Utopian thoughts on a lazy, snowy Friday

by Marc Masurovsky

Museums
Acquisitions of objects are limited to those objects with no taint whatsoever on title. Under-provenanced objects with significant gaps and riddled with uncertainties as to past ownerships and locations must not enter a museum.

The museum’s research budget allows for a team of full-time researchers whose sole purpose is to keep the museum “honest.” 

Louvre, Paris

If problems emerge in the ownership history of objects in the permanent collection, all measures must be taken to clear title by submitting the object to a detailed, forensic analysis. If additional research reveals illicit activity that might have resulted in an illegal transfer of ownership, the museum will right the past wrong, seek out the heirs of the rightful owners and work out a proper solution to fix the historical wrong as long as it reflects the wishes of the aggrieved parties (those who suffered the loss of the objects).

As a matter of course, the museum will make available to the general public all information about the history of each object in its permanent collection without judgment or preconceived notions. That information will be freely and readily accessible.

When a museum possesses a large inventory of objects obtained from indigenous communities, former colonies, and conflict zones, it will:

Humboldt Forum, Berlin

         

1/ identify the rightful owners of these objects, whomever they may be;

2/ take the necessary steps to contact their representatives and consult them as to how to treat these objects;

3/ if repatriation is in order, the museum will abide by this decision and return the objects;

4/ if other solutions are envisioned, they too shall be respected and implemented as long as they reflect the wishes of the aggrieved parties (those who suffered the loss of the objects).

Auction houses

Recognizing the fact that there are thousands of auction houses worldwide, it is almost impossible to regulate their activities without imposing severe constraints on the global art market. Still, auction houses are the main purveyors of looted and otherwise stolen cultural property.

To stanch the in- and out-flows of stolen cultural goods, governments will establish oversight bodies whose sole purpose is to ensure that auction houses comply with rules and standards that will rid the market of unprovenanced, under-provenanced goods whose origin cannot be explained either by the consignor or the seller. If this is unreasonable, at the very least, auction houses will post “buyer beware” notices for un-and under-provenanced objects that they offer for sale. The goal is to inform consumers much like government agencies issuing product alerts. If art objects are commodities, they should be regulated in the same way that pharmaceutical, cosmetics, food and other products are.

Christie's

Hôtel Drouot

Collectors, dealers, and brokers

Private handlers of cultural goods are an important cog in the global machinery of recycling and dissipation of looted and otherwise stolen cultural objects around the world.

Without them, looters, plunderers and thieves find it challenging to “fence” their loot and to make quick money off of it, thus increasing their risk and disincentivizing the act of plunder and theft.

These handlers must be prohibited from offering any object which is un-or under-provenanced or whose past history shows clear signs of dislocation and illicit transfers of title. If they do, criminal penalties must be imposed on them and their accomplices.

Can privateers be deterred from acquiring objects with dubious provenance information that casts a cloud on title? They will, no matter what any government says or does. Realistically, their activity cannot be completely deterred but their quest to sell these objects on the open market must be interdicted.

Does this open the door to the creation of a parallel art market which operates under the radar? That market already exists and probably always will. Wars, conflicts, crises, laissez-faire governments and regimes enable its existence an allow it to thrive under their very noses and, to some extent, with their complicit assent. The fact that national and international elites sustain its existence complicates the task of any regulator to restrict its expanse and depth. Any attempt to clamp down on the parallel market is politically dangerous for those in positions of power and influence.

Good faith defense

Civil law and common law countries will rethink how good faith serves as an almost-impenetrable defense against relinquishing looted objects to claimants. One possibility is to create exceptions to the good faith defense which remove that protection from those who acquire and sell stolen or plundered goods, even if they were unaware of the true origin of the objects which they acquired. This measure will allow restitution claims to proceed without claimants worrying that the current possessor will resort to good faith as a reason not to restitute their property.  Ignorance is not a defense. Those who dabble in the art market must exercise proper due diligence before acquiring, selling, displaying, donating, loaning cultural goods. Failure to do so must have legal consequences.

Ethical collecting

Can people build an ethical collection of art objects, viz., a collection of objects whose history is not tainted by ambiguous claims to ownership as a result of civil unrest, war, and genocide?

