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.

What is to be done?

by Marc Masurovsky

Locating looted art in public and private collections, auction houses, galleries, is one thing; recovering these plundered objects is quite another.

The search for looted cultural assets is extremely tedious. Some people get lucky with “low-hanging fruits” like well-defined provenance information for objects being offered for sale or being displayed in a museum, which contains critical information that might lead to a match between the object and a plundered owner.

Those instances are rare.

The tedium of research concerns all other objects—weeks, months, sometimes years of research, often led by one or two people, most of the time on a part-time basis because there is no reliable source of money to underwrite such an investigative and analytical effort.

If progress has been made on documenting cultural losses at the hands of the Nazis and their collaborators over the past twenty years, there has been no progress in establishing a solid, long-term funding mechanism to ensure that research into the ownership histories of countless objects and their location is sustained over a long period of time.

To remedy this chronic shortage of funds for research into the looted cultural heritage of the Jewish people, historians, investigators, researchers, even curators, have tended to focus their attention on single collections and/or a small clutch of plundered objects. These efforts aim to clarify the history of objects coming from a single owner, or located in a single museum or collection. But even those efforts are lengthy, arduous, and end up yielding few fruits, for all sorts of reasons, the main ones being lack of capital and legal and logistical obstacles to gain access to relevant data.

How does one resolve this paltry state of affairs?

One cannot locate any looted object if one does not devote the needed resources to conduct solid, forensic, investigative research into its whereabouts, ensuring that it is the correct one, locating its potential owners, and if there are none, declaring the looted object to be heirless property.

What does one do with objects deemed heirless? Remember that heirless property is simply unclaimed property for which no owners have been found ---yet. Since there are no well-funded research organizations or institutions in the business of searching for these objects’ rightful owners, they remain to a large extent heirless, deprived of their history, their context and their identity.

For instance, Jewish museums are stocked with heirless objects, coming from communities that have been systematically erased from the face of the earth. But not all displaced objects in Jewish museums are heirless. The mission of Jewish museums is to safeguard these objects, not necessarily restitute them. Hence, when faced with a restitution claim, a Jewish museum is more likely to behave like most art museums by opposing the act of restitution which would require deaccessioning the claimed object from its collection.

Governments of nations that were subjected to the horrors of Nazi and Fascist policies and global war, hold untold numbers of objects which were “found” at war’s end.  So far, little to no information has been released which can help apprehend the true extent of this seventy-year old problem.

The Russian puzzle is the most egregious. So-called “trophy art” picked up by specialized Soviet military units in all territories that the Red Army “liberated” in the months before the end of WWII is stored in museums across the ex-Soviet Union. Most of the objects that the Red Army “repatriated” as compensation for Soviet losses are presumably concentrated in what is now the Russian Federation, Byelorussia and the Ukraine. But there is also looted cultural material belonging to exterminated Jewish communities in the custody of governments in Latvia, Lithuania, and Estonia, to name a few.

In an ideal world, the most logical way to address the question of researching and documenting the complete history of cultural plunder between 1933 and 1945 is to orchestrate a massive inflow of research monies and establish an international research and documentation infrastructure. Only in this way can one address systematically the full scope of looted cultural heritage (outside of Judaica which has attracted significant attention over the past decades) of the Jewish people, identify the location of plundered objects, figure out which ones have still not been restituted, match them with their rightful owners. If there are none, then the question of heirless property comes into the picture.

A vast international, even transcontinental, network or infrastructure of research institutions facilitated and nurtured by a mix of government agencies, independent organizations, and academic centers across the Americas and Europe should coordinate this effort. This is not a one-or three-person job. In order to get a handle on what was stolen, where, when, by whom, sold and resold to whom and where and when, one needs a small army of intelligent, motivated, educated, trained, PAID, worker bees.

There is a strong likelihood that “heirless” objects having once belonged to Jewish owners before the Holocaust era ended up in the permanent collections of museums, be they State-controlled or privately owned.

