Fraud on Our Heritage: A Rigorous Standard for the Good Faith Acquisition of Antiquities

Harris School of Public Policy Studies, 1155 E. 60th Street, Room 140C

Derek Fincham, Loyola University New Orleans College of Law

Ideally, before an individual or institution purchases an antiquity or a work of art, a diligent enquiry into its origins can confer “good faith” status. This allows the buyer to acquire good title and provides the legal right to seek compensation if the seller proves unscrupulous. Despite these important advantages, good faith has been used to promote commercial convenience and economic efficiency at the expense of public enjoyment and understanding of the world’s cultures. Though an existing body of law prohibits and punishes a variety of activities which further the illicit trade, these measures are severely hampered by the mystery surrounding antiquities transactions. At present, details regarding authenticity, title, or even more basic questions such as the origin of an object are intentionally hidden and disguised from public view.

• How did a family of art forgers fool both Sotheby’s and the Art Institute of Chicago into believing that they had purchased a work by Paul Gauguin?
• Should we hold museums to a higher standard when they acquire works of art and antiquities?
• Do countries that over-regulate the export of antiquities actually harm our common cultural heritage by exacerbating the demand for stolen and looted pieces?
• Should economic models of art markets account for the preservation of heritage and context?

In order to decrease the theft of antiquities and looting of archaeological sites and increase the effectiveness of existing legal measures, we need a new theoretical foundation for increased scrutiny of the antiquities trade. When an object is acquired without a rigorous due diligence process, that acquisition defrauds our heritage by distorting the archaeological record; harms the legitimate acquisition of antiquities; perverts the important role museums play in society; and ultimately warps the understanding of our common cultural heritage.

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Derek Fincham has served as Westerfield Fellow on the Loyola Law School faculty since 2008. His research has focused on property law, contract law, conflict of laws, and criminal law—in particular the public and private law relating to arts and antiquities. He received a Ph.D. in Law from the University of Aberdeen in Scotland. He holds a J.D. in 2005 from Wake Forest University where he served as an editor on the Intellectual Property Law Journal, and was awarded a Public Interest Grant for work with the North Carolina Volunteer Lawyers for the Arts. Dr. Fincham blogs regularly on Art and Antiquities policy at the Illicit Cultural Property Blog, which has been cited by the New York Times and the BBC.