They can and they do. The thrill of seeking out beautiful objects whose acquisition becomes controversial because of the circumstanced surrounding the object (coercion, illegal extraction, outright theft, etc.) is the ultimate drug that fuels thrill-based acquisitions. If you’re skeptical, read about Thomas Hoving, Douglas Latchford, and many others in the museum and art worlds who took pride in their reckless manners and methods to secure “beautiful and unique” objects.



Photos:

Christie's-courtesy of Artisera.com

Hôtel Drouot--courtesy of Drouot.

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.

Washington Principle #4: A Critique

by Marc Masurovsky

[Editor's note: Due to the momentous nature of the upcoming international conference in Berlin, Germany, 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 #4
IV. In establishing that a work of art had been confiscated by the Nazis and not subsequently restituted, consideration should be given to unavoidable gaps or ambiguities in the provenance in light of the passage of time and the circumstances of the Holocaust era.

In view of the number of legally-trained individuals who are involved in international diplomatic negotiations and the drafting of complex documents for submission to representatives of many foreign nations, one would think that better care would be paid to vocabulary.

“work of art”:

The definitions vary for this word grouping. For some, “work of art” is interchangeable with “art piece” or “artwork” or “objet d’art”. For others, it has a narrower and more elitist meaning: “an object made with great skill, especially a painting, a drawing, or a statue.”  One way or another, high quality is synonymous with those words. And those words exclude all other “objets d’art” which, ironically, serve as synonym for “works of art.”

“consideration”:

Another way of saying “Careful thought” or “deliberation.”

“unavoidable gaps” in provenance:

As there are no uniform standards that define what an “unavoidable gap” is in the history of ownership (provenance) of a cultural, artistic or ritual object, let’s give this our “consideration.”

It is a well-established fact that we will never know everything about the history of an object. The older it is, the less likely it is that we can reconstruct a detailed path of ownership for the object in question. However, the obverse is equally true. The more we search for information about the history of an object, the more likely we are to develop a clearer history of that object, notwithstanding the “unavoidable” gaps. But one important function of research is to narrow these “unavoidable gaps.” If Principle III is properly put into effect, chances are that researchers can fill these gaps. But to what extent can they? It all depends on access to materials (Principle II) in public and private archives that can shed light on their owners and the objects they owned.

If we follow the dicta of global museums such as the British Museum, the provenance will contain only “relevant” and “important” information. Another layer of complexity, another filter of information added to the task of “filling the unavoidable gap.”

Quite clearly, this principle was written with a Museum association in mind which rails constantly against those who demand that their provenances be impeccable and gap-free. No one has and will ever make such a request from a museum or gallery or auction house.

Gap-filling (not like at the dentist’s) pertains mostly to the 1933-1945 period. It would be good practice on the part of museums, and the rest of the art world, to exercise enough diligence so as to include as much “relevant” information as possible in the provenance of an object under their care and ownership.

Gaps are unavoidable because no one has paid enough attention to them and considered them to be “normal.” If the art world changes its behavior towards the writing of a provenance, the gap issue might wither away naturally. But, being the optimist that I am, it will take at least twenty years for such behavior to change on a systematic, industry-wide scale across continents.

“Ambiguities”:

That word can only be addressed through careful research. The structure of the provenance itself allows its author or anyone else for that matter to use footnotes in order to address the “ambiguities” inherent in the provenance. That strategy has been in force for quite some time and appears to work very well.

“passage of time”:

Time is elusive and so are record-keeping and people’s memories. Passage of time is a non-issue and should not even be included. In fact, when one reads that expression, one can only see a veiled threat by a museum invoking “latches” and flinging it at the claimant for not having “done enough” to research the fate of his/her object.

“circumstances of the Holocaust era”:

A lovely historical misnomer which reduces the relevant domain of inquiry to the period 1940-1945. In other words, it is a misreading of history and is inconsistent with the phrasing “Nazi era” which lasted from 1933 to 1945.

In June 2011, we noted that “Principle IV is the kiss of death for claimants. No one follows this Principle because provenance is everything. If there is a gap in the provenance, it is because the information is not available. If the information is not available, it is because access is being denied to the relevant information.” Hence, Principle IV is wishful thinking at best and utter diplomatic cynicism at worst. It can only be salvaged if action is taken to enforce Principles II and III.

