Tag: Restitution

MIA Returns a Nazi-Looted Work

The Minneapolis Institute of Arts (MIA) has made the decision to return this work Smoke Over Rooftops by Fernand Léger.  From the Minneapolis Star Tribune:
The institute’s saga began in 1997 when the museum received a letter claiming that the painting had been taken from Alphonse Kann, a legendary French collector who owned “tons of Picassos, Braques and late-19th-century Impressionist paintings,” according to Patrick Noon, the institute’s paintings curator. His story helped inspire a 1964 movie, “The Train,” starring Burt Lancaster, about a trainload of art that the Germans tried to spirit away before the Allies liberated Paris in 1944.
Much of Kann’s art was returned to him after World War II, but not the Leger. That painting was bequeathed to the museum in 1961 by Minneapolis businessman Putnam Dana McMillan, a General Mills vice president who bought it from the Buchholz Gallery in New York in 1951. No one questioned the picture’s history. Nazi-era archives were sealed in France and inaccessible in Soviet-controlled Eastern Europe. 
Responding to the claim took years because the museum had to establish if it was legitimate. Was this Leger the same one Kann had owned? (“Smoke Over Rooftops” was a theme Leger painted at least six times.) If so, what had happened to the picture between 1939, when Kann fled Paris on the eve of war, and 1949 when a New York art dealer bought it from a French gallery? Did Kann sell it freely, or did the Nazis confiscate it?
There’s no indication that this was a settlement of any kind, and a legal claim may have been difficult for the claimant as the work had been owned by the MIA since 1961.  It appears they voluntarily relinquished the work, though the story does make vague reference to a French Lawsuit.  Kaywin Feldmin, the MIA Director says “it was the right thing to do”, which is a refreshing sentiment to hear from a Museum Director.   

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

A different Kind of Restitution


There is an interesting article from Eureka California by Donna Tam in the Times-Standard on Saturday, Wiyot tribe: Return burial artifacts. The Wiyot tribe is requesting that collectors return items removed from burial sites before it was illegal to do so.

It seems at a recent local Indian Art Show, many Wiyot artifacts were offered for sale, and they may have been from the collection of H. H. Stuart, a Eureka dentist who did amateur excavation of Wiyot sites in the 1920’s. Those kind of private excavations were not prohibited by law at the time, and privately owned objects are not subject to the relevant State or Federal law, particularly NAGPRA.

These calls for restitution are not dictated by law, so long as these objects were in fact unearthed in the 1920’s, and that collection label is not used to mask recently unearthed objects, as often takes place.

Thsi presents an interesting case, because it’s a voluntary return of objects which are important to the Wiyot tribe, and it is not done under any legal pressures. Surprisingly perhaps, 1,000 objects have been returned. AS Helene Rouvier, the Wiyot Tribal historic Preservation Officer says in the piece “I would ask people to try and put themselves in the place of the Indians … How would they feel if this were their relatives?”

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

The Long Shadow of the Parthenon


Michael Liapis, Greek Minister of Culture, gave the opening remarks at the conference on “Return of Cultural Property to its Country of Origin”. He managed to get a good deal of press coverage, including a Reuters story.

Unfortunately I found his comments unhelpful, as did David Gill. He attempts to link the Greek quest for the return of the Parthenon marbles from the British Museum and elsewhere with the decisions by the Getty, the Met, and the MFA in Boston to return relatively recent and looted antiquities. The two claims could not be more different. One can be characterized as a historical dispute, while the others are examples of clear wrongful conduct, many of which involved criminal wrongdoing.

Liapis argues “More and more museums are adopting tighter ethics codes and governments promote bilateral and international cooperation (for the return of ancient objects)… So an ideal momentum is being created … for clear solutions on this issue.”

Gill responds, quite rightly, that the major difference between these two claims is context. We know where the Parthenon Marbles came from, we have their context. In fact one can see the context from the new Parthenon Museum, pictured here. However we don’t know for sure where many of the looted antiquities which were returned in recent years came from. Their context is lost to us. He follows this up by asking a pointed question in return, will Greece take steps to return Bulgarian silver from the Pazardzhik Byzantine Silver Hoard?

Others have perhaps said this more persuasively than I, but I think cultural policymakers only make the situation worse when they link historical events such as Lord Elgin’s removal of the marbles with recent criminal activity on a widespread scale. There may be a persuasive claim for the return of the marbles to Athens, however such a claim is not likely to succeed by making such unhelpful comparisons.

The closer link is with the Bulgarian silver, which it seems Greek’s legal system is unable to adequately return to Bulgaria.

On an unrelated note, the Acropolis museum, where this event is being held was reviewed by Richard Lacayo.

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

Repatriation and Universal Museums

Drake Bennett has a good article in yesterday’s Boston Globe titled Finders, keepers. It’s a lengthy overview of the back and forth between museums and nations of origin regarding looted artifacts, and other objects taken during colonial times. It’s worth a read, as it features comments from James Cuno, the director of the Art Institute of Chicago, Ricardo Elia from the archeology department at Boston University, and others.

Cuno gets featured prominently, perhaps because of his strong arguments that many objects should remain in museums in market nations. He also extends the argument of the late Paul Bator, who in his seminal “An Essay on the International Trade in Art” 34 Stanford Law Review 275 (1982), argued that many restrictions on antiquities, including strong export restrictions serve to increase the black market.

Bennett’s piece is a good overview, and a good introduction to some of the core debates in the antiquities trade. By necessity he paints many of these restitution claims with too broad a brush though. He writes

Along with Italy, the governments of Greece, Guatemala, El Salvador, Peru, Turkey, China, and Cambodia, among others, have pushed to reclaim prized artifacts from collections around the world. They have tightened their laws governing the export of antiquities or intensified the enforcement of existing laws and international agreements; they have made impassioned public cases on the world stage.

I don’t think these nations of origin have in fact increased their domestic legal schemes; in nearly every case he mentions here these nations have had very strong legal regimes for many decades, some dating to the very beginning of the 20th century. Italy for example has a national patrimony law dating to 1939. In some cases they are working more closely with the US State Department under the Cultural Property Implementation Act. However, the main difference is the prominent Italian claims of late, which were the result of one fantastically successful criminal investigation which implicated an Italian dealer named Giacomo Medici, and by association his buyers Robert Hecht, Marion True, the Getty, MFA Boston, and the Met.

This allowed for the return of these implicated objects; of course the claims for return were bolstered by photographic evidence of many of the Nostoi objects, which clearly indicated they were illegally excavated on a massive scale. This is a far different argument than the one for say the return of the Parthenon Marbles, or other objects acquired during colonial times, or for the return of other objects which may have been acquired legitimately. I think we need to be particularly careful not to lump too many of these restitution arguments together, and indeed to be honest about how and why objects are returned. The salient issues remain: how are nations of origin protecting sites domestically, how do market nations respond to illegal activity, how are museums acquiring new objects, and is the market conducting the needed provenance checks? That is the only way to prevent future illegal activity.

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

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

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

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