MoMA Sued in Nazi-era Restitution Suit

The successors in interest of German artist George Grosz filed suit in federal court last friday to claim three works: Portrait of the Poet Max Herrmann-Neisse (1927), Self-Portrait With Model (1928) and the watercolor Republican Automatons (1920) (pictured here).

The claimants allege the works were left with Grosz's dealer Alfred Flechtheim when the artist was forced to leave Germany in 1933. The New York Times summarizes the plaintiff's version of events

Charlotte Weidler, an art dealer and curator for the Carnegie Institute in Pittsburgh, said that she had inherited “Portrait of the Poet Max Herrmann-Neisse” from Flechtheim and that she gave it to Curt Valentin, a German dealer in Manhattan, to sell to the Museum of Modern Art in 1952. The museum bought “Republican Automatons” from a Toronto collector in 1946 and was given “Self-Portrait With Model” in 1954.

Back in 2006 the Met declined to borrow the work Portrait of the Poet Max Herrmann-Neisse due to the potential lawsuit.

Settlement in Nazi-Era Dispute

One of the week's big stories I haven't had a chance to talk about was the decision by the Museum of Modern Art and the Solomon R. Guggenheim foundation and the heirs of Paul and Elsa von Mendelssohn-Bartholdy to settle their ongoing claim.  The undisclosed settlement was announced earlier this week, just as jury selection was set to take place in U.S. District Court in New York. 

Unfortunately the settlement will not allow us to learn how these important works were acquired.  Both the claimants offered very different perspectives.  The issue would have likely been when the paintings were transferred -- in 1927 before the Nazi rise to power, or in 1935 when Hitler had become Fuhrer.  Said Judge Rakoff, "I find it extraordinarily unfortunate that the public will be left without knowing what the truth is ...  The public surely would want to know now and forever which of those diametrically different views was true, and the great crucible of a trial would have made that known".

Boy Leading a Horse, Picasso, 1905-06/Museum of Modern Art

Le Moulin de la Galette, Picasso, 1900/Solomon R. Guggenheim Museum

Africa, Repatriation, and Universal Museums

There have been some very interesting exchanges in recent days between Dr. Kwame Opoku and Phillipe de Montebello of the Metropolitan Museum of Art. Dr. Opoku wrote an interesting and provocative letter to museum directors entitled Is legality a viable concept for European and American museum directors.

I have been quite familiar with Dr. Opoku's scholarly work for some time, and it's refreshing to see him continue to use the internet to broadcast his arguments; especially as he is a powerful voice for African repatriations, which often receive short shrift when compared to similar arguments for the Mediterranean or Central and South America.

De Montebello responded to the open letter with the following:

I read with interest Dr. Kwame Opoku's article EUROPEAN AND AMERICAN MUSEUM DIRECTORS AND THE LEGALITY CONCEPT? and glanced at the photo that accompanied it.

What a haunting, strange-looking object. There is no caption accompanying
the photograph so I looked in books and found that this was a product of
ancient Nigeria, the Nok culture. I also discovered that more than 2,000
years ago as well an Ife culture in Nigeria produced sculpture that I found
simply divine. As beautiful as anything produced at any time in the West.

Then I went to our African galleries and found -- as must our audience of
some 4.5 million visitors a year -- that Nigeria seemed to have produced no
art before the much later Benin period, well represented at the Metropolitan
Museum. Why is that? Simply because the Metropolitan Museum does not own
either a Nok or an Ife object. Their export and acquisition are strictly
forbidden, therefore the Metropolitan Museum has refrained from their
acquisition.

We have tried for years to convince the Nigerian authorities to place one
object from each of these great cultures on loan to the Metropolitan for the
benefit of our audiences, but unfortunately, to no avail.

Dr. Opoku believes all Nok, Ife, and Benin pieces outside of Nigeria should
be returned to Nigeria; that all works produced on its territory should
remain there.

How this advances broad knowledge of the rich cultural history of Nigeria is
a mystery to me.

He's advancing a kind of internationalist perspective here. It strikes me as a bit unfair to say that if wrongfully acquired objects are returned, then all objects would have to be returned. However, some policies certainly do have as a consequence, the possibility of restricting the movement of objects. The difficulty here stems from his argument. He's taking a grain of truth and extrapolating it to an almost illogical extreme. This happens all the time in policy and political debates, not just with respect to cultural heritage. Unfortunately much of the international law-making apparatus on the international level is incapable of successfully bridging these kinds of differences of opinions. As a result, partisans tend to push toward the margins rather than forge workable compromise.

