Unsuccessful Nazi Spoliation Claim


From the LA Times last week, Suzanne Muchnic reports that a federal judge has dismissed a claim against Norton Simon over this work and another by Lucas Cranach the Elder.

A Los Angeles federal judge has dismissed a case that jeopardized the Norton Simon Museum’s ownership of a nearly 500-year-old pair of paintings of Adam and Eve by German artist Lucas Cranach the Elder.

The action halts dueling lawsuits filed by the museum and Marei von Saher of Connecticut, the heir of a Jewish art dealer who lost the artworks to the Nazis in World War II. The museum filed a motion to dismiss the case, and a hearing was to be held Monday. But Judge John F. Walker granted the motion Thursday afternoon. He did not immediately disclose his reasons for doing so.

The museum’s attorney, Luis Li of Munger, Tolles & Olson in Los Angeles, declined to comment on the ruling. Von Saher’s attorney, Lawrence M. Kaye of the New York firm Herrick, Feinstein, could not be reached for comment.

Cranach’s monumental paintings of life-size nudes in the Garden of Eden have been a highlight of Simon’s collection since 1971, when the Los Angeles industrialist and collector bought them from George Stroganoff-Scherbatoff, an heir of a noble Russian family thought to have lost the paintings to the Bolsheviks during the Russian Revolution. But the Cranachs have a complicated history, at issue in the legal battle.

Von Saher’s Dutch father-in-law, Jacques Goudstikker, bought the paintings in a 1931 auction in Berlin, billed as “Stroganoff Collection Leningrad” and staged to raise funds for Stalin’s impoverished government. “Adam” and “Eve” remained in his gallery in Amsterdam until 1940, when the Nazis took over his business. Goudstikker died in a shipboard accident while fleeing the Germans, but his wife, Desiree, and son, Edward, survived, as did a list of artworks left behind.

After the war, Desiree Goudstikker settled with the Dutch government, regaining part of her husband’s inventory. She did not claim another group of artworks, including the Cranachs, because she would have had to return payment received from the Germans. That settlement made it possible for Stroganoff-Scherbatoff to pursue his claim. The Dutch transferred the paintings to him in 1966.

The matter might have rested there, but as Holocaust restitution escalated, the Dutch reconsidered claims against Nazi loot, and scholars questioned long-accepted accounts of the Cranachs’ Russian history.

There is no doubt that the paintings were sold in the Stroganoff sale, but some researchers think they were among confiscated goods from other collections, included in the auction to give the other items a “noble” provenance and disguise that they actually were being sold by the government.

No evidence that the paintings did or did not belong to the Stroganoffs has been found, but a document has come to light stating that they were in a church and other buildings in Kiev, the capital of what is now Ukraine, a few years before the auction. No one knows how they got there.

Von Saher, the widow of the Goudstikkers’ son, has spent the last nine years trying to retrieve artworks owned by her husband’s parents.

Last year, the Dutch government gave her 202 works that had been housed in Dutch museums, stating that the Goudstikker case had been handled properly in legal terms but that it had been reconsidered on moral grounds.

She learned that the Cranachs were at the Simon museum in 2000, and her attorney contacted the museum the following year.

Throughout the lengthy period of mediation and legal proceedings, Von Saher has contended that the Simon cannot have title to the paintings because they are stolen goods. The museum has argued that it is the rightful owner of the Cranachs, whether they belonged to the Stroganoffs or not, because the family’s heir acquired good title to them under Dutch law, and in any event, California’s three-year statute of limitations to challenge the Simon’s purchase has long since passed.

In its motion to dismiss the case, the Simon argued that a California law extending the statute of limitations for heirs of Holocaust victims is unconstitutional because it wrongfully empowers the state to remedy war injuries, which is a duty of the federal government.

