Litigation seems inevitable in the Gurlitt case

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Next week the Kunstmuseum in Bern will announce if it will accept the bequest of 1300 works of art from Cornelius Gurlitt. Gurlitt’s father was art dealer Hildebrand Gurlitt, operating during World War II. As a consequence a large number of these works will have possibly been stolen or forcibly taken during the Nazi regime. Receiving these works will be a challenge for whoever ultimately gets them. But the likely result no matter what will be litigation. There has never been such a large and contested body of artworks collected in one estate, but even if this were just a mundane estate without Nazi-era art association, large estates often carry with them the likelihood of litigation.

The Wall Street Journal reports that the Kunstmuseum is expected to accept the works:

The Kunstmuseum Bern’s legal team has been researching the artworks’ provenance since the museum was informed of the bequest on May 7. Barring a last-minute legal discovery that could scuttle the deal, the museum’s board of directors will accept the gift at its meeting on Saturday, the last of half a dozen deliberations regarding Mr. Gurlitt’s bequest. . . . Much of the delay in accepting the trove has come because the tiny museum needed to secure seven-figure private funding from Swiss donors to be as free as possible of German funding that the museum thought could taint the neutrality of their provenance research, people familiar with the deliberations said.This was a daunting task for the board members. The museum lacks the financial backing of other Swiss museums like Fondation Beyeler. Unlike European and American museum boards filled with wealthy collectors and art world insiders, the Kunstmuseum Bern’s board comprises local government officials and academics.

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Even hoarders of art have rights

A Sketch by Canalletto
One of the works recovered in Munich, a sketch by Canaletto

Some of the dust has settled after the frenzied early reports about the cache of art found in a Munich apartment. We can start to see what the discovery of all this art means. The Art Newspaper has the best English-language account I’ve seen of the press conference yesterday. We know that German authorities seized 121 framed works; and 1,285 unframed works. The search of the apartment occurred in February 2012—not in 2011 as many initial reports indicated. Cornelius Gurlitt also owns a home in Salzburg, Austria, and his immediate location is not known. The authorities in Augsburg invite individuals who may be seeking the return of art to contact the prosecutor’s office there.

There has been a great deal of criticism levied against German officials. But I’ve yet to see any wrongdoing on their part. An 18 month delay does not strike me as unjustified given the enormity of this recovery and the difficult task uncovering the history of all these works. As unpleasant as it may be, we have to remember that Mr. Gurlitt has rights, and nations cannot just strip him of his property rights. It appears as if original owners may be able to be tracked down for much of this art. But for art spoliated during World War II, there was a wide spectrum of art that was taken—from outright theft on one end to sales under duress, to even some fair transactions at the other. Its also possible that Gurlitt may have good title to a substantial portion of this art. The German authorities are likely examining how best to navigate this difficult issue. If it appears like they were misleading or held ulterior motives, then criticism is certainly warranted, but I’ve yet to see it.

Rather than release a list of the works and their images, German authorities have made the decision to task one individual, Meike Hoffmann, an art historian, to research potential claimants. Reinhard Nemetz, the chief prosecutor in Augsburg said the list won’t be published as:

We would prefer to have people coming to us to tell us which pictures they are missing than making them public and having 10 claimants for each one…

So rather than a host of conflicting claims, prosecutors can match existing claimants.

It may also be wise to temper some of the claims about the value of all this art. the AP spoke with Christoph Zuschlag, an expert on so-called ‘degenerate art’:

We need to see whether these were originals or prints…

Continuing that of the 21,000 pieces of ‘degenerate’ art which were seized, 2/3 were prints. Only 1/3 were originals.

That is an appropriately cautious way to think about all this art I think. Because one of the most interesting things this discovery may signal is how much we might be mistaken about the Nazi’s and ‘degenerate’ art. As Jonathan Jones writes:

Gurlitt’s cache reveals that many assumptions about the Nazis and art are simply untrue. The Degenerate Art exhibition was real enough – but did it really mean the Nazis hated modern art? It is because we take this for granted that no one has been searching for lost “degenerate” works such as those in the flat in Munich. Some works from the Entartete Kunst exhibition, many seized from once-progressive German museums, were sold abroad afterwards. Others have vanished. As the war began and Nazi racial policies became ever more explicit, more modern and pre-modern works were seized or bought for a pittance from Jewish owners. Much was destroyed. Or was it?

