Tag: Nazi Spoliation

A Pissarro Settlement Seven Heirs Never Signed

Impressionist painting of Dieppe harbor on a bright afternoon, seen from above. A long sandy quay curves across the foreground, lined with a dense crowd of small figures watching sailboats with white and rust-colored sails in a pale green basin. People stroll and a horse-drawn cart passes in the lower right. Beyond a low jetty, red-roofed houses and factory chimneys rise against green hills under a blue sky full of pinkish clouds. Signed and dated lower left, "C. Pissarro 1902."
Camille Pissarro, Darse de pêche et bassin Duquesne, Dieppe, après-midi ensoleillée (1902), oil on canvas, 65.3 × 81.2 cm. Listed in France’s 1947 Répertoire des biens spoliés, the painting sold at Sotheby’s London in June 2024 for £1.2 million under a settlement signed by two of Salomon Flavian’s heirs. Seven others are now asking a Paris court to undo it. Image: Sotheby’s.

A Pissarro Settlement Seven Heirs Never Signed

In June 2024 Sotheby’s London sold Camille Pissarro’s Darse de pêche et bassin Duquesne, Dieppe, après-midi ensoleillée (1902) for £1.2 million. That was a bit below its £1.5–2.5 million estimate. The catalogue carried the now-familiar line: the work was “offered for sale pursuant to a settlement between the current owner and heirs of Salomon Flavian.” Settlements like this have become the ordinary way Nazi-era spoliation claims to privately held works get resolved at auction. The consignor gets clean title and the claimants get a share of the proceeds. The auction house gets to sell the picture.

Except that not everyone was at the table. As Vincent Noce reports in The Art Newspaper, seven of Flavian’s heirs appeared before a Paris court on September 18 and asked it to retrospectively cancel the sale and annul the contract behind it. Only two heirs, Gilles and Nicolas Flavian, signed the agreement with the seller. They were represented by Mondex, the Toronto restitution firm, and they waived all their rights. The other heirs say they were never consulted. They apparently found out in a Mondex letter dated October 17, 2024, nearly four months after the hammer fell, which offered them an 8% share of the net sale price. The same letter mentioned a 16% commission owed by the two signatories. Mondex’s founder James Palmer says the firm received no payment for the transaction. A decision is expected November 5.

Was it looted at all?

The provenance fight is the more interesting half of the case. Salomon Flavian was a Jewish banker whose Paris collection was seized in 1941. The painting appears in the Répertoire des biens spoliés, France’s 1947 register of property looted during the war. Sotheby’s own catalogue lists the Répertoire under literature, so nobody disputes that the entry exists.

The seller commissioned research from Mary Kate Cleary, who has since become curator of provenance at Princeton University Art Museum. She concluded the painting was not among the 45 works seized from Flavian in 1941. She found it on no Einsatzstab Reichsleiter Rosenberg (ERR) confiscation list. She also found that Paul Rosenberg’s archives, together with the 1939 Pissarro catalogue raisonné, point to a sale around 1938 to the British painter and collector Edward Le Bas. Mondex accepted that finding, which is a somewhat unusual position for a firm in the business of making claims. Palmer says it did so “in the interests of rigour and intellectual honesty.”

Corinne Hershkovitch, for the heirs, has several answers. Works were regularly scrubbed from ERR lists with the help of unscrupulous dealers. Rosenberg’s postwar notes are allegedly imprecise. The catalogue entry does not mention that Flavian had owned the painting since 1935. Rosenberg may simply have confused this Dieppe with another picture Le Bas bought. And its seems Cleary may have worked from Rosenberg’s archives without checking them against the Flavian family’s own papers.

They can’t both be right. Sotheby’s published provenance has the painting going from a 1935 Drouot sale to Flavian and then to Rosenberg “by 1937,” with no date for when it left Flavian. That undated step is the whole case. The Répertoire is an important document, but it was compiled largely from owners’ own postwar declarations, made in chaos and grief, and it has errors in it. A 1939 catalogue predates the seizures, and that counts for something. But dealers’ stock books are not neutral records either.