Principle #4 could be rewritten and expanded as follows:

In establishing that a cultural, artistic and/or ritual object has been confiscated, misappropriated, been subject to a forced sale and/or other acts of illicit dispossession by the Nazis, their supporters, profiteers and Fascist allies across Europe between 1933 and 1945 and not subsequently restituted, every diligent effort shall be made to produce as complete a provenance as possible by filling gaps and resolving ambiguities produced within and/or facilitated by a context of racial persecution, warfare, and genocide during the entire period of the Third Reich, the Holocaust, and the Second World War, across Axis-controlled Europe between 1933 and 1945.

Some frequently asked questions

by Marc Masurovsky

a/ What is the total number of art objects claimed?

One should place the ultimate answer to this question in its proper context. By May 1945, somewhere between 15 and 20 million art objects of all sorts, from masterpieces to portraits of your favorite saints and relatives, had been misplaced due to civil unrest, persecution, war, genocide, and theft.

Of those misplaced cultural objects, a small number fit the moniker of “culturally-significant” or “national treasure” or both, depending on who is defining those two very odd expressions. For the sake of the argument, let’s just say 1 to 5 per cent of the misplaced objects fit those categories, or 100,000 (lowest number) to 1 million (highest number). The rest fell into the general bucket of culturally not so significant or insignificant, again, depending on who is expounding on this odd categorization.

Postwar Allied restitution policy ended up focusing on the 1 to 5 percent of objects lost or missing due to State-sponsored mischief between 1933 and 1945. For the rest, compensation schemes were foisted onto shell-shocked survivors and their kin due to an institutional absence of interest amongst postwar governments to aid those victims in locating and recovering their missing cultural property for reasons mentioned above. Many of the culturally significant objects and those earning the label of “national treasure” came from State collections plundered by the Axis or from private collections owned by rather wealthy individuals with close ties to State museums in countries dominated by the Axis. Those items received favored treatment in the eyes of the Allies and their representatives, referred to as “Monuments Men”.

The Allied powers’ prime directive was the rehabilitation of Europe (read that part of Europe not occupied or influenced by the Soviet Army and its government) especially as the incipient Cold War became a full-fledged game of geopolitical antipathy between former wartime allies.

As a consequence of the aforementioned factors and those tied to the inevitable human condition—people over property—most survivors did not file claims in the immediate postwar period and only did so after deadlines had passed and the only chance of recovering anything was close to 0.

By 1956, the US State Department had estimated that approximately several hundred thousand cultural objects of all kinds and shapes and value were still being claimed through its good offices by individuals from more than 30 nations.

From the mid-1990s to today, since there is no concerted international effort to tally the total number of claimed objects that are registered as such with national governments, we can only guess that, perhaps, the figure is close to or in excess of the number declared by the State Department in 1956, since most of the claims were never satisfied.

Nations that are signatory to international compacts known as the Washington conference of 1998 and the Terezin Declaration of June 2009 should conduct a census of all outstanding cultural claims registered as of now in their care and publish those results for public consumption.

b/ what is the total number of art objects restituted?

Historically, we only have repatriation figures from various postwar governments and official statistics regarding actual physical restitutions up to the early 1950s. Since then, there is very little public information that can be found about how many art objects were returned until the late 1990s.

Those nations that have established restitution committees (the United Kingdom, the Netherlands, France, Germany, and Austria) have compiled figures regarding the number of objects that have been claimed through their auspices. But no statistics are tallied pertaining to the number of objects returned through direct negotiations with museums, auction houses, institutions, corporations, and private individuals.

c/ what is the total value of art objects sold after restitution?

The only indication of value comes from press reports about items being auctioned after restitution. It can safely be assumed that the objects with an Austrian provenance—mostly oil paintings by Gustav Klimt and Egon Schiele—have fetched the highest prices at auction following their restitution, mostly due to the infatuation by the upper tiers of the global art market for such works, regardless of their inherent and implicit esthetic value. Those works alone have fetched in toto more than half a billion dollars. It might be safe to conservatively estimate the total value of restituted objects at slightly more than a billion dollars since the late 1990s. But that figure needs to be carefully verified through an elaborate survey of the field of art restitution.

d/ what is the total value of so-called “art restitution litigation?

