Table of Contents
Abstract ………………………………………………………………………… 1
Introduction ………………………………………………………………… 2
Research Statement …………………………………………………………. 3
A Review of the Literature …………………………………………………. 5
Legislative Historical Context …………………………………………. 5
Current Literature …………………………………………………………. 19
Methodology …………………………………………………………………………. 30
Case Studies …………………………………………………………………………. 32
Museum of Fine Arts in Boston, Kokoschka Case Study …………………. 32
Holocaust Claims Processing Office in New York: Klimt Case Study …… 35
New York Legal System: Modigliani Case Study ………………………… 39
Recommendations …………………………………………………………………. 42
Annotated Bibliography …………………………………………………………. 44
Figure A: Kokoschka …………………………………………………………. 57
Figure B: Klimt …………………………………………………………………. 58
Figure C: Modigliani …………………………………………………………. 59
References …………………………………………………………………………. 60
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Abstract
World War Ⅱ is one of the most researched topics in the field of history, with repercussions still impacting the international museum and art communities. Because the Nazis looted an estimated one-third of European art,1 works of art were scattered across Europe and
North America, appearing in both public museum collections and private collections.2
Internationally, restitution efforts were revived in the 1990s, arising from the field of Holocaust-
Era Art Restitution.3 This is known as Transitional Justice, addressing previous generations’ wrongs through legislative or non-legislative efforts. Since the early 1990s, museums have come to be at the center of legal battles, conferences, and national declarations as they confront the issue of looted art in their collections, specifically Holocaust-era. This study will explain the
United States’ legal, historical context for Holocaust-era art restitution and the difficulties with the current restitution efforts through litigation as well as analyze alternatives to this paradigm through three case studies of recent restitution efforts in the US.4 The goal of this study is to assist museum professionals by explaining the complications of litigation as a solution and evaluating two alternatives for those who are concerned about public trust, transitional justice,
1 The Rape of Europa, directed by Jon Shenk (2007; Venice, CA: Menemsha Films, 2008), DVD.
2 Hector Feliciano, The Lost Museum: The Nazi Conspiracy to Steal the World’s Greatest Works of Art (New York: Basic Books, 1997).
3 Michael Bazyler; Roger Alford, Holocaust Restitution: Perspectives on the Litigation and its Legacy (New York: NYU Press, 2005).
4 Multiple countries continue to wrestle with Looted-art Restitution, including Canada. For more information on Canadian Restitution efforts such as the Max Stern Restitution Project, see http://www.concordia.ca/arts/max-stern.html
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and the practice of high ethical standards regarding the restitution of works looted in connection with the events of World War Ⅱ.
Introduction
During World War Ⅱ and immediately afterwards, the American Commission for the
Protection and Salvage of Artistic and Historic Monuments in War Areas, colloquially known as
“The Monuments Men”, was charged with protecting and recovering cultural assets in Europe.5
The approximately 345 men and women worked to prevent the destruction of, track, locate, and eventually return stolen art and cultural artifacts when possible. Their work was unprecedented, and, despite limited funding and staffing, the Monuments Men returned more than 5 million artifacts and artwork to their countries of origin. This feat was instrumental to the rebuilding of cultural life in the devastated nations of Europe after 1945.6 Unfortunately, after the Monuments
Men were sent back to the US in 1951, the restitution of Holocaust-era art paused, with a few exceptions. Thousands of works of art without clear provenance were distributed to museums, due to a lack of provenance information, dearth of funds for cultural reconstruction, and the minimal monetary value or knowledge of these works of art. There was neither legislation nor literature in place to effectively facilitate restitution, nor would there be for another fifty years. Art restitution efforts continue to lag in terms of legislation and litigation.
This research fits into a larger conversation among museum professionals concerning the
5 Robert Edsel, The Monuments Men: Allied Heroes, Nazi Thieves, and the Greatest Treasure Hunt in History (New York: Center Street Publishing, 2009).
6 "The Heroes," The Monuments Men Foundation for the Preservation of Art, 2016, https://www.monumentsmenfoundation.org/the-heroes/the-monuments-men.
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reevaluation of deaccessioning policies, as well as the ethical and legal accountability of museums and private collections regarding Holocaust-era art restitution.
Research Statement and Significance
Leading up to and during World War II, the Nazis pillaged art from bank vaults, sacred spaces, and living room walls. The Nazis also raided entire museum collections in Europe and
Russia. What art they did not sell or save for officials, the soldiers destroyed for being what the
Nazis called “degenerate.”7 “Degenerate” art and artists did not fit the Nazi framework for aesthetic taste or definitions of fine art. The framework that was instead promoted focused on realism and historically Germanic themes, whereas any subject or medium that deviated from that definition of “traditional beauty” was deemed threating to the German people. The Nazis looted for the money, but they also stole cultural property as another way to dehumanize entire groups of people by damaging their collective identity.8 These acts of either destroying or stealing works of art were meant to declare that the current owners did not deserve the art they had. Nazi looting was an intentional seizure of property that foreshadowed and accompanied the destruction of Europe. Many of these works of art, called by Mastroberadino in 1997 “The Last
Prisoners of the Second World War,”9 are spread throughout the world in cultural institutions that the public holds in trust for their communities.
7 "The “Degenerate Art” Exhibit, 1937," National Library of Israel, 2012, http://web.nli.org.il/sites/NLI/English/collections/personalsites/Israel-Germany/World-War- 2/Pages/Degenerate-art.aspx
8 Jonathon Petropoulos, Art as Politics in the Third Reich (Chapel Hill: University of North Carolina Press, 1996).
9 Margaret M. Mastroberardino, “The Last Prisoners of World War II,” Pace International Law Review 9, no. 1 (1997): 315.
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This research is a continuation of decades of research concerning the ethics of the topic; however, it builds upon previous conclusions about the historical realities and legal limitations of restitution by discussing solutions to the established problem in the status quo. For example, the research recognizes the assumption that the artworks’ presence and history, often unknown or unrecognized, are a perpetuation of the dehumanization of the Jewish people by the Nazis.
Furthermore, this research is conducted under the assumption that the public’s enjoyment of stolen art, especially when legal heirs are seeking that part of their families’ history back, is both ethically compromised and contradictory to the role of museums in society as repositories of cultural material held in trust for its beneficiaries—the general public. This statement of the purpose of museums in society is in line with the Standards Regarding Public Trust and
Accountability published by the American Alliance of Museums (AAM), mainly: “The museum is a good steward of its resources held in the public trust”.10 In a denial of public trust and ethical collections management policies, works of art with uncertain provenance11 remain, and heirs must struggle to have their rightful inheritance returned to them. Existing research shows that litigation in the U.S. for art restitution includes numerous unnecessary roadblocks, as established by previous research, such as statutes of limitations, good faith purchasing, extreme cost, burden of proof, and deaccession policies that hinder the equitable transfer of property. This study builds upon the widely held assumption that despite numerous attempts to amend the litigation polices affecting art restitution in the U.S., there are still limitations to transitional justice which are
10 American Alliance of Museums, “Public Trust and Accountability Standards” Ethics, Standards and Professional Practices, (Washington, DC: AAM, 2000).
11Alexander Kaplan, “The Need for Statutory Protection From Seizure for Art Exhibitions: The Egon Schiele Seizures and the Implications for Major Museum Exhibitions,” Journal of Law and Policy 7 (1999).
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holding the law back from its full potential. Therefore, interdisciplinary and enforceable measures for pursuing justice and ensuring the means of return of the “last prisoners” of Nazi
Germany must be fully examined.
My project will analyze and compare three case studies of art restitution both with and without litigation. This comparison will reveal options for museum professionals with questionable collections as well as claimants seeking restitution. Specifically, I will analyze the restitution of Gustav Klimt’s, Woman in Feather (c. 1909)12 through the New York Holocaust
Claims Processing Office, the ongoing case of Amedeo Modigliani’s Seated Man with
Cane (1918)13 in the New York state legal system, and Oskar Kokoschka’s Two Nudes (Lovers)
191314 in the Museum of Fine Art in Boston. Through a comparison of these case studies I will identify gaps in the current legal system and make recommendations for museum professionals to improve and facilitate the process of restitution.
Literature Review
The literature review will explain the historical context of Holocaust-era art restitution in the US and will outline legislative action that has taken place. Furthermore, I will elaborate on problems in the current litigation standards. In pointing out the legal loopholes and blocks in the literature review and the alternatives in three case studies, the need for substitutes necessarily becomes clearer.
12 See Figure 1 13 See Figure 2 14 See Figure 3
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Legislative Historical Context
The field of Holocaust-era art restitution is relatively new and did not become a recognized area of public concern until the mid-1990s. The sudden emergence of public and academic interest stems from various causes such as prominent class action lawsuits concerning
Holocaust victims, Swiss banks, and insurance companies. US Ambassador to the United
Nations, Stuart Eizenstat cites reasons for the delay in addressing this issue, such as: “the end of the Cold War; a desire to attend to the unfinished business of World War II; the advanced age of the survivors; and a smaller world that makes multinational companies subject to foreign judicial scrutiny.”15 Additionally, he believes that there is now a higher moral standard for transitional justice.16 Other reasons include access to the internet and ease of research for non-historians, new generations seeking justice for a generation that was passing away, and influences from pop culture such as the movie Schindler’s List (1993). Before the litigation of Holocaust-looted art restitution, there was legislation in the US and internationally concerning looting that pre-date the World Wars. This legislative history is important to discuss because of its impact on the courts and litigation, but also because the historical progress is easier to follow for the sake of this study. These legal precedents are both international agreements that the US took part in, or specifically American legislation.
According to The Restitution of Holocaust Looted Art and Transitional Justice (2011) by
O’Donnell, discussed in depth later, the American Civil War Lieber Codes were written in 1863
15 Michael Bazyler; Roger Alford, Holocaust Restitution: Perspectives on the Litigation and its Legacy (New York, NY: NYU Press, 2005) 12. 16 Ibid., 13
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and should still impact legislation.17 These codes were instruction for conduct in the field, which is similar to other such legislation about looting that refines it to wartime. The Code confirmed sanctity of private property (Article 37), title to public property requisitioned during occupation to remain in abeyance, a suspension of ownership (Article 31), and necessity of receipts so that spoilage owners could obtain indemnity (Article 38).18 Most importantly, unauthorized destruction of property through pillaging and sacking were punishable by death (Article 44). The seriousness of restitution for these cases reflects the value of private property in America, which are still acknowledged today in capitalist societies that valued property-based rights (53). Thus, restitution disagreements take more urgency in countries like the US that privilege individual over collective property rights.
The Hague Convention of 1907 was an international agreement as discussed in Art Law:
A Concise Guide for Artists, Curators, and Art Educators (2016) by Michael Jones. Officially the Hague Convention Concerning the Laws and Customs of War on Land and Annexed
Regulations, forbade pillaging and confiscation of private property (Article 47).19 Included in the category of private property were institutions dedicated to religion, education, sciences, charity, and the arts’, thus, it was to be respected as private. Seizure of historic monuments was not punishable by death, but it was subject to legal consequences, and victims would be compensated
(Article 56). This convention differed from current legislation which relies on governments to promote restitution in good faith, as opposed to obligation.
