Tag: Restitution

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

"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

Massive Restitution Auction


Carl Vogel of the New York Times discusses the planned 3-stage auction of a portion of a group of 170 old master paintings recently returned to the heirs of Jacques Goudstikker. Over at the ArtLaw blog, Donn Zaretsky has more.

Goudstikker was a prominent art dealer who quickly fled Amsterdam in 1940. His successors, Mrs. von Saher and her two daughters, all currently Connecticut residents, are planning an international exhibition of many of the works, including some which will not be part of the auction. Last year’s settlement with the Dutch government marked the culmination of an 8-year legal battle. The three auctions will be in April in New York, in July in London, and finally in November in Amsterdam. One work which could fetch between $3-5 million is this painting, Ferry Boat With Cattle on the River Vecht Near Nijenrode by Salomon van Ruysdael.

One of the heirs, Charlene von Saher said the traveling exhibition would reveal to the world “a historical injustice put right.” Certainly, Goudstikker lost his collection of art, and the restitution may be correcting a historical wrong. Make no mistake though, the 3 heirs of Goudstikker, their legal counsel, and Christie’s all stand to make a great deal of money. Money is at the heart of restitution, not righting historical wrongs. Consider the recent decision of a Dutch court to award Roelof van Holthe tot Echteen, a lawyer for the 3 heirs, a $10.4 million bank guarantee for his services in working for the restitution.

I notice that in the US, Lawrence Kaye represents von Saher and her two daughters in the dispute. Kaye, along with Howard Spiegler operate a prominent art restitution practice in New York. The two have become celebrities of sorts. I was contacted a couple of weeks ago by Kelly Crow of the Wall Street Journal regarding the reputation of the two in the legal and scholarly community. I’m afraid I was not able to offer her too much for her story. The two have published quite a bit, and have been part of some of the most important art and antiquities cases in recent years. If you want to initiate a restitution action, they are the lawyers to call.

However, I don’t really think that the law looks at individuals as champions of a cause. They are partisan representatives for their client. Their duty is to advocate zealously for their client. Sometimes this might put them on the right side, others it may put them in more objectionable territory. Perhaps it is just my view on this, but I do not consider them “heroes” as such. That said, I would jump at the chance to join their restitution practice after I complete my thesis.

I am of two minds about restitution litigation. On the one hand, I think we should certainly endorse a practice which remedies past historical injustices, and Nazi spoliation is certainly a grave injustice. However, restitution is not always a positive development. I discussed the Schiele litigation earlier this week, which is a very sad situation. Also, these works were displayed at museums in Amsterdam accessible to the public. Is there not a value in having the works displayed there? Also, what is the rationale for returning works from WWII, but not earlier conflicts. Why should the Louvre not be emptied of all the works looted by Napoleon?

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

Venture Capitalists fuelling Nazi restitution claims?


Georgina Adam of the Art Newspaper had an article last week about some of the potential driving forces behind recent repatriation litigation. Pictured here is Gustav Klimt’s “Portrait of Adele Block-Bauer I” (1907), recently repatriated after binding arbitration found Maria Altmann the rightful of this and four other works.

The increasing number of Nazi repatriation claims, and the booming art market lead to the possibility that not all the parties involved are motivated by high-minded ideals. As Federal District Court Judge Jed Rakoff noted during his ruling dismissing a claim over a Picasso, “[art auctions are] all guided by their belief in and beauty…though one might suspect that this is just a fight about money”. In her piece Adam labels some of these opportunistic lawyers “Nazi bounty hunters,”as they are actively seeking war loot. She references Washington lawyer Willi Korte who has been approached by venture capitalists prepared invest $1 million in the hopes that it would lead to a successful restitution claim.

It seems some lawyers are working backwards. They consult art historians about what works might have been looted, and then search for heirs who may want to bring claims. Jost von Trott, a Berlin lawyer, who specializes in this type of research says to the Art Newspaper

It might be that while doing research in these matters, one of the historians [I work with] comes across a further name of another Jewish family who lost property during the Nazi period. If the researchers find another name in the archives, then they or we could contact them as well and see if we can help in recovering lost objects.

Initially, I don’t see anything wrong with the work von Trott describes here. It seems quite a valuable service. Consider though that these firms charge as much as 40% to 50% of the sale price of a work for a successful recovery, while there is no charge if the claim is unsuccessful. Other claims beside the recent Picasso dismissal have been criticized as opportunistic and quickly dismissed as well. A $1.8 billion class action suit was brought by the Association of Holocaust Victims for Restitution of Artwork and Masterpieces against Sotheby’s.

Though there are certainly clear cases where restitution is called for, some of these cases stretch the limits of the law, and are causing unnecessary and costly litigation for owners of these works. The idea of venture capitalists seeking out an attorney and urging him to pursue research on potential claimants strikes me a particularly unpleasant though, and strongly cuts against the whole nature of restitution claims.

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

Germany Unhappy with the State of Restitution

Apparently, the German Government is considering its options about how best to deal with art sold by or confiscated from Jews under the Nazis the Sydney Morning Herald reports today. This comes in the wake of the record sale at Christie’s last week, in which a number of returned works
helped fuel the market. The German Chancellor, Angela Merkel, has summoned culture ministers and museum directors to discuss overhauling the restitution law. This was a predictable development, especially considering the fabulous sums of money these works are getting on the market.

I postulated last week, that something does not quite seem right about the heirs of these works profitting so handsomely off works which had been hanging in German and Austrian museums. Another factor which may be fueling these discussions, is the news that the City of Berlin is in dire financial straits, and may have to sell some of its cultural buildings or works. When Berlin was essentially two cities, it maintained separate concert halls and museums, but since reunification, the city has too many cultural institutions for its budget. This museum is the Sammlung Berggruen, which houses many impressionist and post-impressionist works.

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