A new piece at the Art Newspaper reflects on the importance of the Portrait of Wally case. Wally was seized in 1998 by customs officials on the theory that it was stolen property when imported into the U.S. The painting sat in a warehouse for 12 years, until a settlement returned the painting to Vienna in 2010 and a payment to Lea Bondi's heirs was made. I recall well the citywide celebrations in the Austrian capital when the painting returned; banners on lampposts proclaimed Bildnis Wally kehrt zurück—Portrait of Wally returns!
In reviewing the post and thinking about the case, however, a contrarian thought sprang to mind. That is, although Wally was the event that jolted restitution litigation into the public sphere, what real difference did the case make, other than perhaps unintentionally making it harder to recover disputed artworks?
First, Wally herself was seized on suspicion of a customs law violation. Notwithstanding the recent inexplicable decision by Italian officials not to seek Immunity from Seizure Act (22 U.S.C. § 2459) protection for Christ Carrying the Cross Dragged by a Rogue, recently seized under the same theory that Wally was, holding off on loans into the United States until immunity from seizure has been granted is now standard practice—because of Wally.
As a result, what other changes did the case bring about? Perhaps Maria Altmann had the courage to start her case against Austria for the Klimt Portrait of Adele Bloch-Bauer because of the case. And, without question, the Supreme Court decision that her case spawned threw open the courthouse doors to Foreign Sovereign Immunity Act (FSIA) litigants. But who among them has succeeded? Austria settled with Altmann ; other claimants are increasingly rebuffed by statutes of limitations. The increasingly expansive interpretation of FSIA, as in Malewicz v. City of Amsterdam (which allowed the statute’s commercial activity requirement to be satisfied by the lending of the disputed painting itself) may lead directly to an amendment under consideration in the Senate (SB 2212) of the statute narrowing further the definition of commercial activity necessary to get in the courthouse.
Without question, Wally changed the public awareness of restitution claims like nothing before or since. But there is a good argument to be made that a restitution claimant is no better off than she was before Wally was seized. As any litigator knows, a settlement has no real precedential value. Wally did not stretch the contours of Nazi-specific disputes, nor get anyone around the statute of limitations. It has indeed shaped the discussion, but Wally is back in Vienna. Adele Bloch Bauer is in New York. Most of the litigants have died.
In retrospect, sometimes something that seems like it changed everything, was just unexpected.
