Tag Archives: law

Detroit’s Art Collection: Under the Hammer?

As if Detroit didn’t have enough problems already…

In the latest chapter on the ongoing woes of the Motor City, the entire collection of the Detroit Institute of Arts (“DIA”) is now being targeted by creditors.  You may recall that late last year, Christie’s auction house was retained to value the roughly 1,700 works in the collection which had been purchased using public funds.  They concluded that these pieces were worth somewhere in the range of $454 to $867 million, depending on the often widely-ranging vagaries of the art market.

Not satisfied with that outcome, two different groups of creditors are now going on what we in the legal profession like to refer to as a “fishing expedition”, on the assumption that assets are being hidden.  One rather ridiculous demand is that the DIA give a full accounting of all of its financial and visitor records, going back to the founding of the museum nearly a century ago – which hardly seems germane to the issue at hand.  Another  is insisting that the DIA and Christie’s provide a valuation of the museum’s entire collection of well over 60,000 items, not simply valuing those objects purchased using taxpayer money.  You can read more about the details of these subpoenas, and why things have reached this point by reading this overview from The Detroit Free Press.

From a legal perspective, the attorneys for the creditors are simply doing their job.  There’s nothing at all strange about requesting thousands of pages of documents in a case, particularly when you are dealing with an unprecedented and enormous municipal bankruptcy such as this.  These are uncharted waters for everyone, not just the parties themselves, even though the bankruptcy rules themselves are quite plain.  Attorneys and courts have an obligation to clients and to the public in any bankruptcy proceeding to make sure that no assets are being hidden or left unvalued.

Yet lost in the shuffle here is the very sad fact that should these efforts lead to a massive sell-off of the DIA’s collection, it is the people of Detroit who are going to lose.  If the DIA is dismembered and sold on the open market, no amount of return will really be enough.  To paraphrase Aristotle, the value of an art museum as a whole is far greater than the sum of its parts.

As an institution, an art museum preserves the past artistic achievements of mankind, while serving to educate and inspire those who want to admire and learn from such achievements both at present and in the future.  The study of art is just as much the study of our own history, as it is the appreciation of beauty.  When we go to a museum and look at a painting or a sculpture, we learn not only who made it, but how, when, where, and why it was made.  We all benefit, general public and scholars alike, from the work that they do to remind us of who we are, and where we come from.

It is a pity that so many decades of incompetent management, corruption, and single-party governance have led Detroit to this point, where the haunting eyes of Constanza da Sommaia, one of the elegant Mannerist painter Bronzino’s favorite muses, may be about to disappear into some collector’s Swiss bank vault.

Detail of "Portrait of Constanza da Sommaia" by Agnolo Bronzino (c. 1540) Detroit Institute of Arts

Detail of “Portrait of Constanza da Sommaia” by Agnolo Bronzino (c. 1540)
Detroit Institute of Arts

Leave a comment

Filed under culture

Catalonia and the Splintering of Europe

Secession is something of a dirty word in these parts.

My readers know that the United States dealt rather dramatically and thoroughly with the question of secession during the Civil War in the 19th century, meaning that the issue of whether a country could break apart is something which does not often cross our minds on this side of the Atlantic.  True, our media has done a great deal of reporting on the occupation of Crimea by Russia, but mainly because that action raises a number of strategic concerns for this country.  Somewhat less attention has been paid to the question of independence for Scotland, although it is reported on from time to time for the two-fold reason that the people there speak English, and Americans are fascinated by just about anything that goes on in Britain.

However in other parts of Europe, the possibility of break-up is being actively considered, yet remains outside the common knowledge of most Americans.  Consider the recent referendum in Venice for example, on whether to leave Italy and become an independent republic again, as it was before Italian unification in the 19th century.  The story received scant attention on these shores, but the referendum passed with a staggering 89% of the vote, accompanied by a huge turn-out: of the 3.7 million eligible voters, approximately 2.4 million voters took part, and of those over 2.1 million people voted in favor of declaring independence from Italy. Another example is the question of independence for Catalonia, an issue which is now starting to come to a head, but which is not being analyzed very much in American news outlets either.

As the reader may know, if he is a regular visitor to these pages, Catalonia is the northeastern region of Spain along the Mediterranean, of which Barcelona is the capital.  The Catalan people have their own separate language, flag, and culture, distinct from the rest of Spain, a fact which, at various points over the past few centuries, has caused them to try to gain independence.  Economically speaking, Catalonia is one of the most powerful of Spain’s 17 component regions, producing between 1/4 and 1/5 of the entire output of the Spanish national economy, depending on whose figures you believe.

