Nazi Spoliation – Page 4 – Illicit Cultural Property

Stealing the Mystic Lamb Review

I’ve just finished reading Noah Charney’s “Stealing the Mystic Lamb: The True Story of the World’s Most Coveted Masterpiece”. This review should probably begin with a disclosure. Noah is a friend and colleague, first an internet acquaintance, and now we meet up every summer in Amelia during ARCA’s MA certificate program which he founded.

This work tells the story of one massive 2-ton altar piece, the single most stolen work of art of all time, and one that should be familiar to anyone who has taken an introduction to art history course.

After dropping the reader into history as allied forces are searching for the altar piece during World War II, we learn early on that this work was the prize of Hitler and Napoleon. That this massive masterpiece was nearly destroyed many times over. Yet somehow it has endured.

And we should all be glad it has. The object itself is stunning, Charney in the first chapter takes the reader through the importance of the painting itself, how it helped launch the career of Jan van Eyck, how art historians have puzzled over how much of the work was completed by van Eyck’s brother Hubert, how the artist used intricate symbolism, how it helped usher in the era of oil painting and beautiful detail. But perhaps most importantly, the discussion of this painting and all it symbolizes reminded me why art matters, and how a stunning work of art can change the way we all see the world, and each viewer gets a chance to re-learn or even re-evaluate those shifts in opinion. And in the end the work begins with a lively account for why individuals have stolen, mutilated, and coveted this work of art.

Next the reader learns about the artist himself, about the “Magician in the Red Turban”. the reader also learns about attribution, the recent decline of connoisseurship in the appreciation of art, how the movement of art can cause the re-appraisal of works of art as happened when the Albert Barnes Collection is preparing to move and many of its Old Master paintings were found to have been misattributed. We learn about the creation of the Louvre, the place the Ghent altarpiece played in the creation of that museum, and how many of the arguments made for a universal museum were made by Dominique Vivant Denon who served as the architect of the art looting during Napleon’s reign.

Charney spends great care telling the story of the altarpiece during both World Wars, noting the debt we art theft writers owe to Karl Meyer, Robert Edsel and Brett Witter’s fine work telling the story of the Monuments Men, and Lynn Nicholas among many others. Yet what really comes through in Charney’s book is a breathless story which merges history, towering figures like Napoleon or Hitler and their associates, art, artists, and imagery that revalidates why so many are interested in the study of art theft: these are really good stories. And it ends with an epilogue, yet another of the work’s enduring mysteries, that should not be spoiled here.

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

Will the Supreme Court Take Up Nazi-era Limitations Periods?

It might. The U.S. Supreme Court has asked the Solicitor General to submit a brief on the issue of whether states can enact more permissive limitations rules when they may conflict with the foreign affairs doctrine. Marei Von Saher has been pursuing her claim against the Norton Simon Museum over these two works by Lucas Cranach the Elder. Von Saher is seeking certiorari with the Supreme Court—and the court has not granted review, it just wishes to hear the position of the federal government first, before deciding whether to review the case.

The 9th Circuit Court of Appeals ruled earlier this year that California may not set aside special rules for Nazi-era claims because it conflicted with the federal government’s ability to govern foreign affairs. The claimant Marei Von Saher is the successor in interest to Jacques Goudstikker who bought the works in a 1931 auction in Berlin. The works remained there in Amsterdam until 1940 when the Nazis instituted a forced sale. After the war, Desiree Goudstikker reached a settlement with the Dutch government. She received some of her husband’s inventory, but did not claim another set of works because that would have meant returning the purchase price received from the Germans.

The Dutch government transferred these Cranachs to George Stroganoff-Scherbatoff, the descendant of a noble Russian family who was thought to have lost the paintings to the Bolsheviks during the Russian Revolution. Stroganoff-Scherbatoff sold these works to the Norton Simon Museum in 1971. The 9th Circuit held first that California’s special limitations rule for works looted during the Holocauset era, Sec. 354.3 conflicts with the foreign affairs doctrine. Though it does not conflict with Executive Branch policy via the President, it does conflict with a power reserved to the Federal government, as California created a “world-wide forum for the resolution of Holocaust restitution claims”.

As a consequence, the claim was left to general limitations principles. In California the Discovery Rule applies. A claimant must bring her action within three years of discovering her claim. This means actual discovery, but also when a reasonably prudent claimant should have discovered she had a claim, and the work first went on display in 1977.

Yet even if the Supreme Court denies certiorari, Von Saher may have recourse under the new limitations period rules recently signed into law by Gov. Schwarzenegger, which attaches an actual discovery date on the beginning of an action, eliminating the sometimes difficult due diligence requirement.

