The NY Times’ Robin Pogrebin reported yesterday that the Metropolitan Museum of Art has declined to borrow a work by German Expressionist George Grosz. The work, “The Poet Max Hermann-Neisse” (1927) is the subject of yet another Nazi repatriation dispute. The Met has declined to exhibit the work, and substituted another, because the Grosz estate is contemplating a claim for restitution. The work belongs to the Museum of Modern Art (MoMA), and the Grosz estate has been in negotiations with them for three years.
MoMA is one of the many museums which lists provenance information for its works on its website. The provenance for this work is here. The estate claims that the works had to be sold very quickly, and at a very low price because Grosz and his art dealer, Alfred Flechtheim, had to flee Germany because of Nazi persecution. Interestingly, only Flechtheim was Jewish. It was the nature of Grosz’s opinions and art which caused his flight.
Initially, one might wonder how the Grosz estate could have a tenable claim all these years later. The work has been in MoMA’s possession since 1952. Apparently, Grosz saw the work exhibited there in 1958, shortly before his death. Statutes of limitations generally prevent claims from being brought after a period of time. They are based on the policy that as time passes, a fair adjudication of the issues becomes more difficult. New York courts have adopted the demand and refusal rule in interpreting statutes of limitations in the context of illicit art. The rule measures the accrual of a cause of action based on a plaintiff’s actions. To commence an action to recover property from a good faith purchaser, an original owner must prove that the current possessor refused to return the property after a demand by the claimant. See Menzel v. List 22 A.D.2d 647, 253 N.Y.S.2d 43 (1963). Thus it seems that the statute of limitations did not begin to run until 2003, when the Grosz estate first approached MoMA about the return of the work. Thus, in theory at least, they could still bring a restitution claim in time.
However, the substance of that claim seems a bit difficult for the Grosz estate. The works were sold legally (Nicholas Katzenbach, a former attorney general, and an undersecretary of State for the LBJ administration investigated the claim for MoMA and recommended it be rejected), and MoMA would likely have a very good laches defense, which basically serves to protect defendants where a potential plaintiff has unnecessarily delayed bringing a legal action. Also, the value of these works may not be high enough to warrant a protracted legal dispute. A rough estimate I’ve seen thrown around is $3 million. If a work falls short of that standard, bringing a legal claim may not be financially feasible. This work has been estimated at $2 million in today’s market, but there is another work under dispute in MoMA’s collection as well. Of course, the Grosz estate may not be simply concerned with the financial implications of the suit.
Why then did the Met refuse to exhibit the work? It may simply be a matter of not wanting to be associated with the bad publicity. The headline that they are exhibiting a work with a Nazi repatriation issue may have raised an issue that was more controversial than they were willing to take on. However, it seems like the dispute is getting more coverage because of the refusal. In any event, I do not know all of the facts , but the Grosz estate may have a very difficult time prevailing, considering the artist himself saw the work exhibited in 1958 and did not have any misgivings at that point.
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