Form follows function:

The development of the Internet as a

tool in fighting art theft.

 

 

 

 

 

 

 

 

Submitted by

 

Hilary Mastio

 

 

 

 

 

 

 

 

 

COURSE 366-10

 

LAW AND CRIMINOLOGY

Law School

The George Washington University

Washington, D.C. 20006

 

May 11, 2000

Abstract

This paper examines what data is available in the study of art theft and what factors are involved in the loss and recovery of art.  It attempts to prove that the Internet is responsible for a deterring thieves from stealing well-known art, by virtue of its advanced systems for informing the public and through its use to check the provenance of an artwork. It summarizes what information is available on the Internet, and ultimately finds that there are too many factors at work to show more than a faint correlation between the development of the Internet as  a resource and a lower incidence of high-value theft. More research is necessary to get a true picture of art theft, but this may never come to pass due to the unwillingness of the major people in the art world to speak, even anonymously, about art thefts that have occurred, and the lack of general information available to the public in newspaper accounts.

 

     The problem of art[1] theft is an international one, affecting every society. All over the world, thieves are entering homes, museums, galleries, churches and businesses and removing irreplaceable art[2]. After the theft, the varying laws of the nations of the world aid the criminals in transporting and re-selling the art, or in placing a ransom demand with the owners[3]. Issues of title to the art and the illegal export of art are two among many involved in this difficult problem.

            The cost of art theft has been estimated at 2 to 6 billion dollars every year[4], second in profit only to the sale of illicit drugs or weapons[5]. This figure fluctuates depending on what authority is giving it out, what is included in a definition of “art,” and how that art is appraised.[6]  Some works’ values may never be determined due to their uniqueness. Many works in museums may be the only painting of that type from a certain artist, so determining what that particular painting would bring at auction is really only a guess, based on recent sales of similar pictures and knowledge of the current economy[7]. This inability to easily measure the value of art leads to other problems, most notably for the purpose of insuring the art against theft, since premiums (and reimbursement after theft) depend on a specific value.

                        However, economics is not the only measure of the problem. A painting that is recognized as a masterpiece from an Italian painter, for example, carries with it a cultural heritage for the Italian people. Its loss or destruction harms the culture which produced the artist by removing a symbol of pride for that culture.  Objects like an icon or statues depicting saints and other religious figures likely have more emotional value to the church owning them than economic value. By the theft of these items, the church’s congregation is deprived of a symbol of its faith.

Similarly, the study of art history suffers when art is stolen. Part of the historical value of a work lies in appreciating the full body of an artist’s creations- examining how a particular work fits among many (or few) produced tells the historian much about the life of an artist and how the artist’s technique was developed. No two works, however similar, are exactly the same. Even prints are numbered to make them nonfungible. This is part of the reason art is so vulnerable to theft and highly prized as a collectible. It also explains why art is sometimes ransomed to keep it from harm as though it were a kidnapped child.

Collectors and art historians aren’t the only people who value art, however. Everyday viewers who may not prize a piece for its rarity can still find the beauty or message of an artwork. Artists themselves learn by seeing a piece and emulating its composition or technique. No photograph can reveal the deep uneven texture of Van Gogh’s thick brushstrokes, and every person’s eyes see colors just a bit differently.

No matter where an artwork is located, its removal carries implications that reach far beyond the country in which the theft occurred. The lack of a binding international law that can be easily enforced on all nations helps thieves to take stolen art to countries where legitimate title can be acquired more easily[8]. Responses to the art theft problem[9] have included the ratification of an international convention on theft by members of the United Nations; the creation of a directive by the European Union; ratification of an international convention by the members of Unidroit[10]; national laws on exports, art theft, and changes in statutes of limitations; new businesses or organizations dealing solely with museum security or recovery of stolen items; the creation of a stolen art CD by Interpol; and finally, new websites by police organizations, businesses and art-lovers around the world.

It is my hypothesis that the Internet has increased the recovery of stolen art and deterred the theft of highly individualized or well-known works, which I will attempt to show by searching news accounts and the Internet.

 

 

 

Literature Review

About the only criminologist to study this area of crime is John Conklin in his 1994 book, Art Crime. Conklin’s research covers not only society’s reaction to the problem of art theft, but also the motives and methods of the people who commit these crimes. Unable to conduct a statistical study since so few thieves have been caught; Conklin employed the case study method to arrive at his conclusions. At the time of his writing, the main source of information besides newspaper accounts and art magazines was from the newsletter of the International Foundation for Art Research[11] (IFAR), which he used extensively. 

