On April 30, the US government filed a complaint seeking forfeiture of an ancient Roman statue that it alleges Kim Kardashian illegally imported. The forfeiture action results from a government investigation dating back to the seizure of the sculpture in 2016 by US Customs and Border Protection (Customs). While the drama of centuries’ old sculptures and a government investigation may seem better suited for a movie than real life, it is an occupational hazard for anyone involved in the cross-border “art and antiquities” trade (used here colloquially to reference various types of regulated cultural property). These cultural objects are typically high value, and often the result of looting, smuggling, or forgery. Even pieces that are legitimately obtained face careful scrutiny under various domestic and international laws when they are imported and exported. As the case involving Kardashian’s statue has revealed, cursory due diligence may not be enough to protect a purchaser’s substantial investment. Though an initial review of an article’s provenance (record of ownership) may suggest its authenticity or legal ownership, further research into its history and applicable government regulation will help assess the real risk and likely outcome of a government investigation.

Many high net-worth individuals who purchase high value art are not aware that the government closely regulates the importation and exportation of art and antiquities. The loss of a priceless piece of art before it ever clears Customs may be shocking, but it occurs frequently. Even innocent purchasers, as Kim Kardashian may have been here, will find the laws unforgiving. Retaining counsel to conduct due diligence prior to the purchase and importation of the statue at issue could have prevented a nearly seven-figure loss, an embarrassing public relations matter, and what may be years of complex domestic and foreign litigation undertaken in effort to recover her lost investment.

The convergence of authenticity, provenance, and complex domestic and international rules make this a very risky business indeed. However, collectors, galleries, and museums can rest assured; there is a way to mitigate this risk and successfully import and export these priceless items. Using the seizure of the Kardashian statue as an example, future market participants can prevent costly government forfeiture by understanding and complying with the laws, requirements, and processes associated with the international movement of art and antiquities in advance of an investigation.

What authority does the government have? Importation of art and antiquities is highly regulated in the United States. In addition to the customs laws that apply to all importations, there are special statutes and regulations controlling the importation and exportation of art and antiquities (i.e., cultural antiquities, cultural property, paintings, sculptures, articles of archaeological and ethological significance, and other articles).

While the government’s authority in this arena is vast, in Kardashian’s case, it relies on one statute to justify the forfeiture – 19 U.S.C. § 2609(a). This authority derives from the Convention on Cultural Property Implementation Act (CPIA), 19 U.S.C. § § 2601 - 2613. The CPIA sets forth the law of the United States when it became a party to the United Nations Educational, Scientific and Cultural Organization Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property.

The CPIA prohibits the import and export of a broad range of art and antiquities from around the world. In this instance, the Roman sculpture at issue falls within the vast description of articles identified at 19 Code of Federal Regulations (C.F.R.) § 12.104, that are subject to heightened scrutiny at the time of importation. The government can seize, forfeit, and repatriate art and antiquities to the country of original ownership for violations of the statute.

Under 19 U.S.C. § 2606, the CIPA proscribes that “[n]o designated archaeological or ethnological material that is exported (whether or not such exportation is to the United States) from the State Party after the designation of such material under section 2604 of this title may be imported into the United States unless the State Party issues a certification or other documentation which certifies that such exportation was not in violation of the laws of the State Party.” Pursuant to 19 U.S.C. § 2609(a), “[a]ny designated archaeological or ethnological material or article of cultural property, as the case may be, which is imported into the United States in violation of section 2606 of this title or section 2607 of this title shall be subject to seizure and forfeiture.” Here, the failure to obtain certification from Italy stating that the sculpture was legitimately obtained and exported posed problems for Kardashian.

Moreover, although Customs did not pursue additional justification for the seizure, the original description of the statue as “40 pieces of antiques and modern furniture and decorative objects,” likely also qualified as a misclassification of the article sufficient to warrant a determination that the importation was attempted surreptitiously, which would have provided yet another basis for seizure and forfeiture.

What prompted the government’s action? The United States has considerable resources at its disposal to investigate importations of art and antiquities. Special agents from Customs, Immigration and Customs Enforcement (ICE), the Federal Bureau of Investigation (FBI), the Department of Justice (DOJ), and the State Department work alongside international, federal, state, and local partners to pursue individuals, entities, and networks who import cultural property, art, and antiquities in violation of US regulations. Customs requires a significant amount of paperwork describing imported articles, so they are also very diligent about scrutinizing art and antiquities importations.

In the Kardashian case, it was the Customs review of inconsistent paperwork presented at the time of importation that raised a red flag. The entry summary prepared by the customs broker described the merchandise as “40 pieces of antiques and modern furniture and decorative objects” with a gross weight of 5000kg and valued at $745,882. Customs requested additional documentation from the customs broker and was then provided with an invoice that described the statue as “Fragment of Myron’s Samian Athena, Limestone, Roman, 1st – 2nd century A.D.” After Customs seized the statue, the customs broker then provided the government with yet another invoice for the statue dating back to 2012 that described the statue as German in origin and an affidavit from an art historian purporting that the article was not Italian in origin.

A special agent from ICE met with the customs broker to explain the requirements of the CPIA and presumably the documentation needed to satisfy the regulatory requirements and thus obtain release of the seized statue. The customs broker, however, provided no additional documentation.

All of this could have been avoided with skilled intervention prior to purchase and importation.

What happens next? Kim Kardashian has 30 days to assert her interest in the statue and 20 days after making a claim to answer the government’s complaint. If, as alleged by her customs broker, the article did not originate from Italy, and is not subject to forfeiture under the CPIA, she may challenge the forfeiture and seek the statue’s release from government custody. However, if she cannot present evidence demonstrating that the statue is not subject to the CPIA or decides she will not challenge the forfeiture action, the government will extinguish her legal interest in the statue and repatriate it to the Government of Italy.

Guidance for importing art and antiquities. These government regulations are complicated and government investigations can be unforgiving. Given the risk of losing the article, skilled counsel should, at a minimum, be contacted the moment the government takes interest in your importation. However, savvy collectors will want to hire counsel to conduct due diligence before purchase and importation take place. Counsel retained before a purchase and importation can help avoid government investigation or seizure, thus saving clients months of legal difficulties and potential loss of priceless items.

Counsel can take the following steps to facilitate due diligence:

  1. Verify designation status of the item for import. In Kardashian’s case, counsel could have first determined whether the statue qualified as a designated article under the CPIA.
  2. Procure documentation. After determining that the article was in fact designated, counsel could have attempted to procure the necessary documentation from the foreign government before the transaction; most have a policy of not issuing the paperwork after the fact.
  3. Ensure compliant description of the imported article. Finally, counsel could have ensured the proper description of the article and presentation of the documentation to ensure the statue was not detained or seized by Customs. Customs seizures of art and antiquities accrue significant storage fees and risk damage to priceless articles.