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Friday, April 27, 2012

Homeland Security's Seize and Send Policy on Display at Repatriation Ceremony

Artifact returned to Italy by ICE.
Courtesy ICE

Immigration and Customs Enforcement (ICE) this week announced successful efforts to combat crime in the United States.  In the last few days, ICE's Homeland Security Investigations (HSI) directorate headlined these results:
  • "9 suspects arrested in HSI probe targeting Fresno-area phony document mills"
  • "637 gang members and associates arrested during Project Nefarious" 
  • "5 indicted for allegedly selling counterfeit goods" 
Yesterday, however, the federal agency announced something other than arrests or indictments.  An April 26, 2012 press release proclaimed, "ICE returns stolen and looted art and antiquities to Italy."

While many of ICE's powerful investigative arms probe violations of federal law and pursue justice through the criminal court system, the Cultural Property, Art and Antiquities Program at HSI continues to repossess artifacts, hold repatriation ceremonies, and ship potential court evidence overseas. Arrests are infrequently announced, and indictments for violating federal smuggling, theft, false statement, or wire transfer laws are rare.

The contrast between ICE's typical approach to cultural property crimes and its customary handling of forfeited documents, human trafficking, counterfeit goods, and other illegal activities is striking.  A few of this week's press releases illustrate:
  • After arresting the nine men for trafficking in forfeiting documents, special agent Clark Settles said that the  "goal in these investigations is to identify and ultimately dismantle the criminal organizations behind these highly lucrative schemes."
  • After 637 gang members and associates were arrested, HSI Executive Associate Director James Dinkins announced that "[t]he goal of Project Nefarious was to identify, locate, arrest, prosecute and remove gang members and associates affiliated with human smuggling and trafficking organizations."
  • After a grand jury indicted five people for selling counterfeit goods, ICE announced that it "plays a leading role in targeting criminal organizations responsible for producing, smuggling and distributing counterfeit products. HSI focuses not only on keeping counterfeit products off our streets, but also on dismantling the criminal organizations behind such illicit activity."
Marble sculpture returned to Italy.
Courtesy ICE
But yesterday's press announcement proclaiming the repatriation of looted and stolen antiquities to Italy simply describes a "ceremony" to return "[t]wo 2,000-year-old ceramic vessels, one Roman marble sculpture, one Renaissance painting and three music sheets from choir books dating back to the 13th century ...."  Authorities did not announce any arrests or indictments despite descriptions of criminal activity by the use of terms such as "looted," "illegally imported," "smuggled," " illicit trafficking," "organized crime," and "stolen."

In other criminal investigations, HSI agents investigate cases, work with prosecutors to develop and sift through evidence, present the results to grand jurors, and hold lawbreakers accountable.  In illegal antiquities trafficking cases, however, Homeland Security Secretary Janet Napolitano said it best during Thursday's ceremony, "We will continue to work to ensure cultural artifacts and treasures that were stolen and entered this country illegally are recovered and returned to their rightful home nations."

This "seize and send" strategy requires rethinking to coincide with the "investigate and indict" mission that other HSI investigations pursue to dismantle and deter criminal activity.

ICE Director John Morton said yesterday that "ICE is serious about reining in art and antiquity thieves, smugglers, and traffickers."  Yet antiquities thieves, smugglers, and traffickers must be brought to trial.  And while ICE poignantly warned in Thursday's press release that anyone "involved in the illicit trafficking of cultural property, art and antiquities can face prison terms of up to 20 years, fines and possible restitution to purchasers of the items," criminals must first be indicted before they can face such consequences in a U.S. district court.  Only then can the "antiquity thieves, smugglers, and traffickers" who are targeted by ICE be held to account for violating federal criminal laws.

CONTACT: www.culturalheritagelawyer.com

Thursday, April 26, 2012

The Latest State Department Cultural Objects Determinations

Given the discussion about the law known as Immunity from Seizure Under Judicial Process of Cultural Objects Imported for Temporary Exhibition or Display and the current bill on Capitol Hill to clarify that law, it is worth noting the kinds of items from abroad that receive immunity consideration from the U.S. Department of State.