A couple of tangents

The first is that the archive doing the most work for the seller belongs to Paul Rosenberg. He was one of the most celebrated dealers in Paris and was himself among the ERR’s biggest victims after he fled to New York in 1940. The 1939 catalogue raisonné by Ludovic-Rodo Pissarro and Lionello Venturi was published by Rosenberg’s own gallery. So the records of one looting victim dealer are now being used to show that a looted victim banker’s painting was never looted. Nobody has suggested Rosenberg did anything improper here. Still, it shows how much of our knowledge of this period rests on a handful of dealers’ paperwork.

The second is that the provenance runs through David Rockefeller, by way of Sam Salz, before ending up in the Dreitzer estate and a 1985 Sotheby’s New York sale. The painting was exhibited at the Tate in 1952 and the Met in 1966. It is a reminder that “hiding in plain sight” is the normal condition for works like this, and that no one apparently raised the Répertoire entry for decades.

The fee question, again

Readers with long memories may recall the Bermann-Fischer Pissarro I wrote about years ago. Gisela Bermann-Fischer found her family’s painting in a Zurich vault, and the fight over what the experts who helped find it should be paid ended with Jonathan Petropoulos resigning from Claremont McKenna amid extortion allegations. The Art Loss Register had proposed a sliding scale of 20% of the first million and less above that. I said then that money is a key focus of restitution, and the Flavian case is that point in a new form. Here the money question isn’t how much the intermediary takes. It is whether an intermediary acting for two heirs can bind a family it never spoke to, and then offer the others a fixed percentage after the sale. If French law treats the claim as belonging to all the heirs jointly, it is hard to see how two of them could settle it alone. If the painting was never looted, there was no claim to settle, and the settlement was simply insurance the seller bought to make the picture marketable.

Can Paris undo a London sale?

Sotheby’s also argues that a French court has no business ruling on a sale made in London between two clients with “no relationship with France.” Since Brexit, the EU’s Brussels I bis rules no longer sort out jurisdiction between France and the UK, so the Paris court will I think apply its own rules. And even a French annulment would still have to be enforced against a buyer whose identity hasn’t been reported and a painting that may be anywhere. The French courts have not been shy about Nazi-era claims. In the Bauer case, another Pissarro, La Cueillette des pois, was seized while on loan to the Musée Marmottan. Its American owners, who bought in good faith, lost it under the 1945 ordinance voiding acts of spoliation, and the Cour de cassation upheld that in 2020. But Bauer involved a painting physically in Paris. This one sold in London to an unnamed buyer.

That leaves a lot to watch on November 5. Will the court even reache the merits? Are the heirs proceeding under the 1945 ordinance or on ordinary contract and succession principles? How will a judge weigh a 1947 government register against a dealer’s catalogue from 1939?

Pissarro must be among the most litigated artists in restitution law. Cassirer, Bauer, Bermann-Fischer, and the University of Oklahoma’s Shepherdess all turned on a Pissarro. I can only speculate about why, but a few reasons might be: First, he was prolific. There are simply more of them out there to be lost and later found. Second, his collectors; many were the assimilated Jewish families of Paris, Berlin and Vienna whose collections were seized or sold under duress after 1933. Third, the money; a Pissarro is valuable enough to justify years of litigation, but not so famous that it couldn’t pass quietly through the postwar market. And finally, he liked to paint in series. He returned to the same harboror bridge again and again, in different weather and light. A wartime claim form or a dealer’s stock book that says “Pissarro, port of Dieppe, 1902” could describe several canvases, and the heirs here argue that is exactly what happened with Rosenberg’s records.

Why so many fights now? Part of it is that the evidence is easier to get at. The ERR card files, the Répertoire and dealers’ archives like Rosenberg’s are all searchable now in ways they weren’t a generation ago, so a listing that sat unread for decades can surface with a few keystrokes. Part of it is the auction houses themselves, which now want a settlement in hand before a flagged work goes on the block. And part of it is simple arithmetic. Eighty-five years on, a claim belongs to grandchildren and great-grandchildren scattered across several countries, which is exactly the situation that produced two signatories and seven plaintiffs here.

Whatever the court decides, it has a lesson for the settlement model the market depends on: a deal that gives clean title is only as good as the list of heirs who signed it.