How does one persuade these cultural institutions to deaccession heirless objects which they argue were acquired in good faith and have no owner?

How does one convince governments which control cultural institutions holding such objects to return them? And to whom? Even in Israel, this policy is controversial.

The solutions to the above have always been complicated and laced with political overtones. Art makes people irrational. For an institution to part with an object is fraught with strong emotions and potent defenses against such an act, even it is for a good cause, even if restitution through deaccession is meant to heal wounds and provide a small gesture towards an act of justice. It goes against the grain of museum practices worldwide to restitute.

To end on a less negative note, it is worth exploring the different ways that exist to restore a modicum of justice to the victims of cultural plunder. But those approaches need to be anchored in victims’ rights, not in private property law and antiquated notions of cultural patrimony. In and of itself, such an approach could open new doors on how to manage in a more ethical way tomorrow’s museums and the global art trade.

And above all, a massive amount of money is needed in order to rewrite the history of looted objects, return them to their rightful owners, and establish much better practices in the global art market, the museums that display objects, the galleries and auction houses that buy, display, and sell, and the collectors and dealers who do the same.

Higher ethics, stringent due diligence, thorough provenance research and true transparency, transparently clear (as opposed to less opaque), like a sheet of cellophane or saran wrap, your choice. That is the goal.

Mutually assured destruction

by Marc Masurovsky

Is it possible to imagine an art world without due diligence checks, without databases to consult before buying an art object, before displaying it?

With the open conflict laying bare the inner workings of the London-based Art Loss Register, what are its subscribers thinking right now?

What are the auction houses, Christie’s and Sotheby’s, wondering about the reliability of the ALR in providing the service that it is paid to provide--due diligence, certifying as to the authenticity and the licit or illicit nature of objects being offered for sale on the global art market--with the usual caveats, of course...

And what about insurance companies? Those responsible for assessing the risk of a transaction involving art objects and providing the protection and safeguards that buyers, exhibitors, borrowers, collectors, dealers, require and are entitled to? What will they do if there are no recognized mechanisms which exist to vouch for authenticity, value, and origin?

How do law enforcement agencies from around the world feel about this conflict between two organizations that are there to assist them in identifying and seizing looted antiquities and art objects? Granted, they are accustomed to working with rather unsavory groups and individuals for the greater good, but this is the art world of which we speak at a time when antiquities are disappearing in the hands of armed thugs worldwide.

What would happen if all of the due diligence checkpoints disappeared in a furnace of mutually assured destruction such as the conflict between ALR and ARG is turning into? Should sanity not prevail, the global art world will probably have nowhere to go to get its USDA certificate of good provenance and due diligence, the fig leaf behind which it can safely decide to sell, to buy, to display, to lend, to borrow, to collect.

What will judges do when faced with cases predicated on due diligence, or the absence thereof? Which sources will a judge countenance as worthy of issuing such a certificate, should ALR and ARG collapse in a conflict reminiscent of “Dr. Strangelove”?

Much as with the current American presidential election landscape, the due diligence machine which has been put in place for the past thirty years to provide a minimum amount of protection against theft and forgeries in the art market is about to collapse, unless cooler heads prevail.

It is time to think seriously about establishing a global system of due diligence that does not rely solely on what Albion has to offer us. For those of you who do not know what “Albion” is, it is the 

Albion

name given to the island of Great Britain before it was Great Britain. One ancient site was Londinium, which is today’s London.

Londinium

Scenarios of discovery: claimants stumbling onto their missing objects

by Marc Masurovsky

I won’t name any names here, it’s better that way. But rest assured that the following four scenarios are based on real and actual events. Except for scenario #4, each located object led to a tedious, painfully lengthy recovery process which left everyone mentally, physically, and financially drained.

Before research can even start, the object has to be located. Simple logic.