The Federal Register published the latest cultural objects determinations yesterday.  The notice issued covers items destined for New York's Museum of Modern Arts's forthcoming exhibit titled "Quay Brothers: On Deciphering the Pharmacist's Prescription for Lip-Reading Puppets."  MoMa's web site explains that "[f]or over 30 years, they have been in the avant-garde of stop-motion puppet animation and live-action movie-making in the Eastern European tradition ... and have championed a design aesthetic influenced by the graphic surrealism of Polish poster artists of the 1950s and 1960s."

The determinations made by the State Department under the federal immunity law are that the imported objects are of (1) of cultural significance, (2) intended for temporary, nonprofit exhibition, and (3) in the national interest.

CONTACT: www.culturalheritagelawyer.com

Tuesday, April 24, 2012

Ghost (1990) Directed by Jerry Zucker

What can one say? Sometimes the choices we make we have to pay for somewhere down the road. So, I'm fully expecting a bolt of lightning to strike me down for having to make Astrid sit through Ghost. It's deserved. What did anyone see in Patrik Swayze? I dont mean to talk ill of the dead, but shit, what a poor film repertoire this guy has. He was the hunk with not much going on upstairs. We need a piece of American Pie – let's cast Patrik! There were moments of course. He was in The Outsiders and the ludicrously enjoyable Point Break. The sleaze merchant in Donnie Darko shows a talent wasted. But then, his big ones, Ghost and Dirty Dancing. Lowest common denominator stuff, although people have loved these films.

1990 could be a watershed year for when American mainstream cinema really lost it. Only Home Alone was bigger than Ghost. The roll call of top grossing pictures that year is incredible (for all the wrong reasons): Pretty Woman, Kindergarten Cop, Days Of Thunder, 3 Men & A Little Lady, Look Who's Talking Too, Problem Child and so on. You could also have caught the OK Dances With Wolves and the brilliant Goodfellas and Edward Scissorhands, but these were exceptions. I had successfully erased Ghost  from my memory, now I have to start again – it may take years...

Lets suspend our imaginations for a moment (it's obvious the film makers did!). The main premise of Ghost that Swayze's murdered executive banker Sam, has to stay on earth as a ghost and not follow the light so he can show his undying love for his partner (Demi Moore's arty type Molly) does not bear scrutiny. There is no chemistry between these supposed love birds.Throw in the most predictable plot, cliched script, some made for TV direction and acting, some quasi-Christian moralizing, casual racist/sexist sentiment, the worst special effects ever...and what are we left with? Some would say all round family entertainment. Ghost in 2012 veers towards the offensive in how it patronizes the audience. Even the one genuine interesting moment of this feeble film (it could have been a queer-core classic scene) when medium Whoopi Goldberg's body is being used as a conduit by Sam to make love to his lover one last time, is denied us. Once the moment arrives we only see Sam's ghost body canoodling with Molly. This is all round pathetic cinema.

Ghost is right up there with the worst movies I've ever seen. It's a film that insults and undermines its audience on many levels. It's homophobic, racist, boring, has bad CGI (if it even is that), bad writing, it shoves in your face Christian views on afterlife (heaven/hell split) and also represents the end of the 1980s at its worst. I thought I had never seen the film at all, but upon watching remembered that I once stayed in a  dubious and weed smelling hotel in Minneapolis where one morning I caught ten minutes of this classic.

Yes, apparently Ghost was a smash hit romantic and exciting film when it came out in 1990! But then, so was The Bodyguard (which was a favorite of mine when I was less than 10). I used to win dance competitions while Whitney Houston played in the background as a second grader, so I would have probably loved Ghost had I seen it at the time. Now was definitely too late. I almost never get to watch anything, so when I finally get around to a movie, it is disappointing to waste my time on something so pathetic.

Whoopi Goldberg is funny and beautiful. She definitely represents something important to me as she was always in the films I saw in the 1990s (hah!) At some point of my not-so-well-informed-youth I also learned that Whoopi was lesbian (and that Tracy Chapman was not a man). Therefore I really thought Demi and Whoopi should have ended up together in this boring story. What's more, they kind of had something going because the ghost guy borrowed Whoopi's body and caressed Demi with her (Whoopi's) hands (while they waited for the murderer to arrive). This was going to be the most explosive insight in this film, but then it turned out to be the biggest insult: Whoopi was replaced by the ghost-actor guy for us hetero normative audiences. So wrong. I'm not going to bother to find out who played the ghost, because he was so lame and so average. I'm sure everyone else knows who I'm talking about.
One last complaint: why would a sculptor hipster fall in love with a boring banker, who says 'ditto' instead of 'I love you'?