Vincent Noce, Was this Pissarro painting—sold at Sotheby’s in 2024—looted by Nazis? A Paris court deliberates, The Art Newspaper (Sept. 24, 2026), https://www.theartnewspaper.com/2026/09/24/was-this-pissarro-paintingsold-at-sothebys-in-2024looted-by-nazis-a-paris-court-deliberates.

Camille Pissarro, Darse de pêche et bassin Duquesne, Dieppe, après-midi ensoleillée, Lot 49, Modern & Contemporary Evening Auction, Sotheby’s London (June 25, 2024), https://www.sothebys.com/en/buy/auction/2024/modern-contemporary-evening-auction-including-the-ralph-i-goldenberg-collection/darse-de-peche-et-bassin-duquesne-dieppe-apres (last visited Oct. 1, 2026).

Heirs of a Jewish Collector Contest Sotheby’s Sale of a Pissarro Painting Possibly Looted by Nazis, ARTnews, https://www.artnews.com/art-news/news/heirs-jewish-collector-sothebys-sale-pissarro-nazi-looted-1234799464/ (last visited Oct. 1, 2026).

Bureau central des restitutions, Répertoire des biens spoliés en France durant la guerre 1939-1945 (1947), digitised by the French Ministry of Culture, Accès au Répertoire, https://www.culture.gouv.fr/rechercher-une-publication-du-ministere-de-la-culture/bases-de-donnees/mnr-historique-de-la-publication/acces-au-repertoire (last visited Oct. 1, 2026);

Répertoire des biens spoliés en France pendant la Guerre 1939-1945, Lootedart.com, https://www.lootedart.com/MFEU4B37276 (last visited Oct. 1, 2026).

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

The Art Institute Chicago Schiele Ruling and the Limits of Object-First Enforcement

On Thursday the New York Appellate Division, First Department handed the Art Institute of Chicago a significant win in its long dispute over Egon Schiele’s Russian War Prisoner. Graham Bowley and Tom Mashberg’s report in the Times frames it as a blow to the Manhattan DA’s investigators. I’d go a step further. This ruling lands on the signature feature of the Antiquities Trafficking Unit’s method, which is that it goes after the objects first and worries about the people later.

Egon Schiele, "Russian War Prisoner" (1916), watercolor over graphite on cream paper. It shows the head and hand of a uniformed Russian prisoner of war, with the artist's signature at lower right.
“Russian War Prisoner” by Egon Schiele, via Manhattan District Attorney

To be precise about what the court did: it did not decide that the Art Institute owns the drawing. It didn’t decide that the drawing was looted, or that it wasn’t. It decided that a turnover order under Penal Law § 450.10 was the wrong tool for a sharply contested ownership dispute. The court vacated the warrant and the orders requiring the museum to surrender the work, and it said in terms that its decision shouldn’t be read as a determination of the rightful owner. It sent the title question to the earlier-filed civil case in federal court in the Southern District of New York.

matter-of-art-institute-of-chicago-app-div-2026-09-17Download

A quick recap

Fritz Grünbaum was a Viennese cabaret performer and an outspoken critic of the Nazis. He was arrested in March 1938 and died in Dachau in 1941. His collection of dozens of Schiele works was inventoried by the Nazis, and then, for the most part, vanished from the record until 1956, when pieces surfaced with the Swiss dealer Eberhard Kornfeld. Some went on to Otto Kallir’s Galerie St. Etienne in Manhattan, and Russian War Prisoner was ultimately bought by the Art Institute in 1966.

The DA’s Antiquities Trafficking Unit took an interest after Grünbaum’s heirs came to them in 2022. In September 2023 authorities in New York seized the drawing in place at the Art Institute, along with two other works in Pittsburgh and Ohio, on the theory that they were stolen from Jewish families by Nazis. The other two institutions, the Carnegie and Oberlin’s Allen Memorial, returned their Schieles in January 2024. The Art Institute did not, and the museum insisted the work was not looted but lawfully sold by surviving family members after the war.

Picture of a man in a suit, black and white, autographed.
Fritz Grünbaum, Österreichisches Theatermuseum, public domain photograph via https://commons.wikimedia.org/wiki/File:Fritz_Gr%C3%BCnbaum.jpg

Meanwhile the heirs’ separate civil suit had been dismissed by Judge Koeltl as time-barred, a ruling he declined to revisit in February 2024. In April 2025, Justice Drysdale sided with the DA. The ruling ran 79 pages and described the drawing as stolen property for the last 86 years. She reached that conclusion without an evidentiary hearing.

