Event Review — You’ve Been Served: “The Rape of Europa”

Screen Shot 2017-11-22 at 12.38.25 PMBy John Pietruszka*

On Wednesday, October 26,, 2017, from 6pm to 9pm, the Brooklyn Law School Art Law Association and the Center for Art Law sponsored a screening of the documentary, The Rape of Europa, followed by a discussion lead by  Dr. Anna Rubin, Director of Holocaust Claims Processing Office.

The film, based on the award-winning book of the same name by Lynn H. Nicolas, details the systemic plunder of art and cultural heritage in Europe during World War II and the attempt to recover the looted art in the aftermath.  With respect to plunder, the documentary focuses primarily on the efforts by the Nazis to loot and destroy artistic works, many of which have yet to be recovered or returned to their proper heirs, but it also highlights the destruction of cultural property by the Allies during WWII, most notably the bombing of Monte Cassino.  As to recovery, the documentary focuses on the Allies efforts at preserving and returning critical works of art and cultural heritage in the wake of the destruction wrought by the conflict, especially the Monuments’ Men. The film even touches on contemporary efforts, mainly by private organizations and individuals, to find and return countless works of art displaced by the devastation of the War.  In particular, the film criticizes the Russian Federation (previously the USSR) for its continued refusal to return German cultural patrimony looted during WWII.

Following the film, Dr. Rubin, who directs the Holocaust Claims Processing Office (HCPO), pointed out the challenges and the successes of art restitution.  Her office (a division of the NYS Department of Financial Services) has aided in the recovery of over 130 pieces of art from clients hailing from thirty-eight different countries. In recent years, she has been mainly involved with the Max Stern Art Restitution Project.  As the name suggests, the project’s goal is to recover art pieces originally owned by Max Stern, a German gallery owner, who was forced to sell much of his collection under duress by the Nazis in 1937.   Thus far, through the work of people like Dr. Rubin, over sixteen works of art have been found from Stern’s collection.  Amazingly, three of these were found in the greater New York City area.

In the question and answer session that followed, students had many insightful queries about the legal difficulties of art restitution.  Dr. Rubin acknowledge challenges of  proving a chain of legal title for looted art held by a private institution or national gallery. Often without proper written documentation, much of which may have been lost or destroyed during the War or seventy years that has elapsed since the end of the War, a claim to recover a work of art will not succeed. Furthermore, other complications arise due to the variations in the substantive laws of different countries.  For instance,  while under U.S. law, a thief can never pass on good title, most European jurisdictions allow a good-faith purchaser to acquire legal title over a work of art. Additional complications can arise for certain mediums of art—such as lithographs.  Due to the fragility of the medium and the multiple copies that are often made during printing, bringing a claim of legal title for a lithograph can be next to impossible, absent some exceptional documentation.

In conclusion, the evening amounted to an enlightening look into the history of art recovery and the continuing struggles that organizations like the HCPO and individual claimants face in trying to return cultural heritage to the rightful owners.

About the Author:  John Pietruszka, is a 1L student at the Brooklyn Law School. He is a member of the Delegate Art Law Association.

Book Review: “A Tragic Fate: Law and Ethics in the Battle over Nazi-Looted Art”(2017)

By Jason Barnes*

Screen Shot 2017-10-25 at 4.06.39 PM.pngThe recent movie Woman of Gold and the Holocaust Expropriated Art Recovery Act enacted in 2016 reflect a steady interest in U.S. restitution of Nazi-expropriated art.  It is thus with impeccable timing that Nicholas O’Donnell’s first book— A Tragic Fate: Law and Ethics in the Battle over Nazi-Looted Art (2017), arrives on the scene, offering a treatise on the restitution of Nazi-looted art in the United States.  In it, O’Donnell describes the most important restitution-related litigation, international gatherings, and treaties in remarkable narratives that manage to stay fascinating while incorporating immense detail and nuance.

