Lindsey Lazopoulos Friedman, associate with Colson Hicks Eidson.

The ancient Greeks created the relics of the past, but Sotheby’s claims the future, at least with respect to one treasured antiquity. Engaging a novel strategy, Sotheby’s proactively filed suit against Greece’s Ministry of Culture and Sports of the Hellenic Republic seeking a declaration that Greece does not own a Corinthian-style, bronze figure of a horse dating from 900–700 B.C.E., which Sotheby’s hoped to sell at auction. The Metropolitan Museum of Art describes a similar bronze horse figure in its collection as epitomizing the “clarity and elegance” of the Greek Geometric age “at its most accomplished.”

The case is reported as the first time an auction house has pursued a determination of ownership against a government. Sotheby’s filed the action in conjunction with the Barnet Family Trust. The trust hired Sotheby’s to sell the bronze horse at auction. Sotheby’s prepared marketing and promotional materials advertising the sale of the bronze horse, prompting the Ministry of Culture to send a letter demanding its repatriation to Greece. Sotheby’s and the trust responded with their lawsuit. The court appointed Sotheby’s as a substitute custodian pending a resolution.

In the complaint, Sotheby’s alleges that the Barnet Family Trust acquired the bronze horse after the deaths of the trust’s settlors. The settlors purchased the bronze horse “in good faith” in 1973 from Robin Symes, an art and antiquities dealer in London who was later accused of trading looted antiquities. The settlors brought the bronze horse into the United States in 1973, where it has remained since. Sotheby’s listed the bronze horse’s originating provenance as a 1967 auction in Basel, Switzerland. Sotheby’s does not provide an explanation of when, how, or under what circumstances the bronze horse left Greece, but states that Greece has no property interest in the bronze horse under the United States’ implementation of the 1970 UNESCO Convention through the Cultural Property Implementation Act (CPIA).

But the CPIA may saddle Sotheby’s stride. The CPIA only covers cultural property stolen from a public or religious institution after January 1983. Here, the settlors purchased the bronze horse in 1973, well before the CPIA’s effective date. Even if the bronze horse was exported from Greece after Greece claimed ownership over “all cultural objects” in 1932, there is no evidence at this stage that the bronze horse was stolen from, much less part of, a public institution’s collection. In addition, the CPIA prohibits importation of stolen cultural property whereas Sotheby’s suit is concerned with ownership of the bronze horse. Consequently, Sotheby’s should tack up its claim with common law theories that support its property interest.

Still, Greece may file a counterclaim under a common law theory, such as conversion or replevin, to seek return of the bronze horse. For example, in Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts, Inc., a third party took four sixth-century Christian Byzantine mosaics from a Church in Cyprus without church or state authorization during a civil war. The defendant, an American art dealer, purchased the mosaics in Amsterdam. Many years later, the church brought a replevin action in Indiana where the art dealer kept the mosaics. The Seventh Circuit affirmed a district court decision, holding that the mosaics were removed without church or state authorization, and that the defendant had no valid claim of title or right to possession of the mosaics despite his good faith purchase. Greece will likely argue that Sotheby’s good faith possession is irrelevant to the determination of rightful ownership.

New York—where Sotheby’s maintains the bronze horse and seeks a declaration of ownership—recognizes causes of action for both replevin and conversion. Should New York law apply to determine title, courts favor the rights of the original owners against subsequent good-faith purchasers of stolen property.

Many legal scholars, such as Lawrence M. Kaye, Hannah L. Bauxbaum and Stephen K. Urice, argue that the United States’ legal framework addressing cultural property is in need of a significant overhaul and that civil lawsuits should be subject to a comprehensive and consistent federal law, rather than determinations based on common law theories that may differ state by state. Although there are varying legal frameworks, both statutes and common law concerning stolen cultural property tend to embrace the United States’ stated policy: illegal traffic in stolen cultural property is unacceptable, particularly where it is clear that the cultural property belongs to a public or religious institution.

However, given that the bronze horse has been in the United States since the 1970s and was sold at a reputable auction, Greece faces the onerous burden of producing evidence of illegal exportation of the bronze horse after Greece’s declaration of ownership of cultural objects in 1932. Until then, Greece’s repatriation claim may place behind Sotheby’s win.

The case is Barnet v. Ministry of Culture and Sports of the Hellenic Republic, No. 18-cv-04963-KPF (S.D. N.Y.)

Lindsey Lazopoulos Friedman is a litigation associate at Colson Hicks Eidson in Coral Gables.