Art law: an ever-changing area

Aug 06, 2019

Written By Tuula Petersen

The abundance of cases related to forgery, looting and spoliation has meant that—with the exception of guns and drugs—the art market is the largest unregulated industry in the world.

Whether you realise it or not, art law has been thrust into the public eye recently, due to the controversy surrounding the Tutankhamun relic.

Following the sale of a 3,000-year-old brown quartzite bust of Tutankhamun for £4.7 million, Egypt has reached out to Interpol to help track down its buyer. The sculpture was auctioned off to a secret client, despite strong objection from Egypt regarding the disputed provenance of the relic. Egypt’s National Committee for Antiquities Repatriation has also hired a British legal firm to file a civil lawsuit against Christie’s, a London-based auction house, claiming the provenance of the article was not fully disclosed. Christie’s denied any malpractice and provided a chronology of the artefact’s provenance through European art deals over the past 50 years.

Tracing the object’s history as far as the 1960s is crucial to the auction house’s case, as the rules on cultural heritage were amended and restricted following a 1970 UNESCO convention. Article 7 of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970, outlines the measures states are required to take to prevent museums from acquiring stolen property. Christie’s further expressed their surprise at Egypt’s keen interest in the auction, since Egypt had never previously shown such an interest in relics related to Egyptian history.

This is most likely due to the changing perceptions within the art industry. Buyers and sellers of art are becoming increasingly concerned about the provenance of the artwork. In accordance with the global consensus of greater transparency, the art industry is undergoing a similar process. Museums and art institutions are expected to be held accountable for the legality and the origin of the works in their possession. The unconditional trust invested in museums and high-profile galleries has been strained in light of a host of recent cases.

However, contrary to Christie’s statement, this is not the first time Egypt has vocally expressed outrage in relation to the auction of historical artefacts. In 2016, The Toledo Museum of Art in Ohio commissioned Christie’s in New York to sell 68 objects of Egyptian and Greek origin. The Egyptian ministry of antiquities requested the objects be returned to the country of origin and accused the museum of violating the International Council of Museums' code of conduct.

Even if the artefact was sold legally, there remains the ethical question of whether or not an archaeological artefact should be limited to private ownership. Alice Stevenson, a senior lecturer in Museum Studies at University College London (UCL), points out the dangers of the commercialisation of archaeological heritage. The privatisation of these artefacts removes the obligation to protect the integrity of the object. To add to this, the exceptionally large sums spent on these pieces during the auctions are heavily publicised in headline stories, “reducing heritage to economic value and undermining the attempt to promote meaningful engagements with the past. Sales from museums in this context threaten public trust in them”.

Legally speaking, there is very little obligation for a museum or a cultural institution to publish the provenance of their artworks. For the time being, society is expected to trust the goodwill of the artwork’s owner or the museum to identify the provenance of the works and return them to the rightful owners.

In response to growing public awareness and concern regarding the provenance of artworks, the Victoria and Albert Museum (V&A) in London is undergoing a substantial project to list all the previous owners for the entirety of their collection. Jacques Schumacher, the appointed Provenance and Spoliation Research Curator at the V&A, has flagged 85 objects within the museum’s collection that have a gap in its ownership history. The Nazi regime’s mass looting of art deemed inappropriate and misaligned with their values has resulted in a large number of artworks lost in museums, auction houses and private collections around the world.

Jacques Schumacher and Alice Minter, the Rosaline and Arther Gilbert Collection Curator, discuss the topic of provenance in the V&A’s Culture in Crisis series. In the 1980s, the V&A acquired an art collection previously the property of Emma Budge, a Jewish socialite and art collector from Hamburg. Although the curator at the time was aware of the controversial history surrounding the looted art, the sentiment at the time meant the art was primarily perceived as an excellent collection to display in the museum. Following a court case, the V&A returned the proceeds to Emma Budge’s heirs in 2012. The case demonstrates how public perception and moral values have changed in relation to spoliation and provenance issues.

In order to ensure looted art is not unjustly sold on the market, several initiatives have been set up to help small-time art dealers and museums determine the provenance of their artwork. The Commission for Looted Art in Europe founded in 1999 is such an example. In response to the sheer scale of looting during the Second World War, the Washington Conference in 1998 sought to harmonise international efforts to return looted property to its former owners. However, the Washington Principles is not without limitations. Lindsey Blair argued in ‘Holocaust-era cultural property looting: the United States and the Washington Principles’ from the Art and Antiquity Journal (April 1, 2019) that the Washington Principles are “idealistic and written in absolute terms”, making it difficult for states to assess whether or not they are following its doctrine.

To add to the complicated web of art law, different institutions are bound to different legislations. The British Museum in London is still subject to the British Museum Act 1963, despite calls to amend the legislation following a case of Nazi-looted art in 2005. The British Museum sought to return four Old Master drawings which were stolen from Arthur Feldmann in 1930 after he was murdered by the Nazis in Brno, Czech Republic. However, the High Court ruled that the museum's trustees would be breaking the British Museum Act of 1963 if they returned the drawings. In order for the drawings to be returned to the heirs of Feldmann, the claimants will have to prove they still have title to the paintings.

As moral attitudes change and legislation follows suit, art law is a perpetually evolving sector and an exciting one to specialise in.

Like the sound of art law? Head over to our art law profile to find out more.

Legal Spotlight