Art as a Commodity

Art is a commodity, despite the delusions, self and other deceptions to the contrary of aesthetes, museum directors, art historians, art teachers and even artists and art dealers themselves. There are few artists who, given the choice, would prefer absinthe and life in a garret to the fame and fortune that critical acclaim bestows. It has always been that way.

Because art is a commodity, it has just as much been the subject of disputation and litigation, as a cargo of corn or a used car. This has been so even in cases of art much less portable than a fine canvas, which can be taken from its stretcher, rolled up, inserted in a cardboard cylinder, and whisked across a border in a suitcase. The Elgin Marbles are a case in point. Value was given for them (whether to the lawful owner or otherwise is debatable) at the time, and their removal from Athens was a public spectacle. Centuries later, Greece maintains its claim to them, conveniently overlooking the fact that had they remained in situ, they would by now have probably been ground into dust, or otherwise sadly and irreparably defaced. The British Museum has proved a good and safe sanctuary for them, as it has for the Rosetta stone and many other fine and valuable relics disregarded by the successors of their creators.

In Australia at present, the media have expanded the controversy attaching to the innocent purchase by the National Gallery of Australia of eleventh- and twelfth-century Indian Shiva bronzes, probably stolen or, at least, illegally exported to this country. It may be easier to accept—certainly I would find it easier to accept—that there can never be unimpeachable title for the recipient of stolen goods, than is the case with respect to items sold, granted or given, however naively, centuries before, and now the subject of a new-found cultural revisionism. Almost all countries now have legislation restricting the export of items of cultural or artistic significance.

The leading Australian case under the relevant Commonwealth legislation (Protection of Moveable Cultural Heritage Act 1986) is Waterhouse v Minister for the Arts and Territories (1993) 43 FCR 175. The article of cultural significance in question was an 1837 oil painting by John Glover, The Bath of Diana, Van Diemen’s Land. Glover had come to Australia to settle when he was an old man and had already had a large measure of success in England. He brought with him a considerable fortune. He continued to paint in Tasmania, where he built a substantial residence and recorded the original landscape, as well as some of the activities of the indigenous inhabitants. The Bath of Diana was, by 1993, a well-known and much admired painting. Indeed, it was said of Glover that he was the first of the European artists to understand how the vegetation of this country differed from the vegetation of Europe. If you look up from the ground into the foliage of almost any eucalypt, you will see the blue sky above, and the landscape in the distance through it, discernments you do not have through the dense foliage of most European trees. Glover understood this first and painted the ubiquitous eucalypt accordingly.

The Bath of Diana was owned by a member of the Waterhouse family, better known perhaps for their bookmaking than for aesthetic sensibility. The painting was sold to an overseas buyer. It was rumoured at the time that a famous pop star or composer was the true and ultimate purchaser. In any event, the painting could be taken from the country only if an approval under the relevant legislation for its export were granted by the minister. Approval was refused, and ultimately the question whether it could be exported came via the Administrative Appeals Tribunal to the Full Federal Court. The named buyer, for $1.7 million, was an art dealer in Los Angeles acting probably on behalf of a client. In their reasons for judgment, the Full Court (Black CJ, Lockhart and Gummow JJ) referred to English cases decided under similar legislation there and in New Zealand.

The precise questions posed for the court were whether the minister’s decision constituted an acquisition for the purposes of s 51 (xxxi) of the Constitution, and if it did, whether the acquisition was on just terms. The applicant’s argument was that the Commonwealth had acquired the right, a valuable right, to ensure that the painting remained in the Commonwealth. The facts of the case provided a clear example of the proposition that in addition to its other qualities, a great or rare work of art is an international commodity.

It will be recalled that the Tasmanian Dam Case had been decided some ten years earlier. It would be raking over old embers for me to express my emphatic disagreement with the outcome of the case on the acquisition point, and my preference for the clearly correct dissent on that issue of Deane J. The majority acknowledged the correctness of the entirely orthodox proposition that in order for there to be an acquisition by the Commonwealth, the Commonwealth must acquire an interest in property, however slight and insubstantial. But then they went on to hold that the effective control that the Tasmanian Dam legislation afforded the Commonwealth did not amount to an acquisition. Deane J’s answer to that was that, what the Commonwealth acquired in Tasmania was a valuable restrictive covenant, a right to determine the use of a substantial tract of Tasmania, whether by sterilising or diminishing it, or otherwise. By parity of reasoning, the Commonwealth in the case of a cultural object meeting the criteria of the legislation, acquires a (statutory) restrictive covenant precluding its sale outside this country and therefore reduces and controls its value. Obviously, the more restricted any market is, the less valuable an object for sale in it will be.

