Tag: Nazi Spoliation

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. 

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

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.  Given that the museum acquired the work in 1971, this will surely make victory a difficult proposition. 

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

The British Library will be returning the Benevento Missal, which was stolen from a cathedral during World War II.  The British Library has possessed the book since 1947.  This is the first repatriation of an actual object under the Holocaust (Return of Cultural Objects) Act which applies only to claims during the Holocaust era, 1933-45.  The Spoliation Advisory Panel recommended the missal should be returned four years ago to the cathedral.

It was brought to Britain by an intelligence officer, Captain Douglas Ash, who bought it in Naples in 1944 and later auctioned it in London.
Captain Ash wrote in a letter: “I bought an old book in Naples in April 1944, knowing nothing about it, except that it was very old, being described by the second-hand bookseller as molto antico … I am interested in anything old and have a collection of swords and armour, but this book is completely beyond me.”
How the book reached Naples is unknown, but the cathedral argued successfully that it vanished from its library after it was bombed in September 1943, directly relating the loss to “circumstances of the mayhem of war”. Jeremy Scott, of the law firm Withers, who represented the cathedral on a pro bono basis, welcomed the new law. “I will be submitting a renewed claim [on the cathedral’s behalf] after it comes into force,” he said.

By all accounts this was the right thing to do with the missal.  Yet the wrongful purchase here had little connection with the holocaust, only during the “holocaust era”.  It was a sale which occurred in the wake of armed conflict, and presumably the missal was appropriated in an effort to remove valuable objects from the cathedral in anticipation of allied military action. 

Will this signal a creep toward increased repatriation for objects in other institutions, and for other historical periods?  This law has a limited scope, and will expire in 10 years.  In the United States much of the legal groundwork for repatriation first came in the context of holocaust-era claims via repatriation lawsuits.  It will be interesting to see whether a similar development may take hold in the U.K. in the wake of this law and the coming claims.   

  1. Ben Hoyle, British Library to return Benevento Missal under Nazi loot law – Times Online, The Times, December 1, 2009.
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Holocaust (Stolen Art) Restitution Act takes effect

New legislation which took effect on Friday will allow national museums in England and Scotland to act to return works of art, based on the recommendations of the Spoliation Advisory Panel.  The panel resolves claims arising from the loss of objects to the Nazis.  There have been nine instances of wrongful takings in which claimants were compensated, yet the national institutions have been forbidden from returning objects outright.  The only remedy was payment.  This is a welcome change, and allows UK museums to do the just thing.  Andrew Dismore, MP sponsored the act, and said:

It shows what could be achieved by a determined backbencher: by rolling out my sleeping bag and sleeping on the floor of the Public Bill Office overnight, I was able to become the first in the queue to apply for Second Readings after the balloted Bills, and this tactic paid off.

While I do not envisage the Act having to be used very frequently, this is an important moral step, to ensure that we can close yet a further chapter on the appalling crimes of the Holocaust.

  1. UK museums can return looted art, BBC, November 13, 2009.
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Undoing a Sale to HItler

The Art Of Painting By Johannes Vermeer, 1666-1673 The Austrian Culture Ministry has revealed that it has received a formal request for the restitution of this work, The Art of Painting by Johannes Vermeer.  The family of Jaromir Czernin has urged its return for nearly 40 years, but the Austrian authorities refused on the grounds the sale was voluntary.  However an attorney for the Czernin family argues the work was sold to guarantee the safety of Czernin and his family.  The work was sold to Hitler in 1940 for 1.65 million Reichsmark.  Irrespective of the outcome of this request, arguing Hitler purchased the disputed work is not exactly the kind of publicity Austria’s Kunsthistorisches Museum would enjoy. 

Philippe Schwab, Vienna museum fears restitution of stolen Vermeer [AFP, Sep. 13, 2009]. 

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Heirs Reject Spoliation Panel Ruling

Martin Bailey has an excellent piece for the Art Newspaper on a recent decision involving the U.K.’s Spoliation Advisory Panel.  The collection of experts helps to avoid restitution litigation and makes recommendations when descendants of Nazi-era art owners discover works of art may be in museums in the U.K.  The heirs of Dr. Curt Glaser pursued a Nazi-era claim that eight drawings, (including this drawing by Renoir) currently held by the Courtauld Institute were part of a forced sale in 1933.

The Spoliation panel disagreed:

A key piece of the evidence was a letter from Glaser to his artist friend Edvard Munch on 19 May 1933, the last day of the auction. He wrote that after the death of his first wife and falling in love again, “I have freed myself of all my possessions, so that I might start over again completely new”. Eleven days later he married Marie, and within a month or so they had left Germany. The panel felt that the letter to Munch suggested “mixed motives” behind’s Glaser’s departure, but the heirs dispute this, pointing out that he had had to flee because he was regarded as Jewish and had been dismissed from his job.

