|“Two Nudes (Lovers)”, Oskar Kokoschka|
The First Circuit Federal Court of Appeals in Boston has held that the MFA Boston is entitled to retain ownership of this work. The work was the subject of a sale in 1938 to a dealer in Paris. The MFA Boston purchased this work in 1972, attorneys for the claimant contacted the Museum in 2007 about securing the return of the work, and the Museum brought suit in January of 2008 to seek a declaratory judgment of the work, precluding any claim by Ms. Seger-Thomschitz.
The history of the work is complicated. It depicts the artist and Alma Mahler, the wife of Gustav Mahler. The claimant argued the painting was sold under duress by Oskar Reichel a physician and gallery owner in Austria. The work had been consigned on several occasions to an art dealer, Otto Kallir. Kallir later left Vienna, eventually coming to New York, and he brought this and some other works of art with him. He sent money to Reichel’s sons at this point. In 1939, the work was sent to Paris; in 1945 it was sold to a New York dealer for $1,500; Sarah Blodgett purchased the work in the 1940s; she gave the work to the MFA Boston in 1972. Claudia Seger-Thomschitz, though apparently not a blood relative of Reichel, had nonetheless been designated as the sole beneficiary of his estate and was described as his “select-niece”.
The claimant learned in 2003 that she might have a claim to the work, and though she is a nurse with no professional expertise in nazi-era suits, the court imposed a burden on her to seek the return of the work. The Court made clear it was not judging the legality of the museum’s acquisition of the work in 1973, pointing out that
Precisely because they do not address the merits of a claim, statutes of limitations do not vindicate the conduct of parties who successfully invoke them. Although we make no judgment about the legality of the MFA’s acquisition of the Painting in 1973, we note the MFA’s own disclosure that, when confronted with Seger-Thomschitz’s claim, it initiated a provenance investigation for the Painting that it had not done before. The timing of that investigation may have been legally inconsequential in this case. However, for works of art with unmistakable roots in the Holocaust era, museums would now be well-advised to follow the guidelines of the American Association of Museums: “[M]useums should take all reasonable steps to resolve the Nazi-era provenance status of objects before acquiring them for their collections — whether by purchase, gift, bequest, or exchange.” American Association of Museums, Guidelines Concerning the Unlawful Appropriation of Objects During the Nazi Era (Nov. 1999)
The decision comes just as the Jewish Claims Conference has launched a database with 20,000 objects from the Einsatzstab Reichsleiter Rosenberg (ERR), the Nazi’s art-looting task force. For more on the database, see Catherine Sezgin’s excellent discussion here. Perhaps that database will urge more museums and private owners with objects once owned by Nazi-era victims, which was surely one of the primary motivations for the initiative. Because court actions are difficult options for claimants. In August the 5th Circuit Court of Appeals held Ms. Seger-Thomschitz did not have a timely claim to another Kokoschka work against Sarah Blodgett Dunbar who had inherited the work in 1973 because too much time had elapsed and Dunbar had acquired title to the work via prescription.
- Museum of Fine Arts, Boston, v. Seger-Thomschitz,— F.3d —-, 2010 WL 4010121 (1st Cir., 2010).
- Dunbar v. Seger-Thomschitz, 615 F.3d 574 (5th Cir., 2010).