Because of this, Catalan yearning for international cultural recognition has, in recent years, been joined with something resembling economic libertarianism.  The perception, rightly or wrongly, among the Catalans that they are paying far more into the central Spanish economy than they are getting out of it, has fostered a widespread call for less centralized control by Madrid.  This development of a greater desire for self-determination based on economic policy, not just cultural preservation, has appealed to a broad swath of Catalan voters, and led to an upcoming referendum which could lead to Catalonia declaring independence from Spain…or maybe not.

Back in January of 2013, the Catalan Parliament adopted a resolution that Catalonia had a right to hold a vote on whether to declare independence from Spain, as a sovereign legal and political entity.  This was temporarily suspended by the Spanish Constitutional Court in Madrid in May 2013, pending judicial ruling on the matter.  The resolution was rejected yesterday by the court, declaring that “within the framework of the constitution, a region cannot unilaterally convoke a referendum on self-determination to decide on its integration with Spain.”

While this was making its way through the legal system last year, the major Catalan political parties did not wait to see what Madrid would decide.  In December 2013, the Catalan government announced that a referendum would be held on November 9, 2014, in which two questions would be placed before the electorate.  First, voters would be asked whether they wanted to declare Catalonia a state; if so, the voters would then be asked whether that state should be independent of Spain.  The central government in Madrid has already declared that any such vote would be illegal under the Spanish Constitution, a position strengthened by yesterday’s court ruling.

Keep in mind, there are two very important differences with respect to the way the Scottish and the Catalan independence referenda are proceeding.  In the case of Scotland, the vote will only ask one question: whether Scotland should be an independent country.  In Catalonia, the two-part question means that, in theory, a majority of voters could declare that Catalonia is a state, rather than simply a province or a region, and yet those voters could also decide that they do not want to be independent of Spain.  Additionally, while the Scottish vote is taking place with the blessing – if not the approval – of the British government, the Catalan vote, if it happens at all, clearly will have no such approval nor be recognized, whatever the outcome.

Yet interestingly enough, Tuesday’s ruling may not prove to be a defeat for the Catalan referendum after all.  Not only was this court result expected, but it may actually galvanize Catalan voters to go ahead with their vote anyway, in defiance of Madrid.  If it does, Catalonia may be betting on the fact that the current Prime Minister of Spain, Mariano Rajoy, and the conservative Partido Popular which he heads, are now unpopular.  The Spanish economy remains something of a basket case, with around 26% of Spaniards still unemployed, and economic growth this year predicted to be only around 1.2%, according to figures released today by the Bank of Spain.

Given that Spain has been in the economic doldrums for several years, this growth rate is actually comparatively good news, but it is not winning Sr. Rajoy or his party many votes.  Recent polls suggest that in the upcoming EU Parliamentary elections in May, the Partido Popular is likely to lose to the Socialists and other leftist groups.  And since national elections must take place in Spain in 2015, Catalonia may be betting that Sr. Rajoy will not want to risk being seen ordering the police or armed forces to arrest and prosecute those trying to organize the referendum.

Of course, if Catalonia decides that it is a state within a state, this may prove almost more confusing within Spain’s patchwork system of government than if it simply declared independence.  Unlike the United States or Germany, Spain does not have a federal system of government, with a clear division of powers between the various state governments and the national government.  Rather, individual relationships were negotiated between the central government in Madrid, and the component regions of the country, which over the years have occasionally been re-visited and renegotiated.

Thus, even if full-on independence does not pass in Catalonia, Spain could be looking at a major constitutional crisis.  Other wealthy, culturally and linguistically separatist regions in the north of Spain, such as the Basques or Galicia, could decide that they, too, want to hold such referenda.  Some might want to stay within Spain; others might go for full-on independence.  The end result could be an evisceration of the Spanish Constitution, something which Madrid absolutely does not want.

In a wider European context, Brussels is clearly concerned about what the fracturing of nation-states means for the future of the European Union.  Paradoxically, it is the greater degree of self-determination brought about by membership in the EU which has helped to bring about these resurgent independence movements, but there is no guarantee that a newly independent Catalonia, Venice, or Scotland would be permitted to join the EU.  Their “parent” states could indefinitely prevent their accession, for example.  These would not be friendly annulments, as occurred in the breakup of Czechoslovakia, nor bloody, drawn-out divorces, as occurred in Yugoslavia, but something altogether new, which Brussels will have a very difficult time dealing with.

