The Art Law Report

Providing timely updates and commentary on legal issues in the museum and visual arts communities

The Gurlitt Deal—Prosecutor Gives Collection Back, Agreement Leaves Questions About Process and Transparency

Posted in Gurlitt Collection, Restitution, World War II

The Augsburg prosecutor for the State of Bavaria announced today that in connection with Monday’s agreement with Cornelius Gurlitt, the 1,280 works of art seized from Gurlitt’s apartment in 2012 have been “returned” to Gurlitt.  Though it does not appear that the objects have physically changed locations, the state officially lifted the seizure, and now has access to the collection for further provenance research pursuant to the agreement, rather than the compulsory process by which it retrieved them.

The question now is how the review and/or return of the collection will proceed.  We know that Gurlitt has agreed to provide unfettered access to the objects for the Task Force to continue its investigation.  We also know that after one year, anything not identified as stolen will be cleared and returned to Gurlitt for good.  As we observed on Monday, that is a substantial improvement on Gurlitt’s earlier, unilateral definitions of what would be returned as stolen.

But a closer examination of the publicly-available details still reveals gaps wide enough to drive a truck through.  For example, has Gurlitt committed to accepting the conclusions of the Task Force?  The coverage certainly implies as much, but it is not clear.  Also, what exactly has to be accomplished by the Task Force in the first year?  Simply raising a question, or making some factual showing?  And if the latter, to whom or what will that showing be made?  Gurlitt?  That is to say, whom will the Task Force have to persuade that a particular piece may have been, or was, stolen.

Finally, what will Germany do if and when the Task Force identifies a work as suspect, but there a are competing claimants?  Presumably Gurlitt won’t get the art back, but who will?  And who will decide?  This is not an academic question.  After Gurlitt’s team announced with much fanfare before the deal with Germany was struck, Anne Sinclair as heiress of Paul Rosenberg had an agreement in principle to return Seated Woman by Henri Matisse.  Yet it has now been revealed that Germany knew of competing claimants that have since been identified.  Who will arbitrate between those claimants

The publicity around Monday’s deal has also shed some light on the last few months, which to the outside world appeared quite confusing insofar as Gurlitt’s strategy seemed to shift dramatically.  For instance, when the “Gurlitt Info” website was first launched, it included references to Gurlitt’s willingness to relinquish works for fair compensation.  The Süddeutsche Zeitung reports today on the behind-the-scenes negotiations involving David Toren, who has since filed a lawsuit in Washington, DC against Germany for the Max Liebermann Riders on the Beach (Reiter am Strand).  Apparently early this year, Gurlitt’s then-counsel offered to sell the Liebermann to Toren—who recalls the painting from his uncle’s home in Breslau‑for 300,000 Euro, characterizing the price as a discount.  Toren says he responded with a word we won’t print here, and a counteroffer: that Gurlitt make a 25,000 Euro donation to the Holocaust Museum in Berlin, “to cleanse his soul.” 

There is no question that Monday’s deal begins to put some structure on a situation that had been almost formless since the revelation in November, and which is now more than two years old, dating back to the seizure itself.  That structure may forestall additional individual claimants like Toren, but only if there is additional transparency about what the binding commitments are.  Claimants will only be patient if they believe that there is an end result they can trust.  Part of that depends on the resources devoted to the Task Force, and whether it has the staff required to perform a meaningful review of hundreds of objects in only a year.  For starters, the agreement itself should be made public immediately.  Whether cynically or morally, that disclosure is the best for all involved. 

Breakthrough? Gurlitt Signs Agreement with Germany For Continued Research and Commits to Return of Art

Posted in Gurlitt Collection, Restitution

Whether Austrian Trove is Included So Far Unmentioned In Reports of Agreement

On the heels of last night’s “60 Minutes” treatment of the Gurlitt saga (which featured Willi Korte and Ingeborg Berggreen-Merkel, two participants at January’s Ersessene Kunst-Der Fall Gurlitt at which I also spoke), news has come today that Cornelius Gurlitt has signed an agreement with the German federal government and the Bavarian Ministry of Justice with respect to the artworks taken from his apartment in 2012.  Where recent statements that he intended to return what had been stolen left that outcome entirely to his discretion, he now seems to have committed expressly to some sort of return protocol.  The precise details are still unknown. 