17 O’Donnell, 49-80.
18 Ibid.
19 Michael Jones, Art Law: A Concise Guide for Artists, Curators, and Art Educators (New York: Rowman & Littlefield Publishers, 2016).
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In Nazi Germany, however, the Hague Convention that a previous government approved was both disregarded and inapplicable. In a speech at the US Holocaust Museum Memorial,
Judge Thomas Buergenthal explained that these protections and any other international human rights laws did not apply to a country’s own citizens; they only meant to protect a country from a foreign power.20 Because the Jews in Germany were German citizens, before the Nazi government denied them citizenship with the Nuremberg Laws in 1935, it was not considered an international human rights violation to rob and harm them. De-citizenship was a step towards the
Nazi goal of dehumanization of the Jewish people, and as Judge Buergenthal explains, Germany was lawful when it denied its citizens rights. Then once they were no longer German, or a citizen of any other country, their slaughter was not a breach of the Hague Convention. There was no concept of international rights, only citizens’ rights. Only a country could give its own citizens rights.
Nazi laws were put in place in order to steal assets such as art from Jewish families.
Between 1933 and 1939, over 400 laws were passed with the purpose of limiting the rights of
Jewish people to the point of the Final Solution.21 In the 1920s the Nazis began using the term
“Degenerate” art to refer to art that Hitler disliked on stylistic grounds, mainly Impressionist and
Modern art that leaned toward abstraction. His use of art for propaganda is well recorded and evaluated in Jonathon Petropoulous’s 1996 book, Art as Politics in the Third Reich. In 1935
Hitler said in a speech: "It is not the mission of art to wallow in filth for filth's sake, to paint the
20 Thomas Buergenthal, “International Law and the Holocaust” (speech, Washington DC, October 28, 2003), Joseph and Rebecca Meyerhoff Annual Lecture, https://www.ushmm.org/m/pdfs/Publication_OP_2003-10-28.pdf.
21 “Anti-Jewish Legislation in Prewar Germany.” United States Holocaust Memorial Museum. https://www.ushmm.org/wlc/en/article.php?ModuleId=10005681.
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human being only in a state of putrefaction, to draw cretins as symbols of motherhood, or to present deformed idiots as representatives of manly strength."22 His abhorrence of art that he associated with the Jewish people, no matter who the artist, might have been as strong as his admiration for art that he considered Aryan: traditional, realistically depicted landscapes and portraits. In 1937 he charged Adolf Ziegler, German painter and politician, to purge German museums of “degenerate” art. The Degenerate Art Exhibitions, first in 1937, are well known for their mockery and attempts at dehumanization and it displayed 600 seized works, although many have been destroyed.
The denial of German citizenship to Jews from the Nuremberg laws, as well as Hitler’s attempt to establish Germany as a capital in the art world and his personal taste in art on the art world at-large, meant that the Nazis would both randomly and purposefully loot Jewish homes of assets for works of art but also religious and cultural artifacts with significance in that community. Lynn H Nicholas’s monograph, The Rape of Europa: The Fate of Europe's
Treasures in the Third Reich and the Second World War (1994)23 is a chronological study of the systematic looting by Nazi Germany, starting a decade before World War Ⅱ. Beginning with their own citizens and then the countries they occupied, the Nazis captured, according to rough estimates by Nicholas and others, one third of Europe’s art; by some accounts 220,000 works.
Hitler had his own army unit dedicated to locating specific art he had on his list. The Holocaust
22 Jason Farago, “Degenerate Art: The Attack on Modern Art in Nazi Germany, 1937 review – What Hitler dismissed as 'filth',” The Guardian, March 13, 2014, https://www.theguardian.com/artanddesign/2014/mar/13/degenerate-art-attack-modern-art-nazi- germany-review-neue-galerie.
23 Lynn Nicholas, The Rape of Europa: The Fate of Europe’s Treasures in the Third Reich and the Second World War (New York: Penguin Random House, 1995).
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consisted of countless horrors and tragedies, with the destruction of culture and pillaging among them.
The Monuments and Fine Arts division of the United States Army was part of the Allied response to the looting. O’Donnell describes another Allied response through legislation, the
1943 Allied Declaration, also known as the London Declaration.24 Through this non-binding, inter-state co-operation, the Allied countries reserved all rights to declare any transfers of project, rights, and interests that were situated in occupied territory which belonged to persons of those territories. This Declaration was a message to the Axis powers that looting, including under the guise of legality that the Nazis used, such as forced sales, was not tolerated.25 The clear message was to neutral countries who were deeply involved in smuggling and laundering looted assets, namely Switzerland. Neutral countries were instructed to thwart any transfers of property from occupied countries. Because the Declaration was non-binding it had little power. But as a declaration of interstate agreement, it unified the Allies and made their intentions clear, if still difficult to enforce.
During the post-war period (1945-1959) the US implemented policies related to property rights in their occupation and denazification of Germany. The JCS Order 1067 provided for the
US Army’s confiscation of senior Nazis and Nazi organizations, and then the US Military
Government Law No 52 expanded those provisions to outside Germany as well. Essentially, it could block property that was purchased under duress, so a forced sale for less than a reasonable price. MG 52 could also take title to and manage any such properties. This Military Government
24 O’Donnell, 49-80.
25 Ibid.
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law led to the confiscation of art by the Allies and the diaspora of it throughout Europe, Asia, and America. Often, the art was passed to museums, and other times private collectors, but currently there are an estimated 100,00026 looted works still in museums from the approximately
220,000 stolen.
In 1995 the UNIDROIT Convention on the International Return of Stolen or Illegally
Exported Cultural Objects— “One-law” in French—was the first agreement to offer restitution for the looting of privately-owned property. According to Stephanie Cuba in Stop the Clock: The case to Suspend the Statute of Limitations on Claims for Nazi-looted Art (1999)27, this agreement and convention was broader than past agreements such as UNESCO because UNIDROIT extends to include individuals, so claimants do not have to rely on a country to support their claim. UNIDROIT prioritizes the rights of the original owner instead of the present possessor, although the present possessor is entitled to just compensation for practicing due diligence. This rule is the most detrimental to the illicit art trade. UNIDROIT is not effective for returning
Holocaust-looted art or the broader category of illicit art because a majority of countries did not ratify it. Cuba describes the 14-year road to completion of UNIDROIT and the convention itself as “highly virtuous, excellent in theory, but a disaster in practice” (479). The difficulty of applying international regulations, specifically for cultural protection, is a common theme in the history of art restitution.
26 Erin Blakemore, “Reclaiming Nazi-Looted Art Is About to Get Easier” Smithsonian Magazine, December 12, 2016 https://www.smithsonianmag.com/smart-news/new-law-will- make-it-easier-reclaim-nazi-looted-art-180961394/#gE9whbrMT3WZPTQK.99.
27 Stephanie Cuba. “Stop the Clock: The Case to Suspend the Statute of Limitations on Claims for Nazi-Looted Art,” Cardozo Arts and Entertainment Law Journal 17, no. 1. (1999): 447–489.
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A publicized and influential case settled in 1998 was Rosenberg v. Seattle Art Museum over a Matisse, L’Odalisque (1928), stolen from the famous Rosenberg collection in Paris by
Nazis. Despite Feliciano’s revealing book The Lost Museum: The Nazi Conspiracy to Steal the
World's Greatest Works of Art (1995), which announced the provenance of artwork from the
Seattle Art Museum that belonged to the Rosenberg family, the Museum waited for the family to sue them before taking any action.28 L’Odalisque came to the Seattle Art Museum in a donation from Seattle-based purchasers who allegedly were persuaded to purchase it from a New York dealer who faked its provenance.
The Rosenberg family sued the museum, and the court found that the dealer was required to defend against intentional tort, intentional wrongdoing. Although the court initially dismissed the museum’s fraud claim against the dealer because the museum lacked standing to assert it, the case was reinstated when the museum acquired assignments of rights from the donors’ family
(Rosenberg v. Seattle Art Museum, 124 F. Supp. 2d 1207, 1210–11 (W.D. Wash. 2000). The dealer and the museum later announced a settlement in which the dealer agreed to transfer either works of art from its holdings or cash equal to the current value of the Matisse. The dealer also agreed to pay the museum’s legal costs. As stated in the article “Artful Good Faith” (2012) by
Deborah DeMott, one of the reasons this case is so important in the history of art restitution is because it identifies the art dealer, the transactional intermediary, as liable. Dealers are not generic purchasers but have a responsibility as informed participants to acquire clear title. The
28 Hector Feliciano, The Lost Museum: The Nazi Conspiracy to Steal the World’s Greatest Works of Art (New York: Basic Books, 1997).
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dealers function as “gatekeepers”29 because they possess the expertise and ability to decline to deal with a problematic work. Therefore, dealers also have a responsibility to advise a purchaser.
This is applicable to non-purchasers as well. Museums have a responsibility to thoroughly vet donations because liability may extend to them as well. This case was monumental in legal history as encouragement of restitution.
Including the decision of Rosenberg vs Seattle Art Museum, in 1998 the world erupted with literature and non-binding legislation on Nazi-era art restitution. The US government enacted two statutes related to Holocaust-era property seizure: the Nazi War Crimes Disclosure
Act and Holocaust Victims Redress Act which called on governments to declassify all record related to Nazi crimes and to support efforts to return looted property. The US Department of
State and the US Holocaust Memorial Museum hosted the Washington Conference on Holocaust
Era Assets, a multi-day conference held in Washington DC about achieving just and fair resolution for Holocaust victims and their lawful heirs. The conference was attended by representatives of 40 countries and numerous non-profit organizations representing museums and human rights advocates. The Washington Principles were written based on the discussions from the conferences and signed by representatives from every country in attendance. The controversy over this document is that the Principles are suggestions and recommendations based on moral principles but have no legally binding power. Each country is encouraged to promote provenance research, identifying possible looted art, and publicizing its existence to the public. However, if a
29 Deborah DeMott, “Artful Good Faith: An Essay on Law, Custom, and Intermediaries in Art Markets” Duke Law Journal 62 (2012): 607-643.
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government does not support a “just and fair solution”30 (principle 8), there is no reprimand for not abiding by the Principles. Furthermore, these guidelines are not useful in a court of law. A case in Louisiana, Dunbar v. Seger-Thomschitz, decided in 2009 that the Principles do not have legally binding power.31 However, the conference inspired numerous discussions in academia and the media, and it was encouraging for victims who had not yet found justice to file their claims.
Most cases in the US from 1990 until the present were against museums and not private collectors partly because of the increased accessibility of collections that is not common with private collections. Therefore, it was necessary for the International Coalition of Museums to create codes of ethics concerning provenance and restitution.32 The code includes due diligence and provenance provisions to ensure that any object accepted by a museum has not been illegally acquired from its country of origin. The American Association of Museums (AAM, now the
American Alliance of Museums), as a member of ICOM, followed suit, with their own codes of ethics33, as did museum associations throughout Europe and America. The Association of Art
Museum Directors published their “Report of the AAMD Task Force on the Spoliation of Art
30 “The Washington Principles,” The Washington Conference on Holocaust Era Assets, Washington Conference Principles on Nazi-Confiscated Art, Washington, D.C., Dec. 3, 1998, http://www.state.gov/www/regions/eur/ holocaust/heacappen.pdf.
