May 8, 2009

In The Best Interests of Art

ARCA is pleased to present a series of researched editorials written by students of ARCA Director Noah Charney at Yale University. These students were enrolled in Charney's seminar on art crime in the Spring of 2009.

In The Best Interests of the Art
by Joel Knopf

The Elegan Marbles and the Machu Pichu sculptures at Yale pose vexing questions of how to determine art’s rightful owner, after it has belonged to many owners in many countries through many conflicts over many years. We suggested several criteria that could help determine art’s ultimate owner: its history of lawful ownership, the decision of an neutral international body, or “the best interests of the art.” I want to explore what those interests could be, using “the best interests of the child” standard in family law as a suggestive example.

When a court determines which divorcing parent should get custody of a child, or when a child should be moved from abusive parents to foster parents, it often considers which parent would better serve “the best interests of the child.” Though this standard means different things in different states, courts often consider versions of the following factors:

• The importance of family integrity and preference for avoiding removal of the child from his/her home 
• The health, safety, and/or protection of the child 
• The importance of timely permanency decisions 
• The assurance that a child removed from his/her home will be given care, treatment, and guidance that will assist the child in developing into a self-sufficient adult 
• The emotional ties and relationship between the child and his or her parents, siblings, family and household members, or other caregivers
• The capacity of the parents to provide a safe home and adequate food, clothing, and medical care  

These factors suggest what decision-makers should consider when determine who should get ownership of art. Obviously, paintings are not children; art has no interests of its own. But people affiliated with the art have interests in the art. The current owner of the art has an interest that the art not be removed from its collection. Current and past owners of the art have an interest that art be safe: that it is minimally vulnerable to weather, fire, theft, and vandalism. These parties have an interest that the art be in well cared for, which means it is cleaned, preserved, and protected as much as possible from the decaying effects of time. Artists have an interest that art be displayed, marketed, or performed according to their intentions. Society has an interest that the art be accessible to the public, and the owners, if they are museums, have an interest that the art is accessible to scholars. When a country can validly claim that a piece of art constitutes its cultural heritage, that country has an interest in the art being displayed in a place and manner such that citizens of that culture can appreciate the cultural significance of the art. Like the emotional ties and relationship between parent and child, the cultural ties and relationship between a country and a piece of art should count in determining where the art ends up.

A decision-maker should evaluate which potential owner would best satisfy these interests. In what hands will the art be maximally safe, accessible to the public and scholars, displayed as the artist intended, and able to function as a piece of cultural heritage? When these interests conflict – when, for instance, the Machu Pichu sculptures will be safer and more accessible to scholars at Yale, but better be able to serve as cultural heritage in Peru – decision-makers will have to determine which factors are more important. The security of the art should be the most important consideration, since everyone loses if the art is destroyed or vandalized. 

Decision-makers may wish to disregard certain factors in making their decision. In the family law case, Connecticut has said that the socioeconomic status of a parent should not play a role in determining child custody. Similarly, judges may wish to consider a country’s material no more than necessary in determining art’s ultimate owner. Though the wealth of a country influences its ability to protect and display art, it does not affect the significance of the art in that country’s culture. Directing decision-makers not to consider a country’s GDP (except as it relates to safety and security) may avoid charges of paternalism.  

Determining the best interests of the art is complicated. Art has many more owners than children typically have parents, and each of these owners has their own set of interests, which must be weighed against each other in a complicated equation. It is also unclear the extent to which society has an interest in art it does not own, since future generations could benefit from the continued existence of the art even if they do not own it. Despite these complications, the family law standard of “the best interests of the child” begins to suggest factors that will help us determine which potential owner will serve the best interests of the art.

1 comment:


    I find the proposal to apply principles developed in child custody cases to disputes regarding the ownership of looted artefacts, very interesting but also problematic and, in the end, not feasible. (1)

    To compare cultural artefacts with children under any circumstances is itself very disputable. Artworks cannot be compared to children and hence from the very nature of the subjects concerned, the comparison falters. A good judge would try to ascertain the wishes of a child at the centre of marital dispute but we surely cannot ask an art object where it would like to be, Berlin or Benin?

