Emily Braun and Pepe Karmel on the Leonard A. Lauder Cubist Collection

IFARJOURNAL

INTERNATIONAL FOUNDATION FOR ART RESEARCH

V OLUMENO. 16 2015 3 In this issue Emily Braun and Pepe Karmel on The Leonard A. Lauder Cubist Collection

Volume 16 Number 3 2015 Volume

T HE INTERNATIONAL FOUNDATION FOR ART RESEARCH (IFAR), LA UDER CUBIST COLLECTION VIOLIN THEFTS RESTITUTION ROULETTE established in 1969, is a 501 (c)(3) not-for-profit educational and research organization dedicated to integrity in the visual arts. IFAR offers impartial and authoritative information on authenticity, ownership, theft, and other artistic, legal, and ethical issues concerning art objects. IFAR serves as a bridge between the public and the scholarly and commercial art communities. We publish the quarterly IFAR Journal, organize public programs and conferences, offer an Art Authentication Research Service and provenance research services, provide a forum for discussion, and serve as an information resource. We invite you to join our organization and help support our activities.

Reports from IFAR's Art Purloined Stradivari Authentication Research Service Restitution Roulette Operation Hidden Idol INCORPORATING STOLEN ART ALERT® 2 IN MEMORIAM – John Henry Merryman

3 NEWS & UPDATES

3 The Case Against Kapoor: “Operation Hidden Idol” and the Undoing of an Accused Antiquities Smuggler

8 Last of 5 Banco Santos Artworks Seized in U.S. Are Back in Brazil

11 Court Rules for Madrid Museum in Dispute Over Pissarro

13 Convicted Fraudster Claims de Koonings Are Fake; Court Experts Agree

16 U.S. Court Rejects Poland’s Extradition Request for Art Dealer with Nazi-Looted Work

19 THE PURLOINED STRADIVARI Carla Shapreau

23 A CASE OF MISTAKEN IDENTITY: IFAR INVESTIGATES A “JACKSON” POLLOCK AND UNCOVERS HIS BROTHER CHARLES Lisa Duffy-Zeballos and Sharon Flescher

28 THE DE KOONING THAT WASN’T: A BAD PENNY RESURFACES (AS A PHONY NICKEL) Lisa Duffy-Zeballos

32 THE LEONARD A. LAUDER CUBIST COLLECTION: A CONVERSATION WITH EMILY BRAUN AND PEPE KARMEL An IFAR Evening, February 10, 2015 Emily Braun and Pepe Karmel

56 RESTITUTION ROULETTE: A COMPARISON OF U.S. AND EUROPEAN APPROACHES TO NAZI-ERA ART LOOTING CLAIMS Thomas R. Kline

67 STOLEN ART ALERT®

COVER: PABLO PICASSO (Spanish, 1881-1973). The Scallop Shell: “Notre Avenir est dans l’air,” spring 1912. Enamel and oil on canvas. Leonard A. Lauder Cubist Collection. Ph. MMA. © 2015 Estate of Pablo Picasso/ARS NY.

IFAR® JOURNAL VOL. 16, No. 3 © 2015 1 This article from IFAR Journal, Vol. 16, no. 3 is being distributed by Thomas R. Kline at The Preservation of Art and Culture in Times of War Conference, jointly organized by the Penn Law School, Center for Ethics and the Rule of Law, and the Penn Museum's Penn Center for Cultural Heritage, on April 4-6, 2017 with the permission of the International Foundation for Art Research (IFAR). It may not be reproduced or distributed without the express permission of IFAR.

RESTITUTION ROULETTE: A COMPARISON OF U.S. AND EUROPEAN APPROACHES TO NAZI-ERA ART LOOTING CLAIMS

THOMAS R. KLINE* RESTITUTION ROULETTE RESTITUTION

In the United States, the film Woman in Gold and Restitution claims have, if anything, grown in the discovery of the Gurlitt trove of well over a complexity in recent years and have become more thousand works of art in Munich captured the difficult to resolve. Approaches on both sides of the imagination of the public as nothing has done in Atlantic have led to uncertainty and unpredictable recent memory concerning restitution of Nazi-era outcomes. Because the circumstances surrounding looted art. Even well-educated Americans had been restitution and the governing law are so different unacquainted with the full scope of Nazi art spo- in the United States and in Europe, however, any liation and had no basis for comprehending how discussion of these issues needs to start with a com- theft on such a grand scale could have occurred, or parison between them regarding Nazi-era art res- how such a large cache of possibly looted artwork titution.1 Given the limitations of space and in the could still exist today. Nor could many Americans interest of clarity, the discussion will necessarily understand why, when found, the art would not entail broad generalizations and must be, to some immediately be restituted to victims of the Nazis degree, superficial. from whom it was presumably stolen, thus raising Significant factual and legal differences between questions about the fairness, efficiency and consis- Europe and the United States affect the handling of tency of the resolution process. The public's desire restitution claims, such as the absence of good faith to understand the complexities of Nazi art looting purchaser rules in the United States and more strin- and post-War restitution has never been greater gent statutes of limitations in Europe. At the same and this curiosity has brought with it increased time, national organizations in Europe have been scrutiny to current restitution efforts in Europe more active in intervening in these cases and in and the United States. developing special rules, particularly with regard to art held by government entities. American museum “With no end in sight to Nazi-era art associations, which play some of the roles cultural looting claims, these problems cry ministries do in Europe, have, in my opinion, all out for attention and trans-national as but abandoned the field of Nazi-looted art claims. well as national solutions.” In the end, claimants, on the one hand, and museums and collectors, on the other, suffer from a lack of uniformity or consensus on standards for what * Thomas R. Kline is Of Counsel, Andrews Kurth LLP and facts provide the basis for a strong claim or defense, Professorial Lecturer, George Washington University. This article is based on remarks given by the author at a conference on art restitution organized by the Polish Ministry of Culture and National Heritage 1 In this article, I am not giving legal advice, merely providing a and held on November 12-14 in Kraków, Poland entitled: “Looted- general overview of issues. I present here only my own views; I do not Recovered: Cultural Goods – The Case of Poland." speak for any clients or organizations.