Being the first in the field, Conklin’s book attempts to touch on all aspects possible concerning art crime, including fakes, fraud, collusive dealing by sellers and auction houses, vandalism, and the theft of works from museums, homes, galleries, or archaeological sites. Although he is not faulted for the scarcity of information regarding some of these topics, Conklin has still been criticized for lightly discussing the implications of various international laws for art theft and export. Some topics, such as how thieves steal art are not considered to be well developed or are “common sense.”[12]

Conklin’s book seems varied in its aim- sometimes at a novice to the art world, and sometimes not, which makes for an uneven read. Since my undergraduate degree is in art, I was at times bored with Conklin’s descriptions and sometimes felt that barely enough detail was given to assist someone just learning what “provenance”[13] is, for example. He does manage to give a thorough understanding of such processes as what happens when the owner of stolen art eventually discovers the location of the work.[14]

In his discussion of the social construction of art’s value[15], he relies on sociologist Charles W. Smith’s study of auctions to describe the organization of the social structure of the art world, but this is the only memorable mention of another sociologist’s views in the book. Conklin does seem to agree with the idea of the “career criminal” at least to the definition of someone who works hard at planning and specializing in theft.[16] Major criminological theories were not even attempted to be applied. On the other hand, Conklin gives a good overview of art history and help in understanding why a work’s provenance may affect its value as well.[17] 

Most important to this paper is what Conklin feels should be done to address the problem of art crime. In the last chapter, he puts forth suggestions, including better security for museums and galleries,[18] better inventory techniques (especially taking photographs), greater publicization of crimes,[19] and educating the public about buying art.[20] A criminological theme enters when he discusses greater penalties for art crimes to deter would-be thieves, finding that most penalties given out are “insignificant.”[21] This is still mainly true today, as the figures from the Bureau of Justice Statistics show. A person sentenced in state court for the crime of burglary served approximately 25 months in 1996.[22]

            Unfortunately, much of Conklin’s suggestions are outdated by more recent events. New advances in security have developed quickly over the last six years,[23] and the Internet has become a commonplace tool in the search for provenance and the reporting of crime today. However, adequate security measures do continue to be a problem for some museums, galleries, and churches, and even more so for homes.[24] Widespread publicization only seems to occur in some cases (such as the unusual “Thomas Crown”-like theft from the Ashmolean museum in London during the New Year festivities marking January 1, 2000)[25], which continues to make study difficult.

           

Although criminologists studying this area of crime are rare, legal scholars comparing international laws have examined the implications of stolen property like art in abundance.[26]  Once the owner of a particular artwork discovers its location, he generally must sue for its return if it has been sold to a bona fide purchaser (i.e.- someone who has no knowledge of the theft.) But because of the variance between common-law countries and civil-law countries, (indeed even between the standards of the individual states in the U.S.) if the artwork is found outside the country from which it was taken, there will be disagreement about which law applies- the law of the country of origin or the law of the country now in possession where the lawsuit is being filed. Sarah Conley gives a good outline of the disagreement in her essay, International Art Theft[27]:

 

In the international arena, three factors confuse the settlement of title disputes: (1) the choice of laws; (2) the balance of the rights of a good faith purchaser against those of a dispossessed owner; and (3) the application of statutes of limitations or statutes of repose…[T] wo substantive issues are widely used in the resolution of title disputes: (1) good faith of the purchaser and the reasonable diligence to discover a work's origins, and (2) statutes of limitation and repose…Common-law countries adhere to the principle that a thief cannot pass right to possession or good title regardless of a purchaser's good faith…Conversely, the civil‑law system allows a good‑faith purchaser to hold good title even if the property was stolen. However, actual knowledge that a work is stolen automatically eliminates a purchaser's good faith standing. A simple test determines whether a purchaser knew or should have known that a work was stolen: whether a reasonably diligent search would have revealed the work's status.

 

 

             Conley argues that the best means of curbing art theft is to create a centralized, international reporting system for stolen art,[28] a somewhat visionary idea for a law student in 1995. She discusses the databases available at the time, none of which were searchable through the Internet, and suggests that the international reporting system would make the concept of what constituted “due diligence” in a search of an item’s provenance much more defined.[29] She also calls for international standards to be “imposed on dealers, auction houses, and museums worldwide,”[30] which she believes will result in security and stability in the art market and help to end transactions between art thieves and unknowing buyers.