As best as can be determined from today’s reports (Gurlitt himself apparently signed the agreement at midday today), the Task Force will continue to research the provenance of the art taken from Gurlitt’s Munich apartment, and Gurlitt has pledged to return art determined to have been stolen.  This is in exchange for a promise by the government that he will receive back any art cleared from suspicion by the Task Force or elsewhere.  The further investigation into provenance and ownership will also be separated from the tax investigation that led to the seizure in the first instance.  The Bavarian Justice Ministry, the German Ministry of Culture, and Gurlitt’s attorney Christoph Edel issued a combined press release today, that cites the Task Force’s hope to complete its duties within a year. 

German Cultural Minister Monika Grütters gave a TV interview in which she summarized the agreement (interview in German).  In the above press release, she was also quoted as follows (my translation):

I am thankful to everyone involved that we successfully allowed the work of the Task Force for the determination of the Gurlitt collection’s provenance to proceed independently from the tax criminal investigation.  With this newly created contract we have achieved the important basis for fair and legal outcomes, in particular through restitution; Mr. Gurlitt has hereafter expressly acknowledged this purpose.  In my view, the legally unassailable and extensive provenance research of the Gurlitt collection is important, not least because in doing so, we also send a clear signal to the outside world that we will not permit Nazi injustice to persist even 70 years after the war ended.  The experiences collected from the Schwabing Art Find will be incorporated in my desired National Center of Cultural Property.

This could, of course, prove to be the decisive breakthrough, pairing the research of the Task Force with a commitment by the government and Gurlitt himself to proceed in accordance with the Task Force’s findings.  The devil will be in the details of course, and just what Gurlitt has committed himself to is yet unclear.  One certainly hopes that the exact terms of the agreement will be made public, and soon. 

Unresolved in today’s news is the fate of the artwork that Gurlitt had in Austria, first in Salzburg (itself first underreported, but now at 238 works including a Claude Monet painting of London), then near Alt Aussee.  The agreement today is between Bavaria, the Federal Republic of Germany, and Gurlitt, with respect to the German Task Force.  Nothing reported today commits Gurlitt to the same scrutiny of the Austrian collection, nor to its return (nor, to be fair, is it expressly excluded, either).

As always, even what seems like a major development will prove tricky in the execution.  In what might have been today’s biggest news until this, the one work so far that had been reported as the subject of a restitution agreement, a painting by Henri Matisse that once belonged to Paul Rosenberg, apparently now has a competing claim

Foreign Cultural Exchange Jurisdictional Immunity Clarification Act Passes House Judiciary Committee on Voice Vote

Posted in Foreign Cultural Exchange Jurisdictional Immunity Clarification Act, Foreign Sovereign Immunities, Immunity from Seizure Act, Restitution, World War II

Just a week after it was introduced by Steve Chabot (R-OH), the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (HR 4292) was marked for hearing today.  Three members spoke in favor, a voice vote was taken, and bill was referred favorably to the full House.

Chairman Bob Goodlatte (R-VA) began the hearing with a statement.  He argued that the Act strengthens the ability of museums to borrow foreign art and cultural artifacts.   He cited what he called the long-recognized importance of the exchange of cultural ideas, which expose Americans to other cultures.  As Goodlatte put it, future exchanges are threatened by the disconnect between the FSIA and IFSA, in particular because of  rulings undermining protection by IFSA.  In his view, the existing law opens foreign governments to jurisdiction in U.S. federal court “simply because they loan” artworks or cultural objects.  Goodlatte argued that this has significantly limited U.S. museums’ ability to borrow items.  He closed by staying that the bill is “very narrow legislation” that only applies to one exception under FSIA (28 U.S.C. §1605(a)(3), the “expropriation exception). 

Jerrold Nadler (D-NY) then spoke up to identify the inconsistency between two laws.  He alluded to the Malevicz case (though not by name), citing what Nadler called a chilling effect that has followed.  Nadler believes that the bill would immunize governments from lawsuits for damages related to art that is exempt from seizure.  He also touted the Nazi-era exception. 

