The Art Law Report

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

What to Make of Nazi “Gold Train” Supposedly Buried in Poland

Posted in Restitution, World War II

I mostly ignored the initial twitterings about a supposedly secret train laden with gold and other Nazi-looted treasures that was buried somewhere near Wrocław, formerly Breslau, in Poland.  My reasons were straightforward: just like supposed sightings of the Gardner Museum heist art, or the Amber Room, the story had all the hallmarks of a fable being peddled by someone who, perhaps not coincidentally, was suggesting that they be paid something for their trouble.  Whether this is the next Gurlitt saga or just Al Capone’s vault, it’s too early to tell.

OLYMPUS DIGITAL CAMERA

(No gold train here)

I am still quite skeptical, but while I was on vacation last week Polish officials took the story up a notch by stating that they believed that had found something near a rail line in Walbrzych.  On August 28, 2015, Deputy Culture Minister Piotr Zuchowski stated at a press conference that he is “99 percent sure” that the government had located the train allegedly loaded with gold, gems, and perhaps artwork that was buried as the Soviet Red Army encircled Breslau in the last months of World War II.  “The train is 100 meters long and is protected,” Zuchowski said.  He went on:

The fact that it is armored indicates it has a special cargo. . . .  We do not know what is inside the train. . . .  Probably military equipment but also possibly jewelry, works of art and archive documents.

Zuchowski also revealed that the information about the train’s location came “”in a deathbed confession from a person involved in concealing it.”  Not at all surprisingly, authorities have now had to cordon off the area from gold seekers and amateur archeologists, and there was even a fire nearby.

The location of this potential find also invites almost limitless possibilities.  Consider: Breslau was at the intersection of the German and Polish speaking worlds for centuries, falling under the auspices of, among others, Bohemia, the Kingdom of Poland, the Duchy of Silesia, the Holy Roman Empire, the Hanseatic League, Prussia, and the German Empire.  Breslau’s centuries’ old Jewish population was targeted as everywhere else (David Friedmann, the owner of the recently restituted Max Liebermann painting Riders on the Beach, among them).

It was not until late in World War II that the city felt dramatic effects of the war, as Polish and German (from farther east in East Prussia) refugees fled from the crushing of the Warsaw Uprising and in advance of the Red Army respectively.  Fueled in part by the fate of Königsberg in East Prussia, Nazi Gauleiter Karl Hanke declared Breslau a “fortress city” to be held at all costs.  The results were predictable, with Hanke finally lifting the prohibition on evacuation just in time to allow some 20,000 women and children out into the snow to freeze to death in January, 1945.

This history explains the plausibility and in some ways the lure of the mythical hidden train.  By the beginning of 1945, the Red Army’s habits in conquered territories were no secret, and time had run out to go anywhere else.  And, given Breslau’s relatively secure location until that point, it could have been a receiving point for looted property from literally every corner of Nazi-occupied Europe.  It also supplies a platform to plug in theories that have failed elsewhere: right on cue, theories that the amber-paneled “Amber Room” (Bernsteinzimmer) that was last seen before the fall of Königsberg might be in the train.  Before you get too excited, people were speculating a couple years ago that the Amber Room might be in Cornelius Gurlitt’s apartment.  Given the fragility of amber, and what happened in Königsberg, the Amber Room was likely pulverized 70 years ago.

So what to make of all this?  On the one hand, as my good friend Markus Stoetzel tweeted “Instead of getting excited about ghost trains and secret treasures, draw attention on what’s known but yet unsolved.”  Amen.

And yet, in a post-Gurlitt world, it cannot be dismissed out of hand.  So for now, here are my suggestions about how to keep an eye on this story:

1) Wait for real news.  So far it appears that there may be a train underground in Poland.  That’s not very much.  And it appears that someone may have “confessed” to having hidden it.  But there too, what this person confessed to having hidden is pretty murky.  And there is absolutely no objective information about what is in this underground cavity, just that it is there (probably).

2) Ignore claimed valuations.  If and/or when a train is unearthed, expect fantastical numbers in the billions of dollars about what’s inside.  That will not inform anything about where it came from.

3) Keep a critical eye on action in response.  Will we see task forces that do nothing?  Or will we see a real effort to sort out whatever gets found?

4) Above all, consider the source of new developments.  There are many competing agendas out there.

Presumably at some point, something will get dug up.  And then it may get very interesting.

“Between Fairness and Justice for Successors and Possessors”—an Upcoming Conference at the Oskar Reinhart Museum in Winterthur

Posted in Events, Restitution, World War II

I won’t be in the neighborhood, but the Oskar Reinhart Museum in Winterthur (Switzerland) is putting on a conference for the second year in a row on August 31. 2015 wrestling with the issue of “flight goods” in particular.  “Flight goods” refers to property that was not stolen outright, nor sold under duress, but left behind because of a flight in haste from persecution.  Awareness has increased in recent years about this as a category of looted property to be addressed.  As with other categories, issues of law, morality, and the rights of subsequent good faith owners/possessors make for interesting discussions.  Notable presenters include Matthias Frehner, whose Kunstmuseum Bern is grappling with the Gurlitt bequest, and Anja Heuss, whose Staatsgalerie Stuttgart recently restituted a work to the heirs of I. Rosenbaum.  All the speakers and topics look excellent.

