By: Jessica Gicherman*

Speakers:

• Frank K. Lord, IV, Esq., Partner, Herrick, Feinstein, LLP
• Gary Vikan, Former Director, Walter Art Museum
• Jane C. Milosch, Director, Provenance Research Initiative, Office of the Under Secretary for History, Art and Culture, Smithsonian Institution
• Colette Loll, Founder and Director of Art Fraud Insights, LLC

Moderator:

David W. Bowker, Partner, WilmerHale LLP, and Adjunct Professor, Georgetown Law

This incredible panel focused on the issues of art restitution and repatriation, and UNESCO’s 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.  This Convention requires State Parties to return stolen cultural property imported into their country to the state of origin. The panel also addressed the issue of provenance, and how different institutions combat fakes and forgeries in the international art world.

The first speaker was Gary Vikan, an internationally known medieval scholar and a former Director of Walters Art Museum. After the fall of Iraq, Mr. Vikan joined a panel that reformulated how the possession of antiquities would be handled.  Based on this experience, he illustrated the importance of transparency and good faith engagement when handling antiquities. He opined that nowadays museum directors are terrified of making antiquities purchases given the risk it presents, but also encouraged the museum community to change its behavioral guidelines to check the veracity of an artistic work’s title.

The second speaker was Jane C. Milosch, Director of the Provenance Research Initiative in the Office of the Under Secretary for History, Art, and Culture at the Smithsonian Institution in Washington, DC. Ms. Milosch discussed the issue of provenance, which is a record of ownership of a work of art or an antique, used as a guide to assess authenticity or quality. She observed that problems that arise when certain pieces of art that the Smithsonian acquires lack provenance.  The museum is then faced with the task of determining if the piece is a fake, a forgery, or stolen.  Ms. Milosch, whose focus is on Nazi-looted art, commented on the Washington Conference Principles on Nazi-Confiscated Art, which encouraged museums around the world to ensure that all objects created before 1846, and acquired after that date, have established ownership or provenance.  She then detailed the ongoing provenance process at the Smithsonian, and described the different resources her office uses to establish the history and ownership of the museum’s pieces.  She noted that museums usually try to formulate groupings to save time and resources while conducting provenance research. The Smithsonian itself developed an online public database that enables museums from around the world to access the information, and add more information to the database when possible. Ms. Milosch stressed that museums must keep a systematic way of establishing provenance, and work with one another because provenance research cannot be done in isolation. There are multiple experts with different pieces of information that have more value when brought together.  She concluded that provenance research has become more challenging as resources diminish, which emphasizes the need for collaboration between curators and museums.

The third speaker, Frank K. Lord, is a member of Herrick, Feinstein LLP’s Art Law practice group, and represents collectors, art dealers, claimants, auction houses, and museums in matters relating to art and cultural property law. One of his most notable ongoing cases is his work with Marei von Saher—the heir of Dutch art dealer Jacques Goudstikker—who is pursuing the recovery of hundreds of artworks that the Nazis seized during World War II.  The investigations began in 1997, when the Dutch government, with pressure from the U.S. government, began examining all of its collections.  Journalist Peter Van Hollander brought the issue to the forefront when he received a tip from someone in the finance industry that the way the Dutch collections were managed after the war was problematic.  Eventually, Peter and Marei von Saher were able to make a claim, pursuant to the Washington Principles.  The Dutch government formed a restitution committee, the sole function of which was to analyze the pieces in the government’s possession, and review their origins. After a year of investigation, the committee apologized to Ms. von Saher for the way the government handled the pieces, and held that the forced sale of her husband’s works to the Nazis should never have been considered an involuntary transaction. The Dutch government also apologized to the family and restituted around 200 artworks.  Von Saher is now pursuing a claim in the U.S. Federal Court for the Central District of California for the recovery of Cranach the Elder’s Adam and Eve, located at the Norton Simon Museum of Art in Pasadena, California.

The last speaker was Colette Loll, who is the founder and director of Art Fraud Insights, a consultancy specializing in art fraud-related lectures, training and specialized investigation of artworks. Ms. Loll has been involved in several independent projects related to the topic of fine art forgery and art forensics, including participating in documentary film projects, and serving as the lead researcher in attribution and authentication investigations.  Ms. Loll highlighted the issue of how fakes and forgeries affect the essence of the creative process, and public access to this process. She noted that authenticity is at the heart of a museum’s mission, and forgers who distort the artistic record of pieces have breached the public’s concept of originality. The art community—scholars, curators, dealers— have proven to be a forger’s best ally because forgers use a number of confidence tricks that take advantage of the enthusiasm and wishful thinking of those in the art trade. Forgers are quick to act on the gap that exists when demand exceeds supply, and prey on the collectors eagerness to purchase a piece from an artistic master. As art prices continue to soar, dealers and collectors want assurances that the relevant pieces are authentic. Ms. Loll concluded that the process of authentication is in need of a paradigm shift that will merge art and science, and, consequently, democratize the attribution process.

*The author is a Junior Staffer for Volume 30 of the American University International Law Review writing as a part of our series recapping our February 2015 Symposium: Protecting Art and Cultural Property Through International Law at ASIL