Sunday, October 15, 2023

Protecting Cultural Property and Preemption

I have written quite a few times on the subject of Cultural Property including a whole series of Missives last year. If you go to and put cultural property into the search box you can scroll down through them ...

This, however, is from a different angle, the laws on Preemtion. In 1976, about the time I started to get involved in this isssue, a paper was published by Pace Law Faculty Publications called “Protecting America’s Cultural and Historical Patrimony”. The author, James J. Fishman made a case that we should have a law of preemption in this country. He cited the example of an auction where marble bust of Benjamin Franklin by the important French sculptor, Jean-Antoine Houdon, that had been in this country since 1785, went to a European collector outbidding an American who was considering giving it to the the White House House… a noble idea, no doubt. What goes around comes around and the bust bought at the time by the British Railway Pension fund as an investment has found its way back home and is now in the Philadelphia Museum of Art!

Fishman compared this to a small bronze relief of the Virgin and Child by the master Donatello. In that case after the bronze was sold in England to an American art dealer, Eugene Victor Thaw. The British government refused to grant the buyer an export license. This was necessary at the time, for any object worth over £4,000 purchased by a foreigner. The buyer was stuck between the preverbial rock and a hard place! The Donatello was held for the mandatory three months and the Victoria and Albert Museum in London acquired it.

France also has an export law but they have an additional interesting twist when it comes to an auction. Just a few months ago The Gazette Drouot, the publication of the Paris auction building where various auction houses stage their sales, announced the sale, in Versailles, of a very rare intact terracotta by François Anguier (1604-1669). It is the model for a funerary monument for Jacques de Souvré (1600-1670). It sold for the record figure of $2.85 million. The winning bidder, who must have sweated through a heated bidding war, was in for a very unfortunate surprise. From a far off corner he heard that a French museum was preempting the sale!

I have witnessed this outcome more than once sitting in a Paris auction room, when after the hammer dropped, I heard a voice shouting “préempté” and saw the face of the would-be purchaser. The museum curator, in this case from the Louvre, has a maximum figure at which he is authorized to buy the piece. If the object brings that price or lower they pay the price and it is theirs. In this case the Louvre could match the unprecedented figure because the terracotta was the preparatory work for the marble which was already in the museum’s collection.

If you want to know more about preemptions here is an excellent French article.

UNESCO has a list of 3,111 National Cultural Heritage Laws regarding export and import laws many covered by Memoranda of Understanding (MOA). Should you wish to find out all of them

Often these laws exempt from regualtion works of low value or from more recent periods.England and France have become more liberal requiring export licences only for works with higher values. In 2020, after years of lobbying, the Italian authorities, who are the most stringent, relented a little. The rule that only works by living artists or those that died less than 50 years ago could be exported without licensing review was amended to those by artists who died over 70 years ago and were valued under €13,500. Older works of art, regardless of value, still require an export license.

In 2022 the U.S. Congress passed the first law to protect American cultural property and it was in aid of Native Americans. The full title of the new law is the Safeguard Tribal Objects of Patrimony Act (STOP Act). Kate Fitz Gibbon, a lawyer with a specialty in Cultural Property, wrote in “Cultural Property News” “The STOP Act’s stated goal is to prevent the export of objects that were obtained in violation of federal laws, the Native American Graves Repatriation Act (NAGPRA) and the Archaeological Resources Protection Act (ARPA). However, the STOP Act has also been described as giving Native American tribes the power to halt overseas sales of a far broader range of Native American objects, effectively locking them within U.S. borders.”

The new law is meant to protect objects deemed sacred by the tribes from leaving the country. The regulations that must follow remain to be seen and hopefully they will reflect the guidelines and not stifle the legal trade and collecting of Native American art.

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