A new lawsuit seeking to seize a painting by Van Gogh currently at the Detroit Institute of Arts for the show “Van Gogh in America,” a painting which the plaintiff alleges was unlawfully taken has brought back into focus the law in the United States that address immunity from seizure. That is to say, what are the circumstances under which a work of art loaned on exhibition—even if stolen property—might nonetheless have to be returned to the lender? The results, and the criteria, are often surprising to the casual viewer but are important to review for museums, collectors, and anyone involved in art loans.
Brazilian art collector Gustavo Soter and his art brokerage company, Brokerarte Capital Partners LLC, filed suit in federal court in Detroit on January 10, 2023 against the DIA. The complaint is short and to the point. It alleges that Soter and Brokerarte are the owner of Liseuse De Romans, also known as The Novel Reader or The Reading Lady. According to the Complaint, Brokerarte bought the painting in 2017 for $3.7 million. Thereafter, they allege “After Plaintiff purchased the Painting, a third party took possession of the Painting. Plaintiff never transferred title to or any interest in the Painting to this third party.”
While the painting is on loan to DIA, Plaintiff brought suit for a single claim for “replevin,” or to recover the property. No claim of wrongdoing is levied against DIA, and the supposed “third party” is not a defendant either. That cryptic description of how Plaintiffs ceased to have the painting is not explained further, nor was it elaborated on in the motion papers filed later.
Because the exhibition ends soon, the Plaintiffs sought an immediate injunction to prevent DIA from returning the Van Gogh to the lender. This is, at least in one respect, the classic basis for an injunction request. If Plaintiff were correct in its ownership assertion but the painting were returned to the lender, there would be irreparable harm because no amount of money could compensate him for a unique work. If someone steals my 1965 Corvette and lends it to an auto show, I would likely get an injunction because the car is unique. Not surprisingly, the court issued an order ex parte (without notice) restraining DIA from transferring the Van Gogh until the parties could be heard.
DIA’s argument was simple: the Van Gogh was granted immunity from seizure and must be released. The Immunity form Seizure Act, 22 U.S.C. § 2459 (“IFSA”) was passed in 1965 to “render immune from seizure under judicial process certain objects of cultural significance imported into the United States for temporary display or exhibition, and for other purposes,” long before the modern era of cultural property litigations. It provides that where a lender or borrower applies to the State Department in advance of an international loan of a cultural property object, “no court of the United States, any State, the District of Columbia, or any territory or possession of the United States may issue or enforce any judicial process, or enter any judgment, decree, or order, for the purpose or having the effect of depriving such institution, or any carrier engaged in transporting such work or object within the United States, of custody or control of such object.” 22 U.S.C. § 2459 (emphasis added). Notably, IFSA is a federal law, so while a state could have its own immunity from seizure law that would prohibit seizure (as New York does, for example, without State Department approval needed), under the Supremacy Clause of the Constitution and preemption law, no state could pass a law that conflicts with IFSA’s imperatives once the State Department has spoken.
The legislative history is clear that the policy goal of the law is the unfettered exchange of cultural property. Passed in an era of increasing nationalization, this is hardly a surprise. Ironically, despite the ironclad guarantees of IFSA, Russia refused to lend any art to the United States in 2011 in retaliation for a default judgment against it. Long before Russia’s current (or 2014) aggression in Ukraine, it used the pretext of fear of seizure that cannot happen as an excuse to cut the line of cultural exchange.
DIA submitted the documentation that it had, in fact, obtained immunity from seizure from the State Department before “Van Gogh in America” began, immunity that is published in the Federal Register pursuant to State Department regulation. Thus, DIA argued, “The Immunity from Seizure Act prohibits this Court from acting as Plaintiff requests and requires the dismissal of this suit.”
DIA is correct. However counterintuitive the result may seem, the immunity granted by IFSA is categorical and it is absolute. Famous examples bear this out. The many twists and turns of the Portrait of Wally case in 1997-2010 can be summarized to say that had the Museum of Modern Art obtained immunity from seizure before borrowing the Schiele from the Leopold Foundation, there never would have been a case. Similarly, the Pinocateca di Brera loaned a painting to Florida that never received immunity, and it was returned to the family that claimed it as lost in Fascist Italy. By contrast, their heirs of Kazimir Malevich sued over several paintings loaned to the Menil collection in Houston, but that entre lawsuit presupposed that the paintings themselves could not be seized.
In its responsive briefing, Brokerarte argued that IFSA does not delegate all authority to determine immunity to the State Department, and that the Court can revisit the requirements. This was a creative argument, but ultimately not one supported by any cases on point.
Moreover, the immunity provided by IFSA is so comprehensive that Congress stepped in to make cases like the Malevich dispute harder to bring. The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act of 2016 provides that if a loan that has immunity from seizure is a defendant’s only commercial activity in the United States, that sole commercial activity cannot support a claim under the Foreign Sovereign Immunities Act unless it is a Nazi-era claim. The point is this: Congress in 2016 regarded as illogical the idea that most suits over paintings that cannot be seized could proceed. The implicit assumption is that this is a waste of judicial resources precisely because the plaintiff will never get the painting back.
After briefing, U.S. District Judge George Caram Steeh held a hearing on January 19, 2023. According to the Detroit News, Judge Steeh said “I would encourage the attorneys here to address possibilities for resolving this dispute in a way to avoid the court’s ultimate ruling.” This is, incidentally, something judges often say when they know what the law requires but hope to avoid a harsh result. So it appears here.
Unless Brokerarte names the “third party” as a defendant, the lawsuit should be dismissed. The choice not to sue the alleged wrongdoer is intriguing; it is not at all clear from the papers whether Brokerarte does not know who the lender is, or wants not to say. Until that card is played, however, the Van Gogh will by rights soon be returned whence it came.