Op-Ed: Art Historical Due Diligence To Resolve Cultural Heritage Disputes

February 25, 2019

By Sharon Hecker.

A plethora of recent high-profile sales have ended in equally high-profile legal fiascos and cultural heritage disputes due to inconsistent identification of artworks. This article will examine as case studies the misattributed Madonna with Child by Giotto, currently owned by a private collector in London, and the misidentified portrait of Prince Camillo Borghese by François-Pascal-Simon Gérard (1810), currently owned by the Frick Collection in New York. Both works requested exportation licenses from Italy under different circumstances, but are now being reclaimed based on their respective rediscovered attributions due to the country’s strict cultural heritage laws. I would suggest that a consistent art historical approach to due diligence could have been useful in preventing these battles in the first place. Additionally, I propose that a new way to conceive cultural heritage as shared might help resolve the ensuing ongoing disputes regarding ownership of the works. I am writing as an art historian, not as a seller or acquirer of artworks, nor as a litigator involved in disputes.

Back to the Origin

In the case of the Giotto, a private collector purchased the work at an auction in Italy in 1990. Presumably based on expertise, the work was sold under the attribution: “unknown 19^th-century artist.” After the sale, a later examination and restoration reattributed the work to Giotto or his school. Based on this reattribution of the author, the Italian government determined that it was part of its cultural patrimony and should be returned to Italy. An ongoing legal battle ensued in the summer of 2018.

The case of the Gérard painting raises a somewhat different, yet not unrelated, issue. The work was sold by a dealer to a major U.S. museum as an anonymous “portrait of a man”. More than a year after the artwork’s export license was granted and the sale to the Frick Collection in New York was completed, the exportation license was revoked. The Italian Government claimed that after issuing the license it had identified the subject as the Italian brother-in-law of Napoleon Bonaparte, Prince Camillo Borghese. His name was written on the back of the work and presumably had not been noticed either by the dealer or by the Italian ministry granting the export license. The Italian government now argues that the work rightfully belongs to Italy because of the national identity of the work’s illustrious sitter.

Do we simply write the Giotto case off as an example of a so-called “sleeper,” or misattributed masterpiece?^[i] Do we consider the Gérard case nothing more than a superficial misidentification of its renowned subject?

A structured form of art historical due diligence may have uncovered the correct attributions. In both cases, an art historian asks: who made the original attribution? What was his/her expertise in the field? What historical and material evidence was presented as the basis for the attribution and what importance was given to each fact in the overall assessment? None of this information has been made public in either case. Therefore it is impossible to assess the criteria by which the first misattributions were made.

What can art lawyers, auction houses, and cultural ministries learn from these cases for the future? First, one “expert” no longer can function as a sole guarantee. This is especially true if the international community of scholars in the field do not recognize this expert. Experience has shown that in many cases art lawyers, art market experts, and cultural ministry experts do not have specific graduate art historical education and that they feel obligated to doing what they think is best for their clients, the market or their country, respectively. Art historians disinterested in the market value or sale price of the work and who conduct academic scholarship are those most qualified to carry out this type of research and report impartially on their findings.

At the same time, many art-historical experts feel unprotected and frequently choose to remain silent.^[ii]It is important to create safe spaces for non-market experts such as academics and art historians to conduct their research without the fear of legal consequences or misappropriation of their work. TEFAF (The European Fine Art Fair), for example, shields its Vetting Committee experts from legal repercussions and has enacted a global policy to include “experts with as little commercial interest in the art market as possible.”

