Kim Kardashian Isn't a Smuggler but Might Lose Her Statue

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May 11, 2021

A recent forfeiture action brought by the U.S. government against “One Antique Roman Statue” has received considerable attention for the fact that the named consignee and importer of the contested piece happens to be pop culture icon - Kim Kardashian, specifically “Kim Kardashian dba Noel Roberts Trust.” The version of the story circulating in the media concentrates heavily on the whisper of an allegation in the Government’s complaint that the statue was looted and smuggled from Italy. While it is a compelling claim, whether the statue was actually looted or smuggled from Italy is immaterial to the Government’s ability to forfeit the work and importers should take note.

The general background of the Kardashian forfeiture is as follows: U.S. Customs and Border Protection (CBP) detained the statue at the border in May 2016 suspecting that it was cultural property from Italy subject to certain protections. CBP requested provenance documentation from the broker, Masterpiece International. Documentation provided by Masterpiece International identified the statue as “Fragment of Myron’s Samian Athena, Limestone, Roman, 1st - 2nd century A.D.” and also contained handwritten notations suggesting the statue originated from Italy. Masterpiece International also proffered an invoice that purportedly covered an earlier sale of the statue and listed the item’s provenance as “Old German collection, bought before 1980” and an unsworn affidavit stating that the statue did not originate from Italy. The Carabinieri for the Protection of Cultural Heritage in Italy reached out to CBP in support of the statue being an Italian artifact. The statue was examined by archaeologists who concluded based on scientific and iconographic elements that the statue was likely Italian. However, the statue had never been reported in Italy as a “fortuitous find” nor had it been the subject of a request for an export license, as required by Italian law since 1909. Thus, the archaeologists “opined that the statue was looted, smuggled and illegally exported from Italy.” Ultimately, CBP moved for forfeiture on the grounds that the statue is protected material under the Cultural Property Implementation Act, 19 USC 2601, et seq., and its importation was in violation thereof.

The Cultural Property Implementation Act (CPIA) embodies the United States’ commitment to domestically enforce aspects of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (the 1970 UNESCO Convention), which represents a multilateral effort to combat the harms of cultural property pillaging and curb the market for looted or smuggled material. Under the CPIA, the US may enter into bilateral agreements with countries that are seeking the protection of its cultural property. The cultural property agreements entered into under the CPIA result in import restrictions that increase CBP’s scrutiny of certain cultural materials at the US border. To be protected under CPIA import restrictions, the cultural material must be explicitly designated by the origin country as covered by the bilateral agreement. The list of current import restrictions and the corresponding designated material can be found here. Designated, cultural material cannot be imported into the US without some sufficient showing of the following:

(1) a certificate of export from the State Party; 

(2)   evidence that the material was exported from the State Party at least ten years prior to the date of entry and that any party for whom the material is being imported did not acquire an interest in the material more than one year before the date of entry; or

(3)   evidence that the material was exported on or before the date on which such material was designated as protected under the CPIA.

In the absence of such documentation, the material can be seized and forfeited under 19 USC 2609. In the case of Ms. Kardashian’s statue, the documentation was lacking. In a forfeiture claim under 19 USC 2609, the government must show only that the material is designated material under a CPIA bilateral agreement and that it was imported without the required documentary evidence. In other words, that an object may have been looted, smuggled, or otherwise pillaged is the inference effectively drawn from a violation of the CPIA but it is not a prerequisite to a violation actually occurring. This is the ultimate buyer beware. A scrupulous buyer who does not want to risk losing their acquired material at import will perform their due diligence and be able to present documentation of such.

For questions on how to perform your due diligence in the international art market, the import restrictions under the CPIA, or importing cultural property generally, please reach out to a Barnes, Richardson & Colburn trade attorney.