For most dealers and collectors, concerns over who owns the title to an object are a relatively new burden. The issue is complex because gaps in provenance are legendary; the ownership records of many works are sketchy and incomplete. Until the last few decades, the art world was small and insular, and many sealed their deals with a simple handshake. Brandishing a battered notebook with handwritten notes on works he purchased from 1958 through the late 1980s, Eisenberg says that when he first started buying antiquities he encountered few, if any, questions about ownership.

Over the centuries, art historians have refined their ways and means to trace a work’s provenance—its trajectory from the hand of the artist to a dealer, collector and, perhaps, museum. Using documents, catalogs, letters and even sales slips, sleuthing historians have uncovered art that might have followed an unusual path—such as those pieces that are stashed away in an attic or handed down to a collector’s offspring with little fanfare. Provenance comes into play when there are disputes about a work’s authenticity, attribution or legal title.

Raiders of the Lost Art
Over the past few years, however, the issue of artwork title has taken on new resonance and ignited serious debate. Perhaps the most incendiary concerns revolve around renewed efforts to locate the rightful owners—or their heirs—of hundreds of thousands of works of art that were lost during World War II, when the Nazis plundered Europe’s museums and private collections. An heir who can prove that a particular work was stolen between 1933 and 1945 has a right to try to reclaim the piece—even if a collector or museum has subsequently purchased the work in good faith.

Some criteria fairly scream “potential problem.” Art that changed hands between 1933 and 1945, or antiquities purported to be from Iraq, Afghanistan, Italy or Greece, merit suspicion until we can prove otherwise.

Another vexing problem is the flood of antiquities hitting the market since the Gulf War and the conflicts in Afghanistan and Iraq. A number of countries—notably China, Iran, Egypt, Greece, Iraq, Italy and Turkey—have instituted aggressive measures to try to curb illegal exports of their cultural patrimony, sometimes referred to as found-in-the-ground laws. Italy has even formed a police unit dedicated to hunting down and stopping the illegal export of artwork. The United States also has imposed stricter rules, based on agreements with these countries and our own criminal laws against violating import restrictions under treaties.

One of the more infamous import restriction cases involved that of Fred Schultz, not just a prominent Manhattan dealer, but a power broker in the antiquities world. He had been the president of the National Association of Dealers in Ancient, Oriental and Primitive Art, and had advised the government on heritage policy. In 2003, Schultz was sent to jail for his role in selling ancient Egyptian antiquities in violation of an Egyptian law declaring state ownership of any antiquity found on that country’s soil after 1983. He is currently serving a 33-month federal prison sentence at Fort Dix, N.J.

In October, the FBI and U.S. marshals appeared at the Chicago home of Marilynn Alsdorf to claim custody of the 1922 Picasso painting Femme en Blanc, now valued at $10 million. Alsdorf and her late husband bought the painting in Paris in 1975 for a mere $375,000. In the wake of a rightful ownership suit, she moved the painting from her house in Los Angeles, a violation of laws against knowingly transporting stolen goods across state lines, and the government has now ordered her to keep it in a safe until the court determines the proper owner. The plaintiff, Thomas Benningson, is the grandson of a German Jewish collector, Carlota Landsberg, who purchased the painting in the 1920s but stored it during the war years at a Paris art dealership that the Nazis allegedly sacked. In general, such cases are often difficult to resolve, says Benningson’s lawyer, Randol Schoenberg of Los Angeles, who specializes in disputes over looted art. “Evidence,” he notes, “can be inconclusive because of gaps in provenance, and nobody wants to make a mistake.”

Whether or not the collector can get his money back from a dealer if the law subsequently seizes an art object is determined by his contract with the dealer. “A reputable dealer should probably absorb the loss,” says William Pearlstein, a lawyer with Golenbock, Eiseman, Assor, Bell & Peskoe in New York, who has served as attorney for many dealers and collectors. (The dealer would most likely pay a refund on what the collector paid, not the present market value.) In the event that a foreign nation—the country of origin—presents a claim that appears frivolous, the dealer might well fight the seizure in court rather than issue a refund; it is the dealer’s reputation at stake, after all. Pearlstein believes collectors will soon insist that dealers furnish a statement explaining the provenance of the work and how they established it.

