This post is adapted from the paper I have recently presented at the “Regional Workshop on the Conventions on the Illicit trafficking of Cultural Objects”, which was hosted by the Jamaican Ministry of Culture, Gender, Entertainment and Sport. This workshop was held at the Jamaica Pegasus, from March 2-5, 2020. Among the topics for discussion were: Jamaica’s restitution claims, the steps required for Jamaica to become signatory to the relevant treaties and conventions, international best practices, and measures to mitigate the illicit trade and any other inappropriate or undesirable export of cultural goods. These measures include the proposed establishment of a Register of Significant Cultural Goods which would be subject to certain restrictions with regards to trade and export.
In my presentation, I moved away from customary focus on antiquities in discussions on illicit trade and restitution, and focused instead on modern and even contemporary art. You may ask, why bring up contemporary art in such a discussion, as this is a field where cultural and market values are still being negotiated? History has shown us that this may happen very quickly and that a lot of what has been lost in terms of already recognized cultural heritage occurred because its value was not recognized in its own time and the necessary steps were not taken to protect it then. Discussions about cultural heritage preservation cannot neglect the present or, for that matter, the future. It must be informed by a keen eye on changing cultural dynamics and new developments in creative production, so that wise, well-informed decisions are made about what will be the Significant Cultural Objects of the future.
My focus in this paper is on the issues that surround private art collecting in Jamaica, and some of the activities, services and problems that surround it, particularly the fraught dynamic between private art collecting and public cultural preservation. While most of our discussion in the MCGES workshop was, by virtue of its focus on international conventions and treaties, concerned with cross-border transactions, I spoke mainly about domestic dynamics. My position is that we cannot discuss legal and policy frameworks, restitution issues, and ethical standards with regards to the international trade in cultural property, without considering the problems that occur on the domestic level, as the two are deeply connected. Given certain recent events and developments here in Jamaica, and elsewhere in the Caribbean, there is some urgency there.
A significant part of the problem in the Jamaican context, and in much of the rest of the Caribbean, stems from the informality of the local art market, of which a significant part is entirely off the record and undocumented. This means that much of the trade in art falls outside of the tax net, which is an issue in and of itself, but the secrecy that surrounds the art market in Jamaica also means that proof of ownership is often lacking and that it is very difficult to establish and document provenance, let alone to keep any tabs on how Jamaican art circulates locally or in the international market. This lack of transparency leads to the potential loss of important works of art for Jamaican public collections and makes ventures that may help to mitigate any illicit international trade, such as the proposed Registry of Significant Cultural Objects, very difficult to implement.
Needless to say, this informality also opens the door wide for all sorts of other art market problems, such as art theft and forgeries, and also facilitates the potential involvement of money laundering activities. While the latter is hard to substantiate, it is well documented that art theft has occurred on a number of occasions in Jamaica in the last two decades. It has involved the theft of work by certain well-recognized, up-market artists, in heists that were obviously carefully planned and deliberately targeted, but also more random and pedestrian motivations, such as the scrap metal trade. Forgeries have in recent years also occurred with some frequency in Jamaica, although it is not clear whether they originate locally or are created elsewhere – I suspect that it is a combination of both. From what I have seen recently I have good reason to believe that high quality forgeries of the work of certain major Jamaican artists are again circulating, locally and potentially also internationally. If there is no practice of producing and expecting proper provenance documentation, such fraud becomes a lot easier and is much harder to control.
None of this is in the interest of the preservation, reputation, and good management of Jamaica’s cultural heritage, of course, or of the general health and welfare of its art world. There is an urgent need for formalization, documentation, and judicious regulation of the local art market, without lapsing into prohibitive over-regulation, as well as education about why sensible documentation is beneficial. Artists, for instance, often resist the notion that they, too, might have to pay taxes but fail to understand that it is much harder to insist on intellectual property benefits, such as resale royalties, if first sales are not on the record. Art collectors, on the other hand, typically take the view that their holdings are a strictly private matter and that making such holdings available in the public domain is discretionary. That their holdings may be part of the collective cultural property of Jamaica is only rarely a consideration – there is a difference between moral or cultural and legal rights here, but both matter.
Ironically, it is impossible to sell any real estate or even the cheapest, most run-down second-hand car without a proper title, and these are mechanisms that are quite well-regulated in Jamaica, but works of art that sell for prices that may rival those of the country’s omnipresent luxury cars change hands without any documentation of the transaction or the new ownership – it is privileged knowledge to those few who might know, which is not good enough for art works of significant importance. It might be helpful to introduce a formal titling system for duly authenticated art works over a certain value, without which no property transfers could take place, and that such titled art works should also be subject to the sort of export permitting similar to what for instance exists in Cuba and other countries that take their cultural heritage seriously, with a provision for a right of first refusal for the relevant public collecting institutions in the case of permanent exports.