Dr. Opoku responded with a letter which he forwarded to me, and probably others, including the Museum Security Network.

If the Metropolitan Museum has not been able to convince the Government of Nigeria to loan one object of each of the great cultures of Nigeria, there must be some reason which must have been explained by the Nigerian authorities. One cannot comment on this point without first studying the relevant correspondence.

The statement that “Dr. Opoku believes all Nok, Ife, and Benin pieces outside of Nigeria should be returned to Nigeria; that all works produced on its territory should remain there“ is surely incorrect and the maker of the statement knows it. As a person of culture who has spent a considerable part of my life visiting various museums all over the world, I reject very strongly this statement. It is an attempt to attribute to me an extreme position which can be easily dismissed instead of dealing with the serious arguments presented in detail (some would even say too much detail) in my various articles which are freely available on the internet.

Finally, Tom Flynn noted these exchanges and provided the following pointed analysis:

The problem here is the nature of the dialogue, which is not really a dialogue at all, but a series of embittered volleys that merely consolidates the entrenched positions of both parties. Dr Opoku continues to write uncompromising attacks on museum directors. One can understand his growing impatience, given the unwillingness of most museum directors to address what are clearly very serious issues passionately articulated. Moreover, when he does get a response, as was the case here, he is treated with the sort of patrician disdain that has become the lingua franca of leading museum directors across Europe and North America.

I regret I'm pressed for time today and don't have time to dive into the substance of these arguments, however all these links are highly recommended.

Met Declines to Exhibit a Grosz

The NY Times' Robin Pogrebin reported yesterday that the Metropolitan Museum of Art has declined to borrow a work by German Expressionist George Grosz. The work, "The Poet Max Hermann-Neisse" (1927) is the subject of yet another Nazi repatriation dispute. The Met has declined to exhibit the work, and substituted another, because the Grosz estate is contemplating a claim for restitution. The work belongs to the Museum of Modern Art (MoMA), and the Grosz estate has been in negotiations with them for three years.

MoMA is one of the many museums which lists provenance information for its works on its website. The provenance for this work is here. The estate claims that the works had to be sold very quickly, and at a very low price because Grosz and his art dealer, Alfred Flechtheim, had to flee Germany because of Nazi persecution. Interestingly, only Flechtheim was Jewish. It was the nature of Grosz's opinions and art which caused his flight.

Initially, one might wonder how the Grosz estate could have a tenable claim all these years later. The work has been in MoMA's possession since 1952. Apparently, Grosz saw the work exhibited there in 1958, shortly before his death. Statutes of limitations generally prevent claims from being brought after a period of time. They are based on the policy that as time passes, a fair adjudication of the issues becomes more difficult. New York courts have adopted the demand and refusal rule in interpreting statutes of limitations in the context of illicit art. The rule measures the accrual of a cause of action based on a plaintiff's actions. To commence an action to recover property from a good faith purchaser, an original owner must prove that the current possessor refused to return the property after a demand by the claimant. See Menzel v. List 22 A.D.2d 647, 253 N.Y.S.2d 43 (1963). Thus it seems that the statute of limitations did not begin to run until 2003, when the Grosz estate first approached MoMA about the return of the work. Thus, in theory at least, they could still bring a restitution claim in time.

However, the substance of that claim seems a bit difficult for the Grosz estate. The works were sold legally (Nicholas Katzenbach, a former attorney general, and an undersecretary of State for the LBJ administration investigated the claim for MoMA and recommended it be rejected), and MoMA would likely have a very good laches defense, which basically serves to protect defendants where a potential plaintiff has unnecessarily delayed bringing a legal action. Also, the value of these works may not be high enough to warrant a protracted legal dispute. A rough estimate I've seen thrown around is $3 million. If a work falls short of that standard, bringing a legal claim may not be financially feasible. This work has been estimated at $2 million in today's market, but there is another work under dispute in MoMA's collection as well. Of course, the Grosz estate may not be simply concerned with the financial implications of the suit.

Why then did the Met refuse to exhibit the work? It may simply be a matter of not wanting to be associated with the bad publicity. The headline that they are exhibiting a work with a Nazi repatriation issue may have raised an issue that was more controversial than they were willing to take on. However, it seems like the dispute is getting more coverage because of the refusal. In any event, I do not know all of the facts , but the Grosz estate may have a very difficult time prevailing, considering the artist himself saw the work exhibited in 1958 and did not have any misgivings at that point.