Steve Chabot (R-OH) repeated much of what Rep. Nadler said.  Interestingly, Chabot referred to the Russian exhibition loan embargo as a justification for the Act.  In this respect Chabot is somewhat misguided.  The Russian loan embargo is in direct retaliation for the Chabad Library judgment.  But the commercial activity that the DC Circuit upheld as justification for invoking the expropriation exception was not the loan of IFSA protected property into the United States—the discrepancy that this bill would revise—the Chabad Library has never left Russia.  And, just as importantly, the embargo is not a principled response to fear of seizure: the Chabad plaintiffs have stipulated that they will never seek to attach cultural property loaned into the United States, which even if they did, would be protected by IFSA (or, presumably, not lent in the first place).  Put another way, had HR 4292 been the law when the Chabad case began, the result would have been no different by virtue of the bill.  So, as a rationale for this bill, it is worth scrutiny. 

Lastly, Steve Cohen (D-TN) also spoke in favor of the bill, similarly underscoring what he said was the importance of the Nazi-era exception.  To me, one of the questions that this emphasis raises—if the lion’s share of restitution claims continue to be related to Nazi-era theft—is how much the bill would really change. 

Foreign Cultural Exchange Jurisdictional Immunity Clarification Act Reintroduced in House of Representatives, Would Ban Use of Exhibition Loan as Basis for Federal Court Jurisdiction

Posted in Foreign Cultural Exchange Jurisdictional Immunity Clarification Act, Foreign Sovereign Immunities, Gurlitt Collection, Immunity from Seizure Act, Restitution, Senate Bill 2212, World War II

Steve Chabot (R-OH) has reintroduced the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act  (H.R. 4292), after a previous attempt to amend the Foreign Sovereign Immunities Act with regard to the loan of cultural objects failed to become law in 2012.  The text of the March 25, 2014 bill is identical to the version that passed in the House in 2012.  Its co-sponsors are John Conyers (D-MI) and Bob Goodlatte (R-VA), and it has been referred to the House Judiciary Committee. 

As readers will recall from our coverage here, in 2012 a bill of the same name was passed by the House of Representatives, and introduced in the Senate as Bill 2212 by Orrin Hatch (R-UT) and Dianne Feinstein (D-CA).  The bill attempted to resolve the tension between the Foreign Sovereign Immunities Act (FSIA, 28 U.S.C. § 1605) and the Immunity from Seizure Act (IFSA, 22 U.S.C. § 2459).  The FSIA has provided the jurisdictional basis for many restitution lawsuits since Altmann v. Republic of Austria, through to the recent lawsuit filed by David Toren against the Federal Republic of Germany for paintings found in Cornelius Gurlitt’s apartment.  The FSIA allows foreign sovereigns to be sued in U.S. federal court when certain exceptions are met.  Most commonly restitution plaintiffs allege that the property at issue was taken in violation of international law (28 U.S.C. § 1605(a)(3)), or that the claims are based on commercial activity in the United States, or on acts with a commercial effect in the United States (28 U.S.C. § 1605(a)(2)).  IFSA, for its part, allows museums and similar institutions to apply to the State Department for a declaration that regardless of any other debts or obligations on the part of the lending country, a particular work of art may not be seized or attached to satisfy a money judgment or otherwise compel compliance with a court order.  Particularly since the Portrait of Wally case in 1998 (a painting that did not have such immunity from seizure and was seized and warehoused for 12 years until the dispute was settled), applying for this immunity is standard course.  Where it is not obtained, as with the Girolamo Romano “Christ Carrying the Cross Dragged by a Rogue,” customs laws—in both the Romano and Portrait of Wally cases, a customs law (19 U.S.C. § 1595a) targeting he importation of stolen property—often provided a swift vehicle for seizure and restitution. 

The issue when the U.S. District Court in Washington, DC decided Malewicz v. City of Amsterdam, 517 F.Supp.2d 322 (2007).  In that case, plaintiffs (heirs of Kasimir Malewicz) sought restitution of several paintings by invoking the FSIA, arguing that the loan of the paintings themselves into the United States for temporary exhibition was sufficient to constitute commercial activity under the FSIA.  The paintings, however, had been given immunity from seizure by the State Department under IFSA.  Thus, the question was whether a lawsuit could be commenced based on the loan of paintings whose return was sought by the plaintiffs, but which themselves could not be seized for any reason.  The District Court answered that the two were not mutually exclusive, and the loan could be used to satisfy the commercial activity elements of the FSIA.

