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. 

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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.

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