Art Theft – Page 9 – Illicit Cultural Property

A Pisarro Hidden for 70 Years to be Auctioned

Camille Pissarro’s Le Quai Malaquais, Printemps (pictured), previously discussed here, recently recovered from a Zurich bank vault will go on sale later this month according to Catherine Hickley for Bloomberg:

Gisela Bermann-Fischer waited almost 70 years to get back a painting by Camille Pissarro stolen from her family’s home in Vienna by the Gestapo in 1938.

She recovered “Le Quai Malaquais, Printemps” after a quest that pitched her into a battle of lawyers’ letters with Bruno Lohse, a Nazi art dealer appointed by Hermann Goering to loot treasures in occupied France, and finally led to a Zurich bank vault, where the picture was stashed in a safe. Prosecutors sealed the safe as part of a continuing three-nation probe into associates of Lohse suspected of extortion and money-laundering.

Now 80, Bermann-Fischer will auction the 1903 painting at Christie’s International’s sale of impressionist and modern art in London on June 23. Its value is estimated at between 900,000 pounds ($1.45 million) and 1.5 million pounds. Bermann-Fischer says it cost her at least 500,000 Swiss francs ($466,000) to recover the Pissarro, mainly in lawyers’ fees. At no point during her quest could she be sure of getting the artwork back.

One of the intriguing parts of the story was the brief resurfacing of the work in 1984:

“I don’t think we’ll ever find out from where to where the painting was transported over the years,” Bermann-Fischer said. “It truly was hidden. I think the exhibition at l’Hermitage Lausanne in 1984 was a test run, to see whether the original owners or any heirs were still on the lookout for the paintings and would make a claim.”

Questions or Comments? Email me at derek.fincham@gmail.com

MFA Boston Prevails in Nazi-era Declaratory Judgment

The Museum of Fine Arts, Boston has prevailed in its suit against Dr. Claudia Seger-Tomschitz, Museum of Fine Arts, Boston v. Seger-Thomschitz, No. 08-10097-RWZ (D. Mass. 2009).

At issue was this work, “Two Nudes (Lovers)” by Oskar Kokoschka, 1913. The work has been on display “almost continuosly” since 1973 according to the Boston Globe’s Geoff Edgers.

The museum brought suit to preclude any potential restitution suit, essentially asking the court to declare it the rightful owner of the work. The Museum brought suit back in January 2008, and in the complaint argued the “painting was never confiscated by the Nazis, was never sold by force as a result of Nazi persecution, and was not otherwise taken”.

The potential claimant, Claudia Seger-Thomschitz, claimed 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 who owned the Neue Galerie in Vienna. 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.

District Judge Rya Zobel held:

[A]lthough the Reichel family never claimed compensation for any of the Kokoschka works that had been transferred to Kallir for sale, it did claim restitution for artwork and property that had been stolen by the Nazis.

[T]he Reichel family never attempted to recover the painting after WWII, and there is no evidence that it believed the transfer was not legitimate.

The evidence is undisputed that the members of the Reichel family had sufficient knowledge of Reichel’s ownership and transfer of the painting.

Dr. Seger-Thomschitz also ―waited more than three years to assert her claim after she was on inquiry notice of her possible right to the Painting…The information necessary to pursue her claim was readily available to both [Dr. Seger-Thomschitz] and her counsel at that time.

[T]he delay in bringing suit will prejudice the MFA because all of the witnesses with actual knowledge of the transfer are deceased.

Any claim by Dr. Seger-Thomschitz that Oskar Reichel was misled when he transferred the painting to Otto Kallir in 1939 was ―pure speculation.

The court has held that the claimant had opportunities to seek title to the work, but did not, and as a consequence the limitations period has run. Malcolm Rogers, Director of the MFA Boston stated “The MFA conducted a year and a half long comprehensive investigation of the work’s provenance, seeking documentation of the various transactions and changes of ownership in the painting’s almost 100-year history. We are satisfied and grateful that the judge has reaffirmed the Museum’s rightful ownership of the work.”