2015 - - © - -

- - - 3 France, 4 ) to review) to VOL. 16, No. VOL. IFAR® JOURNAL IFAR® “Beratenden Kommission” In response, the Dutch Govern 3 rules in the United States and more rules and more States in the United Germany created the Limbach Advisory between Europe and the United States States and thebetween United Europe 5 affect the handling claims, restitution of “Significant factual and legal differences The Ekkart Committee, “Origins Unknown Advisory Committee Advisory Committee Unknown “Origins The Ekkart Committee,

See Evelien Campfens, “Impression of the Symposium ‘Fair and and ‘Fair the Symposium of “Impression Campfens, See Evelien Id. such as the absence of good faith good as purchaser of thesuch absence stringent statutes of limitations in Europe.”

Commission ( ment encouragedment art restitution claimants come to forward and also set the up Advisory Committee on the Assessment of Restitution Applications for CulturalItems of War and the Value Second World (generally known as the “Restitutions Committee”) evaluateto such claims and advise to the Minis try Education, for Culture and Science to how on decide them. Other European countries established have spe cial legal standards and procedures handling for claims Nazi-era of art looting;created commis hear to sions such claims the of outside normal legal system; and provided museums with assis tance in conducting provenance research. 3 (2004) http://www.herkomstgezocht.nl/eng/ Final Recommendations” 2015). (accessed 8 March rapportage/content.html 4 5 potential claims hundreds for even or thousands unrestitutedof pieces. example, For the Ekkart Committee in the Netherlands determined that Dutchthe restitution post-War standards and pro cedures had left many artworks returned The to Netherlands in government hands that couldpos sibly still be restituted if surviving claimants could be identified. Just Solutions’” (Dec. 3, 2012) http://www.restitutiecommissie.nl/ Solutions’” Just en/impression_of_the_symposium_fair_and_just_solutions.html 2014). (accessed 14 November for example,for established the “Commission the for Compensation Victims of Spoliation of resulting from the anti-Semitic legislation in during force the which Occupation,” has heard disputes 877 involving Nazi-era artworks (although only two disputes resulted in physical restitution of the art). - -

------

In response, European and Ameri 2 FACTUAL UNDERPINNINGS FACTUAL U.S. Dept. of State Bureau of European and Eurasian Affairs, “Wash- Affairs, Eurasian and European of Bureau State of Dept. U.S.

2 eral government owns only the Smithsonian Insti Among the most significant factual differences between the and U.S. Europe are that European museums are, the for most part, government insti WashingtonThe 1998 Conference Holocaust- on Era Assets and the resulting Washington Principles challenged signatory governments and museums in their countries reexamine to their collections for Nazi-looted art that was restituted not in the War’s aftermath. tutions; whereas in the museums U.S., are generally privately owned and operated. In fact, the fed U.S. tution and the National Gallery, although many museumsU.S. are owned state by and local govern ments. The federal U.S. government has compara tively little authority private, control over or state and locally owned cultural institutions. European governments, the on other hand, both have greater authority and, generally,special cabinet offices (Ministries Culture) of dedicated overseeing to cul tural institutions. creating legal uncertainty and unpredictable out comes. Museums, collectors and claimants also suf fromfer shortage a resources of conducting for the provenance research that is the at heart address of ing these claims. With end in no sight Nazi-era to art looting claims, these cry problems atten for out tion and trans-national as well as national solutions. ington Conference Principles on Nazi-Confiscated Art” (1998) http:// Art” Nazi-Confiscated on Principles Conference ington 2015). (accessed 7 March www.state.gov/p/eur/rt/hlcst/122038.htm In Europe, addressing this typically problem required the passage special of legislation and the creation administrative of bodies deal to with can museums renewed their immediate post-War efforts deal to responsibly with art that may have been looted. European governments faced the art of problem returned them to the by Western Allies — often that “the by Men”— Monuments was subsequently not restituted the to original owners was but simply integrated into the national structure. museum and make recommendations in cases involving considered Nazi propaganda seized by the U.S. museums, libraries, archives and other public Army at the end of the War and constituted as the institutions, provided both parties to a dispute Defense Department’s War Art Collection (much agree to the review.6 Austria created a Provenance of it since returned); as well as a manuscript from Research Commission and also changed the appli- 1236 A.D. on vellum, a document from East Prus- cable law to facilitate return of art looted during sia whose ownership is disputed between Germany the Nazi era.7 and Poland, with no end in sight to Library of Congress custody.9 Because of the absence of a