Stay tuned.

Pro-Independence Rally in Downtown Barcelona September 11, 2012

Pro-Independence Rally in Downtown Barcelona
September 11, 2012

1 Comment

Filed under culture

Surprise! Richard III Was Catholic

Hearings before a panel of three judges continued today at the High Court in London, over what to do with the remains of King Richard III.  The re-discovery of his tomb has set off a fury of argument in the UK about where the king ought to be re-buried, which has led to the current court case.  Yet much of the legal wrangling underway over where to put him seems ridiculous, because it overlooks the fact that Richard was a Catholic.

One of England’s most important and famous historical figures, further immortalized by Shakespeare, Richard III was the last of the direct line of the Plantagenet family dynasty to rule England.  He was killed in 1485 during the Battle of Bosworth Field, by troops led by his cousin Henry Tudor.  Henry subsequently took the throne as King Henry VII, and established the Tudor dynasty.

Richard III was buried rather quietly in the church of the Franciscan friary located in the city of Leicester, rather than with pomp and ceremony with other English kings in Westminster Abbey; Henry VII himself paid for a carved alabaster tomb for the man whom he had dethroned.  Following the Dissolution of the Monasteries by Henry’s son Henry VIII during the Reformation, both the Franciscan church and friary were destroyed, and Richard’s tomb was lost to history for over 400 years.  Until recently, a parking lot stood over the site of his grave, but in 2012 excavations on the site led to the re-discovery of his remains.

Historians still debate whether Richard III was the villain portrayed by Shakespeare, or whether he was the victim of calumnies spread by his opponents that passed into the popular consciousness.  Yet wherever the truth lies, one question can be answered clearly and unequivocally: Richard was born, lived, and died a Catholic.  He endowed Catholic institutions, received the Catholic sacraments, and worshiped in the Catholic faith of his fathers.  Being a Catholic who was buried in a Catholic church in the charge of a Catholic religious order, we can reasonably assume that Richard also received a Catholic burial.

Nevertheless, court arguments currently underway are apparently in a different realm of thought altogether.  One group wants Richard III to be buried in York Minster; another group thinks that he should be buried at Leicester Cathedral; a third group is arguing that he should be interred in Westminster Abbey.  While all of these medieval buildings were originally Catholic of course, today none of them are.  And unfortunately the Catholic bishop of the Diocese of Nottingham, where Richard’s remains were rediscovered, has simply left the debate entirely to others.

To re-bury Richard III in a Protestant church using some sort of cobbled-together, ecumenical banner-waving exercise, or mock-approximation of what a 15th century Catholic service for the dead *might* have looked like, would be ridiculous.  It would be like disinterring the Protestant Woodrow Wilson from his tomb at the Protestant National Cathedral here in Washington, and re-burying him in the Catholic Basilica of the Immaculate Conception on the other side of town.  Unfortunately however, it appears fairly certain that whatever the High Court decides, Richard III’s remains are going to have to go through something like this.  It is a pity that he is being treated more as a political football and potential source of tourist revenue, rather than as an opportunity to show respect for the deceased.

Facial reconstruction of what Richard III may have looked like based on his remains

Facial reconstruction of what Richard III may have looked like based on his remains

1 Comment

Filed under culture

An Ancient Bronze Headache for The Getty

If like most people you enjoy collecting things – baseball cards, stamps, snow globes of the world, etc. – chances are you built your collection in a law-abiding way.  You received these items as gifts, or you bought them from a shop, market, garage sale, etc.  At the time, you probably didn’t stop to think about where the person selling you the item picked it up; if you did, chances are you dismissed the question from your mind fairly quickly.

Yet when it comes to extremely expensive objects, such as items from ancient cultures, international law is often not willing to dismiss that question so easily.  Countries know that antiquities are part of their cultural heritage, and as crass as it may seem to observe the fact, cultural heritage can translate into tax revenue.  Having magnificent, ancient objects to put on display in state-run museums will attract more visitors, and therefore more income, in the form of admissions fees, taxes, and externalities to local businesses such as hotels and restaurants, who themselves will then be taxed as well.  An example of this which is very much in the international legal and art news right now involves a bronze statue that has been on display at the Getty Museum in Los Angeles for decades, but which has been in the midst of a sort of custody dispute with the Italian government, at the instigation of a local museum group, for the past five years.