Czech Republic Sued in Florida for Return of Art

National Gallery in Prague.
Source: Chmee2.  CC.
A newly created Florida entity filed a civil complaint on April 19 in federal district court against the Czech Republic and two of its cultural institutions.  The lawsuit of Victims of Holocaust Art Theft v. Czech Republic; National Gallery in Prague; Museum of Decorative Arts of Prague seeks the return of Nazi looted art, according to a complaint filed in the United States District Court, Southern District of Florida, Palm Beach Division. (Docket 12-80420-CIV)

The suit claims that 125 pieces of art were plundered during World War II, but the plaintiff specifically seeks the return, or the cash equivalent, of at least 50 pieces valued at over $50 million.  The complaint states that the “Popper Collection” was “among the valuable art and other objects that was looted and seized by the Nazi authorities . . . .”

Richard and Regina Popper, owners of the “Popper Collection,” are said to have been “stripped of their nationality and citizenship rights” and “were deported from Prague to the Lodz Ghetto and murdered in Lodz after arrival (in 1941 or 1942); however the exact date of their murder is not known.”

According to the court complaint, Victims of Holocaust Art Theft is a Florida business formed by Edward D. Fagan and Michal Klepetář, who is a descendant of Richard and Regina Popper.  Documents submitted to the Florida secretary of state's office show that Fagan, listing a a Boca Raton address, registered the fictitious name (i.e. trade name) on April 18, one day before filing the federal lawsuit on behalf of Victims of Holocaust Art Theft.

The lawsuit claims jurisdiction over the Czech Republic because of its commercial activities in the United States.

Sunday, April 22, 2012

Oliver Twist (1948) Directed by David Lean

I have a new MacBook Pro. I'm in love. Yet I have no time to actually do anything on the comp (except to write this quickly). But at least I know if I had more time, I'd have the stuff to be fast and furious online and elsewhere. Time is the real luxury item, as everyone keeps saying these days. Oliver Twist was poor in the classic old way of what the word used to mean. He had the luxury of time maybe, but no parents, no food and no one to look out for him, not even as a child. And then on top of this, there was no good will around, just evil sadistic adults.

Oliver Twist is of that great story telling, where no character is simply bad or good. Stupidity has its context as has evil. There are degrees of desperation which we have to consider when we judge characters like Fagin. He is a loner thief who houses a gang of orphans in his attic and teaches them to steal for their living. While he is the only adult they have for any kind of care, he also is a violent and controlling figure clearly injured by his own early losses. Nothing is black and white or disney-sweet.

Oliver is a great character for a children's story (and stories for kids are the best for adults): he goes through incredible neglect, violence and wrong-doing in general, but in the end his straight-upness and his trusting manner carry him back to his long lost family. This film adaptation from 1948 is both beautiful and cruel. London and its poor people in the streets look amazingly real in a touching fairytale way. It's good to reflect on what it means to have NOTHING, when in our state of poverty, we still buy the latest gadgets every now and again.

Nick :
We dont watch much of anything nowadays. We have a child (two at weekends), we have work, we have no time. So the blog is struggling a bit. Regular posting a thing of the past. If we get to stick a movie on, it's normally centered around the family. Hence Lean's Oliver Twist. But this isn't really family viewing - don't be fooled by the cute kids.

Lean's reputation was built on pictures like Oliver Twist. It's understandable as this still looks like nothing out there. It's a dark, grim picture, which finally gives way to sentimentality. It works because we need that sentimentality, we can't take anything more happening to sweet Oliver. It's amazing to think that Oliver Twist was made a good 7 years before The Night Of the Hunter, as both films share the theme of children in peril and the sinister, evil adult villains that threaten their lives. You could argue that Lean's picture looks equally great. Lean regular Alec Guinness plays an iconic Fagin, whilst Robert Newton plays the deranged Bill Sykes. It's Lean's own adaptation of Charles Dickens, and he's faithful to the original.

"Can I have some more ?" It's my enduring memory of Oliver Twist when I saw this as a child. These last couple of weeks I've been reading and totally absorbed by David Peace's Red Riding Quartet of books. These books go to the heart of darkness, an alternative history of terror from my youth. Lean would go onto the epic not so long after Oliver Twist.  At times with Oliver Twist he touches that heart of darkness and the things we dont want to think about.

