The rules on stolen art

A painting considered as an “important cultural property” under our laws, was stolen from the Hofileña Museum in Silay, Negros Occidental, last July 3, 2024. The 88-year-old work of art is a treasure of an artwork for multiple reasons. It’s a painting by our country’s first National Artist and the most renowned of all Filipino artists, Fernando Amorsolo. It was painted in 1936, or before World War II, making it part of the class of Amorsolo works that are more prized and more sought after, compared to works the artist created after the war. The painting depicts an “under the mango tree” scene, which is one of the artist’s most iconic, well-loved, and very much in demand subject matter.

Nine days later, on July 12, the painting was recovered by the National Bureau of Investigation (NBI) in an entrapment operation. Two individuals were arrested after they attempted to sell the painting for P3.5 million to an NBI operative pretending to be a buyer in Quezon City. The two were charged “for possession and selling stolen property” in violation of the anti-fencing law (Presidential Decree No. 1612).

There’s a need to clarify the rules that apply when one steals an artwork, or when one possesses or sells stolen art, in order to warn and discourage those who may be thinking of committing these criminal acts as get-rich-quick schemes.

A stolen artwork will remain a stolen property even if one buys it from a reputable art gallery, dealer, or collector. The real owner will have the right to recover the stolen artwork, without the need to reimburse the current possessor of what he/she paid for to buy the painting, as a general rule. The dispossessed purchaser will have to seek reimbursement from whoever sold the artwork to him/her. The possessor of stolen property may even be charged with the crimes of possession of stolen property (under the anti-fencing law), and/or theft or robbery (both under the Revised Penal Code), each of which separately carries a penalty of imprisonment of up to a maximum of 20 years.

Even if the purchaser of a stolen artwork can show that he/she bought the painting “in good faith” (e.g., from a reputable gallery), the real owner will still have the right to recover the stolen artwork without the responsibility of reimbursing the current possessor of what the latter paid for. The only time that a purchaser in good faith will be entitled to reimbursement, is if he/she acquired the painting from a public sale, which essentially means a public auction.

In other words, even if a buyer purchases a stolen painting in good faith and at a public sale, the real owner can still get back the painting by reimbursing the current possessor the amount he/she paid for the artwork. All these rules are culled from the various provisions on property, prescription, and sales of the New Civil Code.

Given the above, it’s very important for owners of precious art to keep a record of written documents evidencing their ownership, especially because art ownership is not covered by a definitive certificate of title, unlike land. Art owners should keep deeds of sale, certificates of authenticity, receipts, and acknowledgments, covering the artwork. Owners should keep pictures of the artwork hanging in their homes and online posts of the artwork attributing ownership to them. For works classified as “important cultural property” under Republic Act No. 10066, the owner can also register his artwork with the National Commission for Culture and the Arts.

If the artwork is stolen, the owner should blotter the crime with the police; give written notices to the galleries who are known to sell works of the same artist; notify the artist, the latter’s family (if deceased), and authenticators of the artist’s works, and; publicize the incident in the media in order alert and warn collectors and galleries. All these acts will prevent any subsequent purchaser from invoking “good faith.”

On the other hand, art buyers should demand and safekeep documents evidencing their purchases. If one buys an old artwork, a buyer should request any previous records kept by the succession of previous owners, if available. This will ensure the artwork’s legitimate provenance. If the artist is still alive, a buyer should verify with the artist the artwork’s ownership background. If the artist is dead, verify with the artist’s family, a reputable gallery, or authenticators. Art buyers from the secondary market should exercise diligence because “mere possession of any [artwork] which has been the subject of robbery or thievery shall be prima facie evidence of fencing” under the anti-fencing law.

It doesn’t pay to buy stolen art. The rule of thumb is this—if it’s being sold under suspicious conditions and at a huge discount from prevailing prices, in all likelihood, what you’re buying is a ticket to prison.