Ask the Professor
Terry Martin: When is art cultural property?
As a former curator at the J. Paul Getty Museum stands trial in Italy for criminal conspiracy to receive stolen goods, curators all over America are nervously rethinking their antiquity collections. HLS Professor Terry Martin, who teaches Art Law, says the Italian investigations are part of a wider movement in many countries not just to retain but to reclaim national art. Export control laws, he says, which made it illegal for items deemed to be of national import to be sold to parties outside the country without state permission, are being replaced by cultural patrimony laws that vest title in the state even for undiscovered antiquities. Italy enacted such a law under Mussolini, and the trend is toward more aggressive enforcement of these patrimony laws. Although the U.S. ratified an international treaty that supports them, Martin, who is also HLS librarian, says there is no equivalent concept in American law. The Bulletin asked him why.
“Part of our attitude when it comes to patrimony laws may have to do with the slant of the market. At the moment, everything flows in this direction. If China became substantially wealthier than we and started taking things away, we might start imposing patrimony laws. There was some anguish when Sony bought Columbia Pictures, but it seems to have faded.
“At the same time, the U.S. has a very, very strong commitment to private property. I asked my class the other day: What is it in America that you cannot own? Besides people, there isn’t very much. Even the 1990 Native American Graves Protection and Repatriation Act does not affect items found on private land, only those on federally owned land or in federally funded collections.
“At the moment, Americans do not tie national identity to works of art. For Americans, civic pride is more wrapped up with our sports teams. When the Lakers leave Minneapolis or the Rams leave L.A., you get arguments that are along cultural property lines. What if the Red Sox were going to be sold and moved? People would go nuts but the law would permit it.
“Sometimes it’s hard to predict when feelings of possession and attachment are going to stick to any one thing—when something is going to become a cultural property symbol.
“I think it happened in 2000 with the tug-of-war over Elian Gonzalez. The law involved was crystal clear—with no surviving mother, the boy should be sent back to his father in Cuba. But the Cuban community in Miami didn’t want to let him go, because he wasn’t simply a kid for them. He had become cultural property.
“In the same way, art can evolve into a cultural symbol. Take the Parthenon. It was built as a pagan temple, lost its major statue to a Roman emperor, was converted to a church, losing more interior sculptures, and became a mosque under the Ottomans. During the war with Venice, it was used as a powder magazine until a Venetian shell converted it to a ruin. It was further dismantled by agents of Lord Elgin before Greece was a country, when Greek architecture and sculpture were considered inferior to Roman. But when Elgin brought the marbles back to London, people were just in awe of Phidias’ creations, and they sparked the Greek revival in Britain and Europe and this country.
“Eventually—when Greeks were trying to throw off the yoke of the Ottomans and form a country where one had never been—they saw how the West was reacting so positively to this example of their ancient heritage, and they converted a local ruin into their national symbol.”