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.

Continue reading “Massive trove of modern art discovered”

Student note on restituting Nazi-Looted art

Katherine N. Skinner has a student note titled “Restituting Nazi-Looted Art: Domestic, Legislative, and Binding Intervention to Balance the Interests of Victims and Museums“, 15 Vand. J. Ent. & Tech. 673. From the abstract:

The Nazis engaged in widespread art looting from Holocaust victims, either taking the artwork outright or using legal formalities to effect a transfer of title under duress. Years later, US museums acquired some of these pieces on a good-faith basis. Now, however, they face lawsuits by the heirs of Holocaust victims, who seek to have the museums return the artwork. Though good title cannot pass to the owner of stolen property under US law, unfavorable statutes of limitations, high financial hurdles, or discovery problems, among other obstacles, bar many of these claimants from seeking recovery. Though some museums have amicably settled with claimants, museums’ otherwise resistant responses are not surprising, considering the “cultural internationalist” attitude they adopt toward restitution in general. US federal action to resolve the issue of Nazi-art restitution has been aspirational rather than practical, and courts are not ideally suited to handle the difficult policy implications present on a one-off basis. Additionally, museums have not been faithful to their self-imposed ethical guidelines, which promote full out-of-court cooperation with claimants seeking restitution for Nazi-looted art. Therefore, this Note proposes that Congress step in to create a binding, uniform, domestic body to hear and resolve Nazi-art restitution claims brought against museums. Such a forum would eliminate many of the initial obstacles claimants face, and with its narrowly tailored application it would prevent museums from becoming more vulnerable to restitution claims in other contexts. Finally, with a sunset provision followed by a presumption against restitution, such legislation would provide museums a respite from facing these claims eternally.

If you are writing in the field and would like me to post your abstract, just drop me a comment below, or email me at derek.fincham ‘at’ gmail.com.

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

International Symposium on Nazi-looted art at the Peace Palace, Nov. 27

I have been forwarded some details about an international symposium: Fair and Just Solutions? Alternatives to Litigation in Nazi-Looted Art Disputes: Status Quo and New Developments. The symposium is taking place in the Peace Palace in the Hague, the Netherlands on 27 November 2012.

This symposium is being staged to mark the tenth anniversary of the Dutch Restitutions Committee, an independent committee that advises on claims relating to Nazi-looted art. The chairman of the Restitutions Committee is Willibrord Davids. During the symposium five European looted-art advisory committees, distinguished scholars, experts, representatives of museums, art dealers, auction houses and pressure groups will explore the question of how to reach a fair and just solution in disputes about Nazi-looted art. Attendees at the symposium will not only gain a good overview of the current state of affairs, but will also be able to share their thoughts about desirable developments in the future. Registration for the symposium is open to anyone with an interest. For more practical information about the main issues, the programme and the registration form please go to the Restitutions Committee’s website: http://www.restitutiecommissie.nl/en/symposium_introduction.html.

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

Student Note Examining Bakalar v. Vavra and choice of law in New York

Egon Schiele, Seated Woman With Bent Left Leg (Torso)

The June issue of the Columbia Law Review has an interesting student note by Laurie Frey, Bakalar v. Vavra and the Art of Conflicts Analysis in New York: Framing a Choice of Law Approach for Moveable Property, 112 Colum. L. Rev. 1055 (2012). The case involves this 1917 gouache and crayon work which passed through an Austirian shipping company during the holocaust era.

From the introduction:

The facts of Bakalar v. Vavra presented a familiar scenario in Holocaust-era art cases. A good faith purchaser, who thought he had bought clear title to a drawing, went to sell the drawing at auction in New York and found himself confronted by the claims of alleged heirs, who asserted that the painting was taken from their ancestor by the Nazis. Typical of art cases, the drawing had passed through a number of jurisdictions before arriving in New York, and the court in Bakalar faced the difficult question of what jurisdiction’s laws to apply to determine which of the parties had title to the drawing. This Note examines the particular importance of choosing the law to apply in disputes between good faith purchasers of artworks and the artworks’ original owners, or their heirs—disputes in which the law chosen may lead to dramatically different results. The Note then reviews the evolution of the analysis for choice of law generally and in New York particularly. Prior to Bakalar, the law in New York appeared to be a combination of an interest analysis and the more traditional lex situs approach, which focused on the location where a particular transaction took place. This Note argues that the Second Circuit misconstrued prior New York case law in its application of the interest analysis without regard to the lex situs. The Second Circuit’s analysis created uncertainty and unpredictability in New York choice of law rules, and New York needs a revised choice of law rule for property conflicts that gives both predictability and nuance to the law post-Bakalar. This Note proposes a return to an interest analysis that places particular emphasis on the location of the property transfer at issue in the case. Such a rule would lead to more predictable results, since the law of the transaction location would typically apply, but it would also give judges discretion to weigh other relevant factors.

