Art crimes is the third largest criminal enterprise in the world, after drugs and weapons. These crimes are different in their nature, regulation and foreseen liability. Our return author Maria Boicova-Wynants lifts the veil on the topic in her new article.
Maria Boicova-Wynants,
Mediator, Business Writer, Trademark and Patent Attorney
An introduction to art crimes: Neal Caffrey might be sexy, but art crimes aren’t.
A handsome man, impeccably styled with cultivated dishevelment, is casually entering the premises. He carefully takes a million dollar painting out of its frame and a moment later he is flying away in his private helicopter. The style, the looks, the flare. He is a criminal, but we are made to regard him as a good guy. Pierce Brosnan in “The Thomas Crowne Affair”, Sean Connery in “Entrapment” or, lately, Matt Bomer as Neal Caffrey in “White Collar”. Art crimes have always been fascinating to Hollywood producers and an insatiable public alike. This might be because stealing a painting (or forging one) doesn’t seem to directly hurt anyone. Yet, is it so? If someone steals, for example, Botticelli’s “The Birth of Venus”, aren’t we all going to be ripped off? What about the destruction and looting going on, for instance, in Syria or Iraq? Those are Ancient Mesopotamia and Babylon territories, which are historically extremely significant places. This is our common history; the history of our civilization. It is less about the financial loss, but about the cultural one.
Which is more, art theft and looting are not the only faces of art crime. In this article I would like to sketch the art crime universe: provide some definitions, as well as briefly describe several famous art crime cases and give further reading suggestions.
On the FBI website, one can find a list of top ten world art crimes. They are:
1. Iraqi looted and stolen artifacts;
2. Isabella Stewart Gardner Museum theft — the largest property crime in the history of the United States, when two men disguised as police officers tied up the security guards of the museum and stole 13 artworks by famous masters, such as Rembrandt, Degas, and Vermeer. The total value stolen is estimated at $500 million. There is a $5 million reward offered to those who might have information that would directly lead to the recovery of the precious stolen artworks. (those interested can read more about this crime at https://www.fbi.gov/news/stories/5-million-reward-offered-for-return-of-stolen-gardner-museum-artwork)
3. Theft of Caravaggio’s “Nativity with San Lorenzo and San Francesco”; a crime which dates back to 60 years ago, namely to 1969. Still unsolved.
4. Theft of the Davidoff-Morini Stradivarius Violin, which dates back to 1995. The current value of the violin is estimated at $8 million, doubling since the time of theft (read more about it here —http://artcops.com/artthefts/davidoff-morini-stradivarius-violin/)
5. Van Gogh Museum Robbery of 2002 — when in just a few minutes two thieves broke in the museum in Amsterdam and stole two paintings: Van Gogh’s “View of the Sea at Scheveningen” and “Congregation Leaving the Reformed Church in Nuenen”, valued at $30 million. The men were found and convicted, yet the paintings were recovered only in 2016 after a 14-year long investigation. This is the only solved crime with recovered artworks in this list.
6. Theft of Cezanne’s “View of Auvers-sur-Oise” (1999) from the Ashmolean Museum in Oxford, England, which took place on the New Year’s eve right in the middle of the fireworks celebrating the approaching millennium.
7. Theft of Gertrude Vanderbilt Whitney Murals (2002) — stealing of two oil paintings by Maxfield Parrish.
8. Theft from the Museu Chacara Do Céu, Rio De Janeiro (2006) when paintings by Monet, Picasso, Matisse and Dali amongst other objects were stolen by four armed men.
9. Theft from Art Gallery of New South Wales, stealing a self-portrait by Dutch Master Frans Van Mieris (2007).
10. Theft of an Oil Painting by Pierre Auguste Renoir during an armed robbery of a Houston home in September 2011.
As one might notice, the above list predominantly deals with theft, with the only exception of looting, which legally is a different term, yet essentially is the same crime (in simple words, looting is stealing, which takes place during a war, riot, etc.). However, as mentioned already art crime does not stop at art theft. Art forgeries, provenance fraud, art vandalism, even financial crimes, like money laundering using artworks as vehicles of illegal money integration into regular commerce — all these are art-related crimes.
Simplistically, art crime “universe” can be divided into the following categories:
1. Art fraud;
2. Art theft;
3. Art vandalism;
4. Money laundering;
5. Copyright infringement (criminal cases).
In what follows, I would like to briefly go through each of the above.
1.
First of all, art fraud. The art fraud is commonly defined as the deliberately false representation of the artist, artwork, ownership, etc. for the sake of financial gain. Art fraud comes in different forms: forgery, misattribution, provenance fraud and so on.