This question is unfair and unjust but it does capture the collective imagination that impugns all sorts of evil motives to lawyers who seek opportunities wherever they can. We can only surmise how costly litigation efforts can be once we fuse the fees earned from seeking restitution and preventing restitution. Usually, fairly well-heeled law firms are recruited as outside counsel by museums in order to safeguard the integrity of their collections and rebuff attempts by claimants to assert their claims to title. On the plaintiffs’ side, there is an odd mix of solo practitioners and small and large firms involved in art restitution. All told, there are not more than 100 or so attorneys—yes, you read it!—who work on art restitution cases as an integral part of their legal practice if we combined North America, Europe and Israel. Since most plaintiffs cases are adopted on a contingency fee basis, usually 30 per cent, you should take the estimated value of restituted objects and divide that figure by three in order to get an idea on the estimated value of the litigation for plaintiffs’ lawyers. Likewise, for those lawyers defending their clients against outside claims, the fees can easily rise into the millions of dollars for each claimed object. Most of the claimed objects that are subject to intense years-long litigation hold values in excess of 1 million dollars.

Where does all of this leave the bewildered field of provenance research? You guessed it. The two main incentives underlying provenance research are to 1/ safeguard art objects which are part of a museum’s collection or that of an individual collector or 2/ obtain the restitution of such an art object.

What does this mean in terms of the objective and empirical integrity of the research being conducted on the history of an object? How do these legal undertakings affect the very nature of provenance research as distinct from its initial intent as an art-historical practice?

What is the future of provenance research and can it be salvaged as an objective, scientific field of inquiry?

Provenance is a landscape

by Marc Masurovsky

Provenance is a landscape where every gap is like a gorge that one crosses on a bamboo bridge. Every stretch of time left unexplained is like a desert or a forest that one crosses seemingly without end.

It is the perfect post-modern expression of a history made of fragments of time, place and humanity, and we have to make sense of it.

If provenance is a legal document, it is woefully lacking.

If it is a security questionnaire, It becomes an open invitation to a tight interrogation.

Hayden White would feel right at home with a provenance because it exemplifies that tired motto: history is fiction.

Provenance is supposed to explain the history of an object. The basic components are time, place and people. Sometimes you have more people than places but no time markers.

Sometimes, a provenance will be like a ground hog poking its head up for a brief moment.

Hi, my name is John Smith and I owned a painting by Hans Holbein in 1969 and I won't tell where I bought it, so there. Sure enough, it disappears in its hole and you're left with a ground hog's view of history.

The duty to memory

by Marc Masurovsky

Which is simpler—recovery of looted cultural objects or memorializing the loss of cultural objects? The short answer is: both are fraught with complications. Let's focus for now on memory.

Remembering what was once “ours”.

When natural disasters strike communities, the survivors get together, mourn their losses, both individual and collective, give thanks for being alive, and remember what was once “theirs.” It is part of the grieving process. Shrines are erected to honor the dead, plaques are affixed to the walls of buildings where a traumatic event occurred, or steles are set up in public squares or at a crossroads, to honor and remember. These acts of remembering are the outward expression of a tacit, implicit accord that we have a duty of memory, our responsibility as an organized citizenry to pay homage, to remind ourselves that, despite events in our common pasts, anchored in mass violence and traumatic upheavals, our communities survived and, although scarred, rebuilt themselves.

Whether it be the “Holocaust,”, the mass murders and tortures in Cambodia, the fratricidal violence in countless countries, the near-total extermination of indigenous groups worldwide, there is a collective duty to remember what we, as humans, are capable of inflicting on our neighbors, our friends, our relatives, and on total strangers. The memory of our “bloodlust” serves as a reminder of what we have lost and what we have done unto others.

In the case of culture, this duty to memory takes an odd turn.

Plaques

Rare are the plaques that memorialize sites of plunder.

