Another Federal Circuit Rules Against Claudia Seger-Thomschitz

"Two Nudes (Lovers)", Oskar Kokoschka

The First Circuit Federal Court of Appeals in Boston has held that the MFA Boston is entitled to retain ownership of this work. The work was the subject of a sale in 1938 to a dealer in Paris.  The MFA Boston purchased this work in 1972, attorneys for the claimant contacted the Museum in 2007 about securing the return of the work, and the Museum brought suit in January of 2008 to seek a declaratory judgment of the work, precluding any claim by Ms. Seger-Thomschitz.

The history of the work is complicated.  It depicts the artist and Alma Mahler, the wife of Gustav Mahler. The claimant argued the painting was sold under duress by Oskar Reichel a physician and gallery owner in Austria. The work had been consigned on several occasions to an art dealer, Otto Kallir. Kallir later left Vienna, eventually coming to New York, and he brought this and some other works of art with him. He sent money to Reichel's sons at this point. In 1939, the work was sent to Paris; in 1945 it was sold to a New York dealer for $1,500; Sarah Blodgett purchased the work in the 1940s; she gave the work to the MFA Boston in 1972. Claudia Seger-Thomschitz, though apparently not a blood relative of Reichel, had nonetheless been designated as the sole beneficiary of his estate and was described as his "select-niece".

The claimant learned in 2003 that she might have a claim to the work, and though she is a nurse with no professional expertise in nazi-era suits, the court imposed a burden on her to seek the return of the work.  The Court made clear it was not judging the legality of the museum's acquisition of the work in 1973, pointing out that

Precisely because they do not address the merits of a claim, statutes of limitations do not vindicate the conduct of parties who successfully invoke them. Although we make no judgment about the legality of the MFA's acquisition of the Painting in 1973, we note the MFA's own disclosure that, when confronted with Seger-Thomschitz's claim, it initiated a provenance investigation for the Painting that it had not done before. The timing of that investigation may have been legally inconsequential in this case. However, for works of art with unmistakable roots in the Holocaust era, museums would now be well-advised to follow the guidelines of the American Association of Museums: "[M]useums should take all reasonable steps to resolve the Nazi-era provenance status of objects before acquiring them for their collections — whether by purchase, gift, bequest, or exchange." American Association of Museums, Guidelines Concerning the Unlawful Appropriation of Objects During the Nazi Era (Nov. 1999)

The decision comes just as the Jewish Claims Conference has launched a database with 20,000 objects from the Einsatzstab Reichsleiter Rosenberg (ERR), the Nazi's art-looting task force.  For more on the database, see Catherine Sezgin's excellent discussion here. Perhaps that database will urge more museums and private owners with objects once owned by Nazi-era victims, which was surely one of the primary motivations for the  initiative. Because court actions are difficult options for claimants. In August the 5th Circuit Court of Appeals held Ms. Seger-Thomschitz did not have a timely claim to another Kokoschka work against Sarah Blodgett Dunbar who had inherited the work in 1973 because too much time had elapsed and Dunbar had acquired title to the work via prescription.

1. Museum of Fine Arts, Boston, v. Seger-Thomschitz,--- F.3d ----, 2010 WL 4010121 (1st Cir., 2010).
2. Dunbar v. Seger-Thomschitz, 615 F.3d 574 (5th Cir., 2010).  

MFA Boston Prevails in Nazi-era Declaratory Judgment

The Museum of Fine Arts, Boston has prevailed in its suit against Dr. Claudia Seger-Tomschitz, Museum of Fine Arts, Boston v. Seger-Thomschitz, No. 08-10097-RWZ (D. Mass. 2009). 

At issue was this work, "Two Nudes (Lovers)" by Oskar Kokoschka, 1913.  The work has been on display "almost continuosly" since 1973 according to the Boston Globe's Geoff Edgers. 

The museum brought suit to preclude any potential restitution suit, essentially asking the court to declare it the rightful owner of the work.  The Museum brought suit back in January 2008, and in the complaint argued the "painting was never confiscated by the Nazis, was never sold by force as a result of Nazi persecution, and was not otherwise taken". 