Questions or Comments? Email me at derek.fincham@gmail.com

Voluntary Returns

A couple interesting returns of objects, both of which which appear to be completely voluntary.

First is a letter by Abraham Lincoln:

An extremely valuable letter by Abraham Lincoln dated November 14, 1863 — missing from public records for maybe 100 years — has been donated today by a private collector to the National Archives.

The brief note on Executive Mansion letterhead in the President’s handwriting signed “A.Lincoln” was sent to Treasury Secretary Salmon Chase. It was written five days before Lincoln delivered the Gettysburg Address, providing insight into the president’s regard for a personal friend and his interest in West Coast politics even in the midst of the Civil War.

National Archivists discovered the Lincoln letter being sold online in 2006. It originally had been torn or fallen from an 1880 bound volume of government correspondence to the Treasury Department. There is no evidence that the letter was ever stolen, and how it went missing remains a mystery.

When contacted by Archivists, the letter’s owner, Lawrence Cutler, a private collector in Tempe, Arizona decided to donate it during the bicentennial of Lincoln’s birthday. Cutler would not disclose what he paid for the letter at auction three years ago, but said a similar Lincoln letter sold for $78,000.

The next is a group of objects donated to Eton College, which have been returned to Egypt:

Four sons of Horus, New Kingdom, 19th Dynasty or later after ca 1295 B.C.

LONDON. Eton College, in the south of England, has returned more than 450 antiquities to Egypt, after it was realised that many had probably been illegally exported. Last month we reported that the main part of the school’s collection, bequeathed to the school by Major William Myers in 1899, is going on long-term loan to Birmingham University in the UK and Baltimore’s Johns Hopkins University in the US (The Art Newspaper, May 2009, p7).

The returned antiquities had been donated to Eton over a century later, in 2006, by the family of the late Ron Davey, a London-based Egyptologist. He in turn had received most of them as a bequest from his friend, Peter Webb, who had died in 1992.

When the antiquities arrived at Eton three years ago, they were examined by curator Dr Nicholas Reeves. The donation comprised 454 items, including ushabti figurines, beads and amulets, textile fragments, potsherds, coins and other small objects.

Both the letter and the Egyptian antiquities do not seem to be terribly valuable, but the individual dealer and Eton College have both seemingly unilaterally decided to return the objects to their proper stewards. But one wonders if either the letter or the antiquities are particularly valuable or noteworthy. If they had been, would the decision to return them been more difficult? I think it probably would have been.

Questions or Comments? Email me at derek.fincham@gmail.com

The Theft of Public Statues

Sad story via Bloomberg on the probable fate of this Henry Moore statue, valued at as much as 3 million pounds which may have been stolen and melted for scrap for a mere 2,500 pounds.

U.K. detectives had first worked on the theory that the piece, “Reclining Figure,” was stolen three years ago at the request of an art collector. It has never been found. Hertfordshire officers said they now believe the 2.1-ton work was sold for its metal, highlighting the security risks facing high-value sculptures shown in public.

“There was a wave of thefts of statues around the time the Moore was stolen,” Dick Ellis, director of the Art Management Group, a U.K.-based company that advises art collectors on security issues, said in an interview. “There is an increase in the theft of statues at the moment,” said Ellis, a former head of Scotland Yard’s art and antiques squad.

Questions or Comments? Email me at derek.fincham@gmail.com

Presentation at the University of Chicago Cultural Policy Center

The Cultural Policy Center at the University of Chicago has had a terrific speaker series on the antiquities trade this Spring, and I’m excited to get a chance to present a bit of my own work there next Thursday. Here are the details:

Thursday, May 14
3:30 – 5:00 p.m.
Harris School of Public Policy Studies, 1155 E. 60th Street
Room 140C

Ideally, before an individual or institution purchases an antiquity or a work of art, a diligent enquiry into its origins can confer “good faith” status. This allows the buyer to acquire good title and provides the legal right to seek compensation if the seller proves unscrupulous. Despite these important advantages, good faith has been used to promote commercial convenience and economic efficiency at the expense of public enjoyment and understanding of the world’s cultures. Though an existing body of law prohibits and punishes a variety of activities which further the illicit trade, these measures are severely hampered by the mystery surrounding antiquities transactions. At present, details regarding authenticity, title, or even more basic questions such as the origin of an object are intentionally hidden and disguised from public view.

