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.
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
On behalf of my clients seeking restitution of the Guelph Treasure, or Welfenschatz, we filed today our supplemental brief with the U.S. Supreme Court in response to the Brief of the United States as Amicus Curiae that the Solicitor General’s office submitted on May 26, 2020. You can read today’s brief here, and read more about the particular problems with the Solicitor General’s filing here, most notably the contention that the Nazis’ property crimes against German Jews should be considered a “domestic” issue that doesn’t implicate international law under the Foreign Sovereign Immunities Act (FSIA). It was particularly distressing that the brief was signed not only by the U.S. Department of Justice, but also the State Department.
The filing follows an increasing pattern of disregard for bipartisan Congressional action, in this case the 2016 Holocaust Expropriated Art Recovery Act. Similarly, the 2017 Justice for Uncompensated Survivors Act that was enacted specifically to counter Poland’s and others’ hostility to restitution for Holocaust era assets has been ignored. The JUST Act required that the State Department issue a report on other countries’ restitution progress no later that November 9, 2019, yet no report has been issued. The State Department has a dedicated page on the JUST Act...which simply lists the law (Poland's embassy has its own rather self-serving version too). Something very curious is going on with restitution at the State Department, all the more heartbreaking given the 80 years of leadership on the topic by the United States.
Late Tuesday evening—the day after Memorial Day no less—the United States Office of the Solicitor General filed a brief amicus curiae in our clients’ pending case against the Federal Republic of Germany and the Stiftung Preussischer Kulturbesitz for restitution of the Guelph Treasure (in German, the Welfenschatz). This brief was in response to the Supreme Court’s invitation in January that the SG file a brief expressing the views of the United States. In an unprecedented abdication of 80 years of leadership redressing Nazi-looted art, the Solicitor General argued that there is no circumstance in which a Nazi-forced sale victimizing a German Jew in the 1930s could constitute a violation of international law such the Foreign Sovereign Immunities Act would confer jurisdiction over either Germany or the SPK. The U.S. government has taken the position that only property claims against non-Germans suffice—even though, of course, the U.S. government has acknowledged in every relevant context since the early 1940s that Jews ceased to be full members of German society on the day Hitler assumed power: January 30, 1933. This is an historic disgrace. Germany has rightly been shamed for minimizing in court over the last five years the genocidal character of its persecution against Jews, but for the United States to do so the day after we rightly honored the hundreds of thousands of Americans who died to defeat Nazi Germany is appalling.
Topics: Guelph Treasure, Monuments Men, Foreign Sovereign Immunities Act, Washington Conference on Holocaust Era Assets, Supreme Court, Holocaust Victims Redress Act, Stiftung Preussischer Kulturbesitz, Hermann Goering, FSIA, Monuments Fine Arts and Archives Program, Washington Principles, Federal Republic of Germany, Welfenschatz, Military Government Law 59, Holocaust Expropriated Art Recovery Act, HEAR Act, Wannsee Conference, D.C. Circuit, Military Government Law No. 59, london declaration
There has been some renewed interest in the case a decade or so ago involving a claim by the heir of Oskar Reichel’s family to a painting in the Museum of Fine Arts Boston: Two Nudes (Lovers) by Oskar Kokoschka. In response I’ve decided to post an excerpt from my book A Tragic Fate—Law and Ethics in the Battle Over Nazi-Looted Art (ABA, 2017).
It has been suggested that the MFA somehow concealed its rationale or the documentary evidence on the basis of which it concluded that the painting should not be restituted. That is simply not so, however. The MFA’s now-curator of provenance, Dr. Victoria S. Reed, authored and the MFA filed an exhaustive report of the museum’s research into the case, accompanied by primary source documents. Whether one agrees or disagrees with its conclusions, the report has been publicly available for more than eleven years. It’s no secret that I have been complimentary of the MFA’s provenance research and transparency in the case—and I don’t think anyone would accuse me of being unsympathetic to claimants generally.
The key reasons for the MFA’s conclusions that the painting had not been sold under duress included the fact that Oskar Reichel’s sons pursued restitution claims vigorously (and successfully) for both real and personal property, including paintings. They never identified this painting in their claims to looted property, however. In addition, the MFA found—and filed publicly—correspondence from Oskar’s last surviving son Raimund from 1982 that explained that the MFA painting was among those that Oskar had given to Otto Kallir to sell in the USA:
Exhibit 65 to Dr. Reed’s Report
The MFA drew the conclusion, to which there was no specific evidence to the contrary, that this was in contrast to the property that had been taken from Oskar. This is in the context of the general presumption of invalidity for transactions between 1933 and 1945 involving persecuted groups.
I have been very critical of museums that I believe have not adhered to the spirit of the Association of Art Museum Directors’ guidance on Nazi-looted art claims where I think it is appropriate. But in my opinion—and that’s all it is, my opinion—the MFA is an example of a museum worthy of praise for following those principles of research and transparency (and not only with regard to Nazi-spoliation, but its collection generally).
Please do note that some of the analysis of the applicable statute of limitations has been superseded by the 2016 Holocaust Expropriated Art Recovery Act (HEAR Act), but the case went to a final judgment before that law was passed and was thus not affected by it.
I urge you to consider the case with an open mind and reach your own conclusions. I have done my best to explain my thinking, which you may judge for yourself. The press coverage at the time was very critical (some of which resonated for me until I reviewed the case in detail), which in hindsight is probably attributable in part to the fact that I don’t recall any contemporary coverage that addressed specifically the actual research that the MFA did and made public.
