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Clear Title

01.31.1997

The question of whether a client has undisputed ownership, or clear title, to an antique or a work of art may prove crucial in establishing its value. If title is contested, the value of the object has clearly been compromised since prospective buyers may be understandably reluctant to buy a work of art which may be claimed as the property of another.

The most obvious disputes occur when a work has been stolen. Sometimes the fact that a theft has occurred is hard to establish, especially if there is no record that the object ever existed in the collection to which it supposedly once belonged. Although records in the form of inventories, insurance policies or photographs may not exist, if someone claims that the object had been stolen from them its value has been diminished unless the claim has been dismissed by legal authorities.

There are different types of theft. The most obvious is when a burglar breaks into a house and removes property; but there are more subtle and complicated kinds as well. Property claimed to be cultural patrimony of one country which has been exported illegally to another can present special problems. This is most common in parts of Asia Minor and South America where archaeological sites are plundered regularly by grave robbers and the ancient and pre-Columbian art markets have been plagued with claims from nations seeking to repatriate reputedly looted works.

Sometimes it may be difficult for the appraiser to make sense of conflicting claims. For example, while England, The Netherlands and Germany have very liberal laws concerning the export of art, Italy, France and Greece have more restrictive ones – yet all are members of the Common Market and works of art can cross common borders without being subject to inspection by customs authorities. However, the non-restrictive rules of open trade between the Common Market countries do not apply to works of art. Consequently, a painting which has been exported inappropriately from France, and subsequently sold at auction in London, may be subject to a messy claim. A bizarre example of such a restrictive situation concerns the one painting by Van Gogh which exists in Italy today. The Italians have stated that it can never be exported legally, although the Dutch artist Van Gogh never even visited the land of Raphael and Michelangelo. Nonetheless, Italy’s Ministry of Fine Arts claims that since this is the only Van Gogh in the country, it is now part of the country’s cultural patrimony.

Sometimes emotional factors are injected into claims of stolen art. This is especially true when property associated with the Holocaust is considered. A recent dispute centers around the recovered memories of descendants of art collectors who were killed by the Nazis and who now claim to have recognized a Degas in a museum catalog as one which belonged to their grandfather – although only disputed photographs of the object exist. Until the claim is resolved, the true value of the Degas, which could sell for more than a million dollars, has been vastly diminished.

Determining the rights of intellectual property, or claims of copyright violations, can prove very complicated for the appraiser who may not be knowledgeable of all the nuances of the law. Works produced before 1979 are subject to different regulations, under the Geneva Convention, than works created after that date.

The market for entertainment memorabilia is growing rapidly; with this growth, one has seen claims by Hollywood studios challenging the rights of collectors to sell photographs or drawings which had been produced by artists under contract to the studio, although the original art work may have been discarded or never used. A recent case won by Playboy Magazine challenged the right of artists, who had submitted work “for hire,” to the magazine. The court ruled that once the artists had been paid by Playboy they could not reproduce their works in other publications or sell the original cartoons.

The field of contemporary art is particularly complicated. Collectors who own a painting by a living artist may not own the rights to have it reproduced in a book about their collection. The reproduction rights to some fine art prints, created by famous artists, may be owned by the printers and not by the artists. Knowing who has clear title in such instances is a valuation consideration about which the appraiser must be well – informed.

Although the appraiser may not be expected to know all the subtleties of the law, one should know which situations may present problems and how to identify them when claims of disputed title on a variety of fronts may exist. When in doubt, a lawyer should be consulted. When the issue of simple theft is concerned, organizations such as the International Foundation for Art Research (IFAR), the Art Loss Register and Interpol may be of help. In any case, when a claim of disputed title may exist, it is essential that this important fact is cited in the appraisal report.

Verification of clear title is one element of a correctly prepared appraisal. For a complete list of the “Elements of a Correctly Prepared Appraisal”, please contact the Appraisers Association of America at (212) 889-5404.

This article appeared in the Antiques and The Arts Weekly, January 31 1997, page 100 and was written by Victor Weiner.