31 Dunbar v. Seger-Thomschitz, 615 F.3d 574, 575 (5th Cir. 2010), aff’g 638 F. Supp. 2d 659 (E.D. La. 2009).
32 International Council of Museums, “Code of ethics: ICOM code of ethics for museums”. (Paris, France: International Council of Museums, 2006).
33 American Alliance of Museums, “Public Trust and Accountability Standards”. Ethics, Standards and Professional Practices, (Washington, DC: AAM, 2000).
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during the Nazi/World War II Era (1933-1945)” which includes a statement of principles and guidelines for member museums.34 This document thoroughly lists what member museums should do if confronted with a claim, discover a work potentially has unethical provenance, or are offered a donation which has unclear provenance. In 2001 AAMD published an addendum which adds the importance of accessible provenance research to the list of recommendations for museum’s collections management. All the museum organization codes of ethics and procedures state that a just and fair solution should be reached; however, like the Washington Principles they are not legally binding. A museum will not lose accreditation if they do not comply; therefore, the codes of ethics have limited effectiveness.
Kaplan, in The Need for Statutory Protection from Seizure for Art Exhibitions: The Egon
Schiele Seizures and the Implications for Major Museum Exhibitions (1999), describes how a stolen work rejoins the art market, though tainted by theft, through a chain of ownership so that with each transfer the evidence of theft becomes harder to prove. Museums are often part of this chain of good faith purchasers, and the case study of this source is one such case which “jolted
New York Museums and lenders around the globe.”35
The Museum of Modern Art hosted a temporary travelling exhibit in 1997-98 featuring the works of Egon Schiele that contained two paintings from the Leopold Collection in Vienna that were allegedly looted. The New York County District Attorney issued a subpoena duces tecum to MOMA in 1997 for Portrait of Wally and Dead City III, an event that began eleven years of litigation. This case shocked the art community and caused many to fear and threaten
34 The Association of Art Museum Directors, “Report of the AAMD Task Force on the Spoliation of Art during the Nazi/World War II Era (1933-1945)”. (New York: AAMD, 1998).
35 Kaplan, 695.
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that European museums would no longer share their collections for fear of seizure. The subpoena appeared to defy Section 12.03 of the New York Arts and Cultural Affairs Law (ACAL) which has an Exemption from Seizure provision that prevents any seizure for any cause.36 The District
Attorney interpreted this to exclude seizure for criminal investigation. New York’s Supreme
Court reversed this, but after an appeal by the district attorney, it was reversed again while
MOMA continued to hold the art. In New York v. MOMA, the judge decided that the statute did not immunize loans from seizure in the instance of criminal investigation. At the time this source was written (1999) MOMA was preparing to appeal the ruling. This landmark case and its landmark rulings effected the museum community and not only the Leopold and MOMA.
Threats were made to withhold European exhibits and many sources, such as Kaplans’, argued for a comprehensive statutory protection from seizure.
One of the results of this case, considered a backlash by Jones in Art Law (2016), is the ability of American museums to now seek federal immunity from seizure by the State
Department for pieces with questionable provenance that are on exhibit.37 Victims can still recover art by filing suit, but it is another hurdle. In 2009, 13 years after litigation began, the two parties settled their dispute outside the courtroom and the Leopard Museum paid the Bondi heirs fair market value for Portrait of Wally.
In 2009 the Prague Holocaust Era Assets Conferences published the Terezín Declaration which summarized the conference that was attended by representatives from 44 countries. The
Declaration encourages participating nations to engage in “intensified systematic provenance
36 Ibid.
37 Michael Jones, Art Law: A Concise Guide for Artists, Curators, and Art Educators (New York: Rowman & Littlefield Publishers, 2016).
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research” and to attempt to “facilitate just and fair solutions with regard to Nazi-confiscated and looted art”38 within their legal systems. The Terezín Declaration is similar to the 1998
Washington Principles, and both are non-binding, which has been highly criticized. An important part of the Terezín Declaration is that it specifically calls upon both governmental and private organizations to resolve cases “on the facts and merits,” as opposed to legal technicalities such as statute of limitations and laches. This is an addition to the Washington Principles and similar to the Principles there is no specified enforcement of this Declaration.
In 2016 the US Congress unanimously passed The Holocaust Expropriated Art Recovery
Act of 2016 (HEAR), and President Obama signed it into a law. The law standardized the statues of limitations for reclaiming looted art. This act meant that the statute of limitations that explicitly forbade legal heirs of Holocaust-looted art from reclaiming art that had been missing for decades would no longer be a barrier to art restitution. The law has become known as the
Rediscovery Rule which issues that the statute of limitations is six years and it begins when the claimant “actually discovers” the stolen art. “Given that most of the looted art was taken from
Holocaust victims, that inability to reclaim prized family possessions adds insult to injury—and has long been thorny legal territory for those who want their possessions back.”39 This law is the most recent progress for Holocaust-looted art restitution.
On April 5, 2018 a New York judge became the first to accept an application of this rule to a Holocaust-looted art restitution case. He awarded a Holocaust victim’s heirs title of two
38 “The Terezín Declaration,” The Prague Conference on Holocaust Era Assets, (Terezín, June 30, 2009) https://www.state.gov/p/eur/rls/or/126162.htm.
39 Erin Blakemore, “Reclaiming Nazi-Looted Art Is About to Get Easier” Smithsonian Magazine, December 12, 2016, https://www.smithsonianmag.com/smart-news/new-law-will- make-it-easier-reclaim-nazi-looted-art-180961394/#gE9whbrMT3WZPTQK.99.
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works by Schiele, looted in 1941 and appearing in an art and design show in New York in
2015.40 This case is a landmark in the progression of art restitution. It sets a precedent that refutes previous cases which were denied on grounds of statute of limitations. The judge, Justice
Charles Ramos of the Supreme Court in Manhattan, sided with the claimant saying the HEAR
Act was “intended to apply to cases precisely like this one”. This case was immediately hailed by sources such as The New York Times as evidence that the HEAR Act and Rediscovery Rule would fix the problems of litigation for art restitution, however it is too soon to tell the lasting effects. Additionally, there are other roadblocks to transitional justice and tools used by defendants that still make litigation a last choice, such as extreme cost, burden of proof, and inability of civil courts to address issues of good-faith purchasers and two innocent parties.
Furthermore, this law has not been proven to apply retroactively. So the cases throughout
American history, such as the 13 cases dismissed from US courts on grounds of statutes of limitations as opposed to 1 decision to return the art as of 2013, will not be restituted.41 Further problems with the HEAR Act were discovered by the DC-based, non-profit Holocaust Art
Restitution Project (HARP). These include the limited definition of art by the Act, sunset provision which should be extended to 2055, preservation of the demand and refusal rule in New
York, laches defense, and the negative impact of the Foreign Cultural Exchange Jurisdictional
40 Steve Gorman, “New York Judge Awards Nazi-Looted Artworks to Holocaust Victim’s Heirs in Key Test Case,” Reuters, April 5, 2018.
41David J Rowland, “Nazi Looted Art Commissions After the 1998 Washington Conference: Comparing the European and American Experiences,” Kunst und Recht (2013): 83.
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Immunity Clarification Act’s inclusion in the HEAR Act.42 For those reasons HARP and the law firm representing them, Ciric Law Firm, opposed the HEAR Act.
The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act was passed the same day as the HEAR Act and despite being supported by AAMD, professionals in the field of
Art Restitution such as HARP and Ciric Law Firm opposed it. The Clarification Act was proposed by Senator Hatch (R-Utah) in order to encourage Europe and particularly Russia to loan artwork to US museums without fear of them being confiscated or taken to litigation. There is an exception for confiscation of suspected Holocaust-looted art, but the narrow definition creates a grey area making it overall ineffective. The AAMD’s support was questionable because of their previous support for provenance research and restitution, and HARP presented evidence that Russian museums such as the Hermitage Museum influenced their decision. This law has encouraged international loans and large exhibitions but was detrimental to the history of legislation of Holocaust-looted art restitution because it allows artwork with questionable provenance to be loaned to the U.S. without investigation.
Current Literature
The shortcomings of litigation to address Holocaust-era art restitution include good-faith purchasers, technical defenses such as until 2016 the statute of limitations, and more recently
Dormant Foreign Affairs Preemption, and burden of proof. High cost is also a deterrent of litigation which prevents justice, while class action lawsuits are not applicable in these unique cases to reduce expenses. Furthermore, sources have noted that the urgency to repatriate is not
42 Marc Masurovsky, “The American museums, the US Senate and the art market vs. Claimants,” Plundered Art, June 14, 2016.
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active in US and Canadian museums who are more inclined to deny association and responsibility because of greater distance as compared to European museums.43 The increased distance and denial of responsibility for atrocities of the Second World War is seen in what the
World Jewish Council described as “a troubling lack of shame”.44 Furthermore, US museums are primarily private, as opposed to European museums; which are generally public . Therefore, the
Federal, State, and local governments have limited influence to encourage restitution.
A good faith purchaser, as defined in Kaplan’s The Need for Statutory Protection from
Seizure for Art Exhibitions: The Egon Schiele Seizures and the Implications for Major Museum
Exhibitions (1999) is “one who buys without notice of circumstance which would put a person of ordinary prudence on inquiry as to the title, or as to an impediment on the title, of the seller”.45
Courts determine if a buyer is a good faith purchaser based on whether a reasonable person would have had doubts regarding the seller’s capacity to transfer property rights. If so, then the courts determine if the purchaser asked about good title and the seller’s ability to pass it to them.
Good title refers to title which is free of “defects and litigation and hence may be transferred to another”46 Therefore, if the purchaser did not reasonably inquire, to the discretion of the courts, into the provenance of the sale, then they are not a good faith purchaser but rather an accomplice.
43 Lawrence M Kaye, “The Restitution of Nazi-Looted Art and Other Cultural Property: Have we Gone Too Far or Not Far Enough?” New German Critique 130, no. 1 (February 2017): 44.
44 Lauder.
45 Kaplan, 692.
46 Ibid., 693.
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Jennifer Anglim Kreder was a litigation associate who worked on art disputes and intergovernmental Holocaust negotiations and litigation before becoming a professor of Art Law at Northern Kentucky University. She has written numerous articles on this topic including “The
New Battleground of Museum Ethics and Holocaust-Era Claims: Technicalities Trumping
Justice or Responsible Stewardship for the Public Trust?” Oregon Law Review (2009).47 Kreder establishes that the trend in the art world is for current holders of Holocaust looted art, including museums in the US and Germany, to file suit to quiet title first and raise technical defenses. In
2006 the Toledo Museum of Art was the first museum to initiate litigation to quiet title, and they did so because they were facing demands for Street Scene in Tahiti from a Holocaust victim, the estate of Ms. Nathan. The museum won on the grounds of statute of limitations, which is four years in Ohio. The courts applied the discovery rule which means that the statute of limitations starts when there is reasonable knowledge by the claimant and the correct institution to sue, and the courts claimed that since the Street Scene in Tahiti was displayed in the Toledo Museum of
Art since 1939 with acknowledgement of its previous ownership, time had run out. An almost identical case was filed that same year by the Detroit Institute of Art to clear the title of van
Gogh’s The Diggers from the same estate of Ms. Nathan.48 The outcome was the same, the museum won and received title for the painting on grounds of Michigan's 3-year statute of limitations running out. However, the major difference is that Michigan’s court ruled that the discovery rule would not apply, and this meant that future restitution cases would be harder to
47 New Battleground of Museum Ethics and Holocaust Era Claims: Technicalities Trumping Justice or Responsible Stewardship for the Public Trust? Oregon Law Review, Vol. 88, No. 1 (2009) 37.
