Editor's Note: The following article about a controversy involving an art collection that had been loaned to the Dallas Museum of Art and then removed under rather mysterious circumstances was written by Antony F. Anderson, a British electrical engineer who is a son-in-law of the late Anthony Denney whose former art collection is the subject of the article. Despite such an apparent conflict of interest, the issues raised in the article are important and merit attention. Further information can be found at http://museum-security.org/denney/index.htm
As a protection against similar loan misappropriations, Anderson suggests the creation of a public register of loan collections, accessible via the Internet. The system could be part of a wider distributed cataloguing system for works of art that would serve the needs of artists, collectors, museums, and researchers.
Carter B. Horsley, Editor, The City Review
Hamlet
By Antony F. Anderson
A 4-year study by leading international art law experts under the auspices of the International Bar Association based in London and published in June, 1997, by Kluwer Law suggests that art loan controversies are far more common than might be supposed. It notes that loans rely too heavily on good will and trust instead of properly drawn up loan agreements that anticipate possible future problems.
A major example of an art loan failure, mentioned in the IBA study, involves the Denney Loan Collection, which was removed in a rather irregular manner from the Dallas Museum of Art in 1990 after the death of its 76-year-old owner Anthony Denney. The collection, today worth several million dollars, contains works of art by comprising modern works of art by Karel Appel, Franco Assetto, Alberto Burri, Horia Damien, Jean Dubuffet, Lucio Fontana, Sam Francis, Horst-Egon Kalinowsky, Georges Mathieu, Louise Nevelson, Jean-Paul Riopelle, Antonio Saura, Antoni Tapies, Pavel Tschelitchew, Victor Vasarely, and Emilio Vedova.
The Denney case illustrates that reliance on good faith between lender and borrower is insufficient protection against the possible risk of a determined conspiracy by third parties.
Forged letters were used to move the Denney Loan Collection from Dallas to Toulouse, France, where the collection was then hidden and later moved to the City’s old Abattoirs, and where by a much-trumpeted act of donation they were subsequently made to appear as an apparently bona-fide gift to City of Toulouse.
Art Loans are no exception to Murphy’s law, which says says that if anything can go wrong it will, here are three of many possible examples:
"Chinagate" in which a major donor of Chinese paintings to the Metropolitan Museum of Art in New York threatened in 1997 to remove them because, he claims, the museum violated its contract with him. (See The City Review articles that also raise serious questions about the attributions of many Chinese paintings at the museum from the C.C. Wang collection.)
"The Robin Hood of export porcelain" According to the Art Newspaper of September, 1997, John Quentin Feller, one time professor of history of Scranton University and eminent Chinese export porcelain scholar, stole in order to lend and give generously. The report maintained that he gained privileged access to eight museums and private collections from which he stole over 100 items over a course of two decades. He frequently loaned or donated his acquisitions to other museums. For example, he stole eighteen objects from the basement of the Wadsworth Atheneum in Hartford and gave them to the Peabody Museum in Salem, Massachussetts, which responded by making him a trustee. He was finally caught in 1991 stealing a piece of George Washington's dinner service from the Wintherthur Museum in Wilmington, Del. He was jailed for eighteen months, fined $30,000 and expelled from the University. One wonders how careful the Museums receiving these unsolicited loans and donations were to check their provenance.
Children sue stepmother over Morisot painting. According to a June 12, 1997, article in the San Francisco Examiner, the children of the late Prentis Cobb Hale, millionaire department store owner, are suing their stepmother, Denise Minnelli Hale, and seeking punitive damages for the return of an $800,000 oil painting by Berthe Morisot titled "En Bateau sur le Lac de Boulogne," currently on loan to the De Young Museum in San Francisco. The article said they claimed, in a lawsuit filed in March 1997, that in 1958 their father used $15,000 held in trust for them to buy the painting and that it therefore belonged to them. Denise Hale maintained that her husband - the heir to Carter Hawley Hale Stores, Inc. - had used his own money to purchase the painting, and that he had given it to her while he was alive. Hale said she planned to leave it to The City of San Francisco in her will "so that everyone can enjoy it". This example illustrates how easy it is for museums to be drawn into ownership disputes unless they exercise due diligence in checking that prospective lenders and donors have full title to what they claim to own.