There are many ways to trip over an object that once was part of your family but was lost to traumatic events beyond anyone’s control. The object was stolen, misappropriated, confiscated. No matter what the method of removal and loss, the end result was and is the same: illegal transfer of title resulting in theft.

More than a half century later, the memories fade, and knowledge among victims’ families of what was lost becomes ever fainter, except for a hard-core of individuals who, by dint of circumstance, fortune, and disposition, have nurtured their past memories of a forlorn period and pursued relentlessly over the decades the location of their treasured items, not to be confused with “treasures” as construed by art historians and museum curators.

Scenario #1: a man, his mother and his aunt walk into a museum. The aunt and mother are of a certain age since they survived the concurrent and overlapping traumas of war, foreign occupation and genocide. They reach a part of the museum that displays antique furniture and they both gasp. The son is unaware of the reasons for the gasp, except that he remembers his aunt as a rather dramatic woman prone to fits of exaggeration. Nevertheless, both his aunt and his mother cannot believe what they see: pieces of furniture which were in their childhood home. How could they recognize them so easily and distinctly? How could they be sure that they were the same items as the ones on which they had napped or relaxed? I marvel at the answer: they were upholstered with richly embroidered and hued lampa, one of the finest textile fabrics available, Its coloration unique and tailored to the customer’s exquisite, most often aristocratic taste. Their ancestor had run a successful upholstery and furniture business in Paris during the first third of the 20th century and used this particular “lampa” to upholster fine pieces of furniture from the Enlightenment period. Consider it his “signature.”

What to do? The family furniture was lost to machinations involving unscrupulous family members in league with Vichy collaborators who donated the misappropriated property to the museum where the aunt, the mother, and the son/nephew stumbled into one fine afternoon.

This occurrence is not common but neither is it rare.

Scenario #2: you are perusing a catalogue of impressionist works on display in an important American museum. You and your brother grew up with family stories of wealth, stature, culture, art, enjoyed by your relatives who perished in the Holocaust. Surviving family members kept documents, recounted to postwar Allied officials what had transpired and how their relatives had been harassed, forced to sell their belongings, and tricked into making a deal with the Nazis which cost them their lives. Decades have gone by. A new generation has reached adulthood, whose interest in the family history has never slackened, especially regarding their missing art objects. One of the brothers finds a photograph of one of their missing objects reproduced in a catalogue with the name of the current possessor and his location typed in the caption beneath the painting.

Scenario #3: You are invited to dinner with your better half at the home of someone with whom you have conducted business on an infrequent basis, but you are acquainted sufficiently well that you will call on one another if you happen to be in the other’s city. In this case, the claimant visited such a person, whom he knew was an art collector living in a neighboring country. As he and his wife settled down in the collector’s living room, they noticed that the walls were richly decorated with Impressionist works. Lo and behold! Two of their missing paintings, not one but two, were right there in plain sight. They had been searching for them for years. What does one do in this case? First, you rub your eyes, take another glass of whatever the other is having, and look again. The paintings are indeed the same. The last time that you saw them, they were being crated and shipped to a bank vault out of harm’s way in the south of France, in the hope that they could be recovered when the dust of invasion and occupation gave way to the cleansing of liberation. The enemy had forced the bank managers to open their safes and removed their contents. And here were parts of what had been lost. How the paintings made it across the border into this man’s apartment was a mystery. Worst of all was how to get the paintings back.

