<span class="padlock_text"></span> v24 #3 Legally Speaking – Our Nomadic Treasures

by | Jul 16, 2012 | 0 comments

What To Do When Your Children Go Astray

by William M. Hannay, Esq.1  (Schiff Hardin LLP, Chicago, IL)  <whannay@schiffhardin.com>

Column Editor:  Bryan M. Carson, J.D., M.I.L.S.  (Professor, Coordinator of Reference and Instructional Services, Western Kentucky University Libraries, 1906 College Heights Blvd. #11067, Bowling Green, KY  42101-1067;  Phone: 270-745-5007;   Fax: 270-745-2275)  <bryan.carson@wku.edu>

This paper, which was the basis of a presentation to the April 2012 Fiesole Retreat, discusses legal rights and remedies for museums, libraries, and archives relating to the theft of rare books, maps, and manuscripts.

There are two main situations involving book or art theft that are of concern to an institution.  The first is unknowingly being on the receiving end of stolen materials, either by purchase or by gift from a donor.  The second is being a victim of a theft from its own collections.  We will focus on the latter situations in this paper, including prevention, detection, and recovery of lost property (or damages).

Historical Background of the
Problem of Book Theft

Historically one might consider Mark Antony to be the first book thief.  He looted the Library of Pergamon in Anatolia of some 200,000 of its books, according to Plutarch.  Reputedly, he did so in order to give them as a gift to his beloved, Queen Cleopatra.  Sad to say, the theft of rare books, maps, and manuscripts is not a rare or antique phenomenon.  It is a continuing fact of life for librarians, curators, and archivists.  Indeed, the surprising thing is that the theft of special collections materials keeps occurring, again and again.

A Rogues Gallery of rare book thieves from more modern times would include — among many — the following notable names: Smiley, Renehan, Spiegelman, Blumberg, and Landau.

1.  On March 20, 1990, a man named Stephen Blumberg was arrested for stealing more than 23,000 rare and valuable books from 268 or more universities and museums in 45 states and two Canadian provinces.  He was eventually sentenced to six years in prison.  The 19 tons of books and manuscripts that he stole were valued at between $5 and 20 million dollars.

Blumberg was able to accomplish this astounding feat of extended theft because the 130-pound, 5-foot-9 “Spider-Man” was proficient at scaling rooftops and climbing up dumbwaiters.  Blumberg trained himself to pick locks, steal keys, thwart electronic security systems, and blend in with crowds.

2.  In the Spring of 1994, a graduate student named Daniel Spiegelman climbed up an abandoned book lift in Columbia University’s Butler Library, dismantled a wall, stole books, then reassembled the wall, and snuck back down the shaft.  Over a three-month period, Spiegelman did this more than a dozen times, stealing medieval and Renaissance manuscripts, incunabula, scores of historical maps, U.S. presidential letters, and Thomas Edison’s patent files.

Spiegelman relocated to Europe with hundreds of rare books and manuscripts worth $1.8M and set about trying to sell them.  Eventually rare book dealers and customers began to be suspicious, informed the authorities, and prompted Spiegelman’s arrest.  Eventually, he was extradited to the U.S., prosecuted, and sentenced to five years in prison in 1998.  But some people never seem to learn from their mistakes — or perhaps are just “unclear on the concept.”

In October 1999 — while he was supposed to be serving the remainder of his sentence in a halfway house — Spiegelman walked out of the facility, drove to Connecticut, and attempted to sell documents he had stolen in 1994 but had never disclosed to the FBI.  He was arrested and given an additional two-year sentence on May 24, 2000, by U.S. District Judge Loretta Preska.  (Spiegelman has been out of prison for a decade by now, but it is not known what he is doing.)

3.  Edward Forbes Smiley was a collector of early and rare maps and was instrumental in building up two major collections that were subsequently donated to the New York and Boston public libraries.  His knowledge, urbane charm, and charitable activities gained him the trust of several librarians and, in some cases, unsupervised access to their collections.  On June 8, 2005, however, the discovery of an X-Acto knife on the floor in the reading room of the Beinecke Rare Book Library at Yale University led to Smiley’s arrest for stealing maps.  (A later review of video surveillance film showed him removing a map valued at $150,000 from a book.)