Gov. Arnold Schwarzenegger last week signed into law a new art-theft bill that doesn’t mention the Holocaust but gives all claims seeking the return of stolen art from museums, galleries and dealers a better shot at withstanding the legal argument that they were filed too late. In suits over allegedly stolen art and other scientific, historic and cultural artifacts, the statute of limitations has been extended from three years to six, and the six-year clock starts running when the plaintiff first learned where the object was. Previously, a museum could argue that the clock began running when a work’s whereabouts was first publicized to the extent that someone seeking its return should have known about it then.

“Adam and Eve” went on display in 1977 when the Norton Simon opened, prompting Los Angeles Times art critic William Wilson to write that he had experienced “a plain shock of unmitigated aesthetic fulfillment” upon seeing them. Museum founder Norton Simon bought the Cranachs from an heir of Russian aristocrats in 1971, and The Times first reported on them in 1972, saying they were among the industrialist’s holdings that were being loaned to Princeton University for an exhibition.

Von Saher’s attorney, Lawrence Kaye, said Monday that her legal team, which includes E. Randol Schoenberg, the Los Angeles attorney who in 2006 secured the return of five looted Gustav Klimt paintings from the Austrian government, will wait to see whether the U.S. Supreme Court reinstates the voided California Holocaust art law. If it does not, she would be able to amend her suit to proceed under the state’s new art-theft law. But the new law also would allow the Norton Simon Museum to use legal grounds other than the statute of limitations to press its argument that Von Saher waited too long to claim “Adam and Eve.”

Mike Boehm, Norton Simon’s disputed ‘Adam and Eve’ getting closer look from Supreme Court | Culture Monster | Los Angeles Times (2010), http://latimesblogs.latimes.com/culturemonster/2010/10/art-adam-eve-holocaust-norton-simon-.html (last visited Oct 5, 2010).

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

Tension Between Museums and Nazi Spoliation Claimants

It should come as no surprise that there are tensions between museums and claimants over how to respond to claims for works of art stolen or appropriated by the Nazis. Combine the general reluctance of many museums to allow transparency with the complicated stories of many works looted during World War II, and you have a recipe for ongoing disputes and mistrust. This should explain why litigation may be a crude solution to many of these disputes, and why other nations—mainly in Europe—have done a better job at resolving these disputes than the United States.

Robin Cembalest gives an overview for ARTnews, offering reactions from both sides. The dispute stems from a basic disagreement of what kinds of wrongdoing should constitute loot. Is a forced sale, or a sale under duress the same as outright theft? Wesley Fisher, director of resaearch at the Conference on Jewish Material Claims Against Germany argues “It is embarrassing that countries that previously did not have such good records in this field, such as Austria, are doing a very good job . . . And the United States is not doing as well as it was.” AAMD president Kaywin Feldman attributes the reluctance of some institutions to return objects to resources, “The real problem is that museums and claimants need help with research”. I think both of those sides offer some truth, though paying for increased provenance research would surely be less expensive than litigating a claim. At least part of the difficulty stems from different ideas of what constitute a looted work, and perhaps a commission modeled after the United Kingdom’s Spoliation Advisory Panel would offer a less controversial means of resolving these disputes.

Robin Cembalest, Tensions are rising between the restitution community and U.S. museums over the proper way to handle Holocaust art claims, ARTnews, October, 2010, http://artnews.com/issues/article.asp?art_id=3073 (last visited Sep 27, 2010).

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

Fifth Circuit Rules for Current Owner in Nazi-era Claim

The 5th Circuit has held that Claudia Seger-Thomschitz is not entitled to regain the work Portrait of Youth by Oskar Kokoschka. Sarah Blodgett Dunbar v. Claudia Seger-Thomschitz, No. 09-30717 (5th Cir. 2010). The claimant, Seger-Thomschitz argued the work was confiscated in a forced sale from the Reichel family in 1939. Sarah Blodgett Dunbar, a current resident of New Orleans, inherited the work in 1973 from her mother, who had purchased it in 1946 from a man named “Kallir” whom Seger-Thomschitz argued was a Nazi collaborator.

The suit was instigated by Dunbar after she received a letter from Seger-Thomschitz seeking the return of the work of art. Dunbar defended the action under Louisiana’s limitations rules, arguing the claims were barred by prescription. Louisiana Civil Code article 3491 gives title to a current possessor to “one who has possessed a movable as owner for ten years acquires ownership by prescription.” Seger-Thomschitz argued that “Louisiana law should not be applied at all” and that the Terezin Declaration, a non-binding document promulgated at the Prague Holocaust Assets Conference in 2009 preempts state law. The court was not convinced:

Appellant has not met the burden of establishing extraordinary circumstances to justify consideration of a new legal theory for the first time . . . Appellant offered no compelling reason why she failed to present this theory to the district court nor does it appear that a miscarriage of justice will result from our failure to address it. We are unpersuaded that this novel theory should be explored for the first time on appeal.