48 Detroit Inst. of Arts v. Ullin, No. 06-10333, 2007 WL 1016996, at *1 (E.D. Mich. Mar. 31, 2007).
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prove in Michigan than in Ohio. While the HEAR Act of 2016 is intended to prevent outcomes like this, these cases still play a major role in litigation history and HEAR did not retroactively affect their outcomes.
In response to Kreder’s writing and other commentary condemning the acts of museums fighting restitution in courts, Simon J. Frankel and Ethan Forrest wrote Museums' Initiation of
Declaratory Judgment Actions and Assertion of Statutes of Limitations in Response to Nazi-Era
Art Restitution Claims - A Defense (2013) which argues that the blanket solution to return all art with gaps in its provenance is a betrayal of the public’s trust.49 This source is importance because it highlights the different view in a way that is not anti-restitution, but careful restitution and restitution for the right reasons. The sources claim that museums have fiduciary obligations which private individuals who are also good faith purchasers do not have. Museums have both a duty to take all reasonable steps to protect their collections and an ethical obligation to claims made for title of art that has been in the collection for a long period of time. The source also emphasizes that museums must follow their codes of ethics and take all claims seriously, investigating them and responding fairly. Part of that fairness is that museums, after diligent research, may conclude that a claim does not have merit, so the museum should have the title and therefore there is no legal or ethical bar to museums initiating litigation to quiet title to works.50
Similarly, a museum does and should have the right to limit costly and long legal battles by
49 Simon Frankel and Ethan Forrest, “Museums' Initiation of Declaratory Judgment Actions and Assertion of Statutes of Limitations in Response to Nazi-Era Art Restitution Claims— A Defense,” DePaul Journal of Art, Technology & Intellectual Property Law 23, No. 2, (2013).
50 Ibid.
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invoking statute of limitations when appropriate to avoid draining their limited funds for litigation.
A New York Times article published in 2013, “Museums Faulted on Restitution of Nazi-
Looted Art” also claims museums have backtracked on the commitments made with the
Washington Principles.51 Namely instead of evaluating claims based on merit, they use technicalities to avoid restitution. Another fault is the debatably purposeful lack of accessibility to provenance research. When museums research and evaluate a claim like the Museum of Fine
Arts in Boston in 2013, they do not share this research or allow it to be peer reviewed, and museums decide a claims merit on their own. Part of the problem, however, is that the legal system is not suited to properly resolve restitution cases. This source claims that in order to avoid litigation, the US should create an independent mediation board, as several European countries have. However, advisory panels are not free of fault either, and I believe it is unlikely that the US will create a successful panel because unlike in Europe, many American museums are private as opposed to government-run, so mandating restitution is more difficult. The specific reactions of museums are mixed, and while some progress has been made, the overall trend as reported in
2013 was protectionist and a denial of the responsibilities of the Washington Principles. The author also discusses the utilitarian idea that a museum's duty to display art for the public is more important than restitution because the author interprets public trust through a protectionist lens.
Building on this article and in response to the Terezín Declaration, Foulkes wrote The Art of Atonement: How Mandated Transparency Can Help Return Masterpieces Lost During World
51 Patricia Cohen, “Museums Faulted on Restitution of Nazi-Looted Art,” The New York Times, June 30, 2013, https://www.nytimes.com/2013/07/01/arts/design/museums-faulted-on- efforts-to-return-art-looted-by-nazis.html.
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War Two (2015), which claims that the two most recent and influential art law conferences,
Washington and Prague, had great ideas, but since the Principles lacked any authority, all the decisions they made have become merely suggestions.52 Litigation is unsuccessful in participating in cases outside of their jurisdiction, and also are not required to follow these international guidelines, despite the US federal government instigating the Conferences. Foulkes differs from the initial optimism of these Conferences but is echoed by other writers such as
Jennifer Kreder and Bert Demarsin. A partial solution he supports is to encourage art restitution by making one of the conference’s main decisions, transparency of collections and art provenance, mandated and enforced. The article used current art cases as examples of how the proposed solution would expedite the restitution process. The Gurlitt case, a discovery in 2012 of
1,406 works of art in the small Munich apartment of Cornelius Gurlitt (1932-2014) that were reportedly looted during World War Ⅱ, and the governmental cover up of the initial discovery, lasted almost two years until a German tabloid released the story. This case is used in the author’s examples of the lack of effectiveness of the Principles. He claims that the government had a moral imperative to make information available to searching families, but this failure is not the government’s fault on a legal level, because of the non-binding nature of the Washington
Principles.
Similarly, Alyssa Bickford wrote Nazi-Looted Art: Preserving A Legacy (2017) which focuses on the restitution litigation and eventual settlement of the 2014 case of Meyer v
University of Oklahoma. This source highlights the lack of consistency in this area of the law and
52 Lucia Foulkes, “The Art of Atonement: How Mandated Transparency Can Help Return Masterpieces Lost During World War II,” Boston College International and Comparative Law Review 38, no. 305 (2015), http://lawdigitalcommons.bc.edu/iclr/vol38/iss2/6.
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the necessity of enforced guidelines for these cases.53 However, because restitution cases often come down to a conflict of interest from "two innocents", heirs of Holocaust victims and good- faith possessors, they must be settled in a case-by-case basis. The AAM created Standards, and the AAMD created Guidelines, and the Washington Principles also offer voluntary recommendations for Nazi-looted art claims, but there is no enforcement to encourage museums, like the University of Oklahoma Fred Jones Jr. Museum of Art, to follow the rules. The author argues that a loss of accreditation in either organization does not have a negative impact on a museum's ability to be successful, therefore it was not leverage in this case. Instead, the author's recommendation for future cases, because of this case, is to mandate mediation and negotiation.
Another technical defense that has been used to prevent restitution is Dormant Foreign
Affairs Preemption, as discussed in Mikka Gee Conway’s Dormant Foreign Affairs Preemption and Von Saher v. Norton Simon Museum: Complicating the Just and Fair solution to Holocaust-
Era Art Claims (2010).54 This source argues that the doctrine should not be used to invalidate state legislation that facilitates existing claims for the recovery of Holocaust-era assets, unless that legislation clearly conflicts the policy of the federal government. In the Norton Museum case however, restitution did not conflict with the federal government’s policy. Rather, it addressed the principles of the Washington Conference, and it also did not compromise US government interest in foreign affairs. States and local governments constantly interact with
53 Alyssa R. Bickford, “Nazi-Looted Art: Preserving a Legacy,” Case Western Reserve Journal of International Law 49, no. 115 (2017), https://scholarlycommons.law.case.edu/jil/vol49/iss1/9.
54 Mikka Gee Conway, “Dormant Foreign Affairs Preemption and Von Saher v. Norton Simon Museum: Complicating the Just and Fair Solution to Holocaust-Era Art Claims,” Law & Inequality: A Journal of Theory and Practice 28, no. 2 (2010): 373-405.
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foreign governments, and while the author agrees that the federal government has the right to preempt interactions, in this case it is unnecessary to dismiss the case in that context as opposed to the merits of the claim. The case of Von Saher v. Norton Simon Museum did not end there, however. After Conway’s source was published the litigation continued between different courts through appeals and denials for six more years. This highlights the extreme expense of pursuing litigation because of the time it takes to decide if the courts will even hear the case based on merits.
Another roadblock for litigation is the burden of proof that is placed on the defendant. A precedent was set by previous litigation concerning Nazi gold which established that proving a work was sold under duress, as opposed to the museum or possessor being required to prove it was sold in good-faith. This precedent is a benefit to museums and current possessors because of the difficulty of provenance research for individuals to conduct, as well as the pressure to prove it. It is also an unreasonable burden because, as established in the London Declaration in 1943, any transaction between the Nazis must be assumed to be forced.55 The low prices these works were sold for, deeply below market value, should also be proof; however the argument is that prices were low because of a recession and the lower worth of art, as opposed to when they were sold to museums.56
Lastly, a point that the Lawrence M. Kaye makes in The Restitution of Nazi-Looted Art and Other Cultural Property: Have we Gone too Far or Not Far Enough (2017) is that US and
Canadian museums do not respond with the same urgency as European museums because of a
55 O’Donnell, 49-80.
56 Marilyn Henry, “Recovering Looted Art: A Rich Man’s Game,” Jerusalem Post, Apr. 3, 1998.
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denial of responsibility. US museums are more likely to defend their collections in court instead of seeking mediation or expressing regret for unethical collections because, Kaye argues, there is so much distance in space and time and these museums feel they have no obligation to help correct the wrongs of the Nazi past. This is particularly understandable in light of sources about the challenges of good faith purchasing and sources that claim both museums and claimants are innocents in the court. This author echoes past authors like Andrew Decker’s A Legacy of Shame
(1983)57 specifically about Austria’s denial of wrong doing and continuation of protecting looted assets. This source contributes to the idea that there is a “troubling lack of shame”58 about the events of the Holocaust, including the looting and denial of physical assets. The proper way to address these past issues is through acknowledgment and finalized restitution of assets.
The legal difficulties are considerable, and so there are many articles and recommendations upon which I can readily build and improve. A main difference among these sources is the specific problems they seek to address and the extent to which they want to change the judicial paradigm. The Restitution of Holocaust Looted Art and Transitional Justice: The
Perfect Storm or the Raft of the Medusa? by Thérèse O’Donnell examines restitution in the context of transitional justice.59 She claims that the law’s role must be reimagined out of the context of adversaries because it is restricting restitution and harming the reconciliation process of transitional justice. Transitional justice will be assumed as a basis for the necessity of restitution in my paper and the debates concerning it are outside the scope of my study. It is
57 Andrew Decker, “A Legacy of Shame,”Artnews, December, 1984, http://www.artnews.com/2007/11/01/top-ten-artnews-stories-making-a-difference/.
58 Lauder.
59 O’Donnell, 49-80.
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important for the legitimacy of successor societies60 that they take responsibility for past wrongs and act on collective guilt. The Nazis used the looting to dehumanize their victims, therefore restitution is more than a luxury for ethically-minded museum professionals; it is a necessity for the sake of human dignity. The legal landscape is at greater fault, although O’Donnell believes in its “untapped potential to be a more effective handmaid of reconciliation.”61 The specific legal pothole discussed is inconsistency of the courts. Both statute of limitations applications and rulings on good-faith purchasing are varied across jurisprudences. Her solutions include inter- disciplinary models such as the United Kingdom’s Spoliation Advisory Council (SAP) and the
New York Holocaust Claims Processing Office. These recommendations were made when these organizations were still young; therefore, I will consider whether they lived up to expectations in my recommendations, though the idea of inter-disciplinary solutions can be applied to other organizations as well.