As Kevin Farmer, Deputy Director of the Barbados Museum and Historical Society, pointed out in the workshop, the Barbados National Gallery Act, which provides the legal foundation for the establishment of such an institution, includes a provision to control the export of Bajan art. Unlike Barbados, and the other countries that have such institutions in the region, however, Jamaica has no National Gallery Act – the National Gallery of Jamaica (NGJ) falls under the general provisions of the Institute of Jamaica (IoJ) Act, in which the NGJ is not even mentioned and its functions only most vaguely outlined. There is no provision in the IoJ Act for any controls on the export and local private sale of Jamaican art, for the preservation of significant art works, of the work by a particular artist, of particular categories of art, or of private collections that may be of national import (or for any other cultural objects, for that matter). For now, such powers reside solely with the JNHT, which is preoccupied mainly with monuments, sites, and archaeological artifacts, and only theoretically with the visual arts.
Legal reform is surely needed to address these gaps, whether this is through the JNHT, the IoJ or a proper NGJ act, which is the route I would prefer, as I believe that a specialized approach is needed for the visual arts, as this involves (or should involve!) specialized skill sets. The NGJ is in fact the only such institution in the Caribbean region that is not supported by its own statute and, in my view, this anomaly should have been corrected years ago, as it is detrimental to the institution and its governance, and potentially, even its long-term survival. The institution can cease to exist, or be merged with another museum, with the proverbial stroke of the pen – an earlier post on this subject can be found here.
The informality of the local art market is also a major problem for NGJ acquisitions, although the majority of these have in recent years been from living artists. The ICOM Code of Ethics provides quite clear guidance on the standards that are applicable to museum acquisitions, in terms of the need for title, but it is difficult to enforce this in a context where provenance and ownership documentation are more often than not non-existent. The lack of transparency and any specialized regulatory framework in the Jamaican art market also has other consequences and there is a difficult subject I need to broach here: namely the conflicts that arise from the way in which the NGJ has been interacting with private collectors, which goes well beyond the normal practice of cultivating good relationships with collectors for loans and as potential donors.
As with most public entities in Jamaica, the board of the NGJ is politically appointed and changes with any change in government administration, which is in itself detrimental to the institution. This results in a lack of consistency in policy direction; difficulties with implementing policy directions that require long-term commitments and strategies; and a partisan politicization of the institution, among many other problems. The NGJ board typically includes art collectors and dealers, and there have also been senior staff members who are themselves major collectors and who are actively involved in the art market – major areas of potential conflict of interest of course arise there. Some of these board and staff members are furthermore also artists, which adds yet another potential layer of conflict of interest. Not surprisingly, these conflict of interest concerns have been a source of repeated controversy in the local art world since the NGJ was established in 1974.
Some of the main art collections in Jamaica are owned by persons who have been closely associated with the NGJ and some of its senior professionals have also served as advisors or provided other services to these collectors. Needless to say, these collectors are typically persons with significant social and political capital, and significant wealth. Some of their collections rival the collection of the NGJ in terms of size and quality and are chock-full of works of art (and antiques) that surely ought to be on the proposed national Register of Significant Cultural Objects. To give an example: about half of the works in the recent John Dunkley retrospective at the Perez Art Museum in Miami, which also traveled to Jamaica, belonged to two major collectors who had been closely associated with the NGJ while the NGJ itself lent, if I recall well, a mere five works, all but one of the major Dunkleys it owns. John Dunkley is one of the most sought after self-taught Jamaican artists and the market values of his rare works have in the last two decades escalated to being among the highest in the local art market.
The vexing thing about these private collections that have emerged in close association with the NGJ is that they include museum-quality works that should arguably have been in public hands. The standard excuse has always been that the NGJ does not have the resources to compete in the art market, which is as such true and an issue that also needs to be addressed, and there had been informal understandings that the collectors would “perpetually” make their holdings available to the institution for exhibitions and long term loans, and might also bequeath or donate them. History has already proven that such informal “goodwill” understandings cannot be relied upon and are in any case a problematic way to provide public access to such cultural holdings. Insisting on well-documented, legally binding promised gifts, under appropriate circumstances and terms, may be a wiser manner to manage such issues. In fact, it may have to be a required “quid pro quo” for collectors to sit on the board or staff, in keeping with the “give, get or get off” dictate that governs many museum boards elsewhere.