O’Donnell’s success on this front likely results from his background. He studied art history at Williams College and law at Boston College Law School. Now, he works as litigation partner at the Boston law firm, Worcester & Sullivan, where he has tried important art restitution cases, such as Philipp et al. v. Federal Republic of Germany et al., 15-cv-00266 (D. D.C.) (restitution of the Guelph Treasure).  He serves as the editor of the Art Law Report and is a member of the Art Law Committee for the New York City Bar Association.  A Tragic Fate really combines O’Donnell’s two loves—art and law—making him perfectly situated to write on the subject of Nazi-era looted art. O’Donnell is at an ease in his discussion of both the complex litigation procedural devices as well as the artists and art at issue in various cases.  His passion and knowledge of the subject are readily apparent in the monograph.

O’Donnell is at his best when telling the war stories in the battle for Nazi-looted art in the legal arena.  Most of the book is divided by restitution narratives, with each chapter covering an individual “battle” to recover an artwork through litigation.  These case-summary narratives include most, if not all, of the key restitution cases in the United States:  The Portrait of Wally (Chapter 3), Portrait of Adele Bloch Bauer (Chapter 4), the Herzog Collection (Chapter 7) and so on. It is through telling these narratives that O’Donnell explains the laws governing restitution. Any one of these individual case summaries on its own is illuminating but it is having them compiled together under one cover that makes the book particularly valuable.  It welcomes the juxtaposition of the different barriers to recovery, exposes the good-faith purchasers and jurisdictions that display a heightened hostility towards restitution claims, and shows how the obstacles to restitution claims have evolved over time.   

The author’s skill of narrative is not confined to discussing U.S. litigation. It likewise applies to his discussion of the important international gatherings that form the international framework for the restitution of Nazi-looted art.  O’Donnell spends pages analyzing the 1998 Washington Conference—the first and arguably most important gathering on the restitution of Nazi-looted art.  In his exposition of the seminal conference, O’Donnell analyzes many of the nations’ statements offered at the conference.  This tact allows O’Donnell to nicely introduce the differing ways in which nations have responded to the issue of the restitution of artwork looted during the Nazi era.  He later returns to comparative law in Chapter 19, wherein he discusses nation-based restitution regimes.  These introductions to comparative law are a welcome addition to a book primarily focused on U.S. restitution because they give the reader the necessary context to make any normative judgments on U.S. restitution or ruminate on potential reforms.

Because of the technical nature of the book and O’Donnell’s consistent preference for both detail and accuracy, A Tragic Fate may be less accessible to a non-lawyer. Chapters, especially those focusing on particular litigation cases, read very much like a brief, both in structure and language.  The book is riddled with legal jargon, cross referencing, and is written in a style that though clear, at times, feels too formal. Arguably the biggest impediment to lay readers is the immense substantive legal detail that O’Donnell covers in the book. At the same, this very feature will certainly be welcomed by law students and lawyers interested in delving into the intricacies of property restitution practice.

The substantive content alone favors those with some formal legal education. The introduction quickly breezes through important aspects of U.S. restitution law, including discussion of statute of limitations rules such as discovery and demand-and-refusal.  But this introduction functions more as a refresher for those far removed from law school than a sufficient exposition for someone never introduced to those concepts before.  This criticism applies with even greater force to later discussions of complicated legal concepts, such as the Act of State Doctrine, Bernstein letters, general versus specific jurisdiction, Foreign Sovereign Immunities Act (FSIA), Federal Tort Claims Act (FTCA), and so on. 

In the midst of the case summaries, O’Donnell also opts to go into immense detail on the procedural nuances of the various cases – the different iterations of the lawsuit, how the parties have changed over time, jurisdictional issues.  For instance, in the chapter on Femme en Blanc (Chapter 3, pp 79-82), O’Donnell discusses the motions practice of the various litigants, including procedural decisions like a §1404 venue transfer request.  It’s noble that O’Donnell focuses on the procedural minutiae which oftentimes prove very important for ultimate success in trial.  But one wonders if the benefit of accuracy and detail is outweighed by decreased accessibility.  O’Donnell tries to militate against this unfortunate result by consistently defining terms and including a nice glossary and index to the end of his monograph. 

