"The Getty will get its Turner"



Modern Rome -- Campo Vaccino, J.M.W. Turner (1839)

Last year, the Getty Museum bought the Turner "Modern Rome" at auction for £29.7m (setting a new record for the artist which was not surprising given the work had only come to market once in its 171 history and experts considered it to be Turner's finest landscape of an Italian city). The painting had resided on loan in the National Galleries of Scotland in Edinburgh since 1978 before being transferred to Sotheby's in London for the auction. However, following the sale, its export to LA was delayed in an attempt to find a UK buyer able to match the hefty price tag and prevent the national loss, a practise previously discussed on this blog (see here and here).

No buyer was found and the export license was finally granted earlier this month with the Getty now preparing to celebrate the arrival of its "new pride and joy," due to go on display March 8. But is it ok for the Getty to "celebrate"? Donn Zaretsky has posted on the hypocrisy of "celebrating" a foreign museum's loss while fiercely opposing deaccessioning by national institutions such as Fisk University or the University of Iowa (the former resulting in extensive and ongoing litigation over the fate of the Stieglitz Collection and the latter almost succeeding in the enactment of legislation to create an endowment fund for as many as 1,000 student scholarships to avoid having to sell the Pollock "Mural"). While I fully agree that the anti-deaccessioning police's stance is often ridden with double standards and contradictory arguments, in this case I don't think that their failure to denounce the ethics of the Getty's acquisition is hypocritical because the painting was only on loan at the National Galleries. In other words, no deaccessioning took place -- it was offered for sale by a private, not a public, seller: a descendant of the 5th Earl of Rosebery. So for once it seems we can all celebrate in unison without raising any eyebrows.

"Lost" Rubens staying in Britain, for now

Portrait of a Young Woman, attributed to Rubens
Photograph: PA

LONDON. The Export Reviewing Committee has succeeded in delaying the export of a "lost Rubens" until March to allow prospective buyers to match the £1m price paid at auction and keep the painting in Britain. This isn't the first time this practice of restricting the export of artworks has been scrutinized in the media and here - remember the Fatimid ewer?

That case was more controversial because the government sought a valuation from a rival auction house (eventually estimated at £20 million) rather than taking the price paid at auction (£3.2 million) as that which needed to be matched by a third party to keep the ewer in Britain. Unsurprisingly, no buyer could match the £20 million price tag and, following the export of the ewer to Berlin, it was unclear what precedent had been set by the government in going against what had been past practice to date to use the price paid at auction.

The fact that the "Rubens" was estimated at £6 million but only sold for £1 million as a result of its uncertain provenance gave the government an ideal opportunity to require an "independent" (if there is even such a thing) valuation and use that figure instead of the £1 million actually paid. That the government chose not to do so is significant in that it suggests that the export of the Fatimid ewer may have been exceptional. However, only time will tell the extent to which the case of the Fatimid ewer changed the way artworks are exported from Britain. On the other hand, there's always the possibility that the government decides to seek independent valuations arbitrarily, on a case-by-case basis, depending on its interest interest in keeping the artwork in Britain and the price paid for it...

UPDATED: More on the European Commission's attempt to "define" art

A previous post discussed the European Commission's recent controversial classification of light and video-sound installations as not constituting art and therefore being subject to VAT at a rate of 20% (as opposed to 5% charged on artworks). The logic behind the regulation is inherently flawed given that VAT is said to be charged on the work's value as "sculpture" - clearly far greater than the value of its component light fitting parts. Pierre Valentin of Withers, London, who spoke to The Art Newspaper back in December, has now published an article in the opinion section of the site discussing in more detail the European Commission's move to "define" what is art or what is not art to be more precise. Valentin describes the European Commission's promulgation of EU regulation 731/2010, which overturns the decisions of two member states' (the UK and the Netherlands) tax tribunals, as a "mockery of the judicial process." But doesn't this case simply illustrate the fact that in the hierarchy of legislative sources in member states, EU law trumps national laws? Of course this doesn't justify the regulation in either substance or form (the reasoning is frankly absurd and there was no publicity or public consultation). However, the notion of the Commission taking a view on an issue different to that of two member states is hardly shocking. Furthermore, the "consensus" was among only two of the twenty-seven member states...

