by Marc Masurovsky

Disclaimer: This deconstructive undertaking is not meant to judge a person’s good will, intentions, or motives, nor a person’s qualifications, merits, and contributions. Its purpose is to show how words can be interpreted, read, and critiqued.

Any resemblance to persons, living or dead, is pure coincidence.

The exercise consists in an imaginary dialogue between a provenance research specialist –MJ—and an attorney with a long list of clients in the art and antiquities world–AB.

AB: Thanks for inviting me. Nice to see you again. What are we talking about?

MJ: The buying and selling of art and antiquities, due diligence issues, provenance research.

AB: OK, where shall we start?

MJ: First of all, I’d like to say that, in general, research—provenance research as it were—into the ownership history of an object coming up for sale or to be exhibited, or traded on the international art market, is a necessity. Every object has a history of ownership, the starting point of which should be its maker or creator.

AB: That might be tough with antiquities, due to the immense passage of time, the circumstances under which the object was found, its physical condition, and the context of its location. Wouldn’t you agree?

MJ: Sure, I get that. The research will quickly lead to legal issues about title. You, as a lawyer, should know that.

AB: You don’t have to preach to me. In any event, I always caution my clients to be prudent in their purchases of art objects…

MJ: Prudent? What does prudence actually mean? How is prudence exercised? Is prudence a code word for “due diligence”? If so, why couldn’t you just talk about “due diligence”?

AB: We can discuss that later. In my professional experience, objects that have a plausible history of ownership and origin can be purchased without too many questions.

MJ: Let’s take a step back here.

Have you been following the recent Knoedler forgery trial?

AB: Yes.

MJ: Well, it’s a cautionary tale. The sale of a painting by Mark Rothko which was not a Rothko, as you know, contributed to the fatal demise of an otherwise eminent art establishment, Knoedler’s. Multiple warning flags were raised by appraisers, art historians, dealers. They went unheeded. Knoedler and its president dismissed them for reasons that must be more complex than simple greed. Nevertheless, the gallery invested in a plausible history constructed around the pseudo-Rothko painting designed to cover up a very murky provenance that could not withstand scrutiny.

AB: Do I have to listen to this?

MJ: Be patient, chill.

You know the expression: If it looks like a duck, acts like a duck, and quacks a duck, it might just be a duck or we can pass it off as a duck. Similarly if a painting looks like a Rothko, “radiates” like a Rothko, and is described as a Rothko, then it might just be a Rothko and we can sell it as a Rothko. Sure… the word “plausible” sends shivers down my spine and reminds me of the Nixon years when “plausible deniability” became the preferred line of defense of those who engineered the Watergate scandal.

AB: Hey, I am a Republican.

MJ: I’m not. So there…and your candidate ended up resigning in shame.

AB: [inaudible sound of exasperation]

MJ: Let me ask you: if the history of ownership of an object is “plausible,” should you buy the object even if all you have in the provenance is “John Smith, 1969” and the object itself is older than Methuselah?

If there’s only one name in the provenance, what makes it plausible? The reputation of a person involved in the transaction? Would you accept as “plausible” a one-name provenance as long as an established international art historical authority, a senior curator in a distinguished museum, a person with a wall covered with PhDs, awards and other marks of distinction, a highly-regarded collector/dealer vouched for it?

AB: If the object is of exceptional quality, I am willing to forsake strict provenance requirements. People are human. And they should be able to acquire what they love.

MJ: Errare humanum est.

AB: What’s your point?

MJ: You know what I am talking about. it is this misguided, but very human, belief in pedigree which warps our instincts, our common sense, our logical reasoning and our critical thinking faculties. In the case of Knoedler, the unfortunate buyer-the De Soles family– found the Knoedler story “plausible” about the Rothko’s bizarre history and went home with a fake painting.

AB: I see what you mean. Maybe plausible was not a judicious choice of words. [He laughs!] Fictions are plausible, too. My clients all love good stories. After all, a fictional account is partly anchored in real life, even if it is twisted. It is simple enough to embellish or otherwise construct a provenance. Why worry about history as long as they fall in love with an object that they truly desire? And if the story about the object is appealing enough, so much the better. It adds value to the object. Everybody’s happy.

MJ: Funny man…

What if the provenance reads: acquired on the Paris art market, 1977? What art market? Is it a person with a phone number and an address? Obviously not, impossible to verify. But it is plausible because we know that the object transited through the City of Lights. Hence, we have an unverifiable geographical marker that places the object that your client is lusting over in a fuzzy spatio-temporal relationship with a known location called Paris, France, in 1977.

AB: Who cares? It’s the object that people care about. If it went through Paris, fine.

MJ: Are you serious? And by the way, didn’t you say something about lack of documentation not being an obstacle to purchase?

AB: I may have. But that’s all part of plausibility. Again, that word. [Snicker]

MJ: Aren’t you distressed by the fact that there are no documents or very few to justify the past travails of many objects as they passed through multiple sets of hands, crossing deserts, seas, and oceans, only to land in a safe harbor within the Western Hemisphere?

AB: I never lose sleep over absence of documents. It happens all the time and there are ways of explaining those gaps.