A Tragic Fate is an educational journey – well worth undertaking.  The book is well-researched and written with the clarity one would expect from an effective advocate and proponent of restitution of Nazi-era looted art.  The book will serve as good educational resource to law students and practitioners interested in learning more about this particular area of art law or simply general litigation in the United States; or those looking for mere entertainment by some incredible stories on some very important artwork.

Disclaimer: Book reviews are no substitute for reading and interacting with the book herein reviewed.

About the reviewer: Jason Barnes is a third-year JD candidate at Columbia Law School. He is serving as the Fall 2017 Legal Fellow with the Center for Art Law.  His note on the Holocaust Expropriated Art Recovery Act is forthcoming in the Columbia Journal of Transnational Law.  He can be reached at jpb2193@columbia.edu.

Case Review: Maestracci v. Helly Nahmad Gallery Inc. (2014)

By Madeleine Werker*

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Amedeo Modigliani, Seated Man with a Cane (1918)

At the core of Maestracci v. Helly Nahmad Gallery Inc., case filed in 2014 is the battle for ownership of an Amedeo Modigliani painting, Seated Man with a Cane (1918) (the “Painting”) valued at 25 million USD. The release of the Panama Papers in April 2016 revealed new information about the Painting, which could assist in settling the ownership conflict in court.

According to the complaint, Seated Man with a Cane was first exhibited at the 1930 Venice Biennale, where the so-called self-portrait was listed as number 35 in the catalogue. It belonged to Oscar Stettiner, a Jewish art dealer in Paris. Stettiner fled Paris in 1939 during the Nazi occupation of France, leaving his gallery and his artworks behind. After the war, in 1946, Stettiner attempted to retrieve the work by filing a French civil claim for “a Modigliani portrait of a man”, among other items, without success. Stettiner died in France in 1948 never having found the Painting.

In their filings, Plaintiff(s) allege that in 1941, Stettiner’s gallery was taken over by Nazi-appointed administrator, Marcel Philippon, who held four public auctions of the gallery’s inventory. In July 1944, the painting, listed as Selt Portrait of the Artist, was sold at the French auction house, Drouot, to John Van der Klip for 16,000 francs.[3] Although the painting was thought to have been resold in a series of unknown transactions, a May 2016 letter from Van de Klip’s descendants confirmed that the Modigliani stayed in the family and was passed down “by descent to the present owners” until the 1996 Christie’s London auction, where it was sold to the International Art Centre (“IAC”) for 3.2 million USD.[3]

At the time of the sale, the painting had not been flagged as a potential Nazi-looted artwork. The Christie’s catalogue entry noted that the painting had been sold in an anonymous sale in Paris between 1940 and 1945, and mistakenly attributed provenance to known French collector Roger Dutilleul. Christie’s cited the painting as number 16 from the 1930 Venice Biennale, not number 35.[4] This later complicated the painting’s identification.

In 2008, the Painting resurfaced and was relisted in the Sotheby’s New York catalogue (valued at 18-25 million USD). The 2008 catalogue listing cited the painting’s owner as the IAC and attributed provenance “possibly” to Roger Dutilleul and to Stettiner. The catalogue also re-listed the work as number 35, not 16, from the 1930 Venice Biennale. Two letters subpoenaed from Sotheby’s in April 2016, as part of the ongoing lawsuit, show an executive at Sotheby’s addressing Helly Nahmad Gallery as the painting’s consignor.

The Painting failed to sell at the 2008 auction and disappeared until the release of the Panama Papers led to its retrieval from the Geneva Freeport.

In 2009, Mondex Corporation, a Toronto firm that specializes in recovering Nazi-looted art, began putting together the painting’s history. Founder James Palmer then contacted Philippe Maestracci, an Italian citizen and Stettiner’s only heir, who agreed to have Mondex pursue the research on his behalf. Before this, Maestracci was not aware of his grandfather’s connection to the painting.

This pursuit led Maestracci to the US federal court where he sued the Helly Nahmad Gallery for the Painting in 2011. The Nahmads, a wealthy family of art dealers long believed to be in possession of the painting, denied ownership,[9] instead maintaining that the IAC owned the Painting independently after purchasing it in 1996. Maestracci later withdrew the amended federal court complaint over jurisdictional issues.

