02 March 2019

Another opinionated exercise

by Marc Masurovsky

An opinionated exercise in text analysis (a segue to a similar undertaking)

Disclaimer: this deconstructive undertaking is not meant to judge a person’s good will, intentions, or motives, nor a person’s qualifications, merits, and contributions. Its purpose is to show how words can be interpreted, read, and critiqued. The text itself was picked because it is emblematic of the existing literature relative to the prickly questions of cultural property, cultural heritage, preservation of cultural assets against looting and their illegal trade on the global art and antiquities market.

I will confine this exercise to a paragraph which appeared at the beginning of an article entitled “Buying and selling antiquities in today’s market”, which was published in Spencer’s Art Law Journal in Spring 2012 (Vol. 3, No. 1, to be precise). 

William Pearlstein, its author, is a well-known and highly respected international art lawyer, formerly of the American Council for Cultural Policy (ACCP), a lobbying group for museums, dealers, and collectors founded by none other than Ashton Hawkins of Metropolitan Museum of Art fame. [http://www.culturalpolicycouncil.org/statement_purpose.htm ]. The last statement on the ACCP dates back to 2005. He is listed as the treasurer of the Committee for Cultural Policy.

Let’s start:

“Buying and selling ancient art requires the prudent purchaser to research the provenience (country of origin) and provenance (history of ownership) of an object and to evaluate the available information in the context of the legal framework discussed below. In my experience, objects that have a plausible history of ownership and origin, even if not fully documented, can, generally, be safely purchased. A partially-documented history does not necessarily indicate fresh looting or illegal export. Even objects that entirely lack history are also not necessarily smuggled or looted. The demand for documented provenance is a relatively recent phenomenon and many owners simply failed to keep records of their objects, which they treated like other household possessions. Nevertheless, potential penalties for the unwitting purchaser of smuggled or stolen objects include civil forfeiture (for which even bona fide purchasers are rarely compensated), and, for those who knew, or in retrospect should have known, jail. The good news is that prudence and diligent investigation will be rewarded. Even well-provenanced antiquities at the top of the antiquities market can be undervalued compared to other segments of today’s art market and will afford satisfaction for decades and validate the owner’s good taste and erudition.”

Let’s parse.

“Buying and selling ancient art requires the prudent purchaser to research the provenience (country of origin) and provenance (history of ownership) of an object and to evaluate the available information in the context of the legal framework discussed below.”

The word “provenience” is more accurately defined as the physical location and cultural context from which the object originated.

Research is the sine qua non for documenting the history and characteristics of a cultural object. Every object has a history of ownership, the starting point of which should be its maker or creator. When dealing with antiquities, that might not be possible, however, due to the immense passage of time, the circumstances under which the object was found, its physical condition, and the context of its location.

Regardless, from the get-go, the question of provenance enters a legal framework as concerns the history of its ownership.

“The purchaser is a prudent person”. What does prudence actually mean? How is prudence exercised? Is prudence a code word for “due diligence”? If so, why not just insert that expression into the sentence?

We find out later on that if the prudent purchaser has undertaken a “diligent investigation,” he will be ultimately rewarded for his efforts. Sure, but what constitutes a diligent investigation? After all, the effort displayed by the purchaser prior to acquisition is critical in assessing the level of risk associated with the purchase of an object for which there might be little or no documentation. What we do not know here is how to “… evaluate the available information…”: What if there is no information to evaluate due to an elliptical, minimalist or near-invisible provenance?

Let’s read on:

“In my experience, objects that have a plausible history of ownership and origin, even if not fully documented, can, generally, be safely purchased.”

“a plausible history of ownership and origin”

According to many art appraisers, too often times, their clients show up asking them to authenticate cultural objects before they are valuated. They submit provenances that are not only embellished but are utter forgeries. The appraiser grows accustomed to fiction masquerarding as provenance information when the expected provenance should reflect the stark reality of an object’s history for the purpose of obtaining the appraiser’s stamp of approval. In that regard, the appraiser becomes the first line of defense against deceptive practices in the art market.

The recent Knoedler forgery trial constitutes a cautionary tale. As we have been reading in the past several years, the sale of a painting by Mark Rothko which was not a Rothko by the now-defunct Knoedler art gallery contributed to the fatal demise of this eminent art establishment. Multiple warning flags had been raised by appraisers, art historians, fellow dealers which went unheeded and were dismissed for reasons that are still not too clear, greed being too easy an explanation. Knoedler and its president invested in a “plausible history of ownership and origin” of the pseudo-Rothko painting. As they say, if it looks like a duck, acts like a duck, and quacks a duck, it might just be a duck or we can pass it off as a duck. Similarly if a painting looks like a Rothko, “radiates” like a Rothko, and is described as a Rothko, then it might just be a Rothko and we can sell it as a Rothko. Sure… the word “plausible” sends shivers down my spine and reminds me of the Nixon years when “plausible deniability” became the preferred line of defense of those who engineered the Watergate scandal.

