Institute of Art & Law Study Forum – virtual event – 6 February 2021

I am looking forward to this all day event on Saturday, as so much has happened since December 2020.

One of the questions to which I was seeking an answer, is whether the UK is now outside the restitution scheme of the EC Directive on the Return of Cultural Objects 2014, i.e. what was agreed in the BREXIT negotiations? My Tutor has since confirmed that this was actually included in the Trade & Co-operation Agreement in December: so the UK and EU will work towards returning such material through cooperation and assistance, but the civil claim option (Art 6 of the Directive) is no longer possible. This I think, highlights the importance of Cultural Heritage Diplomacy, which I will address in my new book, see: Art & Antiquities Disputes – Carl Islam

If you are wondering what the connection is (and there are many), between contentious probate disputes and the Art world, consider the following claim made against Sotheby’s for a ‘sleeper’ (i.e. work of art that is unrecognized, whose true nature has not yet been revealed and is ’dormant’). Ernest Onians, a British businessman and art collector, bought a painting at a country house auction in the 1940s which he stored in a chicken shed. He thought it was the ‘The sack of Carthage’ by the Italian artist Pietro Testa (1611-1650). Following his death, the painting was presented to Sotheby’s, by which time it was covered by a thick layer of dust and dirt, but was otherwise in good condition. The auction house offered the painting for sale attributing it to Pietro Testa with an estimate price range of £10K-15K. At the auction the painting reached a hammer price of £155K. Leading art historian Denis Mahon advised the winning gallery that the auction house had potentially misattributed the painting as it might be a work by the French master Nicholas Poussin (1594 to 1665). After the sale the painting underwent restoration for two years after which Mahon and the director of the Louvre Museum, Pierre Rosenberg, confirmed that the painting was indeed by Poussin and once owned by the Cardinal Richelieu. In 1998, the gallery sold the painting under its accurate attribution title, ‘The destruction and the sack of the temple of Jerusalem’ to the philanthropist Jacob Rothschild and the Rothschild Foundation for £4.5 million. Dismayed by the significant undervaluation, Onians’ heirs brought suit against Sotheby’s, which the parties ultimately settled for an undisclosed amount. Please note that nearly all such cases settle in negotiation or through mediation. The difference between £4.5 million and £155K = £4,345,000.

‘Upon consignment, an in-house specialist or external expert appraises each lot in order to generate a description for the sale catalogue. In appraising an art object, the expert identifies attributes, namely its creator or the respective place of origin or discovery, the date or period of creation and provenance. The final result of that assessment is expressed in the art object’s attribution. When a sleeper is offered at auction, the expert has failed to correctly determine the valuable attribution of the art object. As a result the art object is sold for a considerably underestimated price. [In other words a sleeper is] an artwork or antique that has been undervalued and mislabelled due to an expert oversight and consequently has undersold at auction. The auction house’s misattribution is printed in the sale catalogue as well as displayed on its website, communicated to potential clients and to those attending the sale. Accordingly, the art object is introduced into the public art market under a wrong label.’ The sale of misattributed artworks and antiques at auction by Anne Laure Bandle (2016).

Sleepers are often Old Master drawings and paintings. Sleepers are often Old Master drawings and paintings. Determining the attribution of Old Masters is challenging, because they are often unsigned. Authentification is also difficult, because at the time of creation, pupils and assistants may have been working closely with the Master painter.

An example of the importance of properly dating consigned antiques is a jug given an estimated price range of £100-£200 by a regional auction house, which was sold to an anonymous buyer for £220K, and following cancellation of the sale, was consigned at Christie’s and sold for its new estimate of £3 million. The regional auction house had not spotted that the crystal ewer originated from the early high Middle Ages. Christie’s described it as ‘a carved rock crystal ewer made for the court of the Fatimid rulers of Cairo in the late 10th or early eleventh century.’ ‘Holy grail’ jug they valued at just £100 is sold for £3m | Daily Mail Online

I am currently studying PIL in relation to misattribution claims as part of my diploma course.

Speakers and topics:

  • Dr Donna Yates (Associate Professor, Maastricht University), ‘Sotheby’s and the stolen statue: The normalisation of deviance in antiquities sales’
  • Dr Andrea Wallace (Senior Lecturer, Exeter University), ‘Article 14 of the Copyright in the Digital Single Market Directive and new questions around digital heritage collections’
  • Dr Kristian Jensen (former Head of Collections and Curation, British Library), ‘The British Library’s return of three stolen charters to Greece’
  • Azmina Jasani (Partner, Constantine Cannon LLP), ‘Covid, force majeure and the art market’
  • Rudy Capildeo (Partner, Charles Russell Speechlys LLP), ‘Brexit and the art market’
  • Tim Maxwell (Partner, Charles Russell Speechlys LLP), ‘The recent “business interruption” insurance case at the UK Supreme Court’

 See: Next IAL Study Forum – virtual event – 6 February 2021 | Institute of Art and Law