From the program (translations are mine):

Moderation: Dr. Stephanie Tasch, Dezernentin Kulturstiftung der Länder, Berlin (Deputy Mayor, Cultural Foundation of the Federal States, Berlin)

8.30 Registrierung (Registration)

9.00 Begrüssung und Eröffnung (Greetings and Opening)

Dr. Marc Fehlmann FRSA, Direktor (Director) Museum Oskar Reinhart, Winterthur

Claudius Ochsner, Präsident des Kunsthandelsverbandes der Schweiz (President of Art Dealers Association of Switzerland)

9.30 Fluchtkunst/Raubkunst (Flight goods/looted art): «The usual suspects»

Walter Feilchenfeldt, Zürich

10.00 Theorie vs. Praxis. Erfahrungen im Umgang mit belasteten Provenienzen (Theory and Practice: Experiences in Handling Problematic Provenances)

Dr. Johannes Nathan, Berlin/Zürich

10.30 Restitution von Fluchtgut – Warum nicht? Eine juristische Bestandsaufnahme (Restitution of Flight Goods: Why not?  A Legal Survey)

Prof. Dr. Georg Graf, Universität Salzburg

11.00 Pause

11.30 Fluchtgut gleich Raubkunst? Der Umgang des Kunstmuseums Bern mit dem Erbe von Cornelius Gurlitt (Flight goods the Same as Looted Art? The Approach of the Kunstmuseum Bern with the Heirs of Cornelius Gurlitt)

Dr. Matthias Frehner, Kunstmuseum Bern

12.00 Die Aufnahmekriterien im Zuge der LostArt Dokumentation (The Criteria for Inclusion in the “Lost Art” Documentation Center)

Dr. Andrea Baresel-Brand, Deutsches Zentrum Kulturgutverluste

12.30 – 14.00 Mittagspause

14.00 Fluchtgut ohne Grenzen? Fälle von Fluchtgut in der Staatsgalerie Stuttgart (Flight Goods Without Borders?  Cases of Flight Goods in the Staatsgalerie Stuttgart)

Dr. Anja Heuss, Staatsgalerie Stuttgart

14.30 Fluchtkunst/Raubkunst: Gemeinsamkeiten und Unterschiede (Flight Goods/Looted Art: Similarities and Differences)

Prof. Dr. Peter Raue, Berlin

15.00 Pause

16.00 Podiumsdiskussion (Podium Discussion)

Fluchtgut: Zwischen Fairness und Gerechtigkeit für Nachkommen und heutige Besitzer (Flight Goods: Between Fairness and Justices for Successors and Current Possesors)

Dr. Thomas Buomberger, Historiker/Journalist, Winterthur

Dr. Sibylle Ehringhaus, Provenienzforscherin/Kunsthistorikerin (Provenance researcher/art historian), Berlin

RA Alexander Jolles, Zürich

Lic. phil. Esther Tisa-Francini, Museum Rietberg, Zürich

RA Olaf Ossmann, Winterthur

Moderation: Karin Salm, Radio SRF 2 Kultur

18.00 Ende der Veranstaltung (end of meeting)

Anish Kapoor Sculpture Dispute Tests the Legal Utility of Terms Like Plagiarism and Appropriation

Posted in Copyright, Fair Use

A sculpture in China that is remarkably similar to Anish Kapoor’s famous Cloud Gate in Chicago is highlighting how the colloquial use of words like appropriation and plagiarism, while useful and descriptive to distinguishing the creative process, can often confuse the issue when it comes to sorting out the parties’ legal rights.  While the opinion here is that Kapoor has a good case for infringement (Cloud Gate-gate?), it is not the idea of plagiarism that would support his claim.

Kapoor’s Cloud Gate is an iconic feature of Chicago, right outside the Art Institute of Chicago and Millennium Park.  Installed in 2006, the rounded oblong sculpture measures 33 x 66 x 42 feet, with a highly polished exterior that almost looks like a drop of mercury mid-motion, with an arc underneath large enough to walk through.  Recently, however, a strikingly similar sculpture appeared in the Chinese city of Karamay, in the Xinjiang region.  It, too, has an ovoid shape that is concave perpendicular to its axis, allowing passage underneath by pedestrians (and is of a similar scale allowing one to do so).  One difference that appears to exist (from looking at photographs) is that unlike Cloud Gate, one end of the Chinese sculpture has two points of contact with the ground rather than one.  Thus, a visitor can walk parallel to the access of the sculpture and go underneath, which she could not do in Chicago.

