The following is an article that appears in the January issue of Apollo magazine.
I am pleased to be speaking on a panel at the upcoming Global Auction House Summit presented by Invaluable, the leading technology partner for online auction services. I will be presenting on the issues of Managing Reputation & Risk, and look forward to a lively discussion. The conference schedule is reprinted below, and registration is available here.
Topics: Auctions, London, Melanie Gerlis, The Art Newspaper, Sullivan & Worcester LLP, Events, Sotheby's, Nicholas M. O'Donnell, Art Loss Register, Real Estate Development, Affordable Housing, Institutional Shareholder Services, Proxy Voting Policies, John Albrecht, US Trust, ARTMYN, Cuseum, Andrea Danese, Athena Art Finance, Jakob Dupont, Bruun Rasmussen Auctioneers of Fine Art, Lori Hotz, Lobus, Bas Kuiper, Sophie MacPherson, Julian Radcliffe, Global Auction House Summit, Leonard Joel, Martina Batovic, Dorotheum, Evan Beard, Anna Brady, Anthony Calnek, Brendan Ciecko, Pierre Fautrel, Obvious, Andy Foster, Phillips, Financial Times, Dr. Anna-Sophie Hollenders, Raue LLP, AMFAD, Christopher McKeogh, Gene Shapiro, Sarah Wendell Sherrill, Mary-Alice Stack, Creative United, Rob Weisberg, Invaluable, Georgina C. Winthrop, Grogan & Company, Shapiro Auctions
This fall marks the 20th anniversary of the Washington Conference on Nazi-Era Assets and the corollary Washington Principles on Nazi-confiscated Art that have driven much of the conversation since then. Apollo magazine published my thoughts on the impact of the Washington Principles, which I reproduce below (British spelling, thank you), as well as a thoughtful piece by Martin P. Levy (a member of the UK Spoliation Advisory Panel, one of the commissions created in response to the Washington Principles).
Topics: Nazi-looted art, SPK, Advisory Commission, Stiftung Preussischer Kulturbesitz, Washington Principles, HEAR Act, UK Spoliation Advisory Panel, Apollo Magazine, Holocaust Expropriated Art Recovery Act of 2016, Washington Conference on Nazi-Era Assets, Department for Digital, Culture, Media and Sport, National Gallery in London, Claims Conference, JUST Act
I am honored to be one of the presenters at an upcoming symposium at Brandeis University entitled "Looted Art for Sale" that was postponed last winter. This interdisciplinary conference will provide an international perspective on the last twenty years of art recovery. Speakers include former Ambassador Stuart Eizenstat, a primary leader in the creation of U. S. restitution policies, Kim Oosterlink, Victoria Reed, and Inge Reist.
"Looted Art for Sale" will be sponsored by the Brandeis Center for German and European Studies, the Rosenberg Institute of Global Finance at Brandeis International Business School, the Mandel Center for the Humanities and the Department of Fine Arts.
My presentation will be entitled “Who Makes the Rules? The High-Stakes Legal Conflicts Over Looted Art.” I can scarcely claim to belong among such excellent company, so if for their perspectives if not for mine, I encourage anyone interested to attend. Registration is available here.
The New York Times reported yesterday that the German Lost Art Foundation had removed several paintings once owned by the Viennese cabaret actor Fritz Grünbaum from the Lost Art database. While the history of these objects is hotly contested, it was a particularly strange choice given that Grünbaum’s heirs just won a judgment earlier this year that the works by Schiele must be returned to them—by reason of Nazi duress. For a database that has never been suggested as an adjudication of rights but rather as a repository of notice to the world of possible title issues, it was a perplexing choice. Against the backdrop of the party that the German government and the foundation are throwing themselves in November for which few outsiders have been able to register, the explanation appears much less benign particularly against the backdrop of the government’s historical revisionism in U.S. federal court litigation.
Topics: Guelph Treasure, laches, Cornelius Gurlitt, Germany, Nazi-looted art, res judicata, Die Koordinierungsstelle für Kulturgutverluste, Holocaust, Magdeburg, Fritz Grünbaum, NS Raubkunst, Bavaria, Egon Schiele, Mathilde Lukacs, Task Force, New York Times, National Gallery, A Tragic Fate, German Lost Art Foundation, Kieslinger, Woman in a Black Pinafore, Woman Hiding her Face, Charles E. Ramos, Seated Woman With Bent Left Leg (Torso)
After four months of silence, the Berkshire Museum suddenly demanded last week that my clients dismiss their still-pending lawsuit over the governance of the museum by claiming that the April decision by the Single Justice of the Supreme Judicial Court that lifted the binding restrictions that the sales of its art collection would have violated somehow put an end to my clients’ case (which has been scheduled for oral argument on September 4, 2018 in Boston). By letter on Tuesday, I explained that the museum was quite mistaken indeed. Yesterday, the museum escalated and filed a request that Appeals Court simply dismiss the appeal, and actually accused my clients of acting in bad faith. The museum also saw fit to put the text of the letter into a press release that it circulated widely through its public relations team.
This afternoon we filed our response, the text of which is reproduced below. Put simply, while the lawsuit quite explicitly sought to stop the sale of the museum’s art collection, the fact that some of the works have already been sold does not begin to answer the questions that the lawsuit raised.
My clients look forward to the argument after Labor Day.