Peer into the Past
While some collectors secure the services of an independent conservator or an art advisor who knows how to conduct provenance research, collectors themselves can initiate the process by consulting with specialists and asking questions. A skeptical buyer might consult with art historians, museum authorities, researchers and curators who are experts in the field or period in question. Their opinions might not provide definitive answers, but they can shed light on a particular genre or period that can provide clues about a work’s history.

TOP VIEW Countries around the world are tightening laws seeking to keep ancient cultural icons on their home soil—and punishing those they catch with expatriated treasures. Heirs of stolen or looted art are also actively stepping forward to claim what is legally theirs, often surprising unsuspecting collectors. Art devotees must pay careful attention to provenance to ensure the pieces in their collections come to them through legitimate means—and not as the spoils of war.

Some criteria fairly scream “potential problem.” Art that changed hands between 1933 and 1945, or antiquities purported to be from Iraq, Afghanistan, Italy or Greece, merit suspicion until we can prove their provenance. Art that was lost during the Nazi period raises particularly nettlesome issues and strong emotional reactions. Much of the loot—estimates run as high as one-fifth of all of Europe’s art treasures—was taken from the homes of Jewish and other collectors who perished in the Holocaust or who fled Europe with little evidence of ownership of these works to pass on to their heirs, many of whom were also dispersed.

One prominent New York collector, who spoke to Worth on the condition of anonymity, recalls that as far back as the 1960s, she and her husband had their eye on a painting by French fauvist artist Maurice de Vlaminck, but encountered too many unanswered questions about where it had been since World War II. They found a picture of the work in a book with a notation that it had been displayed in a German museum, and the museum director was unable to assure them of a clean history. They passed on the purchase.

In May 2004, Elizabeth Taylor filed suit in a Los Angeles court to gain legal permission to keep a van Gogh painting, View of the Asylum of Saint-Remy, after three heirs of the work’s original owner laid claim to it. They said the van Gogh, which Taylor’s father bought at a London auction in 1963 for $257,600, had been stolen from their great-grandmother by the Nazis. At press time, the case is still pending.

Disputes over Nazi-era art have led to strict due diligence regimes at auction houses. Lucian Smith, head of restitutions at Sotheby’s, says the company instituted Draconian measures in 1997 to “minimize the risk we might accidentally sell a work that had been displaced in the last war.” Sotheby’s effort involves examining catalogs and lists of missing works and Internet databases, as well as the work itself and the frame, customs stamps, exhibition labels or “anything to add to the story about where it might have been between 1933 and 1945,” Smith explains.

Such diligent research can also reward the collector. In 2004, a pair of large, rare bronzes by 18th-century Italian baroque artist Francesco Bertos arrived at Sotheby’s in London, without a provenance. Cautious curators researched the works and found a reference to them in a 1928 magazine as belonging to Vienna’s Baron Alphonse von Rothschild, a victim of Nazi looting. The family believed the bronzes had not been returned. But curators at the Austrian state archives in Vienna uncovered references to the bronzes in lists of confiscated Rothschild property that had been returned to the family, and subsequently sold in 1948. With a clean provenance in hand, Sotheby’s auctioned the bronzes for $648,200.

The Sack of Iraq
The ransacking and looting of the National Museum of Antiquities in Baghdad after the fall of Saddam Hussein—thousands of works are still missing—is only the latest example of the plunder of a developing nation’s cultural heritage. This type of pillaging has occurred for decades, mostly carried out by locals armed with digging tools and metal detectors who comb through archeological sites looking for buried treasure. “Sometimes they strike it rich,” says Malcolm Bell, professor of classical archeology at the University of Virginia. The antiquities are then smuggled over the border, often by middlemen, and taken to dealers in places such as Switzerland or London, Bell explains.