Why the appeals court said no

For a first-year-property-class reason, mostly. Section 450.10(5) says stolen property that comes into a court’s custody is to be delivered to the owner “on satisfactory proof of his title.” The Appellate Division reads that as a mechanism for quickly returning property to an obvious owner, not as a way to adjudicate a hotly contested title. The statute doesn’t say who decides title, what procedure applies, or who bears what burden. And the court leaned on a 1913 Court of Appeals decision, People ex rel. Simpson Co. v. Kempner, which said a title dispute between contending parties “must be determined in a civil action,” with notice, a hearing, and a jury if demanded.

The court was also unimpressed by the DA’s description of what happened below as “summary judgment-like.” There were no pleadings, no meaningful discovery, and no defined burdens of proof. And because the turnover orders can’t be appealed directly, the Art Institute could only get review through an Article 78 petition for a writ of prohibition. The court treated a deprivation of property without due process as the kind of clear legal right that makes that extraordinary remedy appropriate.

The object-first model

Here is what I think matters beyond this one drawing. According to the opinion, the DA told the court that New York County judges have signed more than 100 turnover orders, returning more than 4,000 antiquities and artworks. The NY Times reports how those cases typically end: rather than bring criminal charges and face potentially lengthy cases, investigators negotiate agreements, and the holders usually hand over the objects without contesting that they were stolen.

That is an object-centered model, and it has been enormously productive. In its statement to the Times, the DA’s office pointed to the return of more than 6,000 stolen artifacts. But the same statement cites 18 convictions. I don’t want to be unfair about that comparison, because convictions and objects measure different things. Still, it captures a pattern I wrote about after the Worcester seizure : the objects are returning to where they were taken from, but the prosecution of the individuals responsible has lagged well behind.

The object-first approach worked because it let everyone skip the hard part. A holder who cooperates gets no charge, no trial, and a quiet press release. The office gets the object and a headline. Nobody has to prove that a particular person committed a particular crime, and nobody has to adjudicate title. The Art Institute is, so far as I can tell, the rare possessor to refuse the deal and then follow through on the refusal, all the way to a writ of prohibition. The opinion also notes that the DA brought no criminal charges in connection with the work.

Why Schiele works are so contested

This is the part I think a general audience finds most interesting, and the reasons pile up.

First, the objects are portable and the paper trail is thin. Schiele’s works on paper are small, easy to move, and were easy to lose track of in the mass spoliation of 1938 to 1945. The Nazi inventory of Grünbaum’s property listed 81 Schiele pieces but, as the court notes, did not list Russian War Prisoner by name. Identifying a specific drawing with a specific line in a wartime inventory is a big part of the fight.

Second, there is a gap and a story to fill it. Nothing is documented between 1938 and 1956. Kornfeld filled it by saying he had bought the works from Grünbaum’s sister-in-law, Mathilde Lukacs. The Appellate Division in Reif v. Nagy did not credit that account, and this opinion recites why: no documentation of a transfer, no mention of Lukacs in earlier catalogues, and a claim made decades after the fact. The Art Institute still relies on the Lukacs account, as does the museum’s position that the family lawfully sold the work. That account has worked before: in Bakalar v. Vavra, the heirs lost a case involving a different Grünbaum Schiele on laches grounds, which is a reminder of how much turns on which court you’re in and which doctrine is doing the work.

Third, the money. The Grünbaum heirs sold six Schieles at Christie’s in fall 2023, and four of them collectively fetched $18 million. That helps explain both why heirs pursue these works so persistently and why holders defend them so hard.

Fourth, the New York connection. Kallir’s Manhattan gallery handled a good number of these works after the war. That’s what gives a New York prosecutor a jurisdictional hold on a drawing that sat in Chicago for sixty years, and it is exactly the connection the Art Institute has challenged.

Finally, the Art Institute’s own conduct. The opinion recites that there’s no record of a provenance check in 1966, and that in 2002 a museum intern asked Kornfeld about the work and there is no record the museum ever tried to independently verify his answer. The Second Circuit, when it revived the civil suit in March 2025 in a non-precedential summary order, said the Art Institute isn’t an ordinary non-merchant purchaser but a sophisticated one with expertise in Nazi-looted art. Nothing in this week’s decision undercuts that.