Second, art lawyers, market experts, and cultural ministry experts should become alert to the fact that expertise can no longer be based on opinion alone. Nor do “certificates of authenticity,” a work’s presence in exhibitions, catalogue raisonnés, art foundation guarantees, or market transactions substitute for a reasoned and comprehensive art historical standard of due diligence.^[iii]

However, only an impartial recognized expert in the field can critically assess whether a provenance has been faked or is incorrect. The current tools of expertise need to be refined. Traditional connoisseurship can lack evidentiary support, such as documented visual comparisons with works known to be by the artist. Provenance, too, often remains superficial or uncorroborated: it should be validated by external archival documents and be traced back to the artist whenever possible. Scientific analysis, regularly emerging during legal litigation, is meaningful when carried out before an acquisition or exhibition, not after, as in the case of the Giotto. Conservation scientists working with experts to interpret their findings provide added integrity.

Fourth, welcoming differences of opinion, open questions, discrepancies, doubts, and gaps in the due diligence creates a discourse that leads to a better understanding of what we know about an artwork’s history. The act of gathering and making this information publicly available serves to enhance our shared knowledge.

Finally, it should be acknowledged that there is a grey area in art history. There are many works and artists whose history is and will remain uncertain, perhaps until new information emerges, or perhaps forever.

In the Aftermath

In both the cases of the Giotto and the Gérard, the works have now left their country of origin. How will these conflicts be resolved, if at all? To whom do these artworks “belong” now? While one might assume that a work by Giotto rightfully belongs in Italy, it has now resided in the U.K. for some years. The case of the Gérard is more puzzling given that the artist in question was French. Gérard was the portraitist to the Bonaparte family and the iconography of this portrait suggests to scholars that it was painted in Paris around 1810. Its subject, Camillo Borghese, lived in both countries: he was born in Rome and moved to Paris in 1803, where he married Paolina, Napoleon’s favourite sister. Borghese was named Prince of the French Empire as well as commander of the 27^th and 28^th Division of the French Army. In many senses, then, were national ‘ownership’ to be a deciding factor, this work might be said to rightfully ‘belong’ to France as much as to Italy. The fact that the painting now lives in the United States should also be taken into consideration.

I believe that we need to rethink our perceptions of an artist or an artifact as having a single, unified, or homogenous heritage or home. These cases could benefit from what I call cultural ‘matrimony’, a new approach that can be used to resolve heritage disputes. This solution is in line with an art-historical viewpoint of culture as shared rather than owned by one nation.

In a recent article in The Art Newspaper, I showed that, for various reasons, works of art often live on in different countries long after they were made.^[iv] Among the examples I gave was the so-called ‘Getty Bronze’, created in Greece in 300–100 BC, found in international waters by Italian fisherman in 1964, and resident at the Getty Villa in Malibu, California, for nearly half a century. In my article, I suggested that we needed to rethink our perceptions of an artist or a cultural object as having a single, unified, or homogenous identity or nationality. Rather than patrimony, cultural ‘matrimony’ would be a more useful notion.

The word patrimony goes back to ‘pater’, father in Latin, and refers historically to the property of the church or the spiritual legacy of Christ, from the Latin ‘patrimonium’, an inheritance from a male ancestor. In a marriage, patrimony is defined as that which is inherited. Patrimony gives a sense of belonging and strives not to be dispersed; it is a concept that protects but also limits culture.

‘Matrimony’ relates to ‘mater’ or the mother, suggesting something brought into a marriage, such as the gift of a dowry or the gift of life. A matrimonial approach would emphasize a shared cultural heritage that enables objects to be part of transnational relationships, in a manner that respects the mobile identities of artists and their works. A matrimonial approach opens up fertile new potential for trust and synergy among diverse entities where previously it may have been lacking. I believe that a change of mindset may lead to new laws and agreements through which disputed works of art can be shared among countries.

Another term that is commonly used today is cultural ‘property’. Legal scholars have recently recognised that ‘property’ is ‘too limited to encompass the range of possible elements – both tangible and intangible – which can comprise the cultural elements being described.’^[v] Property speaks to the aspect of art that is related to market commodities and exchanges or ownership of goods. It also refers to a sense of belonging, power, and control. This is only part of the identity of an artwork.