RESTITUTION ROULETTE RESTITUTION “We have seen no such developments national collection built on Nazi loot, no thor- in the U.S. In fact, at a recent conference in oughgoing re-structuring of the legal system was the Hague …, [the] then U.S. Special thought necessary. Nonetheless, through purchases (and in the case of museums, donations) and lack Envoy for Holocaust Issues … made clear of diligence concerning provenance, American that the State Department would not be museums and collectors received and possess creating any kind of U.S. Commission to many works of art that may have changed hands in deal with Nazi-era art looting claims.” Europe during the Nazi era. To address this problem, however, the U.S. has no We have seen no such developments in the U.S. In Ministry of Culture, as do most European coun- fact, at a recent conference in The Hague hosted by tries, and thus, no central government authority the Dutch Ministry of Education, Culture and Sci- for funding, administration, policy-making or ence, then-U.S. Special Envoy for Holocaust Issues, oversight of cultural institutions. Most financial Ambassador Douglas Davidson, made clear that the support for privately owned museums comes from State Department would not be creating any kind private donors, including foundations, while state of U.S. Commission to deal with Nazi-era art loot- and local governments provide financial support ing claims.8 The decision may flow naturally from for the museums they own. Each museum sets the fact that the U.S. did not suffer Nazi occupa- its own policies and practices guided by the ethi- tion and art looting, and has no museum collec- cal standards set by two major museum associations of looted art returned to the government tions: the American Alliance of Museums (AAM) after the end of the War. Based on official govern- and the Association of Art Museum Directors ment action, in fact, we have only stray pieces from (AAMD). It fell to these associations to encour- Europe, such as the remainder of 8,000 artworks age U.S. museums to comply voluntarily with the Washington Principles.

6 Advisory Commission, LostArt.de http://www.lostart.de/Webs/ In this regard, around 1998, consistent with the EN/Kommission/Index.html (accessed 8 March 2015). Several federal German agencies and offices, including the Prussian Cultural Heritage Washington Principles’ call for museums “expedi- Foundation, the Cultural Foundation of the States, the Office for Provenance Research, the Minister of State in the Federal Chancellery tiously to achieve a just and fair solution, recogniz- and the Representative for Cultural and Media Affairs, have combined ing this may vary according to facts and circum- efforts to support and conduct provenance research of art with a 10 suspect Nazi era history. See Provenance Research in Germany: stances surrounding a specific case,” AAM and Recent Results and Future Outlook, Kulturpolitsche Themen, AAMD established museum guidelines setting out http://www.kulturstiftung.de/aufgaben/kulturpolitische-themen/ ns-verfolgungsbedingt-entzogenes-kulturgut/provenance-research-in- germany-recent-results-and-future-outlook/ (accessed 8 March 2015). 9 See Interagency Working Group, Records of the Office of the 7 Commission for Provenance Research, http://www. Assistant Legal Advisor for Educational, Cultural, and Public Affairs provenienzforschung.gv.at/index.aspx?ID=1&LID=2 (accessed 8 1945-1997 (Record Group 59), http://www.archives.gov/iwg/ March 2015). declassified-records/rg-59-state-department/rg-059-general-records-2. htm (accessed 14 November 2014). 8 Catherine Hickley, “Nazi-Loot Panel Hopes Fade in U.S., Forcing Court Action,” Bloomberg News (Nov. 28, 2012), http://www. 10 U.S. Dept. of State Bureau of European and Eurasian Affairs, “Wash- bloomberg.com/news/2012-11-29/nazi-loot-panel-hopes-fade-in-u-s- ington Conference Principles on Nazi-Confiscated Art” (1998) http:// forcing-court-action.html (accessed 14 November 2014). www.state.gov/p/eur/rt/hlcst/122038.htm (accessed 7 March 2015).

- - - 2015 -

see 3 592 Menzel v. List, List, v. Menzel Duke Law Journal Law Duke VOL. 16, No. VOL. modified on other grounds, modifiedother on grounds, 36 (1993) pp. 17- 44, here 22 here 17- 44, 36 (1993) pp. 298 N.Y.S.2d 979 (1969); 979 (1969); 298 N.Y.S.2d Thus, no one who no one traces title Thus, Hence, a good faith purchaser 18 mod. rev’d, rev’d, mod. The dominant rule in resti U.S. 619 F.3d 136, 140 (2d Cir. 2010); 2010); 140 (2d Cir. 136, 619 F.3d 16 IFAR® JOURNAL IFAR® Harvard Law Journal Law Harvard 619 F.3d at 140 (“[A]bsent other considerations an considerations other at 140 (“[A]bsent 619 F.3d Nor can Nor who obtains one artwork from 17 nemo dat quod non habet. whereas claims in European countries are Bakalar, 15 Robin Morris Collin, “The Law and Stolen Art, Artifacts, and Artifacts, Art, and Stolen “The Law Collin, Morris Robin See Von Saher v. Norton Simon Museum of Art at Pasadena, at Pasadena, Art of Museum Simon Norton Saher v. Von Bakalar v. Vavra, Vavra, Bakalar v. See Deborah A. DeMott, “Artful Good Faith: An Essay on Law, Law, on Essay An Good Faith: “Artful DeMott, A. See Deborah

