Nazi Spoliation – Page 3 – Illicit Cultural Property

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.

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.

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

Kreder on Holocaust-Era Art Claims and Federal Executive Power

Prof. Jennifer Anglim Kreder has a new essay in the Northwestern Law Colloquy which examines some timely issues in Holocaust-Era art claims. From the Introduction:

Doctrines of judicial restraint in international cases take many forms, but they all have at their heart a concern about the proper role of courts, be they federal or state. This Article explores the proper role of courts in deciding state law conversion claims for art stolen or subject to forced or duress sale during the Nazi era. Many presume, incorrectly, that such claims must be precluded by separation of powers and federalism doctrines. This Article demonstrates the inaccuracy of such presumptions.

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

More War, More Looting

Jason bringing Pelias the Golden Fleece

From Jason and his argonauts to Thomas Bruce, seventh Earl of Elgin, cultural takings are nothing new. So argues Richard J. Evans—Professor of History at Wolfson College, Cambridge, and Chair of the U.K. Spoliation Advisory Panel—in a terrific long-read that argues the looting of heritage during wartime continue despite attempts to police conflict.

It is a beautifully written historical summary of wartime looting, which puts the ancient world, modern unrest, and World War II in historical context. I really recommend giving the entire piece a read, but here are some highlights:

The history of [looting] goes back far indeed, beginning perhaps with Jason and the Argonauts looting the Golden Fleece; and it continued with the Romans’ habit of looting art from conquered cities in order to parade it through the streets of Rome in the ceremonial procession of the Roman triumph before putting it on display in the Forum.

. . .

ELGIN’S ACTIONS reflected his belief that educated Englishmen were the true heirs of classical civilization, whose legacy permeated the minds of educated elites across Europe. This influence was nowhere greater than in revolutionary France, where Napoleon’s victorious armies began concluding a series of treaties with conquered states across Europe, notably the Treaty of Tolentino, signed by the pope in 1797, that allowed them to appropriate artworks to stock the Louvre Museum, founded in 1793.

. . .

It is vital to learn the lessons of the Second World War and put effective arrangements in place in advance of future fighting to rescue and restore cultural objects and prevent looting. Such arrangements were not made in Iraq in 2003, and the devastation was vast. The international community cannot prevent looting and destruction in the course of civil unrest, but it can take steps to minimize it in cases of interstate conflicts. Above all, the art and museum world needs to be more vigilant in monitoring the trade in looted goods in the wake of conflicts such as those in Iraq or Afghanistan, and law-enforcement agencies need to step in with sanctions against those who encourage—or benefit—from it. In a globalized world, every state has, as the Hague Convention urged more than a century ago, a duty to act as the trustee of the culture of all nations, not just its own.

Richard J. Evans, Art in the Time of War, The National Interest, May-June 2011, http://nationalinterest.org/article/art-the-time-war-5163 (last visited Apr 19, 2011).

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

An Amicable End to a Nazi-era Spoliation Claim

Some museums do unilaterally do the right thing. I have been forwarded on a press release from the Museum of Fine Arts in Boston regarding the purchase agreement for four tapestries which had been held by the museum since the 1950s. A provenance search by the museum revealed that the tapestries had been included in a forced sale in 1935. Jakob and Rosa Oppenheimer had been forced to sell the works. In 2010 The MFA contacted the successors of the Oppenheimers and a settlement was recently reached. The museum’s press release is embedded below:
MFA_Barberini Textiles Press Release

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

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.

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

Second Circuit Rules for MoMA

“Hermann-Neisse with Cognac”

Last Thursday, the Second Circuit Court of Appeals upheld a Federal District Court ruling denying the attempts by the late painter George Grosz to seek the return of three works currently held by the Museum of Modern Art in New York. The estate argued Grosz was forced to leave the works with his art dealer when the artist fled Nazi persecution in 1938.

In New York, the limitations period does not begin to run until a claimant demands, and is refused, a disputed work. So after that first request the claimant has three years to bring suit. In this case, the latest time in which that occurred was in 2005, while suit was not brought until April 10, 2010.

“Republican Automatons”

The Grosz estate argued that settlement negotiations were ongoing in 2005, and that under principles of fairness and equity (what the law calls equitable estoppel) the suit should not be time barred. So, an unsuccessful repatriation suit. The Met had declined to borrow at least one of the works in 2006 due to concerns about its provenance.

The disputed works were, Hermann-Neisse with Cognac, Self-Portrait with Model, and Republican Automatons.

Grosz v. Museum of Modern Art, (2nd Cir., 2010)

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

Embassy Cables Discuss Odyssey Marine, and a Nazi era Dispute

So the World is buzzing with all the revelations, mundane and otherwise, offered by the release of diplomatic cables via wikileaks. This has touched all manner of foreign and diplomatic relations, even cultural property and heritage issues. The Guardian has reprinted and summarized a series of recent cables which detail meetings between US officials and Spanish officials between 2007 and 2010. The various positions and points of concern related here really don’t come as much of a surprise. What is perhaps heartening to note is the importance of these issues at the highest levels of international relations. Nations take these disputes very seriously.