 

Michalska, Julia. “Details of Naziloot Cache Revealed.” The Art Newspaper, Nov. 5, 2013.  
Smale, Alison. “Report of Nazi-Looted Trove Puts Art World in an UproarThe New York Times, November 4, 2013. 
AP. “German Gov’t Helping Probe Into Huge Art Find.” via ABC News, November 4, 2013. 

Massive trove of modern art discovered

The apartment block in Munich where 1500 were discovered in 2011
The apartment block in Munich where 1500 were discovered in 2011

The recovery rate for stolen art may take a dramatic shift towards original owners. The German magazine Focus has broken the story of an incredible find. One of the most remarkable discoveries of stolen art that I can think of. A reported 1,500 works of art by artists including Matisse, Picasso, Chagall, Klee, and others was stored in an apartment in Berlin for years. The works were likely spoliated by Nazis during the 1930s-40s.

When authorities executed a search warrant they found the works stacked in a dark room in a flat in this apartment block in Munich. They were hidden there by Cornelius Gurlitt, now 80, who was the son of a Munich art dealer.

The works were discovered after tax authorities executed a search warrant of Gurlitt’s apartment in 2011. He was stopped on a train bound for Switzerland with 9,000 euros in cash, and had plans to deposit the money in undeclared Swiss accounts. When the authorities searched his home they found what must be one of the largest ever single recoveries of stolen art.

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The Getty Returns a Work to Goudstikker Heir Marei von Saher

The Getty has voluntarily agreed to return a work it purchased—in good faith they claim—in 1972. According to  Mike Boehm’s report in the L.A. Times, the Getty stands as the first North American Museum to voluntarily return a work to the Heir of Jacques Goudstikker. The work, Landscape With Cottage and Figures, by Mieter Molijn, dates to the 1640s. It is unclear how the disputed painting came to light, but the return of this work stands in contrast to the ongoing dispute between von Saher and the Norton Simon:

The Norton Simon Museum’s “Adam and Eve” also were among the Goudstikker-owned works the Allies repatriated to Holland after the war. But the Dutch government subsequently sold them to an heir of Russian nobility who claimed that his family, the Stroganoffs, had a prior claim on them, having owned them before they were seized by the Bolsheviks during the Russian Revolution. Goudstikker bought them at an auction in 1931, then lost them to the Nazis. Whether “Adam and Eve” had belonged to the Stroganoffs during the early 1900s is part of the dispute between Von Saher and the Norton Simon Museum. The museum’s founder and namesake bought them from the Stroganoff heir for $800,000 in 1971; the museum has had them appraised at $24 million. 

In the “Adam and Eve” case, a federal judge in Los Angeles ruled in 2007 that Von Saher had filed her claim too late to meet the three-year statute of limitations for suing to recover allegedly stolen art, and that a 2002 California law suspending the statute of limitations for Holocaust-era art-restitution claims filed through the end of 2010 was unconstitutional because it intruded on the federal government’s sole prerogative to set foreign policy and war policy. 

The U.S. 9th Circuit Court of Appeals agreed in 2009 that the California law was unconstitutional, although it directed the trial judge to reconsider whether Von Saher nevertheless has a legitimate claim under the regular statute of limitations. 

Von Saher has appealed to the U.S. Supreme Court in hopes of reinstating the voided state law. The high court indicated in October that it is considering whether to take up the case, but first it asked the U.S. solicitor general to file a brief giving the federal government’s view. Kaye, the Von Saher attorney, said the brief hasn’t been filed yet.

So the Getty has voluntarily returned the work to the dispossessed heir, and should be praised for doing the right things. Yet that decision surely was much easier given that the painting was never displayed. The Norton Simon has decided to fight to retain possession of its disputed works—which are more valuable, and have a much more complex history, touching both the Bolshevik revolution and World War II.