The potential claimant, Claudia Seger-Thomschitz, claimed the painting was sold under duress by Oskar Reichel a physician and gallery owner in Austria. The work had been consigned on several occasions to an art dealer, Otto Kallir who owned the Neue Galerie in Vienna.  Kallir later left Vienna, eventually coming to New York, and he brought this and some other works of art with him.  He sent money to Reichel's sons at this point.  In 1939, the work was sent to Paris; in 1945 it was sold to a New York dealer for $1,500; Sarah Blodgett purchased the work in the 1940s; she gave the work to the MFA Boston in 1972.

District Judge Rya Zobel held:

[A]lthough the Reichel family never claimed compensation for any of the Kokoschka works that had been transferred to Kallir for sale, it did claim restitution for artwork and property that had been stolen by the Nazis.

[T]he Reichel family never attempted to recover the painting after WWII, and there is no evidence that it believed the transfer was not legitimate.

The evidence is undisputed that the members of the Reichel family had sufficient knowledge of Reichel’s ownership and transfer of the painting.

Dr. Seger-Thomschitz also ―waited more than three years to assert her claim after she was on inquiry notice of her possible right to the Painting…The information necessary to pursue her claim was readily available to both [Dr. Seger-Thomschitz] and her counsel at that time.

[T]he delay in bringing suit will prejudice the MFA because all of the witnesses with actual knowledge of the transfer are deceased.

Any claim by Dr. Seger-Thomschitz that Oskar Reichel was misled when he transferred the painting to Otto Kallir in 1939 was ―pure speculation.

 The court has held that the claimant had opportunities to seek title to the work, but did not, and as a consequence the limitations period has run.   Malcolm Rogers, Director of the MFA Boston stated “The MFA conducted a year and a half long comprehensive investigation of the work’s provenance, seeking documentation of the various transactions and changes of ownership in the painting’s almost 100-year history. We are satisfied and grateful that the judge has reaffirmed the Museum’s rightful ownership of the work.”

Pre-Empting a Holocaust Art Claim

In the Boston Globe Geoff Edgers has the details of a dispute brought by the MFA Boston against an Austrian woman who claims an interest in this work by Oskar Kokoschka, Two Nudes (Lovers) 1913. It's a declaratory judgment action, in which the museum is asking the court to declare it the owner, rather than wait for the claimant to bring suit.

The potential claimant, Claudia Seger-Thomschitz, claims the painting was sold by Oskar Reichel a physician and gallery owner in Austria. In its complaint, the MFA Boston argued the "painting was never confiscated by the Nazis, was never sold by force as a result of Nazi persecution, and was not otherwise taken".

After the work was sold in 1939, the work was sent to Paris; in 1945 it was sold to a New York dealer for $1,500; Sarah Blodgett purchased the work in the 1940s; she gave the work to the MFA Boston in 1972.

Nobody would dispute the persecution the Reichel's faced before and after the sale of the work:

The Nazis occupied Vienna in early 1938. Over the next year, Reichel was forced to sell his gallery and close his medical practice, they said. Two of his sons left Austria. A third son, Max, died in a concentration camp. Reichel's wife, Malvine, was deported to a camp during the war but survived. In 1943, Reichel died in Vienna of natural causes.

However, does that injustice give the claimant an interest in the painting, which has been owned by the MFA Boston since 1972? The museum says no. It's similar in nature to a claim brought by the Toledo Museum of Art last year, which I discussed earlier.

In two earlier cases the institutions initiated their legal actions in quiet title actions. In this way the institutions can choose the forum and the relevant law which will apply to the action. This is a new strategy for art museums. Professor Jennifer Anglim Kreder has a short but informative article on the practice in an October 2007 issue of the Art, Cultural Institutions and Heritage Law Committee Newsletter, available on her SSRN page. She also details an action by the Detroit Institute of Art against the same heirs asserting a claim against the Toledo Museum of Art.

This strategy actually discourages claimants from coming forward and seeking compromise. It's been noted many times that these kinds of disputes are between two relative innocents. In such cases, there may often be room for reasonable compromise such as initial payments or title-sharing agreements of some kind. However if a claimant shows her hand early, she now will risk the possibility that an institution will quickly seek itself declared the owner and preclude any claim.