If someone imitates an artwork of another artist and puts that artist’s name underneath, that’s a forgery. Here, the world-famous case of Han van Meegeren immediately comes to mind as an example of a forger of an outstanding talent, who passed off his artworks for those of Johannes Vermeer. His forgeries were so brilliant that if he had not confessed, no one would have ever suspected that Vermeer had nothing to do with these pieces. To learn more on the Van Meegeren story, as well as to see his remarkable forgeries have a look here: http://www.essentialvermeer.com/misc/van_meegeren.html#.XNwN7aeB10s
There is another shade to the art fraud: knowing misattribution. The artwork in question might actually be authentic without the involvement of a modern forger, however, if for instance, the age or the origin of artwork is knowingly manipulated, that is a misattribution. An example of this would be trying to pass a regular Chinese vase as that of the Chinese Ming Dynasty one.
Provenance fraud might be related to a forgery, when a forged artwork is given a seemingly smooth provenance trail (like in the famous John Drewe case, brilliantly described in the book “Provenance: How a Con Man and a Forger Rewrote the History of Modern Art” by Laney Salisbury and Aly Sujo). However, provenance might be forged also for authentic works with some unwanted gaps in their ownership history (covering up the Nazi looting, for example).
Talking about examples of art fraud the name of the Knoedler gallery comes to mind. This renown 165-year old New York gallery was shut down after it was found that a number of the artworks they sold (amongst others those of Jackson Pollock and Mark Rothko) were in fact forgeries. The Knoedler gallery bought all the paintings in question from Glafira Rosales, who assumedly represented an undisclosed collector. In their defense the gallery claimed that they were not aware and were acting in good faith. However, the lawyer of one of the plaintiffs rightly pointed out that the price the gallery paid to the seller was: “so low it virtually announced its dubious nature”. In other words, the gallery should have realized that if something is too good to be true, it probably is… too good to be true (The story of the rise and fall of the Knoedler gallery can be found here http://theconversation.com/the-rise-and-fall-of-the-knoedler-new-yorks-most-notorious-art-gallery-53775).
In the context of art fraud, there are several other aspects to be mentioned.
First of all, pastiche. If artwork is made in the style of or as a medley of various typical traits of another artist, that is a pastiche. Pastiche celebrates another artists work and is legal as long as the author of a pastiche does not try to pass it off as a work of the one s/he imitated.
Secondly, appropriation. This is a very shady, borderline area. In essence, appropriation is the use of objects or images already created by somebody else with little or no visual transformation applied to them. (more on the subject in one of my previous articles — https://artlaw.club/en/artlaw/yours-might-have-been-yours-but-now-it-is-mine-appropriation-artists-and-the-shady-area-of-copyright) Is it fraud? In case no transformative use is proven, it might indeed be regarded as such. Otherwise, as mentioned, this is a shady area.
Finally, worth mentioning are the works of, for example, Eric Doeringer. His “Bootlegs” are unauthorized copies of artworks by more than 100 different contemporary artists. Recently Doeringer opened a show called “Christy’s”, where he presented his bootlegs of some of the works that were sold in Christie’s Postwar and Contemporary sale. This is also somewhat tricky in terms of copyright (they are not authorized copies after all), yet they are openly acknowledged as bootlegs, without an intention of deceiving anyone. Doeringer is not the only one copying the living artists, as for example, Noah Davis likewise had an exhibition “Imitation of Wealth” (2013), for which he created and exhibited inter alia Jeff Koons’ vacuum cleaner vitrine. However, once again, both Doeringer and Davis never tried to pass off their creations as the authentic works by their original authors.
2.
The second category of art crimes is art theft. Art theft can be roughly divided into: stealing, looting, and smuggling (the latter is sometimes also put in the category of art fraud.)
According to the definition, art smuggling is the illegal transportation of art objects across the border. This is sadly a very frequent type of crime in connection with antiquities, when precious, historically and culturally important pieces are being illegally taken out of the country of their origin. The story of one of the biggest antiquities-smuggling rings in history was comprehensively described in The New Yorker article “The Idol Thief” (https://www.newyorker.com/magazine/2007/05/07/the-idol-thief). Legally speaking, smuggling is different from stealing, because it involves crossing the national border (which is not obligatory in the case of stealing). It is also not the same as looting, provided that the latter takes place during a war or a riot, while smuggling happens also in the absence of the above conditions. In other words, smuggling can be a result of looting, but it can also be a result of regular theft. A big case, involving smuggling stolen ancient artifacts was concluded in 2004 with the conviction of its orchestrator Giacomo Medici. The story of the largest and highly sophisticated criminal network, responsible for illegally digging up, smuggling and selling thousands of precious artifacts, as well as the operation which brought Medici and his network down, are described in the book “The Medici Conspiracy: The Illicit Journey of Looted Antiquities from Italy's Tomb Raiders to the World's Greatest Museums” by Peter Watson and Cecilia Todeschini (2006).
