Cultural Property

I. Introduction

Cultural Property is a broad term used to cover art, artifacts, architecture, manuscripts, photographs, and almost anything created by humans or related to human activity. Under certain circumstances, it includes human remains. An ordinary cookie jar may become an item of value if it was owned by an historical figure or a celebrity. Pop artist Andy Warhol, for instance, collected cookie jars, and his ownership made those cookie jars disproportionately valuable. Former First Lady, the late Jacqueline Kennedy Onassis, owned a necklace of fake pearls which, after her death, was sold and then licensed for duplication, purely based on the fact that she owned and wore the original necklace. Recent events in the Middle East have brought destruction to many architectural artifacts, such as the Temple of Bel in Palmyra in Syria. Simultaneously, however, the same people who destroyed much of the ancient city of Palmyra have also engaged in the looting of antiquities from Syria and Iraq to sell them and finance terrorist activities. An 81-year-old archaeologist, Khalil Al-Assad, was, in fact, beheaded for not revealing the location of many of Palmyra’s most precious ancient objects. But cultural property crime is much broader than looting of antiquities. It includes theft, forgery, fraud, and even tax crimes for art and artifacts. There are many statutes, both in the United States and abroad, as well as international treaties and agreements that govern the sale and transfer of cultural property, encompasing import, export, and domestic. Much of this is addressed in an earlier United States Attorneys’ Bulletin, Cultural Property Law Enforcement (March 2016), as well as in training for Assistant United States Attorneys and training by the FBI and Homeland Security.

 This article, however, will address forensic issues, both scientific and non-scientific, that may come up in a cultural property case. Cultural property investigations are likely to require consultation with experts in several areas. Considerations are authentication, identification, and valuation. To determine valuation, you must call upon professional appraisers, art dealers, or connoisseurs. Forensic scientists, curators, or academics might be used for authentication and identification. Appraisal societies can provide lists of appraisers with particular expertise, and there are some foundations established to study the work of a particular artist or artists, which, in the past, have been a source of authentication. However, they may or may not be helpful, as some of these foundations have stopped authenticating due to liability issues. Note that many academics and museum professionals, although willing to authenticate, are prohibited from valuing an object. Investigation of an object may be, at minimum, a two-step process, although it is not uncommon for both steps to occur simultaneously.

Authentication.

  Is an object what it is presented as, or is it a forgery?  How can that be established?

v  Provenance is the documentary history of a cultural object, including records of sale, importation, correspondence, authentication certifications, and the like. (This differs from “provenience,” which is the site where a particular archaeological item was discovered.) Provenance used to have more significance in establishing celebrity ownership, thus making something more valuable, such as the Warhol-owned cookie jars mentioned above. Recently, it has been critical in helping determine if ownership actually existed and was legal. It is playing a serious role in the area of Holocaust Era art crime.

v  Connoisseurship is the discerning judgment of a subject matter expert, such as a museum professional or an academic, based on training and experience.

v  Forensics is the use of scientific tests and techniques to prove a relevant fact and is the subject of this Bulletin. Forensics can be used, for example, to determine if an object has circular saw marks indicating it may have been removed from its original location by a looter or if the old paint on a canvas was sanded down. Forgeries can sometimes be discovered if the materials used by the forger did not exist at the time of the creation of the original object.

 However, the best forgers may actually obtain old materials which existed at the time of the creation of similar objects and use them to create something entirely new in the hopes that it will escape scientific exposure.   There are arguments to be made as to which is the most important factor in a cultural property case, but it is likely that all three—provenance, connoisseurship, and forensics—may come into play.

 When it comes to authenticating a work of fine art, consider whether the artist is living. If so, you may be able to interview that artist. Sometimes, especially with older work, the artist may not remember the piece in question or otherwise may have difficulty in conclusively authenticating it. This is not uncommon because some artists do not keep careful records of their work. It might come up where a piece has changed hands multiple times but it is unclear if it is the same work of art or part of a series, as titles may be inconsistent or have typographical errors in auction records. A prosecutor who lacks expertise in this field may not be aware that a particular art object is part of a series, so it is important to be certain both of the nature of a particular piece and that your research is not referring to a similar piece from the same artist. Not all artists are cooperative, but some are. Likewise, an authentication board might be a good source for an authentication witness, but as mentioned above, several authentication boards will no longer render opinions on authentication due to liability concerns. Two prominent examples are the Warhol Authentication Board and the Krasner-Pollock Foundation. Another source to consider is the artist’s catalogue raisonne´, if one exists.

The New York Public Library defines “catalogue raisonne´” as a listing of all the known works of an artist either in a particular medium or all media.

 They may provide some or all of the following:

 • Title and title variations

• Dimension/Size

• Date of the work

• Medium

 • Current location/owner at time of publication

• Provenance (history of ownership)

• Exhibition history

• Condition of the work

• Bibliography/Literature that discusses the work

 • Essay(s) on the artist

• Critical assessments and remarks

 • Full description of the work

 • Signatures, Inscriptions, and Monograms of the artist

 • Reproduction of each work

• List of works attributed, lost, destroyed, and fakes

 • Catalog number Note that in the context of Native American cultural property, human remains are included under the Native American Graves Protection and Repatriation Act