a thief — even if acquired in utmost good faith — receive title the to object pass or good title a sub to sequent purchaser. tution cases, the on other hand, is that a thief does acquirenot and cannot pass good title stolen to property. through a thief may defeat the ownership claims of claims a thiefthrough the ownership defeat the rightful may owner in an action replevin.”) for Antiquities,” in: in: Antiquities,” F.3d 954, 969 (9th Cir. 2010) (explaining that state law applied to the to applied law that state 2010) (explaining 969 (9th Cir. 954, F.3d parties private of between regardless dispute ownership non-binding art and restitution). Nazi-era federal policy concerning U.S. artwork stolen during World War II still belongs to the original owner, II still the original belongs to owner, War World duringartwork stolen if and even of each buyers subsequent those been several if even have there goods.”). that she was buying stolen unaware was completely buyers generally national governed by Thus, law. restitution claims in the are U.S. decided under state law that varies, sometimes from jurisdiction widely, juris to diction; while in Europe there uniformity is more because each country’s national law applies. One very significant difference between American and European law is the availability a good faith of purchaser defense in several European countries, which can create title in who purchases someone an value item for without notice the of true owner’s claim the to property. In cases, some the good faith titlepurchaser’s even becomes incontestable after a period years. of 18 15 16 in: Art Markets,” in and Intermediaries Custom, 17 1966), Ct. 819 (Sup. 804, 267 N.Y.S.2d 608 (1967), 279 N.Y.S.2d again speaking in generalities. broad In the United States, property law is a local federal — not — mat ter and most cases are resolvedthe on basis state of law, (2012) pp. 607-643, here 632 (noting that under French law, a good law, French 632 (noting that under here 607-643, (2012) pp. a Swiss law, and under years five title after acquires faith purchaser years). five title after also acquires good faith purchaser is protected from claims original by brought own ers extent some — to — under is European but law, vulnerable under U.S. law. Litigants made have the argument that a good faith purchase in Europe should be respected in (“Common law jurisdictions [like the United States] … follow the … follow States] the United jurisdictions [like law (“Common principle also - - -

At - 11

135 S.Ct. 1158 135 S.Ct. cert. denied, 477 F.Supp.2d 802, 808 (N.D. 808 (N.D. 802, 477 F.Supp.2d Nonetheless, the extent to 14 The Washington Principles, which VASTLY DIFFERENT DIFFERENT VASTLY LEGAL LANDSCAPESLEGAL 13 It is generally It understood and accepted 12 See American Alliance of Museums, The Nazi Era Provenance Era Provenance The Nazi ofAlliance Museums, American See Toledo Museum of Art v. Ullin, v. Art of Museum Toledo Von Saher v. Norton Simon Museum of Art at Pasadena, at Pasadena, Art of Museum Simon Norton Saher v. Von A

theUnlawful Regarding Standards ofAlliance merican Museums, which AAM and AAMD are continuing encour to age American museums the by abide to guidelines and provide to them with needed support, and to provide the public with transparent accounting for museum practices in this regard has become a con troversial subject that will be discussed below. the same time, the AAM established an Internet portal that families theft of victims and their researchers could use locate to artworks that may changedhave hands in Europe during the Nazi era. (Jan. 20, 2015). 2015). 20, (Jan. tions establish or mandatory rules museums for rather but are intended follow, to “facilitate to the ability museums of act to ethically and legally as stewards” through “serious efforts” a “case on by basis.” case that the guidelines create not do legal obliga 14 2014), 720-721 (9th Cir. 712, 754 F.3d 13 12 11 of http://www.aam-us. Objects Era, Appropriation During the Nazi org/resources/ethics-standards-and-best-practices/collections- 14 November (accessed stewardship/objects-during-the-nazi-era of Report AAMD the Directors, ofAssociation Art Museum 2014); II Era War the Spoliation on ofArt during the Nazi/World Force Task 1998) https://aamd.org/standards-and-practices (1933-1945)(June 4, 2015). 7 March (accessed There are also significant legal differences between the States United and continental Europe that impact restitution, bearing in mind that are we

best practices documenting for and publicizing objects that been may have the subject Nazi of confiscation and responding for claims. to ment withment regard restitution to art of potentially thelooted by Nazis. provide the background the for guidelines, do, least at in thehowever, view federal one of Court Appeals,of embody the policy the of govern U.S. (accessed 8 March 8 March (accessed http://www.nepip.org/ Project, Portal Internet 2015). Ohio 2006) (discussing the non-binding nature of nature Ohio 2006) (discussing the non-binding and the guidelines ofholding that use of a waiver portal the Internet not constitute does own). may paintings museum Nazi-era rights any any to the U.S. under choice of law principles, but that limited exceptions can allow claims to remain alive defense has mostly failed. In Autocephalous Greek- today. For example, New York applies a “demand Orthodox Church of Cyprus v. Goldberg and Feld- and refusal rule,” under which the statute of limi- man Fine Arts, Inc., the U.S. Court of Appeals tations does not begin to run against a good faith for the Seventh Circuit upheld the trial court’s possessor until the true owner has demanded decision to apply Indiana law, as opposed to Swiss her property and the wrongful possessor refuses law, in a suit to recover mosaics stolen from a to return it.22 Other states, like California, have Greek-Orthodox Church in the Turkish-occupied variations of “the discovery rule,” which delays 19