The reaction

The museum welcomed the ruling, telling the NY Times that the court rejected an unlawful attempt to use the criminal process to resolve disputed property rights, and that the matter belongs in civil court. The DA’s office said it is reviewing the decision and evaluating next steps. Two museum groups, the Association of Art Museum Directors and the American Alliance of Museums, had filed a joint brief supporting Chicago.

Nicholas O’Donnell, who represented a family that turned over another artwork in 2024, told the NY Times the decision “sharply reduces the D.A.’s ability to pursue the seizure of cultural property.” As the NY Times summarizes his view, owners accused of holding stolen art could now decline to hand it over unless a criminal case is brought, a crime is proven, and title is fully adjudicated. Raymond Dowd, who represents one of the Grünbaum heirs, sharply criticized the reasoning, comparing the objects to contraband that police can seize the way they seize drugs or drug money. Legal experts told the NY Times it is unlikely that holders who already returned works would try to reopen those seizures.

The ruling doesn’t just slow the DA down. It changes the price of contested cases. Where a holder disputes title, the shortcut is closed, and the office has two choices: bring a criminal case against someone, or send the claimants to civil court. That pushes toward what I’d argue was always the harder and more important work, which is investigating and prosecuting the dealers, middlemen, and facilitators who moved this material.

That work has its own problems. In the Schiele story, the central figures are dead. Kallir died decades ago, and Kornfeld is described in recent reporting as the late dealer. The trial court itself noted that every witness with first-hand knowledge of the wartime events had died. You can’t indict a dead man, and a “continuing conspiracy” theory of the kind the trial court accepted is a long way from a case a prosecutor can try. Proving a crime against a living person means proving what that person knew, and gaps in provenance, however damning they look to us, are not the same thing. So for Nazi-era claims like this one, the civil courts really may be the only place a resolution is possible, which is more or less what the Appellate Division said.

The picture is different for the antiquities trade the unit built its reputation on. There, the dealers, collectors, and trusts are often alive, the records are more recent, and the networks are the story. If the office is now pushed away from the easy object-first seizure, the question is whether it has the appetite and the resources to build cases against people. I hope so. The illicit market runs on the individuals who supply, launder, and buy them.

There is a fair case on the other side, too. Dowd’s point deserves a serious answer: police do seize contraband without a trial, and a museum drawing with a disputed, decades-old chain of title is arguably not the same thing as a looted Cambodian statue. Voluntary returns will also presumably continue. Many holders return works because they don’t want the fight, not because a statute compels them, and nothing in this ruling stops that. And it’s possible that the unit will simply reach for other tools. The DA said only that it is evaluating its next steps.

Procedurally, the Appellate Division stayed enforcement for 30 days, and the grand jury investigation can continue. The action that matters now is in federal court, where the case has been stayed pending this decision. There the parties will have what the Appellate Division said was missing: discovery, defined burdens, and a real fight over the evidence. For the heirs, who have waited nearly two decades, that is at once a setback and a chance to finally litigate the merits.

I’ll be watching for whether the next big move from Manhattan is another seizure, an appeal or something else. And nothing here would prevent the parties from coming to some kind of truce and settling their dispute outside of court.

Many thanks to the reporters who’ve followed this for years, especially Graham Bowley and Tom Mashberg at the Times, and The Art Newspaper.

Sources and further reading

Court decisions

Reporting

Commentary and analysis

Supreme Court to Hear Case involving Nazi-era sale of the Guelph Treasure

The United States Supreme Court has granted certiorari and will weigh in on a Nazi-era dispute over artworks, involving the sale of a collection of medieval artworks known as the Guelph Treasure. The collection is described as something out of a film: gold, silver, and jeweled liturgical objects from the Church of St. Blaine in Brunswick, Germany. Many of the objects were crafted in what is today present-day Germany, but other objects came from the Italian peninsula or the Byzantine empire.