  1. Mike Boehm, Getty Museum: Getty Museum agrees to return painting looted by Nazis, L.A. Times, March 29, 2011, http://www.latimes.com/entertainment/news/la-et-getty-painting-20110329,0,2892909.story (last visited Mar 29, 2011).
Questions or Comments? Email me at derek.fincham@gmail.com

German Court Orders Repatriation of Gold vessel to Iraq

Lucian Harris, for the Art Newspaper, reports on the claims by Iraq to a miniature gold vessel:

The case, which has focused attention on the sale of smuggled Iraqi artifacts in Germany, began late in 2004 when the slightly dented six-centimetre-high gold vessel was included in a sale at Munich auction house Gerhard Hirsch Nachfolger, described as being of Mediterranean origin, possibly from Troy and dated to the Roman Iron-age period (1st century AD). However, the vessel was spotted by an unnamed expert who believed that it was in fact much older and of Sumerian origin.
 . . .
The case has been something of a personal mission on the part of Iraqi ambassador to Berlin Alaa Al-Hashimy, whose interest in cultural affairs stems from his background as an architect . In 2007 legislation was passed in Iraq requiring envoys in foreign countries to monitor the appearance of any Mesopotamian artifacts on the commercial market. Furthermore, this August a letter of understanding was signed between the two governments to ensure cooperation in cases where Iraqi artifacts appear on the German market. A recent report on Azzaman news agency claimed that since the court’s ruling Iraqi diplomats in Germany have stopped the sale of 28 Mesopotamian artifacts believed to have been smuggled out of Iraq in the past five years.
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"It’s about emotion, not airtight logic and consistent policy."

So argues Michael Kimmelman in the New York Times in describing the recent calls for repatriation of works of art.  He takes as examples the recent repatriation claims made by Egypt against Germany and France.  He makes two points that I’d like to draw out of the article.

First, he claims that globalization has intensified “cultural differences” between nations.  This allows nationalism to “exploit culture”.  He may be correct in some cases, but he fails to note that the frescoes returned by the Louvre had been purchased recently, with little history.  Given what we know about the antiquities trade, this means they were likely illegally exported or looted. 

Second, he argues these claims are often based on emotion.  That is certainly true in some cases, because after all works of art are often designed to convey emotion.  One example of this would be Scotland’s desire for the return of the Lewis Chessmen.  But not all of these claims are without merit.  Moreover, why is it that only claimant nations are “emotional”.  Are not museums and other groups “emotional” when they make arguments that works of art should stay where they are currently situated?  Kimmelman makes the argument that justice has shifted.  But I think that is a good thing.  We are closer to better justice for all nations, not merely the wealthier market nations via International treaties like the 1970 UNESCO Convention, and important decisions like the Schultz and Barakat decisions in the United States and the United Kingdom.   

Michael Kimmelman, When Ancient Artifacts Become Political Pawns, The New York Times, October 24, 2009.

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

Egypt Makes Claim to Nefertiti

The gallery displaying the Nefertiti bust.

Egypt has hinted at an official demand for the return of the bust of Nefertiti from Germany this week.  The demand comes as Germany opens the rebuilt Neues Museum, reinstalling the limestone and stucco bust there.  Zahi Hawass has told German media outlets that “[i]f she left Egypt illegally, which I am convinced she did, then I will officially demand it back from Germany”.  These comments come after Culture Minister Faruq Hosni of  Egypt failed to gain election as the new director general of UNESCO, and Egypt threatened France with a cultural boycott to secure the return of recently-purchased frescoes from the Louvre.  There are no indications Egypt will make a similar threat with this case, though perhaps if evidence comes to light indicating some wrongdoing, Egypt may attempt this aggressive strategy again. 

The bust has been in Germany since 1913.  A German archaeological expedition digging near Amarna found what may have been the house and studio complex of the sculptor Thutmose in 1912.  The bust of Nefertiti was found on the floor of a storeroom along with other plaster casts.  The removal of the busts does not appear to be an illegal smuggling or criminal in the same way the frescoes returned from the Louvre were.  This dispute then will share some characteristics with the dispute between Yale and Peru over artifacts from Macchu Picchu. 

In a piece in the New York Times, Monika Grütters, an “art history professor, legislator and a leading cultural expert” in Germany is quoted arguing:

“The documentation exists. The arrangements were agreed. The process was legal . . .  There was a complete understanding about what would remain in Egypt and what would be taken to Germany . . .  Maybe there is a bit of jealousy on the part of Egypt over Nefertiti. In any event, I am not so sure Egypt has the best conditions for this statue . . .  And because it is so fragile, I am not sure the statue can even be flown. We have excellent conditions here in Germany.

