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German High Court Rules Painting Will Stay Listed in Nazi-Era Lost Art Provenance Database

Posted by Nicholas O'Donnell on July 24, 2023 at 6:21 PM

(Germany’s highest court issued a much-anticipated ruling on a challenge by a collector to the listing of his painting in the so-called Lost Art database in Magdeburg, Germany. The Bundesgerichtshof (BGH) ruled that the listing will not be deleted where “based on true facts.” The ruling underscores the informative, rather than legal, nature of the database, which describes itself as documenting “cultural property that was either demonstrably seized from their owners between 1933 and 1945 as a result of Nazi persecution, or for which such a seizure cannot be ruled out.” Insofar as the case just decided involves a well-known victim of Nazi-persecution, the clarification is a welcome and important one. As always in this area, however, the hard cases are harder. The case stopped short of resolving more nuanced cases, or addressing what recourse a collector might have in situations where a listing effectively makes a painting impossible to sell. Perhaps the best course would be to take heed of the way the court decided this case: the database is a  critical tool of information, but a less useful one when it comes to sorting out legal rights.

Calabrian Coast (Kalabrische Küste) by Andreas Achenbach is currently owned by collector Wolfgang Peiffer, who bought the painting in 1999 at an auction in London. As it turns out, the painting once belonged to Max Stern, a gallerist in Düsseldorf whose collection was liquidated in 1937 in one of the more infamous so-called Aryanizations of the Nazi era of art dealers. Stern was able to flee to Canada, and today the Max Stern Restitution Project at Concordia University in Montreal devotes itself to recovering Stern’s lost collection. Among its notable successes were one of only two final contested judgments yet awarded in the United States, the 2007 restitution of Girl from the Sabine Mountains by Francis Xavier Winterhalter in federal court in Rhode Island. In 2016 the Stern Restitution Project listed the Achenbach painting in the Lost Art database.

When the question of Nazi-era theft and corresponding provenance research gained renewed prominence in the 1990s, one of the critical challenges was one of information (for a longer explanation, I covered this in my book A Tragic Fate—Law and Ethics in the Battle Over Nazi-Looted Art). For decades, auction catalogues and galleries, to say nothing of private sales, effectively ignored any analysis as to whether an artwork’s provenance raised questions about Nazi-era theft or forced sale. So, when heirs, scholars, museums, and collectors started asking those questions, there was very little information readily available. Targeted collections, property inventories, interrogation reports of Nazi officials, and the like were all scattered around in archives.

Two critical things came into play. The first concerned the International Foundation for Art Research (IFAR). Well before popular attention returned to the subject, IFAR began publishing a stolen art alert in 1976. Beginning in 1990, IFAR increased the frequency of the alert to ten times per year, which soon outpaced the scope of the organization’s personnel resources. Enter the Art Loss Register, founded in 1990 initially as a partnership with IFAR and the major auction houses. Over the course of that decade, ALR checks became a prerequisite for major auction sales. Notably, for example, Elizabeth Taylor had consigned Vue d’Asile et de la Chapelle de Saint-Rémy by Van Gogh for auction in 1990, but without access to the paper catalogue, the heirs of its former owner Margarethe Mauthner (a persecuted German Jew) were unaware. While the painting did not sell in 1990, when Taylor later went to sell it a little over a decade later, the heirs’ failure to object in 1990 was held to make their more recent challenge too late. See Adler v. Taylor, Case No. CV 04-8472-RGK, 2005 U.S. Dist. LEXIS 5862, at *11 (C.D. Cal. Feb. 2, 2005).

The second thing? The Internet. When I was doing Nazi-era provenance research in the late 1990s, resources were still decentralized, and certainly not digitized (read: paper photocopies). As the Internet age gained steam, various accessible databases like that started by the American Association (now Alliance) of Museums began to meet the demand for researchers.

The Lost Art database at issue in this case was an is intended as a provenance tool, but has also come to function (probably because it is free) as a kind of quick check without engaging an ALR search. Anyone can submit a communication to the Zentrum für Kulturgutverluste (Center for Cultural Property Losses, sometimes called the Lost Art Foundation) in Magdeburg. The posting of provenance and claim information is, essentially, on the honor system. Unlike the ALR, the Lost Art database does not profess to be audited or checked by the staff onsite.

It has been an article of faith for more than two decades now that something listed in the ALR cannot be sold without a resolution of the claim. Most often that resolution comes by agreement, but parties can and do go to court for what is usually known as a quiet title action, or of course for restitution. These are two sides of the same coin; the claimant can sue for return of the work, or the current owner can sue for a declaration that he has valid title. Auction houses will typically rely on a judgment thereafter if it comes to that (as it did with Liz Taylor’s Van Gogh, which was resold recently without incident).

You can see where this is headed. Somewhere along the way, the mere fact of listing a work on the Lost Art Database made it unsaleable in certain quarters. Yet without an internal auditing intake procedure (aside from what is called a “plausibility check”), was there recourse for a collector without bringing a quiet title action? Ironically, the database itself disclaims any assertion that it is authoritative.

That seems to be the question posed by Peiffer’s case. He sued seeking not quiet title, but for an order removing the listing from the database. I have yet to find a copy of the written judgment (the court issued a press release), but German-news reports showed footage of presiding judge Bettina Brückner of the BGH reading the court’s decision from the bench. I was able to hear at least some of what she had to say. She referenced the former owner’s (Stern) heirs’ rights, the public interest in provenance research and transparency, and the economic interests of good faith purchasers.

Ultimately, the BGH held that the Lost Art database listing cannot be attacked “when based on true facts.” This was explicitly intended as a vote of public support for the database.

The Stern history is well known and generally beyond dispute. Here, the collector is likely safe from any title claim because of the passage of time (which in Germany is a longer deadline than in the United States, but not subject to extension for equitable reasons). The theory of this claim seems to have been based on that; if the claimant cannot win title, the claimant should remove the listing as a practical impediment to sale.

That is ultimately a moral judgment. Yet the “based on true facts” standard is less useful in a harder case. Generally speaking (in the U.S., for example), one can be liable for “slander of title” if one makes false statements about ownership. But saying the database will not change if the claim is true just begs the question. And what about harder cases where the disagreement is what to make of a gap in information, not affirmative history like with Max Stern.

As the always-insightful Stefan Koldehoff pointed out in his commentary about the decision, the BGH hinted obliquely at another possible strategy: targeting the Federal Republic itself. The BGH pointed out the claimant does not control the database after filing the information, Germany does. It will be interesting to see if this collector takes that route.

Topics: Lost Art Database, Germany, Bundesgerichtshof, Van Gogh, Magdeburg, Nazi persecution, BGH, IFAR, Art Loss Register, A Tragic Fate, Girl from the Sabine Mountains, Francis Xavier Winterhalter, Vue de l'asile et de la Chapelle de Saint-Rémy, Elizabeth Taylor, German Lost Art Foundation, Calabrian Coast, Kalabrische Küste, Concordia University, Zentrum für Kulturgutverluste, ALR, Düsseldorf, Bettina Brückner

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About the Blog

The Art Law Report provides timely updates and commentary on legal issues in the museum and visual arts communities. It is authored by Nicholas M. O'Donnell, partner in our Art & Museum Law Practice.

The material on this site is for general information only and is not legal advice. No liability is accepted for any loss or damage which may result from reliance on it. Always consult a qualified lawyer about a specific legal problem.

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