Likewise, cultural ‘heritage’ gives only a partial definition, for it assumes an artwork’s importance for only one culture’s identity. Art historians have shown that artworks can have many different values and meanings for people across cultures, whether for aesthetic pleasure and marvel, employment in religious rituals or a heightening of spiritual awareness. They are also meaningful for intellectual stimulation and learning about economic, social and political aspects of a culture, creating new ideas or gaining practical know-how, for understanding oneself and one’s own culture, or discovering another culture and finding similarities and differences between ‘us’ and ‘them’. Think, for example, of Picasso’s and Brancusi’s transformative contact with African art seen in Paris.

One excellent example of cultural matrimony is the Benin Dialogue group, which has recently announced plans to construct a new Royal Museum in Nigeria to display objects looted from the country that are now in European collections.^[vi] Ultimately, an agreement such as this one shifts the attention from the people and institutions involved to the objects and their possible functions in the world. Mine vs. yours becomes ‘ours.’ This solution opens up a broader sense of ‘culture.’

In both the Giotto and Gérard cases, the warring factions would need to arrive at a common goal, which might be defined as ‘access to heritage’, allowing the works to be released from a frustrating limbo. A safe legal space would need to be created for negotiation rather than a litigious property battle. A time frame could be agreed upon for implementing a solution, avoiding disputes that could potentially carry on for years with no satisfactory resolution. While repatriating these works will satisfy the Italian culture, most valuable for any resolution would be an agreement on both sides to put off this difficult and painful discussion. A solution that involves sharing the works exposes them to a larger world audience and widens their circle of influence, creating a sharing of knowledge.

The Biblical King Solomon’s Judgment will not work in these cases. We cannot propose to cut artworks in half in order to satisfy the competing claims. A third way must be conceived. Could the Giotto and Gérard works be shared with Italy? How would such a sharing project be formulated? What questions would it leave open? Does the work have to physically return to Italy, or could the work continue to reside in its new country, while devising and implementing different collaborative approaches that give both sides access to the work, such as internationally shared conferences, exhibitions, and conservation projects? What about questions of immunity from seizure if the works are ever shown in the country of origin? How will this idea of sharing change the discourse of cultural heritage? I hope that this article can raise questions and begin a dialogue on other ways to conceive of cultural property.

^[i] See Anne Laure Bandle, The Sale of Misattributed Artworks and Antiques at Auction, Edward Edgar Publishing (2016). Available here.

^[ii] Judith Wallace, Art Law on Protecting Expert Opinion, Artnet News (Feb. 14, 2016), here.

^[iii] For more on this, see www.theheckerstandard.com.

^[iv] Sharon Hecker, Cultural ‘Matrimony’ Could Resolve Heritage Disputes, The Art Newspaper (Nov. 2, 2018), here.

^[v] Janet Blake, On Defining the Cultural Heritage, The International and Comparative Law Quarterly, Vol. 49, No. 1 (Jan. 2000), pp. 61-85, here.

^[vi] Catherine Hickley, Nigeria plans museum for art looted from Benin, The Art Newspaper (Oct. 22, 2018), here.

About the Author: Dr. Sharon Hecker (B.A Yale University, Ph.D. U.C. Berkeley) is an art historian, curator and author. A leading international expert on modern and contemporary Italian art and the artist Medardo Rosso, she has authored over 30 publications, including A Moment’s Monument: Medardo Rosso and the International Origins of Modern Sculpture, winner of the Millard Meiss Publication Fund Prize. Dr. Hecker has curated exhibitions at the Harvard University Art Museums, Pulitzer Arts Foundation, Nasher Sculpture Center, St. Louis Art Museum, and the Galerie Thaddaeus Ropac, London. Her work has received awards from the Getty, Mellon and Fulbright Foundations. Dr. Hecker writes about interactions between art historical scholarship, the market, and the law as related to questions of authenticity, attribution, expertise, and due diligence. She is a member of the Catalog Raisonné Scholars Association (CRSA), International Foundation for Art Research (IFAR) and International Council of Museums (ICOM).