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ABSTRACT
Objects of cultural heritage present a unique and important opportunity for the use of blockchain technology. Specifically, blockchain, a distributed ledger technology, can be used to disincentivize the sale of looted objects and to manage shared stewardship, ownership, and exhibition of these contested artifacts taken though war or colonialism. We offer background on repatriation of antiquities using the Byzantine Fresco Foundation as a core case study; introduce a working model of stakeholders in antiquities markets in both contemporary and historical context; and propose a blockchain solution using four different cases. The paper draws on newly sourced archival documents, game-theory interpretations of stakeholder behavior and application of this new technology in regulatory context. These blockchain applications are especially timely with the publication of the Sarr Savoy Report and the Arts Council England’s rewriting of its restitution guidelines for museums and galleries.
Acknowledgments
The authors wish to acknowledge with gratitude the advisory support of Vanessa Grellet, Executive Director of ConsenSys, and the incisive editorial comments of Fiona Rose Greenland. We are also grateful to Warren Woodfin, David Yermack, François de Menil, Gianna Lia Cogliandro Beyens, Isabel Verdet, the ENCATC 2019 scientific committee, and the ENCATC Congress participants, as well as Oliver Bennett and the anonymous reviewers.
Disclosure statement
The authors work individually on various aspects of blockchain technology. This paper did not receive any commercial or non-commercial funding, nor are the authors committed to any specific business interest. Nothing contained herein should be construed as legal or technical advice. Some of the authors have filed formation documents for a non-profit organization to provide educational and advisory services in this area. Amy Whitaker is an advisor to the blockchain company Bitmark. Anne Bracegirdle is an advisor to the blockchain company Dada.nyc. Susan de Menil is part of the Menil family but has served in an authorship capacity here as first-person source and archivist.
Notes
1. Sarr and Savoy (Citation2018, 89).
2. For larger legal studies of the nature of rights to property, see, for example, Honoré’s (Citation1987).
3. For more information on the de Menils and the Menil Collection, see Helfenstein, Schipsi, and Booth (Citation2010).
4. Emblematic of the Byzantine style, the frescoes date to the 13th century – though scholars debate the dating (Carr Citation1991, 36; Carr Citation2010, 165). The bowl of the dome contains Christ Pantokrator – translated roughly as ‘Almighty’ or ‘ruler of all’ – in which the haloed Christ holds the Gospel in his left hand and raises his right hand in benediction.
5. In his 1936 book Historic Cyprus, the historian Rupert Gunnis had described this church, St. Thermonianos (or St. Ephimianos) and commonly referred to as ‘Lysi’ after the nearby town (Gunnis Citation1936, Carr Citation2010, 159). As Ginnis wrote, by 1936, most of the walls of the chapel had been whitewashed, except for the frescoes in the dome and apse, ‘both…superbly painted and in a marvelous state of preservation’ (Carr Citation1991, 33). Gunnis dates the church to the 14th Century and calls it by its alternative name, St. Ephimianos (Carr Citation1991, 37). Gunnis worked as the Inspector of Antiquities for the Cyprus Museum from 1932 to 1935. In 1972, the Department of Antiquities of Cyprus further catalogued the frescoes (Carr Citation2010, 159). Then, in 1974, Turkey invaded Cyprus, and the area around Lysi became seized land (Carr Citation1991, 33).
6. The Church of Cyprus and the Byzantine Frescos Foundation negotiated the arrangement from 1983 to 1985 (Carr Citation1991, 12).
7. The conservation team was headed by Laurence Morocco, who began work when thirty-eight flattened fresco fragments were delivered to a warehouse in London. At that point, no one knew the arrangement of the fragments. They were like puzzle pieces in a box. In addition, no one knew the exact size and shape they would take. The frescoes had been cut out, and so there would be space between them where the cuts had been made. Morocco and his team only had as reference the two grainy photographs (Morocco Citation1991). Over three years they calculated the circumference of the dome. To figure out the height of the dome, they hung a piece of chain and then a piece of wet chair caning between two points on the circumference. The conservators built a model of the dome but then had to modify the perfect shape, shaving it down to match the irregularities in the original plaster. To work on the dome and be able to sit inside it without sitting on it, they hired the engineering firm Arup – known for skyscrapers and suspension bridges – to build scaffolding that fit inside but did not touch the dome. For the final holding structure of the frescoes, they hired a boatbuilding firm. To conclude this process, they knocked out a wall in the warehouse to be able to remove the two-thousand-pound crate that would be driven to Paris and flown to Houston (Morocco Citation1991, 125–157). Morrocco’s personal essay on the conservation process is highly recommendable as reading, whether for the world’s most interesting arc- and circumference- math word problem or for Morocco’s telling of his experience discovering the church at Lysi for the first time, years into the conservation process, and having a military tank pull up while he was in the midst of photographing the space.