A December 24, 1997 article by Judith H. Dobrzynksi in The New York Times about the Dr. Rudolf Leopold collection of the art of Egon Schiele on view from October 10, 1997 through January 4, 1998 at the Museum of Modern Art in New York - and formerly exhibited at institutions in London, Zurich, Tokyo and in Tübingen, Hamburg and Düsseldorf, Germany - contained some works of questionable provenance and condition and raised questions about the responsibilities of museums to oversee their loans. Dobrzynski said the presentation of the Leopold collection "raises serious issues for museums that show individuals' collections: What should they know and care about how the works came together?..." A follow-up article January 1, 1998 by Dobrzynksi in The Times disclosed that the Moden Museum has been asked not to return two major works in the Leopold exhibition until issues of provenance have settled. The Leopold collection was acquired by Austria in 1994 and put in a private foundation that is building a museum for it in Vienna. The exhibition is scheduled to be shown next in Barcelona, Spain. (See The City Review article on the Schiele Affair.)
Professor Norman Palmer, Rowe and Mawe Professor of Commercial Law, Faculty of Laws, University College, London, and a team of international experts have recently completed an exhaustive four-year study of Art Loans for the International Bar Association that has been published as "Art Loans" by Kluwer Law.
Prof. Palmer regards the modern art loan as an essential medium of cultural exchange and argues that without such mechanism no major traveling exhibition could be mounted. He indicates that there are many pitfalls lurking within every art loan ready to catch the unwary and says that loan agreements place far too much reliance on trust and goodwill and too little on putting in place a legal framework to cover unlikely future events.
Great attention, he observes, is usually paid to everyday issues such as valuation, insurance, security measures, humidity control, orderly paperwork and practical redress in the case of misconduct, but loan agreements are made routinely without specific legal advice being taken. Furthermore, he continues, potential issues for dispute such as title, duty to exhibit, authenticity, attribution, and the choice of law venue for settling disputes tend to be treated as of little importance.
We can see immediately how vulnerable the art loan system is to attack once the relationship between the lender and borrower becomes weakened, or broken by age, infirmity, distance or death. Loan agreements must realistically take these possibilities into account.
The basic facts in the Denney case are the following:
With hindsight, we can see that these surrounding circumstances made the collection vulnerable to attack. However, if a conspiracy by third parties had been anticipated as a remote possibility, a number of checks and procedures could have been put in place that would have made the success of any conspiracy unlikely. But I jump ahead…
Anthony Denney, born in 1913 in Norfolk, England studied Fine Art at the Royal College of Art in London. During World War II, he was in the Royal Engineers, finally ending up in India with the rank of Captain and engaged in Military Intelligence. He had the good fortune to visit China and Tibet in the process. Photographs show him riding a yak, an achievement of which he was proud. While in India his earlier photographic work was brought to the attention of Audrey Withers, then the editor of Vogue, leading him to post-war prominence as Decorations Editor and to other work for the Condé Nast organization and to a parallel career advising the famous and wealthy on interior design for their houses and yachts. Always a perceptive collector he became fascinated by new trends in art during the 1950’s and 1960s. His keen eye spotted promising artists before they became known, such as Appel, Burri, Dubuffet, Fontana, Imai, Mathieu and the Japanese Gutai group. He bought their works at very reasonable prices to form the nucleus of what later became his loan collection.
His marriage to Diana Ross, a writer of children's books by whom he had three children, had ended in divorce in 1950. Denney kept in touch with his children and for several years Sarah, one of his twin daughters, kept house for him. In 1970, he remarried and retired to Spain where he bought and restored the ruined 12th Century castle of Salvatierra de los Barros, not far from the town of Zafra in the province of Extramadura. This splendid castle built by Crusaders on the Syrian pattern had been a ruin since the 14th Century. He solved the problem of housing his collection by lending the most important part - conservatively valued by Sotheby's in 1992 , when the bottom had fallen out of the art market as worth $2 million, but now worth upwards of $5 million - to the Dallas Museum of Art. (Sotheby's valued Alberto Burri's "Sacco IV" at £100,000, whereas the city of Toulouse had been negotiating to buy it at £200,000 the previous year and a figure of £300,000 to £400,000 is a more likely value in the 1998 art market.) The loan arrangement seems to have been for an indeterminate period and of a rather informal nature, but it seems to have worked well for twenty years. Denney appeared to have kept the knowledge of the whereabouts of the collection largely to himself.
Anthony Denney died of a sudden heart attack on April 30, 1990, in his castle and his funeral took place the same evening, with his children unable to get there in time and only the villagers present.