Saturday, April 21, 2012

The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (S.2212) Should Be Passed

The Decree Stele, loaned by Greece,
is one of many cultural objects
routinely granted immunity by the U.S.
Photo courtesy of US State Dept.

The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (FCEJICA or S.2212) is a good bill worthy of passage.  Its adoption by the U.S. Senate would support international cultural exchange by strengthening our country’s longstanding commitment to promote foreign lending of objects to American museums.  Foreign lending benefits the American public and provides an important mechanism to supply our country’s museums with documented archaeological artifacts.  In an otherwise sharply divided Congress, it is noteworthy that the bill was sponsored and passed in the House (H.R. 4086), and now sponsored in the Senate, by members from both sides of the aisle. 

The proposed bill clarifies the spirit of a federal law in force for over 35 years, but weakened in the last few years. Congress in 1965 passed IFSA (formally known as the Immunity from Seizure Under Judicial Process of Cultural Objects Imported for Temporary Exhibition or Display).  Lawmakers passed it because they wanted to promote the importation of art.  They wanted to let foreign art lenders know with certainty that their cultural works would not become entangled in litigation once on American soil.

IFSA’s statutory language specifically protects against potential judicial seizure of imported objects of cultural significance intended for temporary, nonprofit exhibition. The law prevents a civil litigant from seizing temporarily imported fine art to satisfy a judgment in a lawsuit, for example.

The immunity given by IFSA is not automatic.  Nonprofit museums must apply for this immunity when seeking to import foreign cultural objects for temporary exhibit.   Any immunity that may be granted by the President of the United States, through his designee, is specific to the artwork; the immunity does not apply to the museum.

To acquire this immunity, a museum must submit an application to the U.S. Department of State. The application includes a description of the item covered, its provenance, its exhibition location, a description of the object’s cultural significance, and a description of why the temporary exhibition is in the national interest.  With regard to provenance, the State Department asks an applicant to certify that it has “undertaken professional inquiry … into the provenance” and that it either knows, does not know, or does not have reason to know “of any circumstances … that would indicate the potential for competing claims of ownership ….”  If there is reason to know of any potential dispute concerning the object, the applicant must disclose it.  The President then authorizes the State Department “(1) to determine that any work of art or other object to be imported into the United States … is of cultural significance, (2) to determine that the temporary exhibition or display of any such work of art or other object in the United States is in the national interest, and (3) to cause public notices of the determinations referred to above to be published in the Federal Register.”

Since IFSA was passed, many objects from abroad have been immunized from potential seizure.  Several requests already have been granted so far this year.  For example, African objects loaned to the Smithsonian Institution's National Museum of African Arts were granted immunity.  They will be in a special exhibition called “African Cosmos: Stellar Arts.”  The “Decree Stele” from the National Archaeological Museum in Athens, Greece is another object granted immunity.  It will be on loan at the Getty Museum in California through 2015.  Meanwhile, the Jewish Museum in New York obtained immunity for imported pieces that are included in its current exhibition titled “EdouardVuillard: A Painter and His Muses, 1890-1940.”  And the Metropolitan Museum of Art's show titled The Dawn of Egyptian Artfeatures pieces immunized by IFSA in February.

Loans promote cultural exchange, which is of vital public benefit.  Cultural exchange enlightens our minds to other civilizations; inspires school children to become archaeologists, historians, and art lovers; causes us to care about our history and heritage; and promotes understanding between citizens of different nations, languages, religions, and races.  The FCEJICA will promote international cultural exchange by shielding foreign lenders and their art from unforeseen lawsuits, including those that could be frivolous. 

Because cultural exchange through foreign lending is a benefit to all Americans, it is important to eliminate reservations that foreign lenders may have when choosing to exhibit cultural objects in the United States.  Foreign lenders must be encouraged to lend art and artifacts to American museums.  Complete immunity can provide an incentive.   Complete immunity shields both the object loaned and the lender from civil lawsuits in a way that partial immunity cannot.  Indeed, partial immunity is no immunity at all. 