The Stolen Museum: Have United States Art Museums Become Inadvertent Fences for
Stolen Art Works Looted by the Nazis in World War II by Barbra Tyler in 1999 clearly outlines some of the specific problems in this restitution process with case studies and then submits her recommendations.62 My work will follow this format, but it will focus on issues she does not fully address. First, plaintiffs in a restitution case, the survivors of the Holocaust or heirs, must
60 Elazar Barkan, The Guilt of Nations: Restitution and Negotiating Historical Injustices (Baltimore: John Hopkins University Press, 2000).
61 Thérèse O’Donnell “The Restitution of Holocaust Looted Art and Transitional Justice: The Perfect Storm or the Raft of the Medusa?” The European Journal of International Law 11, no. 1 (2001): 49-80.
62 Barbara Tyler, “The Stolen Museum: Have United States Art Museums Become Inadvertent Fences for Stolen Art Works Looted by the Nazis in World War II” Rutgers Law Journal 30 (1999).
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financially fend for themselves because experts say that beginning the process can easily cost
$100,000 and lawyers recommend that claimants should give up unless the art is worth 3 million dollars.63 Furthermore, public museums or institutions that are forced to decide must keep public relations in mind, though their prestige has been used as a tool to weather the storm, as has their justifiable claim to protect their collections held in the public trust. Additionally, the costs to museums is a sacrifice of public trust, valuable work, and a great deal of time and resources towards provenance research. Tyler recommends that the law still be used as it is necessary for the justice process, but it must be modified “to reject the due diligence rule for replevin.”64
Currently the plaintiff bears the burden of proof regarding whether previous owners exercised due diligence in looking for their art, despite these cases having aged fifty years. The modification insists that stolen goods can never have good title because the thief did not have title and therefore cannot pass it, the doctrine of bona fide purchaser, no matter how many hands it has passed or innocence of current owners. While modifying this, Tyler also analyzes the efforts of Congress, the AAMD, and Art Recovery of the World Jewish Congress to seek solutions. Her belief is that this art must be returned and that there is a way to do it, but it cannot rely on voluntary efforts.
Many initial recommendations included a need for the international community to take action and support conferences and coalitions which created Principles or Declarations that representatives from each country would sign. The idea gained ground, and many were optimistic about the “success” of the Washington Principles (1996) and the Terezín Declaration
63 Marilyn Henry, “Recovering Looted Art: A Rich Man’s Game,” Jerusalem Post, Apr. 3, 1998.
64 Tyler, 445.
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(2009). However, these were inevitably ineffective around the world because they lacked any accountability or binding elements; therefore, some attributed them to merely a publicity stunt of good intentions—virtue signaling. Let’s Not Talk About Terezín: Restitution of Nazi Era Looted
Art And The Tenuousness of Public International Law by Bert Demarsin in 2011 explains how these specifically failed in U.S. courts when used as a tool for restitution.65 The Court of Appeals for the Fifth Circuit affirmed the judgment of a lower court that the title of the looted Portrait of a Youth belongs to the current possessor because the Declaration did not preempt Louisiana’s law on prescriptive limitation. This example and others “render palpable the equivocality surrounding the administration of justice in the field of Nazi Era disputes.”66 The courts set an undeniable precedent that the Principles have no power and will not change the outcome of a lawsuit, and this is necessary to address because these principles are still cited, with no power behind them. The lack of enforcement and consistency is another failing of the courts, but also of the U.S. as an example to lead the international museum and art community. Public international law agreements, specifically as solutions in U.S. courts, are invalid as proved by this article as well as the distinction between moral obligations and legal duties. This source instead recommends that the U.S. government implement the Washington Principles into the existing framework, rather than host another “nonbinding recital of good intentions.”67 I will build on this
65 Bert Demarsin, “Let’s Not Talk About Terezín: Restitution of Nazi Era Looted Art and The Tenuousness of Public International Law,” Brooklyn Journal of International Law 37, no. 1 (2011): 118-185.
66 Ibid., 119.
67 Ibid., 120.
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argument and the depth of information reported in order to address the common assumptions of international law and communicate its ineffectiveness along with the failures of courts.
Methodology
In order to properly analyze solutions to the problems raised about restitution, the methodology of this thesis utilizes contrasting case studies of litigation, non-profit third- party mediator, and internal research to explore avenues to pursue restitution. Case study research requires selecting a few examples of the issue to be studied and then thoroughly reporting the specifics of those cases. Closely investigating a small number of cases allows for comprehensive analysis of the issue and respect for the nature of nuance. Case studies are particularly well-suited for limited resources for research and unique cases that vary substantially. Each restitution case is distinct, and precedents are limited, therefore case studies of the three options is suitable.
Choosing the cases therefore was a detailed and precise process because there are only three. In order to keep consistency across the cases, I chose all works of art that were painted or drawn between 1909 and 1918 by Jewish artists. They were owned by Jewish families in pre-
Nazi Europe and were looted, allegedly looted, or forced sale by the Nazi’s before or during
World War II. These cases all were resolved in the United States within the last 20 years.
These consistencies are in place to limit the scope of this research because the field of
Art Restitution is vast and spans centuries. The limitations tailors the research for American museum professionals and claimants because litigation and customs differ drastically in different regions, although they still influence each other. The United States was chosen as a primary region of study due to relevance, quantity and cases and quality of available research, and the
US’s role as a leader in policy. Specifically, the cities of New York and Boston were highlighted
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because of their reputation in the art and museum fields. The results of the cases were not a factor in whether they were chosen. Other consistencies are the styles of painting which would have been labeled “degenerate” according to the Nazi Party because of the non- realistic portraitures and Jewish artist. Furthermore, the artworks were consistently owned by a
Jewish family. Lost artwork is necessary to study as a factette of transitional justice.
The three options were chosen based on a review of research from the past twenty years.
While litigation is the oldest model, government-based advisory groups are also predated by similar groups in European countries. The last model, internal researcher, is a modern approach, but rare due to the cost and limited resources in museums. Each of these avenues struggle with cultural pushback, lack of documentation, and ethical dilemmas of good-faith purchasing and statues of limitations. They all strive, in theory, to find the truth of the provenance and to verify it beyond a doubt to ensure transitional justice and public trust.
Specifically, this study analyzes the documents produced by the interdisciplinary advisory councils of the New York Holocaust Claims Processing Office (HCPO) and the Kantor claim of a Klimt sketch, Lady with feather-boa (1909). To analyze the effects of the HEAR Act,
I analyze an ongoing legal case concerning Amedeo Modigliani’s Seated Man with Cane (1918).
These two case studies were chosen because they highlight the current process and a recent alternative; there are sufficient resources to discover details about each case and neither has been used in an in-depth case study yet. The third option, internal research, is demonstrated by the
Museum of Fine Arts in Boston, specifically a case of Oskar Kokoschka’s Two Nudes (Lovers)
(1913). This case contrasts the previous cases by eliminating the role of a third party.
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Case Studies
Museum of Fine Arts in Boston, Kokoschka Case Study
Oskar Kokoschka (1886-1980) a student of the Vienna Succession, painted Two Nudes
(Lovers) in c.1914. The painting, Figure A, is a self-portrait with Alma Mahler and symbolizes their stormy relationship. Kokoschka and the Vienna Succession were not exceptionally popular in Vienna, but they did have a few patrons such as Oskar Reichel. Reichel was a Jewish art collector and businessman in Vienna who amassed five Kokoschka paintings, including Two
Nudes (Lovers) (c. 1914). He had worked with Otto Kallir, a Jewish art dealer also in Vienna previously, and in 1923 Reichel consigned the five Kokoschka’s to Kallir and his gallery for sale through Kallir. In 1938 Kallir fled Vienna and turned the Neue Galerie over to his non-Jewish secretary who ran it during the war. For a short time Kallir lived in and operated a gallery in
France and then emigrated to New York later in 1939. In early 1939, Reichel had transferred ownership of this painting and the four others to Kallir. They were exhibited in his New York gallery, Galerie St. Etienne, between 1940 and 1945. Two of Reichel sons, Hans and Raymond, had escaped Europe previously and were living in different North and Central American countries. Their mother, Malvine, Oskar, and another son, Max, who had developmental disabilities, remained in Vienna.
Oskar Reichel’s business was forcibly closed after Kristallnacht in 1938, and in 1941 the family was made to sell financial assets which went into blocked accounts. The Jewish community banded together amid these events and supported each other through the confusion and tragedies. Max was deported and killed for his mental illness by the Nazi party, and Oskar died in 1943 from natural causes, possibly cancer. Malvine was sent to the Theresienstadt concentration camp in the fortress city of Terezin. This combination of ghetto and concentration
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camp was considered a “retirement settlement” with different, though still inhumane, treatment.
Its purpose was both extermination and propaganda as the location for elderly and prominent members of the Jewish community so that they would mislead the Jewish community about the
Final Solution. More than 88,000 prisoners were kept here, and Malvine numbers among the
23,000 survivors. She was able to join one of her sons in America after the war. Raymond and Malvine made many claims for their assets sold in 1941, but some claims, like her family house, she relinquished. Raymond was able to receive financial compensation from Austria. His application reveals his claims for certain paintings that were forced sale, but not the
Kokoschka’s. From 1940-1945 Kallir had displayed the Kokoschka’s in his gallery and in 1945 he sold Two Nudes (Lovers) in New York.
The Museum of Fine Arts in Boston accessioned the painting in 1973 when it was bequeathed from Sarah Reed Blodgett Platt. She left one Kokoschka she purchased from the
New York art market to her daughter, which would later be contested in Louisiana, and another to the Museum. Once in the Museum’s collection it became a hallmark of the space, well- published, and meticulously cared for. It was not marked for further study because there were no gaps in its provenance. The Musuem created the role of Provenance Curator, a completely unique position in the United States, which is endowed and therefore secure. The Provenance
Curator gets to veto purchases and donations based off her research into Nazi-era looting as well as looting in other areas of history. Her position is so unique in part that she does not just work with European paintings, but all departments. Requirements for this position include proficiency in many languages and art history as well as a love for research. An important aspect of her job is transparency. She publishes her research on the museum website and also advocates for the
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publication of all collections. When a claim comes to the museum, she is the internal researcher who evaluates its legitimacy and makes recommendations to the administration.
The claim for the Kokoschka came to her desk in March of 2007 from attorneys of
Claudia Seger-Thomschitz, an unrelated, sole heir of a son of Reichel. The lawyers claimed that the work was a forced sale because of the time and place of its sale. This launched a comprehensive investigation that included the Provenance Curator traveling to Europe to find paperwork from the sale. Many important factors of the Museum’s decision were discovered here. The sale from Reichel to Kallir was paid for in Swiss Francs, a useless form of currency in
Nazi controlled Austria. This information was befuddling, but the Provenance Curator realized that this was an attempt to make the sale between Kallir and Reichel appear inconspicuous to the
Nazi authorities. Furthermore, Kallir was in contact with both of Reichel’s sons and sent them money for the sale of those five Kokoschka paintings.