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

The Grey Lady Reports on the proposed Immunity Clarification Act

The paper of record gets some reactions to the Immunity Clarification Act, which would remedy an inconsistency between the Immunity from Seizure Act and the Foreign Sovereign Immunity Act. I spoke with the reporter a number of weeks ago about the piece. I wrote a lengthy email discussing the law, and summarized recent cases which likely prompted the sponsors of the bill in the house and senate to act. I noted alternatives other nations have successfully used. Some of that made it into the piece, and of course the one part of the piece attributed to me was taken out of context:

 Derek Fincham, an assistant professor at South Texas College of Law in Houston who specializes in cultural heritage law, said the exclusion probably also reflected the notion that the bill would be difficult to pass without an exception for Holocaust-era claims.

“To put it bluntly, how many Cambodians donate to political campaigns?” he said. “All of this goes back to political influence on a money level, which is unfortunate.”        

The quote only speaks to a small part of my response to the question. I was asked why the thefts from a place like Cambodia might be treated differently in the proposed bill. I gave a number of other reasons for the Holocaust Era exception which runs from 1933-1945. I discussed the unique nature of the holocaust, the scope of the spoliation which occurred, and the Spoliation Advisory Panel in the United Kingdom which also treats the holocaust era in a unique way. I do think that cultural heritage policy, like any political decision, stems from political influence and a constituent group which makes itself known to its representatives, but that’s only one part of the equation.

As I told the reporter last month when we spoke, the new bill arises because of recent cases involving two acts of congress which conflict. The first act, the immunity from seizure act bars suits which have the effect of depriving a museum the custody or control of a work of art, lent by a museum. The other act of Congress, the Foreign Sovereign Immunities Act has been deemed to open a window for claims, even when immunity has been granted under the Immunity from Seizure Act. The two recent cases are Magness v. Russian Federation, and Malewicz v. City of Amsterdam. In both those cases suits for the value of the paintings were allowed to continue, despite the fact that they had been granted federal immunity.

Ultimately the State Department hears a request for immunity and the lender must provide information about the history of the loaned works. The State Department is not thoroughly vetting these requests, and rather than have an exception for this or that period of spoliation, the best solution would be to avoid giving a foreign lender immunity if there is a tainted history to the object.

Doreen Carvajal, Dispute Over Bill to Protect Art Lent to Museums, The New York Times, May 21, 2012, http://www.nytimes.com/2012/05/22/arts/design/dispute-over-bill-to-protect-art-lent-to-museums.html (last visited May 22, 2012).

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

The Immunity from Seizure Act and the proposed clarification in the Senate

File:Suprematism 18th Construction.jpg
One of the Nazi-era works at issue in Malewicz, titled Suprematism 18th Construction, by Kazimir Malevich

Legislation which would have an impact on the lending of foreign artworks is currently moving through both the House and the Senate. The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act would remedy an inconsistency between two laws. The first act, the Immunity from Seizure Act bars suits which infringe on the custody or control of a museum while they are loaning the work of art. The other act, the Foreign Sovereign Immunity Act has opened the door for some claims, even when immunity has been granted under the Immunity from Seizure Act. 