How did a family of art forgers fool both Sotheby’s and the Art Institute of Chicago into believing that they had purchased a work by Paul Gauguin?
Should we hold museums to a higher standard when they acquire works of art and antiquities?
Do countries that over-regulate the export of antiquities actually harm our common cultural heritage by exacerbating the demand for stolen and looted pieces?
Should economic models of art markets account for the preservation of heritage and context?

In order to decrease the theft of antiquities and looting of archaeological sites and increase the effectiveness of existing legal measures, we need a new theoretical foundation for increased scrutiny of the antiquities trade. When an object is acquired without a rigorous due diligence process, that acquisition defrauds our heritage by distorting the archaeological record; harms the legitimate acquisition of antiquities; perverts the important role museums play in society; and ultimately warps the understanding of our common cultural heritage.

Questions or Comments? Email me at derek.fincham@gmail.com

ICE Agents Seize Old Master

Immigrations and Customs Enforcement Agents seized this work by an “unknown Utrecht master” dating from 1632. It will be returned to the Max Stern estate. In a piece by Catherine Hickley for Bloomberg, it is reported that the work was seized from Larry Steigrad on April 2nd.

The precedent for the seizure was set late last year by the First Circuit Federal Court of Appeals in Vineberg v. Bissonnette. It affirmed summary judgment for successors of an art dealer—Max Stern who was forced into selling works under the Nazi regime. The sale took place at a 1937 auction; the First Circuit held in that case that the forced sales of works belonging to the Stern estate were a “de facto conficcation”, providing the precedent for this seizure.

Thomas Kline, an attorney for the Stern estate is quoted in the piece “With that decision, all artworks Stern sold under orders at the Lempertz sale are now considered stolen property, [and the estate] “hopes to receive further assistance from law enforcement authorities in the U.S. and elsewhere”.

Lawrence Steigrad, the owner of the gallery in Manhattan where the work was seized says in the piece ““I was in my warehouse in New Jersey when Philip Mould [the London dealer who sold him the work] called me on my cell phone . . . I was shocked and upset that we had not found out before we purchased this painting, as we both had it checked. We were both happy that I had not sold it on, causing more problems and involving private clients.” It seems a bit curious perhaps that this call came only a couple of days before an undercover agent walked into the gallery to look at the work.

“I was in my warehouse in New Jersey when Philip Mould called me on my cell phone,” Steigrad said in an e-mailed response to written questions. “I was shocked and upset that we had not found out before we purchased this painting, as we both had it checked. We were both happy that I had not sold it on, causing more problems and involving private clients.”

The London dealer Philip Mould purchased the work at the Kunsthaus Lempertz auction house in November 2007; the same auction house which sold Stern’s works 70 years earlier. That auction house blames the Art Loss Register for “missing” this work. Luisa Loringhoven describes how this work was not caught by the company’s database:

“The Lempertz catalog from 2007 describes the painting as a portrait of a musician aged 57, while our database describes the painting as a portrait of a bagpipe player,” Loringhoven said. “Though the picture was searched by description and title, it was missed because of these differences.”

Loringhoven said London-based Art Loss Register carries out about 300,000 searches a year. “While we endeavor to be as thorough and as accurate as possible, we may miss a handful of items”.

It seems then Mould is left footing the bill for this restitution at present; though he may choose to proceed perhaps against the Kunsthaus Lempertz or even the art loss register based on the details in the piece. The Department of Justice and Homeland Security will return the work to the Max Stern Estate today in a ceremony in New York today which is also Holocaust Remembrance Day.