Partial immunity is arguably all the State Department can give under IFSA if one follows the reasoning of the federal district court’s decision in Malewicz v. City of Amsterdam (2005).  That case applied the Foreign Sovereign Immunities Act (FSIA) and undermined IFSA’s immunity.  The FSIA is a law that generally protects foreign states from lawsuits.  The law was interpreted by the Malewicz court to extend jurisdiction over foreign governments when their artwork was displayed in the U.S. even when immunity had been given to the art under IFSA.  That is because the lending of art objects was deemed a “commercial activity.”  The FSIA says that “[a] foreign state shall not be immune from the jurisdiction of courts … in which rights in property taken in violation of international law are in issue and that property … is present in the United States in connection with a commercial activity carried on in the United States by the foreign state … [or an] instrumentality of the foreign state ….”  (italics added). 

In Malewicz, the heirs of Kazimir Malevich sued Amsterdam in federal court in Washington, DC to either recover artworks that the city’s Stedelijk Museum loaned to American museums or to acquire $150 million in damages.  The heirs claimed that the foreign museum unlawfully obtained the paintings.  Amsterdam, meanwhile, argued that IFSA protected it from a lawsuit.  The federal court ruled that Amsterdam had engaged in “commercial activity” under the FSIA by loaning the art to the American institutions.  While IFSA may protect the actual artwork from seizure, the FSIA did not protect Amsterdam from related damages, said the court. 

Congress introduced S. 2212 to restore meaning to IFSA’s immunity, erasing any potential conflict between IFSA and the FSIA.  The bill adds a new section to the FSIA that protects foreign nations and their entities from lawsuits related to loaned cultural objects, excepting Nazi looted art.  This effort to strengthen IFSA is meant to assure foreign lenders that they will not be targets of civil litigation simply because they decide to have their art or artifacts exhibited in the U.S.

Securing foreign lending opportunities for American museums is a goal of IFSA and S.2212, and foreign lending serves to provide one solution to the problem of illegally trafficked antiquities.  We know that undocumented and unscientifically excavated artifacts have ended up in museum collections.  Italy, among other nations, has recovered a number of looted artifacts from prominent institutions across America in recent years. It worked out agreements whereby looted cultural objects were repatriated to the country.  The Italians, in turn, agreed to supply long term loans to museums such as the Metropolitan Museum of Art in New York and the Museum of Fine Arts in Boston.  Adoption of the FCEJICA would serve to strengthen these and similar lending arrangements.

The assurances supplied by S.2212 would give greater comfort to Italy, Turkey, Egypt, Peru, India and other archaeologically rich nations that are willing to supply authentic, untrafficked artifacts of the past to American museums.  Additionally, the FCEJICA would give source nations protection from civil suits when archaeological or ethnological objects are loaned pursuant to Article II recommendations.  Article II recommendations are often outlined when the United States adopts Memoranda of Understanding (MoU) with foreign countries under the Cultural Property Implementation Act (CPIA).  The MoU implements import restrictions covering archaeological and ethnological material in jeopardy, and Article II may say, as in the case of the MoU with Guatemala: “The Government of the Republic of Guatemala shall use its best efforts to facilitate the exchange of its archaeological objects and materials under circumstances that do not jeopardize its cultural patrimony, such as temporary loans for exhibition purposes and scientific examination.” (italics added)

The State Department should always carefully examine IFSA requests that involve ancient artifacts or at-risk cultural objects.  America naturally wants to do its best not to inadvertently immunize illegally dug-up archaeology or fine art stolen during a time of conflict.  Avoiding a situation like the one in the Malewicz case is important.  Statutory language might be adopted by the Senate that would require a reasonable assessment by the State Department of the provenance surrounding suspicious or at-risk objects—like those listed in CPIA bilateral agreements, those contained on ICOM Red Lists, or those that are suspected to have been stolen during times of war.  As described above, the State Department already requires immunity applicants to list information about provenance and potential legal claims surrounding a cultural object so that it can review this information.  Given that a review process already is in place, S.2212 might codify that the State Department shall conduct a reasonable inquiry into both the applicant's provenance investigation and the potential legal liabilities that may be connected with an object before an immunity request is approved.

There is always some language in a bill that can be tweaked, but reaching legislative perfection should not be an obstacle to passage of the FCEJICA in the U.S. Senate.  Lenders need clear and iron-clad notice from America that their artworks or artifacts on loan--or that they themselves--will not be caught up in unexpected and expensive court proceedings simply because they choose to exhibit their artifacts or fine art to Americans.

For additional perspective see Derek Finchman's Illicit Cultural Property.

CONTACT: www.culturalheritagelawyer.com