If the history of ownership of an object is “plausible,” should you buy the object even if all you have in the provenance is “John Smith, 1969” and the object itself is older than Methuselah? The narrative underlying the object—its provenance—MUST BE believable, for better or for worst. Usually, the reputation of a person involved in the transaction helps to enhance the plausibility factor. That alone might compensate for any lacunae in the provenance. After all, how could you question an established international art historical authority, a senior curator in a distinguished museum, a person with a wall covered with PhDs, awards and other marks of distinction, a highly-regarded collector/dealer? People do make mistakes, though. Errare humanum est. it is the misguided, but very human, belief in pedigree which warps instincts, common sense, logical reasoning and critical thinking. In the case of Knoedler, the unfortunate buyer-the De Soles family-- found the Knoedler story “plausible” about the Rothko’s bizarre history and went home with a fake painting.

If a provenance is plausible, does it have to be real? Believability… plausibility… fictions are plausible, too. We all love a good story. After all, a fictional account is partly anchored in real life, even if it is twisted and embellished. Similarly with provenances, how simple can it be to embellish, twist or otherwise construct a provenance? Why worry about history as long as I fall in love with an object that I truly desire? And if the story about it is appealing, so much the better.

What if the provenance reads: acquired on the Paris art market, 1977? What is the art market? That is not a person with a phone number and an address. It is impossible to verify. But it is plausible because we know that the object transited through the City of Lights. Hence, we have an unverifiable geographical marker that places the object in a fuzzy spatio-temporal relationship with a known location called Paris, France, in 1977.

“not fully documented”:

Should you be distressed by the fact that there are no documents or very few to justify the past travails of the object as it passed through multiple sets of hands, crossing deserts, seas, and oceans, only to land in a safe harbor within the Western Hemisphere?

“A partially-documented history does not necessarily indicate fresh looting or illegal export. Even objects that entirely lack history are also not necessarily smuggled or looted.”

Agreed, but who said anything about looting and illegal exports? A customs officer should know the difference between a forged certificate of ownership and one that is authentic. That’s a big “should.” What if a nice gentleman working in the foreign affairs ministry of a source country is only too obliging and produces the necessary forms that allow illegally extracted objects to leave his country in exchange for unspecified favors or to please an even more corrupt senior official? How many officials are trained to tease out the anomalies of documentation produced by exporters of antiquities and works or objects of art, especially when those objects circulate through one, two, maybe three intermediaries in as many countries before landing in a Western market eager to absorb the objects? Should I be suspicious just because there are only two names in a provenance for an object that is three thousand years old which came from a continent far away from where I am, produced by members of a culture that no longer exists? Methinks the answer is yes. Multi-source due diligence would attenuate and greatly reduce the risk of being snookered, taken in, by dubious documentation.

“The demand for documented provenance is a relatively recent phenomenon and many owners simply failed to keep records of their objects, which they treated like other household possessions.”

I agree with Mr. Pearlstein.

In the ideal world, anyone buying art or antiquities or both should request full documentation for their purchases to justify title and licit ownership, just in case that, in the future, anyone accuses this purchaser of being party to a theft. The past three decades have signaled a major cultural shift in the way that art objects and antiquities are traded, displayed, and exchanged, especially in the so-called “market countries” [read, those in Western Europe, and increasingly, in the wealthy pockets of Asia] to borrow the phraseology of Mr. Pearlstein and the CPRI. The fact that requests for documentation constitute a “recent phenomenon” should tell us something about how art and antiquities are purchased even to this day. It has taken two world wars, the deaths of tens of millions of civilians and combatants, the plunder of dozens of nations on three continents to awaken collectors, dealers, and museums to the notion that perhaps the legal and ethical fallout of their indifference to blood-soaked provenances might not be viewed as kindly nowadays as they had been when “might made right” and “to the victors went the spoils” were the ruling mantras of the global art market and its defenders.

So, yes, it is only recently that documentation and more fleshed-out provenances have become ‘de rigueur’ in the international art and antiquities trade.

“Nevertheless, potential penalties for the unwitting purchaser of smuggled or stolen objects include civil forfeiture (for which even bona fide purchasers are rarely compensated), and, for those who knew, or in retrospect should have known, jail.”