Scenario #4: it’s a beautiful Sunday afternoon. You want to go to the local flea market and hunt for some bargains. Your pocketbook has enough disposable cash in it that you can afford to splurge a bit. You meander about the chaotically stocked stalls filled with bric a brac, an inordinate amount of “stuff”—metalware, platters, urns, ewers, paintings housed in heavy frames, stained drawings, and in the corner, you see a small wooden sculpture, its unusually cut grain and expressionist expression of a woman’s face feel very familiar to you but you have a hard time placing it. You ask to look at it more closely, the stall owner hands it to you. It’s small enough that it could fit into your backpack. Then, it dawns on you. “My aunt sculpted portraits in just this manner.” How? Was it really her work? The signature block was unmistakable. Her entire studio had been ransacked during the war, that war. She narrowly escaped to Switzerland, after having been tipped off by a neighbor, a well-known founder of bronze sculptures who had a close friend in the Paris police force. Hours after her escape, the gendarmes had come to her house to pick her up but she was not there. She had left behind several hundred wood sculpted portraits. After the Vichy police were done with her studio, nothing remained inside. In this case, the recovery of the missing object was instantaneous. The sculptress’ nephew acquired the found object on the spot, happy to be reunited with one of her missing “babies.”

In Scenario #1, a State museum holds the claimed furniture as its “inalienable” property. In Scenario #2, a case was filed against the billionaire who possessed the painting. The proceedings lasted for years and resulted in a settlement. In Scenario #3, by the time the claimant had decided to seek restitution in the country where he had seen the two paintings that belonged to his family, they were no longer in the possession of the art collector in whose living room they had been hanging. It took another half century to recover one of the two paintings, the other one is still missing.

In all three aforementioned scenarios, a significant amount of historical and archival research had to be performed involving family members, their attorneys, researchers hired by the family and their attorneys. Documents supporting their claims had to be extracted from archives both in the United States and in various European countries, just to prove dispossession and the illicit path borrowed by these misappropriated works.

in Scenarios #1, #2, and #3, the institutions and individuals holding the stolen works had never done any research and had performed no due diligence on those objects, preferring to adopt a “the less we know, the better it is” attitude towards the act of possession of an art object.

You should ask yourselves, you the reader, whether history could have taken a different turn had the current possessors of the stolen property had bothered to conduct some degree of research into the history of the works that they acquired and then spent fortunes trying to keep in their possession.

Disclaimer: if anyone reading this short piece recognizes their story and the facts are wrong, I take full responsibility for any errors or misinterpretations. I did my best to communicate the gist of the experience of discovery.

An opinionated exercise

by Marc Masurovsky

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.

Any resemblance to persons, living or dead, is pure coincidence.

The exercise consists in an imaginary dialogue between a provenance research specialist --MJ—and an attorney with a long list of clients in the art and antiquities world--AB.

AB: Thanks for inviting me. Nice to see you again. What are we talking about?

MJ: The buying and selling of art and antiquities, due diligence issues, provenance research.

AB: OK, where shall we start?

MJ: First of all, I’d like to say that, in general, research—provenance research as it were—into the ownership history of an object coming up for sale or to be exhibited, or traded on the international art market, is a necessity. Every object has a history of ownership, the starting point of which should be its maker or creator.

AB: That might be tough with antiquities, due to the immense passage of time, the circumstances under which the object was found, its physical condition, and the context of its location. Wouldn’t you agree?

MJ: Sure, I get that. The research will quickly lead to legal issues about title. You, as a lawyer, should know that.

AB: You don’t have to preach to me. In any event, I always caution my clients to be prudent in their purchases of art objects…

MJ: Prudent? What does prudence actually mean? How is prudence exercised? Is prudence a code word for “due diligence”? If so, why couldn’t you just talk about “due diligence”?

AB: We can discuss that later. In my professional experience, objects that have a plausible history of ownership and origin can be purchased without too many questions.

MJ: Let’s take a step back here.

Have you been following the recent Knoedler forgery trial?

AB: Yes.

MJ: Well, it’s a cautionary tale. The sale of a painting by Mark Rothko which was not a Rothko, as you know, contributed to the fatal demise of an otherwise eminent art establishment, Knoedler’s. Multiple warning flags were raised by appraisers, art historians, dealers. They went unheeded. Knoedler and its president dismissed them for reasons that must be more complex than simple greed. Nevertheless, the gallery invested in a plausible history constructed around the pseudo-Rothko painting designed to cover up a very murky provenance that could not withstand scrutiny.