I haven’t had a chance to track down the actual judgment. I’m back in the States at the moment, preparing myself for the AALS hiring conference in Washington D.C. later this week. There appears to be an error in Muchnic’s understanding of the relevant California limitations rules. Though the limit is indeed three years, that period does not begin to start running until the claimant discovers, or by exercising reasonable efforts should have discovered the present owner of the object. Since the work has been on display since 1971, a dismissal of the claim was a likely result.

But in any event, California has extended the time with which claimants can bring these kinds of claims for nazi spoliated artworks until 2010 I believe, though I’d have to check that. I’ve not read anything questioning the constitutionality of that, though it appears to be an interesting question.

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

Klimt Dispute


In another spoliation story in today’s NY Times, A grandson of a woman who died in the Holocaust may be considering legal or other claims for this work, Blooming Meadow (1906) by Gustav Klimt. Georges Jorish is considering legal claims or seeking a settlement. It seems the impetus for the new claims is the publication of another catalogue raisonné, this one by Alfred Weidinger which states the painting belonged to Jorisch’s grandmother.

The work now belongs to Leonard Lauder, who purchased the work in 1983. Wouldn’t a legal claim have expired under the statute of limitations? Probably not. New York is one of the most generous jurisdictions in the world for original owners. A limitations period won’t begin to run in New York until a demand and refusal has been made. Other legal defenses may be available to Lauder if the claimant delayed, but here it seems Jorisch is considering a claim after new information.

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

Another Dutch Holocaust Claim


Four heirs of art dealer Nathan Katz have brought a claim for 227 works recovered in German at the end of World War II reports Marlise Simons in todays NY Times. Among the contested works is this painting by Salomon van Ruysdael, Horsefair at Valkenburg. The claim was made public Friday, just as the Dutch were moving to discourage new restitution claims.

These restitution disputes are ill-suited to an adversarial litigation process with one winner and one loser as is the current situation in the United States. Professor Norman Palmer has persuasively made this case in the UK, while Jennifer Anglim Kreder has proposed an interesting idea. She makes a great case for an International Tribunal for dealing with Nazi-Looted Art. It’s forthcoming in the Brooklyn Law Review, an early version is up on SSRN. In the Netherlands the claims are studied by the Restitution Commission which advises the government on the return of objects lost or stolen when the Germans invaded in WWII.

Here’s an excerpt of the NYT story:

Although the Dutch government in exile had decreed that citizens could not trade with the enemy, many Dutch art dealers, both Jews and non-Jews, sold works to eager German collectors, who circulated wish lists in the first few years of the war. Dutch traditional painting was sought after, because the Nazis did not consider it “degenerate” art.

After the war the Dutch government returned 28 paintings that the Katz brothers had claimed. Among them was Rembrandt’s “Portrait of a Man,” believed to have been used to buy their mother’s freedom.

Evelien Campfens, a member of the Restitution Commission in The Hague, said the claim of the Katz heirs would “be a complex case, with many different aspects to it: it will take time.” She said that the Katz brothers were important dealers involved in many transactions, and that many important paintings had passed through their hands.

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

The Rape of Europa

This new film, “The Rape of Europa” is just being released in New York this week, and should start to make the art house circuit soon. Metacritic seems to be giving the film good marks so far.

It details the spoliation by the Nazis, and the efforts of allied soldiers known as the monument men to track down the works. The theft was on such a grand scale that the issues are still fresh today. Poland and Germany have engaged in a very bitter dispute in recent weeks. The death of Bruno Lohse revealed he had been storing a looted Pissarro in a Swiss bank vault since the end of the war. The Altmann case and the Klimts are given a prominent role as well.

I am eager to see the film, but just watching this trailer I’m struck by how much more powerful images and music are than the articles I write. I can give an academic view, but seeing the works and the black and white pictures bring the story much more depth and emotion. Whether that produces better cultural policy solutions is questionable I think. Perhaps we are allowing emotion to cloud our judgment in some of these cases?