At his sentencing a year later, Smiley admitted to having stolen a total of 97 maps from the Boston Public Library, Harvard’s Houghton Library, the Newberry Library in Chicago, the New York Public Library, and the British Library in London, as well as Yale UniversitySmiley admitted to the judge that he had been stealing maps for four to seven years!  He was sentenced to 3 ½ years in prison and ordered to pay $2.3 million in restitution.  At the time ten of the 97 maps were still missing; their whereabouts unknown.

4.  An author of well-received biographies of Jay Gould, Cornelius Vanderbilt, and others, Edward Renehan became the director of the Theodore Roosevelt Association in 2005.  Three years later, in 2008, Renehan pleaded guilty to stealing letters written by Presidents George Washington, Abraham Lincoln, and Theodore Roosevelt.  He admitted that he stole them from the Association’s vault at the house on East 20th Street in New York City where Roosevelt was born and that he then sold them to a Manhattan gallery for $86,000.

Renehan was sentenced to 18 months in prison and ordered to make restitution of the money to the gallery (which had returned the letters to the Association).  Renehan claimed that, when the thefts occurred, he was in the manic phase of what was later diagnosed as bipolar disorder.  Since his release from prison, Renehan has returned to being a publisher, consultant and writer, and occasional folk singer.  (He has a Website and can be seen on YouTube.)

5.  The most recent book thief was erstwhile presidential scholar Barry Landau.  In July 2011, Landau and an assistant (Jason Savedoff) were caught stealing books from the Maryland State Archives in Baltimore.  Following Landau’s arrest it was discovered that, over an extended period of time, the pair had stolen numerous documents from archives including Yale University, Cambridge University, the New York Public Library, and the Library of Congress.

On February 7, 2012, Landau pleaded guilty to theft and conspiracy charges.  He faces up to ten years imprisonment when he is formally sentenced this summer.  During a search of Landau’s apartment on W. 57th Street in NYC, 10,000 documents were recovered, 4,000 of which were traced back to libraries and repositories throughout the United States.  Many of the documents that were stolen by Landau over the last decade were sold to dealers, collectors, and — ironically — libraries and museums.  For example, four manuscripts of speeches by U.S. President Franklin Delano Roosevelt that had been stolen by Landau from the FDR Library on Dec. 10, 2010, were sold to a collector for $35,000.

Let us use the theft of the FDR speeches as an example of the issues that might arise if the Library has to sue to recover the stolen speeches from the collector.  But before doing so, let me make an observation about who steals books.

Theft of rare books or maps is not an impulse crime;  it is not smash-and-grab.  Typically it is someone who knows the field and knows what is worth stealing.  Occasionally the thief is literally “a thief in the night” (like Spiegelman or Blumberg), but far more frequently the thief is an employee (like Renehan) or a trusted reader/researcher (like Smiley or Landau).  While better burglar alarms and locked doors can reduce the risk of the thief in the night, for the others the challenge of prevention is all the greater because the most dangerous thieves are the ones you trust the most.

Let us now proceed to discuss the legal issues relating to recovering stolen goods.

Suing to Recover Stolen
Goods (“Replevin”)

As a practical matter, once the whereabouts of a stolen work is discovered, it may not be too difficult for the library or archive to obtain the return of recently stolen rare books or maps.  The first step in recovery is ascertaining who is currently in possession of the stolen work.  Depending on the thief’s candor, how much time has passed, and whether it has been resold more than once, it may or may not be easy to determine who has the book or map.  At that point, a lawsuit to recover the stolen goods (known as a “replevin” action) might not be necessary.  Most collectors do not want to keep an object that turns out to have been recently stolen, because the work will almost surely have to be returned to the rightful owner if there is litigation.  But, as a practical matter, a collector who has purchased in good faith will want to be reimbursed what they paid.  This is where the dealer who sold the work (assuming that it was not the thief himself) needs to become involved.

The dealer who sold the book or map that turns out to be stolen usually feels obligated to reimburse the customer as a matter of honor and good business (and to avoid bad publicity), even if he may not be able to recover any money from the thief.2  Thus, a three-way negotiation may need to be pursued in order to smooth the return of the property to the institution (and avoid the cost, burden, and notoriety of litigation).

