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.

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

A Gauguin will stay at the TMA

A Federal District Court in Ohio has denied the ownership claims of 15 people seeking an interest in this work. “Street Scene in Tahiti” by Paul Gauguin was purchased by the Toledo Museum of Art in 1939. It’s current value is estimated at between $10 and $15 million. A copy of the opinion memorandum is available here, courtesy of Harvard Law Professor Harry Martin III. The work belonged to a German Jew, Martha Nathan. In 1937, she left Germany to escape Nazi persecution. The next year, in 1938, Nathan sold this work to a group of art dealers she had known for some years, who were Jews as well. The three purchased the work for 30,000 Swiss Francs, ($6,900 USD). As Judge Zouhary notes, “this sale occurred outside Germany by and between private individuals who were familiar with each other. The Painting was not confiscated or looted by the Nazis; the sale was not at the direction of, nor did the proceeds benefit the Nazi regime.”

The work has hung in the TMA since its purchase in 1939, and Nathan brought other Restitution claims for Nazi persecution, but did not file a claim for the painting. In this case, Judge Zouhary applied Ohio’s 4-year statute of limitation. The trick with limitations periods hinges on when the limitations period has started to run. Under Ohio law, the discovery rule dictates that a claim accrues when a claimant discovers, or should have discovered the injury. This is precisely the kind of claim a statute of limitation is intended to cover. It also highlights that often in these cases, the issue of whether a limitations period has expired will often prove outcome-determinative.

The case is a bit peculiar. Often, it is the claimants who bring suit. However, in this case the Toledo Museum of Art preemptively brought an action last year in a quiet title action. Whether the claimants will seek an appeal remains to be seen, but it seems likely given the value of the work. However, they do not have a great set of facts to work with here. Their ultimate success seems quite unlikely.

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

Goya Theft Update

Saturday’s New York Times has an update on the theft of Goya’s “Children With a Cart”. As I said earlier this week, the market for this work is extremely small. Purchasers of the work will not be able to claim they acquired the work in good faith, and thus the Toledo Museum of Art will defeat the possessor’s claims. Of course, the thieves may not be concerned with selling the work, they may be trying to ransom the work back to the museum.

The FBI is investigating the theft, and has not released any information to the public. It seems though, that as more time passes, the likelihood of a quick resolutions grows more remote. The Times piece has quite a few details of the theft, which it seems to have gathered from the insurance investigation and interviews with the proprietors of the Pennsylvania Howard Johnson. The painting was taken from the delivery truck overnight, after being parked in the motel’s parking lot. At this point, criticism has centered on the driver’s decision to stop overnight when they could have completed the drive in a day. Also, these works are not supposed to be left unattended.

Whether this theft was an inside job as a number of commentators have speculated remains to be seen. It might just be an example of a couple of lucky thieves coming across this delivery truck at this Howard Johnson. Look for museums to increase the security procedures involving the transportation of valuable works of art in the future. Many museums depend on the income and prestige which comes with hosting large exhibitions like these. For the general public, it would be a great shame if this theft causes institutions to think twice before loaning their works to other museums.

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

Goya Stolen


The New York Sun reported last night that a 1778 work by Francisco de Goya, Children With Cart, pictured here, was stolen near Scranton, Penn. It was being transported to The Guggenheim for an exhibit on Spanish Painting. The FBI is investigating, and has offered a reward of $50,000. The painting is valued at about $1.1 million. The work had been housed at the Toledo Museum of Art in Ohio. It looks to be from his earlier career, before the lead in his paint may have caused his deafness, which resulted in some fantastically-bizarre works.

Why was this work stolen? Surely, the market for the work is quite small, as nobody will be able to claim good faith in buying or selling the work. The thieves may be attempting to ransom the work back to the museum. Criminal penalties are far lower for kidnapping a work of art than they would be for, say, kidnapping a person. The other possibility is that a wealthy collector may have requested it stolen for her own private collection. Some have termed this hypothetical theft-on-demand the Dr. No possibility. If the work is returned, look for it to gain in notoriety.

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