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.

WYWH: You’ve Been Served – “Gerhard Richter Painting” and German Cultural Heritage Protection Law

By Elizabeth Weber, Esq.*

Screen shot 2015-04-17 at 2.41.44 PMOn February 3, 2016, the “You’ve Been Served” dinner and a movie event was hosted by the Brooklyn Law School Art Law Association. Attendees included attorneys, artists, art dealers, and students. The film screened, Gerhard Richter Painting, is a documentary that provides a glimpse, deliberately and slowly, into the life and artistic processes of visionary German artist Gerhard Richter. In the film, director Corina Belz highlights Richter’s creative process and allows viewers to watch Richter work on art in real-time. Interspersed in the film are clips from Richter’s youth, in which he discusses his views on art and life, which may or may not have changed for the artist over the course of his long and prolific life. The film attempts to provide viewers an intimate view of Richter’s past and his present: his escape from Eastern Germany at the age of 28, his trove of family photos that have an ambivalent effect on the artist, who wonders, “Who is this woman?” as he points to an image of his mother and wonders “Should I throw all of these away?” when trying to organize the photo trove in chronological order. In the film, Richter observed how American audiences tend to be more direct in commenting on his work, with one observer calling his gray series the English term for “scheisse.”

Following the screening of the  film, a partner in Sullivan & Worcester’s Litigation Department in Boston, Nicholas O’Donnell, led a discussion about German cultural heritage law. Mr. O’Donnell, who is the editor of the firm’s Art Law Report blog and an attorney working on a number of art law matters involving Germany – including the Restitution claim for the Guelph Treasure – discussed the hotly contested 2015-2016 German Cultural Heritage Protection Law. The first draft of this legislation proposed that all objects of national importance older than 50 years and valued at €150,000 or more must be granted an export license by the German government to leave German soil. A subsequent draft revision amended the value threshold, raising it from €150,000 to €300,000 and increasing the object’s age from 50 to 70 years. Additionally, the revision states that works of living artists may qualify as objects of national importance only with the artist’s permission. Having written about the proposed revisions already, O’Donnell described the law as archaic in a time when the art market is expanding beyond geographical national borders and becoming part of the larger global economy.

The legislation sparked outrage throughout the art world. Some artists, like Richter, and other art market experts condemned the act, with some experts portending the destruction of the German art market should the act come to pass. Mr. O’Donnell noted that other artists, including Georg Baselitz, went so far as to withdraw loaned works from German museums in protest of the law.

It was noted that other EU countries have export limitations on cultural valuables, including France and Italy, among others, and that Germany may be using these countries’ laws and overarching EU law as justification for its Cultural Heritage Protection Law. Indeed, the European Economic Community, one of the three founding pillars of the European Union, issued a regulation in 1993 that set uniform export controls for EU member countries. This regulation, titled “On the Export of Cultural Goods,” stated that “[t]he export of cultural goods outside the customs territory of the Community shall be subject to the presentation of an export license.” Accordingly, Germany’s Cultural Heritage Protection Law narrowed the geographic scope of the EU regulation by decreasing the acceptable export zone from the entire EU to Germany only.

A press release issued by the German Press and Information Office of the Federal Government acknowledged the EEC regulation, stating that “[s]ince 1993, EU law has required permits to export relevant cultural property outside the EU, for example to major art markets in Switzerland and the U.S.” The press release further indicates that “the German law sets more generous terms” than the aforementioned EU law.

Additionally, German authorities have characterized the law as an attempt to keep illegally-imported artifacts, especially those sold by ISIS to finance terrorist regimes, from being imported into and subsequently purchased and sold on German soil. Professor Monika Grütters, Germany’s Minister of State for Culture, stated that “[i]n view of the barbaric destruction of cultural heritage in the Middle East and many other areas of crisis and civil war, this move was long overdue, demanded by ethics and morals and by our identity as a nation of culture.”

During the Q&A session with Mr. O’Donnell, the discussion included possible loopholes within the  law, what permits for below market pricing and selling goods on the illicit black market. In addition, O’Donnell commented on the ramifications of the law vis-a-vis restitution claims that are currently pending against German institutions and individuals. Namely, would the law disallow the export of objects that qualify as “national treasure” after a restitution claimant succeeds in proving that property was looted from the family during the Nazi-era? It’s possible – if the draft German Cultural Heritage Protection Law passes this year, all works produced before 1946 (70 years before 2016) would be categorized as artifacts possibly restricted from export .