Litigation may, however, become necessary for several reasons (such as the passage of time, which may permit the collector to assert one of the equitable defenses to be discussed below).  It also may be necessary because there is a dispute over whether the rare book, manuscript, or map is in fact the one that was stolen from the institution.

Proof of Ownership

In some circumstances, it can be hard for the institution to prove which works in a collector’s hands were stolen from the archive or library.  For example, even after Smiley admitted stealing a particular map (but could not remember from where), libraries were left to argue over which one of them owned it, having to resort to considering tears in the paper, worm holes, etc., as evidence of which library’s records were closer to the recovered work.  Often Smiley had changed the edgings on maps (to draw attention away from edges that he had cut), bleached out ownership stamps, or cut them out if they were near an edge.

Keeping a digital image of the maps or other valuable works in a collection would have been of significant help.  Even having a penciled Library of Congress or accession number would make identification easier.  Indeed it is the cheapest and most reliable marking on rare prints and maps, because even if erased, it can still show up under special lighting.

Title to Personal Property

Often when a collector unknowingly buys a stolen work from a dealer (or from another collector), there are two innocent victims: the institution from whom the work was stolen and the collector who bought it in good faith.

In our hypothetical, let us assume that the collector who bought the FDR speeches stolen by Landau was a “bona fide purchaser for value without notice.”  If the collector is forced to give the documents back to the museum, he has lost his $35,000.  (We can assume that it is unlikely that Landau still has the $35,000 to return.)  Conversely, if the collector is allowed to keep the speeches, the FDR Library (and the general public) has lost four valuable pieces of historical significance.

The laws in some countries favor the innocent purchaser; the laws in other countries favor the victim of the theft.  See Bakalar v. Vavra (CA2 2010).  In civil law countries like Switzerland, a buyer acting in good faith acquires valid “title” to stolen property after the passage of a fixed period of time, varying between three and ten years.  By contrast, in common law countries like the United States and the U.K., a thief can never pass good title.  Even a bona fide purchaser cannot acquire valid title to the property.

Thus, the FDR Library should not have much trouble recovering the works if the collector who bought the FDR speeches lives in New York City and fairly recently bought the work.  (But there could be a different result in Switzerland and even in the U.S. if significant time passed between the purchase of the work and the attempt to recover it.)

Potential Equitable Defenses

Museums, archives, and libraries need to be aware that, even in the United States, the original owner of stolen property may have problems in recovery if much time has passed since the theft.  Two equitable defenses may be asserted to balance the fairness (or “equities”) as between two innocent parties: statutes of limitations and the doctrine of laches.

The existence of state Statutes of Limitation (sometimes also called statutes of “repose”) can be a roadblock to recovery by the original owners from current holders of stolen art or books.  In general, if the original owner does not bring suit to recover the stolen property within the time specified by the Statute of Limitations, the owner’s right to sue is barred.  In general, claims for recovery do not “accrue” (and the limitations period starts running) until the owner discovers (i.e., learns) of “the facts which form the basis of a cause of action” (e.g., the identity of the current possessor).  The limitations period (which varies from three to ten years in different states) would then begin to run.

In New York, however, the courts have established an interpretation of the statute which is more favorable to original owners.  The limitations period does not begin running until the original owner makes a “demand” on the possessor for return of the stolen property and there is a subsequent “refusal” by the possessor.

Because the demand and refusal rule may seem to encourage or at least permit the original owner to “sit on his hands” and wait an unreasonable time to sue, courts in New York have invoked the doctrine of laches to protect a good faith purchaser of stolen art from unreasonable delay.  Under this doctrine, the original owner must exercise “due diligence” in pursuing his claim for recovery and will lose his right to sue if the current possessor was prejudiced by the delay.

