Legal Eagle

Picture this scene: museum staff at an internationally acclaimed institution begin an exhaustive examination of locked vaults and storage rooms in a former palace to conduct what they expect will be a routine audit of the collection. As the inspection labors on, the curator of Russian art from the Middle Ages and 19th century suddenly drops dead. Following a brief pause, the audit continues, resulting in the horrific discovery that 221 objects from the collection are missing. Five million dollars worth of jewels and enamels – stolen from a location supposedly secured from all but a trusted few. Is this the imaginary setting of the opening chapter to The Da Vinci Code II? No, it’s the Hermitage Museum in St. Petersburg, Russia, the repository of the country’s famed art collection – and it’s anything but a fictional account.

Earlier this month, the museum publicly announced its losses (see Aug. 16 Antique Trader). Some experts opine that the losses may be as great as $100 million. Reading the announcement, I reflected on the FBI’s statistics indicating approximately 80 percent of theft from museums is committed by insiders, individuals described by FBI Art Crime Team Senior Investigator Robert Wittman as having “the keys to the kingdom.”

Insider theft, at least for some of the missing objects, seems to be the case once again. As this column was being written, Russian police announced the arrest of two men, including the husband of the deceased curator. The Hermitage and police are now exploring their suspects’ contacts and business associates in an attempt to recover treasures most likely either sold to antique dealers, brokers and collectors, or, for those objects too hot to handle, sold to disreputable collectors or stored to languish for years before they are trafficked.

In July 2000, Special Agent Wittman and I toured the Hermitage with a group of Russian police dedicated to preventing art theft. We were in St. Petersburg to assist in the training of law enforcement. The attendees were firm in their commitment, but their obstacles were great. The dismantling of the Soviet regime and its bureaucracy was followed by economic decline and governmental budget cuts. With unemployment high and social services at risk, funding for protection of the arts was viewed by many as a low priority.
But we in the Western world should not sit back, comfortable in a false belief that our own museums are adequately protected. Worldwide, museum theft is an all-too-common occurrence. In 1990, thieves stole a Rembrandt and other paintings then valued at $200 million from the Isabella Stewart Gardner Museum in Boston. In 1997, the Historical Society of Pennsylvania in Philadelphia, one of the oldest museums in America, learned that 200 objects of our cultural history, valued at $2.5 million, had been stolen. In 2000, the Swedish National Museum had the pride of its collection, a Rembrandt self-portrait and two paintings by Renoir, taken at gunpoint. In 2004, the Edvard Munch masterpiece The Scream was stolen from Oslo’s Munch Museum. And this year, an antique map dealer in New York City pleaded guilty to stealing, over several years, 97 maps that he had removed from ancient books stored in some of the finest libraries in the world. It is not an extreme statement to say that somewhere each day, a museum is the victim of theft.

In 1994, Congress attempted to fill a gap that was present in our criminal laws. There was no federal prohibition against stealing from an American museum. The Theft of Major Artwork statute, also known as the Theft from Museum statute, was enacted. It provided criminal penalties and federal investigations in cases where objects of cultural heritage were stolen from our museums. It also prohibited the receipt, concealment, exhibition and disposal of any object that had been stolen from a museum. Most federal criminal statutes provide for only a five-year statute of limitations within which the government may bring a prosecution. That means that the State must bring charges within five years of the commission of the offense. The museum theft statute extended the statute of limitations to 20 years from the commission of the offense. As a result, we find comfort knowing that the FBI and law enforcement may continue to follow leads and arrest the culpable for an extended period of time.

Yet collectors of antiques and art need to take more than curious note of the increasing tide of museum theft. The art and antique market has been described by a secretary general of the International Council of Museums as the only sector of economic life in which one runs a 90 percent chance of receiving stolen goods. Even if this statement is a bit overcharged, it certainly brings home the magnitude of the problem. It is a problem we all must reflect on, if not for ethical reasons then certainly for financial ones.

“Buyer beware” is most appropriate in the art and antique field. Failure to conduct due diligence in the investigation of an acquired piece and failure to ask the right questions may well give rise to the loss of the artwork when the true owner comes knocking.

Efforts to recover stolen artwork within the United States are bolstered by the common-law rule that a thief never has, and cannot give, good title because he cannot give what he does not have (nemo dat quod non habet). If the goods are stolen or otherwise obtained against the will of the owner, only void title can result. A purchaser cannot acquire good title from a thief, nor can the purchaser convey better title to another than what he has, which is, in essence, void title. If it is later determined that a purchaser has obtained, even unknowingly, stolen property, that object may have to be forfeited by the present owner, and he/she will be left with nothing but financial losses.