From Koh Ker to Mediocre

A Sale Bombs and a Million Dollar Sculpture Lost in the Same Week.

By Michael McCullough

One of the affecting moments among many in Ben Affleck’s Argo is when the Hollywood producer Lester Siegel theorizes about why he was such a terrible father. “The bullshit business,” he says, “it’s like coal mining; you come home to your wife and kids and you can’t wash it off.” We know that people who work in media and public relations are expected to make things sound much better than they really are, being paid for doing that very thing. As supportive as I am of the auction market, I still winced when reading Sotheby’s press release for the Barbier-Mueller sale that described the auction as “new world record for a sale of Pre-Columbian Art.” A more sobering approach would have left that line out and started off with the next sentence where they admit that the auction “achieved less than expected.”

The sale brought in $13.3 million against pre-sale estimates of $19 million to $23 million. Even this statistic begs further scrutiny, as auctioneers always include their buyer’s premium in the sales results, thus making them look more impressive than they really are (pre-sale estimates do not reflect the premium). If one were to back out the buyer’s premium- which is a sliding scale but averages about 20%- from the Barbier-Mueller results then you get a sale of $11.1, which is 53% of the median pre-sale estimate. Put another way, only 147 of the 313 lots found a buyer, a 47% sell-through-rate which is a disastrous result for a single owner collection.

It would be interesting to know exactly what Sotheby’s was expecting from the sale when they published the catalogue. There is a general perception among art sellers that France is a more hospitable market for selling ethnographic art. The French government enforces the UNESCO accession dates, so as long as the objects were outside of their source countries before the 1970’s then the sale was safe.

Then what happened? Very simply, several major US collectors decided not to participate. And since we’re talking about sensitivities, there’s a general perception among art buyers that the US government is trying to accomplish administratively what it could not do legislatively: to stop objects from entering the country even though they meet the UNESCO standards. Ironically, the seizure last year of a Cambodian sculpture from Sotheby’s was fueling most of this speculation and, unfortunately for Sotheby’s, that case wasn’t decided until three days after the Barbier-Mueller sale.

Much of this concerning among US buyers is, in my view, unwarranted for the reasons they state; the allegations against the Cambodian sculpture could only occur because the object is site-specific, thus allowing the Cambodian and US governments the opportunity to investigate the events of the object’s removal from Cambodia. Sotheby’s was hopeful to get the same ruling as the St. Louis Museum obtained last year when a judge in St. Louis denied the government’s attempt to take the Ka Nefer-Nefer mask, another site-specific object that went missing from a storage facility in Egypt. In the St. Louis case, the judge decided that the government failed to state a factual statement of theft. Rather, the complaint merely stated that the mask was found to be “missing” from Egypt in 1973.

In Sotheby’s case, the Judge decided that the government did provide a factual basis that the sculpture was stolen from Cambodia. According to the government’s amended complaint, the sculpture was stolen from the temple complex at Koh Ker in 1972 by an “organized looting network” and shipped to Thailand for sale by a dealer in Bangkok. Never mind that there was no specific information about who removed the object, exactly when it was removed and under what circumstances; let’s just accept the fact that it takes more to impress a judge in Missouri than it does in New York. And since the government was able to point to laws in place in Cambodia in 1972 that purport to deem the sculpture property of the Cambodian government, there is reason to believe that Cambodia owned the sculpture at the time of its taking.

In fact, very few cultural objects are from specific or known sites, so the decision in the Cambodian sculpture case has limited utility. What’s more significant was the government’s dedication to the case, as the initial decision to seize an object will always cost the owner at least fifty to a hundred thousand dollars in legal fees just to try to dismiss the case. Moreover, it’s unlikely that Sotheby’s had any idea about the sculpture’s removal from the temple in 1972, a fact that was discovered by the joint investigation of two governments with dozens of investigators examining the case. As a matter of fact, a private seller could never match these resources and herein rests the real uncertainty in the market: exactly how much investigation need a seller do in order to avoid seizure? In the case of a site-specific object, the answer seems to be whatever it takes to exhaust every possible doubt about the object’s ownership, a proposition that’s commercially unfeasible but for the most expensive objects on the market.

The most puzzling part of the whole story is why Sotheby’s waited until after the sculpture was imported to investige the object’s status. In retrospect, that was a costly error that can’t be explained by the usual “mistakes were made.” Much of the government’s criticism of Sotheby’s was unfair and exaggerated, showing a real lack of sophistication, but the failure to protect its interests sits squarely with venerable auctioneer.

I suspect that Sotheby’s and the sculpture’s owner will attempt to settle the case in an effort to avoid the cost of having to endure an expensive and uncertain trial. Even if they were successful at trial, the object would only sell for a fraction of the original asking price, so very little would be gained by continuing to pursue the case. Sotheby’s only real chance at success was to convince the judge that the Cambodian laws were too vague to be enforced and the story of the object’s removal too uncertain to be reliable, and that attempt has failed. This demonstrates the impossibility of importing site-specific cultural objects until clearer laws are passed defining exactly when an object can be considered stolen.

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About mcculloughllc

Michael McCullough has extensive experience in art, cultural heritage, and international trade matters. He is a former associate counsel to Sotheby's worldwide where he advised the company on the sale and financing of fine art, the decorative arts, cultural property, antiques, jewelry and special collections. Mr. McCullough is credited with the development and implementation of global policies and procedures related to the acquisition for consignment and sale of some of the greatest artworks in the world. Mr. McCullough is also experienced in U.S. Customs regulations, international trade agreements, export controls, economic sanctions constraints, anti-corruption rules, U.S. Fish and Wildlife regulations, and other government agency requirements. Mr. McCullough has represented clients before U.S. Customs and Border Protection, the Department of State, Immigration and Customs Enforcement, the U.S. Fish and Wildlife Service, the Food and Drug Administration, the United States district courts and the Court of Appeals for the Second and Fourth Circuits.
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