The story got somewhat stranger when Kapoor learned of the Chinese work and decried it as “plagiarism.”  Ma Jun of the region’s tourism bureau told the Wall Street Journal that the works are in fact distinct, because He said that Cloud Gate has “a bean shape” while the Chinese sculpture is meant to mimic an oil bubble in reference to an oil well in the vicinity.  To me, that sound a little like Vanilla Ice trying to explain why the baseline in “Ice, Ice, Baby” is different than the famous riff from “Pressure” by David Bowie and Freddie Mercury (spoiler alert: they’re the same!).

Kapoor threatened to sue in a statement to Hyperallergic:

It seems that in China today it is permissible to steal the creativity of others. . . . I feel I must take this to the highest level and pursue those responsible in the courts. I hope that the Mayor of Chicago will join me in this action. The Chinese authorities must act to stop this kind of infringement and allow the full enforcement of copyright.

Rather than side with Kapoor, however, Chicago Mayor Rahm Emmanuel somewhat puzzlingly told the Chicago Sun Times, “Imitation is the greatest form of flattery’ is what I would say. . . .  And if you want to see original artwork like this or like the Bean, you come to Chicago.”  Kapoor, not surprisingly, found this unhelpful.

It is unknown what Kapoor will do at this point.  Even if he concluded that he has a case for infringement (which in my opinion he does for reasons I will get to shortly), he would also have to determine how to acquire jurisdiction over the Chinese city in a U.S. court, likely pursuant to an exception under the Foreign Sovereign Immunities Act (FSIA).  I would expect that his attorneys are analyzing that question so that he can decide what to do.

In the meantime, I think the question of infringement and/or “plagiarism” is the most interesting aspect of this.  As usual, Donn Zaretsky has framed an interesting series of questions arising out of this case at The Art Law Blog:

how do we distinguish this from other cases of appropriation, where the conventional wisdom seems to run in the other direction?  Do the SuicideGirls count as other innovators who have had their copyrighted material stolen in a similar way?  Is it correct to accept that we should allow their creativity to be stolen?  Can we let that happen?

I don’t think there’s any argument for appropriation or fair use here, primarily because the Chinese city is not claiming (as Richard Prince has) that the unnamed Chinese artist has a right to copy Kapoor, the Chinese deny that they copied anything at all.  That seems implausible to me, the works are just too similar and the Kapoor work is extremely well known.  If there is copying, and there is no defense, then there is infringement.

To me, the way to look at these cases flows from distinguishing the various terms we hear all the time.  Here is my take: Appropriation is the act of incorporating elements of another work of art.  It is a term that has more to do with artistic process than legal rights.  Fair use, of course, is a statutory defense to a charge of copyright infringement, and the most common excuse asserted in a case of appropriation.  Prince copied Patrick Cariou, but he (successfully) argued that fair use allowed him to.

By contrast, I actually think that plagiarism is a singularly unhelpful word in the context of visual art and legal rights.  The Oxford English Dictionary defines plagiarism as:

1) The action or practice of taking someone else’s work, idea, etc., and passing it off as one’s own; literary theft.
2) A particular idea, piece of writing, design, etc., which has been plagiarized; an act or product of plagiary.

Fundamentally plagiarism is about the idea, which copyright and visual art is not terribly well suited to address (and arguably does not address), and rather fits much better for written works.  Kapoor is not a lawyer, so it’s not surprising that he’s most offended at the notion that someone took his creative idea.  But that may not be what wins for him in court.

Some examples: If I write a paper asserting that Congress ought to adopt artist’s royalties, and I fail to point out that my argument is structured and premised just like an earlier author’s, I have committed plagiarism.  But I haven’t committed copyright infringement unless I actually copy the words and phrasing either identically or substantially.  And, necessarily, visual work that intentionally references a previous work cannot credit the first artist the way a writer can.

You can’t drop a footnote in a sculpture or painting.

Contrast: I sculpt a reflective metal work that is indented to distort the reflection of the city around it.  It is a rectangle and 30 feet long.  If a second sculptor makes a shiny metal sculpture that has a similar visual effect on the image of nearby buildings, but it is a sphere, I don’t see much of a copyright claim, but thematically one could certainly argue “plagiarism.”  Even as applied to visual art, it is more a matter of criticism and art history than legal rights.  And the deeper one goes (particularly in painting), one sees why ideas are not generally subject to copyright.  Otherwise, we would be arguing over melancholy landscapes, or bold personalities in portraits.  My own view is that we fortunately don’t have to drill down on those cases.

There is little question that notwithstanding my general unease at claims that technology has made copyright obsolete, a cultural shift of image availability and sharing is underway in the creative community that is pushing the boundaries of copyright.  It does not mean that the rights have changed, but it probably means that certain kinds of disagreements are here to stay for the foreseeable future.

