The Immunity from Seizure Act and the proposed clarification in the Senate

One of the Nazi-era works at issue in Malewicz, titled Suprematism 18th Construction, by Kazimir Malevich

Legislation which would have an impact on the lending of foreign artworks is currently moving through both the House and the Senate. The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act would remedy an inconsistency between two laws. The first act, the Immunity from Seizure Act bars suits which infringe on the custody or control of a museum while they are loaning the work of art. The other act, the Foreign Sovereign Immunity Act has opened the door for some claims, even when immunity has been granted under the Immunity from Seizure Act. 


Two recent cases which highlight this are Magness v. Russian Federation, and Malewicz v. City of Amsterdam. In both those cases suits for the monetary value of the paintings were allowed to continue, despite the fact that they had been granted federal immunity. The proposed law seems to be a sound and reasonable accommodation for the recent conflict between these two statutes. However some have claimed that this would preclude certain claims in Federal Court. This strikes me as troubling because the State Department hears a request for immunity and the parties have to provide detailed information about the history of the loaned works. The implication is that the State Department is not thoroughly vetting these requests, and that when the works arrive in the United States unsuspecting lending museums, who may have been unaware they had a work of art subject to a claim, may be hauled into court, after they were given guarantees that this wouldn't happen. A grant of immunity is issued by the State Department, which has the responsibility for checking that there is no potential claim to the work of art. I find it curious that many of the same groups expressing anxiety about the clarification (like the LCCHP here in this brief press release) advocate for State Department involvement in US import restrictions via the Cultural Property Advisory Panel. It seems to me that if we entrust the State Department with regulating imposition of import restrictions, why are they unable to research the history of an object entering the US for a temporary loan. And for me that makes bad law and bad policy. Foreign lenders perhaps should give up title to some of these contested objects, but claimants waiting in the wings and springing a lawsuit on a lending museum will lead to fewer art loans, and will end up limiting those temporary exhibitions anyway. What we have is a cultural embargo on works of art which may be the subject of a Nazi-era claim.


Art is a good ambassador, and the exchange of art is an admirable goal. Aggressive repatriation litigation, particularly after a foreign museum has been told it will not be sued in Federal Court, by the State Department, sets a troubling precedent and will certainly restrict number and quality of works of art museum visitors will see in loaned exhibitions. Remedying Holocaust-era wrongs is a worthy goal, but piercing immunity produces uncertainty for museums and current possessors of art. A better system would negotiate and recommend returns or compensation via something like the Spoliation Advisory Panel in the United Kingdom. Most interesting of all, the proposed clarification does not even attempt to remedy potential difficulties with Nazi-era disputes which arose between 1933-1945. Holocaust-era claims gained in number in the 1990's with a number of important efforts and writers focusing attention on the issue. It is an example that many museum-goers are aware of. We all know the Nazi's looted art and forced victims into selling or leaving behind their art collections. The legal precedents created in holocaust-era claims also can be applied to other periods of taking like the Bolshevik Revolution and the Cambodian conflict, and in fact we are seeing courts examine the taking of objects during those periods as well. The Holocaust repatriation movement has the benefit of a growing number of advocates who are actively networking with repatriation attorneys, auction houses, and art historians to aggressively pursue claims. However the cost of this litigation is restricted movement of art, and increasing silence on the part of museums in Europe and North America. Holocaust victims should have their rights vindicated, but a courtroom adversarial process is not always the best remedy for past injustices.

Tension Between Museums and Nazi Spoliation Claimants

It should come as no surprise that there are tensions between museums and claimants over how to respond to claims for works of art stolen or appropriated by the Nazis.  Combine the general reluctance of many museums to allow transparency with the complicated stories of many works looted during World War II, and you have a recipe for ongoing disputes and mistrust.  This should explain why litigation may be a crude solution to many of these disputes, and why other nations—mainly in Europe—have done a better job at resolving these disputes than the United States. 

Robin Cembalest gives an overview for ARTnews, offering reactions from both sides.  The dispute stems from a basic disagreement of what kinds of wrongdoing should constitute loot.  Is a forced sale, or a sale under duress the same as outright theft?  Wesley Fisher, director of resaearch at the Conference on Jewish Material Claims Against Germany argues "It is embarrassing that countries that previously did not have such good records in this field, such as Austria, are doing a very good job . . .  And the United States is not doing as well as it was."  AAMD president Kaywin Feldman attributes the reluctance of some institutions to return objects to resources, "The real problem is that museums and claimants need help with research".  I think both of those sides offer some truth, though paying for increased provenance research would surely be less expensive than litigating a claim.  At least part of the difficulty stems from different ideas of what constitute a looted work, and perhaps a commission modeled after the United Kingdom's Spoliation Advisory Panel would offer a less controversial means of resolving these disputes.