RESTITUTION ROULETTE RESTITUTION area of Cyprus. The court noted that although commencement of the limitations period until the Switzerland was the place where the conver- owner discovers or should have discovered that her sion of the mosaics took place because the buyer property was stolen.23 acquired them there, Switzerland’s contacts with In the U.S., the doctrine of laches may also bar a the case were too attenuated to justify the appli- claim on timeliness grounds. If the court believes cation of Swiss law.20 Since the defendants were the claimant delayed unreasonably in making the Indiana residents, the purchase money came from claim and that delay caused prejudice to the cur- Indiana bank accounts, and the mosaics were rent possessor, the court can apply this equitable promptly shipped to Indianapolis, Indiana law defense to deny an otherwise viable ownership applied and the defendants could not rely on the claim.24 Passage of time alone, even a long period, Swiss good faith purchaser rule to provide title. is insufficient to support a laches defense; the Relying on Cyprus v. Goldberg, U.S. courts have party raising the defense must prove it has been mostly refused to apply the European good faith prejudiced by the delay. As one court articulated, purchaser rule in analyzing Nazi-era art looting “proving prejudice requires more than the frenzied claims primarily because an analysis of competing brandishing of a cardboard sword; it requires at interests generally points to the forum as the juris- least a hint of what witnesses or evidence a time- diction with the greater interest in the outcome of ous investigation might have yielded.”25 the case as compared to the jurisdiction where the sale took place.21 In a case involving Edgar Degas' Landscape with Smokestacks (FIG. 1), a court refused to apply lach- STATUTES OF LIMITATIONS es to dismiss a case without a full exploration of the facts at a trial on the merits.26 It was the first Although statute of limitations periods, which bar case in the United States in decades in which the plaintiffs from bringing untimely claims, are much court said that a claim based on Nazi-era art loot- shorter in the U.S. (three to six years) as compared ing could still be alive in the mid-1990s, in spite to the longer European limitations periods, several of the passage of roughly 50 years since the end of

the War. The parties settled the dispute after the court ruled that the case could go forward to 19 917 F.2d 278, 286 (7th Cir. 1990).

20 Id. at 287. 22 Solomon R. Guggenheim Found. v. Lubell, 569 N.E.2d 426, 77 21 See Schoeps v. Museum of Modern Art, 594 F. Supp. 2d 461, 466 NY.2d 311, 318 (N.Y. 1991). (S.D.N.Y. 2009) (Even though the painting at issue was purchased in Switzerland, New York law governed the museum’s good faith purchaser 23 Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d defense because, among other reasons, the disputed painting was 954, 969 (9th Cir. 2010). immediately transported to New York after the sale, had been in New 24 Vineberg v. Bissonnette, 529 F. Supp. 2d 300, 309 (D.R.I. 2007), York for over 70 years, and had become the property of a major New aff’d, 548 F.3d 50 (1st Cir. 2008). York cultural institution that was also a party to the action.). Likewise, in Bakalar v. Vavra, 619 F.3d 136, 142-146 (2d Cir. 2010), the Court 25 Vineberg v. Bissonette, 548 F.3d 50, 58 (1st Cir. 2008). of Appeals conducted an interest analysis under New York choice of law rules and — reversing the trial court — held that New York law 26 See Barbara J. Tyler, “The Stolen Museum: Have United States Art governed a sale that took place in Switzerland primarily because of Museums Become Inadvertent Fences for Stolen Art Works Looted by New York’s greater interest “in preventing the state from becoming a the Nazis in World War II?,” Rutgers Law Journal 30 (1999) pp. 441- marketplace for stolen goods.” Id. at 146 (citation omitted.). 471, here 454.

2015 - ©

- EGON SCHIELE. Seated EGON SCHIELE. 3 of a long and unsuccessful ownership ownership of and unsuccessful a long against Bakalar. claim David 1917. 1917. with Bent Left Leg (Torso), Woman crayon. and black Gouache FIGURE 2.

- - - VOL. 16, No. VOL. 28

IFAR® JOURNAL IFAR® that had originally LEGAL DEVELOPMENTS LEGAL (FIG. 2) the rejection the of good faith purchaser defense based law principles, of choice on the limited availability the of “forced sale” argument, the growth time-based of lim itations defenses, both statute oflimitations and laches; and the use statutory of relief, like the National Stolen Property Act, which allows the federal government bring to a forfei ture action. 619 F.3d 136, 141 (2d Cir. 2010). 136, 141 (2d Cir. 619 F.3d

• • • • changed hands in Switzerland. ing The good faith purchaser defense has been greatly weakened in the States United the by case of inBakalar which Vavra, the v. court rejected this defense with regard an to Schiele Egon draw 28 Recent in developments restitution U.S. cases include: not frivolous,not the claimant is generally risk at not havingof the pay to fees, possessor’s even ifthe claim fails. Further, attorneys may take a case on a contingency fee basis with a potentially hopes of large reward success. for In sum, obtaining rep resentation a Nazi-era for art restitution claimant would appear be to substantially easier in the U.S. than in Europe. theseFor reasons, particularly differences in stat utes of limitations, restitution litigation based on claims Nazi-era of looting is a greater threat in the Some observersU.S. believe that a Nazi-era art looting claim will settle not unless the claimant has a credible threat foster fairness, litigation. of To Europeansome countries the not — U.S. — but createdhave special commissions address to claims. These commissions generally have jurisdiction only over government-owned property, not artwork found in private hands. The court that felt New York

