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New Law Requires Museums in New York to Display Information About Nazi Art Looting, May be More Complicated than it Looks

Posted by Nicholas O'Donnell on August 17, 2022 at 2:40 PM

New York Governor Kathy Hochul has signed into law a new requirement requiring museums to indicate publicly any object in their collection that was displaced by the Nazis as part of what Congress has rightly called the largest organized theft of art in human history. The significance of this new rule is clear: New York is the center of the art world, and its museums hold a unique place of prominence. As readers of this blog or of my book A Tragic Fate-Law and Ethics in the Battle Over Nazi-Looted Art know, my view has long been that American museums vary widely in their candor and proactive approach to the issue of Nazi-looted art in their collections. Many have shown admirable initiative in probing their collections, while others have shown a regrettable passivity in waiting to receive and then deflect claims. Whether this bill will move the needle on that balance is the question. Transparency and disclosure have been the defining goals of the modern restitution era. This new law serves many of those ideals, but some unintended consequences may follow.

The new law says:

“Every museum which has on display any identifiable works of art known to have been created before nineteen hundred forty-five and which changed hands due to theft, seizure, confiscation, forced sale or other involuntary means in Europe during the Nazi era (nineteen hundred thirty three--nineteen hundred forty-five) shall, to the extent practicable, prominently place a placard or other signage acknowledging such information along with such display.”

There are a number of key concepts at work here. The importance of acknowledging the full extent of Nazi crimes for the entirety of the regime—not some later arbitrary point after a particular set of hateful acts like the Reich Citizenship (Nuremberg Race) Laws—can never be forgotten. Attempts at undermining that undeniable point are sadly ever present, most notably and inexcusably the Holocaust distortion by Germany (with the support of the U.S. State Department no less) in our case before the Supreme Court in 2020 over the Welfenschatz. The new law’s bracketing of 1933-1945 therefore is and remains important. Second, the law takes an appropriately broad view of Nazi art crimes. One of the limitations of the 1998 Washington Conference Principles on Nazi-Confiscated Art (usually referred to as the Washington Principles) is the term itself: “confiscated.” The scope of Nazi art theft was so much broader than cartoonish scenarios of deprivations at gunpoint, including the Nazis’ insatiable quest to pretend they were buyers rather than thieves, or the inability of the Nazis’ victims to make real choices as recognized in dictates like Military Government Law 59’s presumption of confiscation without proof by the possessor not the claimant.

This new law understands that. Explicitly acknowledging forced sales is a considerable improvement over the language of the Washington Principle,s or even the museum associations’ guidance (see below). And “other involuntary means” will include a number of scenarios like so-called “flight goods” where the owner simply had to choose between leaving alive and keeping their art.

The critical question is what this will change. Here, some history is instructive for context. Since the resurgence in the 1990s of awareness of the breadth and complexity of the issue of Nazi-looted art, various principles have been in play. For example, the leading American museum associations that affect the possible possession of Nazi-looted art are the Association of Art Museum Directors (AAMD), and the American Alliance of Museums (AAM). Neither have the force of law, nor do they pretend to. Rather, they provide ethical guidance either to member institutions or more broadly (nearly all American museums, whether of art or otherwise, belong to AAM. AAMD is a small group of art museums’ directors but its guidance is extremely influential).

As I have frequently written, the AAMD’s Task Force recommendations from 1998 (before the Washington Conference) are clear and have aged very well. They encourage member museums to “begin immediately to review the provenance of works in their collections to attempt to ascertain whether any were unlawfully confiscated during the Nazi/World War II era and never restituted” and “search their own records thoroughly and, in addition, should take all reasonable steps to contact established archives, databases, art dealers, auction houses, donors, art historians and other scholars and researchers who may be able to provide Nazi/World-War-II-era provenance information.” Going forward (from 1998), the recommendations included a number of other aspects (including applying those principles to future gifts and acquisitions). Relevant to the recent New York law, the AAMD recommended that “If a member museum should determine that a work of art in its collection was illegally confiscated during the Nazi/World War II era and not restituted, the museum should make such information public.”

For its part, the AAM has published guidelines on the “Unlawful Appropriation of Objects During the Nazi Era.” Those guidelines include the recommendation that museums “(1) identify all objects in their collections that were created before 1946 and acquired by the museum after 1932, that underwent a change of ownership between 1932 and 1946, and that were or might reasonably be thought to have been in continental Europe between those dates (hereafter, “covered objects”); (2) make currently available object and provenance (history of ownership) information on those objects accessible; and (3) give priority to continuing provenance research as resources allow.” Further, AAM recommends that “If credible evidence of unlawful appropriation without subsequent restitution is discovered through research, the museum should take prudent and necessary steps to resolve the status of the object, in consultation with qualified legal counsel. Such steps should include making such information public and, if possible, notifying potential claimants.” (emphasis added).