1. Robin Cembalest, Tensions are rising between the restitution community and U.S. museums over the proper way to handle Holocaust art claims, ARTnews, October, 2010, http://artnews.com/issues/article.asp?art_id=3073 (last visited Sep 27, 2010).

Hungary Sued in US Over Nazi-Era Restitution Claim

One of the claimed works
"The Annunciation of Saint Joachim", by Lucas Cranach the Elder, 

Carol Vogel reports that the descendants of a Hungarian banker have filed suit in United States District Court over the disposition of a number of works of art.  The defendants include Hungary and a number of Hungarian museums.  The claimants are the descendents of Baron Mor Lipot Herzog, a jewish-Hungarian banker.  Vogel reports that most of the disputed works have been "hanging in Hungarian museums, where it was left for safekeeping during World War II or placed after being stolen by the Nazis and later returned to Hungary."  

I have not been able to track down the plaintiff's complaint just yet, so I cannot really comment on the substance of these claims.  Vogel reports that this suit raises new issues in that the claimants are seeking 40 specific works, but have also asked for an accounting of other works which may have once been owned by the Herzog family.  It seems curious that these claimants are bringing suit in the United States for these objects, jurisdiction must surely play an important role in the case, as will the timeliness of these claims.  It seems the claimants have been requesting these works for nearly twenty years.  A court in Hungary has ruled against the claimants in 2008, so it remains to be seen how an American court will be able to exercise jurisdiction over a dispute involving works once owned by a Hungarian, which are now on display in Hungary, and which have been previously ruled upon by a Hungarian court.  

A Renaissance portrait by Georg Pencz, recently restituted

We can contrast the litigation of these issues with the approach of the Spoliation Advisory Panel in the United Kingdom.  Rather than litigate these issues, the panel is charged with evaluating the claims of those who were dispossessed of their works of art during the Nazi era.  It recently handed over this work to the descendants of Baron Mor Lipot Herzog, and was recently sold for 5.6 million pounds at a Christie's auction.  

Reading Vogel's account, we are left wondering why exactly Hungary has refused to work with the claimants.  It appears they approached Hungary and asked to "split" the paintings under dispute but were refused.  These are important works, and one can understand why a State or museum would be reluctant to lose them.  Yet Vogel's account paints Hungary as a villain, unable and unwilling to account for Nazi-era works.  Is it really that simple?  Surely there must be a principled reason for Hungary refusing to return these works?  Anyone who has access to the complaint or to the recent Hungarian decision, please do drop me a line (derek.fincham "at" gmail.com).  

1. Carol Vogel, Hungary Is Sued Over Large Holocaust Art Claim, The New York Times, July 27, 2010, http://www.nytimes.com/2010/07/28/arts/design/28lawsuit.html?_r=2&partner=rss&emc=rss (last visited Jul 28, 2010).

Holocaust (Stolen Art) Restitution Act takes effect

New legislation which took effect on Friday will allow national museums in England and Scotland to act to return works of art, based on the recommendations of the Spoliation Advisory Panel.  The panel resolves claims arising from the loss of objects to the Nazis.  There have been nine instances of wrongful takings in which claimants were compensated, yet the national institutions have been forbidden from returning objects outright.  The only remedy was payment.  This is a welcome change, and allows UK museums to do the just thing.  Andrew Dismore, MP sponsored the act, and said:

It shows what could be achieved by a determined backbencher: by rolling out my sleeping bag and sleeping on the floor of the Public Bill Office overnight, I was able to become the first in the queue to apply for Second Readings after the balloted Bills, and this tactic paid off.

While I do not envisage the Act having to be used very frequently, this is an important moral step, to ensure that we can close yet a further chapter on the appalling crimes of the Holocaust.

1. UK museums can return looted art, BBC, November 13, 2009.

Heirs Reject Spoliation Panel Ruling

Martin Bailey has an excellent piece for the Art Newspaper on a recent decision involving the U.K.'s Spoliation Advisory Panel.  The collection of experts helps to avoid restitution litigation and makes recommendations when descendants of Nazi-era art owners discover works of art may be in museums in the U.K.  The heirs of Dr. Curt Glaser pursued a Nazi-era claim that eight drawings, (including this drawing by Renoir) currently held by the Courtauld Institute were part of a forced sale in 1933.


The Spoliation panel disagreed:

A key piece of the evidence was a letter from Glaser to his artist friend Edvard Munch on 19 May 1933, the last day of the auction. He wrote that after the death of his first wife and falling in love again, “I have freed myself of all my possessions, so that I might start over again completely new”. Eleven days later he married Marie, and within a month or so they had left Germany. The panel felt that the letter to Munch suggested “mixed motives” behind’s Glaser’s departure, but the heirs dispute this, pointing out that he had had to flee because he was regarded as Jewish and had been dismissed from his job.