Here’s a quick background on the dispute. The Welfenschatz, or Guelph trove is currently in the possession of the Prussian Cultural Heritage Foundation and has been claimed by successors of art dealers who were fleeing the holocaust. These objects were originally housed in the cathedral in Braunschweig, owned by the House of Guelph. During the First World War, the House of Guelph lost reign over Braunschweig and in the 1920s the pieces were sold to a consortium of Frankfurt art dealers, including 82 items in 1929. Later in 1935 the Prussian state, led by Hermann Goering, bought the remaining pieces of the treasure in what the claimants allege was a “genocidal taking”. In 2014, a German government commission found that the transaction was not a forced sale.

The claimants then brought suit in the United States. The current possessors, the Prussian Cultural Heritage Foundation have defended that action on the grounds that as a Foreign Government, they are immune from suit in the United States under the Foreign Sovereign Immunities Act. Claimants have argued that the actions of the Prussian government fall under one of the exceptions to that law, that the actions of the Prussians was a violation of International law, namely genocide. The Supreme Court has agreed to consider two issues:

  1. Whether suits concerning property taken as part of the Holocaust are within the expropriation exception to the Foreign Sovereign Immunities Act (FSIA). This is the legal treasure which gives the claimants a jurisdictional foothold to sue a foreign government in the United States, something that ordinarily is not allowed under American law.
  2. Whether a foreign state may assert a comity defense that is outside the FSIA’s “comprehensive set of legal standards governing claims of immunity in every civil action against a foreign state.” In essence the appellants are attempting to use the idea that Courts should refrain from entering into the realm of foreign policy in a broader way. At least that is how I understand that issue.

Nicholas O’Donnell, an attorney for the claimants stated:

[W]e are grateful for the opportunity to address the Supreme Court on these important questions about holding Germany accountable for its Nazi-looted art. A 1935 transfer from German Jews to notorious art looter and war criminal Hermann Goering is the quintessential crime against international law, regardless of Germany’s Holocaust distortion in defending this case. Germany seeks to eliminate recourse for Nazi-looted art and the Court will have the chance to answer this question of critical importance for Holocaust victims.

Being on the side of the possessors and having to defend that possession by justifying the acquisition by such an evil historical figure as Hermann Goering cannot be an easy legal argument. The Court will likely hear the case in the Fall, likely via telephone if the never-ending pandemic continues to outwit the hapless policy makers here in the United States. The case could impact the future of Nazi-era claims, and claims for wrongdoing more generally during similar periods of atrocity. The Court will also hear a case involving Hungarian nationals who lost property during World War II.

Stewart Ain, Supreme Court to Hear Guelph Treasure Case, Jewish Week New York (Jul. 2, 2020), https://jewishweek.timesofisrael.com/supreme-court-to-hear-guelph-treasure-case/.

Christopher F. Schuetze, U.S. Supreme Court to Rule on Medieval Treasure Bought by Nazis, The New York Times, Jul. 10, 2020, https://www.nytimes.com/2020/07/10/world/europe/guelph-treasure-germany-us.html.

Supreme Court agrees to hear Nazi art case, AP NEWS (Jul. 2, 2020), https://apnews.com/3fe60cf650bee8997d7f091fe2e8d84e.

Masurovsky compares ‘Nazi plundered art, looted antiquities, and stolen indigenous objects

Marc Masurovsky, cofounder of the Holocaust Art Restitution Project (HARP) has published “A Comparative Look at Nazi Plundered Art, Looted Antiquities, and Stolen Indigenous Objects” in the North Carolina Journal of International Law and Commercial Regulation. The Piece is an ambitious and serious look at the different kinds of State-sponsored taking of art and heritage, and attempts to connect the different kinds of takings across different historical periods and cultural groups.

From the introduction:

The dispersal of Jewish collections during the Nazi years interestingly compares with the recycling of looted cultural property from conflict zones and the plunder of ritual objects from indigenous groups worldwide. There should be a common response by the international community to cultural plunder and crimes committed against culture, within the framework of State-sponsored persecutions of entire groups. And there should be common standards for prevention, seizure, and restitution. This Article explores these issues.