Two recent cases which highlight this are Magness v. Russian Federation, and Malewicz v. City of Amsterdam. In both those cases suits for the monetary value of the paintings were allowed to continue, despite the fact that they had been granted federal immunity. The proposed law seems to be a sound and reasonable accommodation for the recent conflict between these two statutes. However some have claimed that this would preclude certain claims in Federal Court. This strikes me as troubling because the State Department hears a request for immunity and the parties have to provide detailed information about the history of the loaned works. The implication is that the State Department is not thoroughly vetting these requests, and that when the works arrive in the United States unsuspecting lending museums, who may have been unaware they had a work of art subject to a claim, may be hauled into court, after they were given guarantees that this wouldn’t happen. A grant of immunity is issued by the State Department, which has the responsibility for checking that there is no potential claim to the work of art. I find it curious that many of the same groups expressing anxiety about the clarification (like the LCCHP here in this brief press release) advocate for State Department involvement in US import restrictions via the Cultural Property Advisory Panel. It seems to me that if we entrust the State Department with regulating imposition of import restrictions, why are they unable to research the history of an object entering the US for a temporary loan. And for me that makes bad law and bad policy. Foreign lenders perhaps should give up title to some of these contested objects, but claimants waiting in the wings and springing a lawsuit on a lending museum will lead to fewer art loans, and will end up limiting those temporary exhibitions anyway. What we have is a cultural embargo on works of art which may be the subject of a Nazi-era claim.


Art is a good ambassador, and the exchange of art is an admirable goal. Aggressive repatriation litigation, particularly after a foreign museum has been told it will not be sued in Federal Court, by the State Department, sets a troubling precedent and will certainly restrict number and quality of works of art museum visitors will see in loaned exhibitions. Remedying Holocaust-era wrongs is a worthy goal, but piercing immunity produces uncertainty for museums and current possessors of art. A better system would negotiate and recommend returns or compensation via something like the Spoliation Advisory Panel in the United Kingdom. Most interesting of all, the proposed clarification does not even attempt to remedy potential difficulties with Nazi-era disputes which arose between 1933-1945. Holocaust-era claims gained in number in the 1990’s with a number of important efforts and writers focusing attention on the issue. It is an example that many museum-goers are aware of. We all know the Nazi’s looted art and forced victims into selling or leaving behind their art collections. The legal precedents created in holocaust-era claims also can be applied to other periods of taking like the Bolshevik Revolution and the Cambodian conflict, and in fact we are seeing courts examine the taking of objects during those periods as well. The Holocaust repatriation movement has the benefit of a growing number of advocates who are actively networking with repatriation attorneys, auction houses, and art historians to aggressively pursue claims. However the cost of this litigation is restricted movement of art, and increasing silence on the part of museums in Europe and North America. Holocaust victims should have their rights vindicated, but a courtroom adversarial process is not always the best remedy for past injustices.

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

A New Museum Position: Curator of Provenance

A Medallion looted during WWII

Geoff Edgers had a terrific piece over the weekend profiling Victoria Reed, curator of provenance at the MFA Boston. Her position was created in 2010, and is unique in the museum community. She is according to the piece the only curator of provenance at an American museum, a post which can put her in an uneasy position, recommending that the museum should not acquire objects with insufficient history.

Enter Victoria Reed, the MFA’s curator of provenance. Her job, which is almost as rare in the museum world as is the medallion, is to research works with questionable histories both in the collection and on the MFA’s shopping list. As a result, Reed’s other job is to break curators’ hearts. Through months of research, Reed traced the medallion to a museum in Gotha, Germany, that she knew had been looted during the Nazi era. With that information, the MFA’s jewelry curator, Yvonne Markowitz, put the brakes on its purchase. And in September, the Art Loss Register announced that S.J. Phillips Ltd., the dealer who had offered the medallion, would be returning it to the Castle Friedenstein museum.

This can’t be an easy position to be in, but as more scrutiny attaches to museums, their collection, and their acquisitions, this kind of position will likely become more and more common. The market and dealers have not been adequately accomplishing this painstaking but necessary task, but perhaps they should be.

Paying for a position like this can be difficult given the funding climate for many museums. The piece notes that the position was funded by an MFA Boston donor, Monica S. Sadler, who stipulated that her position should not be cut from the museum’s budget. So other benefactors to museums out there, if you are concerned with the practice at your local museum, give a gift with similar stipulations. Easier said than done of course, but all parties involved should be praised for undertaking an important piece of reform which really could continue to substantially change the importance of provenance research. The piece deals primarily with works of art and paintings, but a position like this which examines antiquities could have even more far-reaching consequences for repatriation and acquisition.

