associated with the purchase of potentially illicit cultural patrimony.