I stumbled on “The unwitting purchaser”.

One of the great myths perpetrated by the art and museum worlds has been the martyrdom of the Innocents, who acquired objects innocently, unwittingly, thinking that they had clean title to those objects, from people who lied and misrepresented their origins and histories.

Unwitting! Here again, one must pause and wonder: the “prudent purchaser”, once she believes a provenance to be “plausible” should go ahead and purchase the object of her dreams. God forbid that, like a damsel in distress with no knight in armor around to save her, she should be the unwitting party to a sleazy plot aimed at unloading looted, smuggled, plundered objects on the art market! Even worse, she is acquiring them from reputable art houses!!

What can she do? How could she have known? Well, for one, her education and upbringing should have led her to ask questions first and plunk down her money later. The unwitting victims, the innocents, wallow in their own naïve silliness. How simple! Well, if they are innocent, who’s the guilty party?

And now for an abrupt conclusion to this deconstructive exercise.

The good news is that prudence, characterized by multi-source due diligence, an inquisitive eye, a critical mindset and an acquired immunity to pedigree, titles, and diplomas, will produce its fair share of just rewards. Just don’t drink the koolade and do not believe everything that you are told.

Trust your gut. If the provenance is non-existent, get a second and third opinion, the way we would if you disliked the initial diagnosis for a medical condition. No harm in it. After all, you are the consumer and you are the one who is about to spend a fair amount of money on an object that might not be what it purports to be and comes from where you are told it does.

If none of that matters to you, I cannot help you and God be with you.

04 November 2018

Washington Principle #11: A Critique

by Marc Masurovsky

[Editor's note: Due to the momentous nature of the upcoming international conference in Berlin, Germany, on November 26-28, 2018 and entitled "20 years Washington Principles: Roadmap for the Future," it would be worthwhile to revisit these Principles and to put them through a linguistic, methodological and substantive meat grinder, and see what comes out of this critique. There will be eleven articles, each one devoted to one of the Principles enacted in a non-binding fashion in Washington, DC, on December 3, 1998.]

Principle #11
Nations are encouraged to develop national processes to implement these principles, particularly as they relate to alternative dispute resolution mechanisms for resolving ownership issues.


This principle, to put it mildly, translated into a big zero plus one. It escaped absolute zero because of Austria’s decision to pass an actual Art Restitution Act. However imperfect it may be, it’s a law, it’s been effectual, and it still exists.

The same cannot be said for the four other nations hosting a restitution committee of sorts focused on cultural claims—France, the United Kingdom, the Netherlands and Germany never followed in the footsteps of the Austrians. Apparently, the stakes were sufficiently high for the Austrians to pass their law, prompted by the physical seizure of works of art by an iconic “national treasure” named Egon Schiele, while on display at the Museum of Modern Art in New York. Seizure, sequestration, were the tools that provoked mayhem among Austrian lawmakers, politicians, and museum administrators to “act”. Does the same scenario have to unfold for other countries to pass a restitution law? The answer may unfortunately be yes.

The failure of Principle #11 underscores the overall failure of the legacy of the Washington Conference on Holocaust-era assets of December 1998. Not one of the signatories to the Washington Principles saw fit, once he/she returned to their respective homeland, to set in motion a national debate on the notion of restitution of art objects looted during the Nazi era, which would lead to comprehensive legislation and/or decrees establishing some form of mechanism with which to address those claims. Not one.

To make matters worse and, perversely, ironic, those nations which are so anxious to recover their State cultural losses—Italy, Belgium, Poland, are standouts—refuse outright to return to the rightful owners art objects in their public collections which clearly have been proven to be looted, no questions asked, historical evidence on hand to support those claims. The double standard is brazen but real and continues to function unabated, despite international calls for these nations to honor restitution claims. To paraphrase government officials from those nations, they are happy to restitute the objects as long as the claimants don’t mind coming to their country to “visit” with the object while it is still on display in a museum collection.

The most important hurdle that these nations face when confronted with a restitution claim is how to de-accession these objects from State-run collections. Few of those nations have on their books a comprehensive de-accession law that extends to the return of objects claimed by individuals, as opposed to nations.

Principle #11 could be rewritten as follows:
Nations shall enact directives, laws and decrees as appropriate to implement these principles, particularly as they relate to the resolution of ownership issues. These directives or laws should include comprehensive de-accession procedures that apply to art objects looted or displaced during the Nazi era which are the subject of a restitution claim.