  1. Geoff Edgers, A detective’s work at the MFA, The Boston Globe, December 11, 2011, http://bostonglobe.com/arts/2011/12/11/detective-work-mfa/6iaei4YOQOj83s9u3YfDXO/story.html?s_campaign=sm_fb (last visited Dec 13, 2011).
Questions or Comments? Email me at derek.fincham@gmail.com

Urice on Holocaust Art Restitution

Van Gogh, View of Asylum and Church at St. Remy

Stephen Urice, Associate Prof. of Law at the University of Miami has posted Elizabeth Taylor’s Van Gogh: An Alternative Route to Restitution of Holocaust Art?

The Third Reich confiscated, looted, or otherwise wrongly took vast numbers of works of art from public and private collections in Germany and in occupied countries. Holocaust victims were particular targets of this cultural property theft. For complex reasons, in most instances nearly fifty years elapsed between the end of World War II and the assertion of claims in U.S. courts for restitution of this stolen, “Holocaust art.” That time lapse creates an insurmountable burden for some plaintiffs’ efforts to recover their property: the current possessor’s assertion of a statute-of-limitations defense. This article describes an alternative route to restitution in those situations. Under federal law, stolen property is forfeitable if the government demonstrates an indictable offense under the National Stolen Property Act (NSPA). This kind of in rem civil forfeiture action is independent of, and does not require the government to undertake, a criminal prosecution under the NSPA. To prevail in a civil forfeiture action predicated on an NSPA violation, the government must prove, by a preponderance of the evidence, the elements of an NSPA violation. In 1986, Congress amended the NSPA in ways that create an opportunity for the government to accomplish restitution in situations where a civil plaintiff would be time-barred under state law. First, Congress replaced the NSPA’s former requirement that the stolen goods be in interstate commerce with the requirement that the stolen goods have crossed a U.S. or state border. That change eliminated a defense predicated on goods having left interstate commerce by, for example, coming to rest. Second, Congress added “possession” of stolen goods as an enumerated offense. The effect of these amendments is to eliminate a defense based on the passage of time: The statute of limitations for possession of stolen goods commences to run only when the possessor divests herself of possession. Under federal forfeiture statutes the government has authority to return forfeited property to its original owners. Thus, federal law may permit the government to achieve for Holocaust victims what they, as civil plaintiffs, cannot accomplish themselves. The United States has adopted clearly articulated policies favoring restitution of Holocaust art. This paper argues that the United States could support those policies by pursuing this novel application of the NSPA. However, it also questions whether such cases are appropriate, given the rationales supporting statutes of limitations.

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

The Leopold Settles and Deaccessions

“Countess Kuefstein at the Easel” by Anton  Romako will  stay at the Leopold

The Leopold Museum in Vienna has reached an undisclosed settlement with the heir of a Jewish “construction entrepreneur”  who had his collection of art seized by the Gestapo some time before 1941. In order to pay the settlement and others, the museum will have to sell two other paintings by Egon Schiele. No one is talking of these sales in terms of deaccession, but that is what they are doing. Those Schiele works were surely in the public trust:

The Leopold Museum is selling an Egon Schiele painting, “Houses With Colorful Washing,” at a Sotheby’s (BID) auction on June 22. The cityscape is expected to fetch as much as $50 million, a record for the artist.
The revenue will help to pay for “Wally,” a portrait by Schiele that was the subject of a decades-long restitution dispute. In July last year, the museum agreed to pay $19 million to the heirs of the Jewish art dealer Lea Bondi Jaray to keep the portrait, which was stolen by the Nazis in the 1930s.
Last month, the Leopold Museum agreed to pay $5 million to the granddaughter of Jenny Steiner, a Jewish silk-factory owner, to keep in its collection “Houses by the Sea,” another Schiele painting that was stolen by the Nazis.
  1. Catherine Hickley & Zoe Scheenweiss, Vienna’s Leopold Settles With Heir on Nazi-Looted Paintings, Bloomberg, June 20, 2011, http://www.bloomberg.com/news/2011-06-20/vienna-s-leopold-settles-with-heir-on-nazi-looted-paintings.html (last visited Jun 21, 2011).
Questions or Comments? Email me at derek.fincham@gmail.com