            An obvious criticism of this idea, however, is that Conley makes no mention of how this registry will be administered or how these standards will be enforced. Likewise, in Tracking Stolen Artworks on the Internet: A New Standard for Due Diligence, Laura McFarland-Taylor suggests an international database accessible through the Internet, lamenting the large proliferation of sites dedicated to a single theft or type of artwork,[31] but fails to support her argument with a plan. In particular, she does not show: how this site would become “the site” recognized internationally as the place to report stolen artwork, who would fund the database, or how to overcome the variance from museum to museum in the cataloguing of their artworks.[32]

Adina Kurjatko,[33] another law student, suggests giving authority for a worldwide title system to Unidroit, whose 58 members include the United States. Kurjatko also proposes amending the Unidroit Convention on the Prevention of Illicit Import, Export and Transfer of Ownership of Cultural Objects[34] to encourage more members to sign the Convention. However, even if all fifty-eight countries agreed and signed the Convention, it would still only be in effect between those countries, leaving out the vast majority of the approximately two hundred and seventy nations of the world.

            At least Kurjatko suggests a means of paying for her title system. She proposes that art owners should pay a fee to register their artwork with the Unidroit database, or be precluded from making claims under the Convention, which is not likely to be endorsed by art owners. She also suggests the drastic step of shrinking the definition of “stolen property” to only that previously in the possession of a museum or an individual so that a country itself can’t claim the return of an item looted from a previously undiscovered tomb, for example. This would surely keep the proposal from being considered unless provisions were made elsewhere to protect this sort of cultural property.

            While suggestions of changing the worldwide agreements sound good on paper, the likelihood of creating laws that almost every country will agree with and be able to enforce is virtually nil. The current laws of each country about stolen property seem to be fairly adequate, if only art theft could be detected and prevented more easily. The checking of provenance over the sources available today on the Internet is easy and should be considered a part of “due diligence” for every prospective buyer, since the person most capable of bearing the burden of searching the Internet is a buyer prepared to pay large sums of money for an artwork.

 

Re-Analysis of Issue

           

Sources on the Internet

Since John Conklin wrote his book on art crime, the Internet has expanded greatly.[35] There are now a prolific number of sites run both by police organizations, security companies, and concerned groups or individuals.[36] Further, more organizations are working together to publicize and notify dealers, museums, and auction houses when thefts occur. If John Conklin were researching what could be discovered publicly about art theft today, he surely would have more sources.

            In the course of my research, I turned to Internet search engines as well as the databases of Westlaw and Lexis-Nexis. For my Internet search I chose Google.com, a “smart” search engine that assists by ranking sites in part by how many hits they receive, and other factors that attempt to bring a searcher the sites most relevant to the topic they search on. While a search on “stolen art” brought up over 77,000 hits, the first on that list was the FBI’s National Stolen Art File (NSAF).[37]

            While fourteen art theft notices are posted on the FBI’s site, the actual database that the FBI maintains is not open to the general public without special permission. It is available to law enforcement officials working a case, but there is no unit within the FBI which specializes in art crime alone. The FBI has authority over art crime when the art moves from one state to another or if the art was stolen from a museum, because Congress designated this a federal offense.[38]

            The NSAF itself contains a link to another site on my search list, the INTERPOL (International Police Organization)[39] stolen cultural property home page.[40] This page does include more stolen art and links. It is possible to search the site’s list of stolen artworks and view images along with a few details. So, if I were a purchaser who idly wondered whether a Van Gogh watercolor on eBay[41] was stolen, I could go to this site and look under the artist’s name to see that it was not (although this list is by no means comprehensive). Interpol also offers a CD of stolen art to the general public, with bimonthly updates included in the price. There are currently about 14,000 listed artworks on the CD. 

            Many governments have their own websites dedicated to stolen art, and some police departments include a section on it within their main web page.[42] Italy has perhaps the largest police force dedicated to solving art crimes at 150 people.[43]

Its website, http://www.carabinieri.it , contains searchable images, but as should be expected, is in Italian, limiting those who don’t speak the language to navigate by trial and error.

            One of the best (English-language) websites I examined is that of the Los Angeles police force.[44] It includes information about the setup of their art theft detail, past theft information, including images, and interesting stories about crimes they have solved. Contact information for the LAPD is also given. The LAPD publishes an alert about stolen artworks that it distributes to dealers throughout California and copies are on its site as well.