Vol. 1, no. 3, Autumn 1998, p. 7. p. 1998, Autumn 3, no. 1, Vol. Landscape with IFAR Journal, IFAR 1890. Monotype pastel. Art Institute ofArt Institute Monotype pastel. 1890. EDGAR DEGAS.

also Sharon Flescher, “Amicable Settlement in Dispute Over Over in Dispute Settlement “Amicable Flescher, also Sharon

The case stands as a reminder that laches 27 (accessed 14 November 14 November (accessed www.cnn.com/US/9808/14/looted.art/ See CNN, “Case over painting stolen by Nazis settled” (August 14, 14, (August settled” Nazis by painting stolen over “Case See CNN,

Degas Monotype Pastel,” Degas Monotype Pastel,” 27 1998), 2014). See 2014). FIGURE 1. trial. In the the on U.S., other hand, a claimant can bring a case if she can or he find a lawyer willing taketo a risk. Additionally, as as long the case is paying the claimant’s fees.) attorney’s Another important difference between and U.S. European legal systems is the easedifficulty or required a claimant for hire to an attorney take to a Nazi-eraon art restitution case. In European some countries, the losing party pays the attorneys’ fees theof prevailing party and attorneys representing the claimant from are earning forbidden a fee that is contingent the the on of outcome case. These rules can make harder it a claimant for who is not wealthy sue a museum to collector or because the of actual and potential financial costs. (Of course, in a loser-pays jurisdiction, a current possessor may be encouraged settle to a potentially meritorious case the risk avoid to losing of promptly, the object and is necessarily not a strong defense in seemingly old restitution cases, since the laches defense requires close scrutiny the of facts, and cases are rarely dismissed this on grounds trial; before trial, at the current possessor carries the proof burden of establishto that was he harmed unreasonable by delay the on part the of claimant. Chicago, purchased from the collection of collection the from Friedrich purchased Chicago, and gift Searle. of Daniel C. Gutmann, and Louise Smokestacks, Smokestacks, State had a greater interest than Switzerland in Even with mitigating doctrines under U.S. law, having its laws applied, particularly New York’s issues related to the passage of time, statute of lim- rule that a thief cannot pass title to a good faith itations and the related doctrine of laches (delay purchaser.29 As a court in a different case elo- by claimant causing prejudice to possessor) are the quently stated, the American policy behind the predominant issues seen in Nazi-era art restitution rule is that it “gives greater protection to an claims. Passage of time and the resulting prejudice object’s true owner than to its good-faith purchas- (i.e., laches) was the basis for the ultimate deci- er, because doing otherwise would encourage illicit sion against the claimant in Bakalar34 and also 30

RESTITUTION ROULETTE RESTITUTION trafficking in stolen art.” in a lawsuit brought by the Museum of Fine Arts, Boston, against a claimant concerning Kokoschka’s The basic U.S. rule in replevin or recovery cases is painting Two Nudes.35 In this case, like several that the claimant’s proof of ownership and theft others we have seen in the United States, the establishes wrongful possession by the holder. museum believed the claim of Nazi-era looting was There have been very few U.S. cases in which the weak, but the court, while appearing to agree with claimant sought to establish theft through a so- the museum on this point, nonetheless ruled in called “forced sale” compelled by the Nazis. One, the museum’s favor only on the basis of statute of however, was Vineberg v. Bissonnette, in which the limitations. court ruled that the Nazis had “stolen” the painting Girl from the Sabine Mountains because it was Another time-related issue is the doctrine of part of the gallery stock of a Jewish dealer in Ger- adverse or prescriptive possession. Under this many — Max Stern — who had been ordered to doctrine, after a period of years, a person who sell off his inventory.31 In another “forced sale” has wrongfully possessed property openly and case, a court ruled that a jury could possibly find notoriously may acquire good title to the prop- — based on the meager evidence presented and erty. In the U.S., the doctrine has been tradition- informed by the historical realities of Nazi-era ally limited to land ownership disputes, but some Germany — that a transfer of two Picassos was courts have been willing to apply it to art owner- made under duress and therefore void.32 The court ship disputes.36 In a case from New Orleans, the allowed the case to go forward, reasoning that a court found that the possessor of a 1910 painting jury might find that the owner of the paintings by Oskar Kokoschka acquired title by acquisitive gifted them to his wife, who was considered “Ary- prescription under Louisiana state law by virtue of an” under German law, because of threats and eco- openly and continuously possessing the painting nomic pressure he allegedly faced from the Nazi for well over ten years.37 The court did not find it government.33 The case settled, however, before controlling that the original owner allegedly sold trial. Although “forced sale” claims may possibly the painting under duress during the Nazi era.38 work in some U.S. courts, it is not a commonly- successful litigation avenue. 34 Bakalar v. Vavra, 819 F. Supp. 2d 293, 305 (S.D.N.Y. 2011). 35 Museum of Fine Arts, Boston v. Seger-Thomschitz, 623 F.3d 1, 8 29 Id. at 144-145 (“The tenuous interest of Switzerland … must yield (1st Cir. 2010). to the significantly greater interest of New York … in preventing the 36 Dunbar v. Seger-Thomschitz, 638 F. Supp. 2d 659, 663 (E.D. La. state from becoming a marketplace for stolen goods.”). 2009), aff’d, 615 F.3d 574 (5th Cir. 2010) (applying Louisiana law); 30 Sotheby’s Inc. v. Shene, No. 04 Civ. 10067(TPG), 2009 WL 762697 but see O’Keeffe v. Snyder, 83 N.J. 478, 497, 416 A.2d 862, 872 (1980) (S.D.N.Y. March 23, 2009). (holding that the statutes of limitation and the application of the discovery rule were more appropriate in determining ownership, 31 529 F. Supp. 2d 300, 307-08 (D.R.I. 2009), aff’d, 548 F.3d 50 (1st rather than the doctrine of adverse possession). Cir. 2008). 37 Dunbar, 638 F. Supp. 2d at 662-663. Louisiana state law is based 32 Schoeps v. Museum of Modern Art, 594 F. Supp. 2d 461, 466 on the Napoleonic Code, not Anglo-American common law, making it (S.D.N.Y. 2009). unique in this regard. 33 Id. 38 Id.