The bill would amend the FSIA to clarify that where an object has been granted IFSA immunity, its loan (in and of itself) cannot be the “commercial activity” necessary to satisfy § 1605(a)(3).  Nazi-era claims are specifically exempted.  It is, in the simplest terms, a legislative overruling of Malewicz, something easily within Congress’s power with respect to the scope of a law.  The question, of course, is whether it is a good idea.

I made no secret here that I believed the previous bill to be a positive development.  A lawsuit that, by definition, can be commenced but which necessarily will never return in the seizure of the object that it seeks is a pointless exercise.  It does not mollify the many, justifiable frustrations with the state of restitution law, but the Malewicz world does claimants no favors, either.  As a logical proposition, the Nazi-era claim exception is and was itself vulnerable to criticism: why are those claims, but not claims for cultural property, for example, exempt?  The prior bill had many articulate critics, whose voices should be considered and whose perspective I can appreciate, but on balance I considered the bill to be an improvement on the status quo.  I have no doubt that many readers will disagree. 

Expect a similar, sharp debate to ensure.  The previous bill gained a number of sponsors in the Senate, seemingly presaging passage, but then the 2012 session of Congress expired. With more than a year and a half to go in this session, this bill may get a definitive answer from Congress.

Call for Papers and 6th Annual ARCA Interdisciplinary Art Crime Conference, June 28-29, 2014

Posted in Events, Uncategorized

It was my great privilege last year to speak at the 5th Annual Art Crime Conference, hosted by the Association for Research into Crimes Against Art (ARCA).  The conference, in Amelia, Italy, annually draws experts in varied fields of law, cultural property, archaeology, law enforcement, and more.  It is also held in one of the most spectacular venues I have ever seen, a rocky outcropping , with a medieval Italian city on top of a Roman-era settlement (complete with a cistern at the top of the hill).

This year’s conference (http://www.artcrimeresearch.org/interdisciplinary-art-crime-conference/) will be June 28-29, 2014, and the call for papers is also drawing to a close. 

I’m not sure yet whether I’ll make it this year, but anyone interested and in the neighborhood (or even if not) should most certainly attend.  Last year’s schedule can be found at http://art-crime.blogspot.com/2013/05/speakers-list-released-for-arcas-5th.html, to give a sense of the discourse.  Make sure to take advantage of this special gathering if you can.

ARCA welcomes speaking proposals from individuals in relevant fields, including law, criminal justice, security, art history, conservation, archaeology, or museum management. We invite individuals interested in presenting to submit their topic of choice along with a concise 200 word abstract and current resume or CV to us at: italy.conference@artcrimeresearch.org

 

Gurlitt Can’t Get His Story Straight About Salzburg Trove

Posted in Gurlitt Collection, Restitution, World War II

As confusion swirls around Cornelius Gurlitt’s actual plans, one of the issues is that his team is not speaking consistently with one voice.  In particular, there are odd developments about the artworks that Gurlitt himself had removed from his Salzburg home in February—oddities that are worth weighing when considering the recent public statements about his supposed willingness to return some of the art.  The fact that Gurlitt’s team itself has undergone a shakeup is also worthy of note. 

As the BBC—whose source was Gurlitt’s lawyer Hannes Hartung—reported in February (emphasis mine):

Works by Renoir, Monet and other French impressionists are among the 60 or so pieces, Hannes Hartung told BBC News.

Little else was known about them, and experts, of course, had and have no idea whether that art was stolen in any part, because authorities have never seen it.  In any event, Gurlitt’s February 11, 2014 press release (the English version) confirmed as much (emphasis mine):

Further works were kept in a house in Salzburg belonging to Cornelius Gurlitt. They were inspected at the house on Monday, February 10 this year and were then seized and insured. They numbered more than 60 pieces in total, including works by Monet, Renoir, and Picasso.