Jeu de Paume memorial in Paris

In France, it took the government nearly a half century before it felt that it could memorialize the depredations resulting from the Nazi-led cultural plunder of France. In 2005, a plaque was nailed to the side of the Jeu de Paume museum in the Tuilerie Gardens in Paris. It immortalizes the Jeu de Paume as a storage and transit center for art looted from Jewish victims of Nazi policies in occupied France and Rose Valland’s role in documenting those thefts. The plaque itself is sober. It also cites the number of works that Rose Valland is credited with recovering on behalf of the French State—45,000 in all—. One wonders whether all of those objects transited through the Jeu de Paume or if that figure represents the totality of works of art which the French government was able to repatriate from Germany and Austria after 1945.

In 1942, the Nazi government decided that it was time to expropriate all Jewish-owned property for the benefit of Germans living inside the Reich’s borders. The enforcement of the so-called “Mobel-Aktion” all across Western Europe resulted in the emptying out of tens of thousands of residences either rented or owned by persons of Jewish descent. Their goods were sorted, the most valuable were set aside, while the rest were put on trains to German cities damaged by Allied aerial bombing raids. In German-occupied Paris, a number of sites across the beleaguered capital were used to process expropriated Jewish household goods, a task performed by Jewish inmates from the transit camp of Drancy. One of those sites was called Levitan, once a furniture store at 85-87, rue du Faubourg Saint-Martin. A plaque was erected which honors the Jewish prisoners who worked there as slave laborers.  It also reminds the reader that Jewish goods were sorted at Levitan.  A good many of those goods were art objects which were inspected by Nazi agents and later sent to the Jeu de Paume for cataloguing and shipment to art depots in the Reich or for resale on the Paris art market.

Memorial at Levitan in Paris

Similarly in Germany, there are few memorial plaques reminding the public of Nazi crimes against culture.

Kopenickerstrasse depot memorial in Berlin

In Berlin, a printed text framed inside a clear waterproof casing is nailed to a wall at the former Kopenickerstrasse depot which encapsulated the destructive power of “Aktion Entartete Kunt”. In that depot, thousands of “degenerate” works of art were stored after being confiscated from individuals, galleries and cultural institutions across Germany. A good many were destroyed while the rest were put up for sale on the international art market.

One of the rare plaques honoring the work of an ardent critic of the corruption endemic to post-WWI German society marks the residence of Georg Grosz as one who stood against militarism and who satirized through his graphic work State-sanctioned corruption. Predictably, the Nazi authorities tagged Grosz’ works as “degenerate.” By 1933, Grosz had established himself in New York as a German exile.

Georg Grosz memorial plaque in Berlin, Germany

If we view the Jeu de Paume commemorative plaque as setting a precedent for memorializing sites of plunder, shouldn’t similar plaques be established at former ERR depots in Germany and Austria where loot from across Axis-occupied Europe was amassed?

Here is a brief list of these sites:

Neuschwanstein/Fussen/Hohenschwangau
Buxheim near Memmingen
Alt-Aussee
Kogl
Thurntal
Herrenchiemsee
Amstetten/Seissenegg
Nikolsburg in the Czech Republic.

The ERR depots in Paris should likewise be marked with similar plaques, used for processing Jewish-owned collections and for amassing loot seized during M-Aktion.

6, place des Etats-Unis
17, place des Etats-Unis
12, rue Dumont d’Urville
26, rue Dumont d’Urville
77 Avenue de la Grande-Armée, garage Talbot—sous-sol et 1er étage
23, rue Drouot
41, quai de la Gare d’Austerlitz
43, quai de la Gare d’Austerlitz
Faubourg Saint-Martin : garage Levitan
Rue Fresnel : Garage Fresnel
104, rue de Richelieu
45, rue Labruyère


Maybe plaques should also be placed outside of the Hotel Drouot in Paris, to remind art shoppers that this was an important recycler of looted Jewish-owned property. Is that inappropriate to even suggest a public link between a leading broker of art sales and its managers’ opportunistic behavior during the German occupation of Paris?

How far does one extend the work of memory through memorials without provoking volatile reactions from the public and from the government, starting with the arrondissement, the city and the national government?

Clearly, the complexities associated with remembrance activities, especially those that leave a permanent presence such as physical memorial structures, abound. This fear of offending one part of the public and of rattling old skeletons is nothing new but it plagues the public discourse on cultural plunder during the Nazi years.