The long obituary in The London Times of May 15, 1990, described Denney as a photographer, art connoisseur and collector and mentioned that "part of his modern art collection was at one time on loan to the Tate Gallery." His death was not picked up by the rest of the media and did not become known in Dallas.
In mid May, 1990, abut two weeks after Denney's death, the Dallas Museum of Art received a latter, provided with other correspondence subseqently in 1991 by the museum to the Denney heirs and submitted as evidence in their inheritance claims in Spanish courts, that was signed "Anthony Denney" and dated April 27, 1990, three days before his death.
In the letter, Denney wrote:
"Now, however, it is my wish to reunite my collection in Europe. To this end I am arranging a long term loan tothe Musée d'Art Moderne de Toulouse, France, under the directorship of Monsieur Alain Mousseigne.…From now on all arrangements will be conducted by Monsieur Mousseigne himself, with my authorization, and he will be writing to you directly from Toulouse."
The implications of the letter are clear. From now on, M. Alain Mousseigne, Conservateur of the Toulouse Museum, is to be Mr. Denney’s agent and he will pay transport costs and insurance. The Dallas museum duly acknowledged Denney’s letter saying that they would wait to hear from M. Mousseigne.
Over the next few months letters passed between the museum and Mousseigne arranging transport. Then, in July, 1990, the museum wrote to Anthony Denney, whom they supposed to be still alive, suggesting that he might care to update the insurance values. They received a reply, dated August 22, 1990, with the updated values, signed, "Anthony Denney". The writer excused the inevitable delay in replying by claiming to have just come back from holiday!
Still believing Mr. Denney alive, the museum completed transport arrangements with M. Mousseigne and the collection was airfreighted to France in November, 1990, under the high security appropriate for such a valuable cargo. (Had the museum got wind of Denney’s death it would have been a different story. They would have required sufficient proof of ownership before releasing the pictures, such as a grant of probate from a U.S. court, accompanied by duly authenticated supporting documents from Spain. The key document would have to be a notarised declaration of inheritance, with the paintings listed on the inventory, that showed to whom the pictures now belonged.)
The works entered France as the property of the supposedly living Anthony Denney. On the shipping order was written:
On arrival in Toulouse the pictures were hidden for the time being.
In the summer of 1990, long before the pictures had arrived in Toulouse and about a month before the second letter from "Mr. Denney," negotiations were already in full swing between Denney’s widow and M. Mousseigne. She claimed that she was now sole owner of the pictures, by virtue of being residual legatee of her late husband’s estate, and she was now proposing to donate the collection to the City, as if a gift from her, in fulfillment of his last wishes, or so she said.
The widow’s claim was based on her assertion that English Domestic Law applied and that therefore Denney’s children by his first marriage did not have rights to a legitimate portion of the estate under Spanish Law. (One-third on death and a second third in which the widow had a life time interest.) The grounds for her assertion were not particularly well founded, since the issue had never come before the Spanish Supreme Court and there were no existing judgments that would indicate how the Court might rule if asked to decide the Denney case. Therefore if the City should take the widow’s claim at its face value, there could be no guarantee that ownership would not be challenged in the courts, nor could there be any certainty in the outcome.
A further element of risk arose because, although the widow had managed to convince the Spanish authorities that the entire estate devolved to her, she had not declared the pictures on the inventory of her Declaration of Inheritance. The castle - described as a ruin, surrounded by a few acres of land and a few fig trees and valued at $120,000 - was the sole item listed. Its valuation formed the basis on which the inheritance tax was paid. The pictures therefore remained undisclosed assets of the Denney estate. By not claiming the pictures as part of her inheritance she may have minimised inheritance tax, but she also denied herself the documented proof of change of ownership. Furthermore, if the donation later became known to the Spanish authorities, they might demand payment of outstanding inheritance tax and exact a penalty for hiding assets.
It seems, however, that the city authorities in Toulouse were more than happy with the prospective donation, notwithstanding the risks of inheriting a substantial tax liability. A memorandum from M. Alain Mousseigne, Conservateur of the Museum of Modern Art in Toulouse to an official in the mayor's office, dated October 8, 1990, asks how the existence of the collection could be kept hidden from the Spanish authorities, who did not know of its existence. The city obliged with an Act of Donation, finally signed in September, 1993, that claimed to pass ownership from the widow to Toulouse, and to empower the city to defend its title. It also contained a clause committing the city to pay any outstanding costs of acquisition of the collection.
