AN AFFAIR OF THE ART: CONTEMPORARY REFLECTIONS ON THE LEGAL DIMENSIONS OF INTERNATIONAL ART THEFT.
| Author | Singh, Pragya |
"An art thief's greatest offense is severing the public's critical link to its vividly portrayed cultural heritage, and preventing future generations from enjoying the vision of those who came before." (1)
The past century has witnessed widescale desecration of cultural property owing to the unending scourge of international art theft. From the incessant plundering of art-rich nations during war-time to the theft of an individual's prized private collection, the art world has been ruthlessly plundered.
The motivations for art theft are multitudinous, and it can be argued that the benefits often far outweigh the costs. The extent of the international crime of art theft is so immense that it has driven scholars to empirically study the modus operandi of art thieves. It has also piqued a cognate inquiry into the analysis of the very definition of art theft vis-a-vis contemporary trends. The illicit art industry covers a large geographical span and the FBI estimates it to be a billion-dollar market. (2) The global nature of art theft has triggered international organisations to formulate various conventions to govern the bleak state of affairs, during both armed conflict and peacetime. However, it is submitted that the resultant international legal regime has proven ineffective in establishing uniformity with respect to litigation for recovery of stolen art, since the former explicitly provides that the latter be governed by national legislation and common law principles. This has led to the evolution of various rules centred on the application of the statute of limitations. The disparate implementation of these rules by courts has brought about more uncertainty in the domain of art theft litigation. However, due diligence requirements have lent more consistency to the process, for both the plaintiff as well as the defendant. They have also triggered the formation of various international stolen art databases and archives, which are well-functioning albeit rather fragmented and isolated. In light of these inconsistencies and shortcomings, the establishment of an exclusive international judicial body for adjudication of art-related matters would prove to be an efficacious remedy. Against this backdrop, the authors make a critical explication of the aforementioned facets of international art theft and attempt to arrive at a propitious solution.
INTRODUCTION
Twenty years ago, a rare Picasso, Portrait of Dora Maar (Buste de Femme), was stolen in Antibes, a small South-eastern French town, from the yacht of a Saudi billionaire. Innately redolent of Picasso's renowned abstractionism, the painting depicts Picasso's muse and lover, Dora Maar. The painting reigns supreme among Picasso's oeuvre due to his undying love for it--he never signed it, displayed no intention of selling it and kept it as a part of his private collection till the day he died. Valued today at a huge $28 million, the curious case of the missing portrait left the French police absolutely discombobulated and deepened their fear of losing a valuable work of art forever. However, in 2015, a Dutchman, Arthur Brand, often dubbed 'The Indiana Jones of the Art World', embarked upon a quest to find the painting and, soon after, became privy to its whereabouts: apparently, it had been circulating in the Dutch criminal underworld for several years and was being used as currency to sponsor drug and arms deals. On 26th March 2019, after four years of tireless sleuthing, Brand was able to recover it; a Dutch businessman surrendered the painting into Brand's care after he received it as payment for a legitimate business transaction. (3)
The foregoing incident puts various aspects of the contemporary art world into perspective. First, art theft, or rather, the inability to deal with art theft, puts the treasured history and culture of human civilisation at stake. The invaluable and irreplaceable nature of art is largely underestimated owing to which it now faces the danger of slow but eventual ruination. Second, paltry recovery rates, inefficacious domestic law enforcement methods and global scales of operation, have rendered the stolen art industry both elusive and frightening at the same time. Third, the part played by stolen art in the furtherance of other transnational organised crime is a severe cause for concern. Fourth, the successful individual efforts of art-conscious citizens such as Brand puts police forces to shame and warrants a reworking of the framework governing art theft across nations. Fifth, art theft enmeshes the good-faith possessor of stolen art, akin to the Dutch businessman mentioned above, in a peculiar situation vis-a-vis the original owner of the stolen art, akin to the Saudi billionaire mentioned above, and makes the task of settling title and ownership disputes between them, arduous, prolonged and painstaking.
