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.”

Voluntary Returns

A couple interesting returns of objects, both of which which appear to be completely voluntary.

First is a letter by Abraham Lincoln:

An extremely valuable letter by Abraham Lincoln dated November 14, 1863 -- missing from public records for maybe 100 years -- has been donated today by a private collector to the National Archives.

The brief note on Executive Mansion letterhead in the President's handwriting signed "A.Lincoln" was sent to Treasury Secretary Salmon Chase. It was written five days before Lincoln delivered the Gettysburg Address, providing insight into the president's regard for a personal friend and his interest in West Coast politics even in the midst of the Civil War.

National Archivists discovered the Lincoln letter being sold online in 2006. It originally had been torn or fallen from an 1880 bound volume of government correspondence to the Treasury Department. There is no evidence that the letter was ever stolen, and how it went missing remains a mystery.

When contacted by Archivists, the letter's owner, Lawrence Cutler, a private collector in Tempe, Arizona decided to donate it during the bicentennial of Lincoln's birthday. Cutler  would not disclose what he paid for the letter at auction three years ago, but said a similar Lincoln letter sold for $78,000.

The next is a group of objects donated to Eton College, which have been returned to Egypt:

Four sons of Horus, New Kingdom, 19th Dynasty or later after ca 1295 B.C.

LONDON. Eton College, in the south of England, has returned more than 450 antiquities to Egypt, after it was realised that many had probably been illegally exported. Last month we reported that the main part of the school’s collection, bequeathed to the school by Major William Myers in 1899, is going on long-term loan to Birmingham University in the UK and Baltimore’s Johns Hopkins University in the US (The Art Newspaper, May 2009, p7).

The returned antiquities had been donated to Eton over a century later, in 2006, by the family of the late Ron Davey, a London-based Egyptologist. He in turn had received most of them as a bequest from his friend, Peter Webb, who had died in 1992.

When the antiquities arrived at Eton three years ago, they were examined by curator Dr Nicholas Reeves. The donation comprised 454 items, including ushabti figurines, beads and amulets, textile fragments, potsherds, coins and other small objects.

Both the letter and the Egyptian antiquities do not seem to be terribly valuable, but the individual dealer and Eton College have both seemingly unilaterally decided to return the objects to their proper stewards.  But one wonders if either the letter or the antiquities are particularly valuable or noteworthy.  If they had been, would the decision to return them been more difficult?  I think it probably would have been.

More on Looted Antiquities on Ebay

Mike Boehm has a piece in the LA Times which does a good job following up with Charles Stanish, author of the recent piece in Archaology Magazine discussing looted antiquities on EBay which I discussed earlier here.  Stanish argues that the internet is not quite the haven for looted antiquities some may have feared, but instead a substantial amount of the antiquities for sale online are likely fakes. The piece offers a counter to many of Stanish's assertions, including:

Usher Lieberman, a spokesperson with Ebay:

"We take very seriously any claims that items sold on the site aren't genuine. . . . This isn't something we're hearing a lot about."

Oscar White Muscarella, an archaeologist:

"The guy who has money and a lust for antiquities is going to buy them . . .  What's going to decrease plundering is not forgeries, it's only if governments take more action."

Finally, Jerome M. Eisenberg,owner of the Royal Athena Galleries in New York is quoted in the piece:

"[A]nybody with a decent amount of intelligence isn't going to buy on EBay unless they know who they're dealing with."

Threedy on the Role of Storytelling in NAGPRA Repatriation

Debora L. Threedy, University of Utah College of Law, has a piece in the Journal of Land, Resources and Environmental Law, Vol 29 No 1 (2009), CLAIMING THE SHIELDS: LAW, ANTHROPOLOGY, AND THE ROLE OF STORYTELLING IN A NAGPRA REPATRIATION CASE STUDY.  Here is the abstract:

  After some odd twists and turns by the end of the twentieth century the shields were in the possession of Capitol Reef National Park. At that point, three claims were filed for repatriation of the shields under the auspices of the Native American Graves Protection and Repatriation Act (NAGPRA or the Act). 

In this paper, I use the controversy surrounding the repatriation of the three shields as the basis for examining the question of who owns the past. In particular, I examine how the repatriation process under NAGPRA addresses that question. I do this through the methodology of a case study. Because of the fact-intensive inquiry required under NAGPRA, and because NAGPRA repatriation cases are not typically resolved through court litigation, a case study seems an appropriate way to proceed with this examination.

"a powerful broadside aimed at Britain"

That's how Frank Partride describes the New Acropolis Museum in the Independent:

At the museum entrance, a signboard describes the Parthenon Gallery as a "dress rehearsal for a permanent exhibition of the entire frieze". For the Greeks, it's no longer a matter of if the marbles are returned, but when. Bernard Tschumi, the museum's Swiss-born architect, signed off his €130m creation with the words: "I'm convinced the marbles will come back. Their return will make sense straight away." 

Professor Dimitrios Pandermalis, the academic who has overseen the six-year project, speaks with the quiet certainty of someone who knows his big moment is at hand, after a very Athenian sequence of delays that have postponed the opening by nearly a year. Building anything in Athens is bound to turn up a treasure or two in the subsoil, and as the holes were being sunk to house the museum's load-bearing piles, a 5,000-year-old urban settlement was discovered, which had to be carefully excavated and incorporated into the design. They've achieved this triumphantly, turning part of the ground floor into a glass walkway directly above the ruins, giving the impression that the museum is suspended in mid-air.