The Act categorically states that "English Law" applies and that therefore "the universal disposition to the profit of Madame Denney has been able to produce its full and entire effect," yet it also admits that the claim has been challenged in the Spanish courts.
Although the donor claims in the Act that there exists no obstacle as far as she is concerned, either legal or contractual, to the free disposition of the goods donated, she produces no evidence to show that they are actually hers.
This Act is therefore a far less certain instrument of conveyance than it appears. The quality of the title passed to the City of Toulouse is neither better nor worse than that possessed by the donor and the quality of her title is still a matter for the Spanish courts to decide.
Denney’s three children by his first marriage were not aware about what was going on in Salvatierra and Toulouse during the summer and autumn of 1990. But at the end of September, 1990, they each received a copy of Denney’s Spanish will and an explanatory letter from his widow. The letters implied that their father’s estate comprised merely the castle and the surrounding land - no mention of the pictures - and that the will disinherited them. However, when they read the will they found it said something rather different: the disposition in favor of the widow as residual legatee was without prejudice to the legitimate rights that the children might have under their father’s national law. Which begged the question: what might these protected rights be in the case of an Englishman making a Spanish will who was domiciled in Spain? They initiated litigation to establish the point, which now has reached the Spanish Supreme Court. (The initial inheritance claim was lodged with the Court of Jerez de los Caballeros in Extramadura, Spain, May 10, 1992 in what is known as "non-contentious proceedings." The judge in the case allowed it to go to "contentious proceedings" July 20, 1993, on the grounds that the widow was contesting the claim of the Denney children to be recognized as heirs. In November, 1993, the case, known as a full demanda was presented to the Court of First Instance and a judgment was delivered January 30, 1995, in favor of the three Denney children. The ruling was appealed to the Provincial Appeal court and a July 11, 1995, ruling went against the children on a matter of procedure rather than substance. The matter has been before the Supreme Court since November 1995)
Before proceeding with litigation, the children had been advised by their lawyers to establish the extent of Denney's estate. Therefore they had to find out what had happened to his collection.
Anthony Denney had acquired a reputation over the years for squirreling away his possessions in the attics of obliging friends against a rainy day. Every now and again he would visit his friends, reclaim a few items and disappear again. This became a bit of a family joke and sometimes a family problem. He was not always terribly popular with some of his friends with attics, because - with the passage of time - they needed the space themselves: then it sometimes fell to his children to tactfully sort out some new arrangements. Therefore, when they heard that he had passed on without leaving the slightest trace of an art collection behind him, this struck them as rather implausible. Yes, the castle with its massive water cisterns in the towers and its beautifully polished marble floors had cost money to restore, but the sale of a Fontana or a Sam Francis would probably have paid for it all twice over. So what had happened to the rest of the pictures? The records were locked up in the Castle and could not be examined, but Denney had lent to public institutions in the past and there was always the hope that some might have kept records of his loans to them.
After a great deal of research, the breakthrough came from the Tate Gallery Archives in London in the early summer of 1991. Six pictures on loan to the Tate and belonging to Anthony Denney had been sent to an undisclosed destination in Texas in 1970. Without much expectation, letters were sent off to a number of Texas museums soliciting help. Various letters came back regretting that they had no pictures, but wishing good luck in the search. Then one day there was a transatlantic telephone call from the Dallas Museum: the good news was that there were 23 pictures; the bad news was that the pictures were in Toulouse. Up till that day the Dallas Museum had believed that Mr. Denney was alive.
From the extensive information the Dallas Museum provided, it became clear that Anthony Denney’s total collection of works of art numbered over 300: of which 130 were described in detail as being his loan collection, the remainder not being named and being retained in his personal collection. Of the 130 loan items, 30 were lent to Dallas in 1970, of which 23 were still in Dallas in 1990, six having been sold in the intervening period and one, "Sacco IV," having been lent on to the 20th Century Italian Art Exhibition in London in 1989. Of the remaining 100 items in the loan collection, 15 pictures on loan to various UK institutions - including Mathieu’s "Battle of Hastings" on loan to the French Institute in London - were also moved to Toulouse in 1990-91 in a quite unauthorized manner, bringing the number moved there after Denney’s death to 38. It seems that the eventual size of the "Denney Donation" was to be 69 pictures, some subject to usufruct, to which was to be added Burri’s "Sacco IV," to be purchased in secret from the Widow, bringing the total to 70
In the autumn of 1991, the Museum of Toulouse was put on notice concerning the potential rights that the Denney heirs might have under Spanish Law. Nevertheless, the City of Toulouse proceeded with its plans for accepting a donation from the widow. The heirs tried to take conservatory action in the Toulouse courts to prevent donation or sale. The full extent of the basis of their claim as heirs, as presented in the Spanish Courts, was tabled in the French Court: notwithstanding, the heirs were unsuccessful in blocking the Donation, which went ahead in September, 1993 in the full and public knowledge that ownership was the subject of litigation in Spain and that the donor did not possess a clear title.