Washington Principle #10: A Critique

by Marc Masurovsky

[Editor's note: Due to the momentous nature of the upcoming international conference in Berlin, Germany, on November 26-28, 2018 and entitled "20 years Washington Principles: Roadmap for the Future," it would be worthwhile to revisit these Principles and to put them through a linguistic, methodological and substantive meat grinder, and see what comes out of this critique. There will be eleven articles, each one devoted to one of the Principles enacted in a non-binding fashion in Washington, DC, on December 3, 1998.]

Principle #10
Commissions or other bodies established to identify art that was confiscated by the Nazis and to assist in addressing ownership issues should have a balanced membership.


This principle is one of the few in the set of 11 where there has been some implementation effort. However, it is written in such a way that it almost consists of two distinct parts: one dealing with commissions “or other bodies” and the other, somewhat puzzling, recommending “balanced membership” in these here commissions “or other bodies.”

1/ commissions or other bodies:

Since the Washington Conference of 1998, five European nations managed to establish some form of commission or “other body” designated to address cultural claims and in some countries like France, claims for other types of looted assets including cultural claims. They were established in five countries—France, United Kingdom, the Netherlands, Austria, and Germany—between 1998 and 2003. Interestingly, the Austrian government was the first to establish such a commission, largely motivated by the seizure of two paintings by Egon Schiele at the Museum of Modern Art in New York in early January 1998. The seizure put o the fast track plans for a restitution law, Austria being the only country in the world with such a law which set in motion a mechanism by which Federal Austrian museums do not need a claim against them to conduct research into their collections. The opposite is the reality.

1998: Commission for provenance research, Vienna, Austria,

1999: Commission pour l’indemnisation des victimes de spoliations [CIVS],

2000: Spoliation Advisory Panel, London, UK,

2002: Dutch Restitution Committee, The Hague, Netherlands,

2003: Limbach Commission.

Whether these commissions have been effective since the date of their creation is another discussion entirely. Suffice it to say that, if we were to rank their overall impact and effectiveness at resolving claims, we could provide the following tentative ranking from worst-1- to (relatively better)-4- by nation:

1: Germany
2-3: Netherlands
3: France
3-4: The United Kingdom and Austria

Relative because these commissions are far from being perfect, their concept of justice has often clashed with the realities of history, enforcing a delicate balance with their desire to protect their State museums and their commitment to be “just and fair” with the claimants based on the evidence provided to them. Some have chosen decided biases against certain categories of claims, namely those for items sold under duress, while others have been mired in the bureaucratic cultures of their national governments. But, all in all, there are five standing commissions as opposed to non which have been active for now twenty years, in part as the result of the Washington Principles.

The failure to implement Principle #10 in the United States reflected the deep polarization between government officials, museum directors and their trade associations, lawyers for both possessors and claimants, restitution groups and politicians. Despite a succession of “town meetings” and symposia held in the wake of the Washington conference (1998) and Vilnius (2000) to define the contours of an American restitution commission, no consensus could be reached, no one knew where to place such a commission in the tangled mess known as the US government. Even restitution lawyers ended up opposing the creation of such a commission and preferred to maintain the status quo rather than impose a toothless entity in the art restitution discussions within US borders.

2/ balanced membership
Aware that the Washington Principles were conceived to protect the interests of the current possessors while taking into account ways of being fair and just to claimants, the issue of a balanced membership for those commissions adjudicating or hearing claims for restitution of looted art, must give us pause.

What’s the worry? What does the word “balanced” infer? That discussions would be too biased and should reflect a balance of what kinds of opinions exactly? Does it mean equitable representation for all stakeholders in the restitution discussions and an assurance that they will have a seat on these commissions and be able to proffer their views fairly?

Opinions on this question differ wildly. If you represent the interests of current possessors, you want to make sure that the claimant voice on the commission is minimal, at best, but present enough not to be accused of partiality. If you represent the interests of the government of the nation where sits the commission in question, your interests invariably collude with those of the possessor because the government is most oftentimes the possessor acting as defendant against a claimant. If you are a claimant, you want to ensure that claimants’ representatives, independent historians, maybe even ethicists have a seat on the commission. The latter never happened.

Hence, the preoccupation over balanced membership betrayed, then and now, a general fear on the part of the possessors—therefore, governments and museum associations-that claimants’ voices would become too loud and mar the “just and fair” discussion and tilt it towards the rights of the claimants. It is largely palpable in the recent reform of the Limbach commission which ushered into the commission’s board two members of the Jewish community, a notion that even the German minister of culture opposed initially, for their presence might inject bias into the commission’s proceedings.https://www.artforum.com/news/germany-appoints-first-jewish-members-to-its-limbach-commission-for-nazi-looted-art-64667

In sum, keep the commissions and strengthen their mandates. Do not regress like the Dutch Restitution Committee in accepting the views of the Dutch museum community that the cohesiveness of their collections was far more important than a claim for restitution.

