by Kristen Pionati
“In the first place, God made idiots. This was for practice. Then he made school boards.” –Mark Twain
In his 1897 book Following the Equator: A Journey Around the World, Mark Twain (born 1835, died 1910) wrote that “In the first place, God made idiots.” Even today education and upbringing continues to escape those who steal and vandalize art. Theft and vandalism of art are as old as time, but most of us like to think that here and now in the United States, graves are not desecrated and, if our city pays an artist for unique public works, they are not immediately stolen. However, we are wrong to assume these crimes only happen in faraway times and places. Some recent instances of theft and vandalism demonstrate the failure in our assumption and highlight the potential motivation behind those acts.
The granite pillar on Mark Twain’s tomb in Elmira, New York is 12 feet tall, or “mark twain” if you are a steamboat captain calling out a two fathoms measurement. Originally the pillar featured a 12 by 12 inch bronze plaque with Twain’s likeness in profile created and installed by local artist Enferd Anderson in 1937. However, sometime between Christmas and the New Year at the end of December 2014, someone brought a ladder to Woodlawn Cemetery and removed the plaque from its position towards the top of the pillar. The Cemetery Superintendent, Bryce Cuyle, told Elmira’s Star-Gazette he did not believe the plaque was stolen because of its “scrap value” but rather because “of who it was.” Cuyle went on to say he expected “someone will start chirping about this on social media.” Fortunately, if the original is not recovered, Twain expert Kevin MacDonnell has a plaster cast of Anderson’s work that could be used to restore the pillar according to the Star-Gazette.
Perennially reprehensible, theft of art extends to public works as well. For example, last summer, also in New York, vandals stole most of the street signs created by artist Ryan McGinness. In 2014, New York City commissioned McGinness to create abstract signage for city streets. The end result was fifty oblong red signs that look like traditional signage from a distance but upon closer view have bold graphic designs unique to each sign. In the first three weeks after the signs went up, nearly forty had been stolen. The Department of Transportation launched a full-scale investigation into the theft, seeking security footage from local businesses and government buildings where the signs were placed. The city replaced many of the stolen signs, but had not replaced all fifty as of August. No arrests were made in connection with the signs’ disappearances.
Similarly, last March a Memphis, Tennessee man stole a 4 foot by 3 foot statue by Ted Rust, the former director of the Memphis College of Art. The 350 pound statue, called “The Acrobat,” normally on view in a park, was stolen from a studio’s yard, where it was undergoing repairs and was kept covered by a tarp behind a locked fence and two heavy chain locks. Police found “The Acrobat” after pieces of the sculpture were recognized at a scrap metal yard. The scrap yard had paid the thief $300 for the pieces taken from the sculpture. Intact, the sculpture was worth $65,000. Wayne Barnes, 49, was arrested and charged with theft of property over $60,000 and vandalism between $10,000 and $60,0000.
These crimes occur across the world. Just this month, a six-foot fiber glass and stainless steel statue of Manannán Mac Lir, the Celtic God of the Sea, disappeared from a mountainside in County Derry in Ireland. The sculptor, John Sutton, who also worked on HBO’s “Game of Thrones,” expressed his shock following the theft to the BBC. According to Sutton, it would have taken many men with angle grinders several hours to remove the statue from its base and from the mountaintop where it was displayed. Police are investigating a “religious aspect” to the crime. Left behind in place of the statue was a wooden cross that said “You shall have no other gods before me,” likely a reference to the pagan nature of the statue. Fortunately, the Limavady Borough Council voted to replace the statue after people from all around the world offered to contribute to the creation of a new statue. The Council acknowledged that it will be more careful in ensuring the replacement artwork is less vulnerable to theft.
One reason these crimes involving public art keep occurring may have to do with the medium—metal. Rising values for scrap metal have caused thefts, including theft of public art, to rise. For example, the BBC reports that in the United Kingdom, many metal public works are being placed in storage while fiberglass copies are put in their place. This plan may be a good one because the scrap metal value of sculptures is significantly less than the value of the art. Worse, as the Memphis example above serves to demonstrate, in stealing the art thieves often have to destroy it. If the work is large enough, as Rust’s was, the thief must break it into smaller pieces to remove it from its place and convincingly sell it as scrap metal.
There are several ways the law is equipped to deal with theft of public art and artworks displayed in the open. They will be discussed in turn in the following sections.