Questions or Comments? Email me at derek.fincham@gmail.com

My Article on Conflict of Laws and Cultural Property

I have posted on SSRN the final version of my paper titled How Adopting the Lex Originis Rule Can Impede the Flow of Illicit Cultural Property, 32 Columbia Journal of Law and the Arts 111.

Pictured here is a Byzantine mosaic from the Hagia Sophia in Istanbul, similar to the mosaics taken from Northern Cyprus which gave rise to the Goldberg suit. The Seventh Circuit Federal Court of Appeals upheld the default—and problematic for cultural property disputes—lex situs rule in holding “Indiana law and rules govern every aspect of this action, from the statute of limitations issues through the application of the substantive law of replevin.” The trial court had noted that although Switzerland was the location of the wrongful activity, it bore little connection to the cause of action. None of the parties or important actors was Swiss; the mosaics had never been in the stream of commerce in Switzerland; and they had only been on Swiss soil for four days. The jurisdiction with the closest connection to the objects was Cyprus, not Indiana. After all, the mosaics had been firmly fixed to the church for over 1400 years. Although it would therefore make sense to give concessions in the law to jurisdictions such as Cyprus, courts have shown a hesitancy to apply the law of the source nation, or lex originis.

Here is the abstract:

The International trade and transfer of art and antiquities faces problems because nations have erected very different rules with respect to movable property. All nations forbid theft, however most cultural property disputes involve an original owner and a subsequent good faith possessor. Different jurisdictions have chosen to allocate rights and responsibilities between these two relative innocents in very different ways. Disharmony in the law is seldom a good thing, but in the realm of cultural property it can be particularly damaging to the interests of nations, museums, individuals, and our collective cultural heritage. The lack of harmony ensures no overarching policy choices will be furthered, which prevents parties from anticipating legal outcomes and giving substance to policies.

This article explores the default conflict of law rules which are applied to cultural property, and shows how the lex situs rule exploits the various legal rules which apply to art and antiquities. It challenges the lofty position enjoyed by the lex situs rule and proposes a radical reform of the default choice of law analysis. By employing the law of the Nation of Origin or lex originis courts can ensure the jurisdiction with the most tangible connection to an object enjoys the benefit of applying its legal rules to a given dispute. This will not only ensure the security of art and antiquities transactions, but impart much-needed transparency into the cultural property trade, and finally will decrease the theft and illegal excavation of art and antiquities.

The article begins by presenting some examples of recent disputes, and the problems they present for the law and cultural heritage policy. Section II describes the fundamental difficulty of adjudicating claims between two relative innocents, and the disharmony which has resulted as different jurisdictions have resolved this conundrum in very different ways. Section III lays out the ways in which private international law impacts art and antiquities disputes. Section IV analyzes the 1995 UNIDROIT Convention, the most recent attempt to harmonize the law affecting cultural property. Section V proposes a radical reform of the choice of law enquiry taken by courts.

Keywords: art, antiquities, private international law, conflict of laws, international law, lex originis, lex situs, renvoi, art theft, antiquities, cultural heritage, cultural property

I’d be delighted to hear any reactions to the work at derek.fincham “at” gmail.com.

Questions or Comments? Email me at derek.fincham@gmail.com

Palestinian PM Makes Claim for Dead Sea Scrolls

The Toronto Star has a nice piece on the demand by the Palestinian Authority to cancel an exhibition of Dead Sea Scrolls. Palestinian officials claim the objects were stolen by Israel from Palestinian territories. It is an indication of the increasingly prominent role antiquities are playing in national politics and notions of national heritage and even past wrongdoing. The calls share similarities with other nations who have urged repatriation of objects, from Scotland to Peru and others. Hamdan Taha, the director-general of the archaeological department of the Palestinian Ministry of Tourism and Antiquities, “The exhibition would entail exhibiting or displaying artifacts removed from the Palestinian territories . . . I think it is important that Canadian institutions would be responsible and act in accordance with Canada’s obligations.”