8. In addition to the legal ownership and physical possession of the works, there is also the question of cultural authorship and control of images. The U.S. non-profit Local Contexts, founded by professors Jane Alexander and Kim Christen, has created a ‘traditional knowledge’ tagging system by which ‘local, traditional, and Indigenous’ communities can assert their ownership and authorship rights digitally (Anderson and Christen Citation2013). The U.S. Library of Congress and other systems support the Local Context tagging systems for Native, First Nations, Aboriginal, Inuit, Metis, and other indigenous communities. While an artifact may be contested between a museum abroad and a national government, the object is owned in a longer-standing historical tradition and context that is only represented by the government. While outside the scope of this paper, these tools for relocated authorship support the larger ethos of restitution.
9. The Hague Convention was the first international treaty focusing entirely on the protection of cultural property, specifically during an armed conflict. Each signatory state agrees to prevent the exportation of cultural property from any territory it occupies during an armed conflict; to take into its custody cultural property imported into its territory either directly or indirectly from any occupied territory; and at the end of such occupation to return cultural property. The Hague Convention is not self-executing, so member states need to adopt domestic legislation to implement it. The Hague Convention has been ratified by 133 states, including the European Union which joined in 2007 and United States which ratified it in 2009 (HCCH Citation2007).
10. Article 9 reads: ‘Any State Party to this Convention whose cultural patrimony is in jeopardy from pillage of archaeological or ethnological materials may call upon other States Parties who are affected. The States Parties to this Convention undertake, in these circumstances, to participate in a concerted international effort to determine and to carry out the necessary concrete measures, including the control of exports and imports and international commerce in the specific materials concerned. Pending agreement each State concerned shall take provisional measures to the extent feasible to prevent irremediable injury to the cultural heritage of the requesting State.’
12. These countries are: Belize, Bolivia, Bulgaria, Cambodia, China, Colombia, Cyprus, Egypt, El Salvador, Greece, Guatemala, Honduras, Iraq, Italy, Libya, Mali, Nicaragua, Peru, and Syria.
14. In July 2018, a New York judge ordered the return of an ancient bas-relief depicting a Persian guard to Iran. This was after the relief was seized by investigators in the Manhattan DA’s office from the Park Avenue Armory in 2017. The two alleged good-faith purchaser owners agreed to surrender the item. The sculpture dates to approximately 500 B.C.E. and is worth $1.2 million (Mashberg Citation2018). As noted above, the fact of whether or not the individual or institution holding the cultural property was a ‘good-faith’ purchaser can be dispositive in many instances. In this instance, the good-faith purchaser would not have helped the collectors, who were defending their rights in New York, where courts have become increasingly inclined to return objects with suspect provenance.
15. In an unusual lawsuit regarding cultural heritage, Sotheby’s along with co-plaintiffs the Howard and Saretta Barnet family brought suit against Greece, disputing Greece’s claim of ownership of an ancient bronze Greek statue of a horse that was to be auctioned (Barnet et.al. Citation2018). The family was planning to sell the statue at auction on 14 May 2018 – the statue was prominently displayed on the cover of the auction catalogue. The day before the auction, the Greek Minister of Culture sent a letter to Sotheby’s demanding it return the statue to Greece. Greece believed the statue was illegally exported in the past. Sotheby’s argued that the work was sold at auction in Basel in 1967, thus meaning the 1970 UNESCO Convention would not apply. On 21 June 2019, the judge rejected Greece’s effort to dismiss the lawsuit on jurisdictional grounds (Stempel Citation2019). This case may have implications on the way that a state actor will seek the return of cultural property for which it believes it has a claim. If the court ultimately rules in Sotheby’s favor and holds Greece liable for interference with the sale, other countries may be on notice about the risks of asserting such repatriation rights. Countries will need to be more attuned to the potential for legitimate counterclaims – and the costs of defending against those claims – in other jurisdictions. Thus countries will have to balance the potential return of the item with the possibility of no return coupled with the expenditure of resources for defending the claim.