On 24 June the Spoliation Advisory Panel concluded that the claimants’ “moral case is insufficiently strong to warrant a recommendation that the drawings should be transferred to them”. Glaser had “obtained reasonable market prices at the auction”, namely 284 reichsmarks (around $1,200 at the time). The Glaser lawyer, New York-based David Rowland, disputes this, saying that “prices were depressed at the time, because other Jewish victims and intellectuals were also selling their belongings”.

New Heritage Legislation in the UK?

Jaspar Copping has a very interesting, though perhaps misleading, article in the Telegraph on Saturday detailing potential new heritage legislation in the UK. He writes initially that UK museums are prevented by law from giving works of art back to the families that once owned them. That is true, but that does not mean these families are denied compensation (which he points out further down in the piece). The Spoliation Advisory Panel has the power to award compensation to the claimant.

It seems there is a campaign by a Labour MP, Andrew Dinsmore:

"The owner of an artwork identified as stolen by the Nazis ought to have the right to decide whether they wish for the artwork to be returned," he said.

"Some people may be happy for work to stay in public collections, but they should have the option. At the moment, they are not given that choice.

"No one knows how many artworks this will relate to but we shouldn't think that just because the war was 60 years ago that this has all finished."

Under the current legislation, all national museums and galleries are prevented from disposing of any of their works. They can only offer compensation to the owners, although private museums are able to return artworks and artefacts.

I'm not sure if this is an essential change. I think the UK policy which avoids costly litigation is a useful model. In the US, where nazi-era restitutions suits are the most common, claimants often get title to the disputed works. However in nearly all cases they sell the works anyway to satisfy the enormous legal fees often required to bring these successful claims.

Then in a response, the Department of Culture Media and Sport said, "The Government are committed to introducing legislation as soon as possible to allow all national museums, that are currently prevented from doing so by the acts of parliament under which they are founded, to return works of art spoliated during the Nazi era." It seems this legislation will be a component of the prospective Heritage Protection Bill.

One thing to watch closely will be how the legislation may permit institutions to return the work to claimants, a potential move which may signal a shift in the obstacles the British Museum may have in electing to return antiquities to their nation of origin. The debate over that question will likely feature in the consideration, as the Parthenon Marbles always seem to be overshadowing UK heritage policy.

Spoliation Advisory Panel

The Spoliation Advisory Panel has issued a decision on a claim for three works by Rubens, St. Gregory the Great with Ss. Maurus and Papianus and St. Domitilla with Ss. Nereus and Achilleus 1606–1607; The Conversion of St. Paul, c.1610–1612 (pictured here); and
The Bounty of James I Triumphing Over Avarice, for the ceiling in the Banqueting House, Whitehall, c.1632–1633. The panel's full report on the case is here.

The panel is an alternative to legal action, which rules on both the legal claims but also the broader ethical questions implicated in these disputes. The panel issued its ruling Wednesday that art collector Franz Koenigs lost these works due to "business/economic reasons" and not to the Nazis. A translation of the Dutch Wikipedia page on Koenigs is here. Christine Koenigs, the granddaughter of the collector sought the three Rubens from the Courtauld Institute of Art in London. The panel ruled these three works had been used as collateral to a bank in Hamburg. The bank then moved to the Netherlands, and in 1940 it liquidated its assets before the Nazi invasion, thereby calling in Koenigs' loan.

The National Gallery says a work may have been stolen by Nazis

Richard Brooks of the Sunday Times, has a piece yesterday which indicates the National Gallery has a work by Lucas Cranach, "Cupid Complaining to Venus", which may have been looted by the Nazis. The National Gallery has an entry on its website about the painting here. Elsewhere on the National Gallery website, the work's provenance is listed as being questionable.

The National Gallery revealed the dubious history of the work after they learned it had been taken from a German Warehouse in 1945 by Patricia Lochridge Hartwell, an American Reporter. Hartwell's son met with the museum last year. It seems she may have been invited into a German warehouse by American Soldiers in 1945 and allowed to take her pick. It's yet another example of how spoliation from World War II is still being discovered. The piece does not state why the Gallery has taken so long to come forward with this news. Perhaps it was investigating the claims, or it may have been concerned that the news was about to be broken. The Gallery coming forward in this way of its own volition looks much better than if the questionable provenance was revealed by a claimant.

If a claimant comes forward, the case will be considered by England's Spoliation Advisory Panel, which was set up in 2000 to evaluate claims for spoliation issues. Often, the panel orders compensation for the claimant, as a measure of compromise, and not the whole work. I would look for Germany to initiate a similar panel in the wake of all the restitution which has caused the loss of art from its museums in recent years.