In February 2014 the Stettiner estate re-filed its suit against David Nahmad, Helly Nahmad (both the gallery and the individual), and the IAC with the New York Supreme Court.[11] In November 2015, when a New York State Supreme Court judge ruled that France-based Maestracci lacked standing to pursue the case in the United States, Maestracci amended his claim to make George Gowen, the New York administrator of Stettiner’s estate, the sole plaintiff in the case. The November filing alleged that the IAC was a “shell company” set up by the Nahmad family “to conceal and confuse their identities, and hide revenues…stemming from their art dealings.”[11]

Until recently Maestracci’s claim has not seen much success, but this all changed in April 2016 with the release of the Panama Papers, leaked documents from the Mossack Fonseca law firm, which linked various wealthy individuals to offshore companies. Originally published on April 3, 2016, the papers revealed the location and ownership of the painting that Maestracci sought to reclaim. The documents confirm the link between the Nahmads and the IAC.[12] Mossack Fonseca set up the IAC as a Panama-based company for the Nahmads in 1995. David Nahmad, has been the company’s sole owner since January 2014.

David Nahmad relies on two key points in denying Maestracci’s claim to the painting. First, according to Nahmad, the price fetched for the painting in 1944 was too low, even in an anonymous sale during wartime. Second, Nahmad cites Stettiner’s 1946 claim in which he referred to the painting as a self-portrait of the artist in a notation taken by a court bailiff.[14] Nahmad believes this proves that the work in question is, in fact, a different painting. Nahmad supported his position with the assertion that the family loaned the painting out a number of times, including to the Jewish Museum in 2004. Nahmad, who is Jewish, insists he would never accept Nazi-looted art. He has told Radio-Canada, “I could not sleep at night if I knew I owned a looted object”.[16] For now, the Nahmads are prepared to take their defense to the courts. However, Ezra Nahmad has said that if Maestracci “can provide concrete proof that this piece of art truly belongs to him, then [he] will gladly give it to him.”[15]

The New York State Supreme Court case, George Gowen v. Helly Nahmad Gallery Inc., 650646/2014, is ongoing. The last set of motions was filed in March 2017.

Select Sources:

  1. Maestracci Affidavit, Exhibit A: Nature of Action, ¶ 16 (NYSCEF DOC. NO. 9).
  2. Livengood Letter, Ex 72, 3 (NYSCEF DOC. NO. 941).
  3. Maestracci Affidavit, Exhibit G: Christie’s Listing (NYSCEF DOC. NO. 25).
  4. Maestracci Affidavit, Exhibit A: Nature of Action, ¶ 30 (NYSCEF DOC. NO. 9).
  5. Sotheby’s Letters 2-11-10 and 4-28-10 (NYSCEF DOC. NO. 768,769)
  6. Maestracci Affidavit, Exhibit B: Sotheby’s Catalogue, ¶ 32-33 (NYSCEF DOC. NO. 9).
  7. Golub Affidavit, ¶ 3 (NYSCEF DOC. NO. 918).
  8. Motion Sequence No. 7, 22 (NYSCEF DOC. NO. 378).
  9. Maestracci Notice With Summons, 2 (NYSCEF DOC. NO. 1)
  10. Verified Amended and Supplemental Complaint (NYSCEF DOC. NO. 489).
  11. Verified Amended and Supplemental Complaint, ¶ 2 (NYSCEF DOC. NO. 489).
  12. Maestracci Affidavit, Exhibit M: Panama Registry (NYSCEF DOC. NO. 69).
  13. Exhibit 1: Letter from Geneva Ministere public (NYSCEF DOC. NO. 917).
  14. Julian Sher, Modigliani masterpiece seized in wake of Panama Papers (CBC: Apr 11, 2016) available here; Schub Affirmation, ¶ 31 (NYSCEF DOC. NO. 929).
  15. Amah-Rose Abrams, David Nahmad Denies Modigliani Painting Is Nazi Loot (Art Net: June 13, 2016) available here; Fern Sidman, Ezzy Nahmad: “If the Gentleman Can Prove Rightful Ownership, I Will Gladly Give Him the Painting” (The Jewish Voice: May 4, 2016) available here.

