’Official Fakes’:The Consequences of Governmental Treatment of Forged Antiquities as Genuine during Seizures, Prosecutions, and Repatriations

Abstract

The article discusses what I will call “official fakes” – fakes mistakenly treated as genuine antiquities by governmental authorities - are costly to many branches of government. They waste authorities’ time, resources, cash, and credibility. Fakes also lead to basic problems of justice: people who intend to sell looted antiquities are either under-prosecuted after it is discovered that they were unwittingly dealing in fakes, or over-prosecuted if this discovery is not made, and the government continues to assume that the accused looter’s stock of fakes is actually genuine. The article begins with a discussion of the factors leading to the current flood of fakes in the antiquities market, an explanation of why it can be so difficult to tell when an artifact is fake, and a summary of the recognized harms caused by these fakes. I then describe categories of “official fakes,” giving case studies and analysis of how they cause waste. The article then summarizes the current failure of the treatment of fakes in American law to reduce this waste, and ends by proposing some policy changes necessary to stem the governmental losses caused by “official fakes.”

Keywords: forgery, comparative law, international law, criminal law, art law, cultural heritage