What is happening in New York? And what does it mean for the art world?
The Manhattan District Attorney’s (DA) office has for many years been seizing antiquities from dealers, collectors and even museums. Since 2017, around 6,000 objects have been seized and most of these have now been repatriated to countries of origin like India, Mexico, China and Greece.
In April, the DA received a very favourable ruling from the state’s supreme court allowing the seizure of the Egon Schiele drawing, Russian War Prisoner (1916), at the Art Institute of Chicago. The museum is now appealing that decision.
The sustained actions of the DA’s office deserve further scrutiny, as they can have a major impact on the trade and movement of art through New York—and even beyond, as the Schiele case shows us.
One impact is on the legal rights of possessors. The DA’s view (now accepted by the court) is that if a work of art was once stolen it remains stolen today, no matter who the possessor may be. The office has been able to seize antiquities, some of which left their countries of origin decades ago, on the allegation that they constitute “stolen” property. Any title acquired by a dealer, collector or museum in an intermediary jurisdiction (like Switzerland or England) is disregarded.
The approach in New York is highly unusual: other jurisdictions tend to honour foreign good faith purchases and the operation of limitation periods. The Art and Antiques Unit of London’s Metropolitan Police, for example, seems to treat historical thefts or old exports as civil matters, refraining from getting involved.
But New York law enforcement seems unfettered by such considerations. The situation in New York highlights the volatility of legal title. A person may buy a work in London and obtain good title under English law, but when they bring it to New York all bets are off. This is precisely what has happened to certain art dealers in recent years.
With a risk of seizure, who would send works of art to New York? And does the New York art market suffer as a result?
The truth is, for most works, owners have little to fear. These either have a clean bill of health in terms of provenance or there is no evidence of anything untoward. And for foreign loans to New York museum exhibitions, there are immunity-from-seizure regimes at both the federal and state levels that protect cultural objects on loan.
That said, dealers and collectors are no doubt wary. What happens if an innocent owner ships a work to New York, only to learn thereafter that an investigation has revealed it to have a problematic provenance? Is the owner’s title automatically forfeited?
The April court decision will put wind in the DA’s sails. The Schiele in question had been acquired by the Art Institute over 50 years ago. According to the DA, and the court, it had been looted by the Nazis during the Holocaust. The court followed the DA’s reasoning every step of the way, not only on the question of looting, but also by disregarding the museum’s good faith acquisition, the elapsed time since that acquisition and the fact that the work is currently located outside the DA’s territorial jurisdiction (the piece’s brief time in New York around 1957 was said to give the DA grounds for seizure).
Several US attorneys have expressed surprise, or even criticism, of the judgment, a view which might explain the Art Institute’s decision to appeal. But unless it is overturned, many people will no doubt think twice before bringing works to New York. Cast-iron provenance or (for museums) immunity from seizure protection will be the necessary prerequisites. But in some circumstances, even these safeguards might not be enough.