In 1964, Italian fishermen working on the Adriatic Sea discovered a well-preserved Ancient Greek bronze of a young man, presumed to be the figure of an athlete, since he is crowning himself with a laurel wreath as the victors in the original Olympic games used to do.  Commonly referred to as “The Victorious Youth” or “The Athlete of Fano”, after the nearest town to where he was found, it was probably cast sometime between the 1st and 2nd centuries B.C.  So few Greek bronzes from the ancient world have survived, that this was a truly remarkable find.

The fishermen in question sold the statue to a local art and antiques dealer, maintaining that they had found it in international waters; the piece eventually left the country and passed into the international art market.  A few years later, the men who had sold on the statue were charged with theft by the Italian government, since any ancient object discovered in Italian territory is rightfully the property of the state, not only under Italian law but in fact in many other countries around the world as well.  Although the men were initially convicted, those convictions were later overturned.  An appeals court found that the prosecution had failed to establish the most critical element of their case: i.e., that the statue had been found within Italian territory, and was therefore Italian state property.  Without that proof, there could be no presumption of culpability of theft from the Italian government on the part of the sellers.

Several owners later, the Getty purchased the bronze in London for $3.95 million in 1977.  They did so even though a few years earlier, the museum’s founder J. Paul Getty had passed up the chance to buy the statue when he smelled something fishy about the question of legal ownership.  After Getty’s death, the curators ignored his caution and went ahead and bought the piece anyway.  The statue made its way to Los Angeles, and became one of the greatest prizes of the museum’s collection.

Now we fast-forward to 2006, and an effort by the Italian government to crack down on activities like looting, grave robbery, and the illegal export of antiquities.  Italy contacted the Getty and alleged that a number of items in the museum’s collection had been illegally exported from Italy, and demanded the return of these objects; one of the objects on the list was “The Victorious Youth”.  While the museum complied with most of the requests, it refused to return the bronze, saying that the issue had been decided back when the appellate court quashed the convictions of the men who originally sold the piece into the stream of commerce.  Since then, the statue has been the subject of ongoing litigation between the Getty and the Italian government.

Most recently, on Monday of this week the parties were expecting to argue before the Italian Supreme Court in Rome, after a lower court judge issued a ruling ordering that the statue be returned to Italy – a ruling which the Getty appealed.  Unfortunately, though perhaps not surprisingly given the pace of the Italian justice system, the panel charged with hearing the case decided to boot the matter to another department, meaning that the litigation will go on for the an unknown additional length of time.  To date, then, the ultimate fate of the “Victorious Youth” remains in question.

As interesting as the legal side of this case is, including the philosophical and public policy questions it raises about our right to own objects, from a practical if not a jurisprudential point of view, I suspect the Getty will eventually be compelled to send the bronze back.  Even were the court to find that the previous judicial precedent regarding the statue’s aquatic origins was correct, that alone would be no guarantee that thereafter things would be smooth sailing. After all, the Italian authorities could begin to make life very difficult for the Getty, such as if the Getty wanted to borrow a work for a joint exhibition with one of the Italian museums.  Perhaps that is a cynical view, but again, it is a foreseeable result in this case. Regardless of the decision, it will be fascinating to read when it finally comes down.

"The Victorious Youth" by Unknown Sculptor (c. 300-100 B.C.) The Getty Museum, Los Angeles

“The Victorious Youth” by Unknown Greek Sculptor (c. 300-100 B.C.)
The Getty Museum, Los Angeles

Leave a comment

Filed under culture

A Decidedly French Bonfire of the Vanities

If you are collector, then you know how it feels to discover that the object you purchased is a fake, a copy, or a reproduction.  Once, an art dealer friend grew very excited about a painting he bought at an estate sale, thinking he had discovered an original 19th century work for a song, only to be told – by me – that it was in fact a rather so-so copy of a portion of a fresco by the 16th century Venetian Renaissance painter Paolo Veronese.  Since then, he tends to gives me a jingle when he is considering purchasing a painting that he is not 100% sure about.