The family knew that Kallir had the paintings and continued to write with him, but never made a claim for the paintings or asked for their return. The family did however file for other works of art and assets lost in the war and the persecution. The provenance curator says that you can never fully know what happened or be positive on the provenance, but you can collect as much information as possible and take a small leap of faith.68 The goal is transparency, not unadulterated restitution.
The Boston Museum of Fine Arts shared their research and conclusion that the painting was not a forced sale with the claimant. There was no response from the claimant or her lawyers, so the Museum’s lawyers decided to sue for good title, a highly controversial decision because
68 Victoria Reed. Interview by Jillian Decker. Personal Interview. Boston, November 8, 2018.
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without all the provenance information, the MFA appeared to be profiting from unethically seized work. Furthermore, as the story was sensationalized it appeared that the Museum was on the offensive and not the defensive. Under the grounds that the statute of limitations in the state of Massachusetts, three years had run up without any claim from the Seger-Thomschitz. The clock started in 1998 when the information about the painting was made public. The museum filed an action in Federal Court, seeking a declaration that it could keep the painting. Seger-
Thomschitz countersued for conversion of property and other state-law torts. The 1st Circuit
Court of Appeals upheld a federal judge’s ruling that the counterclaims are barred by
Massachusetts’ three-year statute of limitations in 2010.
Holocaust Claims Processing Office in New York: Klimt Case Study
Since its founding in 1997, the Holocaust Claims Processing Office (HCPO) in New
York has advocated on behalf of Holocaust victims and their heirs. The HCPO staff is comprised of researchers, linguists, art historians, and lawyers and it serves as an intermediary between claimants and the current possessor of the asset. There is no fee or percentage of assets’ value due for the services of the HCPO and it is funded through the New York State Government. As of 2017 the HCPO has facilitated the return of $176 million in cash from bank accounts, insurance policies, as well as the resolution of additional cases involving more than 141 works of art.
HCPO’s work demonstrates that the return of Holocaust-era looted art to its rightful owners is possible without litigation in a just and fair way, without relying on a wealthy claimant. Justice should not be limited to only those who can afford it, this is why HCPO treats every case with due diligence no matter the artist, claimant, or monetary value. Since 1997 the
Office has been contacted by 5,083 individuals from 46 US states, and the District of Columbia
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plus 39 countries, which led to 13,000 inquiries and resulted in nearly 10,000 claims. The systematic process to resolving the high number of cases begins with assessing the validity of a claimant’s claim. HCPO staff use three types of research (1) genealogical; (2) archival research for prewar, wartime, and postwar records; and (3) the search for the missing objects, with provenance research as a key component of this effort. Documentation before, during, and after the war are primary tools that the HCPO uses in provenance research. HCPO staff are best suited to conduct this research because unlike many claimants, they have access to archives, databases, previous research, and linguistic skills. HCPO also has connections to historical and financial institutions, as well as governments around the world and this, along with their reputation, assist in the facilitation of claims and research. After adequate research, the HCPO advocates for the claimant to the present holder. The HCPO submits claim information and shares their research so that the process is transparent. The open provenance research method follows the recommendations of the Terezín Declaration. As a facilitator between claimant and possessor the
HCPO requests that the possessor research provenance as well and share any information they uncover. HCPO has found that mediating dialogue results in mutually beneficial outcomes.
Alice Kantor contacted the HCPO in 1997 for help researching and facilitating her family’s bank restitution claims with the Austrian government. She became familiar with the organization through working together on this claim. She told the organization about her research into recollecting the Kantor Collection. The claimant’s parents, Ingrid and Siegfried Kantor of
Vienna, Austria, had an art collection, much of which hung in Dr. Jur Siegfried Kantors’ law office or the family home. The Jewish family was targeted by the Gestapo and the collection— comprised of drawings, paintings, and engravings—was required to be evaluated by an appraiser,
Otto Reich of Vienna’s Academy of Fine Arts. The collection was included in the asset
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declaration in 1938 that all citizens of Germany and Austria of Jewish heritage were forced to submit. In 1941 the Gestapo confiscated the Kantor collection and sold parts of it at public auction. The Kantor family escaped to Brünn, Czechoslovakia after the Anschluss. From there they fled to France before immigrating to New York in May 1941. In New York, Dr. Kantor began to search for the family’s art collection. He wrote letters to Allied military officials and eventually the Austrian government, but he was unsuccessful in his quest for restitution. His daughter, Alice Kantor, took up his cause and sought the return of the family’s collection.
One of the works was a pencil drawing by Gustav Klimt, Lady with feather-boa (c. 1909) which measures 54 x 35 cm and was valuable to the Kantor’s (Figure B). The Klimt was auctioned off to the Albertina Museum in Vienna Austria in 1942. It remained there throughout
World War II and was not seized by the Allies afterwards. In 1971 Alice Kantor contacted the
Albertina and the Austrian government seeking restitution for Lady with feather-boa (c. 1909), but her claim was disputed. The Museum claimed that this work, while purchased at the same
1942 auction, was not the Klimt from her family because there was not proof, such as a photograph of the drawing. Plus, there were several versions of Klimt sketches of a woman with something around her neck. Therefore, it was claimed that the drawing in the Albertina could have been different than the one in the Kantor collection. Kantor persisted until 1974 when the claimant accepted a settlement which was a fraction of the drawing’s worth.
There are various reasons for the resistance of the Albertina and Austrian government which was standard during this time. The advent of the Washington Principles and the Austrian
Commission for Provenance Research in Austria (part of the Ministry of Arts and Culture) were a product and a source of a changing culture and narrative surrounding Holocaust-era looted art restitution. The 1998 Federal State Act on the Return of Cultural Objects from Austrian Federal
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Museums and Collections requires the Commission of Provenance Research to submit a yearly report of restitution recommendations. The Commission examines the research dossiers and makes a decision based off of that research. They then forward report these recommendations to the Ministry, current possessor, and claimant.
The HCPO became involved in researching and facilitating Alice Kantor’s renewed claim to the Commission in 1998. Further evidence was presented and more details of the 1942 auction which further justified a reopening of the case. They were present in negotiations and contacted the Ministry and Commission on Kantor’s behalf. The HCPO encourages restitution by conveying the narrative surrounding the piece through often limited documentation. This includes original accounts of a work by the family or receipts and further paperwork if the piece was lent to a show. In this case the HCPO was able to present the letters and work of Siegfried
Kantor and his diligence in seeking out his collection, followed by the heir’s continued diligence.
The HCPO also clarifies how the work was stolen and the context surrounding its looting. The
1999/2000 report from the Commission accounted the restitution of Lady with feather boa (c.
1909) to the heirs of Kantor. The Albertina responded to the recommendation and the Klimt was given to the Kantor heirs.
New York Legal System: Modigliani Case Study
The case over Amedeo Modigliani’s Seated Man with Cane (1918), Figure C, is being represented by the Mondex Corp., a Canadian-based law firm that specializes in Holocaust-era looted-art restitution. The founder, James Palmer, began investigating the painting’s provenance in 2009, after it failed to sell in a 2008 Sotheby’s auction due to provenance gaps and questions.
The corporation then contacted the now plaintiff, Philippe Maestricci, heir of the artworks’ original owner Oscar Stettiner. Maestricci is an Italian citizen, previously unaware of the
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connection, and he agreed for Mondex to research the case after they contacted him. This is contrary to how these cases are typically started; usually the descendants will contact a lawyer after their own research. However, it is the business model of the Mondex corporation, and is methodologically controversial. It is believed that Mondex charges 30-40% of the worth of the painting for their services.69
Seated Man with Cane (1918) has a confusing provenance, hence the difficulty of proving or disproving its current ownership. The plaintiff and defendant disagree all the way back to the starting point—the original owner. The plaintiff argues that his grandfather, Stettiner, owned the painting as part of his gallery and he loaned it to a gallery show. The defendant, however, claims that the piece was not owned by Stettiner and that even his friends claimed he just “held” the painting. The plaintiff claims that in 1930 the artwork was first publicly displayed in the Venice Biennale as painting number 35, a self-portrait of the artist, when it was loaned by Stettiner. Copies of photographs of this show provided by the plaintiff include the labeling of this painting as 35, although it would later be misidentified as 16. When Stettiner fled Paris to La
Force, France in November 1939, he left behind all of his collection. He attempted to retrieve his art by filing a civilian claim for it with the French government after the war for a “Modigliani portrait of a man” but was unsuccessful in finding it or other paintings from his collection. The greatest dispute in the legal courts stems from what the bailiff wrote during these proceedings.
He wrote “Self-portraits of Modigliani” which this painting is not. The claimant alleges the bailiff was mistaken, while the plaintiff says it was a different portrait. The court ruled
69 Kaminer, Michael. “James Palmer Gets Looted Art Back.” The Jewish Daily Forward. https://forward.com/schmooze/211944/james-palmer-gets-looted-art-back/ (accessed January 5, 2015).
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in Stettiner’s favor, but the current holder, Jean Van der Klip, claimed that he had already sold it to an American. Stettiner passed away in 1948.
The claimant says that a Nazi-appointed temporary administrator, Marcel Philippon, sold the painting at public auction, the Hotel Drouot, to John Van der Klip in 1944 and it was believed that the following sales were to Mr. Mariage eu de Saint Pierre, an American Officer, and finally Mr. J. Livengood. However, decedents of the Van der Klip family confirmed that the work actually remained in the family until the work was auctioned in 1996. In that auction the painting was sold to the International Art Center (IAC) by an auction house affiliated with
Christie’s Inc. of London where the catalogue displayed the incorrect provenance. This calls into question the role and responsibility of auction houses to properly vet artwork before reselling it.
The defendant’s family is the Nahmad family, a prominent dynasty of art collectors, though their connection to the painting and ownership of the IAC was not publicly confirmed until 2016 when the Panama Papers revealed new information. Previously, David Nahmad claimed that the artwork was owned solely by the IAC, but the Papers revealed IAC was an offshores-shell company for the family of powerful art collectors and dealers. A subpoena of two letters from Sotheby’s in April 2016 show Helly Nahmad Gallery, the family's private gallery, as the painting’s consignor which confirmed the accusation of their ownership. The painting was temporarily retrieved by Swiss authorities from a Geneva free port where it was being held by the defendant. The defendant’s lawyers argued that the painting cannot be sued for in New York courts when the painting is in Switzerland, the plaintiff an Italian citizen, and Mondex a
Canadian company. The New York State Supreme Court agreed in a 2015 ruling to dismiss the
Italian citizen’s case, so the plaintiff amended his claim to make another person in New York the plaintiff and to file suit on his behalf, George Gowen, the New York administrator of Stettiner’s
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estate. Therefore, the proceedings continued with a new plaintiff and the evidence of the Panama
Papers connection. 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.
The defendant, David Nahmad, denies the claim on Seated Man with Cane (1918) because of the original price of the work and the different names used for the painting. Essentially the defendant argues that this is a different painting than the work owned and stolen from Stettiner.
