The Euphronios Krater has now left the Met. While people might be sad to see it go, most see it as an inevitable event, the righting of a wrong. This article looks at the history & future of this & other similar disputes, including that of the Elgin Marbles.

From:
Yale Daily News

Now you see it, now you don’t
cultural property: past, present and future
Summer Banks
Senior Reporter
Published Friday, January 25, 2008

A tight knot of people crowd around one edge of the new Greek and Roman Galleries at the Metropolitan Museum of Art. A woman in beret and riding boots, a father with his young sons and other visitors to the New York museum quietly jockey for position to snatch a last glimpse of a fallen warrior carried to his rest by winged Sleep and Death.

The famous Euphronios krater left its former home at the Met last week after a steady stream of pilgrims paid their respects on Jan. 13, its last day on view. The Greek red-figure vase, which dates to the sixth century B.C., was probably used to mix wine and water — serving as the ancient version of a cocktail shaker — and became part of the permanent collection at the Met in 1972. But the Italian government suspected that the vase had been looted from its soil before the museum acquired it and launched a series of investigations into the krater’s past. In Feb. 2006, after years of research and negative publicity, the Met signed an agreement with the Italians to return the object.

On the krater’s last day, museum staffers who walked by commented that the vase was returning to its rightful owner; parents encouraged their children to take their “last chance to look.” Explaining that she had majored in classics, one woman commented, “I’m actually kind of sad to see it go. It was nice just knowing that it was here.”

But the overwhelming feeling in the hushed gallery was that of reverence — a sense of awe at the 2,500-year-old wine mixer.

The past decade has been a contentious time for museum collections, including those at Yale. In 2005, Peru threatened to sue the University for the return of artifacts excavated from the deserted ancient city of Machu Picchu nearly a century ago, and the two sides reached a tentative agreement in September that acknowledged Peru’s ownership and provided for the return of some of the objects.

But it’s not just antiquities that are subject to scrutiny. A 19th-century painting on loan to the Yale University Art Gallery was the subject of a disputed ownership claim in 2001 because it was suspected of having been looted by the Nazis. These cases are far from isolated; they form part of a continuing dialogue concerning the proper way to assign ownership. The emergence of the Internet has only multiplied the issues involved and is now forcing new answers to a deceptively difficult question: Who owns, and should have access to, a work of art?

The playground mentality

From Peruvian artifacts to a 19th-century painting to “(I Can’t Get No) Satisfaction,” antiquities and works of art have found their way into the University’s collections, museums and students’ computers. In theory, each object has an owner, but determining who should own and control a given artifact, painting or mp3 file is not always simple.

According to Betsy Golden ’01 — a lawyer at the Hartford branch of Thelen Reid Brown Raysman & Steiner and the instructor of this semester’s Branford College seminar, “Art and Antiquities: Law and Ownership” — coming up with definite answers to questions of ownership, which are often personal and intangible, is tricky.

“What makes this both difficult and contentious for people is that there’s such a high emotional factor,” Golden explained. “People have a very visceral connection or response to art even if they can’t explain it. You go back to a playground mentality: ‘But it’s mine!’”

The case of the Machu Picchu artifacts is, in comparison to some disputes, fairly straightforward. Yale explorer Hiram Bingham removed the objects between 1911 and 1915 as part of an archaeological excavation, meaning they were not looted illegally as part of the black-market trade in antiquities. For Patty Gerstenblith, director of the Program in Cultural Heritage Law at DePaul University College of Law, the question is whether Peru gave or loaned the artifacts. “The evidence seems to be that the artifacts were loaned and therefore it is Peru’s right to ask for them back,” she said.

But not everyone agrees the evidence is compelling enough to ascertain Peru’s right to the artifacts. Even if ownership can be established from a legal perspective, the issues underlying the settlement and the way in which it was made are at the center of a heated international debate. The arguments for the proper ownership of antiquities tend to separate into two camps: the cultural-property position argues that objects belong to a nation as part of its heritage and therefore should be kept on its soil; the internationalist position holds that objects belong to humanity as a whole and should be kept where they will be properly preserved and accessible to the public.