UPDATE: Yet one more article from The Art Newspaper on how the art world is "up in arms" over the "light bulb law"

European Commission declares light and video-sound installations not "art"

The classification is crucial for it means that "full VAT (value added tax, which goes up to 20% next year) and customs dues" will be payable when video and light works are imported from outside the EU to any EU member state since the decision is binding on all members. In this case, the works in question were six Viola video-sound installations imported by Haunch of Venison from the US in 2006 and a Flavin light sculpture. Had the European Commission agreed with the UK's VAT and Duties Tribunal that ruled such works were indeed "art", their import would only have given rise to a 5% VAT charge. The Art Newspaper reports on the questionable grounds for the decision and includes commentary from leading art lawyer Pierre Valentin (of Withers, London).

LINKS

• PARIS. Artworld Salon reports on the Deloitte "Art & Finance" conference held at the end of last month. It highlights three themes: I agree with the first, disagree with the second and would modify the third. The final paragraph is by far the most astute: "before we continue to develop art into an investment vehicle (in whatever way), let's take a step back and think about what makes art different to other assets and markets, not what makes it similar" (my own emphasis added).
•  "Whose painting is it anyway?" Pop quiz on what constitutes good title to art.
• LONDON. Another deferral of an export license to allow public instutions to match the sale price and keep the art in the UK. At least this case involves a painting by "simply the greatest British painter of the 19th century" which foreseeably meets the Waverely Criteria (unlike the case of the export of the Fatimid ewer where it's far less obvious).

Rethinking valuations of artworks following UK export of Fatimid ewer

LONDON. A rock-crystal Fatimid ewer -- described as "the Holy Grail for any collector or museum of Islamic art" -- sold at Christie's for £3.2 million but was eventually exported from the UK to the Museum of Islamic Art in Berlin with a price tag of £20 million. The export license application originally stated a value of £15 million for the ewer which the Export Reviewing Committee rejected for failure on the part of its owner, De Unger, to substantiate such claim. The Committee instead looked to the recent auction price as the appropriate figure, consistent with what had been to date past practice in calculating the fair market value of artworks the subject of export applications. Aside from the obvious tax implications, the value attributed to an artwork is crucial in the context of exporting it from the UK because it will likely determine whether a buyer (usually a public institution) can match that price in cases where an offer to purchase is required to be made. In the UK, when an artwork meets what are known as the Waverley Criteria (history, aesthetics and scholarship), the Export Reviewing Committee "recommends to the Secretary of State that a decision on the license application should be deferred for a specified period [normally 2-6 months] to enable an offer to be made at or above the fair market price, ... also recommended by the Committee" (see MLA guidance). In this case, following De Unger's direct representations to the Department of Culture, Media and Sport ("DCMS"), a valuation was sought from the head of Islamic art at none other than Sotheby's. Edward Gibbs' final valuation coming in at £20 million was subsequently accepted by "the newly-installed culture minister Ed Vaizey" thus sealing the deal for De Unger as "at £20m no public collection could even contemplate trying to raise the funts." A few months later, the Fatimid ewer made its way to Berlin and is scheduled to go on display early next year.

The case of the Fatimid ewer is important in a number of ways. Firstly, the government's decision to turn to Sotheby's for an independent valuation is a cause for concern from the perspective of conflicts of interest. A conflict of interest arises when there is "a real or seeming incompatibility between one's private interests and one's public or fiduciary duties" (Blacks Law Dictionary). Clearly, Sotheby's is conflicted when asked to value an artwork recently auctioned by their number one rival for there are very real incentives to "talk up the price" in order to attract business. On the other hand, it's uncertain whether the auction house owes the government any fiduciary duties (they unequivocably do to their clients who sell at auction) and the reality is that to begin with there are only so many places the government can turn to to obtain an expert valuation. Secondly, the case is unfortunate to the extent that it will create uncertainty in the increasingly global art market -- at least for as long as it remains unclear how strong a precedent it has set. Uncertainty in any market can only be a bad thing and in this instance, it's a very bad thing given how cumbersome, time-consuming and expensive export applications already are and the unstoppable pace at which the traditional Western art market is becoming a global one.