We should of course draw a distinction between the three categories described above, at least insofar as these terms apply to the art world.  A fake is an object created with the intent to deceive.  Copies and reproductions on the other hand, are made for various reasons.  For example, artists whose work was very popular in their own lifetime would sometimes paint copies of their own paintings, or have their assistants do so for them.  Later artists will often copy works by earlier artists, trying to study and understand the techniques that were employed.  Reproductions do not come from the original artist’s studio, but are made through a variety of methods, for the sake of making a popular image available to a wider audience.

So one cannot help but feel some pity for British businessman Martin Lang, who purchased a painting which he believed to be by the prominent Modern artist Marc Chagall.  Not only has a committee of experts in Paris decided that the painting is a fake, but under French law Mr. Lang will probably not get his painting back.  Instead, Chagall’s heirs have the right to insist that the painting be burned in front of a French judge.  As an example of ridiculous French jurisprudence – though I repeat myself – this result is rather unfortunate, to say the least.

However it is so not for the reasons pointed out by art expert and BBC presenter Philip Mould, who in effect unintentionally created this mess for Mr. Lang by sending the painting to Paris.  The issue of whether or not the painting is determined to be genuine now or at a later date is almost beside the point.  It is a pity that Mr. Lang will have to suffer the loss of a bad art investment, but the old warning of “caveat emptor” applies when it comes to all commercial transactions, whether one is buying a home, or a second-hand car, or a (purported) Chagall.  Sometimes there are recourses available to the injured purchaser, and sometimes not.

Rather, the stink to be raised here has to do with the question of property rights in general, and the reasonableness of the remedies available to both parties in this dispute.  In the case of the Chagall estate, the argument is that the existence of a fake dilutes Chagall’s legacy, much in the way that the fellow selling fake Louis Vuitton bags on the pavement outside the Metro station dilutes the value of the LVMH corporation.  Chagall’s reputation as an artist is deemed to suffer as a result, and although no one seems to be mentioning it in the press I have read so far, of course the prices of Chagall works would, in theory, go down as well, thus negatively impacting the income of his estate.  By contrast, all Mr. Lang will lose in this dispute is face, since it is embarrassing to find out you have been swindled, as well as the money he originally plunked down for the painting.

Yet as is usual in French history from 1789 onward, the solution to the dispute is so completely out of proportion with common sense, so ignorant of possible other, more civilized ways of addressing the problem, that it quite rightly makes the Anglo-American mind reel.  In the interest of protecting the property rights of the Chagall estate in France, the French are perfectly happy to violently interfere with the property rights of a man in England, who was acting in good faith.  Surely there must be other ways of making sure that this painting does not mistakenly gain the Chagall imprimatur and negatively impact the Chagall “brand”.

I am not suggesting, necessarily, that one grab a big Sharpie and write “FAKE” all over the back of this picture in permanent ink.  The point I am trying to make is that whether or not this is a Chagall (and assuming, arguendo, that it is not), the penalty imposed on the purchaser of such an item is so extreme as to be outrageous.  The decision on what to do with a fake of this kind ought to be the owner’s, as the bona fide purchaser for value, and not that of a committee located in another country; while the Chagall estate has a legitimate interest in protecting and preserving the intellectual property rights of the artist, the mere existence of a copy of a Chagall painting ought not to automatically consign that piece to the flames.  Such an attitude betrays the fact that the real motivation here is not to protect the integrity of a dead artist’s work, but rather to continue to line the pockets of his heirs, until all residual ownership rights are finally exhausted.

Don’t believe me? The Louvre, among many other museums in France – and indeed as is commonplace throughout the art museum world – is full of paintings which bear labels such as “Attributed To”, or “Circle of” or “After” world-famous, dead artists.  These works are exact copies, near approximations, or variations on the works of other painters, though not believed by experts to come from the hand of those original painters.  Whether the creators of these works intended them to be fakes, copies, or reproductions, we do not know.  Yet they continue to hang on the walls, rather than go to the scrap heap, because no one is complaining about them being a source of lost revenue.

Using the line of thinking employed here under French law, when Mr. Lang’s “Chagall” is taken out and burned – presumably on the Place de la Concorde, where countless other French legal injustices have taken place – I challenge French art institutions to be honest, bring out their own fakes, and burn them as well.  No more fake Leonardos, no more pseudo-Rubens, heave another mock-Poussin on the fire, boys. Let’s just have a big bonfire of French vanity for all to enjoy, and toast our marshmallows over the demise of common-sense property rights in jurisprudence.

The painting in question.

The painting in question, supposedly by Marc Chagall c. 1909-1910

3 Comments

Filed under culture