Staatsgalerie Stuttgart Restitutes Wertinger Painting to Rosenbaum and Rosenberg Heirs, Citing Importance of Blocked Accounts That Also Support Guelph Treasure Claim

Posted in Guelph Treasure, Museums, Restitution, World War II

The Staatsgalerie Stuttgart has agreed to return Bildnis Pfalzgraf Johann III (Portrait of Elector-Palatine Johann III), ca. 1526, by Hans Wertinger to the heirs of the art dealers Saemy Rosenberg and Isaak Rosenbaum, the owners of the art dealer firm I. Rosenbaum in Frankfurt. Rosenbaum and Rosenberg sold the Wertinger in 1936, but the proceeds were paid into a Nazi-blocked account. The work eventually ended up with collector Heinrich Scheufelen in 1948.

StaatsgalerieStuttgard

(Photo, Staatsgalerie Stuttgart)

If readers hear some familiarity in the references to Saemy Rosenberg and Isaak Rosenbaum, it is because I. Rosenbaum was one of the three art dealers that formed the consortium that was forced to sell the Guelph Treasure, or Welfenschatz, in 1935 to agents of the Nazi Prussian state. I represent the heirs of those consortium members (and of Zacharias Hackenbroch) in the lawsuit currently pending in Washington, DC. We will not restate all the critical points of that claim here, but for present purposes it is important to note that one of the primary excuses the Federal Republic of Germany and the Stiftung Preussischer Kulturbesitz (SPK) have given for refusing to restitute the Welfenschatz is the claim that the consortium was fairly paid. Yet as the case we filed points out, even the proceeds that Germany claims were a fair price (which they were not) were also paid into an account blocked by the government, and from which confiscatory “flight taxes” and other pretextual fees for the “privilege” of leaving the country alive were taken.

Thus, the decision by the Ministry of Culture of Baden-Württemberg (one of the 16 German states or Länder that make up the Federal Republic) is all the more notable. Critically, in assessing the claim to the Wertinger, state secretary Jürgen Walter said in a statement on Monday, “We stand by our historic responsibility to identify and return cultural goods expropriated from those persecuted by the Nazi regime.” Baden Württemberg had little trouble acknowledging the Wertinger “sale” for what it is: a coerced transaction of looted art. That fact—and that fact alone—mandated restitution. This is a refreshing act of moral clarity.  The press release by the ministry cites the importance of the 1998 Washington Principles on Nazi-Looted Art, and the so-called 1999 “Joint Declaration” by the Federal Republic of Germany and its 16 Länder that committed to the restitution of looted art.

These two claims form an important, but still frustrating, contrast. Dealers like Rosenberg and Rosenbaum were not free to make arms’-length transactions in 1935 or 1936, or to use the proceeds freely. Unequivocal acceptance of that basic fact advances the historic understanding of looted art. That was just as true as when they sold their interest in the Welfenschatz, yet the national government persists in claiming that sale was fair.  Sometimes, these questions are hard only when people make them hard.

Journalist Stefan Koldehoff (author of the excellent Die Bilder Sind Unter Uns, or The Pictures Are Under Us) noted this important parallel in a radio interview this week on Deutschlandfunk. His interview, which is in German, draws this very connection between the Wertinger claim and the Welfenschatz case involving the very same victims of Nazi terror.

Would that the national government and the SPK would follow the laudable example set by one of the German states. And hearty congratulations to the heirs for their persistence in obtaining recognition for the suffering of their ancestors.

“Free Brady” T Shirt Battle and Copyright: Who was First?

Posted in Copyright

Somewhat tongue in cheek, we looked on Wednesday at the potential copyright implications from a back and forth between Governor Charlie Baker and Barstool Sports, which sells “Free Brady” T shirts (playing on Shepard Fairey’ famous Hope image) challenging the New England Patriots’ quarterback’s suspension by the National Football League (“DeflateGate” or “Ballghazi,” depending on who you ask). Gov. Baker recently wore a competing vendor’s “Free Brady” T shirt when doing the Ice Bucket Challenge. Given the sales potential arising out of one of the biggest stories in the country right now (insert decline-of-society comment here), however, the financial stakes are no laughing matter.  The response to Wednesday’s post has been overwhelming; we had more visitors in a three-hour window than we typically get in a month.

The Boston Globe wrote an article about the dispute yesterday, but did not really delve into the legal framework that would control the outcome (addressing more the economic impact of high profile stories on merchandise). In response, Barstool channeled its best inner lawyer and made its case for originality. First, Barstool noted its Tweet on the day of the suspension, noting the date (May 11, 2015) and time (6:03 p.m.):

Barstool May 11

Next, Barstool points out that the competing vendor, I Love Boston Sports, posted on the same day, advertising a T shirt challenging the allegation of misconduct (somewhat off-color and not repeated here) and also invoking the phrase “Free Brady.” As Barstool lays it out, it was not until June 2, 2015 that this appeared on the I Love Boston site:

June2Tweet

The obvious implication is that whatever the origin or timing of the “Free Brady” idea (to which it would be difficult for anyone to claim ownership), the second image was in response to and copied the first.