Ms. Seger-Thomschitz was also unsuccessful in her bid to seek the return of another Kokoschka work from the MFA Boston in June of last year.

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

Hungary Sued in US Over Nazi-Era Restitution Claim

One of the claimed works
“The Annunciation of Saint Joachim”, by Lucas Cranach the Elder,

Carol Vogel reports that the descendants of a Hungarian banker have filed suit in United States District Court over the disposition of a number of works of art. The defendants include Hungary and a number of Hungarian museums. The claimants are the descendents of Baron Mor Lipot Herzog, a jewish-Hungarian banker. Vogel reports that most of the disputed works have been “hanging in Hungarian museums, where it was left for safekeeping during World War II or placed after being stolen by the Nazis and later returned to Hungary.”

I have not been able to track down the plaintiff’s complaint just yet, so I cannot really comment on the substance of these claims. Vogel reports that this suit raises new issues in that the claimants are seeking 40 specific works, but have also asked for an accounting of other works which may have once been owned by the Herzog family. It seems curious that these claimants are bringing suit in the United States for these objects, jurisdiction must surely play an important role in the case, as will the timeliness of these claims. It seems the claimants have been requesting these works for nearly twenty years. A court in Hungary has ruled against the claimants in 2008, so it remains to be seen how an American court will be able to exercise jurisdiction over a dispute involving works once owned by a Hungarian, which are now on display in Hungary, and which have been previously ruled upon by a Hungarian court.

A Renaissance portrait by Georg Pencz, recently restituted

We can contrast the litigation of these issues with the approach of the Spoliation Advisory Panel in the United Kingdom. Rather than litigate these issues, the panel is charged with evaluating the claims of those who were dispossessed of their works of art during the Nazi era. It recently handed over this work to the descendants of Baron Mor Lipot Herzog, and was recently sold for 5.6 million pounds at a Christie’s auction.

Reading Vogel’s account, we are left wondering why exactly Hungary has refused to work with the claimants. It appears they approached Hungary and asked to “split” the paintings under dispute but were refused. These are important works, and one can understand why a State or museum would be reluctant to lose them. Yet Vogel’s account paints Hungary as a villain, unable and unwilling to account for Nazi-era works. Is it really that simple? Surely there must be a principled reason for Hungary refusing to return these works? Anyone who has access to the complaint or to the recent Hungarian decision, please do drop me a line (derek.fincham “at” gmail.com).

Carol Vogel, Hungary Is Sued Over Large Holocaust Art Claim, The New York Times, July 27, 2010, http://www.nytimes.com/2010/07/28/arts/design/28lawsuit.html?_r=2&partner=rss&emc=rss (last visited Jul 28, 2010).

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

Student Note on Nazi-Era Claims and the Internal Revenue Code

Joseph F. Sawka has a student article in Volume 17 of the the Miami International and Comparative Law Review, “Reconciling Policy and Equity: The Ability of the Internal Revenue Code to Resolve Disputes Regarding Nazi-Looted Art”. A copy can be downloaded here. He argues that one way to mitigate the harms which can occur when an innocent current possessor of a holocaust-era work of art that should be returned to claimants might be to allow the innocent current possessor to receive a tax deduction through a 501(c)(3) nonprofit organization. An interesting proposal, here is his abstract:

During World War II, the Nazi regime plundered numerous amounts of cultural property and artwork throughout Europe. Many of the items found their way into the hands of good-faith purchasers in the United States. With the growth in technology and communications in the last fifty years, claims for the return of the stolen property have become more prevalent. However, principles of legislative policy and moral equity tend to conflict in litigation involving Nazi-looted art. Should a good-faith purchaser with a large investment in an item be forced to surrender it? Are courts suited to handle the deep emotional, psychological, political, and moral underpinnings associated with the context of World War II? As litigation costs rise exponentially, it is often vital for parties to find alternatives to litigation. This article explores the ability of the Internal Revenue Code, via Section 501(c)(3), to solve disputes involving Nazi-looted art claims. When property, such as artwork, is indivisible, the result of litigation is usually winner-take-all. However, the Internal Revenue offers an alternative solution. It can allow the good-faith purchaser and claimant to emerge without a total loss.