The price for the painting in the 1944 auction is too low, even for looted wartime art, and Stettiner claimed that the painting he sought was a self-portrait in his 1946 claim, and this painting is not a self-portrait of the artist. Additionally, there is no documentation that Stettiner even owned the painting, from the gallery or his own records. The family also supports their claim to their innocence because the painting has been loaned to the Jewish
Museum and many other museums, and the family is Jewish. David Nahmad’s brother,
Ezra Nahmad, 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.” Sources claim that the plaintiffs’ lawyer is using personal attacks of the Nahmad family dynasty instead of historical evidence to force a settlement from the art historians. Christie’s has offered to reimburse the Nahmad family, which may be in response to pressure for additional accountability for intermediaries.
In conclusion, the work is still amid stagnant court proceedings, but the complicated history is the most disputed issue of the cases and it is difficult for lawyers and judges to determine the truth of history in the courtroom.
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Recommendations
Each restitution case is nuanced, and paper trails are too inconsistent for a single solution to be possible. Instead of a single panacea, there are steps which a museum professional can take towards the goal of ethical collections management, public trust, and transitional justice which is fair to good-faith purchasers, descendants of the looting victims, and the public the museum is charged with serving. Transparency, such as was addressed in the Terezin Declaration and the
AMM Code of Ethics, is necessary and possible in established museums. A clear and honest relationship with the public is an important key to preserving the public’s trust and maintaining ethical collections management because the mission of these institutions is to serve their communities. Provenance research must be ongoing and claims readily accepted and evaluated, instead of the previous policy of only addressing gaps in a work of arts history. A transparent policy should extend beyond claims and research and encompass the whole of the institution and operations in order to be genuine. A museum will suffer from a lack of clarity, because small incidents can morph into large problems if addressed inadequately. This policy encompasses all research conducted, legal proceedings, and thorough explanations of actions taken. The consequences of misusing the public’s trust may seem like a platitude, but they are important to understand as the effects may last indefinitely and taint the good work of the museum for years to come. It is better for the museum to address their own shortcomings, than to be forced to react when flaws appear later. Likewise, unaddressed though calculated decisions, such as suing for good title, can be easily misunderstood if the museum does not preemptively explain their reasons for doing so. This is part of a larger goal of consistent communication with the public in order to build public trust.
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Another facet of ethical collections management is to reevaluate and update the goals of the institution. An objective of “protect the collection” has the potential to be defensive and distrustful of claims or questions from the public. It does not foster an environment the public considers welcoming and trustful, rather a secretive atmosphere is exclusionary and may make guests feel condescended or not an important part of the museum. On the other hand, the objective of “how can we best serve the public” is inclusive and denotes listening and responding to the present needs. Restitution and transparency can flourish in this environment and ethical collections management are a way to provide for the public. Similarly, research methods and goals must be reevaluated in order to stay germane. Because financial strain is a common barrier to provenance research in museum collections, collaboration with other institutions, use of resources such as the HCPO, and research of opportunities is a necessity for effective funding.
Different techniques are useful in research and restitution efforts. Negotiations, such as those mediated by the HCPO, are a positive step that use empathy and evidence to make a claim for restitution. According to my interview with a researcher at the HCPO, proving due diligence is the cornerstone of their argument. If they can prove that the claimant’s predecessors wanted the work back and took active steps to retrieve it, they can inspire the current holder to restitution. Another tactic is being creative with what restitution looks like depending on the needs and wishes of the two parties. This means that negotiations also include a variety of forms of solutions, like payment or shared ownership. The HCPO treats both sides as innocent parties, for usually both inherited this problem and it is not of their own doing. By avoiding vilifying the holder, the HCPO can facilitate a positive interaction and experience.
Litigation is often a last resort, but its current use as a catch-all is problematic because of the cost and barriers such as good-faith purchasing. The HEAR Act made positive changes by
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expanding the statute of limitations, but it was not enough because the majority of works that need restitution are not monetarily worth enough to justify the exuberant court fees. Museums that sue for good title set a negative precedent and risk damaging the public’s trust, but sometimes it is deemed necessary for the sake of minimizing legal costs and protecting the collection that the museum believes they have ethical claim to. However, museums must be transparent in their research and reasoning for suing. Without transparency the museum stands to risk the public trust, which they cannot afford to do.
Annotated Bibliography
Decker, Andrew. "A Legacy of Shame." ARTnews, December, 1984.
http://www.artnews.com/2007/11/01/top-ten-artnews-stories-making-a-difference/.
ARTnews claims that their coverage of Holocaust pillaged art, beginning with Decker’s
discoveries and reporting, lead to the international activism and concern for restitution.
Decker revealed that the Austrian government had made only the most halfhearted efforts
to return looted property to its ethical owners. A list of the artworks hidden in the
Mauerbach monastery had not even been published until 1959, and then it appeared in a
small newspaper not widely circulated outside of Austria. Very few legitimate claimants
saw the list, and if they did happen to see it and try to regain their lost property, they were
unlikely to succeed. Many claims were ignored or stonewalled. Decker also interview
Herbert Steiner, who was smuggled out of Austria as a child in 1938 and came back
alone as a teenager to find many of his families belongs and artwork in his neighbors’
houses, and slowly he saw those heirlooms traded for food or sold. Decker details the
legacy of shame that was hidden under denial immediately post-Holocaust and compares
it with Austria’s lack of acknowledgement and action over art restitution. As one of the
Decker 46
first pieces and containing an actual interview, this source makes my thesis more
detailed.
Deshmukh, M. and Elizabeth Simpson, “The Spoils of War. World War II and Its Aftermath:
The Loss, Reappearance and Recovery of Cultural Property.” German Studies Review 22,
no. 2 (1999): 322-381.
This source details the historical context of the emergence of worldwide interest in 1991,
claiming it was sparked when the Soviet Union was dissolved and there were a number of
goodwill agreements between Germany and the countries of the former USSR, as well as
the opening of official negotiations on repatriation. This historical context is important to
my research because the field is relatively new and the context in which it began, a spirit
of openness and progress in order to distance the world from the crimes of the Nazis, is
still relevant.
Edzel, R. and Brad Witter, The Monuments Men: Allied Heroes, Nazi Thieves and the Greatest
Treasure Hunt in History. New York: Hachette Book Group, 2007.
This book, and the following movie, is important because it brought new attention to the
field through its personalized approach to the initial restitution efforts. While some
criticize that the book heroizes men and women who were, by their own words, just
doing their job, the heroism resonates with many audiences as well. The first person
rotating narrative makes each of the characters memorable. The information from this
historical novel will be used in my introduction to provide personal details of the efforts
of the Monuments Men and Women.
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Eizenstat, Stuart. Imperfect Justice: Looted Assets, Slave Labor, and the Unfinished Business of
World War Ⅱ New York: Public Affairs, 2003.
Stuart Eizenstat was the US Ambassador to the European Union in 1995 which is when
he first started investigating the emerging field of Holocaust-looted Art Restitution. This
book is his recounting of the 1990s litigation as both a participant and an observer. He
discusses in vivid detail the class-action lawyers and senators as well as various other
players of the litigation. In conclusion after six-year Eizenstat and his team secured a
settlement of 8 billion for the victims, and the private sectors of Austria, France, and
Germany who profited from the Holocaust had to come to terms with their role as
collaborators and not victims. This book summarizes some of the first major victories and
precedents of this field. It will be helpful in my research because it is historical context
that contrasts with current litigation. While class action laws suits are not applicable to
looted art cases, there are still enough similarities to make this a precedent.
Franz. M, O’Donnell. N, “The Limbach Commission: What is it and will reforms make a
difference?” Apollo Magazine, September, 2016.
This article is a complication of two views on the Limbach Commission, the first was
written by the director of the Department for General and Administrative Matters,
German Lost Art Foundation, and head of the Administrative Office of the Advisory
Commission. The Limbach Commission was set up in Germany in 2003 to mediate art
restitution disputes. The author disagrees with the concern that the 13 recommendations
the Commission has given is too little and they are therefore ineffective, but, he argues,
11 of its recommendations have been accepted, and their process and decisions are
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transparent and published on the website. Nicholas O’Donnell on the other hand writes
about the other problems with the Limbach Commission including the lack of anyone of
Jewish heritage on the Commission. There is no standardized procedure or enforcement,
and German museums and even panelists on the Commission can simply decline to
appear at hearings. In comparison to the 13 cases, the Austrian Kunstruckgabebereit has
processed hundreds of claims in the same time. This source will assist my study because
it debates what is considered effective and provides two examples of European
commissions.
“Holocaust Restitution: Recovering Stolen Art.” Jewish Virtual Library, March, 2017.
http://www.jewishvirtuallibrary.org/recovering-stolen-art-from-the-holocaust
This source was published on the website for the Jewish Virtual Library under the
category of Holocaust Restitution and provides an overview of the history of art
restitution specifically from the lens of recovering stolen art. There are both international
and country specific organizations created to assist art restitution, and this source
provides an introduction to the main organizations. Holocaust Restitution predominantly
concerns members of the Jewish faith and their heirs; therefore, it is important that my
research includes sources from Jewish resources and perspectives. This source is helpful
in that regard, but also will prompt further research into the organizations it recommends
as alternative to litigation.
Huggler, J. “Nazi-looted art rescued by US ‘Monuments Men’ was ‘sold for profit’ by Bavarian
Government.” Smithsonian Institution, June, 2016.
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The Monuments Men were a unit of professional and amateur art historians who were
tasked with saving Europe’s cultural heritage, and this source claims that despite the
thousands of works of art recovered and returned to the Bavarian government, many were
kept in government buildings, sold at auction, or even given back to Nazis for bribes.
This information was discovered by an investigation by the Commission for Looted Art
in Euorpe, an NGO from London. This source will be used in my introduction an
anecdote of the fact that despite initial process, work still needs to be done.
Lawsky, Benjamin. “Holocaust Claims Processing Report.” New York State Department of
Financial Services. New York City, NY: Department of Financial Services, 2012.
This report was given to the Governor and Legislator of the state of New York in 2012 by
the Holocaust Claims Processing Office, through the Department of Financial Services.
This publication reports their progress and success since The HCPO’s creation in 1997
and their consistent mission. The HPCO has worked with agencies conducting Holocaust-
looted art restitution and by their count they have established relationships with almost
every organization with a similar focus. The communication helps HCPO expediate
returns, a duty which they believe is still needed because their claims have not decreased,
rather they increased. The report highlights certain cases that were of note, the negotiated
monetary worth of all achieved claims, and the expenses of the department. As of 2011
there were 6 staff members with expertise in linguistics, law, and art history.
Mastroberardino, Margaret. “The Last Prisoners of World War II” Pace Int'l L. Rev. 9, (1997):
315-348.
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This source is often cited because of its title, which has since been used to describe the
cultural property pillaged during World War II in other sources. Mastroberardino writes
about the background information concerning the general conflict over cultural property,
and then specifically about Russia and Germany pillaging during this period. This
culminates in the “Hidden Treasures Revealed” exhibit in the St. Petersburg Hermitage.
This exhibit was of 74 artworks that Soviet Russia had looted from Germany and kept
hidden in a museum. Even the Director did not know that works such as a Van Gogh
were in their collections. It examines the claims of the Gerstenberg and Krebs heirs and
discusses international cultural property rights of governments and private citizens.