At this rate, we can go from one country to the next where acts of plunder occurred and draw up lists of sites of memory.  The list is endless, perhaps because the memory of plunder has not yet been addressed properly.

Museum labels as “memory”

Inadequate labeling can create even more frustration than the absence of labeling associated with works of art on display. Several decades ago, there was widespread indignation at how the French government described the origin of specific works of art in State-owned museums.

Since then, there have been sporadic efforts in the United States to be more upfront about the troubled past of works in permanent collections. At the Museum of Fine Arts, in Boston, MA, a project called “Art with a Past” invited viewers to read a text that did not exceed several hundred words on a large-size plaque next to the concerned work of art. The text detailed that the work had been plundered by the Nazis and had since been restituted to its rightful owners before entering the MFA’s collection. A unique experiment in the postwar annals of museum labeling, the “Art with a Past” project shows how a cultural institution can guide the viewing public to explore further the history of ownership of an object and serve as a reminder that history, even traumatic history, can intersect and interfere with the lives of an object’s owners.

Provenance as memory

The history of ownership of an object participates in the duty to memory. After all, museum leaders already encourage their staff to produce a particular telling of the story of the objects in their collections. But they are averse to construct a story of the object as an “object lesson” in how history and art interact and affect the destiny of works and objects of art. The decades-long feud over how provenance is researched and written goes to the core of this duty to remember traumatic events that shape and direct the paths taken by objects and their owners through the sinews of history, both in space and time.

An inability and unwillingness to write these stories constitutes a crime against memory, an appeal to institutional amnesia-"appreciate” art simply as object of worship and study. The art world’s refusal to acknowledge the complex history of art objects blindsides historical truth and cheats the viewing public of a unique chance to learn more about how objects circulate, often without their owners’ consent, as a result of turbulence in the unfolding of history. Governments should encourage cultural institutions to engage their public by using art as an opportunity to teach history. After all, what better way is there to use their tax-exempt status which is there for a reason--to educate their public?

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

Food for thought

by Marc Masusrovsky

At this point, there are two camps, one of which refuses to compromise, while the other has always been open to dialogue and exchanges of information.

The uncompromising camp upholds the sanctity of museum collections and subscribes to the theory according to which an object’s history is less important than the object itself.  Ultimately, the fate of an object is incidental whereas the possession, display and study of an object is primary. The latter believe that people and objects are intertwined and that the fate of an object is as important as the object itself.  In other words, the story behind and the history of an object are no less significant than the physicality and essence of the object under examination.  The uncompromising group has deliberately politicized the discussion over provenance to the point that it is impossible to discuss provenance without a lawyer in the room.  What this group does not wish to admit under pain of abject torture is that a provenance is per se a legal document as much as it is a historical document. Hence, any discussion of provenance must include a discussion of law.   

Plain and simple.

The object would not exist if there had not been a person creating it.  The object itself becomes the subject of a commercial transaction, an exchange, a transfer, a gift.  In short, the ownership of the object will shift at some point from its creator to someone else.  The essence of an object does not change over time.  It is timeless.  But that is not the issue at hand here.

The ownership of an object can be either licit or illicit, it cannot be both or neither.  That should be as plain and clear as day.  When an object which has been illicitly obtained enters a public or private collection as an acquisition or a gift, title to this object will be transferred from the previous owner—licit or illicit—to the receiving institution or individual.  If the previous owner entered into possession illegally, he has no legal right by which he can transfer good title or legitimate ownership to the next owner.  However, if the receiving party—the new owner—is fully aware of the dubious nature of the object that he is acquiring or accepting as a gift, he becomes party to the theft.  That should be also clear, no?

The provenance becomes the public face of these transactions—licit or not.  For that reason and for that reason alone, it becomes a source of evidence as to who owned, possessed, or held the object when and where.  Now, do you understand why there are no provenances that appear when you click on an object displayed on someone’s website? Or even better, if there is a provenance, it is so elliptical that it is in fact a work of fiction.