Thus, failure to search for the stolen property can doom a recovery.  See Guggenheim v. Lubell (NYCA 1991).  In that case, the Guggenheim Museum sought to recover a Marc Chagall gouache, allegedly worth about $200,000, that had been created by the artist in 1912 as a study for an oil painting.  The museum alleged that the work had been stolen in the 1960s by person or persons unknown.  The Guggenheim had never reported the theft to the police or to industry organizations; the museum had offered no proof that the work had been stolen; and no insurance claim had been made, because the theft could not be proven.  The case was remanded and the trial court instructed to examine whether the actions taken by the museum as the original owner were reasonable or not, and whether they were in accord with industry practice at the time.  At the same time, Lubell (the current possessor) would need to show that she was prejudiced by the museum’s delay in demanding the return of the work.

An Example of Sufficient
Due Diligence

In 1979, several precious 6th Century mosaics were looted from the Kanakaria Church in Cyprus.  In 1988, the mosaics re-surfaced in the possession of an Indiana antiques dealer named Peg Goldberg, and the Republic of Cyprus sought their return.  (How the mosaics came into her possession is another story.)  During the ensuing litigation, the evidence showed that, starting in 1979, the Republic of Cyprus took active steps to try to recover the mosaics, contacting and seeking assistance from many organizations and individuals, including UNESCO;  the International Council of Museums;  the Council of Europe;  international auction houses such as Christie’s and Sotheby’s;  and Harvard University’s Institute for Byzantine Studies; as well as leading museums, curators, and Byzantine scholars throughout the world.  The Republic’s embassy in the United States also routinely disseminated information about lost cultural properties to journalists, U.S. officials, and scores of scholars, architects and collectors in this country, asking for assistance in recovering the mosaics.  The overall strategy behind these efforts was to get word to the experts and scholars who would probably be involved in any ultimate sale of the mosaics.

The court held that these steps constituted adequate “due diligence.”  See Autocephalous Greek-Orthodox Church v. Goldberg (CA-7 1990).

Where to Turn After a Theft?

Fortunately, it is easier now than it was in 1979 (when the Republic of Cyprus began searching for the Kanakaria Church mosaics) for an original owner to spread the word about the theft and to try to locate the stolen items (and thus to perform his due diligence).  With the Internet revolution, there are a number of well-respected Websites on which one can list missing items and which dealers and potential purchasers can consult to see if art objects, rare books, maps, and manuscripts they are offered might be stolen.

To be sure that it is doing its “due diligence,” a museum, archive, or library that has suffered a loss should list its lost or stolen objects on these sites and regularly search them to see if any inquiries about the objects have been made.  And it is wise to regularly search eBay and dealer Websites that offer the type of objects that are missing to see if any of the lost works are offered for sale.  See S. Twomey, “Making A Difference: To Catch a Thief,” Smithsonian Magazine, April 20083 (describing how a Civil War buff discovered stolen historical documents for sale on eBay, leading to recoveries for the National Archives and other institutions).

Here are some of the leading Websites for listing stolen and lost art works:

The Art Loss Register (ALR)www.artloss.com — The ALR was founded in London in 1991 by major businesses in the insurance and art industries.  It describes itself as the world’s largest private database of lost and stolen art, antiques, and collectables to enhance provenance research and the tracing of stolen art.  The ALR allows the registration of any and all items of valuable possessions on the database (not just stolen ones) and facilitates searches on those lists by art dealers, insurers, museums, and collectors.  The registry thus acts as a deterrent to art theft because criminals will be aware of the risk which they face in trying to sell stolen pieces of art.

The National Stolen Art File (NSAF) — The NSAF is a computerized index of stolen art and cultural property as reported to the Federal Bureau of Investigation (FBI) by law enforcement agencies throughout the United States and the world.  The primary goal of the NSAF is to serve as a tool to assist investigators in art and cultural artifact theft cases.  Institutions, dealers, and the public can search an online version of NSAF at http://www.fbi.gov/aboutus/investigate/vc_majorthefts/arttheft/nationalstolen-art-file.  (But don’t bother searching for “maps”;  they are not listed as a category.)

The ILAB Stolen Books Database was established by the International League of Antiquarian Booksellers for books reported stolen after June 15, 2010.  On www.stolenbook.org, a bookseller can check if a rare book that is being offered has been reported as stolen.  The database is open to all ILAB booksellers.  They may enter details of books stolen from themselves or their customers.  Librarians and archivists may approach their local ILAB bookseller if they wish to enter any details of books stolen or if they wish to check if a book is listed.

