Old and New Rules for the Sale of Ivory



Objects crushed by U.S. Fish and Wildlife Service, November, 2013 (Rick Wilking/Reuters)

In the past couple of years the sale of ivory has become fraught with legal jeopardy. A shot across the bow was fired in the Spring of 2012 when a squad of armed officers of California’s Fish and Game service, on behalf of the Federal Government, raided Slawinksy’s Auction house in northern California. Approximately $150,000 worth of ivory objects and objects decorated with ivory was confiscated. The property was eventually returned after it was determined that the ivory offered for sale was in compliance with Federal Endangered Species Act (ESA) which allows the sale of ivory more than 100 years old or if acquired before ESA’s enactment. On November 13th, 2013, the U.S. Fish and Wildlife Service dramatically signaled its intention to crack down on the global poaching epidemic by crushing 6 tons of illegal ivory at the Rocky Mountain Arsenal National Wildlife Refuge in Colorado. Three months later, on February 11, the Federal government announced new regulations prohibiting all importation of ivory objects including antiques. The export of worked ivory which has documentation proving it to be more than 100 years old is allowed. Selling documented antique ivory across state lines remains lawful, as well as ivory objects that were imported prior to the 1989 ban on African ivory or the 1976 ban on Asian ivory. A major development of this new law is that the burden of proof of age and date of importation falls on the importer, exporter or seller.

In California, the sale of ivory is even more restricted. California Penal Laws 653o and 653p ban the sale, or possession with intent to sell of ivory, within the state or across state lines. The law reads as follows:

It is unlawful to import into this state for commercial purposes, to possess with intent to sell, or to sell within the state, the dead body, or any part or product thereof, of any polar bear, leopard, ocelot, tiger, cheetah, jaguar, sable antelope, wolf (Canis lupus), zebra, whale, cobra, python, sea turtle, colobus monkey, kangaroo, vicuna, sea otter, free-roaming feral horse, dolphin or porpoise (Delphinidae), Spanish lynx, or ELEPHANT.

Penalties for violating Penal Law 653o are as follows:

Any person who violates any provision of this section is
guilty of a misdemeanor and shall be subject to a fine of not less
than one thousand dollars ($1,000) and not to exceed five thousand
dollars ($5,000) or imprisonment in the county jail not to exceed six
months, or both that fine and imprisonment, for each violation.

Although California Penal Law 653o has been on the books since 1970, it has not been enforced until early 2012. However, it appears that strict enforcement of this law prohibits the sale of all ivory objects whether antique or not. So, ivory owner beware: if you have in your possession a collection of Japanese netsuke, Chinese carved tusks or statues, scrimshaw, furniture or a musical instrument embellished with ivory and are contemplating selling it, contact an attorney.






Authentication and the Art Market

Art fraud is a multi-billion dollar industry in the United States. Consequently, authenticity, the degree to which an art work can be said to have been indisputably created by an artist, is a key aspect of value and of vital interest to both appraisers and collectors.

At a recent seminar in Los Angeles, attorney Christine Steiner of Sheppard Mulllin and Debra Burchett-Lere, Director of the Sam Francis Foundation, reported on the evolving legal ramifications for authenticating artwork. In recent years, a number of high profile court cases have addressed the liability of sellers, buyers, auction houses, independent experts and artist’s foundations when it comes to authenticating works of art. These cases illustrate the challenges of authenticating works of art which have included disagreements among recognized experts, the sophistication of art forgery techniques, as well as differing authentication standards in the United States and other countries. Other complicating factors in determining the authenticity is the absence of catalogue raisonnés and other comprehensive documentation on an artist’s works.


Sam Francis: Catalogue Raisonné of Canvas and Panel Paintings, 1946–1994
Edited by Debra Burchett-Lere with featured essay by William C. Agee
(Photo courtesy the Sam Francis Foundation, California)

Because of the increasingly litigious environment in the art world, and the high costs of defending opinions of authenticity, it is becoming more difficult to get artist’s foundations, authentication boards and independent experts to render opinions. One high-profile example is the Andy Warhol Foundation which recently announced that it is disbanding its authentication board. Other artist’s foundations are reviewing their liability in the event of disputes over the authenticity of specific works. These cases are impacting the creation of catalogue raisonnés, the authoritative catalogues that document an artist’s production of works over a lifetime. Consequently, provenance, the history of ownership of an artwork, is more important than ever as an element of authenticity.

The American Society of Appraisers states that appraisers witness, identify and value, but do not authenticate. However, appraisers frequently must take into consideration the authenticity of artworks as part of the appraisal process. This is done through the careful physical inspection of the artwork, consultation with experts or the artists themselves, research of published material such as catalogue raisonnés, and in some cases, scientific testing. It is often necessary for appraisers to examine works outside the frame in order to look for key markers of attribution including signatures, watermarks, edition number, and titles. Discrepancies between the art work and documentation on the artist and their known works that raise questions about the authenticity of a given work must be discussed in the appraisal report.

What should collectors do?

Purchase art from reputable sources and request warranties of authenticity. A warranty, as opposed to a certificate, should offer the buyer protection and recourse if the work is discovered not to be authentic at a later date.

When purchasing a work of art seek information on the provenance, the prior history of ownership of the work.

Maintain all documents relating to the acquisition of a work of art, such as sales receipts, as well as provenance.

If a work of art is reframed retain all information that may be affixed to the prior frame or enclosure such as gallery stamps and stickers, written notes, custom’s stamps, etc…

If you own a work by an artist who is represented by a foundation, it may be beneficial to inquire if the work can be registered, particularly if the foundation is documenting the artist’s work in a single or multiple catalogue raisonnés. The Sam Francis Foundation, for example, offers the owners of Francis works the opportunity to register the work and to obtain a Documentation Data Sheet with information on the creation and history of the work.

For additional information go to http://www.samfrancisfoundation.com