The point of comparison is this: for more than two decades, somewhat analogous principles have been in place as an aspirational matter and as matter of ethics. Every museum under the jurisdiction of the recent New York law exists in the context of those principles. Museums have responded in a variety of ways to these calls to action. Some, like the Museum of Fine Arts Boston, or the Nelson-Atkins Museum in Kansas City, have hired dedicated experts to assess their collections’ provenance. Regrettably however, some have resisted even acknowledging the obvious and made little effort at transparency, taking the offensive against claimants and even resorting to ad hominem attacks.

The New York law is therefore a classic example of attempting to compel behavior that was previously only suggested. There is no enforcement mechanism for the AAM or AAMD guidelines. When museums have flouted those ideals, it is generally met with silence from the associations themselves. That certainly supports the idea that something more than best practices might be a good idea.

This is a law, however, and compliance or transgression will depend on a careful reading of the statute’s text. Even allowing for the admirably broad-minded description of what constitutes Nazi art theft, what or who determines whether art “changed hands due to theft, seizure, confiscation, forced sale or other involuntary means in Europe during the Nazi era”? The Attorney General, presumably in her role as overseer of non-profit organization, though most New York museums are also subject to the supervision of the Board of Regents. How much initiative will the Attorney General take, however?

Certainly if a museum already had reason to believe that a work met that definition today, it could be compelled to indicate as much in a sign. But what degree of certainty is required: more like that not? Reasonable certainty? Clear and convincing evidence? The law does not say, and the answer matters. The law could even act as a disincentive to further inquiry. After all, the law does not compel investigation nor does it condemn a lack of knowledge. Arguably a museum would be safer to cease further research lest that research uncover information that would then have to be disclosed.

Notable disputes that have unfolded in New York bear this out, particularly because in multiple instances the same museum has reached different conclusions about different objects and claims (many of which are not publicly-known). Museums ranging from the Metropolitan Museum of Art to the Guggenheim to the Museum of Modern Art have steadfastly rejected the underlying premise advanced by claimants that works in their collections, in fact, “changed hands due to theft, seizure, confiscation, forced sale or other involuntary means in Europe during the Nazi era.” If they came to that conclusion and were prepared to defend it in litigation—as they had every right to do—this law might not lead to any different disclosure. To be sure (and perhaps by coincidence), there have been disputes elsewhere in which the parties all agreed that the art met those criteria but the museums for one reason or another resisted restitution. In that scenario, a museum in New York would be obliged at least to display the information. I fear a sideshow of disputes about the extent of disclosure rather than the ultimate question of restitution.

Finally, I have been at this long enough to be skeptical, if not cynical, about whether enough attention will persist after the initial headlines. In 2016 Congress passed the Holocaust Expropriated Art Recovery (HEAR) Act unanimously to extend claimants’ ability to have their day in court, to great fanfare and many bipartisan press releases. Yet when the Supreme Court ruled that the HEAR Act’s expansion of the statute of limitations was actually primarily to promote out of court resolutions, where was the Congressional objection to the Court’s Alice in Wonderland textual interpretative tools? Similarly, when Congress amended the Foreign Sovereign Immunities Act explicitly to define “Nazi era claims” to mean the entirety of the Nazi era between 1933 and 1945, SCOTUS held Congress meant only some of them. Congress took this insult with all the vigor of Kevin Bacon shouting “Thank you sir may I have another!” in Animal House.

The new law adopts important concepts that guide ethical behavior. But in practice it remains to be seen whether the effect will come and go with the politicians’ announcements.

Topics: Metropolitan Museum of Art, American Alliance of Museums, Nazi-looted art, Foreign Sovereign Immunities Act, Washington Conference on Holocaust Era Assets, Supreme Court, Washington Principles on Nazi-Confiscated Art, AAM, Museum of Modern Art, Nuremberg race laws, Washington Conference Principles on Nazi-Stolen Ar, Association of Art Museum Directors, Washington Department of Labor and Industries, Solomon R. Guggenheim Museum, Museum of Fine Arts Boston, AAMD, Military Government Law 59, State Department, Holocaust Expropriated Art Recovery Act, HEAR Act, A Tragic Fate, Law and Ethics in the Battle Over Nazi-Looted Art, Governor Kathy Hochul, Reich Citizenship Law, Animal House, Kevin Bacon

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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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