Marc Masurovsky, A Comparative Look at Nazi Plundered Art, Looted Antiquities, and Stolen Indigenous Objects, 45 N.C. J. Int’l L. & Com. Reg. 497 (2020).
Available at: https://scholarship.law.unc.edu/ncilj/vol45/iss2/8

Supreme Court waiting on Solicitor General before deciding on certiorari in the Guelph Treasure dispute

The arm reliquary of St. Sigismund

The Art Newspaper has a useful update on the current state of the Guelph Treasure dispute. The Supreme Court has asked the Executive Branch, specifically the Solicitor General of the United States for an opinion on the case, in order to aid in its decision over whether or not to hear an appeal of the case from the D.C. Circuit Court of Appeals.

Here’s a quick background on the dispute. The Welfenschatz, or Guelph trove, a collection of 42 objects dating from the 11th-15th centuries is currently in the possession of the Prussian Cultural Heritage Foundation and has been claimed by successors of art dealers who were fleeing the holocaust. These objects were originally housed in the cathedral in Braunschweig, owned by the House of Guelph. During the First World War, the House of Guelph lost reign over Braunschweig and in the 1920s the pieces were sold to a consortium of Frankfurt art dealers, including 82 items in 1929. Later in 1935 the Prussian state, led by Hermann Goering, bought the remaining pieces of the hoard in what the claimaints allege was a “genocidal taking”. In 2014, a German government commission found that the transaction was not a forced sale.

The claimants then brought suit in the United States. The current possessors, the Prussian Cultural Heritage Foundation have defended that action on the grounds that as a Foreign Government, they are immune from suit in the United States under the Foreign Sovereign Immunities Act. Claimants have argued that the actions of the Prussian government fall under one of the exceptions to that law, that the actions of the Prussians was a violation of International law, namely genocide.

For some further helpful background from the perspective of the claimants, Nicholas O’Donnell, counsel for the claimants, has an excellent blog where he often updates this dispute.

Martha Lufkin, Supreme Court Delays Guelph Treasure Appeal so US Government Can Add Its Views to Case, The Art Newspaper, Jan. 21, 2020, http://www.theartnewspaper.com/news/supreme-court-delays-guelph-treasure-appeal-so-us-government-can-add-its-views-to-case [https://perma.cc/3UGP-SCJ2].

“loot” at Texas A&M Law on September 9

LOOT-web-banner2-crop

Next Friday Texas A&M Law school is sponsoring a symposium on looted art, cultural property and repatriation. They’ve announced an impressive lineup of speakers:

  • Don Burris, Senior Founding Partner, Burris & Schoenberg, LLP
  • Megan Carpenter, Co-Director, Texas A&M Center for Law and Intellectual Law (CLIP)
  • Monica Dugot, Senior Vice President, International Director of Restitution, Christie’s
  • Simon Frankel, Chair of Intellectual Property, Partner, Covington & Burling LLP
  • Deborah Gerhardt, Associate Professor of Law, University of North Carolina
  • Jennifer Kreder, Professor of Law, Northern Kentucky University
  • Marilyn Phelan, Paul Whitfield Horn Professor of Law Emeritus and former Professor of Museum Science, Texas Tech University
  • Lucille Roussin, Board of Directors, The Lawyers’ Committee for Cultural Heritage Preservation, and Director, Holocaust Restitution Claims Externship at Benjamin N. Cardozo School of Law

For the details, visit the event page here.

Germany sued over Nazi-era Medieval art sale

The 13th-century Dome Reliquary, part of the Welfenschatz or Guelph Treasure, is displayed at the Bode Museum in Berlin
The 13th-century Dome Reliquary, part of the Welfenschatz or Guelph Treasure, is displayed at the Bode Museum in Berlin

“Any transaction in 1935, where the sellers on the one side were Jews and the buyer on the other side was the Nazi state itself is by definition a void transaction”.

So argues Nicholas O’Donnell, an attorney representing descendants of the Jewish art dealers who sold a collection of medieval artworks known as the “Guelph” or “Welfenschatz” Treasure, allegedly under duress and threat of persecution. The complaint for the two heirs was filed in U.S. District Court in Washington D.C. to recover yesterday afternoon. The objects were part of the treasury of the Braunschweig cathedral and were used to store and display relics. The claimants allege that a group of Jewish art dealers were forced to sell the objects in 1935 to the German state of Prussia.