Were Barstool to claim infringement (in which it has expressed disinterest, but there is no legal bar to changing its mind), since the T shirts are not identical, the test applied would likely be whether the images are substantially similar. As we said initially, the framing of the images certainly looks similar and derivative in our opinion. The timing makes a strong case underscoring that inference.

It remains to be seen, now, if economics compel taking a more forceful approach on anyone’s part.

Oh, and for those keeping actual score, Tom Brady did play briefly in the Patriots’ pre-season game. Oral arguments are set for August 19 on the suspension appeal.

Free Brady!—Did Governor Baker’s T-Shirt Have a Copyright Problem?

Posted in Copyright, Fair Use, Trademark

Tom Brady will be in New York today at a hearing in the litigation over his 4-game suspension by Roger Goodell for allegedly being “generally aware” of the deflation of footballs in the AFC Championship thrashing of the Indianapolis Colts last winter. For good legal analysis of the absolute fiasco that is the NFL’s attempt at a middle-school science project (instigated by the condition of a football introduced from the opposing team—but congratulations on another AFC Finalist banner) and the resulting adjudicatory process, I suggest John Dowd’s blog (“The NFL’s investigation of and rules against Tom Brady are a travesty, and they’ve resulted in uncalled-for penalties. And it’s all based on a report that lacks basic integrity, fairness and credibility.”). Dowd is an experienced federal prosecutor and led the investigation, among others, into Pete Rose and gambling for Major League Baseball. Most notably, he was sufficiently offended by the whole exercise to take the issue up with no relationship to the parties. Mike Florio at ProFootballTalk and Steph Stradley have also covered the story well.

In our domain—the realm of visual art (and don’t forget, Brady’s victory in the Super Bowl was the same game that gave us Left Shark)—however, the story has provided an unexpected and interesting angle this week. The creation of the “Free Brady” T shirt has spawned knockoffs that included one recently worn by the governor in a high-profile appearance. In sum, the creator of the original Free Brady T shirt may well have claim of copyright infringement against its knockoff competitors.

Shortly after the May suspension, the website Barstool Sports began selling this T-shirt:

Brady T

In an interview on Tuesday in Metro, Barstool president David Portnoy said that:

he dreamed up the idea for the shirt, and started selling them online “within 30 seconds of the suspension” and about two weeks before anyone else.

Ironically, the T shirt is a riff on Shepard Fairey’s Hope image of then-Senator Obama during the 2008 Presidential campaign. That image, of course, was itself the subject of a highly-watched fair use case brought by the Associated Press photographer whose image of Obama was incorporated and altered by Fairey. The case settled without any judicial opinions about whether it was fair use.

This week, Massachusetts Governor Charlie Baker took part in the second annual Ice Bucket Challenge, in which people video themselves dumping a bucket of ice water over their heads and challenging friends and acquaintances to do the same to raise awareness and money for ALS research. Notably, he was wearing a “Free Brady” T shirt, except his was red, and the image of Brady was different. Instead of Barstool’s picture in which Brady is biting his lip, wearing a white jersey and looking to his left, Baker’s shirt showed Brady looking to his right, and wearing a blue jersey and dark knit winter cap.

Baker Tweet

Barstool responded playfully by “demanding” an apology.  Baker (equally playfully) apologized, Portnoy accepted his apology while teasing Pete Frates, the man who invented the challenge, and all was well. As is often the case, not taking oneself too seriously avoided a greater escalation. Portnoy was paraphrased in the Metro article as saying that he “can’t make a legal claim on the likeness of a football star.”

But I’m not so sure that Portnoy doesn’t have a more basic copyright claim.  Think of it this way: if someone copied an Andy Warhol painting of Jacqueline Kennedy, her fame would be no defense to infringement in and of itself.  Portnoy’s image is an original creative work that is copyrighted. There is no doubt in my mind about that. And there is equally no debating that the later T shirt was, at least conceptually, a copy.

Whether Portnoy could sue to me breaks down into two questions: was there actual copying within the Copyright Act, and could the second T shirt artist claim fair use?

As to the first question, Portnoy can’t claim a copyright in the phrase “Free Brady.” Words and short phrases are not eligible for copyright protection, nor is the mere idea of a T shirt taking up the cause of Tom Brady. Nor, I think, is there sufficient affiliation in the public’s mind with Barstool specifically that a trademark could be claimed in that phrase (though this recent flap could change that). But consider the visual image. The way the words are framed is nearly identical, overlapping Brady’s face and torso. The image, as noted above, is not the same, but both selected a picture of Brady looking off-camera into the distance, with a somewhat soft-focus stare. The composition, certainly, is intentionally duplicative.

