June of this year, Toronto’s Old Osgoode Hall hosted a conference that was a first of its kind. Co-chaired and organized by Osgoode alumna Bonnie Czegledi of Czegledi Art Law, the Symposium on Criminality in the Art and Cultural Property World attempted to address an important issue: who is protecting art itself? Events such as the Canadian Artists’ Representation/Le Front des artistes canadiens (CARFAC)’s annual conference place great weight on the relationship between artists and the law. As well, Canadian intellectual property law itself focuses primarily on the legal and moral rights of creators and owners of art. The Czegledi symposium brought to light some of the struggles involved in protecting art and cultural property in a modern society wherein art is increasingly thought of as a commodity rather than a cultural treasure.
The symposium featured many panels on topics ranging from a presentation about international legal instruments to a discussion regarding risk management tactics that museums and auction houses can implement. Attendees also heard heartwarming and sometimes heartbreaking tales from panels discussing the restitution of Nazi-looted art. One restitution project helmed by Concordia University involves a battle to help Max Stern’s estate reclaim artwork from various museums and art traders. Throughout the symposium, however, the crowd was consistently buzzing about the current state of art and cultural property theft investigations.
The popular law enforcement panel first featured Bonnie Magness-Gardiner, subject-matter specialist and program manager of the Art Theft Program of the Federal Bureau of Investigation (FBI) in Washington. As Magness-Gardiner explained, the FBI Art Crime Team (ACT) was established in 2004, partly as a response to the issues encountered during the Iraq War, when the Baghdad Museum was looted, stripping it of cultural artifacts dating back to the dawn of civilization. ACT is composed of 3 permanent agents, 11 temporary agents and 3 special trial attorneys assigned by the United States (US) Department of Justice to assist in prosecutions. Since 2004, ACT has been able to recover approximately 2650 items valuing over $153 million.
One of the reasons ACT has been so successful in recovering stolen works is in part due to the creation of the National Stolen Art File (NSAF). The NSAF is a publicly searchable, computerized index of stolen art and cultural property as reported to the FBI by law enforcement agencies throughout the US and the world. This resource enables art buyers and owners to check that pieces being purchased are not reported stolen. Years ago, Canada updated a similar Registry of Stolen Artifacts (ROSA), but has since discontinued the practice. While smaller databases such as that of Concordia University exist to help locate missing items, Canada lacks a nationalized reporting system.
The lack of institutional reporting of art and cultural crime is quite detrimental, as it not only makes recovery difficult, but also leads to the minimization of an important issue. Security expert Robert Marentette reported at the symposium that Canada ranks as 13th in the world in terms of art crime, with over 2000 works reported stolen in 2009. As well, due to disposable wealth and a prevalence of auction houses and dealers, Canada and the US have become some of the largest consumer countries for cultural property stolen worldwide. Martin Finkelnberg, head of the Art Crime Unit of the Netherlands Police Agency agreed that art crime is not given the international priority it should be. Finkelnberg explained that security deficiencies have often led to important artifacts being lost (embarrassingly) to bumbling thieves. Attendees were surprised to learn that most thefts are not committed by George Clooney and Brad Pitt lookalikes with complex plans. In reality, opportunists and individuals in positions of trust commit the majority of reported art crimes. As Marentette stated, a painting or artifact can be stolen in as little as 58 seconds with very little planning.
The ease with which stolen art can be entered into legitimate trade is also troubling. Magness-Gardiner explained that there are currently no special regulations regarding the sale of art in North America. Buyers must request a record of ownership, or provenance, as there is no requirement for a title to be attached to any item. Once a piece of art enters the hands of a legitimate establishment, thieves are extremely difficult to trace, leaving galleries and museums without compensation if artwork is removed from their possession in later investigations.
The take-away from the symposium was certainly that Canada, and indeed the world, is not doing enough to protect our artistic and cultural artifacts. While security agencies such as the RCMP’s Cultural Property Division and ACT are growing larger and more skilled, more needs to be done in order to preserve our artistic and cultural identities.
Elena Iosef is a JD candidate at Osgoode Hall Law School.