Cultural heritage issues are not exclusive to antiquities and remain a pervasive issue for contemporary artists. Different interests come into play between the governments seeking to protect and preserve their cultural identity and those who disseminate art to the international community. Although it is vitally important to protect cultural objects, governments must weigh the benefits derived from restricting the export of cultural patrimony against the curtailment of artists’ and art dealers’ rights. Namely, governments should take into account the far-reaching effects of cultural patrimony laws before restricting the flow of goods into the market to avoid the negative backlash that naturally follows such regulations.


Center for Art Law would like to thank Tess Bonoli and all the members of the Brooklyn Law School Art Law Association for their generosity and enthusiasm for the program. Many thanks to all who attended this event, with special thanks to Nicholas O’Donnell for his illuminating discussion of German cultural heritage issues.

About the Author: Elizabeth Weber is a lawyer living in Brooklyn, NY.  She graduated from the University of Florida Levin College of Law, where she received her certificate in Intellectual Property Law and served as an active member of the Art Law Society and the Journal of Technology Law and Policy. She is the Spring 2016 Postgraduate Fellow with Center for Art Law.

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Disclaimer: Reading “Wish You Were Here” a/k/a “WYWH” articles is no substitute to attending art law events, trials and programs. This and all http://www.itsartlaw.com articles are for educational purposes only. Readers should not construe or rely on any comment or statement in this article as legal advice. In case of legal questions, readers should seek a consultation with an attorney.

Why Ronald Lauder Is Right About Nazi-Looted Art in Museums

*From the Editors: The following article  first appeared on ArtNet. It is a response to two recent articles, an editorial authored by Ronald S. Lauder, a New York businessman and art collector, and a related commentary by Nicholas O’Donnell, Boston-based attorney and editor of Art Law Report. The article is reprinted with the permission of the author, attorney for Leone Meyer.

By Pierre Ciric*

In his article titled “Lauder Editorial on Stolen Art and Museums Fails the Glass House Test,” Nicholas O’Donnell attempts to respond to Ronald S. Lauder’s editorial published in the Wall Street Journal on June 30, 2014, titled “Time to Evict Nazi-Looted Art From Museums.”

O’Donnell attempts to find legal shortcomings in Lauder’s editorial, which simply expresses the need for art museums to act responsibly by returning Nazi-looted artwork instead of raising technical defenses and mere pretexts to deny the rights of the claimants.

In his article, O’Donnell refers to the ongoing case brought by Léone Meyer against the University of Oklahoma, among other defendants, to obtain the restitution of “La bergère rentrant des moutons” (Camille Pissarro, 1886), currently on permanent display at the Fred Jones Jr. Museum of Art in Norman, Oklahoma.

Although O’Donnell—counsel to David Findlay, Jr. Gallery, a defendant no longer involved in the case—recognizes that the recent court decision is limited to whether the Oklahoma defendants could be sued in New York, he repeatedly brings up a 1953 Swiss court decision involving Camille Pissarro’s La Bergère as grounds for why Léone Meyer’s claim should fail, and why Mr. Lauder’s argument is baseless.

O’Donnell’s argument fails the common sense test. First, no one disputes that the Nazis stole La Bergère from Léone Meyer’s family.

Second, the 1953 Swiss court decision was not decided based on a late claim, as O’Donnell argues, but was decided against Léone Meyer’s father because he could not prove the “bad faith” of the art dealer who acquired La Bergère after it crossed the Swiss border from France.

Third, prior Swiss decisions involving looted art have long been held as doubtful or baseless in several U.S. jurisdictions. Even the Swiss government itself recognized in 1998 that the deck was stacked against claimants who wanted to file art restitution claims in Switzerland after World War II. New York courts have found/determined that “Swiss law places significant hurdles to the recovery of stolen art, and almost ‘insurmountable’ obstacles to the recovery of artwork stolen by the Nazis from Jews and others during World War II and the years preceding it.”

Finally, O’Donnell misses the point of Mr. Lauder’s editorial. As French government officials have recently stated in a public forum dedicated to France’s efforts to track and restitute looted art, the time for “clean museums” has come. Hiding behind technicalities and procedural loopholes to delay basic justice, i.e. restitution of looted property, is not morally appropriate, even less so when public institutions are involved.

Ronald Lauder is right. It is time for museums to do the responsible thing. It is time for museums to “clean” their collections of any tainted artwork by returning Nazi-looted artwork.

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Abut the Author: Pierre Ciric is a New York attorney, the founder of the Ciric Law Firm, PLLC, and a board member of both the French–American Bar Association and the New York Law School Alumni Association.