Those found to have stolen art may be simply charged with theft. Model Penal Code § 223.2 defines theft as the unlawful taking or unlawful exercise of control over the movable property of another with the intent to deprive the person of that property. Under MPC § 223.1, if a stolen work of art is worth more than $500, that theft charge would be a felony charge. Once caught, the thief of the Mark Twain plaque would be subject to the New York Penal Law § 155.05, which bears nearly identical language to the MPC and takes a broad view in its definition of property. Wayne Barnes, similarly, was subject to Tennessee Penal Code § 39-14-105, which makes theft of property valued between $65,000 and $250,000 a Class B felony.
However, relevant Penal Laws do not extend to specifically protect public art commissioned and owned by the government. There seem to be very few laws specifically covering the theft of government property, including taking and vandalism of art. Many state penal codes explicitly outlaw the theft of property pertaining to public utilities like gas, water, electric, or sewer systems without specifically addressing other real property. Curiously, South Carolina is an exception. Section 16-13-330 of the South Carolina Code specifically prohibits the stealing or damaging of works of literature or art. The South Carolina statute takes a broad view of art and includes works of art in a “library, gallery, museum, collection, exhibition or belonging to or in the care of any department or office of the State or local government, or belonging to or in the care of a library, gallery, museum, collection or exhibition which belongs to any incorporated college or university or which belongs to any institution devoted to educational, scientific, literary, artistic, historical or charitable purposes.” Unfortunately, the statute defines the crime only as a misdemeanor, punishable by a fine not to exceed $100 or thirty days in jail, both clearly insignificant punishments when the art destroyed and stolen can be priceless.
Vandalism laws provide another source of punishment. In the New York penal code, vandalism is contained within the criminal mischief laws in Article 145. Under that Article, a person can be charged with several degrees of criminal mischief, requiring intentional or reckless damage of the property of another. The four degrees of criminal mischief differ in the value of the damage done to the property and determine whether the crime will be classed as a misdemeanor or felony. The state could also charge someone with criminal tampering, which is a misdemeanor unless a person tampers with a public utility. Most relevant to the theft from Twain’s grave, Article 145.22-3 prohibits cemetery desecration, including the theft of any real property from the grave whose value exceeds $250. Tennessee’s vandalism statute is similar. It prohibits the intentional cause of damage or destruction to property of another, including public property. Vandalism is graded identically to theft, resulting in a Class B felony for Wayne Barnes.
Scrap Metal Regulations
Finally, in order to combat thieves selling scrap metal, there are laws which govern scrap metal processors or junk dealers. In New York, General Business Code Articles 6 and 6-C respectively require junk dealers and scrap metal processors to be licensed with the state. Both junk dealers and scrap processors must keep a record of the person selling the metal, their address, and contact information. In both cases, the person must provide identifying information about the metal, either when they purchased the metal or a description of when, where, and from whom the property was obtained. The Institute of Scrap Recycling Industries (ISRI) is a Washington, D.C. based trade association dedicated to raising awareness about the theft and sale of scrap metal. It targets law enforcement agencies, prosecutors, recyclers, and legislators to help develop a comprehensive program to address the problem of metal theft. ISRI even runs a website, ScrapTheftAlert.com, that allows users to report metal thefts and subsequently notifies other users in the area so they can contact law enforcement if they have additional information. That site has led to over 200 arrests and the recovery of $1.4 million in scrap metal of all kinds, not necessarily all from stolen art.
The vandalism of Mark Twain’s grave and the theft of Ryan McGinness’ New York City street signs are just two examples of the countless number of idiotic, senseless actions taken against art, often because that art is made of metal. As the prices for art and metal scrap continue rising, we can expect to learn of more and more illegal takings of artworks more prized for their provenance, aesthetic and cultural value than their salvage wroth. These basic crimes are brazen acts that destroy art, its value, and rob the community of valuable cultural experiences but they are not without redress. Stewardship of public works and memorials as well as outreach to the metal scrap facilities may help reduce the irreversible loss of cultural artifacts. Existing law may need to be revised to deliver more exacting and weighty consequences to more effectively punish offenders and deter others from committing similar acts.
- Stop Metals Theft, ISRI, http://www.isri.org/stop-metals-theft.
- Scrap Metal Theft: Why It Matters, Earth 911, http://www.earth911.com/inspire/programs- initiatives/scrap-metal-theft-matters/.
- Tenn. Code Ann. § 39-14-105.
- Tenn. Code Ann. § 39-14-408.
- N.Y. GBS. LAW § 60-64, 69(e)-(h).
About the author: Kristen is a recent graduate of Villanova University School of Law where she pursued her interest in art law in her research, at the Tulane-Siena Institute for International Law, Cultural Heritage, & the Arts, and at the National Cultural Heritage Law Moot Court Competition at the DePaul University College of Law.