Art theft is probably the best-known art crime, largely due to the mentioned interest from Hollywood. Former FBI Art Crimes investigator, Mr. Robert Wittman, commented that about 52 percent of art theft occurs from private homes, with about 10 and 8 percent from art galleries and churches accordingly (R.Wittman. “Priceless: How I went undercover to rescue the world’s stolen treasures”, 2010). Probably the most prolific art thief in history is Stéphane Breitwieser, who robbed nearly 200 museums. In the course of his “career” Breitwieser amassed an impressive collection of art worth more than $1.4 billion. Which is more, he did not steal to try to sell, he stole… to collect! The impressive and fascinating story of Stéphane Breitwieser was published in GQ — https://www.gq.com/story/secrets-of-the-worlds-greatest-art-thief.
Breitwieser “collected” art, but art theft normally happens with the financial gain in mind. The criminals try to sell the artworks, use them as collaterals in drug or arms deals, engage in the so-called “art-napping” when a ransom is asked in return for the artwork or certain beneficial conditions are negotiated for criminals. Thus, as the title of this article states, there is nothing sexy about them.
3.
The third category of art crimes —art vandalism— can roughly be further divided into:defacement and graffiti. The latter is arguably a form of artistic expression by its own standing, while the former is a crime not involving art, yet against art as such.
A famous case of a German serial vandal Hans-Joachim Bohlmann would be the perfect example of art vandalism. The man who suffered from a personality disorder in his “prolific vandal’s career” damaged over 50 paintings, including works by Rubens, Durer, and Rembrandt. Certain famous artworks (e.g. Mona Lisa, The Little Mermaid, Night Watch) have also been repeatedly damaged by different vandals. On some occasions (like e.g. with statues of King Leopold II in Belgium) vandalism was a form of a political (or social) protest, but frequently (like in the Bohlmann case) it is a result of an illness or has some other personal reasons to it.
Graffiti is regarded as an act of vandalism, though, as mentioned, not against art, but against other people’s property, by means of art. There are numerous related legal issues, but overall graffiti is an IP outcast, balancing between the property rights on one hand and the author’s rights on the other (more on the matter in one of my previous articles — https://www.linkedin.com/pulse/copyright-losers-graffiti-ip-outcast-maria-boicova-wynants/).
Talking about vandalism one likewise cannot skip mentioning Ai Weiwei as some of his works provide yet another dimension to it: creating art by vandalizing another art, notoriously that of a cultural heritage dimension. A famous performance piece by Ai Weiwei was him dropping and smashing a million dollar Han dynasty urn into pieces (https://www.futurelearn.com/courses/art-crime/0/steps/11886). An act of vandalism? Yes. An artwork by itself? Surprisingly, but also yes. The question is: where to draw the line?
4.
Money laundering is a very specific crime which legally speaking calls for intent, or in other words, the one accused of money laundering needs to know that the money in question came from illegal activity. Money laundering has several stages. The first stage is placement, when the illegal proceeds are being placed into the financial system, followed by the second stage — layering, when a whole bunch of additional transactions is made to move the proceeds as far as possible from the source. Ultimately, in the third stage, integration, the illegal proceeds are integrated into regular commerce. Here art frequently comes into the spotlight.
The big money laundering case involving art took place in 2018 and involved a UK art dealer Matthew Green (more about this here: https://news.artnet.com/art-world/matthew-green-charged-money-laundering-us-1236929). Nevertheless, there were many more (big and less big) money laundering cases out there; even financing of the blockbuster “The Wolf of Wall Street” is tainted by one of money laundering schemes involving art — https://melmagazine.com/en-us/story/the-perfect-irony-that-the-wolf-of-wall-street-was-also-a-real-life-scam). Price fluidity, buyer’s anonymity and the general obscurity of the art market attracts criminals to explore their “money laundering options”.
5.
The final category of art crimes I would like to sketch is copyright infringement. Most of the copyright infringement cases are decided in a civil process. However, willful copyright infringement with the aim of financial gain might also be considered as a criminal offense. In accordance with an article 61 of the TRIPS Agreement member nations have to provide for criminal procedures and penalties "at least in cases of willful (…) copyright piracy on a commercial scale". Particular characteristics of an infringement to be qualified as a criminal offense vary per country, yet mostly there should be either a significant damage caused, or it should be an organized crime (willfully committed by an organized group of people), or other criminal actions should be involved (threat, violence, coercion) (e.g. in Latvia see Art. 148 of the Criminal Law — https://likumi.lv/doc.php?id=88966&version_date=01.10.2011) Art fraud, and especially art forgery, perfectly falls also under this category of crimes. To note, that pure copyright criminal cases are not very frequent, but nevertheless, they also do happen.
To conclude, art crimes are as versatile as art itself and in real life have little resemblance to what the blockbuster movies depict. Above all, crimes remain crimes. Insurance might pay back the stolen financial value, but no one can repay (not even estimate!) the cultural value of, say, the Vermeer’s work stolen from the Gardner Museum. Same with financial crimes involving art — it’s not just, for example, about tax evasion, but on many counts, it is about terrorist financing or drugs dealers’ dirty money. In other words, the statement I came across once that art crimes don’t have a direct victim, is highly dubious at best. Even if there seems not to be one, the cultural heritage loss makes everyone one of us the victim.