I haven’t seen the film of course, but we shouldn’t put the blame on Germany alone, though they do rightfully deserve the most criticism. The loss of art and antiquities is an inevitable part of conflict. Russian forces plundered countless works from East Germany, and allied bombs destroyed medieval buildings in Dresden and at Montecassino. An American GI also stole the Quedlinberg treasures, and his family was able to sell them back to the church in the 90’s. In the end, the movie should speak to a fundamental question which still plagues us: what is the value of cultural property? Is it essential to a people’s heritage? Is it worth sacrificing lives or other economic development?

The NY Times has a short overview, as does Lee Rosenbaum.

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

Be careful what you throw away

Wild story from Earth times:

Vienna – An old cross recovered by an Austrian woman from a garbage container turned out to be an 800-year-old French masterpiece stolen from a Polish collection by the Nazi regime, Austrian police said on Thursday. In 2004, the woman from Zell am See in the province Salzburg got permission from her neighbours to look through a garbage container of things they had thrown out. Among other things, she took an old, gold-coloured cross. As nobody else liked it, the woman kept the gold-plate and enamel cross under her couch until showing it to art experts earlier this year. According to experts from Vienna’s Fine Arts Museum, the piece of garbage turned out to be a passion cross from a manufacturer in Limoges in France made around 1200. Similar pieces fetched up to 400,000 euros (537,000 dollars) at international auctions. Police traced the origin of the cross, showing the piece had been stolen by the Nazi regime from the Polish art collection of Izabella Elzbieta of Czartoryski Dzialinska in 1941. Pieces from the collection were moved from Warsaw to Austria, where the trail ended in 1945. The cross’s fate still remains unclear. The London-based Commission for Looted Art, informed by the Polish authorities, is representing the heirs. The local court in Zell am See decided that for the time being the garbage-treasure was to be kept at the local heritage museum at Leogang, where it could be properly stored.

Pretty cool find. One wonders how much is thrown away that does not get rescued. The case presents some interesting legal issues. I imagine the heirs of the deceased collector would perhaps have a claim. I’m not sure what the relevant limitations period in Austria would be, but it may be that the limitations has expired and the finder would get to retain title.

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

Dividing a Nazi Art Dealer’s Collection

Catherine Hickley wrote a very interesting article for Bloomberg on the efforts by France, Germany and Switzerland to divide Bruno Lohse’s art collection. Here is an excerpt:

Bruno Lohse, a German art dealer appointed by Hermann Goering to acquire looted art in occupied France, dispersed his private collection of Dutch 17th-century masterpieces and expressionist paintings among friends and relatives in his will, the lawyer handling his estate said.

Lohse died on March 19, aged 95, and has since become the focus of a three-nation investigation into a looted Camille Pissarro painting discovered in a Swiss bank safe that was seized by Zurich prosecutors on May 15. The painting’s prewar owners said the Gestapo stole it from their Vienna apartment in 1938. Lohse controlled the Liechtenstein trust that rented the safe.

“Paintings have been willed to relatives and friends in individual bequests,” Willy Hermann Burger, the executor of Lohse’s will, said in an interview at his home in Munich. Burger, who declined to name the beneficiaries or disclose details on individual artworks, said he’s sure none of the paintings in Lohse’s private collection are looted.

Lohse became Paris-based deputy director of the Einsatzstab Reichsleiter Rosenberg, the Nazis’ specialist art-looting unit, in 1942, according to the interrogation report compiled by the U.S. Office of Strategic Services’ Art Looting Investigation Unit, which questioned him in Austria from June 15 to Aug. 15, 1945.

The E.R.R. plundered about 22,000 items in France alone, according to the O.S.S. reports. The Jewish Claims Conference estimates that the Nazis looted about 650,000 artworks in total.

“There is a lot of art still missing and we believe that a significant proportion remains in private collections, especially in Germany and Austria,” said Anne Webber, co-chair of the Commission for Looted Art in Europe, a not-for-profit organization based in London that helps families recover plundered property.

