Tag: Nazi Spoliation

New Heritage Legislation in the UK?

Jaspar Copping has a very interesting, though perhaps misleading, article in the Telegraph on Saturday detailing potential new heritage legislation in the UK. He writes initially that UK museums are prevented by law from giving works of art back to the families that once owned them. That is true, but that does not mean these families are denied compensation (which he points out further down in the piece). The Spoliation Advisory Panel has the power to award compensation to the claimant.

It seems there is a campaign by a Labour MP, Andrew Dinsmore:

“The owner of an artwork identified as stolen by the Nazis ought to have the right to decide whether they wish for the artwork to be returned,” he said.

“Some people may be happy for work to stay in public collections, but they should have the option. At the moment, they are not given that choice.

“No one knows how many artworks this will relate to but we shouldn’t think that just because the war was 60 years ago that this has all finished.”

Under the current legislation, all national museums and galleries are prevented from disposing of any of their works. They can only offer compensation to the owners, although private museums are able to return artworks and artefacts.

I’m not sure if this is an essential change. I think the UK policy which avoids costly litigation is a useful model. In the US, where nazi-era restitutions suits are the most common, claimants often get title to the disputed works. However in nearly all cases they sell the works anyway to satisfy the enormous legal fees often required to bring these successful claims.

Then in a response, the Department of Culture Media and Sport said, “The Government are committed to introducing legislation as soon as possible to allow all national museums, that are currently prevented from doing so by the acts of parliament under which they are founded, to return works of art spoliated during the Nazi era.” It seems this legislation will be a component of the prospective Heritage Protection Bill.

One thing to watch closely will be how the legislation may permit institutions to return the work to claimants, a potential move which may signal a shift in the obstacles the British Museum may have in electing to return antiquities to their nation of origin. The debate over that question will likely feature in the consideration, as the Parthenon Marbles always seem to be overshadowing UK heritage policy.

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

Portrait of Wally Forfeiture Progressing

Martha Lufkin has news of some movement in the Portrait of Wally civil forfeiture proceeding currently underway in Federal District Court in Manhattan.

[Judgment] on a long-running lawsuit in New York which helped launch a world outcry over Nazi-looted art at museums and prompted many institutions to begin examining their collections for history of Nazi theft, has been postponed to let the US government review new evidence. On 3 June the schedule was suspended on a case brought by the US government in 1999 to seek confiscation of Egon Schiele’s Portrait of Wally from the Leopold Museum in Vienna, under the US National Stolen Property Act. The US says the Leopold knew that the art was stolen by a Nazi in 1939 from its Jewish owner, Lea Bondi. The case, which the parties had asked the court to resolve without a trial, is before the federal district court in Manhattan.

It’s true that the Portrait of Wally dispute has probably caused some museums to re-examine their collections, but its also been pointed to as a risk to art loans and traveling exhibitions. It also puts a lot of power in the hands of prosecutors when they can use a forfeiture proceeding like this, as the government essentially brings suit against the object itself, with the benefit of far lower burdens of proof. Historically, federal prosecutors have intervened on behalf of source nations or claimants when they have potential claims. It’s a very useful thing for claimants to get this kind of assistance in these cases. I’m very interested to know what new information may be coming to light.

My understanding of the facts in this case indicates its a difficult case for the prosecutors to prevail. Hopefully a resolution is pending, as the work has been in storage for nearly a decade now.

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

"The Holocaust, Museum Ethics, and Legalism"

Jennifer Anglim Kreder has posted her forthcoming article The Holocaust, Museum Ethics, and Legalism, forthcoming from the Southern California Review of Law and Social Justice, Vol 18, 2008 on SSRN:

The Holocaust art movement has led to significant and controversial restitutions from museums. This article focuses on two emotionally driven claims to recover a suitcase stolen from a murdered man and watercolors a woman was forced to paint for Josef Mengele to document his pseudo-scientific theories of racial inferiority and his cruel medical experiments. Both claims are asserted against the Auschwitz-Birkenau State Museum in Poland, and the museum has refused to return the objects. These claims provide insightful case studies to examine the emotional and ethical aspects of such disputes. Drawing from a number of disciplines, this article demonstrates the inadequacy of the dominant frameworks influencing the cultural property field, which are grounded in property law, morality and utilitarianism, for evaluating the Holocaust-related claims. This article also demonstrates that the International Council of Museums (ICOM) Code of Ethics provides a useful construct for evaluating the claims. ICOM Principle 6.7, which calls on museums to promote well-being, should be the guiding light for museums deciding whether to return Holocaust-related objects. The article concludes that the Auschwitz-Birkenau State Museum’s refusal to return the objects is faulty ethically, counter to its mission, and reflective of the inadequacy of Poland’s approach to post-war restitution.