    Custody of children cannot be compared to ownership of artefacts. Parents awarded custody of children do not own them. Children are not the property of their parents whereas artworks are the property of the owners.

    While divorcing parents have, ab initio, equal rights of custody of the children they have both produced, it cannot be said that in disputes over cultural artefacts both sides have equal right to ownership. Usually, one side is accused of stealing or looting what belongs to the other party and has not participated in creating the object. If we consider, for example, the looted Benin artefacts, we cannot say that the British contributed to producing the artefacts even though Neil MacGregor has argued that the bronze came from Europe. (2) When the artefacts were first produced by the Edo, the British were probably not even aware of the existence of the Edo kingdom. Definitely, the Benin artefacts are not part of British culture and do not have in Britain the same respect and veneration they enjoy in Benin, Nigeria.

    Current holders of looted artefacts should not be considered as owners simply because they are in control of the objects. Determination of ownership is the basic question to be answered and we should not prejudice the issue by describing as owners those who have looted cultural objects or are in control of them.

    There are too many basic assumptions in the proposal that are either not true or appropriate.

    Could the first sentence in the proposal stand critical examination? “The Elgin Marbles and the Machu Pichu sculptures at Yale pose vexing questions of how to determine art’s rightful owner, after it has belonged to many owners in many countries through many conflicts over many years.” Have the Parthenon/Elgin Marbles really gone through many hands since they were brought to Britain by Elgin? Are there other countries other that Greece and Britain that are involved in the dispute over the Parthenon/Elgin Marbles?

    Relationships between parties disputing ownership of artefacts cannot in the least be compared to the relationship of divorcing couples.

    Could we, for example, consider the relationship between Britain and Benin as similar to those of a divorcing couple? Should we ignore the fact that the whole dispute between Benin and the United Kingdom was due to the determination of the British to control trade in West Africa? The resistance of the Edo to British hegemonic designs, especially under Oba Ovonramwen, led the British to conclude that control of trade could not be achieved without subjugating the Edo to British imperialist rule and hence the Punitive Expedition of 1897. The invasion enabled the British to loot over 3000 artefacts, some of which they later sold to other Europeans and Americans. In the process, the British killed thousands of persons, including innocent women and children, and deposed the king whom they sent into exile.(3) These hostile and aggressive actions clearly preclude any possibility of comparing Anglo-Benin relationships to those of divorcing couples, even though one often has the impression that divorcing couples are at war.

    One only has to re-read some of the comparisons made in the proposal to realize how invalid they are:

    “Like the emotional ties and relationship between parent and child, the cultural ties and relationship between a country and a piece of art should count in determining where the art ends up.”

    "Society has an interest that the art be accessible to the public, and the owners.

    Which society are we thinking about here? British society in London where the Parthenon/Elgin Marbles are now or Greek society in Athens from where they were illegally removed in acts which can only be described as vandalism? (4)

    From these few comments, it becomes clear that principles developed in child custody cases cannot be transposed, modified or not, to cultural property disputes, The parties involved in cultural property disputes cannot be compared to estranged couples. The violence involved in the acquisition of many artefacts, especially those considered as war trophies, makes it impossible to compare family law disputes with cultural property law disputes.

    This proposal, as well as similar others, fails because of the apparent unwillingness or inability of many in the West to accept that the moral precept, “Thou shall not steal,” also applies to cultural objects. Many have placed the value of cultural objects above all ethical values. No wonder. We have persons in important and respectable institutions arguing that such stolen or looted objects must be kept by the present holders. They speak and write as if
    elementary moral principles were not part of Western culture. They try to defend the indefensible plunders of the past colonial and imperialistic ages as if they were the best things that ever happened to humankind. The result of all this is that many persons are hesitant to condemn the plunder and stealing of cultural objects. It is no surprise then that many students in the West consider as benefactors of humankind those whose activities, often involving great violence, brought outstanding cultural objects to the museums in London, Paris, Berlin Chicago, New York, Madrid, Lisbon and other Western cities.

    This inability or unwillingness to consider the morality involved in disputes leads to over-valuing the need to protect the interests of current holders of looted artefacts. It is this false estimation of such a need that leads to thinking that principles developed in child custody disputes could be transposed to disputes regarding ownership of artefacts. The high value attached to protection of children is seen as offering a possible solution to disputes concerning another high or even higher value, namely the protection of the interests of holders of looted art. A properly examined value system would not allow such a comparison or transposition.