Adding to the difficulty is the fact that Lohse became an art dealer in the 1950’s, and thus most of his private collection is probably legitimate. However, the Pisarro found in the Swiss bank vault, Le Quai Malaquais, Printemps is probably looted, at least according to the Art Loss Register. This all underscores the importance of establishing and checking provenance for works of art when they are sold or donated. If the various European prosecutors are not as aggressive as their American counterparts have been, a lengthy and complex legal dispute between the successor and the descendants of the original1938 owner will likely ensue.

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

Orkin v. Taylor


The 9th Circuit Court of Appeals has upheld a lower-court ruling denying an attempt by the descendants of a Jewish art collector. They sought to to recover this work, Vue de l’Asile et de la Chapelle de Saint-Rémy by Vincent Van Gogh. Elizabeth Taylor bought the work at an auction in 1963 for $260,000. It may fetch up to $15 million at an auction today. The opinion is here. The San Francisco Chronicle has a summary here.

Van Gogh painted the work in 1889 after entering an asylum in Provence. This was only 1 year before he committed suicide. Margarete Mauthner purchased the work in 1907, but left the painting behind when she fled Berlin and went to South Africa in 1939. Mauthner’s four descendants claimed she sold the work under duress in 1939.

Both parties “vigorously dispute[d] the circumstances under which Mauthner parted with the painting”. This suit really highlights the phrase often uttered with respect to art litigation: a tale of two innocents. Neither party seems to be in the wrong here.

The claimants argued that Mauthner sold the painting under duress, not that the Nazis confiscated it. They brought suit against Taylor, however that claim was thrown out under a 12(b)(6) motion. The district court essentially found that the claimants did not bring a legally recognizable claim. This appeal centered on whether the Holocaust Victims Redress Act created a private right of action, and whether the action was timely.

The Holocaust Victims Redress Act did not create a right of action according to the 9th Circuit. The “Act was a limited bill, passed with an understanding of constitutional limitations on congressional power.”

With respect to the timeliness of the action, the court held the action was time-barred as well. California has adopted the “discovery rule”. An action for the recovery of art accrues when the rightful owner discovers the location of the work. However, the California Supreme Court has held that the discovery rule incorporates a requirement which accrues the action when the claimant “reasonably could have discovered” the claim. At the very least, the claim could have been discovered in 1990, when Taylor attempted to auction the painting at Sotheby’s. She was also listed as the owner of the painting in a 1970 catalogue. Thus the Federal cause of action was inapplicable, and the State claim was time-barred.

Most commentators have agreed this was the right decision. Working against the claimants was the fact that painting was not actually seized by the Nazis, even though the court was interpreting the District Court’s ruling in a light most favorable to the plaintiffs. It would have been a difficult case to win on the merits, and would have taken Nazi restitution litigation a step too far in my view. I wonder how exactly the claimants learned of the work and their possible claim. The court didn’t really analyze in much detail what the claimants should have done, but did note the various points that Taylor publicized her ownership.

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

Bernard Taper


Last Friday, the San Francisco Chronicle ran an interesting profile of Bernard Taper, one of the so-called Monument Men who worked to recover works stolen by the Nazi’s after WWII. He worked as an art-intelligence officer with the Monuments, Fine Arts and Archives section of the U.S. military. I wonder what became of this section. It hasn’t seem to have been involved in any of the major conflicts the U.S. has waged since. Notably the efforts of Matthew Bogdanos in Iraq were on his own initiative because he has a background in Classics. It may be worth examining why this section has disappeared or if it is still functioning. It appears that it was a singular unit charged with repatriation Nazi spoliation. Profiles of these guys are always interesting, and this is no exception. Taper is featured prominently along with some others in the forthcoming documentary titled The rape of Europa. That film is being screened at the San Francisco International Film Festival. For more information click here. Taper has an excellent story to tell as this excerpt shows:

“I was in the Army for three years, and I didn’t fire a shot at anybody and nobody fired a shot at me. That’s the definition of a good war,” the white-haired Taper, sharp at 89, says with a smile. But he did his part to bring forth light, in the form of recovered art, from the darkness of the war.