The City claims the collection to be a gift from heaven and one that it could not have refused.
The reality, in my view, is different.
The facts are: the collection was extracted from Dallas by forged letters; it remains undeclared to the Spanish Tax authorities; it is the subject of litigation in Spain; and, finally, it appears not to be a gift at all, but a barter arrangement between the City and the widow. The agreement was for the City to purchase Alberto Burri's "Sacco IV". The city had to get the approval of the Musées de France to purchase the painting from an "unknown collector" for 2,000,000 French Francs in 1991. This is documented. Finally after repeated questioning by the opposition in the Town Council, the Mayor admitted that the unknown collector was Mme. Denney. The purchase of Sacco IV has never actually gone ahead because the Mayor Has come under pressure from the opposition in the Municipal Council to explain how, if it is a donation, the City is proposing to buy "Sacco IV" from the widow and why it is paying her legal expenses in Spain. The argument is on whether or not there has been an improper use of public funds. The donation is clearly not the simple gift without strings attached, as it has been presented to the Toulousain public.
Toulouse Mayor Dominique Baudis says that the ongoing litigation in Spain between the heirs and the widow is a private matter in which neither the state, nor the region, nor the city is in any way involved. Technically this is true. Yet at the same time he justifies the use of public funds to pay the widow’s legal expenses in Spain because he considers that she is defending the interests of the City of Toulouse.
Denney's widow claims that because Mayor Baudis is not involved in the Spanish Litigation he is placed at an unfair disadvantage in defending his title to the pictures: in her view he should have been able to make his views known at the Spanish proceedings and because he was unable to do so the case should be thrown out. The judge of the Court of First Instance at Jerez de los Caballeros rejected this argument January 30, 1995, on the basis that the defense had failed to demonstrate that the collection had ever left the Denney estate. The judge in the Provincial Appeal Court in Badajoz, Spain, decided, July 11, 1995, to allow the argument and granted the appeal: throwing the case out without considering the heart of the matter.
An appeal to the Tribunal Supreme, the highest court in Spain, from this ruling was lodged November 8, 1995, and admitted June 20, 1996. All stages have been completed and a final verdict is awaited. However the judgment is unlikely to be until late 1999.
The Denney case demonstrates how vulnerable loans are to attack by third parties and the need to give loans the same protection afforded to a museum’s own collection. If the poaching of loan collections became acceptable practice, which collector would then feel they could safely entrust their collection to a museum? Might not the whole Art Loan system then run the risk of collapse?
Openness is the best protection of all.
If the existence of Denney's collection had been widely known, nobody would have tried to hijack it because the risks of discovery would have been too high.
In "Lessons from the Denney Collection" (see article at http://museum-security.org/denney/index.htm), I suggest the use of the Internet for the worldwide sharing of information about Art Loans and, for want of a better name, have called the idea "Denney Net". The system would record and track art loans from the moment that the object passed into the public domain. Everyone would be able to follow a picture if it became part of a traveling exhibition, for example. I believe it would help raise the level of security for art loans to an acceptable level. It would be complimentary to the Art Loss Register (http://www.artloss.com), a permanent computerized database of stolen and missing works of art, antiques and valuables, operating on an international basis to assist law enforcement agencies in the battle against art theft.
The objectives of the Art Loss Register are to:
A worldwide register of art loans would have complementary objectives to the Art Loss Register and the distributed database structure, as far as I can judge, would be very similar.
Collectors: you should draw up loan agreements that take into account the remote possibility that someone may try to "hijack," or abscond with your Sam Francis, or Fontana, or whoever. But even the best loan agreements cannot cope with every situation. For example, what about the time when family and friends are preoccupied with funeral arrangements and giving you a good send off at the crematorium? Who will be thinking about the safety of your collection as your friends are reminded of your brief span of life on earth? This is just the right time for a good impersonation and the perfect moment for a hijack! So to preserve your heritage for your rightful heirs, not only draw up proper loan agreements and cover all the loaned items in your will, but also make sure to send each loan museum a copy of your obituary!