Restitution – Page 3 – Illicit Cultural Property

Unsuccessful Restitution Suit by German Museum


An Ancient gold tablet, excavated from Northern Iraq in 1913.

A German Museum has lost an action against Riven Flamenbaum to recover this ancient gold tablet that may be worth as much as $10 million. You can read the opinion here, in Matter of Flamenbaum, File No. 328416.

The tablet has quite a history. It was unearthed in 1913 in Ashur, present day Qual’at Serouat by German archaeologists. It was bound for a German museum, but World War I forced the ship carrying it to Portugal, where the object was stored until 1926. In 1934 the tablet was put on display in the Vorderasiatisches Museum. At the end of the war, in 1945 it was discovered the tablet was missing, perhaps looted by Soviet troops. It is at this point that Flamenbaum—a survivor of Auschwitz—encountered the tablet, which he may have purchased on the streets of post-war Berlin for some cigarettes. He took the tablet with him when he emigrated to New York in 1949. He had no inkling of the object’s value, after it had been apparently appraised for as little as $100 at one point. The family contacted the Museum in 2006 after Flamenbaum’s death, and the museum brought suit to recover the tablet.

In New York, this action was within the statute of limitations because the period does not begin to run until an original owner demands an object and is refused—which in this case was 2006. However Surrogate John Riordan held that the museum had waited too long to bring this claim under the doctrine of laches—an equitable doctrine which essentially posits that it wouldn’t be fair to allow the claimant to regain title. The court held the lack of any real effort by the museum to seek the return of the tablet was unreasonable. Surrogate Riordan placed a good deal of weight on an apparent 1954 report of the object’s location. But the opinion does not offer any details of this report.

The Museum had not really had possession of the tablet for very long, and had not made extensive efforts to contact post-war authorities or stolen art registries. But of course it is not necessarily clear if those efforts would have even been successful. Moreover, in some cases publicizing a theft in this way seems to run counter to the policy which underpins New York’s Demand and Refusal rule. If you publicize the theft, that recovery may make diligence less likely, and might encourage other possessors of objects with questionable histories to move objects to other jurisdictions.

One wonder perhaps how much the underlying equities were a factor in the decision as well, with a seemingly-innocent Holocaust survivor acquiring the small tablet, without knowing its true value.

Vesselin Mitev, German Museum Loses Attempt to Reclaim Artifact From Estate, New York Law Journal, April 6, 2010.

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

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.

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

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

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.

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

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

Undoing a Sale to HItler

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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Yale Sued Again

Yale University has been sued in U.S. District Court in Connecticut by Pierre Konowaloff who alleges a work by Van Gogh—”The Night Cafe”—was confiscated from his great-grandfather during the Communist revolution in Russia.

The action is a counter to Yale’s earlier suit. Yale initially brought suit in March, seeking to pre-empt Konowaloff’s claim. In Yale’s initial suit in March, they argued courts should not undo the property revolution of Russia. Russian law would seem to prevent these kind of claims as well. Back in March, Richard Lacayo noted that Konowalof’s grandfather—Ivan Morozov was “was one of the two outstanding Russian collectors and patrons of modern art early in the 20th century.” The suit, Yale University v. Konowaloff, 09-466, U.S. District Court, District of Connecticut (New Haven), will determine whether this work was seized unlawfully during a Communist takeover of Russia in 1918.

A similar issue recently arose in the UK with 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. 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.

2009 must be the year claimants to Yale’s cultural heritage decided to pursue their claims, because of course this suit follows soon after the Republic of Peru’s suit filed in December over artifacts taken from Machu Picchu.

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

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.”

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

MoMA Sued in Nazi-era Restitution Suit

The successors in interest of German artist George Grosz filed suit in federal court last friday to claim three works: Portrait of the Poet Max Herrmann–Neisse (1927), Self-Portrait With Model (1928) and the watercolor Republican Automatons (1920) (pictured here).

The claimants allege the works were left with Grosz’s dealer Alfred Flechtheim when the artist was forced to leave Germany in 1933. The New York Times summarizes the plaintiff’s version of events

Charlotte Weidler, an art dealer and curator for the Carnegie Institute in Pittsburgh, said that she had inherited “Portrait of the Poet Max Herrmann-Neisse” from Flechtheim and that she gave it to Curt Valentin, a German dealer in Manhattan, to sell to the Museum of Modern Art in 1952. The museum bought “Republican Automatons” from a Toronto collector in 1946 and was given “Self-Portrait With Model” in 1954.

Back in 2006 the Met declined to borrow the work Portrait of the Poet Max Herrmann–Neisse due to the potential lawsuit.

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

German Court Rules for Nazi-era Poster Claimant

A German court has ruled that Peter Sachs’ is entitled to an entire poster collection seized from his father in 1938. The elder Sachs received about $50,000 in compensation for the collection which was then believed to have been destroyed.

From the AP:

The Berlin administrative court ruled that Hans Sachs never gave up ownership of the collection of 12,500 posters taken from his home on the orders of Nazi Propaganda Minister Joseph Goebbels.

Sachs, 71, sued in a test case for the return of two posters — a 1932 poster for “Die Blonde Venus” (“Blonde Venus”) starring Marlene Dietrich, and one for Simplicissimus, a satirical German weekly magazine, showing a red bulldog. The court ruled that it was unclear whether “Die Blonde Venus” was part of his father’s collection, but that there was no doubt about the Simplicissimus poster and that it must be returned to him.

The ruling means that the court has backed the claim of Peter Sachs of Sarasota on the surviving portion of his father’s collection — some 4,000 posters at the German Historical Museum in Berlin, said his attorney ,Matthias Druba.

“We are definitely delighted,” Druba said . “It’s a shame that we didn’t get the Blonde Venus, but in the end what is more important is that the general question has been answered clearly in our favor: Peter is the rightful owner of the collection and he has a claim to get them back; we couldn’t want more.”

The posters include advertisements for exhibitions, cabarets, movies and consumer products, as well as political propaganda — all rare, with only small original print runs.
Only a handful of the posters on display at any given time at the German Historical Museum, but officials maintain they form an integral part of its 80,000-piece collection. The museum also points out that those in storage are regularly viewed by researchers.

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China Will Sue over Looted Bronzes

AFP is reporting that China will bring a repatriation suit in France over bronze statues taken from the Old Summer Palace before it was burned in 1860.

Chinese lawyers will sue auction giant Christie’s over the sale of relics owned by the late Yves Saint Laurent which they say were stolen from a looted Beijing palace, according to state press. The lawyers are hoping that French courts will stop the auction house from selling two bronze animal heads at a February sale in Paris and order the return of the relics to China, the Beijing Times reported. “The lawsuit will be placed before a French court in accordance with international law,” Liu Yang, one of 67 Chinese lawyers working on the case, told the paper. “We are demanding that the auction house stop the sale and order the owner of the stolen items to return them.” The relics currently belong to the Yves Saint Laurent Foundation and were being put up for auction by the late fashion magnate’s partner Pierre Berge, the paper said.

This should shape up to be a fascinating dispute. There’s little question I think the bronzes were taken under lass-than-noble circumstances by the British. More background on the dispute here.

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