On 24 June the Spoliation Advisory Panel concluded that the claimants’ “moral case is insufficiently strong to warrant a recommendation that the drawings should be transferred to them”. Glaser had “obtained reasonable market prices at the auction”, namely 284 reichsmarks (around $1,200 at the time). The Glaser lawyer, New York-based David Rowland, disputes this, saying that “prices were depressed at the time, because other Jewish victims and intellectuals were also selling their belongings”.

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A Pisarro Hidden for 70 Years to be Auctioned

Camille Pissarro’s Le Quai Malaquais, Printemps (pictured), previously discussed here, recently recovered from a Zurich bank vault will go on sale later this month according to Catherine Hickley for Bloomberg:

 Gisela Bermann-Fischer waited almost 70 years to get back a painting by Camille Pissarro stolen from her family’s home in Vienna by the Gestapo in 1938. 

She recovered “Le Quai Malaquais, Printemps” after a quest that pitched her into a battle of lawyers’ letters with Bruno Lohse, a Nazi art dealer appointed by Hermann Goering to loot treasures in occupied France, and finally led to a Zurich bank vault, where the picture was stashed in a safe. Prosecutors sealed the safe as part of a continuing three-nation probe into associates of Lohse suspected of extortion and money-laundering. 

Now 80, Bermann-Fischer will auction the 1903 painting at Christie’s International’s sale of impressionist and modern art in London on June 23. Its value is estimated at between 900,000 pounds ($1.45 million) and 1.5 million pounds. Bermann-Fischer says it cost her at least 500,000 Swiss francs ($466,000) to recover the Pissarro, mainly in lawyers’ fees. At no point during her quest could she be sure of getting the artwork back.

One of the intriguing parts of the story was the brief resurfacing of the work in 1984:

“I don’t think we’ll ever find out from where to where the painting was transported over the years,” Bermann-Fischer said. “It truly was hidden. I think the exhibition at l’Hermitage Lausanne in 1984 was a test run, to see whether the original owners or any heirs were still on the lookout for the paintings and would make a claim.”

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MFA Boston Prevails in Nazi-era Declaratory Judgment

Kokoschka_TwoNudes.jpg The Museum of Fine Arts, Boston has prevailed in its suit against Dr. Claudia Seger-Tomschitz, Museum of Fine Arts, Boston v. Seger-Thomschitz, No. 08-10097-RWZ (D. Mass. 2009). 

At issue was this work, “Two Nudes (Lovers)” by Oskar Kokoschka, 1913.  The work has been on display “almost continuosly” since 1973 according to the Boston Globe’s Geoff Edgers. 

The museum brought suit to preclude any potential restitution suit, essentially asking the court to declare it the rightful owner of the work.  The Museum brought suit back in January 2008, and in the complaint argued the “painting was never confiscated by the Nazis, was never sold by force as a result of Nazi persecution, and was not otherwise taken”. 

The potential claimant, Claudia Seger-Thomschitz, claimed 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 who owned the Neue Galerie in Vienna.  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.

District Judge Rya Zobel held:

[A]lthough the Reichel family never claimed compensation for any of the Kokoschka works that had been transferred to Kallir for sale, it did claim restitution for artwork and property that had been stolen by the Nazis.

[T]he Reichel family never attempted to recover the painting after WWII, and there is no evidence that it believed the transfer was not legitimate.

The evidence is undisputed that the members of the Reichel family had sufficient knowledge of Reichel’s ownership and transfer of the painting.

Dr. Seger-Thomschitz also ―waited more than three years to assert her claim after she was on inquiry notice of her possible right to the Painting…The information necessary to pursue her claim was readily available to both [Dr. Seger-Thomschitz] and her counsel at that time.

[T]he delay in bringing suit will prejudice the MFA because all of the witnesses with actual knowledge of the transfer are deceased.

Any claim by Dr. Seger-Thomschitz that Oskar Reichel was misled when he transferred the painting to Otto Kallir in 1939 was ―pure speculation.

 The court has held that the claimant had opportunities to seek title to the work, but did not, and as a consequence the limitations period has run.   Malcolm Rogers, Director of the MFA Boston stated “The MFA conducted a year and a half long comprehensive investigation of the work’s provenance, seeking documentation of the various transactions and changes of ownership in the painting’s almost 100-year history. We are satisfied and grateful that the judge has reaffirmed the Museum’s rightful ownership of the work.”

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

Another Recovery for the Stern Estate

The AP reports that Immigration and Customs Enforcement officers have returned this work, St. Jerome by Ludovico Carracci (1595) to the estate of Max Stern.  The work was owned by art dealer Max Stern, and he was forced into selling the works in 1937 in Cologne, Germany.  The work had been hanging in the home of art dealer Richard L. Feigen.  Feigen had read about the other recent return to the Stern estate, and discovered the work had been missing after checking with the Max Stern Art Restitution Project. 

This voluntary return follows soon after another recent return, and the recent decision by the First Circuit, Vineberg v. Bissonette. 

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