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

The Difficulty of Nazi Spoliation Research

Camille Pissarro’s Le Quai Malaquais, Printemps (pictured), was owned by a Jewish book publisher in 1938 in Austria. When he fled Austria, the work was lost. A history professor, Jonathan Petropoulos has been involved in attempts to return the works to the descendants.

Last week, Elise Viebeck a student reporter at Claremont McKenna College reported that Petropoulos will resign as director of the Study of the Holocaust, Genocide and Human Rights.

Yesterday Mike Boehm a LA Times Staff Writer picked up the story as well.

The descendant, Gisela Bermann Fischer, has accused Petropoulos of trying to extort 18% of the work’s value as payment for “facilitating” its return. It seems Petropoulos hoped to end controversy and spare the Holocaust center and Claremont McKenna College any more distraction. It seems his involvement may be more than a mere “distraction” as Swiss authorities are holding the painting as evidence in an ongoing German investigation into possible extortion by Petropoulos and a German art dealer, Peter Griebert. The LA Times Story has the details according to Petropoulos:

Petropoulos said he got involved at the behest of Fischer and the Art Loss Register, a London-based company that keeps a database of stolen art and in some cases helps to get it back.

In December 2006, he said, he met in Munich with Griebert, whom he knew as an art-business associate of Lohse. Griebert, the professor said, was now apparently angry with the ex-Nazi. Petropoulos said Griebert told him about papers he’d found showing that Lohse had sold the Pissarro in 1957 to a man who bequeathed it to a foundation in Lichtenstein.

Working for what he said was his customary consultant’s fee of $350 an hour plus expenses, Petropoulos said he reported the news to his client, the Art Loss Register, which was then negotiating a contract with Fischer to recover the painting. The professor said he did more sleuthing on his own, with a view to recovering the Pissarro and gathering material for a book.

In late January 2007, he said, he viewed, authenticated and photographed the painting in the conference room of a Zurich bank. He also said he dined with Fischer and Griebert later that day and that they reached a deal: Fischer, who’d had a falling out with the Art Loss Register, would sell the Pissarro at Christie’s in New York and Griebert would get his customary 10% art dealer’s fee.

Both Julian Radcliffe and prominent restitution attorney E. Randol Schoenberg are quoted as saying Petropolous got himself too involved in the negotiations to return the work, rather than simply do the research for the fee which had been agreed upon. The seems to have been a miscommunication at some point, and the “champagne” agreement that Petropolous thought he was entitled to rely upon was it seems not reduced to writing, and in return Petropolous refused perhaps to continue to bring the parties together.

The ultimate issue I suppose is what kind of compensation these kinds of experts can and should claim. The lawyers involved, and the Art Loss Register all take a healthy commission; and Petropolous certainly seems to have been amply compensated for his time at $350/hour. Though there may be powerful historical, legal and ethical arguments compelling the restitution of these Nazi spoliated works, we should perhaps bear in mind that it is the very large sums of money they fetch at acution which is driving these restitution efforts.

Related Posts:

Dividing a Nazi Art Dealer’s Collection

Compensation for Restitution Experts

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

Compensation for Restitution Experts

Elise Viebeck, a student writer for the Claremont Independent has an outstanding article about the conflicts of interest which arise when history and art history experts are brought in to assist the heirs of victims who lost valuable art to the Nazis during World War II. She details the actions of a CMC History Professor, Jonathan Petropoulos.

The article asks an important question: How should these experts, whose specialized knowledge can bring about the restitution of ultra-valuable masterworks be compensated? Swiss prosecutor Ivo Hoppler raided a Swiss safe in the Summer of 2007 as part of a “three-nation probe of a German art dealer accused of conspiring with an American at historian to withold a painting by French impressionist”. I talked about the discovery of the work at issue, Camille Pisarro’s Le Quai Malaquais, Printemps last summer, but was unaware of this controversy.