Peru’s cultural-property claim for the ownership and return of the artifacts centers on a claim similar to Italy’s for the Euphronios krater: The antiquities are a part of its heritage. Arguing from the opposite camp, Frederick Mocatta ’10 — who wrote a September op-ed for the News on the subject — asserts that modern-day Peruvians have little to no connection with the inhabitants of Machu Picchu and therefore do not have a claim to the objects. Mocatta explained that his internationalist policy of object ownership applies to other antiquities like the Euphronios krater — they should be owned by and kept in museums, where they will better serve all of humanity, he said.

Positing a more moderate view, Paull Randt ’08, a History of Art major, said the present agreement between the University and Peru seemed fair to him, as Peru will retain ownership but the University will keep some artifacts for study, “meaning that scholars can continue to have easy access to works of art to contribute to human heritage and bodies of knowledge.” As an example of a compromise between the two camps, the tentative Machu Picchu agreement highlights a further complication in the nature of ownership: Who owns the work, and who gets to keep it, aren’t always the same.

A continuous hemorrhaging

In 1801, Thomas Bruce, the Earl of Elgin and British envoy to the Ottoman Empire, made an arrangement with the Ottomans to remove — or steal, depending on who you ask — numerous marble sculptures and fragments from the Acropolis in Athens. They have remained in Britain ever since.

In one of the longest-standing antiquities debates, Greece and other critics of the removal have been arguing for the return of the Elgin, or Parthenon, marbles for nearly two centuries. But many who hold an internationalist position are still concerned that the precedent set by their return would have disastrous effects on the universal, “encyclopedic” museums like the British Museum and the Met and, by extension, collective human knowledge.

Golden summarized the contention over the marbles: “Some say that if the British Museum were to agree to return those, it would be the gateway for the emptying of the world’s great museums. On the other hand, there’s a lot of public empathy for the idea of the impoverished source nation going up against a wealthy patriarchal institution.”

Malcolm Bell III, professor of Greek art and archaeology at the University of Virginia — which will return a pair of looted, black-market Greek statues to Italy in February — is quick to point out that a large number of foreign antiquities in American museums are not being disputed. For example, 95 percent of the Italian artifacts in the J. Paul Getty Museum in Los Angeles will remain in the museum’s collection. “It’s not so much a continuous hemorrhaging of American collections,” he said. “The best result after the initial reparations is for the Getty to step back and not buy looted works.”

Bell also predicted that museums will now fill their galleries with traveling exhibitions and long-term loans rather than possibly looted works.

People who hold an internationalist position do not always find loans to be an acceptable compromise. Mocatta said he believes the works should remain where they can receive the best scholarly care and attention rather than be hauled back and forth across the globe.

“They should be housed where they are best cared for and where they can reach the widest audience — whether or not that is in the source geographic area,” he said. “They are not a peripatetic circus.”

But Erica Smith ’08, an East Asian Studies major who is taking Golden’s seminar, said she prefers the system of loans because loans allow objects to be displayed in museums while keeping the title of the work — the legal ownership of the object — with the source nation. Lee Rosenbaum, contributing editor of “Art in America,” echoed Smith’s views in a column, “Make art loans, not war,” published in the Los Angeles Times earlier this week.

The agreement between Peru and Yale is part of a positive step forward for the resolution of ownership disputes, said Susan Scafidi LAW ’93, an associate professor at Southern Methodist University Dedman School of Law and the author of “Who Owns Culture? Appropriation and Authenticity in American Law.”

“These settlements thus represent not only a change in cultural attitudes toward displaying items with questionable provenience but also a willingness of source countries to share their cultural property and participate in educational and research initiatives,” she explained, “so long as their superior titles are recognized and respected.”