Such conflicts of interest are hard to avoid in small island societies, where specialist art skills are scarce and poorly appreciated; where entitlement runs extremely high; where the nefarious effects of conflict of interest are often poorly understood, or simply disregarded; and where too many highly placed, well-connected individuals are regarded as deserving of special accommodations. The stakeholders in the public cultural sector must nonetheless insist that such issues be managed in a way that is ethical, transparent, equitable, and sustainable – there is just no other way this can be handled credibly. There is, in particular, an urgent need for clear, enforceable policy guidelines on how private collecting by associates should intersect with the interests and activities of institutions such as the NGJ, which may range from how to manage any competition with the collecting activities of the museum to preventing the potential misuse of position, association, and insider information to obtain preferential access, inappropriate gifts, or concessionary sales prices. Many museums abroad, including the National Gallery which is being established in Barbados, require an annual declaration of assets and interests from their board members. There also need to be clear guidelines, beyond the Staff Orders that obtain in government, to control any inappropriate involvement of the museum staff in the art market or in providing private services for collectors and the market, such as commercial appraisals, cataloguing services, or advisory services.
The ICOM Code of Ethics provides general conflict of interest guidelines for museum professionals (including board members) and specifically speaks to the matter of members of the governing body and staff who are also collectors, as well as any involvement in dealing and appraising. At the NGJ, where I was Executive Director at the time, the Code was adopted by the then board in 2010 and reaffirmed in 2012. It would be interesting to know what the current policy position is on this code.
The point is, however, that adopting the ICOM Code of Ethics is not enough and that a specific, well-considered and published code of ethics is needed for institutions such as NGJ, to which all members of staff and the governing body are automatically beholden, no matter what social and political capital they may have, and against which they can be held to account by the relevant authorities, stakeholders and the public alike. I refer to the published ethics policies of museums such as the Tate Gallery in London or MoMA in New York City, which are readily accessible on their websites, as potential models. The NGJ’s problems, while particular in many ways, are not unique in the region and there should also be a general code of ethics for Caribbean Museums, which takes into consideration the specific challenges involved in operating in small postcolonial island states. This could be piloted by the Museums Association of the Caribbean, which is an ICOM-affiliated organization, and the organization of which most museums in the region are members.
Two private collections that were closely associated with the NGJ – let’s call them “Collection A” and “Collection B” – have recently been subject to major discussion in the art world, as they are collections of national interest and the collectors have both passed away. For various reasons, which include poor planning and financial needs arising from illness, no arrangements were in place for these collections to be preserved in the long run. Ironically, both collectors had spoken during their lifetime about plans for this to be done and for the mansions in which they housed these collections to become private museums. This would have required carefully thought out business plans as well as State support, which cannot be taken for granted in Jamaica’s emerging economy, but it might have been possible to come up with sustainable arrangements.
One of these collections has already been largely dispersed, a process that was very poorly handled, but we have been told by a representative of the Estate that a number of key works have been preserved and that this core collection “will be available for exhibition from time to time.” What exactly this involves, and who has the ownership and custody of this core collection, and under what terms they will be available and to whom, is however not clear. The sale of collection B, as with collection A, started when the collector was still alive, as I understand that this particular collector, perhaps alerted by the shocking handling of collection A, wished to sell key works to credible collectors before he died. He had also planned a book on his collection but death took him before that project came to fruition. I do know that several key works from both collections have already been sold to overseas collectors, and that more will soon be offered for sale, and it is unlikely that any of these works will ever to return to Jamaica. It is as yet unclear whether any works from the second collection will end up in public Jamaican hands. The two mansions, which are both of significant historical and architectural interest in their own right, have been sold to developers and will likely be demolished soon to make room for luxury condos.
Let me be very clear, I am not in any way suggesting that Jamaican art should not be traded in the international market – on the contrary, I’d like to see more, rather than less of it, and for Jamaican art to be well-represented in major museum collections abroad, albeit using appropriate channels and trade protocols. Nor am I suggesting that major works of art should not be in private hands, locally or internationally, or that the international sales from Collections A and B involved illicit trade. Cultural preservation is, however, important and steps must be taken to ensure that key examples of Jamaican art remain in the country and are accessible to the Jamaican public, as they are part of the country’s cultural heritage. Major art collections are, furthermore, important cultural artifacts in and of themselves and some ought to be preserved in the public interest. I am not aware of any precedent, and the practical and political ramifications may have been prohibitive, but I suspect that the JNHT could have declared the two collections, or at least part thereof, which would have resulted in non-negotiable obligations to maintain them and perhaps even to make them publicly available. It would be very interesting to find out what is legally possible, or might become possible in the future, and whether the JNHT would have been legally equipped and prepared to take these bold steps. There could also have been offers of acquisition from the State, as was done with the Larry Wirth Collection of Kapo’s work in 1982, although the overall market value of the collections under discussion would have been too high to be acquired in their entirety.
I can only hope that the dispersal of these two major collections, and the potential loss of local public access to many of the potential Significant Cultural Objects therein, will spur the relevant authorities to deal with the cultural preservation issues that have arisen from them in a more proactive and policy-driven manner and that future instances will be handled in a more productive manner.