 There are indications the Egyptians may have been misled during the initial meeting over the partage of many of the objects which were recovered from the Thutmose workshop in 1912.  Are these issues which can be litigated today?  Perhaps not, as the limitations periods may have expired.  But in the court of public opinion, more evidence of German misrepresentation might compel some action or calls for return.

Judy Dempsey, Egypt Demands Return of Nefertiti Statue, The New York Times, October 19, 2009.

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

German Court Rules for Nazi-era Poster Claimant

A German court has ruled that Peter Sachs’ is entitled to an entire poster collection seized from his father in 1938.  The elder Sachs received about $50,000 in compensation for the collection which was then believed to have been destroyed. 

From the AP:

The Berlin administrative court ruled that Hans Sachs never gave up ownership of the collection of 12,500 posters taken from his home on the orders of Nazi Propaganda Minister Joseph Goebbels.


Sachs, 71, sued in a test case for the return of two posters — a 1932 poster for “Die Blonde Venus” (“Blonde Venus”) starring Marlene Dietrich, and one for Simplicissimus, a satirical German weekly magazine, showing a red bulldog. The court ruled that it was unclear whether “Die Blonde Venus” was part of his father’s collection, but that there was no doubt about the Simplicissimus poster and that it must be returned to him.


The ruling means that the court has backed the claim of Peter Sachs of Sarasota on the surviving portion of his father’s collection — some 4,000 posters at the German Historical Museum in Berlin, said his attorney ,Matthias Druba.


“We are definitely delighted,” Druba said . “It’s a shame that we didn’t get the Blonde Venus, but in the end what is more important is that the general question has been answered clearly in our favor: Peter is the rightful owner of the collection and he has a claim to get them back; we couldn’t want more.”


The posters include advertisements for exhibitions, cabarets, movies and consumer products, as well as political propaganda — all rare, with only small original print runs.
Only a handful of the posters on display at any given time at the German Historical Museum, but officials maintain they form an integral part of its 80,000-piece collection. The museum also points out that those in storage are regularly viewed by researchers.

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Peter Sachs’ Nazi-Era Restitution Disptue

David Rising for the AP has the story of 71-year-old Peter Sachs and his attempts to secure his father’s 12,500 rare posters:

When Peter Sachs was only a year old in 1938, the Nazis seized his father’s collection of 12,500 rare posters on the orders of Propaganda Minister Joseph Goebbels.

Sachs’ father, Hans — a Jewish dentist — was then thrown into the Sachsenhausen concentration camp north of Berlin. After his wife managed to secure his release, the family fled to Boston — leaving the posters behind.


Today, some 4,000 of the posters, worth at least euro4.5 million ($5.9 million), are in the possession of the German Historical Museum in Berlin, largely in storage. Peter Sachs goes to court Tuesday to try to get them back.


“I think that any disposition of the posters would be preferable to their languishing in a museum for 70 years without ever seeing the light of day,” Sachs told the AP in a telephone interview from his home in Sarasota, Florida.


The posters include advertisements for exhibitions, cabarets, movies, and consumer products, as well as political propaganda — all rare, with only small original print runs. One jewel of the collection was a 1932 poster for “Die Blonde Venus” — The Blonde Venus — a film starring Marlene Dietrich. It formed the basis for Sachs’ suit when he filed it last year, but museum officials say it is not part of the Sachs collection they have.


Only a handful of the posters on display at any given time but museum officials say they form an integral part of its 80,000-piece collection. The museum also points out that those in storage are regularly viewed by researchers.


The suit at the Berlin administrative court is the latest step in a case that has dragged over several years.


Sachs, 71, lost his first attempt to have the posters returned through a German restitution panel, known as the Limbach Commission, which ruled in 2007 that the museum was the rightful owner. But Gary Osen, Sachs’ Oradell, New Jersey-based attorney, said he is more confident of recovering the posters through the German legal system at Tuesday’s one-day hearing.

It could be a difficult claim for Sachs, as his father accepted compensation in the 1960s of approximately $50,000, and the elder Sachs apparently viewed the sum as an appropriate payment.  

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