My personal view is that legislation in the United Kingdom and elsewhere, which prevents the sale of a relevant item to a buyer outside the country, only if a buyer for it cannot be found from the exporting country at the bona fide sale price within a specific time sufficient to enable the money to be raised by an institution, or otherwise, for its purchase, is preferable.

A year or so ago, I saw an exhibition at the National Gallery in London of fakes. Several features of that exhibition were intriguing. It was remarkable how some of the works had been attributed, de-attributed or denounced and re-attributed down through the centuries. Sometimes, the fakes were displayed beside signature works of the artists who were being imitated. It was easy to see how even a keen and educated eye might have formed a different view of the authenticity or otherwise of the fake. You will see in London a major extension of a public museum called the Duveen Gallery. Joseph Duveen was the most famous art dealer of the twentieth century, with commercial galleries in London, Paris and New York. He was the dealer to whom the nineteenth- and early twentieth-century magnates of the United States turned when they built their grand houses, and set out to adorn them with antiques, artefacts and fine art. It was said that Duveen “purchased” his title by making the gift of the gallery, and perhaps providing other gifts when Ramsay MacDonald was the Prime Minister.

Many, many hundreds, perhaps thousands of works, from medieval to modern, passed through Duveen’s hands. Few acknowledged Renaissance painters signed their works. Wily ruthless American millionaires hesitated to pay hundreds of thousands of dollars on Duveen’s word alone. His practice was to seek a certificate of authenticity from the American scholar Bernard Berenson, who had studied at Harvard and took up residence outside Siena. He became the acknowledged expert on Renaissance art. After he died his executors found among his papers a more accurate set of accounts than those he used for his apparent business dealings with Duveen. The second set of books revealed that Duveen regularly paid him a secret commission for authentication. How many, it may be asked, of the best paintings of the past gracing the museums of North America, can be guaranteed to be under the hands of the artists to whom they are attributed? The problem of uncertainty is compounded by the fact that most great artists had their own workshops with apprentices, and, as their fame increased, there grew up around them schools of followers highly adept and willing to imitate the successful.

I came close to some personal litigation once in relation to a painting. In the early 1970s I had bought a picture in London, a small oil sketch, a cloud study, as a probable Constable. I decided to sell it at an auction a couple of decades later. It was first catalogued as a Constable, and then denounced as such. Had it simply been offered as a school of, or a possible Constable, its prospects would have been better than a denounced one. I challenged the denunciation. Fortunately, as it turned out, my challenge was emphatic and in writing. It was rejected. The painting sold for less than $1000. A year later, an acquaintance of mine in the art world drew my attention to a catalogue of another auction house for a sale of important English paintings in London. There, in all its glory, was my Constable, fully authenticated by the leading Constable expert in the world and with a long provenance, omitting reference only to my ownership. The painting sold in London for about $20,000.

During the 1930s and the Second World War, the Nazis indulged in a ruthless and sometimes covert form of extortion. Wealthy Jewish people were their special target. Many were connoisseurs. Their works of art were routinely seized. Goering was a major culprit. It was little known (until the recent film The Monuments Men) that the United States recruited a special unit of art experts to follow closely behind the allies as they advanced towards Berlin in order to find and protect art treasures that had been seized and hidden by the Germans. In 2009, the United Kingdom enacted the Holocaust (Return of Cultural Objects) Act. That Act makes provision for an advisory panel called the Spoliation Panel, chaired usually by a High Court judge, to make recommendations and to advise with respect to the return of art stolen or extorted during the Nazi era defined as the period from 1938 to 1945.

The powers of the Spoliation Panel are limited. It considers claims in respect of objects in the possession of public collections and makes recommendations based upon relevant circumstances as to whether those public collections should relinquish extorted works to the successors of those from whom they have been taken, and also upon what terms that might happen. I became interested in this topic when I read of the Spoliation Panel in Apollo art magazine some years ago, sufficiently so to make a case before it a central pivot of a plot in my novel The Russian Master. The Panel proceeds upon the basis of the principles established by the Washington Conference on Holocaust-Era Assets in 1998.