Assume then for discussion that the new shirt could be considered to have copied the Barstool version. Could it nonetheless claim fair use? Here I don’t think so. A recap of the ever-present fair use factors from § 107 of the Copyright Act:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Whether or not one goes all in on the “transformative” test that has come to dominate the question of visual arts fair use, this analysis would be very different because of the commercial nature. The new T shirt is not part of an expressive conversation with the older shirt, it is in commercial competition. Advantage, Barstool. And the last factor probably overwhelms the rest (again, which is more unusual for visual images). The new T shirt is specifically designed to displace sales of the older one. It’s a zero sum game: once I’ve bought a Barstool T shirt, I’m not likely to buy a second one. But if the knockoff version gets to me first, I might well buy it and then not buy one from Barstool.

Barstool is likely happy enough for the added publicity, but unlicensed consumer goods are big business and a big problem for the actual creators and licensees. So buy a properly-licensed T shirt.

And for goodness sake, Free Brady already.

Man Claims to Know Identity of Gardner Museum Visitor Seen in Surveillance Video

Posted in Gardner Heist, Museums

Well that didn’t take long.

Just a few days after the FBI released vintage security video footage from the night before the infamous Isabella Stewart Gardner Museum heist, a lawyer has told the FBI that a former client called him to claim that he can identify a man seen in the footage.  It bears noting that there are two shots showing a man in the new footage (one inside, one outside), and no indication of whether they are the same person. Regardless, George G. Burke of Quincy said that his former client was in the antiques business, and that the anonymous client knows a man in the video from that industry.

The Gardner security guard that night, Richard Abath, was also on duty the following night when the theft occurred. The Boston Globe has reported that Abath told investigators that he did not recall the March 17 (night before) incident seen in the video. Abath opened the door the following evening to the thieves dressed as police, but was then handcuffed and duct-taped while the robbery commenced. Not surprisingly, Abath has been reluctant to make public comments about the robbery long ago, citing his frustration with the inability to shake suspicion that he was involved (which he categorically denies). In an interview two years ago, Abath said, “I told them as I’ve said a hundred times before and since, I had absolutely nothing to do with the robbers or the robbery.” And later, “I know I wasn’t suppose to let strangers into the museum after hours, but no one told me what to do if the police showed up saying they were there to investigate a disturbance,” Abath said. “What was I supposed to do?”

Back to yesterday’s news, Burke was clear that his former client has absolutely no interest in being publicly identified because “he is afraid of being killed,” but is willing to have Burke give his name to the FBI.  Burke disclose further that the anonymous client had purposefully avoided doing business with the man in the video because of an association with Myles Connor and William Youngworth.

The video will presumably result in all manner of “I know a guy” phone calls, and all of the names cited in the tip are publicly known, but the claim is certainly specific. If the tipster is a reputable dealer (which would reduce or eliminate concerns about score-settling), this could be a promising lead for the first time in a long time.

One final note. Even though the FBI has said for at least a couple years that it knows who the robbers are, it will not say their names, but that it believes that they are dead. So let’s say that the March 17 video does show a dry run, and the man or men seen are the robbers. If those men are dead, this would not necessarily lead any closer to the painting. It is therefore important that these developments stay public. Clearly this video should have seen the light of day a long, long time ago. One hopes that if the tip does truly move the ball forward in the investigation, that will also be public so that additional connections can be made and the paintings can be found.

FBI Releases Gardner Video, Suggests Dry Run Like Another That May Have Preceded 1990 Heist

Posted in Gardner Heist, Museums

As we have often lamented, real news in the Isabella Stewart Gardner heist has been rare, with coverage far more often manufactured around anniversary dates.  Last week was an exception at least from the public’s standpoint when the FBI released video footage from the museum the day before the robbery in an effort to solicit the public’s assistance.  The FBI posited that the men seen in the video may have been engaged in a trial run for the eventual theft, in which the thieves pretended to be police officers to gain entry to the museum after hours.  Most of the recent efforts by law enforcement have focused on Robert Gentile, whom authorities have accused of having information concerning the paintings’ whereabouts.  Gentile has consistently denied knowing anything, and has spent time in prison that might have been avoided had he revealed information.  Gentile most recently accused the FBI of entrapment, and no progress on that front seems particularly likely, but this approach is a notable shift.

Helpfully, the release of a video last week refocuses attention on the known details of the robbery itself.  The video (visible on YouTube) is surveillance footage from the museum’s security system.  It is hard to follow and skips quite a bit, but the keys are twofold: first, an older-looking man with glasses and suspenders is shown lingering near the security desk.  A second, outdoor feed shows a sedan from which a man emerges pulling up to the curb near the museum, which apparently matches the description of the vehicle used in the theft.  The man goes to the reception area, waits for the security guard to buzz him into security (which he seems to do), but then returns to the car and drives away.

On their own, particularly since law enforcement has had the video and the description of the actual thieves for 25 years, it might not mean much.  And, it runs the risk that whoever that man is, if he is publicly identified as a result of this disclosure we could have a Richard Jewell moment on our hands from which a conceivably innocent person could have a very hard time extracting himself.