    Another consequence of the confusion of values and the exaggeration of the importance of protecting present holders of looted artefacts is the rather shameful position of some legal systems towards the restitution of Nazi-looted artworks. Apparently, some consider the need to protect the interests of present holders of Nazi-looted art more important than the interest of the deprived owners who almost invariably suffered Nazi atrocities. The British parliament will soon be considering legislation which would make it possible to return to their proper owners Nazi-looted artworks now hanging in the British Museum and other public galleries. (5) It makes one wonder why a world war had to be fought if sixty-five years later some legal systems confirm, directly or indirectly, the legitimacy of Nazi-looting. A proper consideration of the values and needs of a free, democratic society would have led to restitution of Nazi-looted objects without delay.

    False prophets, professors and museum directors who approve the acquisition of cultural artefacts by all means, have influenced many art students in their thoughts.

    Kwame Opoku, 11 May 2009.


    1. ARCA, “In the Best Interests of Art”
    2. Kwame Opoku: “When will everybody finally accept that the British Museum is a British Institution? Comments on a lecture by Neil MacGregor .

    3. Kwame Opoku, “Formal Demand for the Return of Benin Bronzes: Will: Western museum now return some of the looted/stolen Benin Artefacts?” http://www.modernghana.coml

    4. Lord Elgin’s name has become synonymous with vandalism.
    “The practice of plundering artifacts from their original setting is sometimes referred to as 'elginism', while the claim, sometimes used by looters and collectors, that they are trying to rescue the artifacts they recover has become known as the "Elgin Excuse". Wikipedia,

    What is elginism? An act of cultural vandalism.
    elginism) n. 1801. An act of cultural vandalism

    Elginism (ĕl’gĭnĭz’əm) n. 1801. [f. the name of Thomas Bruce, 7th Earl of Elgin (1766-1841); see —ISM. Cf. Fr. elginisme & Sp. elginismo.]

    An act of cultural vandalism. A term coined by the destructive actions of Lord Elgin who illegally transported the Parthenon Marbles from Greece to London between 1801 and 1805. Now also applies to other cultural objects. Usually refers to artefacts taken from poorer nations to richer ones.

    It has a profound negative effect on the art world because many artefacts are destroyed when they are torn out of their cultural & spatial context. Due to this, scholars are unable to retrieve valuable historical information because they can only deal with fragmentary remains instead of a complete unified object. Decontextualised artefacts that end up in a museum or gallery are often given the name of the person who perpetrated their removal from their original setting (see Elgin Marbles).

    The French use the term elginisme to describe the practice of stealing antique fittings from old houses.

    The act of elginism has been going on for thousands of years, however the Elgin Marbles are now considered to be the classic case of elginism.

    Christopher Hitchens, The Parthenon Marbles, Verso, London, 2008, pp. 17-18.:
    “The Disdar, who beheld the mischief done to the building, took his pipe out of his mouth, dropped a tear, and in a supplicating tone of voice said to Lusieri, It is finished”.

    Mary Beard, The Parthenon, Profile Books, London, 2004, p. 88:

    The one clear fact about Elgin, interventions is that he did not ransack an “archaeological site” in any sense that we would recognise. He removed, more systematically-indeed more ruthlessly-than any of his predecessors, surviving sculptures of a precious remnant of classical antiquity that was standing (just about) in the middle of a rough-and-ready military base”
    5. “UK ministers planning to return art looted by Nazis to owners”,
    “Plan for art looted by Nazis to be returned d to owners”,
    According to Dr. Jeanette Greenfield, Elgin’s men did in peacetime what would not have been accepted in war time. She cites the eminent jurist, Professor Charles de Visscher in support:
    “Despite the reasons given by Lord Elgin to justify his action it was severely judged even in England. It is very doubtful however, whether the arguments put forth can actually justify the irreparable damage resulting from his action. The fact is that the principle of the unity and integrity of a monument of such extraordinary and historic value clearly outweighs any other consideration here”. Greenfield, The Return of Cultural Treasures, Cambridge, 2007, pp. 81-82.