This week, however, it was reported in the Süddeutsche Zeitung and elsewhere this week that the real number in Salzburg was 238.  Sixty and 238 are materially different, to say the least.  Then, right on cue, Gurlitt’s website posted a press release, dated yesterday, that states:

The Salzburg portion of the collection of Cornelius Gurlitt is more extensive than at first thought. It encompasses 238 works of art, including 39 oil paintings.

This is straight down the rabbit hole.  More extensive than who first thought?  Gurlitt himself, when he issued the February 11, 2014 press release?  His own lawyers, who were the only ones with access to the information then (and now)?  The passive voice should fool no one at this point. 

The irony of these contradictory statements is apparently lost on the authors.  Credibility has been an issue since Gurlitt’s website launch.  From this perspective, whatever was left of that is now long gone.  Interestingly, the press release concludes, cryptically:

Attorney Dr. Hannes Hartung was discharged from his duties as Gurlitt’s representative with effect from today. To date, he was responsible for the art law aspects of the Gurlitt case and also conducted talks with claimants. Potential claimants are kindly asked to address Mr Edel’s office for the time being.

 

Gurlitt Art Return Click-Bait and Switch—Don’t Get Fooled by Headlines

Posted in Gurlitt Collection, Restitution, World War II

It was hardly surprising that news that Cornelius Gurlitt was willing to return artworks taken from his apartment in 2012 that had once been taken from Jews spread quickly.  What is regrettable is how quickly the headlines seem to have gone viral that he is going—or even willing—to return all of the paintings.  Nothing that he or his representatives have said supports that contention.  From the New York Times, for example:

Cornelius Gurlitt, the octogenarian hoarder of art plundered by the Nazis, will return paintings in the trove his family kept secret for decades to their original Jewish owners or those owners’ descendants, starting with a well-known Matisse, his lawyers said on Wednesday

That is half of the story, at best, and adopts at the very least implicitly the contention that any art stolen from Jews will be returned.  His lawyers have (consistently, at least) maintained that fewer than 50 works, or 3% of the total, were stolen from Jewish families, however.  The Task Force, and the original estimation by Meike Hoffmann before the seizure was made public, peg the looted art total as much higher. 

The exercise so far is a (successful) click-bait and switch that goes something like this: 1) Gurlitt’s lawyer says something about returning art; 2) Gurlitt’s lawyer refers to a subset of the collection by his own terminology, which 3) materially understates the total, and 4) news reports declare that Gurlitt will return all the stolen art.  Don’t be fooled.  The Rosenberg Matisse is still the only (singular) work out of 1,280 that he has even tentatively committed to returning. Given the back and forth over the first months of 2014 about his intentions, there is every reason to remain skeptical.  Language is certainly an issue, the German papers have been less confused about what he has, and has not said he will do. 

By contrast, and as usual, Mary Lane at the Wall Street Journal has the sharpest English-language coverage of the issue (she also wrote the best summary last week of the Guelph Treasure Limbach Commission decision).  She noted today on Twitter, “BEWARE Int’l/German reports saying Gurlitt giving art back;not a done deal as he won’t promise he doesn’t want $ sources tell me.” 

Indeed. 

Gurlitt “Wants” to Return “All Pictures Stolen or Looted from Jewish Possession”—But Stolen According to Whom?

Posted in Gurlitt Collection, Restitution

Christoph Edel, lawyer and guardian for Cornelius Gurlitt, told the Süddeutsche Zeitung today that his client wants to return “all pictures stolen or looted from Jewish possession.”  Although this has set Twitter and the Internet ablaze with the news, the statement deserves careful scrutiny in light of Gurlitt’s strategy over the last two months.  The likeliest meaning is that Gurlitt intends to return those works that he believes were stolen from Jews—a total he himself put at less than three percent of the 1,280 works found in his apartment, over 900 of which the Scwabinger Task Force has declared to be suspect.  Note too that a slight mistranslation has already gotten into circulation.  Whereas Edel told the SZ that Gurlitt “wants” to return those paintings, the German conjugation of want (will) was cited as a statement that he will (in English) return them.  Not so fast, as they say.