Hence, the school of thought that politicizes the discussion over provenance and provenance research is the same school that does not really subscribe to the rule by which the full provenance of an object should be disclosed as a means of educating the public—hence, putting one’s tax dollars to full use—as a means of educating the buyers and borrowers of these objects so that they can rest assured that they are buying or borrowing an object that is licit. 

Any attempt to hide, modify, or otherwise obscure the ownership trail of an object, is somewhat akin to the commission of a crime.  But, unfortunately, most nations do not criminalize such activity.

When an object is presented for acquisition or as a gift, the potential buyer or recipient of the gift should make sure that the provenance of that object does not hide any unsavory past which would threaten his good title to the object under discussion.  That requires a certain amount of due diligence.

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The big question is: 

How much diligence is due and acceptable?    

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The answer to that question varies from place to place and can be truly disarming.  From checking a single database to making several phone calls (much like calling references submitted by an applicant), people exercise their “due diligence” in odd ways, because, ultimately, those folks want the object that is presented to them.  Nevertheless, a reasoned approach might compel the potential buyer or recipient of the gift to demur and reject the object because the provenance simply is too skimpy for words or there are too many unanswered questions that, in due course, would come back to haunt the new owner of this 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.  Invariably, the vast majority relegate the flawed provenance to the imperfections of time and history and express their utter delight at the prospect of embellishing their collection with such a fine new acquisition.

The Krakow Declaration, May 14, 2009, Krakow, Poland

The Krakow Declaration was written by a group of independent historians, attorneys, and members of the art trade, from the United States and Europe, concerned over the general lack of initiative and action on matters pertaining to art restitution.

The Declaration evolved over two days of animated discussions, its ultimate purpose to provide an alternative text to the one that would be issued at the forthcoming Prague Conference of June 26, 2009, on Holocaust-era Assets.

Here it is:

Recognizing that it is not in the national interest to build art collections with looted property or to keep collections taken from victims of religious, racial or other forms of persecution between 1933 and 1945, 

Recognizing that between 1933 and 1945, the art and cultural property of Holocaust victims was dispossessed through various means including theft, coercion, abandonment, forced sales, and sales under duress, 

Recalling the Washington Conference Principles on Nazi-Confiscated Art adopted at the Washington Conference of 1998 which enumerated a set of commitments for governments, 

We reaffirm our support of the ‘Washington Principles on Nazi-Confiscated Art’ and encourage all parties including public and private museums, galleries and auction houses to abide by them as well. 

We acknowledge that the plunder of cultural property was an integral part of the genocide perpetrated against the Jewish people and of the persecution of others and that it was a war crime and a crime against humanity. 

Exclusive government control of research into provenance and title issues and the failure to permit, encourage and enable independent research is not acceptable. We therefore urge nations to provide adequate funds to facilitate independent research and to make such research available to the general public. 

Taking into consideration the Washington Principles on Nazi-Confiscated Art, we urge all parties to ensure that claims to recover looted art are resolved expeditiously and based on the facts and merits of the claims, having taken into account legal, moral and other considerations, in order to achieve just and fair solution. 

Export control, cultural heritage and citizenship laws should not be applied to prevent the return of property to Holocaust victims. It is unjust for a country that took or came into possession of Holocaust looted property to keep it.


We urge nations to enact or modify laws and regulations to authorize the restitution of looted Holocaust cultural property to their rightful owners.


Where statutes of limitations or prescription laws prevent the restitution of looted Holocaust property, they should be waived or exceptions for Holocaust looted property should be made. 

We urge nations to conduct systematic surveys of works of art and other cultural objects in their collections, produce inventories of this property and make them available to the general public. 

We urge nations to conduct systematic provenance research and make the results available to the public. 

We urge nations to provide alternative dispute resolution mechanisms using qualified and independent experts. 

Acknowledging that provenance research has priority over individual privacy protection, we urge nations to open all public records and archives pertaining to the looting of cultural property through various means including theft, coercion, abandonment, forced sales, and sales under duress; to make them accessible to researchers and the public, and to provide incentives for the accessibility of privately-owned archives. 

All nations should monitor restitution activity and make public annual reports on the making and resolution of claims and supply to the public accurate information about looted Holocaust property.


We urge all nations to create facilities where information is available on restitution procedures in other countries. 

Krakow, Poland

14 May 2009