"OFFICIAL FAKES": THE CONSEQUENCES OF GOVERNMENTAL TREATMENT OF FORGED ANTIQUITIES AS GENUINE DURING SEIZURES, PROSECUTIONS, AND REPATRIATIONS.

• Author: Thompson, Erin L.

1. INTRODUCTION

   At the climactic moment of John Huston's 1941 film noir The Maltese Falcon, Sydney Greenstreet, playing the nefarious "Fat Man," caresses a sculpture of a falcon. (1) He has spent tens of thousands of dollars and ordered the murders of two men, as well as the burning of an entire freighter ship, in his search for it. (2) He believes that he is holding a jewel-encrusted golden sculpture, the 16th century gift of the Knights Templar of Malta to Charles V of Spain. (3)

   But as he scrapes off the black coating with which the statue has been disguised, the Fat Man begins to shriek: "It's a phony--it's lead --it's lead--it's a fake!" (4) Instead of gold and jewels, the falcon he holds is made of worthless lead. (5)

   The Maltese Falcon is, of course, exaggerated. Rarely are a few scrapes of a penknife sufficient to determine that an object is not a genuine antiquity. (6) But the core of the film's story is all too real, in its insistence that even a laughably bad fake can cause the expenditure of great sums of money and lead to disputes, both civil and criminal, in which the government will have to be involved (generally with greater expenditure of time and effort than in this case, where Sam Spade reluctantly but dutifully turns in his love interest, the Fat Man's beautiful, yet criminal accomplice). (7)

   This article will argue that the Maltese Falcon problem is much more widespread than has previously been recognized. What I will call "official fakes"--fakes mistakenly treated as genuine antiquities by governmental authorities--are costly to many branches of government. (8) They waste authorities' time, resources, cash, and credibility. (9) Fakes also lead to basic problems of justice: people who intend to sell looted antiquities are either under-prosecuted after it is discovered that they were unwittingly dealing in fakes, (10) or over-prosecuted if this discovery is not made, and the government continues to assume that the accused looter's stock of fakes is actually genuine. (11)

   This article begins with (II) a discussion of the factors leading to the current flood of fakes in the antiquities market, (III) an explanation of why it can be so difficult to tell when an artifact is fake, and (IV) a summary of the recognized harms caused by these fakes. I then (V) describe categories of "official fakes," giving case studies and analysis of how they cause waste. The article then (VI) summarizes the current failure of the treatment of fakes in American law to reduce this waste and ends (VII) by proposing some policy changes necessary to stem the governmental losses caused by "official fakes."

   First, a few notes on terminology and scope. I use the term "fake" to describe an object mistakenly regarded as a genuine antiquity, where a genuine antiquity is an object predominantly crafted in the ancient world. (12) (The caveat of "predominantly" is necessary to deal with the fact that many genuine antiquities have been restored in modern times, sometimes heavily, and that a fair number of fakes include pieces of actual ancient material, although elaborated in such a way as to render the whole object a production of the modern world.) (13) In this article, the person or persons who are mistaken as to the nature of a fake are governmental representatives, such as prosecutors. I leave open the cause of the mistake. In some cases, the fake has been created by someone who intends others to be fooled into regarding it as ancient. (14) In other cases, an object has come to be regarded as ancient by subsequent possessors or audiences, regardless of the intent of the creator. (15) The former case--the deliberate fake--is what we usually think of under the term "forgery," although in most jurisdictions, the term forgery legally applies only to written documents. (16) But fakes can harm governmental interests regardless of the guilty or innocent intent of their creators. (17)

   Second, my selection of case studied. I primarily choose case studies where the owner or government has reversed course and rejected the authenticity of the artifacts in question. (18) In a few cases, I discuss artifacts whose owner or controlling government continues to believe are genuine, but which experts in the relevant field have convincingly flagged as fake. (19) The major case study in all but one of my identified categories of "official fakes" is American, and this article restricts its legal and policy analysis to the United States. (20) However, the article draws examples of "official fakes" from around the world. (21) This expanded scope allows for a deeper consideration of the types of waste caused by fakes, in that similar situations probably have, and certainly could, occur in the United States, but have not become publicly known.