16. The Elgin Marbles were taken from the Parthenon in Athens between 1801 and 1805 and then sold to the British government for display in the British Museum in 1816. At the time of writing, the latest development was the 2015 decision by the Greek government to pursue diplomatic avenues rather than bring suit in International Court (Munro Citation2015).
17. The nation and its local communities can then decide how to use the funds, whether to build a museums, to commission new cultural monuments, or to pay for economic development or investment in entrepreneurship broadly. These projects could range from infrastructure and food security to personal dividends (in the manner of Norwegian sovereign wealth payments to citizens) to funding for local cultural projects including education, newly commissioned monuments, or educational institutions. For highest value or most significant works, this process could be structured as a ‘draft pick’ in rounds, or the parties could negotiate groupings of objects. These efforts dovetail with existing blockchain initiatives such as UNICEF and the World Bank’s initiatives to create blockchain-registered self-sovereign ID cards for refugees. A cultural dividend could be transferred onto this refugee banking system, which currently is designed to allow refugees to use their self-sovereign ID cards, with retinal scanning, to purchase groceries in aid camps (Baydakova Citation2018). In cases where the revenue share goes into a museum building fund, international bodies such as UNESCO or ICOM (the International Council on Museums) can work with the stakeholders to agree condition and planning budget for the museums. In the same way that token purchasers are quasi-philanthropists in the new museums, architects and project managers could donate time to the projects.
18. There is a long history of museums being placed in ethically complex positions as stewards of stolen objects. When two Turner paintings belonging to the Tate were stolen from an exhibition in Frankfurt, Germany, Sandy Nairne labors to return the works included some negotiation with gray-market intermediaries (Nairne Citation2011).
19. Speculatively, one could also apply here an idea developed by Barak Ben-Ezer with regard to the poaching of endangered animals such as lions and tigers. Ben-Ezer proposed that instead of buying a Cryptokitty – a digital, investible ‘non-fungible’ blockchain token – one could buy shares in a real cat – an endangered animal. A portion of that token could be owned by the local community, either for the benefit should a work be sold or acquired and to include the local community in the upside of protecting the work. Elements of personal safety would of course need to be considered in application of such a plan. But all of these proposals draw on the logic of the Coase Theorem that property rights (Citation1960), once assigned, can be handled by markets, as long as transaction costs are not too high. We simply assign property rights to what matters – here oversight and protection of work, registry of objects, and permitting of sales – to set limits to quantity and allow markets to set price accordingly.
20. The politics of the process of how this structure evolves is also important. Thinkers such as Augusto Boal (Citation2002[1992]) and Freire (Citation2000[1972]) offer methods of non-hierarchical interaction which would be well used here. Advisors could suggest a division of proceeds but it would also be important to amplify the source country’s and source country’s community’s views on how to design these outcomes. For the management of antiquities, it would be particularly important that stakeholders could choose the privacy or intentional public reach of the records, following from the tenets of Local Contexts, mentioned above. In addition, those stakeholders would want to presumably have some autonomy in the choice of platform. Some blockchain platforms are white-label products run by large companies, and nation-states and other bodies may have strong opinions on choice of blockchain platform.
Additional information
Notes on contributors
Amy Whitaker
Amy Whitaker is an assistant professor of Visual Arts Administration at New York University.
Anne Bracegirdle
Anne Bracegirdle is a Senior Director at PaceX and former specialist at Christie’s New York, where she spearheaded the Art + Tech initiative.
Susan de Menil
Susan de Menil was a lead negotiator in the return of the Byzantine Frescoes from the Menil Collection in Houston, Texas, to the Church of Cyprus.
Michelle Ann Gitlitz
Michelle Ann Gitlitz, Esq., is the Global Head of the law firm Crowell & Moring’s Blockchain and Digital Assets practice, and a partner in the White Collar & Regulatory Enforcement and Corporate groups.
Lena Saltos
Lena Saltos, Esq., is Associate General Counsel and Global Director of Intellectual Property for fashion retailer Urban Outfitters, Inc. She has represented a number of arts organizations and has authored articles in areas of art law and copyright.