One unfortuante aspect here is that the German commission charged with resolving the claims of Nazi-era claimants was unable to achieve a satisfactory result for the claimants and the German government. One of the likely issues in this dispute will be one the timelinesss of this suit, whether a court will examine the circumstances surrounding an alleged forced sale nearly 80 years after it took place. The complaint alleges that the objects were sold under persecution for 4.15 million Reichsmarks (RM). If we do some rough back-of-the-envelope calculations, the exchange rate was 2.45 RM for $1. So that means the objects were sold for just shy of $1.7 million in 1935 dollars, which be nearly $28 million today. Considering the treasure may be worth as much as $226m, the German State seems to have received a pretty good bargain. The legal question will be whether that sale was under duress.

O’Donnell argues in his blog this morning:

Continue reading “Germany sued over Nazi-era Medieval art sale”

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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Cornelius Gurlitt has died (but leaves a lot of art behind)

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

Cornelius Gurlitt, the 81-year-old German man who gained prominence in the fall because he was revealed to have a massive amount of artwork has passed away after a heart procedure.

 

The Financial Times reports:

Several claims have been lodged on behalf of the descendants of people whose works were allegedly stolen under the Nazis. Among them are the heirs of David Friedmann, a German Jewish businessman, who have laid claim to the Max Liebermann painting “Two Riders on the Beach”. August Matteis, the US lawyer in the Friedmann case, said Mr Gurlitt “never had a role in the claim” because the painting clearly belonged to Mr Friedmann’s heirs.His death removed the tax investigation as a cause of delay because any tax owed to the authorities could be covered by the sale of Mr Gurlitt’s other works. “There must be no more paralysis for the sake of delay,” said Mr Matteis.

The NYT reports on the reaction by German officials:

Monika Grütters, who oversees cultural affairs for Germany’s federal government, issued a statement on Tuesday lauding Mr. Gurlitt for allowing the investigation of his collection. “As a private person, he set an example in his commitment to moral responsibility in seeking out fair and just solutions,” the statement said. “For this step, he was rightly accorded recognition and respect.” The German authorities have held the trove at an undisclosed location, citing security reasons for the secrecy. In February, an additional 238 works — some of them said to be top-quality paintings — were removed from Mr. Gurlitt’s second home, in Salzburg, Austria, and relocated also to an unnamed location. Mr. Gurlitt was last known to have sold a painting in December 2011, when the “Lion Tamer” by Beckmann fetched 864,000 euros, or $1.17 million, at an auction in Cologne, Germany. The auction house, Lempertz, said it brokered an agreement for some of the money to go to heirs of Alfred Flechtheim, a Jewish art dealer who was forced to leave Germany and died a poor man in London in 1937. Although reporters from around the world camped outside his Munich apartment for weeks after his art collection was revealed, Mr. Gurlitt gave only one interview, to the news weekly Der Spiegel. In that conversation, he revealed little about his life, saying that the only thing he had loved were his pictures.

The question now is what becomes of Gurlitt’s estate, as reported by the Wall Street Journal:

Although that investigation will lapse now that Mr. Gurlitt is dead, fresh hurdles abound, mainly surrounding a simple question: who has inherited Mr. Gurlitt’s estate? Christopher Marinello, a lawyer for the Rosenberg heirs, says the family will continue pursuing the case, but that “we’ll have to wait for the estate process to run its course.” It is unclear, though, whom Mr. Marinello should even contact or who will be handling the estate process.

Given Mr. Gurlitt’s perpetually frail state of health, a German court appointed Munich-based lawyer Christoph Edel as his legal guardian late last year. But Mr. Edel’s position was “voided as soon as Mr. Gurlitt died,” his spokesman, Stephan Holzinger, told The Wall Street Journal. Mr. Holzinger says he doesn’t even know if Mr. Gurlitt has a will and that his own contract will only continue for “the next few days.”

Melissa Eddy & Alison Smale, Cornelius Gurlitt, Scrutinized Son of Nazi-Era Art Dealer, Is Dead at 81, The New York Times, May 6, 2014.
Mary M. Lane, German Art Collector in Nazi Loot Uproar Dies, Wall Street Journal, May 6, 2014.
Stefan Wagstyl, Cornelius Gurlitt, Son of Nazi Era Art Dealer, Dies, Financial Times, May 6, 2014.

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.