It is certainly possible to over-emphasize the importance of these, but both parties certainly seem to have very different priorities. In a 2008 cable, Spanish Culture Minister Molina is concerned with the then-emerging dispute with Odyssey Marine, while the American Ambassador focuses on Spain’s dispute with Claude Cassirer. As the embassy cable summarized,

The Ambassador stressed the USG’s interest in direct discussions between the Spanish government and Claude Cassirer, the AmCit claimant of a painting by Camille Pisarro (“Rue St. Honore”) in the Thyssen Museum. The Ambassador noted also that while the Odyssey and Cassirer claim were on separate legal tracks, it was in both governments’ interest to avail themselves of whatever margin for manuever they had, consistent with their legal obligations, to resolve both matters in a way that favored the bilateral relationship. The minister listened carefully to the Ambassador’s message, but he put the accent on the separateness of the issues. Molina said that no Spanish government could return the painting (if this is what the claimant wants). To begin with, while the minister presides over the board that manages the Thyssen Museum’s collection, the minister could not oblige the board to return the painting without a (Spanish) legal judgment. The minister added that paying compensation, as the British government has reportedly done in a number of cases, also posed legal problems.

Giles Tremlett, WikiLeaks cables: Art looted by Nazis, Spanish gold and an embassy offer, The Guardian, December 8, 2010, http://www.guardian.co.uk/world/2010/dec/08/wikileaks-us-spain-treasure-art (last visited Dec 9, 2010).

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

Another Federal Circuit Rules Against Claudia Seger-Thomschitz

“Two Nudes (Lovers)”, Oskar Kokoschka

The First Circuit Federal Court of Appeals in Boston has held that the MFA Boston is entitled to retain ownership of this work. The work was the subject of a sale in 1938 to a dealer in Paris. The MFA Boston purchased this work in 1972, attorneys for the claimant contacted the Museum in 2007 about securing the return of the work, and the Museum brought suit in January of 2008 to seek a declaratory judgment of the work, precluding any claim by Ms. Seger-Thomschitz.

The history of the work is complicated. It depicts the artist and Alma Mahler, the wife of Gustav Mahler. The claimant argued the painting was sold under duress by Oskar Reichel a physician and gallery owner in Austria. The work had been consigned on several occasions to an art dealer, Otto Kallir. Kallir later left Vienna, eventually coming to New York, and he brought this and some other works of art with him. He sent money to Reichel’s sons at this point. In 1939, the work was sent to Paris; in 1945 it was sold to a New York dealer for $1,500; Sarah Blodgett purchased the work in the 1940s; she gave the work to the MFA Boston in 1972. Claudia Seger-Thomschitz, though apparently not a blood relative of Reichel, had nonetheless been designated as the sole beneficiary of his estate and was described as his “select-niece”.

The claimant learned in 2003 that she might have a claim to the work, and though she is a nurse with no professional expertise in nazi-era suits, the court imposed a burden on her to seek the return of the work. The Court made clear it was not judging the legality of the museum’s acquisition of the work in 1973, pointing out that

Precisely because they do not address the merits of a claim, statutes of limitations do not vindicate the conduct of parties who successfully invoke them. Although we make no judgment about the legality of the MFA’s acquisition of the Painting in 1973, we note the MFA’s own disclosure that, when confronted with Seger-Thomschitz’s claim, it initiated a provenance investigation for the Painting that it had not done before. The timing of that investigation may have been legally inconsequential in this case. However, for works of art with unmistakable roots in the Holocaust era, museums would now be well-advised to follow the guidelines of the American Association of Museums: “[M]useums should take all reasonable steps to resolve the Nazi-era provenance status of objects before acquiring them for their collections — whether by purchase, gift, bequest, or exchange.” American Association of Museums, Guidelines Concerning the Unlawful Appropriation of Objects During the Nazi Era (Nov. 1999)

The decision comes just as the Jewish Claims Conference has launched a database with 20,000 objects from the Einsatzstab Reichsleiter Rosenberg (ERR), the Nazi’s art-looting task force. For more on the database, see Catherine Sezgin’s excellent discussion here. Perhaps that database will urge more museums and private owners with objects once owned by Nazi-era victims, which was surely one of the primary motivations for the initiative. Because court actions are difficult options for claimants. In August the 5th Circuit Court of Appeals held Ms. Seger-Thomschitz did not have a timely claim to another Kokoschka work against Sarah Blodgett Dunbar who had inherited the work in 1973 because too much time had elapsed and Dunbar had acquired title to the work via prescription.

Museum of Fine Arts, Boston, v. Seger-Thomschitz,— F.3d —-, 2010 WL 4010121 (1st Cir., 2010).
Dunbar v. Seger-Thomschitz, 615 F.3d 574 (5th Cir., 2010).

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