So there is no way to know anything about him and nothing here should be read to suggest anything about him.  But I found the presence of the car, and the idea of a dry run, much more intriguing because of something I learned from Steven Kurkjian’s outstanding book published earlier this year: Master Thieves—the Boston Gangsters Who Pulled Off the World’s Greatest Art Heist.  Kurkjian described a chilling sequence at the Museum of Fine Arts Boston on January 15, 1990, just two months before the Gardner theft.  For those outside of Boston, the MFA and the Gardner are at most half a mile apart, and are connected by the Frederick Law Olmstead Emerald Necklace (which has several different parkway names along its length).  The Emerald Necklace is beautiful, but very winding, poorly lit, and at least back then, not a place where people would tend to linger after dark.  And all of this was just across Huntington Avenue from the Mission Hill neighborhood that was just a few months removed from the Charles Stuart fiasco (not a good year around here).  As Kurkjian wrote at p. 30 of Master Thieves:

The winding streets around the Museum of Fine Arts were quiet, empty, and, with the Boston police force having just wrapped up its safety detail for the first official Martin Luther King, Jr. holiday commemoration, lightly patrolled.  Suddenly two men dressed in Boston police uniforms showed up at the rear entrance of the MFA and rang the buzzer.

“Boston police-open up.  We’re looking for someone.”

When the night watchman looked out and saw what looked like policemen but advised them that he was not permitted to let anyone in, the men outside repeated their demand impatiently.  The night watchman went to get his supervisor, but when they returned the men outside were gone.

That passage sent a chill down my spine when I first read it.  It offers the prospect that perhaps the MFA was the first target, but that the thieves changed their plan when they encountered resistance. It was for that reason that the video’s suggestion of a dry run leapt out at me as intriguing.

There have been no official updates since the video was released, but it certainly seems like a more fruitful investigative approach than pressuring Gentile.  Hopefully it will be.

No Extradition to Poland for Dealer Accused of Trying to Sell Nazi-Looted Art

Posted in Litigation, Restitution, World War II

A Polish man arrested in February after being accused of trying to sell in Moscow a painting looted by the German army from the National Museum of Poznan during World War II will not be extradited to Poland. The U.S. District Court in New York (Rakoff, J.) concluded that Alexander Khochinsky did not acquire “Girl with Dove” by Antoine Pesne—stolen by the German army—with the knowledge that it was stolen property, and thus, could not be extradited. While there could be a second attempt to extradite him for his conduct after he learned the Polish government considered the painting to be stolen (when he had proposed to exchange it for restitution for his mother’s home), it seems unlikely. The whereabouts of the painting are unknown.

The case began when the U.S. government filed a Complaint against Khochinsky on February 25, 2015, which alleged:

KHOCHINSKY is charged with purchasing or helping to sell or accepting or helping to conceal a thing that has been gained through a prohibited act, in violation of Article 291, Paragraph 1 and Article 294, Paragraphs 1 and 2 of the Criminal Code of the Republic of Poland, and in connection with Article 11, Paragraph 2 of the Criminal Code of the Republic of Poland. Put another way, Khochinsky was accused of violating Polish law by attempting to fence “Girl with Dove” in Russia despite allegedly knowing that it had been stolen.

Prior to Khochinsky’s alleged possession, the painting’s provenance is complicated, but the looting part at least did not seem in dispute. Again from the Complaint:

“Girl with a Dove” is catalogued in the Book of Acquisitions of the Greater Poland Museum in Poznan under inventory number 60/1931 and number 233 of the Kaiser Friedrich-Museum Poznan. “Girl with a Dove” was taken by the German Third Reich in 1943 and found by the Russian Army in 1945, whereupon it was removed to a repository of the former Union of Soviet Socialist Republics (U.S.S.R.). “Girl with a Dove” was registered on sheet number 5983 of the database of cultural items lost in World War II by the Polish Ministry of Culture and National Heritage and placed in the Interpol list of Stolen Works of Art, reference number 2010/50630-1.1.

Khochinsky supposedly began seeking in 2010 to sell it, including an offer to Poland itself via the Polish embassy in Moscow. Khochinsky testified that he approached the Polish government out of a desire for consideration for his own restitution request, namely, the land owned by his mother, a Polish Jew who had been forced to flee the country during the war. That land is now occupied by a Roman Catholic church, he testified. In other words, his proposal was to swap the painting for value of the land.

The Polish government’s reaction was immediately negative, and its treatment of the case was suspicious from the start. In response to requests concerning its provenance, Khochinsky stated that he had inherited it from his father in 1991, who had told him that the Soviet army had found it in a house occupied by German soldiers (resolving, at least in his mind, the question of ownership thereafter given the German army’s conduct).