About the Author: Madeleine Werker received her J.D. from the University of Ottawa, Canada in 2017. Before law school, she obtained her Bachelor of Art in Art History and Cultural Studies from McGill University in Montreal.

Spotlight: The Max Stern Art Restitution Project

By Ryan Igel*

screen-shot-2016-09-15-at-5-25-14-pmThe Max Stern Art Restitution Project (the “Project”),  established in 2002, is tasked with locating the paintings Jewish art dealer Max Stern (April 18, 1904 – May 30, 1987) was forced to sell during the Second World War, and return them to his heirs. The Project was established at the direction of the heirs of the Max Stern Estate. As Stern did not have children, his heirs consist of Concordia University in Montreal, McGill University also in Montreal, and Hebrew University in Jerusalem. The Project also serves an important educational and moral function, and seeks to educate both the general public and those in the art industry about art theft and the importance of provenance research in ensuring that artworks are returned to their rightful owners.  

The Project is housed at the Concordia University in Montreal, Quebec. The location of Montreal is significant, as this is where Max Stern settled once in Canada, and where he opened his Canadian gallery, the Dominion Gallery. Dr. Clarence Epstein, a Courtauld-trained art historian with experience in managing artists’ estates, was chosen by the heirs of Max Stern to be the Director of the project, and still holds this role. The project began with seed funding from the heirs of Max Stern, but is now largely self-funded through the sale of selected paintings.

The need for the Project stemmed from the cultural program aimed at confiscating and forcing the sale of art initiated by the Nazi Regime during the Second World War. The unprecedented art theft and destruction that occurred in Europe between 1933 and 1945 was a major part of the Nazi’s systematic efforts to establish a “new world order”. Works that were considered to be “degenerate” because they did not perpetuate Nazi ideals were confiscated from museums, galleries, and even from the homes of individuals. Moreover, because the Nazis believed that certain individuals, particularly those of the Jewish faith, should not participate in the creation and perpetuation of German culture, many Jewish art dealers were forced to sell or forfeit their artworks well below market prices. Many of these confiscated artworks were destroyed or purchased by German art dealers and private collectors while a number of them were sold internationally to finance the Nazi war effort.

Max Stern was one such person. Stern survived the war in Canada, but in the early years of World War Two, he lived in Düsseldorf, Germany, where he owned an art gallery and auction house that was established by his father, Julius Stern. On August 29, 1935, Max Stern received a letter from the Reich Chamber of Fine Arts – an organization tasked with ensuring that artistic endeavors within the Third Reich reflected Nazi ideals – informing him that he could no longer carry on the business of buying or selling art in Germany. Stern was given a deadline of December 15, 1937 by which to sell the 228 paintings that were in his possession. These paintings were later sold at auction at the Lempertz auction house. The extent of Stern’s involvement in the sale of his paintings is unclear as the Lempertz Auction houses records were destroyed when Cologne was bombed during the Second Word War. However, the fact that the catalogue used by the Lempertz auction house resembled those used by Galerie Stern, suggests that Stern was involved in the sale of his paintings.

After the war, individuals who were either forced to sell their art or whose art was confiscated, sought to have their property returned. Post-War restitution commissions were established by the governments of various countries to hear claims for these works, but the commissions were not always sympathetic to claims asserted by victims of the Nazis. This left a significant number of artworks in the possession of governments, state-owned museums, dealers and private collectors.

Like many, Stern began working on retrieving his paintings. On December 27, 1947, Stern filed a claim with the Central Office for Property Control to have 20 of the paintings he was forced to sell returned to him. Stern also placed advertisements in a German art magazine, Die Weltkunst, to publicize his efforts within the arts community. Through these efforts, Stern was able to recover a small number of his paintings. The Project was created to facilitate the return of the majority of paintings that were not recovered during his lifetime.

