Monday, March 07, 2016

LEGAL Winter 2016

1. NEW YORK - Gagosian Gallery and Qataris wrangle over Picasso sculpture
New York law filings peek into the secretive dealings of private, multi-million-dollar international art sales by Helen Stoilas  |  12 January 2016
Gagosian Gallery and Qataris wrangle over Picasso sculpture
The 1931 bust of Picasso’s mistress Marie-Thérèse is on display in MoMA until 7 February. Two art world power players are going head to head. Tuesday morning, the New York dealer Larry Gagosian sued the agent of the Qatari royal family over the sale of a 1931 sculptural bust of Picasso’s mistress Marie-Thérèse, currently on display in the Museum of Modern Art.
As the New York Times reports, in documents filed in Manhattan federal court, Gagosian says he bought the sculpture in good faith for about $106m from Picasso’s daughter, Maya Widmaier-Picasso, in May 2015. He then sold the work on to a New York collector who planned to take it after MoMA’s blockbuster Picasso Sculpture show closes on 7 February.
But Pelham Holdings, the New York-based art advisory run by Guy Bennett which represents the Qatari family, one of the biggest art collectors in the world, says it had already agreed to buy the work from Widmaier-Picasso in November 2014 for around $42m. According to the court papers, the New York Times reports, Widmaier-Picasso reconsidered and returned the Qataris’ initial payment of $6m after consulting with her daughter, who reminded her of higher offers made through Gagosian.
Pelham sued in Switzerland to enforce the sale and petitioned a French court to seize the work. In November, it filed an application in New York court to force Gagosian and Widmaier-Picasso to reveal the details of the sale. 
Gagosian says that he did not learn about the earlier claim until late October 2015, after he says title of the sculpture had already passed to him. The gallery has asked the judge to “quiet” any challenges to its ownership of the work.

2. LOS ANGELES Dealers Convicted in Antiquities Case; Jonathan Markell Sentenced to Prison Term
Dealers Convicted in Antiquities Case; Jonathan Markell Sentenced to Prison Term
December 25, 2015. Los Angeles antiquities dealer Jonathan Markell, age 70, was sentenced to a year and a half in jail for making false declarations to US Customs when importing antiquities that had been exported without permits from Thailand, Burma, and China. The majority of the antiquities involved were from the Ban Chiang culture of northeastern Thailand, dating from1000 BC to AD 200. The Ban Chiang archaeological site was named a World Heritage site in 1992. The sentencing marked the end of a lengthy and convoluted investigation and prosecution that lasted almost twelve years.
Markell was convicted of conspiring to import goods using false statements, 18 U.S.C. § 371. Both Markell and his wife Cari were also sentenced to probation for their role in providing inflated appraisals for antiquities sold by their Silk Roads gallery, which were then donated to local museums: conspiracy to commit tax evasion, 18 U.S.C. § 371. The inflated appraisals of the antiquities resulted in fraudulent tax write-offs. The Markells plead guilty to the charges after making a written plea agreement earlier in 2015.
In addition, the Markells were ordered to pay the costs of sending hundreds of items seized by federal agents from their Los Angeles home and Silk Road gallery back to the countries of origin, an estimated $25,000, and to pay back-taxes and penalties related to their own donations of artworks.
Court records show that the investigation that led to the prosecution of the Markells began in April 2003. An undercover agent posing as a computer entrepreneur and collector made eight purchases of antiquities from Thailand for the purpose of donation from Jonathan Markell and from Robert Olson, an importer and wholesaler of Thai, Chinese, and Burmese antiquities.
According to the federal investigators, Olson originally used California dealer Joel Malter to prepare his appraisals, and later used Susan Lerer, who was said by Olson to be the girlfriend of late Bowers Museum curator Armand Labbe; Markell prepared his own appraisals using the electronic signature of Roxana Brown, an academic specialist in Thai ceramics and the curator of Bangkok University’s Southeast Asian Ceramics Museum. Roxana Brown died in federal custody in 2008 after being denied medical attention while being held as a person of interest in the Markell-Olson investigation.
According to court records, numerous donations of Ban Chiang materials to southern California museums were arranged with the assistance of the art dealers. The museums named in court papers were the Bowers Museum, Pacific Asia Museum, Mingei Museum, and Los Angeles County Museum of Art (LACMA). Only LACMA was later described by investigators as diligent in ascertaining that donated items were legitimately acquired.
Assistant U.S. Attorney Joseph Johns said that Jonathan Markell put together “packages” of antiquities with an actual value of about $1,500; the “package” typically contained false sales invoices to reflect an earlier sales date and an inflated appraisal that contained a bogus expert’s signature, according to Assistant U.S. Attorney Joseph Johns.
A number of lower-value antiquities would comprise an appraisal “package.” The items donated were always appraised as a group for less than $5000. (Most Ban Chiang artifacts are common smaller bronze or stone tools of little artistic interest or economic value.) The donation of such a $5000 “package” would probably result in an overall tax savings of approximately $500- $750.00 to the donor.
The investigation became public in January 2008, when four Southern California museums and the home of a Chicago collector were raided, the museums’ computers seized and curators and other staff questioned regarding artifacts supplied to donors by the Markell’s Silk Roads gallery.
United States District Judge Judge Dean M. Pregerson stated that the prison sentence would send a message to art collectors, gallery owners and museums that they should avoid collecting and trading looted antiquities. Without specifying, Judge Pregerson also noted that certain museums had entered into deferred prosecution agreements, having promised not to accept future donations without close scrutiny of their origins.
Olson was not indicted until 2013, when he was charged with conspiracy and trafficking in stolen goods.
The original warrants attempted to establish that Markell imported stolen property by cobbling together a California law and the Archeological Resources Protection Act (ARPA). (Most legal experts agree that Congress intended ARPA to apply only to Native American art, although some legal experts have attempted to make a case for its application to foreign law after prosecutors arranged for plea agreements under ARPA in foreign imports cases.) It is worthy of note that no US court has found that Thailand’s law is a national ownership law. Such a finding would be necessary to establish that unlawfully exported Thai antiquities are “stolen goods” under the US National Stolen Property Act. A foreign nation’s “export law” has not been held sufficient to establish that an item be considered “stolen” under US law, whereas a foreign nation’s declaration of national ownership does. In another attempted expansion of the application of US law, the original warrants also alleged that any appraised valuation whatsoever for the Thai antiquities was an over-valuation because the items were “stolen” and therefore had zero value. This expanded view was not raised later or considered by the court.
The court also did not consider the enforcement of Thailand’s cultural heritage laws in the source country. Thailand has required an export permit for lawful export of ancient art since 1966, but while thousands of antiquities from Thailand, Burma, China, Pakistan, and other nations are routinely exported from Thailand each year, only a few permits are actually issued. Antiquities are sold openly in Bangkok (where there is a tourist-center, the air-conditioned River City mall, that sells only antiques) and other major and minor cities in Thailand.

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