            Private databases also exist,[45] the best known being that of the Art Loss Register (ALR), a private firm based in the United Kingdom, with offices in New York and London. The ALR was started in part by IFAR and other major stockholders include art insurance company AXA Nordstern and the auction houses Christie’s and Sotheby’s. The ALR database is available to search free of charge to any police or customs official, and the FBI has a copy of the database at its headquarters. Requests from law enforcement result in thirty-one percent of the ALR’s recoveries.[46]

The ALR database is the largest in the world, with over 100,000 items listed.[47] The website does not currently allow for searching over the Internet, but the ALR hopes to have that ability in the near future.[48] The ALR doesn’t actively attempt to find stolen artworks itself. It merely catalogues them. When a piece is stolen, the owner calls the ALR and gives the company a fee to register the work. If others wishing to purchase the stolen work ask the ALR to check its provenance, then a match is made and the item is recovered, earning the ALR a percentage of the value of the work.[49] Insurance companies’ subscriptions are the ALR’s main source of income, and New York’s Metropolitan Museum of Art has checked the ALR’s database for every purchase over $50,000 since 1996.

The prominence of the ALR in the field of provenance checking makes the service almost a complete solution to many problems. While law can’t require it, especially as a private for-profit service, it is well-known in the art world and any reputable dealer would search there when purchasing an item with questionable provenance. The concept of due diligence includes the idea of following industry standards, and since there are as yet no serious competitors with the ALR’s large database, checking with the ALR may come to be synonymous with due diligence.

However, it is not a total solution. Not everyone who owns expensive art can afford to pay the contingency fee, which is between ten and fifteen percent of a piece’s value. This means that an owner who is not wealthy would have to sell their art in order to pay the fee if it is ever recovered. Further, many churches or temples, unused to thinking of their possessions as “art” or persons in third-world countries may not know of the ALR’s existence and would also be unable to afford a contingency fee. But, for major museums, auction houses and galleries, checking the ALR’s database is a very good start.

Another very influential site and service on the Internet is the Museum Security Network, started by Ton Cremers of the Netherlands.[50] A website with two hundred and fifty pages of information about art theft and museum security, it also has an electronic mailing list with about one thousand subscribers. Through this mailing list, museum conservators, gallery owners, security experts (and even law students) can discuss recent events, post news clippings and alert a world-wide community about an art theft.[51] Any person with an interest in art can get help quickly from experts by virtue of this free service, supported by the Netherlands Museum Association and by security company Mosler, Inc.

 

 

Internet Statistics

With all the information available on the Internet and all the searchable databases, one would think that the art world had turned into a pretty small place, recognition-wise. Since bona fide purchasers ought to know to check provenance, it would seem reasonable that thieves would not want to steal high-price items that could easily be identified as stolen. It’s possible that they would have to do more work in selling a stolen piece of art, such as forging bills of sale and etc. to fool an alert buyer or establishing a believable façade so that a buyer will accept their (no-good) warranty.

Unfortunately, there is simply no way to check this hypothesis for certain. The following table (fig.1) shows what information was available to me when I limited my search to art stolen between January 1, 2000, and April 1, 2000 on the Westlaw.com database for all news sources. While other information turned up on the Internet as I researched more specialized sources like the Museum Security Network, this table represents what would be available to the general public who searched regular news outlets for information.

            There is no apparent trend in the thefts. Four of the thefts were of items that would be highly recognizable (the

 

 

Figure 1

 

dagger, the Cézanne, some of the 70 paintings from the storage facility, and the Montreal thefts). The majority seem to be thefts that had to be planned in advance, in particular the

Cézanne theft, the temple sculpture, the weekend looting of a Provo, Utah art gallery, and the teams of burglars looting Montreal homes or that which emptied a Northampton storage facility.

I also searched major newspapers (one each in New York, Paris, London, and Los Angeles) for any articles containing the terms “stolen art,” “recovery,” and “Internet” over the last five years. Only one article about the Internet’s use for stolen art recovery was returned, a piece about the Art Loss Register in the May 16, 1999 New York Times.[52] It certainly wasn’t enough to create statistics with, and it didn’t even show the existence of several cases that I was aware of. For example, one of the LAPD’s full-time art theft detail members, Donald Hrycyk, informed me that in 1999, the detail recovered four pieces of art by using the Internet.[53]