Born in London and educated at UC Berkeley, Taper was drafted into the U.S. Army in 1943. He served in intelligence and infantry units before being sent back to Berkeley to learn Chinese in preparation for work as a liaison officer assigned to Chaing Kai-Shek’s army in China. But at the last minute, the entire class was sent to Germany, where the war was over.

“It was the Army. Why do you think they invented words like ‘snafu’?” laughs Taper, who was assigned to Patton’s Third Army, then sent to Munich to write intelligence reports. Lunching outdoors one day at an officers’ club, he fell into conversation with a dashing chap named Walter Horn, an Aryan German who abhorred Hitler and left, became a professor of medieval history at UC Berkeley and saw combat action during the war.

“He started telling me marvelous, fascinating stories about what it was like in his job to search for lost and stolen art,” recalls Taper, who had begun contributing to the New Yorker and the Nation while serving in occupied Germany. Horn was desperate to go home, but couldn’t until he found a successor for his art-investigating job. “When he met me he found his successor,” says Taper, who told Horn he wasn’t an art historian and probably wasn’t qualified. Horn said the Monuments section was “lousy with art historians,” but what was needed was somebody who knew how to ask questions. As a budding journalist, Taper fit the bill.

As a further inducement, Horn told him he would have the use of a white BMW roadster, wouldn’t have to wear a uniform, could travel freely without orders and would meet women. “And he said if nothing else, there’s all this art you can look at,” recalls Taper, quick to point out that he got a brown Audi sedan, not the promised BMW. For about six weeks, Taper was in charge of the Army’s art-collecting center at Wiesbaden, which was filled with not only looted art but works from various German civic collections.

“They had fantastic stuff there,” Taper says. “In the office, across the whole back wall, was Watteau’s ‘Embarkation for Cythera,’ and a wonderful Degas, where you look up through the orchestra pit, through the beards of the musicians, at these elegant dancers. It was from the Frankfurt Museum.” As Taper says in the documentary, “Just that office alone was worth the price of admission to World War II.” Outside the door stood a 5,000-year-old stone Nefertiti, which also stopped Taper in his tracks. “I couldn’t just brush by. I had to stop and commune with her.”

Building on the work of previous Monument Men, such as his friend Stewart Leonard, a bomb diffuser who single-handedly removed 22 mines from the Chartres Cathedral and later opened crates containing priceless books and Dürer drawings, Taper tracked down mostly mid-level missing artworks, by painters like the 16th century Dutch artist Mierevelt and his Flemish contemporary Teniers, as well church statuary and other looted objects.

“Probably the best artwork I helped recover was from Göring’s train,” Taper says, abandoned on a rail siding not far from Neuschwanstein Castle, where Allied troops found a huge cache of stolen art. The locals had heard there was schnapps on board, Taper says, and after stealing the schnapps, they took the rest of the stuff, which included late-Gothic wood statutes and a 15th century School of Rogier van der Weyden painting. “Not bad,” says Taper, who had the bright idea of tapping the de-Nazifed German police to help him find stolen goods.

Just a thought, but the stories of these Monument Men and the return of stolen art are quite popular and exciting. I wonder if that popularity and the good will they engender may have some kind of a connection to the generous statutes of limitations rules which have been applied to claimants seeking the return of art stolen from their forebears in recent decades.

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

The "Booming" Business of Restitution Claims

Howard Spiegler and Lawrence Kaye are receiving a great deal of attention (and free advertising) these days. Kelly Crow of the Wall Street Journal had a nice article on Lawrence Kaye 2 weeks ago titled “the Bounty Hunters” which appeared in the Mar. 23 edition ($). It’s an interesting article, and a number of the points she discusses have been covered in this blog in recent months.

In particular, she paints the art restitution practice as a booming business. As she says,

In a dynamic that echoes past law-industry booms — asbestos and tobacco litigation, securities class -action suits — a confluence of factors has tipped art restitution from a boutique practice of a decade ago to a mini-industry. Museums are putting their archives online, and the number of online art databases is growing, making it easier to locate potentially looted works. As art prices reach further uncharted territory, lawyers are accepting jobs that wouldn’t have paid off in the past. Top cases yield nine-figure payouts.