AB: Do I have to listen to this?

MJ: Be patient, chill.

You know the expression: 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.

AB: Hey, I am a Republican.

MJ: I’m not. So there…and your candidate ended up resigning in shame.

AB: [inaudible sound of exasperation]

MJ: Let me ask you: 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?

If there’s only one name in the provenance, what makes it plausible? The reputation of a person involved in the transaction? Would you accept as “plausible” a one-name provenance as long as 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 vouched for it?

AB: If the object is of exceptional quality, I am willing to forsake strict provenance requirements. People are human. And they should be able to acquire what they love.

MJ: Errare humanum est.

AB: What’s your point?

MJ: You know what I am talking about. it is this misguided, but very human, belief in pedigree which warps our instincts, our common sense, our logical reasoning and our critical thinking faculties. 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.

AB: I see what you mean. Maybe plausible was not a judicious choice of words. [He laughs!] Fictions are plausible, too. My clients all love good stories. After all, a fictional account is partly anchored in real life, even if it is twisted. It is simple enough to embellish or otherwise construct a provenance. Why worry about history as long as they fall in love with an object that they truly desire? And if the story about the object is appealing enough, so much the better. It adds value to the object. Everybody’s happy.

MJ: Funny man…

What if the provenance reads: acquired on the Paris art market, 1977? What art market? Is it a person with a phone number and an address? Obviously not, 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 that your client is lusting over in a fuzzy spatio-temporal relationship with a known location called Paris, France, in 1977.

AB: Who cares? It’s the object that people care about. If it went through Paris, fine.

MJ: Are you serious? And by the way, didn’t you say something about lack of documentation not being an obstacle to purchase?

AB: I may have. But that’s all part of plausibility. Again, that word. [Snicker]

MJ: Aren’t you distressed by the fact that there are no documents or very few to justify the past travails of many objects as they passed through multiple sets of hands, crossing deserts, seas, and oceans, only to land in a safe harbor within the Western Hemisphere?

AB: I never lose sleep over absence of documents. It happens all the time and there are ways of explaining those gaps.

MJ: You are something else…

AB: That’s why they pay me. To allow them to buy objects with partially-documented histories or no histories at all. Realize that the absence of information does not imply acts of looting or an illegal export. Not every object with a lack of provenance is stolen property.

MJ: I’ll grant you that much. However, 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.

AB: Multi-source due diligence. That sounds like a chant from a religious cult. Come on, one call to the Art Loss Register or to Art Recovery Group and that’s all that is necessary. Let them do all the checks. That’s why we pay them the big bucks.

MJ: Multi-source is the solution. Deep down in your gut, you know that.There’s no way around it. This is where you and I part ways. I don’t care how many sources are checked online and offline, people are called, agencies are consulted, as long as you can guarantee that an object is not stolen. Isn’t that worth something to you? Where are your ethics?

AB: Don’t talk to me about ethics, ok? In the ideal world, anyone buying art or antiquities or both should request full documentation for their purchases to justify title and licit ownership. I am fully aware of that. I don’t want my clients to stand accused of being party to a theft. But it doesn’t happen that way in most cases. I get paid, in part, to clean up the messes and make sure that my clients don’t end up behind bars, paying huge fines and forfeiting their property.

You’ll agree with me, though, that these past few decades have signaled a major cultural shift in the way that art objects and antiquities are traded, especially in market countries [read, those in Western Europe, and increasingly, in the wealthy pockets of Asia.]

MJ: True…

AB: Requests for documentation are a new thing. Even auction houses have to comply. It wasn’t that way all the time. What does that tell you?

MJ: Hmm. It tells me how art and antiquities are purchased even to this day. Back to my soap box if I may.

AB: Go for it. We’ve got some time left.

MJ: Thanks. 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.

AB: Well, as long as I can keep my clients one step ahead of the US Attorney’s office or ICE agents. After all, more often than not, they are the unwitting victims of unscrupulous middlemen. They’re innocents.