Although compromises may preserve the quality of encyclopedic museums, the question of who should actually own the work on display is less simple. The cases brought against museums are rarely clear-cut and are often characterized by the high emotional factor to which Golden refers. Stephen Urice, associate professor at the University of Miami School of Law, explained that in considering the return of a work from its collection, a museum “has to balance its fiduciary obligations to its own community against ethical considerations.” This reality puts museums and universities in the awkward position of finding some definitive answer to various claims on their antiquities — and more recent works — while trying to fulfill their obligations to their patrons and humanity as a whole.

Where should it go?

An impressive waterfall cascades behind a miniscule young girl on a donkey as they cross over a simple stone bridge. The calm composition of this oil painting belies its mildly satirical message — and complicated history.

The true ownership of “Le Grand Pont,” a 19th-century Gustave Courbet on loan to YUAG by Herbert Schaefer, was contested by Eric Weinmann in 2001. He identified it as one of the paintings his mother had owned before fleeing Germany during the Nazi occupation. The eventual settlement resulted in Schaefer’s giving the painting to YUAG. The gallery then returned it to Weinmann on a temporary loan and brought it back to the Kahn building last year.

While that genealogy may sound convoluted, the Weinmann settlement is nothing out of the ordinary, as even strong ideologies like the internationalist or cultural-property positions often fail to provide definite solutions.

According to Golden, each dispute goes back to the intangible nature of what it means to own something, and in practice, decisions often hinge on what seem like small details: “These are such difficult disputes to work with because no one’s saying that one or another of the arguments is faulty,” she said. “You’ve both got excellent points, but it doesn’t tell us where the object should go. That often ends up decided on issues like timing of the lawsuit, or the circumstances of sale.”

YUAG Chief Curator Susan Matheson echoed Golden’s sentiments and noted that each museum has found unique resolutions to its own set of cases. “At this point, there’s no universal answer and it’ll be quite a while before there is one,” she explained.

In order to more effectively determine ownership of Nazi-era works, YUAG participates in the American Association of Museums’ Nazi-Era Provenance Internet Portal and maintains its own Web site detailing the known provenance of its Nazi-era collection. Even if the solutions aren’t easy or distinct, on the Internet each individual painting gets the exposure it needs to find its rightful home, or something like it.

The integrity of the original

While the Internet can be an effective tool for determining ownership of a given object, the increased availability of digital files — image, music and otherwise — has proved problematic for intellectual-property policy. Golden said photographic images of paintings have recently presented copyright law with a new set of worries: Should a photographer have the right to copyright and control an image that is basically a reproduction of a painting?

This question immediately recalls the perpetual hot-button issue that is music downloading: Who should control, and receive profits from, the distribution of recorded music? It is ironic, Smith noted, that the ownership of ancient Inca artifacts is currently a much-debated issue on Yale’s campus while the free trading of huge numbers of mp3s raises few eyebrows.

For her, it’s mostly a matter of money: “I honestly feel a lot less guilty about robbing a multi-million dollar rock artist of a few bucks from a CD sale than robbing the Greek people of a vase essential to the understanding of their heritage.”

Scafidi observed that this change in information distribution over the Internet has begun to alter the way the ownership of intangible objects is perceived: “We arguably have less respect for economic ownership and control but more respect for attribution to the source, whether a creative individual or a culture.”

Cultural and intellectual property intersect at the ever tricky definition of what exactly is an art object and what it means to own it. The Internet is tailor-made for the spread of information across nations, but when that information is the copy of a painting or the recording of a song, should it be considered an artwork and subject to control by its owner? Copyright law has yet to respond effectively to widespread downloading, and it remains to be seen how the laws will shift, if at all.

According to Matheson, there is a general trend toward freer access to information on the Internet. She said YUAG’s educational goals favor this trend. “We, philosophically, would like to be able to show our collections worldwide and freely to everyone,” she said. “That’s what our mission is about,”

But even in an era of increasing reliance on the Internet for copies, representations and recordings, the art object and its proper ownership will retain its place of importance, whether it be a Greek vase or a contemporary installation.

“Nothing that the Internet is going to do is going to change the importance of the original work of art and of its integrity, even if it’s a completely electronically-generated work,” Matheson asserted.