Principle#10 could be rewritten as follows:

Commissions or other bodies shall be established to assist in addressing ownership issues for unrestituted artistic, cultural and ritual objects confiscated, misappropriated, sold under duress and/or forced sales, subjected to other forms of illicit acts of dispossession by the Nazis, their supporters, profiteers and Fascist allies across Europe between 1933 and 1945; these commissions or other bodies shall have a balanced membership consisting of, but not limited to, members of the art trade, civil servants, current possessors, claimants and their representatives, historians and specialists.







Washington Principle #9: A Critique

by Marc Masurovsky

[Editor's note: Due to the momentous nature of the upcoming international conference in Berlin, Germany, on November 26-28, 2018 and entitled "20 years Washington Principles: Roadmap for the Future," it would be worthwhile to revisit these Principles and to put them through a linguistic, methodological and substantive meat grinder, and see what comes out of this critique. There will be eleven articles, each one devoted to one of the Principles enacted in a non-binding fashion in Washington, DC, on December 3, 1998.]

Principle #9
If the pre-War owners of art that is found to have been confiscated by the Nazis, or their heirs, can not be identified, steps should be taken expeditiously to achieve a just and fair solution.

There are several elements in this principle which require our full attention.

1/ unidentifiable pre-war owners of looted cultural assets:

No cultural, artistic or ritual object is produced out of thin air. It requires one or more creators and one or more owners. In other words, every object is owned by someone. The question is to find out who owns what. Ownership records are, most oftentimes, generic, fragmentary or they do not exist, because the people owning objects possessing a recognized esthetic quality and value which can be passed off as “art” do not necessarily feel compelled to record the fact that they own the object in question. When falling victim to acts of State-sponsored and sanctioned persecution and terror accompanied by thievery and plunder, the strands of ownership, however weak they might have been at the outset, are gone forever. Out of the millions of objects which changed hands illegally during the Nazi years across Europe, one can argue that a high percentage of those objects ended up in 1945 as having “unidentifiable” owners, not because they were all murdered, but because ownership traceability proved to be a daunting task which Allied planners and Jewish relief organizations alike were in no measure to pursue. Instead of looking for owners, procedures and policies were put in place across post-1945 “liberated territories” to consider those objects as “heirless”, not likely to be claimed and, therefore, they should be sold to benefit postwar governments and Jewish survivors. The speed at which the decision to sell off those assets was made is simply vertiginous.

Today, the discussion over the fate of “heirless” assets, those for whom no pre-war owners can be found, continues to divide and produce acrimony on both sides of the Atlantic Ocean and as far as Israel.

2/ just and fair solution

How can one achieve a “just and fair solution” when there are no owners around who can speak for themselves and, in their absence, those deciding on the fate of such "heirless" assets do not take seriously the arguments of specialists in matters pertaining to cultural plunder and restitution? 

This principle was conceived to establish a framework within which Jewish organizations could negotiate, as successor organizations to the victims of the Holocaust, with auction houses and museums a mechanism by which objects in their collections or consigned to them could be singled out and transferred to Jewish organizations. No thought was given to finding alternative, non-monetary, solutions to the question of “heirless” assets. In the case of a museum, whether private or public, the objects designated as “heirless” in their collection could be highlighted as such and their histories, or at least, how they ended up in the museum’s collection, could be revealed and presented to the public as a pedagogical, teachable opportunity, to discuss the fate of such objects during periods of mass conflict and persecution. It would also outline for the public the ways in which these objects evolved over time and space during and after WWII, in order to help museum patrons understand how art travels and survives war, plunder, genocide.

In sum, the fate of Principle #9 rests with how Jewish groups, governments, museums, auction houses, lawyers, lawmakers diplomats and historians wrestle with what constitutes "heirless property" and how best to treat heirless cultural objects. The work has barely begun.

Principle #9 could be rewritten as follows:If the pre-1933 owners of artistic, cultural and ritual objects confiscated, misappropriated, sold under duress and/or forced sales, subjected to other forms of illicit acts of dispossession by the Nazis, their supporters, profiteers and Fascist allies across Europe between 1933 and 1945 that are found to have been confiscated by the Nazis and not subsequently restituted, or their heirs, cannot be identified, processes shall be put into place with all stakeholders so as to find an equitable solution as to how to treat these objects with due consideration to their artistic relevance and to their individual history.