     Official statistics don’t assist much, either. Donald Hrycyk notes that “The FBI crime reporting statistics do not capture this data.”[54] Indeed, the FBI’s statistics on property crimes are sorted by the value of the item stolen and lump everything worth more than two hundred and fifty dollars into one category. Australian criminologist Kenneth Polk states, “You will not find anything anywhere in the way of good statistics…as I have said in some of my writings, we are dealing with a problem that is entirely ‘dark figure’…there is nothing in the way of useful information available in any available statistical compilation…”[55]

     Sharon Flescher, the Executive Director of IFAR, agrees, stating that, “People like to quote statistics, but I don’t know where they get the numbers. IFAR knows more about this [tracking stolen art] than anyone, and we don’t have the numbers.”[56] One of the questions that I posted to the Museum Security Network’s list-serve was whether any of the museum officials on the list would feel comfortable giving any theft information to a confidential source such as the Museum Security Network (or any other) for study. Of the few replies, none were affirmative. Steve Keller, a long-time security consultant and former director of security for the Art Institute of Chicago said that he felt most museum directors and private collectors would never talk publicly about thefts or participate in a survey, even anonymously.[57]

     He states, “I am actively employed by many museums to either (1) hide their thefts from the public, (2) put a positive spin on the loss, or (3) communicate with the thieves with some message that the museums or law enforcement officials want communicated through the press.”[58] This reticence illustrates that John Conklin’s book is still current when it discusses the secrecy that surrounds art crimes, making it all but impossible to form a sound theory about thieves and their motives and methods.

Deterrence

     While most people in the art world that I contacted agreed that the Internet is and will continue to be a powerful tool in the recovery of art, few would say that they felt its resources led to the deterrence of art theft. “[I]nformation is not the same as deterrence. I don’t know that anyone has found a way to prove a one-to-one connection, nor has the incidence of art theft necessarily decreased in the last few years.”[59]

     However, one article I found[60] relies on the spokespersons of AXA Nordstern Art Insurance, the Art Loss Register, and the Council for Prevention of Art Theft (CoPAT), who all agree that thefts of higher priced items of art are decreasing while thefts of less valuable items are increasing. This has kept the rate of theft about the same as in past years. The article also states, “Part of the reason for the decrease in reported art theft has been the increasing wariness of dealers and the widening impact of the various international registers of stolen art and antiques.”[61] But at least in the UK, another possibility for the reduced thefts is the formulation of a national due diligence code created by CoPAT for auctioneers and dealers in art. The code recommends careful scrutiny of any art vendors and their items. This specifically includes verification with the police and stolen art registers.[62] Further, CoPAT publishes a confidential digest distributed to police and the heads of public heritage organizations containing the details of art theft. Therefore, it is difficult to say whether the Internet has had much impact by itself, since many other factors could have contributed to the decrease in high-value item theft.

 

Conclusion

 

     While much has changed in the art world since John Conklin wrote Art Crime in 1994, many factors that contribute to the lack of information about art crime and that hinder solutions to art crime remain. The publicizing of thefts has increased, but concerns for museums’ and owners’ security still keep details from being disseminated widely. This inability (or unwillingness) to compile statistics even by law enforcement officials makes any conclusions about art crime, even those about the actual dollar amount of art theft that occurs yearly, barely fact-based. Unless an organization which is well-known for its integrity takes steps to organize an anonymous study, the real data about art crime may never be known.

     International laws which have attempted to address this problem have fallen far short of their goals, since they are not even applicable to all of the members of the groups passing them. Consensus about what constitutes art and how the laws should be changed may never be achieved. But where governmental actors have failed, private actors are filling in the gaps. By themselves, databases like the Art Loss Register are setting industry standards and forming the basis for modern due diligence in art-purchasing and sales. The community is keeping itself informed and loosely organized through art organizations and electronic forums like the Museum Security Network. In short, the art world is working within the existing laws as best it can, changing what it can within the borders of a specific country and not internationally.

     The trend of police organizations to utilize the Internet both for information dissemination and to search for missing artworks will continue to grow. Most major police groups now have a website of their own and many use them in day to day work. While the proliferation of sites will make searching difficult, the fact that stolen property is for sale on the Internet is making police formulate new approaches and will hopefully inspire them to start compiling more statistics about art theft.

     The Internet has not yet reached its full potential. The availability of information online possibly correlates to the perceived decrease in the theft of well-known art, but this remains unproven, since so many factors are at work in the art world besides the use of the Internet. In time, perhaps the Internet will be the premier place to find missing art, to discuss and change the laws about it, but for now it has only started down that road.