The Royal Ontario Museum will host a six-month long exhibit of the scrolls, operated in conjunction with the Israel Antiquities Authority. The Dead Sea Scrolls are a collection of about 900 manuscripts, dating to 70 AD. The caves in which the scrolls were found were located near Qumran (see map below), in what is now the Palestinian West Bank. From the piece in the Toronto Star:

Beginning in 1947, and for nearly a decade, experts from the Rockefeller Museum in East Jerusalem, the Jordanian Department of Antiquities, and the École biblique et archéologique française excavated the caves and salvaged the scrolls, only a few of which were found whole. The rest were scattered into thousands of fragments.

Written mainly in Hebrew, and partly in Aramaic and Greek, the scrolls include about 200 copies of portions of the Jewish Bible.

At first, the scrolls were housed in the Rockefeller Museum in East Jerusalem, which was under Jordanian control at the time.

After the 1967 Six Day War, however, Israel unilaterally absorbed the eastern sections of the city, an act most Western nations – including Canada – regard as illegal under international law. The Israelis removed the scrolls from East Jerusalem and took them to the western city, where they remain.

According to Shor at the Israel Antiquities Authority, portions of the scrolls frequently have been put on display in other countries – including the United States, Britain, Switzerland, Germany, and Australia – over the past 10 years or so.

This raises the question, should nations use these antiquities as instruments of foreign policy? Will the end result be more difficulty in holding international loans and travelling exhibitions?

View Larger Map

Questions or Comments? Email me at derek.fincham@gmail.com

UK May Revise Nazi-looted Art Policies

The UK is considering new legislation that would revise the restitution process to more easily allow national museums to return works of art looted during World War II. The Holocaust (stolen art) restitution bill would allow these institutions to return objects from their collections. Andrew Dismore, the Labour MP for Hendon is quoted in the Guardian: “I hope it will close another chapter from the Holocaust . . . It means recognising a right that has been denied for decades. I suspect many people would be prepared to allow their artwork to stay in public collections but it’s their right to decide what happens to it.”

The change is needed because of cases like this one:

When the Germans invaded Czechoslovakia in 1939, the Feldmanns were evicted from their home, leaving a collection of Old Master drawings in Gestapo hands. Arthur died after being tortured by the Nazis in the Spilberk Castle prison in his home city of Brno. Gisela died in Auschwitz.

With the help of the London-based Commission for Looted Art in Europe, Feldmann’s descendants proved that four of his drawings had ended up in the British Museum. The museum was prepared to return them to the family but was blocked by a high court judge. Instead the family negotiated a deal, including an ex-gratia payment of £175,000, that allows the drawings to remain in London.

Feldmann’s grandson Uri Peled, 66, who lives in Israel, said that although he did not wish to have the items returned, the principle of the bill – allowing the rightful owner to make the decision about what to do with their art – was important.

The change will open speculation for claims for other works in UK institutions that may have been taken under less-than-appropriate circumstances—like the Parthenon marbles, the Benin bronzes, the Rosetta stone, or the Lewis chessmen. As such the legislation is limited to “objects stolen between 1933 and 1945 by the Nazi regime”. Though the legislation is sharply focused on a narrow historical period, one wonders why only those objects are left open for restitutions when the others are not. The Second World War was a special circumstance perhaps, but its not clear how that historical period is different from other conflicts.

Questions or Comments? Email me at derek.fincham@gmail.com

The Munch Effect

Earlier this month a church in Larvik, Norway was robbed of a work by Lucas Cranach, Let the Children Come to Me. The work was soon recovered, and will be displayed again later this summer after it is restored.

It is often said that a high-profile art theft or media attention can actually be a good thing for increasing visitors. Ludvig Levinsen, the general manager of church affairs is quoted in the Art Newspaper, and speculates on this “Munch effect”, a reference to the increased attention paid to that artist when his works have been stolen in recent years. Levinsen speculates on the stolen Cranach from his church, “When it was stolen it created a lot of international media attention . . . Now that we have the painting back we hope people are more aware of what we have.”

Questions or Comments? Email me at derek.fincham@gmail.com