MJ: You can’t be serious. Do you still believe in that nonsense?

AB: Hey!

MJ: Let me finish. One of the great myths perpetrated by the art and museum worlds has been the martyrdom of the Innocents—that would make for a nice, sweeping, classical painting entitled “The Massacre of the Innocents”—Those 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? My you-know-what.

AB: What is your problem? I thought we were starting to agree.

MJ: Imagine. Your client believes a provenance to be “plausible” and goes ahead with the purchase of the object of her dreams. God forbid that, like a damsel in distress with no knight in armor around to save her—that would be you!--

AB: Thanks.

MJ: My pleasure… 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?

AB: What’s your point exactly? Or did I miss something?

MJ: My point is simply 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. Can you tell your clients not to drink the koolade and not to believe everything that they are told.

AB: Are we done?

MJ: One more thing. My advice to your clients is: Trust your gut. If the provenance is non-existent, get a second and third opinion, the way we would if we disliked the initial diagnosis for a medical condition. No harm in it. After all, we are the consumers and we are about to spend a fair amount of money on an object that might not be what it purports to be nor come from where we were told it does.

Can you live with that?

AB: I’d have to think about it.

MJ: You know how it is. It’s your choice. If none of this matters to you, God be with you.

AB: There you go again…[Smile] See you next time.

MJ: Next time, it’s on you. Single malt all around.



AB: I’m good if you are.

About due diligence

by Marc Masurovsky

An art object cannot exist unless someone has created it. That is a self-evident truth. Once the object becomes the subject of a commercial transaction, an exchange, a transfer, a gift, its ownership shifts from the creator to someone else. Its essence, however, does not change over time. It is timeless. We leave it to critics, curators and art historians to haggle over its meanings.

After the object changes hands and moves from one owner to the next, the ownership of the object can be either licit or illicit, it cannot be both or neither. That should be as plain as day.

The provenance of the object is (in theory) the public face of the transactions (licit or not) which occur along the itinerary, however brief or long, of the object. The ownership history of the object can also be viewed as a source of evidence as to who owned, possessed, or held the object when, where, and sometimes, how. This might explain why provenance information generally tends towards the elliptical or extreme minimalism to such an extent that you can justifiably argue that the provenance is a work of fiction. History as fiction. Historical revisionism disguised as art market opacity?

Any attempt to hide, modify, or otherwise obscure the ownership trail of an object should be considered as aiding and abetting in the commission of a crime, which can include theft and misappropriation in contexts ranging from simple burglaries, fraudulent property transfers to confiscations and seizures resulting from racial and religious persecutions and/or genocide that have been routinely denounced and condemned by the community of nations.

Potential buyers, sellers, donors or recipients of cultural objects should make sure that the provenance of the object does not hide an unsavory past which could threaten good title to the object under discussion. This involves exercising one’s due diligence. The big question is: how much due diligence is acceptable?

The answer to that question varies from place to place and can be truly disarming. From checking databases to making several phone calls (much like calling references submitted by an applicant) and checking a catalogue raisonné, people exercise “due diligence” in the darndest ways. A reasoned approach, however, might compel a potential buyer or recipient of a gift to demur and reject the object because the provenance simply is too skimpy for words (elliptical/minimalist/or absent) or there are too many unanswered questions that, in due course, would come back to haunt the new owner of the object. More often than not, those who apply such circumspection and reasoned judgment when faced with the prospect of owning a beautiful and rapturous object are few and far between, although anecdotal evidence indicates a recent uptick in ethical behavior amongst art market players and professionals working in cultural institutions. Let’s hope this trend continues.

Invariably, the flawed provenance is justified by the imperfections of Time and the vagaries of History. Those who “drank the kool-ade” express their utter delight at the prospect of embellishing their collection with such a fine new acquisition, regardless of how tainted its history is.

Let the chips fall where they may.