3 Guarding the Historical Guarding VOL. 16, No. VOL. Collections: A Journal for Museum and Museum for A Journal Collections: I find difficult it see to any distinc Vol. 10, no. 3, Summer 2014, pp. 349, 353. 349, pp. 2014, Summer 3, no. 10, Vol. that a good faiththat a good purchase 43 IFAR® JOURNAL IFAR® under choice of law principles, principles, law of choice under 159 U. PA. L. REV. PENNUMBRA 253 (2011), 253 (2011), PENNUMBRA REV. L. PA. 159 U. but that defense has that mostly defense failed.” but “Litigants have made the argument made have “Litigants UNCERTAINTY ABOUNDS UNCERTAINTY Jennifer Anglim Kreder, Essay, Essay, Anglim Kreder, Jennifer e.g., in Europe should be respected in the U.S. respected be in the should U.S. in Europe Stephen W. Clark, “Nazi Era Claims and Art Museums: The Art Museums: Era and Claims “Nazi Clark, W. Stephen See,

Record from the Nazi-Era Art Litigation Tumbling Toward the Toward LitigationTumbling Art the Nazi-Era from Record Court, Supreme 42 American Perspective,” 43 Here is own,Here my highly subjective status report restitutionon matters in the States. United Although there been have complaints claimants’by representatives, ciples generally little have in role no theor decision courtof cases. like think to We that museums, and perhaps even private owners, will only assert defens es based the on passage time of when they believe the claim Nazi-era of looting is weak and will not sodo when they believe the claim is well founded, thisbut is always not the case. least At promi one museumnent general attorney, counsel The to J. Paul Getty Trust, argues that museums should utilize statutes limitations of and laches defenses because they are “designed stabilize to property rights andencourage claims resolution of when evi dence and witnesses are readily more available.” http:// www.pennumbra.com/essays/04-2011/Kreder.pdf. Archives Professionals, Professionals, Archives tive pattern in the decided cases; each case has dif factsferent and there are variations in the controlling Nonetheless,state law. claimants’ representatives complain that the courts are favoring the holders, particularly because several cases been have decided against the claimants the on basis timeliness: of stat limitations of ute laches. or Museums see such no pattern. own my experience, From I see pattern no with regard rulings to statutes on limitations of or laches and can say that the courts considering Girl from the Sabine Mountains open-minded were in con at claim (unprecedented an unprecedented sidering least in the theft of U.S.) based sale. a forced on - - - - Even 39 Civil 88(2011) pp. 88(2011) pp. http://www.state.gov/p/eur/rls/ Dec. 13, 2010; 18 U.S.C.A. § 2314 (2013); § 2314 (2013); 18 U.S.C.A. 2010; 13, Dec. SOFT LAW filed I briefly assisted the Polish Ministry Washington University Law Review Law University Washington 40 We sometimes We the refer to Washington 41 United States v. One Julian Falat Painting Entitled “Off to the to “Off Entitled Painting Falat One Julian v. States United 18 U.S.C. § 2314-2315. 18 U.S.C. Terezin Declaration, June 30, 2009. 2009. 30, June Declaration, Terezin