Restitution efforts call for different skills and much international cooperation between art historians, attorneys, researchers, political figures and scholars. The contentious nature of claims for restitution, and the lack of a consistent legal framework for dealing with these disputes makes relying solely on legal reasoning and other typical adversarial techniques less effective. Furthermore, the lack of proof of prior ownership makes international cooperation essential, as it is only with this cooperation that evidence of true ownership can be pieced together once again. Instances of international or trans-organizational cooperation are noteworthy.

While the Project employs both full time and part time staff, it also relies on assistance from other players in the restitution field, such as Holocaust Claims Processing Office (“HCPO”), which acts as an advocate for victims of the holocaust and seeks the return of their stolen assets. The HCPO plays a key role in the restitution process, and assists the Project by conducting provenance research, by acting as an advocate on its behalf, and by facilitating communication between the parties.

Dr. Epstein’s team also works with the National Archives in Ottawa, Canada, and lead investigator Willi Korte, a lawyer based in Washington, D.C., who is the co-founder of the Holocaust Art Restitution Project (link www.plunderedart.com). Both the team at Concordia University and the National Archives assist Dr. Epstein in the search for works that belonged to Max Stern. Lead Investigator, Willi Korte, who has worked on recovering each of the paintings recovered so far, assists with determining the provenance of paintings so that records of ownership can be established and later used in the restitution process. This task takes him all over the world.

The Project approaches the repatriation of Stern’s works through both legal and non-legal channels. However, Dr. Epstein emphasizes that the repatriation of most works is not actually achieved through legal avenues. This is because many countries do not consider forced sales to be theft and also because most countries do not have a specific legal mechanism to assist with these types of claims. Instead, moral arguments are used privately in what Dr. Epstein refers to as “a process of reconciliation” between the parties. The Project also presents more practical arguments such as pointing to the fact that a painting with tarnished provenance is not marketable. The success that has been achieved by using diplomacy and moral arguments demonstrate that shame on one hand and praise on the other are better suited to achieving the Project’s goals.

The reconciliation process utilized by the project is illustrated by the repatriation of Wilhelm Von Schadow’s Self Portrait of the Artist. This painting was discovered when a researcher from the National Archives in Ottawa, Canada found it in a catalogue for a 1967 Düsseldorf Museum Kunstplast exhibition. The catalogue for this exhibition listed the paintings location to be the Stadtmuseum. The Project contacted the museum directly, and the parties discussed the idea of returning the painting to the heirs of Max Stern. In the course of these discussions, both moral and legal arguments were presented and the museum ultimately agreed that the painting should be returned to Max Stern’s estate. However, instead of returning the painting physically, the parties agreed that the painting would remain in the Stadtmuseum Düsseldorf on the condition that the painting was acknowledged as being on loan from Stern’s estate. The parties also agreed that while on display, the painting would be used to remind those who visit the gallery of the painting’s history. As part of the educational component of the agreement, the parties agreed that the painting would be involved in two exhibitions: one on the life of Jewish people in Düsseldorf, and one specifically on Max Stern and his art collection. The museum also agreed to take on the role of providing education on provenance research.

Although reconciliation is preferred to the uncertainty and cost of litigation, the Project achieved a major legal breakthrough in the United States in the case of Vineberg v Bissonette. Vineberg v Bissonnette, 529 F.Supp.2d 300 (D.R.I 2007). Vineberg involved a claim by the Max Stern estate for the return of The Girl From Sabine Mountains by Franz-Xaver Winterhalter. At the time, the painting was owned by Maria-Louise Bissonette, the step-daughter of Dr. Karl Wilhelm, who had purchased the painting from the Lempertz Auction House in 1937. In this case, Chief District Judge Mary Lisi recognized that the forced sales of artworks under those circumstances were equivalent to theft, and ordered Bissonnette to return the painting to the Stern estate. Although the establishment of this legal principle is significant, Dr. Epstein cautions that the judgment is limited to the United States and does not assist with the repatriation of works that are in other countries such as Germany, where most looted paintings are still located.