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

Student Comment on Recovering WWII-Era Art from Russia

Michael Cosgrove has a student comment on remedies for the return of art from Russia: Still Seeing Red: Legal Remedies for Post-Communist Russia’s Continued Refusal to Relinquish Art Stolen During World War II, 12 Gonzaga Journal of International Law (2009). From his introduction:

When the Red Army entered Germany at the end of World War II, it seized 2.3 million objects including paintings, sculptures, and other works of art. At the time of this writing in 2009, the bulk of those objects are still in Russia. In addition to hundreds of thousands of pieces that belonged to German citizens and German museums the Russians hold paintings that the Nazis had stolen from all over Europe. Many of the works in question have been kept in locked rooms in the basements of museums since the end of the war. Although there were some encouraging signs that the art might be returned, or at least allowed to be displayed, with the end of the communist government, it does not appear that Russia is considering a large scale return of the art at this time. To the contrary, the Russian government has long held that the art is restitution for the destruction and theft of Russian art by the Nazis, and passed a law in 1998 that declares that the art is state property. This article explores the international legal remedy for procuring that art from the Russian government. “[U]ntil every one of those paintings, prints, sculptures, tapestries, and artifacts is returned, it will be impossible for us to walk through most of the world’s museums and galleries without wondering if we are staring into the haunted face of the spoils of war.” At the outset, a conclusion: favorable verdicts are obtainable, but the successful conclusion of litigation will only be the beginning of the exceedingly difficult task of enforcing a verdict against an obstinate and neo-nationalistic Russian government.

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

Profile of Claude Cassirer

In September of last year the 9th Circuit held that Claude Cassirer can pursue a case against the Kingdom of Spain over this work, Rue St.-Honoré, Après-Midi, Effet de Pluie, painted by Camille Pissarro in 1897. In a profile of Cassirer in the L.A. Times, the 88 year-old argues the Spanish “have been most unfriendly, not cooperative in any way,” with respect to his claims for restitution. The 9th Circuit Court of Appeals will hear the appeal again en banc, with an 11 judge panel, sometime in the coming months. The work had been taken from Cassirer’s grandmother in 1939 before she fled Munich. The Spanish government purchased the painting in 1993 as a part of the Baron Hans-Heinrich Thyssen Bornemisza’s collection. The work has been valued now at $20 million.

Spain paid the baron $50 million in 1988 to lease his collection for a decade, and halfway through bought it outright. The baron had designated Spain for his prized collection, valued at more than $2 billion, an apparently sentimental gesture honoring the last of his five wives, a former Spanish beauty queen. Thyssen-Bornemisza died in 2002.

“The Thyssen-Bornemisza Collection Foundation thoroughly reviewed the complete historical record on Mr. Cassirer’s alleged claim and respectfully denied it,” said Thaddeus J. Stauber of Nixon Peabody LLP’s Los Angeles office, which represents the foundation.

Citing the statute granting foreign states immunity from U.S. lawsuits except under a few defined conditions, Stauber said “we do not think that the case properly belongs in the U.S. courts.”

Carol J. Williams, Pissarro masterpiece travels a twisted history, L.A. Times, April 7, 2010.
Cassirer v. Kingdom of Spain, 580 F.3d 1048 (9th Cir. 2009).

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

Malevich Heirs and the Guggenheim Resolve Dispute

The Guggenheim has announced it has reached a settlement with the heirs of Kazimir Malevich. At issue was this untitled work, created in 1916. The piece was shown at an exhibition in Berlin in 1927 along with 70 other works, but the artist left the paintings behind before returning to the Soviet Union. He was probably rightly concerned that his works would be confiscated if he returned them to the Soviet Union; and in fact they were later banned by the Nazis as well. The work was purchased by Peggy Guggenheim in 1942.

The terms of this settlement are confidential. Malevich’s heirs have recently been pressing claims to many works they believe were improperly obtained. In 2008 they settled a claim for four works now in the possession of the city of Amsterdam.

Guggenheim and Malevich Heirs Resolve Painting Dispute, ARTINFO, February 8, 2010.
Dave Itzkoff, Ownership Settled for Malevich Painting, The New York Times, February 9, 2010.

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

9th Circuit Denies Limitations Appeal by Marei Von Saher

The 9th Circuit Court of Appeals has ruled on a claim over these two 500 year-old works by Lucas Cranach the Elder, Adam and Eve. As I wrote back in 2008, this case presents some interesting issues of timeliness. It grapples with the question of whether states may enact more beneficial limitations restrictions, allowing certain claimants to bring actions. The claimant, Marei Von Saher is the successor in interest to Jacques Goudstikker who bought the works in a 1931 auction in Berlin. The works remained there in Amsterdam until 1940 when the Nazis instituted a forced sale.

After the war, Desiree Goudstikker reached a settlement with the Dutch government. She received some of her husband’s inventory, but did not claim another set of works because that would have meant returning the purchase price received from the Germans.

Von Saher v. Norton Simon Museum of Art at Pasadena, — F. 3d —, 2010 WL 114959 (9th Cir. 2010).
Mike Boehm, Woman seeking return of looted art from Norton Simon Museum loses appeal – latimes.com, L.A. Times, January 16, 2010.
Orkin v. Taylor

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