Here’s an excerpt of Viebeck’s interesting story:

The story of the Pissarro begins with Zurich resident Gisela Fischer, 78, who is of Jewish descent. She and her family fled Vienna in 1938 two days after the Nazi Anschluss. The Gestapo looted their home, and among the stolen items was a painting by impressionist Camille Pissarro, Le Quai Malaquais, Printemps.

After the war, Fischer’s father successfully located and reclaimed many of his family’s stolen assets. After her father’s death in 1995, Fischer concentrated her efforts on the Pissarro which had remained elusive. In early 2001, she registered the painting with the Art Loss Register (ALR), a London-based for-profit company involved in stolen art recovery.

The ALR began to research the painting’s provenance, or history of ownership, in the hope of ascertaining its location. There was no initial financial arrangement, as at that time the ALR did not charge for Holocaust and World War II art claims…

On January 8, 2007, at a meeting in Munich, a representative of the ALR gave Fischer a message from Petropoulos. He wrote in a letter dated December 7, 2006 that he had located the painting in Switzerland and was communicating with an unnamed contact of its owner. The owner was a “foundation created by the heirs of the person who purchased [the painting] in 1957.”

The foundation, he wrote, wished to remain anonymous.

Two days after the meeting in Munich, Radcliffe also sent Fischer a letter, this time to request a finder’s fee for the organization’s success in finding the Pissarro in Switzerland. Despite its earlier commitment not to charge Holocaust claimants, the company had changed its charging policy for Holocaust art claims, telling claimants that the company could complete restitution “at far less cost and often more efficiently” than the expensive lawyers who took some cases. The meeting with the ALR in January 2007 was the first Fischer knew of the ALR’s changed policy…

For the Pissarro case, Radcliffe proposed an elaborate compensation scheme, including 20 percent of the first $1 million, 15 percent of the second million and 10 percent of any additional value of the painting. Included in his price was a stipend for Professor Petropoulos, who had requested $100,000 from the ALR for his services.

In a letter dated January 23, Fischer’s lawyer, Dr. Norbert Kückelmann, rejected the ALR’s proposal. Three days later Petropoulos met with Fischer at the Hotel St. Gotthart in Zurich to try a new arrangement…

Radcliffe and Sarah Jackson of the Art Loss Register also went to Zurich, only to find themselves excluded from the dealings. “We went expecting to be included in the meetings with Ms. Fischer only to discover that they had already had meetings without us. We realized we had been cut out,” Radcliffe told the CI.

At the hotel, Petropoulos and Peter Griebert, a Munich art dealer, showed her digital photos of the Pissarro, claiming to have taken them that morning. According to an account published in ARTNews magazine, they did not give further details about its location or the identity of its owners at that time.

It’s a very interesting account, and I don’t think Petropoulos, nor even the Art Loss Register are painted in a favorable light based on this account. Though much nazi restitution litigation rests on the assumption that the law should compensate the victims of the holocaust and other misappropriation, the engine driving these claims are the large sums of money these works can bring at auction. I think an interesting issue which needs to be researched in more detail is how and to what extent these restitution experts owe a duty to claimants.

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

Should Cultural Property be used to satisfy judgments?


There has been increasing attention paid lately to the use of art and antiquities to satisfy unrelated judgments against nations. In 2005, Russia had a $1 billion shipment of 54 paintings from Moscow’s Pushkin Fine Arts Museum seized at the Swiss border to satisfy Russian debts owed to Noga.

Similarly, in 2003 a group of American plaintiffs won a $90 million judgment against the Islamic Republic of Iran for a suicide bombing which took place in Jerusalem in 1997. James Wawrzniak Jr., a recent Harvard Law graduate has posted an excellent working paper on bepress titled Rubin v. The Islamic Republic of Iran: A Struggle for control of Persian Antiquities in America. It is likely to be published next fall.