To date, the Max Stern Art Restitution Project has recovered twelve of Max Stern’s paintings and continues to locate and negotiate the repatriation of his remaining collection . Stern’s works have been found in auction houses, a German casino, and in private collections. Some of these recovered works are now on loan to museums and foundations. Some examples being Aimee, a Young Egyptian by Emile Vernet-Lecomte which is on loan to the Montreal Museum of Fine Arts and  Portrait of Jan Van Everdyck by Nicolas Neufchatel which is on permanent loan to the Jakober Foundation. Other paintings, as previously mentioned, have been sold to finance the Project. Through the sponsorship of conferences and other educational events such as The Israel Museum Conference “Justice Matters: Restituting Holocaust-Era Art Artifacts” (2008), the Project has not only contributed significantly to ensuring that efforts to repatriate works of art stolen by the Nazis during the Second World War remain relevant, but has also become an important source of information and guidance for individuals and similar organizations that also seek the return of these precious works.

Sources:

*About the Author: Ryan Igel is a second year student at the University of Ottawa Faculty of Law, with an interest in the intersection of art and law. Ryan is particular interested in the restitution of artworks looted during the Second World War. He can be reached at rigel064@uottawa.ca.

The author would like to thank Dr. Clarence Epstein, Director of the Max Stern Art Restitution Project, for his time during telephone interviews.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advice. Instead, readers should seek an attorney with any legal questions.

WYWH: Review of “Murder to Museums: Recent Cases and Ethical Considerations in Nazi Looted Art”

By Debra S. Friedmann*

On June 17, 2015, the New York County Lawyer’s Association (the “NYCLA”) hosted an event entitled “Murder to Museums: Recent Cases and Ethical Considerations in Nazi Looted Art,” with remarks by Raymond Dowd from Dunnington Bartholow & Miller LLP, and introduced by the Honorable Barbara Jaffe, acting justice in the New York State Supreme Court. Dowd is one of the program chairs of the Art Litigation and Dispute Resolution Practice Institute, scheduled to hold its 8th annual conference in November 2015.

La-Bergere

“La Bergere rentrant des moutons/Shepherdess Bringing in Sheep” (1886) Camille Pissarro

Dowd, who has represented numerous claimants with title dispute cases in U.S. courts, introduced the topic for the evening with a few examples of ongoing restitution cases, including the recent effort to return Camille Pissarro’s painting, “La Bergère Rentrent des Moutons,” from the University of Oklahoma. The concept of art restitution, Dowd explained, began with the Lieber Code, also known as Executive Order 100, ordered by President Lincoln in 1863 and later included in the Hague conventions in 1899 and 1907. The code sought to protect classical works of art and libraries and banned the sale or donation of art removed from enemy nations.

Recent movies such as “The Monuments Men” (2014) and “Woman in Gold” (2015) brought Nazi art restitution to the forefront of art and legal discussions, begging the question, how did the Nazis take possession of art collections that belonged to Jews? Dowd explained that the Nazi regime demanded regular declarations of property from Jews and systematically transferred ownership of all Jewish assets by forcing Jews to relinquish power of attorney to an assigned “Aryan trustee.” This Nazi system that funded their war efforts appears to abide by the law. Dowd suggested that the legal appearance of these sham transactions with blocked bank accounts has confused historians and judges alike when trying to decide if a piece of art was sold fairly or forcibly.

With so many stolen works scattered in museums around the world, Dowd questioned whether museums are doing enough to investigate their holdings and return the looted work to their rightful owners. Though the U.S. State Department has regularly shown support for Nazi restitution, the U.S. federal court system has nevertheless rejected many of these claims, and in some circumstances, ruled in favor of museums that have sued the Jewish heirs for extortion.

Dowd introduced some of the hurdles, such as laches (the undue delay in obtaining relief), statute of limitations, and the claim that the sales were voluntary, that he has incurred in his own work representing heirs of Holocaust survivors. In Dowd’s case In re Flamenbaum, the rejection of the laches argument to bar the return of a third century golden tablet belonging to the Temple of Ishtar was instrumental as support for other cases that similarly would need to argue against laches. This subject was particularly timely in light of the recent Cassirer v. Spain appellate decision against Claude Cassirer, heir to Lilly Cassirer who was forced to give up Camille Pissarro’s “Rue Saint-Honoré, Après-midi, Effet de Pluie” while fleeing from Nazi Germany. Recognizing national sovereignty, the court ruled that Spanish law rather than California law applied to  the case because, though the plaintiffs had a significant connection to California, the painting did not. According to Spanish law, if one possesses property in an obvious way for a certain period of time, ownership transfers to that individual.  Therefore, since the doctrine of adverse possession applied in this case, it did not matter that the painting in question was looted by the Nazis.