The U.S. Court of Appeals for the Ninth Circuit has upheld the judgment against Marei von Saher on her claims against the Norton Simon Museum in Pasadena to recover Adam and Eve by Lucas Cranach the Elder. The Cranachs belonged to Von Saher’s father-in-law Jacques Goudstikker, a renowned Dutch Jewish art dealer who fled the Netherlands. Yesterday’s decision was the latest in a complicated case, holding that the claim could not proceed because it would conflict with a judgment made by the Dutch government—in a case about paintings that no one disputes were looted by the Nazis but which the Norton Simon refuses to return. Notably, the Ninth Circuit upheld the dismissal entered two years ago by the District Court, but for different reasons. Where the trial court had held in 2016 that Von Saher was not entitled to the paintings by applying substantive Dutch post-war law, the Ninth Circuit yesterday held that it could not entertain the question because it involved a so-called “Act of State,” a doctrine under which courts will decline to review certain kinds of cases that implicate sovereign acts. It was not a complete surprise—the appeals court had hinted at the possibility of applying the doctrine back in 2014 when it remanded the case on one of its multiple trips to the appellate court—but was a curious application of it to a sale by the Dutch government, an act that is quintessentially commercial, not sovereign. It remains to be seen what Von Saher will do next. Von Saher is a complicated dispute that deserved its day in court, not the back of the hand out of “respect” for an “official” act that never actually happened, or an official act that this most recent decision actually contradicts.
Topics: Guelph Treasure, Alois Miedl, Act of State, Jacques Goudstikker, Nazi-looted art, Hermann Goering, Restitution, Marei Von Saher, Ninth Circuit, HEAR Act, A Tragic Fate, George Stroganoff, Commisssie Rechtsverkeer in oorlogstijd, Royal Decree 133, Royal Decree A6, CORVO, Royal Decree 100
I am pleased to be taking part in a symposium at the Skirball Center in Los Angeles on September 26, 2018, “The Future of Nazi Looted Art Recovery in the US and Abroad.” Presented by Cypress LLP and the Sotheby’s Institute of Art/Claremont Graduate University, the program assembles an impressive group of presenters in whose company I’m grateful to be included. Registration is available here, and the schedule is below:
Topics: Sotheby’s Institute of Art, Nazi-looted art, Simon Frankel, Commission for Looted Art in Europe, Covington & Burling LLP, Anne Webber, Sullivan & Worcester LLP, Sotheby's, Nicholas M. O'Donnell, Daniel McClean, Holocaust Expropriated Art Recovery Act, HEAR Act, Isabel von Klitzing, The Orpheus Clock, Simon Goodman, Lucian Simmons, Eyal Dolev, Jonathan Petropolous, Claremont McKenna College, The Faustian Bargain, Laurence Eisenstein, Eisenstein Malanchuk LLP, Lothar Fremy, Rosbach & Fremy, Nixon Peabody LLP, Mark Labaton, Getty Institute, Bob Muller, René Gimpel, Cypress LLP, Jonathan Neil, Skirball Center, The Art World in Nazi Germany, Dr. Lynn Rother, Thaddeus Stauber, Stephen Clark
(WASHINGTON-July 10, 2018) The U.S. Court of Appeals for the D.C. Circuit has affirmed the right of the heirs to the so-called Guelph Treasure (known in German as the Welfenschatz) to seek restitution in U.S. courts for the value of the treasured art collection. The appellate court rejected Defendants’ arguments that U.S. courts lack jurisdiction, or that Germany’s treatment of its Jews in the 1930s should be immune from judicial scrutiny. While the Federal Republic of Germany itself was dismissed as a defendant, the actual possessor and key party in interest (the Stiftung Preussischer Kulturbesitz, or SPK) must now prove that a 1935 transfer of the collection by a consortium of Jewish art dealers to Hermann Goering’s minions was a legitimate transaction if they are to retain the collection.
Topics: Guelph Treasure, Gestapo, Z.M. Hackenbroch, Prussia, Germany, Nazi-looted art, Foreign Sovereign Immunities Act, Markus Stoetzel, Mel Urbach, SPK, Hermann Goering, FSIA, NS Raubkunst, Sullivan & Worcester LLP, J.S. Goldschmidt, Adolf Hitler, Nicholas M. O'Donnell, Welfenschatz, I. Rosenbaum, D.C. Circuit, Consortium, Genocide Convention, Reichstag, flight taxes, Baltimore Sun, Luftwaffe
The idea of moral rights continues to be a notable difference between European and American intellectual property rights with respect to visual arts. Last week’s decision by the U.S. Court of Appeals for the 9th Circuit in a case brought by artist Chuck Close and others addressing the California Resale Royalty Act (the CRRA) underscores those distinctions. In holding that the CRRA is mostly preempted by federal copyright law and thus can be applied to entitle artists to secondary royalties only for sales of art in a single calendar year—1977—the 9th Circuit affirmed the skepticism with which American law continues to regard anything other than classic copyright. Given the failure of efforts to pass national legislation to provide for resale royalties, this decision is probably the end of the line for the foreseeable future in the U.S. for droit de suite, the term of art used to describe the concept.
There is, for better or worse, clearly no political constituency for resale royalties in the U.S. As I told Law360, and as we’ve opined before about the Visual Artists Rights Act of 1990 (VARA), property rights are in many ways a quintessential American policy. We all reflected on the Declaration of Independence last week, and its proclamation of the primacy of Life, Liberty, and the Pursuit of Happiness—which revised John Locke’s famous statement that governments are instituted to secure “life, liberty, and property.” Copyright is and always will be a limitation on absolute ownership, but Americans guard those limitations jealously. There is little sign that will soon change.
Topics: American Royalties Too Act, Chuck Close, Commerce Clause, Visual Artists Rights Act of 1990, Christie's, Cal. Civ. Code § 986(a), VARA, Rep. Jerrold Nadler (D-NY), Dormant Commerce Clause, Preemption, droit de suite, California Resale Royalty Act, U.S. Constitution, Sotheby's, eBay, CRRA, Declaration of Independence, Copyright Act of 1976, Morseburg v. Baylon, John Locke, Supremacy Clause, 1909 Copyright Act