Joseph Braude, a Middle East scholar, was recently convicted for trying to smuggle stolen Mesopotamian relics, specifically seals, from Iraq into the United States. (The American ban on Iraqi imports includes antiquities.) Braude, a graduate of Princeton and Yale universities, is the author of the book, The New Iraq: Rebuilding the Country for Its People, the Middle East, and the World. According to court documents, Braude acquired the treasures in Baghdad from a man known as the king of the black market, who had presented him with a plastic bag filled with a dozen seals. Braude told the court that he had intended to turn over the seals to the proper authorities once he was in the United States.

No one can accurately gauge the extent of the market for such antiquities. Most knowledgeable collectors would shy away from acquiring works that were obviously plundered from Iraq, and the blaze of publicity has underscored the need to report them if they are offered for sale. Yet this has not stopped attempts to export the works. According to a report last year by Marine Colonel Matthew Bogdanos, head of the American investigative team at the Baghdad Museum, almost 800 illegally exported objects had been seized in Britain, Italy, Jordan and the United States. Although the European Union, Switzerland and other countries have tightened laws on illegal exports, business is said to be flourishing, say observers who point to rising prices for Islamic and Middle Eastern art.

Bell, for one, has nothing against collectors who enjoy antiquities and want to own works. But he admits that it pains him to see the consequences of archeological sites being stripped to meet market demands for such objects. “Dealers generally don’t ask questions about objects that don’t have a known provenance, and these objects are certain to have been looted,” he argues.

In one ongoing case, Italian authorities are seeking an indictment against Marion True, curator of antiquities at the J. Paul Getty Museum in Los Angeles, for receiving stolen property and exporting stolen antiquities related to the museum’s 1996 acquisition of the Barbara and Lawrence Fleischman collection of antiquities. Three dealers, an Italian, an American and a Swiss, have also been named in the case. If it goes ahead, Italian prosecutors must prove that True knowingly acquired works that had been illegally exported. Barbara Fleischman has been quoted as saying that all the pieces given to the Getty have documented provenances, with guarantees of legal export and clear title that she has turned over to the museum.

Deborah Gribbon, who resigned in October as director of the Getty Museum, has said that she had no reason to be more concerned about the Fleischman works than any other similar collection. She said the absence of data about its findspots—sites where the objects were found or excavated—is not unusual in antiquities collections.

Museum curators try to determine how objects came into the seller’s possession, looking for red flags such as a period of time when the whereabouts of the work cannot be ascertained. “We are vigilant but open-minded,” Gribbon says. “More often than not, there are gaps because the objects are very old and have been passed through the market with very little documentation.” Investigations continue after a work is acquired, but there are times when the museum gets it wrong and returns an object. In 1999, for example, the Getty restituted a first-century marble head from the Fleischman collection.

“It is possible that almost every major collection contains a work with a problematic provenance,” says Ronald Spencer, a New York attorney who specializes in art law. “Legitimate questions may have existed, and sometimes someone wasn’t quite diligent enough, but one can be only so diligent.”

Spencer is one of a number of art lawyers who believe art title insurance would be a good idea. Until that time, many collectors and dealers might well have to learn to live with at least a bit of nagging uncertainty. Even the most careful aficionados have discovered cracks in provenance only after that fateful knock on their door.

Web Of Excavations
A number of websites offer information that can help a collector find clues as to whether an artwork or antiquity might have been stolen or removed from its homeland illegally. We can establish principles for what to buy based on UNESCO guidelines, international conventions & the laws & regulations of individual countries (www.unesco.org).

The link to UNESCO’s World Heritage Centre (whc.unesco.org) allows collectors to search for research on specific countries. The Art Loss Register (www.artloss.com) is the world’s largest registry of lost or stolen art.  The International Foundation for Art Research (www.ifar.org) has information on its site about stolen objects, law enforcement efforts and court rulings. 

The Central Registry of Information on Looted Cultural Property (www.lootedart.com) is an all-purpose site with links to individual countries and archives.  The Archaeological Institute of America’s site (www.archaeology.org) has magazine features and news about recent excavations.

Additional Information
Artful Dodges
Policing Provenance