Hamas claimed responsibility for the bombing in question, and the Rubin plaintiffs brought civil actions against Hamas, and also to Iran for providing material support and finance for the bombing. Experts testified that Iran provided both economic assistance from between $20 and $50 million dollars, and also terrorist training. Now I’m sure many readers would be quick to point out the US has given similar aid to similar groups, perhaps even during this Sunni awakening in Iraq, in which the US is essentially paying Sunnis to stop attacking coalition forces. I imagine Iran would have had a vigorous potential defense, however a default judgment was entered, whereby Iran essentially ignored the suit. Iran has since changed their stance after the Rubin plaintiffs decided to execute the $90 million judgment by claiming Persian antiquities in museum collections across the country. I’ll defer to Wawrzniak’s analysis as to what has transpired, but this litigation seems destined to last a number of more years.

One one level I can sympathize with plaintiffs who attempt to satisfy their judgments in this way. However, such a strategy, if taken to its logical conclusion would have troubling consequences for the cross-border movement of works of art. This was an issue in the recent dispute over the Royal Academy display of “From Russia: French and Russian Master Paintings 1870-1925 From Moscow and St. Petersburg”. Russia nearly backed out of the deal, eager to avoid a replay of the Portriat of Wally litigation.

The display required an act of Parliament to grant special immunity to prevent the works from being claimed by descendants of the original owners from whom many of the works were summarily seized during the Bolshevik revolution.

The question is, are the cultural benefits Great Britain and Russia share by viewing these masterworks, many never seen in London before? I think there is, and this cross-border movement of art is an important ideal which should be preserved, the recent string of nazi spoliation, and terrorist and other claims are important, and those victims deserve their day in court. However it should not be at the expense of our collective cultural heritage.

(Photo: Wassily Kandinsky Composition VII, 1913 on loan to the Royal Academy)

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

Pre-Empting a Holocaust Art Claim


In the Boston Globe Geoff Edgers has the details of a dispute brought by the MFA Boston against an Austrian woman who claims an interest in this work by Oskar Kokoschka, Two Nudes (Lovers) 1913. It’s a declaratory judgment action, in which the museum is asking the court to declare it the owner, rather than wait for the claimant to bring suit.

The potential claimant, Claudia Seger-Thomschitz, claims the painting was sold by Oskar Reichel a physician and gallery owner in Austria. In its complaint, the MFA Boston 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”.

After the work was sold 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.

Nobody would dispute the persecution the Reichel’s faced before and after the sale of the work:

The Nazis occupied Vienna in early 1938. Over the next year, Reichel was forced to sell his gallery and close his medical practice, they said. Two of his sons left Austria. A third son, Max, died in a concentration camp. Reichel’s wife, Malvine, was deported to a camp during the war but survived. In 1943, Reichel died in Vienna of natural causes.

However, does that injustice give the claimant an interest in the painting, which has been owned by the MFA Boston since 1972? The museum says no. It’s similar in nature to a claim brought by the Toledo Museum of Art last year, which I discussed earlier.

In two earlier cases the institutions initiated their legal actions in quiet title actions. In this way the institutions can choose the forum and the relevant law which will apply to the action. This is a new strategy for art museums. Professor Jennifer Anglim Kreder has a short but informative article on the practice in an October 2007 issue of the Art, Cultural Institutions and Heritage Law Committee Newsletter, available on her SSRN page. She also details an action by the Detroit Institute of Art against the same heirs asserting a claim against the Toledo Museum of Art.

This strategy actually discourages claimants from coming forward and seeking compromise. It’s been noted many times that these kinds of disputes are between two relative innocents. In such cases, there may often be room for reasonable compromise such as initial payments or title-sharing agreements of some kind. However if a claimant shows her hand early, she now will risk the possibility that an institution will quickly seek itself declared the owner and preclude any claim.

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

Vineberg v. Bissonnette


If you find yourself involved in a Nazi restitution dispute, be sure to develop your statute of limitations defense in responding to a motion for summary judgment. That’s the lesson I take from Vineberg v. Bissonnette, 2007 WL 4571154 D.R.I., 2007 (Dec. 27, 2007). Federal District Court Judge Mary Lisi ordered Maria-Louise Bissonnette to return the work to the estate of Max Stern. The dispute involved this work, Girl from the Sabiner Mountains, by Franz-Xaver Winterhalter.