   Finally, although I focus on fake antiquities, the same lessons can be applied to faked art from all time periods.

2. THE ROLE OF FAKES IN THE MARKET FOR ANTIQUITIES

   Fake art has always existed--the ancient Romans faked ancient Greek art (22)--but the amount of fakes seems to have greatly increased with the growth in the market for antiquities, beginning in the 1960s. (28) Since then, antiquities have set astonishing auction records, including $57.2 million for a thumb-sized ancient Near Eastern statuette of a lioness at Sotheby's in 2007. (24)

   This growing demand for antiquities is supplied in part with legal sales, of antiquities whose export and sale were approved by the government of the country where they were excavated, or which left their country of origin before that country passed laws regulating or forbidding the export of antiquities. But the antiquities market is also supplied by looters and smugglers. (25) Encouraged by the prospect of high sale prices, looters have been devastating ancient sites around the world. (26) Middlemen bring these illicitly acquired and exported antiquities to countries with active antiquities markets. (27) Sometimes, looted antiquities go directly into the collections of buyers willing to avoid asking too many questions. (28) More often, looted antiquities merge into the legal market by means of forged export permits or other provenance documents. (29)

   Looting, smuggling, and selling stolen goods can be very profitable--but they are also serious crimes with stiff penalties. (30) For those with a modicum of artistic talent, a less risky means of profiting from the burgeoning antiquities market beckons: forgery. (31) Even if caught and convicted, forgers generally face far less serious penalties than looters and smugglers of genuine antiquities. (32) But they can achieve the same rewards--or even greater ones. Looters are limited to what they find, but forgers can create big, beautiful art objects precisely tailored to market demand. (33) And the resulting fakes easily enter a marketplace that does not demand rigorous provenance information. (34)

   Bulgaria is currently notorious for its production of archeological fakes. (35) As Angel Papalezov of the Cultural and Historical Artifacts Section of Bulgaria's National Police, explains:

   The problem is that treasure hunting in Bulgaria is thriving but the uppermost archaeological layer, which is 30-40 cm deep, has already been fully ransacked. At the same time, there is a demand, and the antique dealers start compensating [the lack of supply] with fakes. (36) Bulgarian police estimated that in 2015 there were between 20-50 skilled forgeries working on archeological fakes in Bulgaria, including fake coins, ceramics, and jewelry. (37) The profit motive is clear, since a fake coin will sell for around ten times what it costs to make it. (38) Making these fakes is not a criminal act. (39) Indeed, Bulgarian police are required to return any seized fakes, which are legally considered to be mere replicas. (40) But trading in archeological material is illegal--meaning that buyers who discover that they have been duped by fakes rarely complain to the Bulgarian authorities, since they would be guilty of attempting to buy antiquities. (41)

   Syria provides another example of the coexistence of looting and the production of fakes. Reports and analysis of satellite imagery shows that thousands of Syria's ancient sites have been looted, honeycombed with looter's pits since the current conflict began in 2012. (42) But while looters have been busy with their shovels, forgers have been active with chisels and kilns. (43) The director of Syria's ministry of antiquities and museums has estimated that eighty percent of the objects that have been seized and returned to Syria as smuggled antiquities are, in fact, fakes. (44) The known rise in looting gives a convenient story for sellers of fakes to explain the source of an object to buyers. (45) And seizures show that antiquities smugglers often mix fakes into their shipments of looted Syrian antiquities. (46) This mixing serves to increase the smugglers' profits by allowing them to make more sales. (47)

   It is impossible to know the number of fakes circulating as genuine on the antiquities market, but experts who have attempted to estimate the scope of the problem describe it as significant. Thomas Hoving, former curator and Director of the Metropolitan Museum, New York, wrote that forty percent of the thousands of works he examined in the museum's collections or on the art market when he considered potential acquisitions were either "phonies or so hypocritically restored" that they should be considered fake. (48) Sharon Flescher, Executive Director of the International Foundation for Art Research, found that almost eighty percent of the artworks submitted for the Foundation's art and provenance authentication services were eventually "deemed not to be by the artist to whom they were attributed at the time of submission." (49)

   Meanwhile, the few scholars who have acquired the funds necessary to test the age of groups of artifacts, scientifically, have generally arrived at dispiriting...