An immunity from seizure bill makes museums havens for stolen art?

One of the works at issue in the Malewicz v. Amsterdam immunity from seizure litigation, titled Suprematism 18th Construction, by Kazimir Malevich
One of the works at issue in the Malewicz v. Amsterdam immunity from seizure litigation, titled Suprematism 18th Construction, by Kazimir Malevich

In a provocatively-titled op-ed in the conversation, Tess Davis and Marc Masurovsky argue that a proposed bill would make American art museums a haven for stolen art by allowing them to “knowingly exhibit stolen art”. Their argument:

On March 25, backed by the art trade lobby, Republican Congressman Steve Chabot reintroduced the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act to the House of Representatives. On its face, HR 4292 asks Congress to “clarify” a small section of the the law. But in truth, the bill goes far beyond mere clarification.

It would instead undo established US law and policy by allowing American cultural institutions to block legal claims to artwork on loan from abroad. Museums would knowingly be able to exhibit stolen and looted art and antiquities. It would leave the rightful owners without any legal recourse to recover their property in US courts.

This bill is just the latest attempt by the less responsible players in the art market to weaken US law. American legal principles have long held that a thief cannot transfer good title. The receipt, possession, and transport of stolen property is a crime. US legislation has carved out a narrow exception to prevent the judicial seizure of art imported for exhibition, but only in very limited circumstances, which it clearly enumerates. HR 4292 would greatly expand this exception by divesting our courts of all jurisdiction over such objects.

Those are strong statements. And it must be said that the text of the proposed bill, at least by my reading, seems to do just the opposite. It makes it easier for Nazi-era claimants to pursue claims against possessors who send their art on temporary exhibition to the U.S.

It clarifies the concept of “commercial activity”; something needed after a 2005 case, Malewicz v

. City of Amsterdam, which saw heirs of Malevich bringing suit against Amsterdam in federal court in Washington D.C.

Since 1965 the Exemption from Judicial Seizure of Cultural Objects Imported for Temporary Exhibition act grants immunity for temporary exhibitions for material being brought into the U.S. if the loan is in the national interest, and the objects are of cultural significance. Rick St. Hilaire and others have supported this clarification. And on its face the clarification seems necessary. Perhaps what Masurovsky and Davis really want is an end to all art immunizations—but they don’t really come out and say that. Instead they accuse Americn Museums of knowingly exhibiting and gathering stolen art. Though there are certainly examples of this on the extreme margins, the examples that the authors use both cut against their underlying position. The Portrait of Wally litigation never involved Federal immunity, only New York State immunity. And the Koh Ker material was not loaned to the United States, it was acquired or up for auction, and the Federal Prosecutors initiated forfeiture actions.

I am not a provenance researcher, and I am not familiar with how in-depth the State Department grants of immunity checks are, but it seems to me the authors have exaggerated their position. Perhaps I’m missing something, but I don’t see any example of any museum in North America being able to knowingly exhibit stolen material.

 

2 thoughts on “An immunity from seizure bill makes museums havens for stolen art?”

  1. Putting aside (for the moment, at least) my own thoughts on the bill, a quick response to your comment about not knowing the depth of State Department checks: it’s about as deep as a kiddie pool. The application for immunity amounts to providing a list of objects, a “scholarly statement” about their significance, and a statement that “the applicant certifies that it has undertaken professional inquiry – including independent, multi-source research – into the provenance of the objects proposed for determination of cultural significance and national interest. The applicant certifies further that it does not know or have reason to know of any circumstances with respect to any of the objects that would indicate the potential for competing claims of ownership,” and a few other bits and pieces of information

    More or less, State is taking the applicant’s word for it that they’ve done their homework, and at least to my knowledge, does not devote its valuable time or resources into further investiation. Given the dearth of staff and resources in US museums and educational institutions, this seems a dangerous bet to take.

  2. Hi Derek — Thanks for your comments. Marc and I obviously didn’t have the space to go into a full legal analysis on H.R. 4292, and even if we had, I’m not sure it would have been appreciated by the general public! Nor is there the space for that here, but it has been done elsewhere. The Lawyers’ Committee for Cultural Heritage Preservation posted information on H.R. 4292’s predecessor S.B. 2212 here (www.culturalheritagelaw.org/S2212), including a letter President Diane Edelman and I sent to Senator Leahy. The letters and numbers have changed, but the issues are the same. However the most detailed — and current — legal argument against H.R. 4292 to my knowledge is available at the Holocaust Art Restitution Project (plundered-art.blogspot.com/2014/05/re-hr-4292-foreign-cultural-exchange.html). In addition to their other concerns with the bill, it is the opinion of that organization and their lawyers that the Nazi-looted art exception is SEVERELY flawed, and once more will hurt Holocaust claimants (along with those from elsewhere).

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