The undeniable success of art theft is fuelled by the emergence of a clandestine market for stolen art that effortlessly gratifies the rising demands of art fanatics. Burgeoning art theft has made this illicit market a billion-dollar industry. This paper is an attempt to conduct an in-depth inquiry into the cause and effect of the aforementioned facets and to probe the origins and solutions of the same.
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DEFINING 'ART THEFT'
From a solely legal perspective, a canonical definition of'art' can be found in the following words: "a creative expression or a product of creative expression". (4) However, attaching such a concise and niche meaning to a word that comes with a plethora of interdisciplinary connotations, is unwarranted. This becomes all the more palpable when one considers the fact that every work of art has a life of its own, which is highly contingent upon the context and the circumstances in which it exists. (5) Hence, the question of whether a particular piece of work qualifies as art, can have momentous implications, since it raises a variety of subsequent questions such as "do special rules apply if the subject of controversy is a work of art?" or "what is the legal framework for courts to resolve interpretations of art?" (6)
Considering all of the aforementioned facts, it does not seem possible to have a generic definition of art. Rather, it is logical to seek a characterisation of art that would best serve the purpose of this research paper i.e. to establish a confluence between art and its theft. There are varied approaches that can be adopted to arrive at a more conclusive, comprehensive and rationalised stance. Before delving into an analysis of the same, it becomes imperative to define what constitutes theft. In English law, theft is defined as the dishonest appropriation of property belonging to another with the intention of permanently depriving the other of it. (7) Since incidences of art theft largely involve movable property, it can be logically concluded that the scope of art theft should be limited to "tangible works of material growth". (8)
The first approach in defining art involves the 'civil or statutory law--common law divide', wherein definitions of art are derived, in the former, from codified laws and in the latter, from judges. (9) While both concepts may prima facie provide a systematic outcome, they come with a few unavoidable pitfalls. Statutory law provides numerous definitions depending upon the object a particular piece of legislation seeks to fulfil; for instance, copyright law may provide for an interpretation that vastly differs from that given under tax/customs law. Since there is no particular legislation that deals with art crime as a whole, the statutory approach is not ideal. The same argument is more or less applicable to the common law approach, wherein courts have laid down a vast array of differing opinions, creating more uncertainty than ever. To elaborate, in the case of Mazer v. Stein, (10) the US Supreme Court rejected the factors of mass production and utilitarian function as an impediment to the characterisation of a particular object as 'art', noting that "individual perception of beauty is too varied a power to permit a narrow or rigid concept of art". On the other hand, in Brandir International, Inc. v. Cascade Pacific Lumber Co., (11) the Second Circuit Court held that a product of industrial design does not come under the ambit of 'art'. Such conflicting and divergent judicial notions ultimately beg the question of what classifies a piece of work as 'art'.
The second and rather simpler approach would be to base all categorisation on a 'minimum value classification', wherein works of art would be determined on the basis of a threshold value, for instance, of $5,000. (12) However, such a rudimentary provision could have two undesirable consequences: first, it could unfairly eliminate many unique works which may not have a high monetary value and second, it would adversely promote the theft of modestly valued works, falling below the threshold range. Other concerns could involve the difficulty of arriving at international currency equivalents and the need for frequent up-to-date appraisals of the piece of work in question.
A third approach could be to simply establish a 'typological classification' wherein works of art would be limited to paintings, sculptures, drawings and graphics, whilst eliminating other categories like furniture, coins, carpets, antiques and rare books. (13) Even so, the problem with such a broad differentiation is apparent; a large number of valuable objects fall in the latter category. Such rigidity in establishing a standard is highly undesirable.
It seems obvious that one particular criterion would do little to eradicate definitional uncertainty. A combination of factors, applied on a case-by-case basis, seems to be a more methodical approach. In this regard, some factors that should be weighed in are (a) uniqueness of the work; (b) unalterable nature of the work; and (c) relevant documentation. (14) While such a method appears...
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