12 February 2016

About multi-source due diligence

by Marc Masurovsky

Twenty years ago, an attorney in Washington, DC, Lloyd Goldenberg, ran a company called TransArt International, whose purpose was to establish the principle of multi-source due diligence in the art market and among those professionals who worked with the art trade or in the art trade—insurance executives, bankers, lawyers, appraisers, tax experts, civil servants, diplomats, to name a few.

Mr. Goldenberg knew what he was talking about. The idea that you can consult a single source and declare to the world that you did your due diligence by checking a single source was, is and will always be poppycock, illogical, and cannot withstand the most basic scrutiny. And yet, the art world and especially its litigious side have been governed by the idea that one source is all you need to ascertain that you hold good title to an art object. And that unique source in the 1990s ended up being….. the Art Loss Register (ALR), a London-based, commercial outfit organized around a database of stolen art objects to which auction houses, insurance companies and a handful of top tier museums pay an annual subscription fee in exchange for having their objects vetted for sale or for display.

Mr. Goldenberg is still right about multi-source due diligence.

Twenty years later, there are at least two proprietary, commercial databases of stolen art that one can solicit for assistance about lost objects, for a fee—The Art Loss Register and ArtClaim, run by the Art Recovery Group. And there are also databases that one can consult on the Internet without having to pay anything. lostart.de and the ERR database are two of the principal free, searchable databases available for consultation online. All of these databases play a role in the quest for information about an art object that was stolen or misappropriated and needs to be returned to a rightful owner, if unrecovered.

The two proprietary databases are located in London. The two public databases focused on losses at the hands of the Nazis are located in Magdeburg, Germany (lostart.de) and in Washington, DC (the ERR database).

Since the end of the 20th century, the Internet has exploded in scope and depth, providing significant additions and opportunities to our ability to exercise “due diligence.” The sheer proliferation of digital archives, which can be consulted either for no money or for a fee, complement these databases. But we all know how complex art transactions can be and how opaque the identities of owners are and the paths borrowed by these works. Despite the sheer number of online sources to consult, you can still be stumped in your quest for information about the history of an object even when it has been produced by a “master.”

Nevertheless, Mr. Goldenberg’s world of multi-source due diligence is closer to becoming a reality than it was twenty years ago. The dirty little secret is that it already did exist in 1995. However, the problem lies in the fact that very few people in the art world or involved with questions of ownership, of provenance, of title ever bothered to systematically consult many sources because they did not feel that they had to. Only one was recognized officially and legally as THE SOURCE, the Art Loss Register. But now, we live in a different world. A world in which we still struggle to assert the fact that multi-source due diligence is a necessity to validate that one has good title to an art object whether it is being offered for sale or it is exhibited in a commercial gallery or a museum, whether public or private. Even today, no legal or political authority has bothered to establish a rule by which multi-source due diligence should be a requirement, a sine qua non condition for handling art objects.

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