The court gave the background of the case as follows (emphasis added):

Dr. Stern was of Jewish descent and, under the Nuremberg laws, was subject to official persecution by the German government. In 1935, the Reich Chamber for the Fine Arts (“Reich Chamber”), an organization of the Nazi government, sent letters to Dr. Stern demanding that he liquidate his inventory and gallery. On or about September 13, 1937, Dr. Stern received a final order to sell his inventory immediately through a dealer approved by the Reich Chamber. Dr. Stern consigned most of his inventory and private collection, constituting hundreds of works, to the Lempertz Auction House (“LAH”), in Cologne, Germany. On or about November 13, 1937, LAH auctioned the items consigned to it by Dr. Stern, including the property that is the subject of the dispute in this matter, a nineteenth century painting by Franz Xaver Winterhalter entitled “Madchen aus den Sabiner Bergen” (“Girl from the Sabiner Mountains”) (“the Painting”). The items consigned to LAH by Dr. Stern were sold at well below market value. Dr. Stern fled Germany for Paris in December 1937. Upon discovering that Dr. Stern left Germany, the German government issued an order freezing his assets. Dr. Stern never received the proceeds of the LAH sale. Dr. Stern eventually left Paris to join his sister in London prior to the outbreak of World War II. Dr. Stern later emigrated to Canada and became a preeminent art collector and dealer there.

In most of these disputes, the question of whether an action is timely is outcome-determinative. That’s probably not surprising given the events giving rise to a cause of action occurred seventy years ago. It seems clear that Stern took great pains to attempt to locate his lost works, and as such the limitations defense may have been difficult. But even so, the defendant seems to have missed their best argument by failing to raise an adequate statute of limitations defense. As such, the action was timely, and both parties had agreed to most of the relevant facts. As the painting was sold “well below market value” and Stern never received the proceeds, the defendant now has to relinquish the painting, even though she appears blameless.

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

Spoliation Advisory Panel


The Spoliation Advisory Panel has issued a decision on a claim for three works by Rubens, St. Gregory the Great with Ss. Maurus and Papianus and St. Domitilla with Ss. Nereus and Achilleus 1606–1607; The Conversion of St. Paul, c.1610–1612 (pictured here); and
The Bounty of James I Triumphing Over Avarice, for the ceiling in the Banqueting House, Whitehall, c.1632–1633. The panel’s full report on the case is here.

The panel is an alternative to legal action, which rules on both the legal claims but also the broader ethical questions implicated in these disputes. The panel issued its ruling Wednesday that art collector Franz Koenigs lost these works due to “business/economic reasons” and not to the Nazis. A translation of the Dutch Wikipedia page on Koenigs is here. Christine Koenigs, the granddaughter of the collector sought the three Rubens from the Courtauld Institute of Art in London. The panel ruled these three works had been used as collateral to a bank in Hamburg. The bank then moved to the Netherlands, and in 1940 it liquidated its assets before the Nazi invasion, thereby calling in Koenigs’ loan.

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

Germany Creates a Restitution Commission

Germany has decided to create a kind of Nazi Spoliation Office. From the AP:

BERLIN (AP) — A new office within Germany’s Institute for Museum Research is opening in January to help identify and research art stolen by the Nazis, Germany’s culture minister said Wednesday.

The office, which comes under the State Museums of Berlin, will help museums, libraries and archives identify items that were taken from their rightful owners during the Nazi period, Culture Minister Bernd Neumann said.

“I expect from this an important push in Germany in the clarifying of restitution questions,” he said.

Neumann founded a working group to look into how to deal with restitution issues, after Berlin sparked controversy with a decision last year to return Ernst Ludwig Kirchner’s “Berlin Street Scene” to the heirs of a Jewish collector who said the Nazis forced the family to sell it in the 1930s.

Some art experts questioned whether the expressionist work was sold under duress and whether its return was legal.

With the new office, which has a $1.47 million annual budget, Neumann said he hoped the restitution process would be better coordinated and more transparent.

This appears to be a good idea, and perhaps will preclude the need for private legal disputes when, for example, these works are displayed abroad as is the case with Schiele’s Portrait of Wally. Will this commission help to return works to claimants? Offer settlements? Or, will it instead merely warn German institutions that certain objects are suspect and should not be loaned abroad?

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