Reviewing Committee on the Export of Works of Art and Objects of Cultural Interest: Note of case hearing on3February 2010: A photograph by Roger Fenton, Pasha and Bayadere(Case 15, 2009-10)

Application

  1. The Reviewing Committee on the Export of Works of Art and Objects of Cultural Interest (RCEWA) met on 3 February 2010to consider an application to export a photograph by Roger Fenton, Pasha and Bayadere.The value shown on the export licence application was £105,057, which represented the price at which the owner had entered into an agreement with an agent to sell the photograph. This had originally been agreed in US dollars ($173,333) and had been converted into sterling on the date the application was made. The expert adviser had objected to the export of the photographunder the second and thirdWaverley criteria, i.e. on the grounds that it wasof outstanding aesthetic importance and of outstanding significance for the study of the history of photography and of nineteenth-century art.
  1. The sevenregular RCEWA members present were joined by three independent assessors, acting as temporary members of the Reviewing Committee.
  1. The applicantconfirmed that the value did not include VAT and that VAT would not be payable in the event of a UK sale. The applicant also confirmed that the owner understood the circumstances under which an export licence might be refused and that, if the decision on the licence was deferred, the owner would allow thephotographto be displayed for fundraising.

Expert’s submission

  1. The expert had provided a written submission stating thatRoger Fenton was one of the most important and highly-regarded British photographers of the nineteenth century. A hugely influential figure, he was a founder member and first Secretary of the Photographic Society (later the Royal Photographic Society) in 1853. Pasha and Bayadere was one of his finest photographs. Until comparatively recently it was believed that only one print of this subject had survived (now in the J Paul Getty Museum), but the existence of this second print had been discovered in 2005. As well as being of outstanding importance, the photograph was also important for the study of the history of photography and of nineteenth-century art in general. It was one of a series of about fifty photographs known as Orientalist studies, romanticised depictions of scenes of Muslim culture in the Ottoman Empire and North Africa. The series was part of a more general Orientalist craze that ran though European and British art in the second half of the nineteenth century and reflected the Victorian fascination with the ‘exotic’ Near East. The expert adviser said that there were very few examples of Fenton’s Orientalist images in British public collections.
  1. At the hearing, when asked if the photograph was unique, the expert adviser explained that the only other known copy of the image, in the J Paul Getty Museum in Los Angeles, was an uncropped version, so this version, cropped for exhibition, was in a sense unique.

Applicant’s submission

  1. The applicant did not disagree that the Waverley criteria applied.

Discussion by the Committee

  1. The expert adviser and applicant retired and the Committee discussed the case.The majority of members thought that the photograph was of outstanding aesthetic importance because Fenton was among the finest photographers of the period, and Pasha and Bayadere was one of the best works in his Orientalist series. It was a successful attempt to explore the new medium of photography to create fine art, beautifully composed and wonderfully lit.One member said that photography was sometimes undervalued in this country, but Pasha and Bayadère demonstrated how the best photographs could hold their own aesthetically against other art forms. All of the Committee members agreed that the photograph was important for the study of the history of photography, and of nineteenth-century art in general. The only other version of this image known was an uncropped version in the J Paul Getty museum in Los Angeles, making the image under consideration in a sense unique. Several members felt that the fact that the GettyMuseumhad chosen to make their own version of this image the subject of a scholarly monograph showed just how highly Fenton’s work was regarded outside the UK.

Waverley Criteria

  1. The Committee voted on whether the photographmet the Waverleycriteria. Seven members voted that it met the second Waverley criterion with three voting against. All ten members voted that it met the third Waverley criterion with none voting against. The photograph was therefore found to meet the second Waverley criterion, and also the third Waverley criterion, because of its importance for the study of the history of photograph and of nineteenth- century art.

Matching offer

  1. The Committee then turned to the issue of the fair matching price. The members decided that, because there was no firm sale, they would need further information about the terms of the agreement between the owners and their agent. Alternatively,the owners could apply for a temporary licence to take the photograph to the USA in order to establish its exact sale price, and then apply for a permanent licence. It was noted that the question of whether or not VAT would be charged in the event of a UK sale would also need to be clarified.

Deferral period

  1. The Committee agreed to recommend to the Secretary of State that the decision on the export licence should be deferred for an initial period of twomonths. If, within that period, MLA received notification of a serious intention to raise funds with a view to making an offer to purchase the photograph, the Committee recommended that there should be a further deferral period of threemonths.

Communication of findings

  1. The expert adviser and the applicant returned. The Chairman notified them of the Committee’s decision on its recommendations regarding the Waverley criteria and the deferral period to the Secretary of State. The Chairman also explained that, since there was no firm sale, the Committee did not feel that it had enough information to make a recommendation on fair matching price. He asked the applicant to either:

a) provide further details of the agreement between the owners and the agent, including the VAT status in the event of a sale within the UK; or

b) apply for a temporary licence to take the photograph to the USA in order to establish its exact sale price.

Subsequent developments

12. Subsequent to the hearing, the applicant confirmed that the agent was acting for the owners internationally. Therefore, in the event of a sale within the UK, payment would be made to the agent. The applicant also confirmed that there should be no VAT charged in the event of a sale within the UK since neither the owner nor the agent were registered for VAT, and that no further fees would be charged.

13. The Committee agreed to recommend that the fair matching price of the photograph should be the price of $173,333. The Committee’s legal adviser said that the fair matching price should be set in sterling because to set it in dollars would create uncertainty for UK public bodies. She advised the Committee that, given the way that the exchange rate between US dollars and pounds sterling had fluctuated since the date of the export licence application, it would be fairest to the applicant if the rate used for the currency conversion was the rate applicable on the date of the case hearing, 3 February 2010. The Committee agreed to this. The rate on this date was .626 pounds to the dollar. Therefore the dollar price of $173,333was converted to a sterling price of £108,506. The applicant agreed to accept this as a fair matching price.