Recently, a single week of sales of modern & contemporary fine art at Sotheby’s in London generated a turnover of more than 385m. This as a case in point demonstrates several points that London (and thus, the UK) is a centre of the fine art & antiquities trade, that there is a huge commercial trade in arts and antiquities, and that objects d’arts need not be centuries old to be worth millions. What those individuals involved in these sales would contest is the notion that cultural objects can be distinguished on grounds of age antiquities may be ancient, and embody a bygone age, a far-off land or even a lost civilisation but the work of contemporary British artists, for instance, such as Banksy or Hirst, or even a relative ‘fogey’ like Hockney, have so much to say about British culture, here and now, that this in unsurprisingly reflected by the tremendous value of those works.
Recently a legislative measure in the form of the Artists Resale Rights Regulations 2006 has been undertaken in order to implement the original French droite de suite, facilitated by an EC Directive the principle of which is to recognise the commercial trade in works of art and the investment made in works of art by dealers and collectors alike, and reward artists justly. If we are to reward artists as the worth of their work grows or their work is resold it would seem odd that we do not reward those individuals who through the principles of supply and demand in actual fact make those works as valuable they are, at least when they purchase items in good faith, which later turn out to have been stolen at some point in the past.
Things of both immense commercial and cultural value, whatever the technique of their production, their age and provenance or their country of origin, are protected by a mish-mash of domestic and international legislative and proscriptive measures, as well as well-meaning conventions, from illegal commercial activity theft and resale, illegal removal, import and export, etc. This black or grey market in art and antiquities is worth hundreds of millions if not billions of anybody’s currency around the globe in any year. This illegal trade is driven by the usual factors of supply and demand yet it survives because of the difficulties in bringing the guilty parties the unscrupulous dealers and collectors, and the (hopefully) blissfully-unaware museum curators.
When stolen, or lost, art appears again on the market there are various means by which it could be recovered by its original owner(s) not least the English tort of conversion; and unless there is an unfortunate circumstance such as in the Winkworth case, the original owner will be able to once more enjoy the possession of their piece. In Winkworth, due to the operation of lex situs, the original owner did not recover their art since a ‘good faith’ purchaser had acquired full title under Italian law. This sort of apparent injustice is rare, however. But it raises an important question when we look at the case against the background of the deluge of ‘soft’ law that surrounds the art and antiquities market.
There are a plethora of dealers’ codes, museums’ codes and rafts of advice handed out to collectors concerning their ethical duties to observe due diligence and many statutes and legislative measures concerned with the art and antiquities market operate around principles of good-faith dealing. And yet good faith purchasers are not in actuality ‘rewarded’ for their honesty or their scruples, or, in the case of dealers, true professionalism. Under Anglo-Welsh law the tort of conversion will operate to strip them of their acquisitions and return these items to the original owners, in the majority of cases. The only way this will not occur is in the unlikely event an applicable limitation period expires.
Under some soft law the decisions of the Spoliation Advisory Panel in the UK, for example ex gratia payments are made to the persons who lose their possessions to the original owners or far more likely the descendants of the same upon the recommendation of the Panel.
‘The task of the Spoliation Advisory Panel is to consider claims from anyone, or from their heirs, who lost possession of a cultural object during the Nazi era (1933-1945), where such object is now in the possession of a UK museum (such as the Ashmolean) and to advise the Secretary of State for Culture, Media and Sport on what action should be taken in relation to the claim.’1
But if a piece of stolen art is recovered under the tort of conversion say and was simply the target of simple theft, not simply one crime amongst the horror of the holocaust the possessor need not be given any compensation or reward. Inestimable tragedy the Holocaust it may have been, but the operation of such soft law compensates some and not others in fact, the few and not the majority.
It would be more agreeable if any possessor of a formerly stolen work of art, who had acquired that work in good faith, were to receive the market value of that piece whether they acquired it as museum, collector, dealer or private individual in general. The person, legal or natural, to pay them that value would be the person from whom the work was once stolen in essence, the original owner should have an inviolable right exempt from limitation periods to buy back the work of art or cultural object that they had lost.
It may on first impression seem very unfair that a person may have to buy back property which once belonged to them indeed, perhaps buy it twice, in effect. But most stolen property will have been insured at the time it was stolen so the original owner will have received insurance monies as a result of their theft. If they were sensible the work will have been insured for its market value. If these insurance monies have been spent or invested elsewhere, and cannot be easily retrieved to use as capital to buy back the once-stolen work, and given the general increase of an objects market value over time then the lack of a limitation period upon the action will give the original owner enough time, perhaps with popular support, to raise the funds to pay the current possessor market value for the work. This sort of practice works very well with export licensing.
Rebrogation clauses in insurance agreements allow insurance companies to seize stolen property upon the reappearance of that property and to demand the return of insurance monies in exchange for them. It may be that upon fair assessment legislation should be created to disapply them if we are to reward the good-faith purchaser.
Such principles would be best implemented by the creation of an EC Directive concerning the purchasing rights of victims of the theft of works of art, antiquities and other cultural property an EC Directive would ensure effective implementation across the broadest range of jurisdictions, given the enforcement that would be entailed within Europe, and of course, thanks to the rules concerning lex situs, the highest proportion of nations outside Europe where stolen property can be recovered through litigation.