Poland first applied for Russian assistance, but a Moscow court rejected the request to search Khochinsky’s apartment. Thereafter, a Polish judge issued a warrant for Khochinsky’s arrest on suspicion of having knowingly acquired stolen property. The diplomatic process then swung into gear. The Polish embassy to the United States submitted on July 1, 2013 Diplomatic Note No. 35-15-2013, formally requesting the extradition of Khochinsky. This request was made pursuant to the Extradition Treaty between the United States of America and the Republic of Poland. The treaty was signed by President Clinton on July 10, 1996, though not ratified by the Senate for more than a year. That treaty provides that the United States agrees to provide legal representation to Poland in U.S. courts for extradition requests(as would the Polish government over U.S. requests for extradition for someone in Poland). Offenses are deemed extraditable depending on their severity, typically measured through the length of punishment (i.e., imprisonment of more than a year).

Khochinsky moved to dismiss the Complaint, and the U.S. District Court held an evidentiary hearing on June 17, 2015. The court was particularly taken with the fact that notwithstanding the painting’s listing with Interpol as stolen, it was “openly exhibited” in Khochinsky’s Moscow gallery. Khochinsky claimed that he was unaware that the Polish government sought the return of the painting until this 2010 sequence. Other family members testified concerning the painting’s presence in their Leningrad apartment more than thirty years ago.

To approve extradition, the judge must determine “whether a valid treaty exists; whether the crime charged is covered by the relevant treaty; and whether the evidence marshaled in support of the complaint for extradition is sufficient under the applicable standard of proof.” This is not a reassessment of the foreign proceeding, but essentially a confirmation of whether there was probably cause for it. The court noted that on the specific offense charged, “the Polish charge against Khochinsky appears to be limited to the acquisition of ‘Girl with Dove’ before May 18, 2010,” as confirmed by a clarification request from the U.S. government later. That is, even if Khochinsky had done something after May 18, 2010 to evidence knowledge that the painting was stolen, due process would not allow his extradition for that.

The court found that the evidence was dramatically in Khochinsky’s favor on that point. Summing up the evidence, the court concluded, “This behavior is inconsistent with someone who knows his property is sought by a foreign sovereign.”

This does not necessarily end the request, though given how long the recent attempt took it may be awhile before we hear anything else. As noted above, the court was very clear that it would not consider Khochinsky’s post-May 2010 conduct as a basis for extradition because of the specifics of the Polish warrant concerning acquisition. If a new warrant or indictment issued from Poland more specifically on his later conduct, the government could conceivably try again (but also perhaps have to contend with double jeopardy arguments).

ABA Journal Opens Voting on “Blog 100”—Here Are My Votes

Posted in Blogs

The ABA Journal has opened voting again on its annual “Blog 100,” a roll of notable legal blogs.  I’ve submitted votes for the following blogs (in no particular order), which I have bookmarked and consult regularly.  The great thing about blogging, I have found, is the ability it gives the reader (and the blogger) to survey multiple perspectives on a subject.  So when resale royalties are under discussion, or fair use, I don’t want to read only articles that I agree with or that take the same approach that I would.  I also want to hear something I never would have thought of, and expand the conversation.

If you are so motivated, you can submit votes here (as many candidates as you like).  Good blogging takes reinforcement, and these writers (and others) deserve it.  Happy reading!

The Art Law Blog

Donn Zaretsky of Silberman and Associates offers an ever-current and often acerbic take on variety of issues, particularly copyright, VARA, fair use, and deaccessioning.  No fan of the logical flaws of what he calls the “deaccessioning police,” Zaretsky’s takes are sharp and well-informed.  Twitter:

Center for Art Law

In just a few years, Irina Tarsis has assembled an impressive clearinghouse of contributors on all issues, from museums, to copyright, to looted art.  Also a terrific place to stay current on topical events and peruse other art lawyers on the resources page.  Twitter: @itsartlaw.

Art Law & More

Tim Maxwell and Becky Shaw at Boodle Hatfield LLP in London have an impressive output on both transational and U.K. art law issues.  Twitter: @ArtLawandMore

Art Law London

Also based in London, Paul Howcroft at Fladgate LLP focuses on his expertise in English law as it relates to art matters.  Twitter: @HowcroftPaul

Dispute Resolution in Germany

Peter Bert at Taylor Wessing in Frankfurt covers all manner of dispute resolution, but I rely heavily on his timely analysis of German law, particularly in the restitution arena (in which he is experienced).  Twitter: @peter_bert.

Private Art Investor

Of general interest beyond law, this financial magazine for the art world is nonetheless very current and informed on legal issues, and in particular the financial dimension of them.  Twitter: @PrivArtInvest

Art@Law

Pierre Valentin, Azmina Jasani, Natalia Mikolajczyk and their colleagues provide Constantine Cannon LLP’s in-depth coverage of art and market issues, supported by a fantastic e-mail newsletter as well.

Stropheus

Richard Lehun and Judith Prowda have broken the mold in offering unbundled legal services and a fresh take on the world of galleries in particular.  Twitter: @stropheus.