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“Seated Woman With Bent Left Leg” (1917) Egon Schiele

Dowd warned the audience that it is important to look skeptically at provenance research associated with works of art. As an example, Dowd discussed the case Bakalar v. Vavra, where he established that Franz (Fritz) Grunbaum, who owned a sizable collection of Egon Schiele works, was murdered in Dachau. Sotheby’s claimed in the listed provenance for the drawing by Egon Schiele, “Seated Woman With Bent Left Leg” (1917), that it was passed down to the widow and heirs and then sold voluntarily, when in reality no such transactions took place.

Dowd concluded that museums are not doing enough to research their collections and return stolen works, noting that if there is a theft in a transaction, the transactions that follow are irrelevant. Museums such as the Museum of Modern Art, the Toledo Museum of Art, the Detroit Museum of Art, the Museum of Fine Arts in Boston, and the Guggenheim Museum, are still fighting and rejecting charges of looted Nazi art, refusing to return the works.

The CLE lecture, which drew an audience of approximately thirty people, ended with questions on what museums should do in response to claims of looted art and suggestions for what advocates can do to rectify the suppression of Nazi looted art claims.

Select Cases:

  • Bakalar v. Vavra, 619 F.3d 136, 2010 WL 3435375 (2d Cir. Sept 2, 2010)
  • Cassirer v. Kingdom of Spain, 616 F.3d 1019 (9th Cir. August 12, 2010)
  • De Csepel v. Republic of Hungary, 714 F.3d 591 (D.C. Cir. 2013)
  • Grosz v. Museum of Modern Art, 2010 WL 88003 (Jan. 6, 2010), aff’d (2d Cir. Dec. 16, 2010.)
  • Guggenheim v. Lubell, 153 A.D.2d 143, 153, 550 N.Y.S.2d 618, 624 (1st Dep’t 1990), aff’d 77 N.Y.2d 311, 321
  • Schoeps v. State of Bavaria, 2014 WL 2915894 (S.D.N.Y. June 27, 2014)
  • Menzel v. List, 267 N.Y.2d 804, 819 (Sup. Ct. N.Y. Co. 1966), modified 279 N.Y.S.2d 608 (1st Dep’t. 1967), modified and aff’d 24 N.Y.2d 91 (1969)
  • Museum of Fine Arts Boston v. Seger-Thomschitz, 623 F.3d 1 (1st Cir. Oct. 14, 2010)
  • Republic of Austria v. Altmann, 541 U.S. 677 (2004)
  • Toledo Museum of Art v. Ullin, 477 F. Supp.2d 802 (N.D. OH 2006)
  • Vineberg v. Bissonnette, 548 F.3d 50 (1st Cir. 2008)
  • Von Saher v. Norton Simon Museum of Art at Pasadena, 131 S.Ct. 379 (Oct. 4, 2010)

Additional Sources:

  • Dowd, Raymond J., Nazi Looted Art and Cocaine: When Museum Directors Take It, Call The Cops, 14 Rutgers Journal of Law and Religion 529 (2013)
  • Dean, Martin, Robbing The Jews: The Confiscation of Jewish Property in the Holocaust, 1933-1945 (Cambridge U. Press 2008)
  • Petropoulos, Jonathan, Art As Politics in The Third Reich (U. North Carolina Press 1999)
  • Petropoulos, Jonathan, The Faustian Bargain: The Art World In Nazi Germany (Oxford U. Press 2000)

*About the Author: Debra Friedmann is a rising second-year law student at the Georgetown University Law Center. She received a B.A. in History and Studio Art from Brandeis University. She may be reached at dsfriedmann@gmail.com.

Disclaimer:  This article is for educational purposes only and is not meant to provide legal advice. Readers are not meant to act or rely on the information in this article without attorney consultation.