The following is re-published with the permission of the author, and may not be copied, reproduced, or republished in any fashion without express written permission of the author, whom you may contact using the links on this page. A Tragic Fate—Law and Ethics in the Battle Over Nazi-Looted Art © Nicholas M. O'Donnell (2017) is available in hardcover and Kindle editions on Amazon.com. I hope you find it informative and thought provoking.
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Topics: Galerie St. Etienne, Nazi-looted art, Association of Art Museum Directors, Claudia Seger-Thomschitz, Oskar Kokoschka, Museum of Fine Arts Boston, Holocaust Expropriated Art Recovery Act, HEAR Act, A Tragic Fate, Two Nudes (Lovers), Oskar Reichel, Otto Kallir, Victoria S. Reed, Otto Nierenstein
The Appellate Division First Department in New York has affirmed the trial court’s ruling in Reif v. Nagy that the heirs of Viennese actor and Holocaust victim Franz Friedrich (Fritz) Grünbaum are entitled to the return of two Egon Schiele drawings, Woman Hiding her Face (1912) and Woman in a Black Pinafore (1911). The ruling is a momentous victory for the Grünbaum heirs, and features several recurring characters in many Nazi-looted restitution disputes. We were doubly gratified to see the First Department’s citation to our own case, Philipp v. F.R.G., 894 F.3d 406 (D.C. Cir. 2018) for the proposition that sales under duress are void and violate international law consistent with the policies of the Holocaust Expropriated Art Recovery (HEAR) Act of 2016. It is a landmark ruling and a testament to the perseverance of the Grünbaum heirs and their legal team.
Topics: Guelph Treasure, Cornelius Gurlitt, Galerie St. Etienne, Nazi-looted art, Foreign Sovereign Immunities Act, Galerie Gutekunst, Holocaust, Fritz Grünbaum, NS Raubkunst, Egon Schiele, Mathilde Lukacs, Franz Kieslinger, Anschluss, Welfenschatz, HEAR Act, Ankerwycke, A Tragic Fate, Law and Ethics in the Battle Over Nazi-Looted Art, Holocaust Expropriated Art Recovery Act of 2016, Woman in a Black Pinafore, Woman Hiding her Face, Seated Woman With Bent Left Leg (Torso), Reif v. Nagy, D.C. Circuit Court of Appeals, Eberhard Kornfeld, Philipp v. F.R.G., New York Law Journal, Gutekunst & Klipstein, Jonathan Petropoulos
The U.S. Court of Appeals for the D.C. Circuit today dismissed the petition to rehear en banc last year’s landmark ruling that the heirs of the art dealers who sold the Guelph Treasure (or Welfenschatz) may pursue their claims in U.S. federal court. Defendants the Federal Republic of Germany and the Stiftung Preussischer Kulturbesitz (the SPK, or Prussian Cultural Heritage Foundation in English) had argued that claims under the Foreign Sovereign Immunities Act’s expropriation exception such as these are not violations of international law and also require a claimant to exhaust remedies abroad, a position rejected by prior decisions of the D.C. Circuit and by today’s ruling as well.
Today’s decision confirms the first-of-its kind holding last year that a German state museum must face claims based on allegations of Nazi-looted art, a direct result of Germany’s failures through its so-called Advisory (often called Limbach) Commission to address seriously and comprehensively the state of Nazi-looted art in its national collections. In the five years since denying the Guelph Treasure claimants any meaningful attention, Germany has fumbled through the Gurlitt fiasco and attempted other various distractions like its new fitful attention to colonial art (with no real progress there either). Germany has repeatedly disparaged my clients by suggesting that the matter was already "decided on the merits" before Germany's Advisory Commission. This is false. The Advisory Commission renders non-binding recommendations to state museums and has been roundly criticized for its opinions in 2014 and 2015 in particular, when my clients were denied justice. There is no small irony in having to explain this in the context of Germany's request for a do-over after last year's ruling.
Topics: Third Reich, Guelph Treasure, Feist, Prussia, Germany, Nazi-looted art, Foreign Sovereign Immunities Act, SPK, Advisory Commission, Stiftung Preussischer Kulturbesitz, Hermann Goering, expropriation exception”, Nazi persecution, Boy Leading a Horse, NS Raubkunst, J.S. Goldschmidt, Prussian Cultural Heritage Foundation, forced sale, Zacharias Hackenbroch, Welfenschatz, I. Rosenbaum, Holocaust Expropriated Art Recovery Act, HEAR Act, Paul Körner, Staatliche Museen zu Berlin, Kunstgewerbemuseum
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
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
The recent announcement of the launch of the Court of Arbitration for Art (CAA) is exciting and intriguing news. There is nothing peculiar to the art market or the art world about the existence of disputes—any businessperson in a wide variety of industries can testify to that. But what is promising about this initiative is the opportunity it presents to streamline an important segment of art world disputes, and in so doing to create a larger body of legal guidance that will in itself be useful in and outside of formal controversies. It does not supplant civil litigation in courts, nor does it make any pretense of doing so. It could, however, become an important complement. Critical will be enough buy-in from lawyers in particular to become willing to recommend its inclusion in contracts, for example. I would certainly include myself in that group, depending on the specific circumstances.
Topics: Stropheus, Judith Prowda, Sotheby’s Institute of Art, London, AAA, Geneva, Pryor Cashman LLP, Tom Brady, Megan Noh, New York, HEAR Act, CAA, Authentication in Art, Arbitration, JAMS, The Hague, NAI, Holocaust Expropriated Art Recovery Act of 2016, Quinn Emanuel Urquart & Sullivan LLP, Court of Arbitration for Art, Netherlands Arbitration Institute, William Charron, Cahill Cossu & Robinson LLP, Luke Nikas