The first work to be returned, according to Edel, is Sitting Woman by Henri Matisse, to the heirs of Paul Rosenberg (who just this week negotiated the return of another Matisse from the Henie-Onstad Museum in Norway).  Notably, the Rosenberg/Gurlitt Matisse was taken from a storage depot in Bordeaux where Rosenberg had placed 162 objects for safekeeping—despite Gurlitt’s protestations that his father Hildebrand was uninvolved in the plunder of French Jews.

Edel went on to say that discussions with six (6) claimants were likely to lead to resolution, a total of 40 to 50 works.  When the “Gurlitt Info” website went live, its claim that “Just about all of them [are Gurlitt’s property], with the exception of a few artworks that are suspected to be Holocaust Looted Art (3 % of the whole collection as a maximum)” was met with skepticism by anyone paying attention, and, more seriously, seemed to be an arugment that since only that number of works had been claimed—desite the identity of more than half of the collection remaining unknown—that consituted the universe of stolen Jewish property.  That contention fails under any scrutiny. 

Herein lies the disconnect, or the subtle misdirection.  If Gurlitt has agreed to return fifty paintings to Jewish heirs, all the better.  But if by declaring that an agrement with six heirs constitutes the entirety of the works stolen from Jewish collections, then that is no solution at all.  Nor does it begin to address what amounts to hundreds of works obtained by Hildebrand Gurlitt as “degenerate art” taken from other owners, let alone the more recent find in Salzburg.  That is no small thing: SZ, as well as the television networks WDR, and NDR are reporting that the Salzburg find was much greater than previously reported, perhaps including as many as 238 works.

Limbach Advisory Commission Recommends Against German Restitution of “Guelph Treasure,” Focuses on Terms of 1929 Agreement for Intended Sale

Posted in Gurlitt Collection, Restitution, World War II

One of the issues exposed and exacerbated by the ongoing Gurlitt collection stalemate is the question of Germany’s restitution procedures with respect to art.  As the Bavarian legislative proposal to abolish the statute of limitations for claims against bad-faith acquirers is considered by the Bundestag, the “German Advisory Commission for the Return of Cultural Property Seized as a Result of Nazi Persecution, Especially Jewish Property” has issued a decision over what has become known as the “Guelph Treasure” (Welfenschatz) in the collection of the Stiftung Preussischer Kulturbesitz (SPK), the Prussian Cultural Heritage Foundation.  The March 20, 2014 opinion (available, so far as I know, only in German at this point at www.lostart.de) underscores the issues around claims of sales under duress, and the appropriate present-day procedural remedy.  Readers should also brush up on their medieval German history to keep up.

The case attracted much attention before the decision, and the reaction has been one largely of dissatisfaction.  As much as anything, the criticism has argued the need for a national claims process in Germany (perhaps like Austria’s).  At first blush, the decision would seem to highlight exactly such a problem.  But in the execution, would it be any different?  Compare, for example, the Gustav Klimt’s Portrait of Amalie Zuckerkandl, exhibited last year in London amid controversy and the subject of an earlier Austrian arbitration.  As with the Zuckerkandl Klimt, there was a reasonably robust hearing that concluded that a Nazi-era sale was an arms’ length one, with which the unsuccessful claimants were understandably and vocally unhappy.  Recall, however, that the Zuckerkandl plaintiffs appealed the arbitration loss, which was confirmed by the Austrian Supreme Court.  The point here is merely that even if the Commission were a binding arbitration process, the controversy might not have lessened, though a successful claimant would at least have the force of law.  At least one other group of claimants unsuccessful before the Commission has also later won restitution in the German civil courts

The case also highlights an uncomfortable analysis in restitution claims.  It has long been accepted that a sale by a Jewish collector or another member of a group persecuted by the Nazis will be presumed to have been under duress, and rightly so.  A presumption is not a fact, however.  The question for debate is how, if ever, can that presumption be rebutted?  Here, at least as the Commission presented the facts in its opinion, there was a collection acquired specifically for the purpose of sale, which was accomplished only in part because of the Great Depression during a period free from duress.  It is certainly plausible that the difficulty in finding buyers for the remaining objects during the Nazi era was commercial, not political.  But of course, it is similarly plausible that the market would have been artificially depressed by political actors.  Here, the record seems incomplete—as it almost always will be. 