Tough Times at Brandeis

Brandeis University, under a great deal of criticism for its announced decision to sell many of the works in its Rose Museum has announced it will halt retirement payments beginning in July.  It is a sad day when an institutions decides to shutter a museum, but this decision really highlights the grim financial reality facing the University. 

From Tamar Lewin's piece in today's NYT (via the Art Law Blog): 

While universities across the country have taken a wide range of actions to confront their financial problems, including layoffs and the suspension of capital projects, freezing contributions to retirement accounts is rare. Financially troubled corporations have been taking such action, but faculty and staff members at colleges and universities have traditionally enjoyed stable, and generous, benefits — and expect no less. 

“There is this perception that the nonprofit world is maybe a gentler, kinder world than corporate,” said Roland King, vice president for public affairs at the National Association of Independent Colleges and Universities. “So some people seem to perceive this as a breach of faith, especially since many people go into nonprofit work at less salary, because the benefits are so good. But we are absolutely at a point in this economy where these sort of things have to be on the table.” 

Suspending Brandeis’s contribution to retirement plans from July 1, 2009, through June 30, 2010, will cover $7.4 million of its projected $8.9 million deficit, the university’s president, Jehuda Reinharz, said in an e-mail message to the faculty and staff. In the message, Mr. Reinharz said he had planned to share the news of the suspension at the end of the week, but was pre-empted when it was announced in the May 19 edition of the student newspaper, The Justice.

Byrne on Preserving Gettysburg

J. Peter Byrne, Georgetown, has posted Hallowed Ground: The Gettysburg Battlefield in Historic Preservation Law 22 Tul. Envtl. L.J. 203 (2009) on SSRN.  Here is the abstract:

This article seeks to deepen legal analysis of historic preservation law by analyzing how contemporary presuppositions and legal tools shape changing preservation approaches. It is organized around legal disputes concerning the Gettysburg battlefield, a site of great national significance, which has been preserved in different forms for nearly 150 years. The paper describes the history of preservation at Gettysburg. It argues that the Supreme Court's constitutional approval of federal acquisition of battlefield land in 1896 reflected contemporary conservative nationalism. It also analyzes how legal tools for preservation of land surrounding the battlefield have evolved from simple ownership to coordinated regulation and contract, breaking down the traditional stark division between protected and commercial land. Finally, the article examines how the National Historic Preservation Act governs government choices about what to preserve and how to interpret it. Because preservation of a site associated with a significant event inevitably will reflect contemporary interpretative biases, the law should mandate inclusive processes for making preservation choices and encourage the presentation of multiple perspectives.

Italian Authorities Showcase Recovered Antiquities

Italian authorities yesterday displayed two medieval frescos and other objects recovered during antiquities investigations reports the AP and ANSA.  The medieval frescos were recovered as a part of the investigation into Marion True, which were found at the home of a Greek woman, Despoina Papadimitriou on the island of Schoinoussa in 2006.  Also displayed were some of the objects recovered from Operation Phoenix in which "goods were handed over to Italian authorities by two Lebanese brothers who operated a Geneva antiquities gallery." 

More impressive work from the Carabinieri, but will there be an end to the cycle of looting, seizures and arrests? 

Paper On Underwater Cultural Heritage and Investment Law

Valentina Sara Vadi, a Ph.D candidate at the European University Institute has an article in the recent edition of the Vanderbilt Journal of Transnational Law, Investing in Culture:  Underwater Cultural Heritage and International Investment Law.  Here is the abstract:

Underwater cultural heritage (UCH), which includes evidence of past cultures preserved in shipwrecks, enables the relevant epistemic communities to open a window to the unknown past and enrich their understanding of history. Recent technologies have allowed the recovery of more and more shipwrecks by private actors who often retrieve materials from shipwrecks to sell them. Not all salvors conduct proper scientific inquiry, conserve artifacts, and publish the results of the research; more often, much of the salvaged material is sold and its cultural capital dispersed. Because states rarely have adequate funds to recover ancient shipwrecks and manage this material, however, commercial actors seem to be necessary components of every regulatory framework governing UCH.  In this context, this Article aims to reconcile private interests with the public interest in cultural heritage protection. Such reconciliation requires that international law be reinterpreted and reshaped in order to better protect and preserve UCH and that preservation of cultural heritage be recognized as a key component of economic, social, and cultural development. 

The Theft of Public Statues

Sad story via Bloomberg on the probable fate of this Henry Moore statue, valued at as much as 3 million pounds which may have been stolen and melted for scrap for a mere 2,500 pounds. 

U.K. detectives had first worked on the theory that the piece, “Reclining Figure,” was stolen three years ago at the request of an art collector. It has never been found. Hertfordshire officers said they now believe the 2.1-ton work was sold for its metal, highlighting the security risks facing high-value sculptures shown in public.

“There was a wave of thefts of statues around the time the Moore was stolen,” Dick Ellis, director of the Art Management Group, a U.K.-based company that advises art collectors on security issues, said in an interview. “There is an increase in the theft of statues at the moment,” said Ellis, a former head of Scotland Yard’s art and antiques squad.