|Source: Andy Reis|
Record keeping laws may even serve as an initial deterrent to criminals, causing them to think twice about participating in illegal antiquities transactions in the first place for fear that they would be exposed by the paper trail.
Record keeping laws, meanwhile, would elevate the integrity market. They would bolster efforts by sellers and consignors wishing to cultivate an ethical, authentic, and profitable trade by boosting the integrity of the marketplace. Collectors, in turn, would be better protected against sales of stolen, smuggled, fake, or legally questionable merchandise.
A New York state court decision in the case of William J. Jenack Estate Appraisers and Auctioneers v. Albert Rabizadeh, meanwhile, is expected to motivate parties in the busy Manhattan art and antiquities marketplace to more completely preserve auction sales records. The appellate court ruled that an auction contract, to be enforceable under the statute of frauds, must identify the buyers and sellers in some fashion.
Preserving provenance/chain of custody information, financial transaction records, import documents, and other records that could help spotlight black market antiquities would not place an unwieldly requirement on legitimate dealers and auction houses. Nevertheless, critics may still characterize such record keeping as an attempt to over-regulate. It is certainly true that over-regulation can be a problem both for an industry and for law enforcement. As Winston Churchill rightly observed, "If you make ten thousand regulations you destroy all respect for the law." But the art and antiquities market is already minimally regulated, built less on codified rules and more on personal relationships between sellers and collectors whose purchase agreements might be executed by a handshake. Record keeping laws would not significantly alter the informality of the industry's culture. Rather, they would improve trust in the market by helping to protect sellers from conveying looted or forged cultural heritage, better safeguarding consumers from purchasing illegally looted, smuggled, and inauthentic artifacts and exposing wrongdoers who use the legitimate marketplace to fence illegally acquired cultural material.
An opinion piece by David Hewett ("New York Auction Houses Must Reveal Consignor's Name to Buyer," Maine Antiques Digest, November 12, 2012) best explains the argument favoring auction house discretion:
Consignors welcome anonymity for a variety of reasons. Some consignors do not want relatives and/or debtors to know they sold the family valuables. Museums and historical societies dread the fact that it may become public knowledge they've had to sell assets to survive. Dealers don't want it known that they're dumping dead stock.
This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com