I think it’s true that restitution litigation is increasing, and the sums of money which can be recovered are staggering. However, I think it would be laboring the point to make out the restitution litigation as the next big legal trend. These claims are interesting and dynamic, but they don’t yet rise to the level of the asbestos or tobacco suits I don’t think. Spiegler and Kaye are the only attorneys I’m aware of which have a devoted restitution practice (at Herrick, Feinstein), though there may be others. I do think “cultural property law” or “art law” is a fascinating field because it touches on a number of interesting and novel points of law ranging from limitations periods to intellectual property and commercial law. It’s an interesting and diverse mix of law, and one that is much different from the transactional work a lot of lawyers have to do. Art law just sounds more fun and interesting than drawing up a contract or commercial sales agreement.

Carol King of the New York Times also has a great article on these guys as well in last week’s museum section. It’s available here (as an aside, the NYT has made a terrific decision to allow everyone with an academic-affiliated email address free access to it’s Times Select service, including .edu and .ac.uk email addresses).

The NYT piece talks about some of the landmark art law cases including Turkey’s dispute with the Met, the Schultz prosecution, and the Elicofon case. If you are a nation or claimant and you want the return of a cultural object, Spiegler and Kaye are the attorneys you want to speak with.
I think it would be too easy to simply paint these guys as champions of dispossessed art. They are attorneys and their job is to zealously advocate on behalf of their clients. They aren’t charged with creating good cultural policy. Some of their efforts have been successful and worthy of praise. However, other disputes have been more controversial, most notably the Portrait of Wally dispute that is going at 8 years without a trial on the merits.

In general, the work of these lawyers is worthy of praise admiration; they are cleaning up a market which has shown itself unable or unwilling to police itself; they also have had the good fortune of operating in a lucrative and interesting niche practice area.

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

"Portrait of Wally" and Nazi Spoliation Litigation

Over at Culturegrrl, Lee Rosenbaum has some interesting information on Egon Schiele’s Portrait of Wally which has been sitting in storage for about 8-9 years now pending litigation. Two other articles on this topic have appeared in the last week as well. Carol Kino has an article in the NY Times on this as well. Kelly Crow had an article ($) in last week’s Wall Street Journal as well.

Here’s what Rosenbaum had to say on “Portrait of Wally”:

“Wally” is still languishing in storage, but not at MoMA. Having been seized by the U.S. Customs Service, it is now in a warehouse run by the Department of Homeland Security. According to MoMA’s deputy general counsel, Stephen Clark, “No trial date [at U.S. District Court in Manhattan] has been set.”

The Times reported that New York art-restitution attorneys Lawrence Kaye and Howard Spiegler are “helping the heirs” of the Viennese dealer in their effort to recover the Schiele painting from the Leopold Museum, Vienna, which had lent it to the MoMA show. The heirs assert that it had been confiscated from Jaray by the Nazis and should be returned to the family.

Spiegler told CultureGrrl today that an effort early last year at mediation in the case had failed, but he was hopeful that the matter would be resolved in court by “the end of this year or the beginning of next.”

Well, let’s hope that is the case. Rosenbaum blames the law for this extended delay, and that’s right in a sense. This painting was seized under a civil forfeiture statute. The relevant federal prosecutor seized the work years ago, but the judicial machinery has been incredibly slow. I write about this at length in my article for the Cardozo Journal of Art and Entertainment law which should appear sometime next fall. Jennifer Anglim Kreder had an outstanding article on this dispute, and civil forfeiture a couple of years ago in the Vanderbilt Journal of Transnational Law. I think this is a topic which warrants some more discussion, so I’ll revisit it later this week when I have more time.

In the meantime, you can see what I’ve written on the “Portrait of Wally” dispute.


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