Lastly Mastroberardino addresses and analyzes the treaties and historical precedents that
are applicable to the current international conflict. While this piece concerns primarily
Russian and Germany interaction and thus I cannot use it in my case studies, the
international implications are applicable.
Masurovsky, Marc. "The American Museums, the US Senate and the Art Market vs. Claimants."
Plundered Art, June 14, 2016. http://plundered-art.blogspot.com/2016/06/the-american-
museums-us-senate-and-art.html.
Masurovsky is the CEO of the Holocaust Art Restitution Project (HARP) based out of
Washington DC, and through this blog, Plundered Art, the Project reports on current
events in the art restitution field and offers advice and professional commentary. This
article is specifically addressing the 2016 HEAR Act and the limitations of this
legislation. With the Law Firm that represents them, Ciric LLP, they sent a letter to the
Members of the Senate Subcommittee on Oversight, Agency Action, Federal Rights and
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Federal Courts about loopholes and incomplete language in the bill. These problems
include the narrow definitions of art and of Nazi era, unreasonable sunset provisions,
laches defense that could still be invoked, overriding the Demand and Refusal rule in
New York, and the negative impact of the Foreign Cultural Exchange Jurisdictional
Immunity Clarification Act’s inclusion in the HEAR Act. HARP seeks to inform
members of the government as well as the general public of the importance of restitution.
O’Donnell, Nicholas. A Tragic Fate: Law and Ethics in the Battle Over Nazi-Looted Art.
London: Ankerwycke, 2017.
Attorney Nicholas O’Donnell wrote this as a systematic review of legislation and
litigation, and he catalogs the many moral and judicial reasons for the absurdity that
litigation is so difficult in the US. He argues that as laws regarding claims evolve in the
US they are getting more apt to dealing with restitution. O’Donnell also includes
discussions of landmark moments in art-restitution law, such as the London Declaration
in 1943, the Washington Conference on Holocaust-Era Assets in 1998, and the Holocaust
Expropriated Art Recovery Act of 2016. The US emerges in O’Donnell’s account as an
early, forceful leader in international art restitution despite the fact that its own laws and
precedents, can complicate heirs’ and victims’ options. This project will echo his timeline
of events but project an alternative future.
Petropolous, Jonathon. "Art Looting during the Third Reich: An Overview with
Recommendations for Further Research: Plenary Session on Nazi-Confiscated Art
Issues." Proceedings of Washington Conference on Holocaust Era Assets. Washington
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DC, 1998.
The Washington Conference was held in 1998 and hosted by the US Holocaust Memorial
Museum and the US State Department. It was designed to address the need for restitution
and encourage countries to advance assist provenance research and restitution efforts in
their own countries. Plenary Sessions are available to read, such as this introduction to
the conference by Dr. Jonathon Petropoulos, author of The Faustian Bargain and Art as
Politics. He spoke about the emergence and growth of the field and offered his
recommendations for conducting provenance research. Petropoulos recommends utilizing
the National Archives’ Art Looting Investigation Unit Reports to their full potential, and
also encourages research into the exact numbers of pillages art. He warns against using
over generalization concerning numbers, but instead hopes that further research can
create accurate accounts. The Washington Principles were not necessarily effective, but
the discussions of the Conference provide insight from professionals.
Reed, Victoria. “Due Diligence, Provenance Research, and the Acquisition Process at the
Museum
of Fine Arts, Boston.” DePaul J. Art, Tech. & Intell. Prop. L. 363, no. 23 (2013).
The author of this source is the curator in charge of provenance research at Boston’s
Museum of Fine Arts, and this source details the necessity of provenance research and
how to conduct it with examples from MFA. The source also comes to terms with the art
world’s, and MFA’s, history of failing to perform due diligence and the costs that has
resulted in. Included ethically questionable collections, MFA has had to go to court for
many cases, some of which have been won and some lost. That is expensive, but the costs
Decker 53
over losing art, rebuying, or shipping it away also cost the museum valuable resources
which should be directed towards it care and art and commitment to the public. Thorough
provenance research is more ethical as well as economical, and it has become much
easier because of an increased number of museums investigating and sharing results. This
is a contrast to previous procedures where curators collectively turned a blind eye to
questionable sources, like a private collection in Switzerland, or asked little to no
questions about provenance. This article assists my research because provenance research
and preventing looted art from entering museum collections in the first place is worth
investigating as part of a solution.
Ronald, Susan. Hitler's art thief: Hildebrand Gurlitt, the Nazis, and the looting of Europe's
Treasures. London, UK: St. Martin’s Press, 2015.
This book, published after the now famous discovery in Munich of the collection of
Cornelius Gurlitt, is a thorough review of the origin of the art work. Roland is the first
author to focus on the life of Hildebrand Gurlitt, Cornelius’ father, his mixed background
and the choices he made to save himself and his family as well as to prosper off the
misfortune of other. The most importance part of her analysis is the rationale behind the
choices he made. This man, half Jewish, was able to survive and deceive the Nazi Party
by joining them and using his talents to become Hitler’s own art dealer, while after the
war he deceived the Allies into believing he was persecuted because of his Jewish
heritage, which was true to an extent. This source is timely because of the revelation of
the Munich collection, but is also useful as an insight into the actual theft in Germany,
much like Petropoulos’ Art as Politics. In this thesis the source will provide context for
the present Gurrlit case and background for the extent of the looting.
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Ulph, James. “Dealing with UK Museum Collection: Law, Ethics and the Public/Private Divide.”
International Journal of Cultural Property 22 (2015): 177-204.
doi:10.1017/S094073911500016
This source concerns the United Kingdom’s laws; therefore, it is not specifically relevant
to my scope of the problems facing American museums, however the alternatives
suggested and analysis of a museum’s purpose versus public perception is important for
the premise of my study. This source is particularly concerned with the UK’s Museum
Association Code of Ethics and the differences between this and the laws. The concerns
over collections are primarily about deaccessioning and disposal because of public
perceptions of museums holding objects in public trust. The author proposes changes to
UK laws to make it consistent with public perception to encourage public trust and
therefore visitor numbers and donations. This conflict between what is perceived, and the
actual process and limitation is relevant to my research because of the public perception
vs litigation, as well as the example of UK museums responding to the public, because
publicity, public trust, and perception are influencers of museum administration and the
outcomes of art restitution litigation.
Walton, K.D. “Leave No Stone Unturned: The Search for Art Stolen by the Nazis and the
Legal Rules Governing Restitution of Stolen.” Fordham Intell. Prop. Media & Ent. L. J.
9, no. 27 (1999).
This source summarizes the Nazi’s Art Theft Program and examines the current issue in
the art world concerning those looted pieces in context of case law on art theft, US
Decker 55
legislation, and pertinent statutes. The author’s solution is that whenever confronted with
claimants over Nazi looted art, the blamed institution should either return the art, pay for
it, or acknowledge its provenance in the museum, whether that is decided by a court or
outside mediation of professional provenance researchers. While this source is slightly
too simplified and general regarding the problem at hand, it is a very fitting introduction
to the issue and the proposed solution will be discussed in my alternatives.
Weiss, L. “The Role of Museums in Sustaining the Illicit Trade in Cultural Property.” Cardezo
Arts and Entertainment, 25 (2007): 837-857.
This source claims the high demand by the arts market and often ignorance of provenance
is fueling criminality, and this also applies to Holocaust looted art. American museums
have responded to claims of Holocaust looted art in their collections, but only because
these insitutions had to due to pressure from the public, and their response has been slow
and drawn out. Since the Washington Principles (1998) and AAM and ICOM standards
(1999) only 12% of problematic artwork in American museums has been fully researched
and published. As slow as the US has been, Europe, according to the 2006 Claim
Conference, has been even slower. This source details a restitution case at the Brucke
Museum in Berlin of Ernest Ludwig Kirchner’s 1913 expressionist painting, the Berlin
Street Scene. “The passionate response and public criticism across Europe over the return
and eventual auction of this painting exemplifies the obstacles still facing original
owners” (873). Weiss writes that museums have the responsibility and ability to foster
social change and are the most appropriate institutions to do so.
“Woman In Gold.” [Motion picture on DVD]. United Kingdom: BBC Film. 2015.
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This film is a historical representation of the famous case over Portrait of Adele Block-
Bauer 1, by Gustav Klimt in 1907, commonly known as Woman in Gold. In 2004 the US
Supreme Court ruled that the Foreign Sovereign Immunities Act was not applicable to
Holocaust-looted art, therefore the plaintiff could sue the Austrian government and
museum for the return of the Portrait of Block-Bauer, her aunt, and five other works that
belonged to her family and were looted during the Holocaust. Over seven years this case
concerned who had title of the painting before the war, if the paintings were stolen, and if
the Austrian government could be sued. In 2004 an arbitration committee panel in Austria
ruled that the paintings belonged to the plaintiff, Maria Altmann, and the Austrian
government must relinquish them. This was a high-profile case and the major motion film
brought a great deal of attention to the field of art restitution. I will not be using this
example in my research because it would be overly repetitive and there are less known
cases that are important to discuss. Also, despite this case being the poster child for art
restitution cases, its favorable outcome is an exception to the rule and came as a shock to
many in Austria and in the art world. Therefore, it would be an outlier in my study, but it
is essential to understand this critical point in history while discussing art restitution.
Woodhead, C. “The Changing Tide of Title to Cultural Heritage Objects in UK Museums.”
International Journal of Cultural Property, 22 (2015): 229-257
doi:10.1017/S0940739115000181.
This source explains the concept and difficulties of title with a focus on being applicable
to museum and cultural professionals. This article is especially interesting because it
compares the concept of legal title and the emerging concept of “rightful owner” and a
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moral claim which often is discussed in relation to cases of Art Restitution Litigation.
The effectiveness of moral title claims has changed regarding Nazi related restitution, most likely because of the creation of the Spoliation Advisory Committee, but has not been successfully applied outside this area, such as with the Elgin Marbles. The author analyses the connection between legal and moral title and argues the excessive use of moral title could have negatives impacts in the future. While this article was written in and specifically for the United Kingdom, it often cites international rules and efforts which apply to institutions outside of the United Kingdom, such as the International
Coalition of Museums (ICOM), and its Code of Ethics.
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Figure 1
Oscar Kokoschka Two Nudes (Lovers) c. 1914 Oil on canvas Museum of Fine Arts, Boston
Decker 59
Figure 2
Gustav Klimt Lady with Feather-Boa c.1909 Pencil on paper
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Figure 3
Amedeo Modigliani Seated Man with Cane 1918 Oil on Canvas
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References
“Anti-Jewish Legislation in Prewar Germany.” United States Holocaust Memorial Museum.
Last Modified n.d. https://www.ushmm.org/wlc/en/article.php?ModuleId=10005681.
Barkan, Elazar. The Guilt of Nations: Restitution and Negotiating Historical Injustices
Baltimore: John Hopkins University Press, 2000.
Bazyler, Michael and Roger Alford. Holocaust Restitution: Perspectives on the Litigation and its
Legacy. New York: NYU Press, 2005.
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