possession can be challenged. The States United Department Homeland of Security used this law to seize and return Poland to two hunting scenes by Julian Fałat. Hunt” and One Julian Falat Painting Entitled “The Hunt,” “The Hunt,” Entitled Painting Falat and One Julian Hunt” (accessed 24 April 2015). April 24 or/126162.htm (accessed of Cultureof and Heritage in trying settle to these cases. In both,the possessors refused into enter to a reasonable compromise settlement agreement; in case one even refusing speak to with us. After a periodlong frustration, of the Ministry approached the Department U.S. Homeland of Security, which seized both paintings and returned them Poland, to leaving the possessors with nothing. 41 39 40 ernments and museums “facilitate to just and fair solutions with regard Nazi to confiscated and looted art.” At a PragueAt conference in 46 2009, countries re- affirmed the Washington Principles in adopting the Declaration,Terezin which renewed the call gov on feit stolen artworkfeit worth than more $5,000 that acrossmoves state lines purpose for sale. of One U.S. federalOne U.S. law that particularly deserves mention with regard recovering to Nazi-era looted artwork is the National Property Stolen Act, under which the federal government can seize and for Action No. 10 Civ 9291 10 Civ No. Action Jennifer Anglim Kreder, “Executive Weapons to Combat Infection Infection Combat to Weapons “Executive Anglim Kreder, Jennifer ofArt Marker,” the ing the Nazi era and pursue to “just and fair” solu Principles and Declaration the Terezin as soft law because the signatory countries agreed enact to not the provisions rather but into positive intended law, that these statements would encourage museums and others the apply to doctrines, particularly to publicize items that could changed have hands dur tions claims to based Nazi-era on looting. In the theseU.S., principles in are negotiations honored according the to good will the of participants, doing sobut is viewed as voluntary and the prin- 1353-1365, here 1356. here 1353-1365, The two American museum associations (AAM and still be said today. In 2014, a smaller auction house AAMD) appear to have turned their attention to in the U.S. listed for sale papers and photographs other issues and abandoned the field of Nazi-era art of a Holocaust survivor, apparently having failed looting. Standards for museums have not been clari- to check the material with the family. When chal- fied or updated since 2001,44 and financial resources lenged, the auction house withdrew the material for provenance research have not been provided to from sale and the balance of the story remains as museums that need the assistance.45 The Nazi-Era yet unfinished.48 Provenance Internet Portal (www.nepip.org) created Private owners and claimants, as well, have not fol-

RESTITUTION ROULETTE RESTITUTION by the AAM has been allowed to become outdated. lowed any particular pattern with regard to claims and settlements. Both are free to be as unreason- “… it is not surprising that we see able as they want, at their own peril. The pri- a wide variety of approaches and mary risk for each is, of course, loss of the object, resolutions. … The current situation perhaps coupled with negative publicity. Private can be called restitution roulette.” negotiations and settlements are generally unpub- licized, unless the settlement is revealed through As a result, although some of the largest, most an auction sale or public restitution. prominent and wealthiest museums have been able to make a sincere effort, for example by digitizing RESTITUTION ROULETTE records concerning their collections and posting When we take into account the multitude of laws them online,46 the same cannot be said of the governing Nazi-era art restitution in the U.S. and smaller and medium sized-museums. The art mar- the lack of any meaningful centralized guidance or ket follows a similar pattern. It was reported some leadership concerning claims, it is not surprising that time ago that only Sotheby’s, Christie’s and the we see a wide variety of approaches and resolutions. Dorotheum in Vienna take issues of Nazi-era art If we then include the variety of laws in European looting with sufficient seriousness.47 The same can countries and the way they differ from those in the 44 In 2001, AAM revised its 1998 Nazi-Era Provenance guidelines U.S., we move from a patchwork of approaches to a (http://www.aam-us.org/resources/ethics-standards-and-best-practices/ crazy quilt. The current situation can be called resti- collections-stewardship/objects-during-the-nazi-era). Also in 2001, AAMD supplemented its guidelines, adding a one-sentence Addendum: “It should tution roulette because the likely outcome of a claim be the goal of member museums to make full disclosure of the results of depends on so many factors other than whether the their ongoing provenance research on those works of art in their collections created before 1946, transferred after 1932 and before 1946, and which object was looted by the Nazis. Perhaps in a decen- were or could have been in continental Europe during that period, giving priority to European paintings and Judaica.” (https://aamd.org/standards- tralized democracy some variation in approaches and-practices.) AAMD also issued a position paper in 2007. (https://aamd. would be expected, however, the current situation is org/sites/default/files/document/Nazi-looted%20art_clean_06_2007.pdf.) In spite of these efforts and AAMD’s 2001 Addendum, neither AAM nor daunting for claimants and possessors alike. AAMD has provided for comprehensive accounting by museums or for systematic reporting to the public on museum compliance with guidelines, But my own view is that we in the United States although the AAMD has recently made some efforts in this regard, including creating an object registry of resolved claims. (https://aamd.org/ would benefit from clearer and more uniform object-registry/resolution-of-claims-for-nazi-era-cultural-assets/browse.) standards for Nazi-era art looting claims to help 45 AAM and AAMD also need to find ways to provide greater us approach negotiations and settlements in a well- financial support for provenance research at small and medium informed way. We need better mechanisms and sized museums. While some efforts are underway to train the next generation of provenance researchers, American museums need resources for collecting information on claims, so resources to hire researchers to study their collections, publicize the results and respond to claims. many of which never come to court. Is it too much to hope that AAM and AAMD might play a role in this? 46 “The American Art Collaborative (AAC) is a consortium of 14 museums in the U.S. committed to establishing a critical mass of LOD [Linked Open Data] on the subject of American Art.”

47 Yael I. Friedman, “The Road to Restitution,” ArtInfo, Financial 48 Jennifer Schuessler, “Survivor Who Hated the Spotlight,” The New Times, http://www.blouinartinfo.com/news/story/31924/the-road-to- York Times (Nov. 10, 2014) http://www.nytimes.com/2014/11/11/arts/ restitution (accessed 24 April 2014). survivor-who-hated-the-spotlight.html (accessed 7 March 2015). . . .