The Advisory Commission, colloquially known as the Limbach Commission after member and former German Supreme Constitutional Court judge Jutta Limbach is an advisory committee that considers claims to such property in state possession.  Unlike the process in, for example, Austria pursuant to its 1998 restitution law, the commission is not an arbitration, and it is not a judicial adjudication.  It first sat in 2003, and has considered claims to property in state possession since, rendering recommendations on whether the state should return such property to claimants.  So, for example the Commission recommended in 2005 that the German Federal Government restitute three paintings by Karl Blechen and a watercolor by Anselm Feuerbach to the heirs of Julius and Clara Freund.  In 2008, it recommended that the German Land of Hessen pay Karl Ernst Baumann compensation amounting to 10,000 Euro for Portrait der Familie von Dithfurth by Johann J. August von der Embde.  And in 2009, the Commission recommended that the German Federal Government return Peasant Girl without a Hat and with a White Headcloth (1897) by Wilhelm Leibl to the heirs of Dr Alexander Lewin.  By contrast, in 2007 the Commission recommended against returning the poster collection of Hans Sachs that his heirs later won in court, language from the latter of which has been cited there and in the United States for the enunciation of German law on sales by Jewish collectors under duress. 

In 2008, the heirs of four Jewish art dealers raised a claim to the Guelph Treasure.  The names in this case are a reminder of the overlapping periods in German history: the collection consisted first of eighty two (82) sacramental objects and reliquaries from the 17th century collection of Braunschweig-Lüneburg (referred to in English as the Duchy of Brunswick and Lüneburg, a ducal state within the Holy Roman Empire and seat of one of the Electors of Hannover, known as Kurhannover).  From a 1931 exhibition catalogue at the Fogg Art Museum at Harvard, the collection consisted of:

[R]eliquaries, crosses, portable altars, and other ecclesiastical objects.  The earliest object in the collection was a cloisonné medallion, dating probably from the eighth century.  The most significant of the objects date from the eleventh and twelfth centuries, a period of great artistic brilliance. 

 

The Duchy (and other principalities) were ruled over the years by the House of Welf, known in English as the Guelphs, who played an important role in many chapters of the Holy Roman Empire, including Guelph and Holy Roman Emperor Otto IV (who was excommunicated, alas).  After the dissolution of the Holy Roman Empire in 1806 and the Congress of Vienna in 1815, the Electorate became the Kingdom of Hanover (Königreich Hannover).  For British history buffs, this will sound vaguely familiar—George I of England was the Duke of Brunswick-Lüneburg (Herzog von Braunschweig-Lüneburg), after which the duchy and the Crown of England remained in personal union until Queen Victoria in 1837.

The SPK is itself an odd hangover, heir to an entity that was an instrumentality of the Prussian government.  Unlike many of the other Länder, Prussia was specifically and explicitly abolished by the occupying powers after WWII, and of course most of its territory either given to Russia and Poland, or subsumed in the DDR.  In any event, the SPK retains oversight over significant collections today in the Berlin state museums, which are among the world’s finest.

In the 1920s, the Guelph heirs to the Electors were seeking to sell the collection.  In October 1929—barely weeks before the beginning of the worldwide financial crisis that would become the Great Depression—they entered into a contract to sell the collection to a consortium of the shareholders of the dealers J.S. Goldschmidt, I. Rosenbaum, and Z.M. Hackenbroch.  The agreement governing the consortium is lost, but the Commission’s decision recited the sale agreement itself, in which the consortium apparently pledged to seek to resell the collection and to share some part of those profits with the Guelphs.  Specifically, the consortium promised that they were not entitled to retain the collection in whole or in part, but rather would “strive in every way to achieve the sale.”

In the years that followed, however, the art dealers attempted to sell the collection in its entirety, but were unable to do so during the worldwide economic crisis.  Eventually they succeeded in the case of forty of the objects, which were sold for a combined price of 2.7 million Reichsmark (RM).  After exhibiting the remaining forty two objects in the US (including at the Art Institute of Chicago), they were stored in Amsterdam. 