Two recent cases before the Panel are worth recounting. One related to drawings in the possession of the Smith Courtauld Trust, the other to fourteen clocks in the possession of the British Museum. The claimants, descendants of the Nazi-era Jewish owners, failed on the narrow ground in each case that the relevant sales in 1939 had not been made at an undervalue, although causation by way of Nazi persecution was a factor in the making of the sale. A similar conclusion was reached on like grounds in respect of the drawings.

Unsurprisingly, the standards of proof are relaxed, and sympathetic views on causation are readily taken. What is surprising however is how much circumstantial evidence can still be found. Many archives, expert appraisals, catalogues and art relics, all valuable sources, survived the war. Most of the works have far increased in value since the Nazi-era owners parted with them, in excess in most cases of the inflated value of currency. Good art can be a good investment.

I should not conclude this rather diffuse paper without acknowledging the depredations, contributions almost, of some of the most successful forgers of the twentieth century, Hans van Meegeren and Tom Keating. Both were charged, van Meegeren immediately after the Second World War and Keating in the 1980s. Van Meegeren was convicted by a Dutch court, not of the more serious offence of having sold a Dutch National Treasure to the Nazis, but rather, of forgery. His claim that he had forged this treasure and other works was met with disbelief, dispelled only when, in the presence of a Commission of Experts, he painted a new Vermeer. The case against Keating in London commenced but never proceeded to verdict. Conspiracy theorists in the art world at the time claimed that there would have been too many eggs on too many auctioneers’, dealers’ and curators’ faces had it emerged how many paintings which had passed through dealers and auction houses to galleries, under the apparent hand of masters, owed their creation to Keating.

The current tendency in critical art circles is to mock these two forgers and to say of them that their forgeries were obvious and should not have gone undetected. I am less certain of that. The attributions and de-attributions, the importance of a name, the commodification of art, the lure of a desirable object and human avarice all tell us that what has occurred in the past will surely happen again.

Curiously, most forgers seem to have suffered lesser penalties when they have been caught than, for example, other white-collar criminals. Two examples will suffice. Brigido Lara, a Mexican, effectively reinvented an entire seventh- to tenth-century Indian culture. He produced innumerable ceramics for sale all over North America, including to knowledgeable museum curators. He was charged in 1974 with illegally smuggling heritage treasures out of Mexico. His defence, like Van Meegeren’s, was that the objects were fakes, although he preferred to call them originals and not heritage. Sentenced to ten years, he served only seven months. On release he was employed as a restorer and maker of replicas by a university, with the blessing of the National Museum of Mexico.

The Greenhalgh family lived in Bolton, Lancashire, all ostensibly on social security for many years. Their sixteen-year-old son Shaun was an accomplished painter and sculptor in stone. Like Keating, he did not qualify for art school. An early effort was a fake Gauguin sculpture for which the family contrived a convincing provenance, so much so that it was embraced for sale by Sotheby’s. Antiquities, stone sculptures, watercolours and art were all within his range. His mother Olive was the person who usually approached the auction houses and the museums. The family’s activities were brought to light when an astute curator at the British Museum noticed an anachronism in the harness of an Assyrian stone horse group offered by Olive. Shaun, then in early middle age, was sentenced to four years and eight months. His parents, in their eighties, were given suspended sentences. It is speculated that more than 3000 objects were produced in the family workshop or, more aptly perhaps, family studio.

Let me suggest possible reasons for these seemingly disproportionately light sentences or terms of imprisonment actually served. The art establishment, artists, curators, art critics and dealers have a reputation, often deserved, for being precious and arrogant. The people defrauded tend to be such people, or people who have acquired great wealth quickly, art being merely, for some of them, a necessary accessory of that wealth. Art, especially what is fashionable, appears to many people to be overvalued relative to life’s necessities.

It is not always easy to distinguish a well-executed forgery, a watercolour perhaps, on eighteenth-century paper, from an original, inevitably faded and discoloured by time. If it is good enough to be indistinguishable, then why, some people would ask, should it be worth less? The truth is that if at first the novel is resisted but soon extolled by the market, many in the general community are sceptical. To do something differently is not necessarily to do it better.

Great forgers do attract respect. They have in effect beaten the art establishment at its own game.