MJ: You are something else…

AB: That’s why they pay me. To allow them to buy objects with partially-documented histories or no histories at all. Realize that the absence of information does not imply acts of looting or an illegal export. Not every object with a lack of provenance is stolen property.

MJ: I’ll grant you that much. However, a customs officer should know the difference between a forged certificate of ownership and one that is authentic. That’s a big “should.” What if a nice gentleman working in the foreign affairs ministry of a source country is only too obliging and produces the necessary forms that allow illegally extracted objects to leave his country in exchange for unspecified favors or to please an even more corrupt senior official? How many officials are trained to tease out the anomalies of documentation produced by exporters of antiquities and works or objects of art, especially when those objects circulate through one, two, maybe three intermediaries in as many countries before landing in a Western market eager to absorb the objects? Should I be suspicious just because there are only two names in a provenance for an object that is three thousand years old which came from a continent far away from where I am, produced by members of a culture that no longer exists? Methinks the answer is yes. Multi-source due diligence would attenuate and greatly reduce the risk of being snookered, taken in, by dubious documentation.

AB: Multi-source due diligence. That sounds like a chant from a religious cult. Come on, one call to the Art Loss Register or to Art Recovery Group and that’s all that is necessary. Let them do all the checks. That’s why we pay them the big bucks.

MJ: Multi-source is the solution. Deep down in your gut, you know that.There’s no way around it. This is where you and I part ways. I don’t care how many sources are checked online and offline, people are called, agencies are consulted, as long as you can guarantee that an object is not stolen. Isn’t that worth something to you? Where are your ethics?

AB: Don’t talk to me about ethics, ok? In the ideal world, anyone buying art or antiquities or both should request full documentation for their purchases to justify title and licit ownership. I am fully aware of that. I don’t want my clients to stand accused of being party to a theft. But it doesn’t happen that way in most cases. I get paid, in part, to clean up the messes and make sure that my clients don’t end up behind bars, paying huge fines and forfeiting their property.

You’ll agree with me, though, that these past few decades have signaled a major cultural shift in the way that art objects and antiquities are traded, especially in market countries [read, those in Western Europe, and increasingly, in the wealthy pockets of Asia.]

MJ: True…

AB: Requests for documentation are a new thing. Even auction houses have to comply. It wasn’t that way all the time. What does that tell you?

MJ: Hmm. It tells me how art and antiquities are purchased even to this day. Back to my soap box if I may.

AB: Go for it. We’ve got some time left.

MJ: Thanks. It has taken two world wars, the deaths of tens of millions of civilians and combatants, the plunder of dozens of nations on three continents to awaken collectors, dealers, and museums to the notion that perhaps the legal and ethical fallout of their indifference to blood-soaked provenances might not be viewed as kindly nowadays as they had been when “might made right” and “to the victors went the spoils” were the ruling mantras of the global art market and its defenders.

So, yes, it is only recently that documentation and more fleshed-out provenances have become ‘de rigueur’ in the international art and antiquities trade.

AB: Well, as long as I can keep my clients one step ahead of the US Attorney’s office or ICE agents. After all, more often than not, they are the unwitting victims of unscrupulous middlemen. They’re innocents.

MJ: You can’t be serious. Do you still believe in that nonsense?

AB: Hey!

MJ: Let me finish. One of the great myths perpetrated by the art and museum worlds has been the martyrdom of the Innocents—that would make for a nice, sweeping, classical painting entitled “The Massacre of the Innocents”—Those who acquired objects innocently, unwittingly, thinking that they had clean title to those objects, from people who lied and misrepresented their origins and histories. Unwitting? My you-know-what.

AB: What is your problem? I thought we were starting to agree.

MJ: Imagine. Your client believes a provenance to be “plausible” and goes ahead with the purchase of the object of her dreams. God forbid that, like a damsel in distress with no knight in armor around to save her—that would be you!–

AB: Thanks.

MJ: My pleasure… she should be the unwitting party to a sleazy plot aimed at unloading looted, smuggled, plundered objects on the art market! Even worse, she is acquiring them from reputable art houses!! What can she do? How could she have known? Well, for one, her education and upbringing should have led her to ask questions first and plunk down her money later. The unwitting victims, the innocents, wallow in their own naïve silliness. How simple! Well, if they are innocent, who’s the guilty party?

AB: What’s your point exactly? Or did I miss something?

MJ: My point is simply that prudence, characterized by multi-source due diligence, an inquisitive eye, a critical mindset and an acquired immunity to pedigree, titles, and diplomas, will produce its fair share of just rewards. Can you tell your clients not to drink the koolade and not to believe everything that they are told.

AB: Are we done?

MJ: One more thing. My advice to your clients is: Trust your gut. If the provenance is non-existent, get a second and third opinion, the way we would if we disliked the initial diagnosis for a medical condition. No harm in it. After all, we are the consumers and we are about to spend a fair amount of money on an object that might not be what it purports to be nor come from where we were told it does.

Can you live with that?

AB: I’d have to think about it.

MJ: You know how it is. It’s your choice. If none of this matters to you, God be with you.

AB: There you go again…[Smile] See you next time.

MJ: Next time, it’s on you. Single malt all around.

AB: I’m good if you are.