In 1934, Dresdner Bank reached out to the art dealers to register interest.  Unknown to the dealers, the bank was acting as agent for the State of Prussia.  The consortium proposed initially a price of 5 million RM, to which the bank countered with 3.7 million RM.  A contract for sale was eventually signed on June 14, 1935 with a sale price of 4.25 million RM—3,371,875 RM in cash, the remainder as the value of artworks given in exchange.  Dresdner Bank signed for Prussia, but the Commission report does not make clear if Prussia was explicitly named as the buyer.

In any event, the Guelph Treasure remained with the SPK until the war was over, when it was seized by the occupying forces (presumably not only the Soviet Union, since it did not disappear east).  It was entrusted first to the Land of Hessen, and then to Lower Saxony, until it was reclaimed in 1963 by the SPK, until these claimants asked for their return. 

The claimants, in asking the SPK in 2008 to restitute the works, painted a different picture, or at least added what they felt were important details.  As they pointed out, in 1934 and 1935 the German state was exerting enormous pressure on Jewish-owned businesses to relinquish their assets.  Hermann Göring himself was the Prime Minister of Prussia at the time, and heavily engaged in the plundering of art he found desirable (of which these works would certainly have been the sort he often targeted).  The price of 4.25 million RM, the claimants argued, was well below the market value of 6-7 million RM. 

The SPK rejected the claim, noting in the first instance that the consortium had foreign shareholders who were co-owners of what was sold (presumably to contest the standing of these claimants).  More centrally, the SPK pointed out that the sale was the intended outcome for the collection at the time of its acquisition in 1929, before the political pressure came to bear.  Moreover, the SPK asserted, by 1934-35 there was no interest from others buyers, a reasonable explanation for which was the worldwide financial crisis, not political persecution. 

Ultimately the Commission was persuaded by this last point, and recommended that the Guelph Treasure stay where it is.  As the report noted:

Although the Commission is aware of the severe fate of art dealers and their persecution in the Nazi era, there are no indications that suggest that the art dealers and their business partners in the case to be assessed by the Commission were under duress—even from Göring; in addition, one had to deal with the effects of the global economic crisis in 1934/1935.

The Commission also stressed the availability of the sale proceeds at the time to the dealer as evidence that the sale was a commercial transaction, not a forced sale. 

As a result of these findings, the Advisory Commission of the belief that the sale of the Guelph Treasure was not a persecution-induced forced sale.  It therefore cannot recommend a return of the Guelph Treasure to the heirs of the four art dealers and any other former co-owners.

There is no specific procedural recourse, so it remains to be seen now if civil claims will follow—as they did successfully for the Hans Sachs heirs.  Given the use of the property itself in the United States in 1931, it could well be that they would be brought here under the Foreign Sovereign Immunities Act.  Our next post will address a recent decision in the Second Circuit applying the Act of State doctrine that raises still more hurdles to such claims, however.  Stay tuned….

Resale Royalties Redux: the “American Royalties Too Act”

Posted in Copyright

Although there are no definitive signs yet of likely change, the question of secondary royalties for visual artists remains far from resolved.  The most comprehensive effort to date, the California Resale Royalties Act was declared unconstitutional in 2012 by the U.S. District Court for the Central District of California, in lawsuit brought by Chuck Close and others against Christie’s, eBay, and Sotheby’s.  That decision is on appeal in the Ninth Circuit. 

On February 26, 2014, Representative Jerrold Nadler (D-NY) introduced the “American Royalties Too Act”—House Resolution 4103.  There was also an “American Royalties Too Act” introduced in the U.S. Senate by Senator Tammy Baldwin (D-WI) on the same day.  Early reports are that the major auction houses are strongly opposed and are lobbying accordingly. 

Rep. Nadler introduced a similar bill in 2011, which was never passed.  In the interim, the United States Copyright Office assembled testimony, and then issued a report on their updated analysis of resale royalties last December.  This report concluded, most relevantly, that there was “no evidence to conclusively establish that [establishing resale royalties] would harm the U.S. visual market.”  The Report thus made the 10 recommendations for resale royalty legislation.  Nadler’s bill incorporates most of the report’s recommendations, some of which changed substantially material terms from the previously-proposed legislation.  Below is a side-by-side comparison of the most material terms of the two bills. 

In the meantime, handicapping legislative success is not something we’ll attempt here, but stay tuned for committee and other updates.