MissingMaterials.org is a Website that was established in 2009 by OCLC Research to provide a long-desired venue for transparency about theft and loss in libraries and archives.  However, earlier this year OCLC announced that the MissingMaterials.org experiment will close at the end of 2012 and will be read-only until December 31, 2012.  According to OCLC, the service never achieved the broad usage and adoption that had been hoped for.  Only ten institutions registered WorldCat Lists, and few items were tagged.  And although there were 188 posts to the blog, “it is not clear if MissingMaterials.org contributed to recovery of any materials.”

While public reporting of lost archival materials is easier than ever, it must at the same time be noted that public and private museums, libraries, and archives have in the past been reluctant to disclose publicly that they have been the victim of a theft of rare or valuable items.  While the reasons for this reluctance may be understandable (such as the fear of embarrassment before the donor community), it is now generally seen as unwise and short-sighted to keep the theft of such items secret.  The shutting down of the MissingMaterials.org Website may signal a continued unwillingness of institutions to disclose the fact of their losses.4

Insuring Against the Risk of Theft

Nothing can really make up for the loss of an institution’s unique and irreplaceable cultural property.  But a property insurance policy with appropriate policy limits and coverages for special collections can be an affordable way to protect a library or archive from the most serious types of financial loss from theft.  Inherent in the process of purchasing an insurance policy is the development of a reasonable risk management (loss control) program covering, for example, security procedures, as well as fire prevention and suppression.  See Capron Hannay Levine, Chartis Insurance, “Loss Prevention and Insurance: Best Practices in the Protection of Historical Archives,” April 2012, copies of which were distributed at the 2012 Fiesole Retreat, and which will also appear as the Legally Speaking column in ATG, v.24#4, September 2012 issue.

The proper amount of insurance (known as the “policy limit”) for a library or archive to purchase depends in large part on how much insurance the institution can afford.  But it need not equal the total market value of the entire collection!  By definition, rare books and maps are “irreplaceable” but, in the event of a loss, insurance may cover the cost of acquiring a close second or possibly a state-of-the-art security system to avoid the “next time.”  It is important, however, to consult carefully with the institution’s risk manager or broker to make sure that the policy is a “replacement policy” and that it is the correct type of replacement policy.

Insurance premiums are largely market-driven, but libraries can reduce their own insurance costs to a significant degree by demonstrating a commitment to effective loss control. Some of the appropriate loss control measures for rare books, maps, and manuscripts include the following:

•   Install central station monitored alarms for the most vulnerable high valued areas

•   Control access to restricted areas and check readers’ bags before and after leaving the restricted area

•   Install security cameras in reading rooms and restricted areas

•   Conduct thorough background checks of all employees with access to special collections

•   Perform spot checks of special collections

•   Establish procedures for documenting and storing reader/researcher requests

Continuing Thoughts on
Book Theft

Uncomfortable as the issue of book theft is, it is important for archivists and librarians of special collections to regularly think about their collections like a thief would:

(1)  What is worth stealing?

(2)  How would you go about stealing the books?

(3)  Where would you go to sell the stolen books?

And finally, ask yourself: How do you know you have not already been the victim of a thief?

Thinking through the answers to these questions — and then working with your administrative and security teams to act upon them — will help protect your “children” from going astray and help find them if they do.

Endnotes

1.  Bill Hannay is a partner at the Chicago-based law firm Schiff Hardin LLP and a frequent lecturer on library-related topics at the Charleston Conference.  He is an Adjunct Professor at IIT/Chicago-Kent College of Law and author of numerous books and articles.  He may be contacted at <whannay@schiffhardin.com>.

2.  Dealers caught in the middle are unlikely to be indemnified by their insurance companies.  Insurers take the position that a dealer who must return stolen art to the rightful owner (or reimburse their customer who bought in good faith) has not suffered a direct physical loss, so it is not a covered loss.  It’s a “legal” loss.

3.  Available at http://www.smithsonianmag.com/specialsections/making-a-difference/to-catch-a-thief.html?c=y&page=1.

4.  Or, more optimistically, it may simply mean that there have been fewer thefts, but the arrest and conviction of Barry Landau suggests that the problem of book theft from institutions is a continuing one.

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