Urice on Holocaust Art Restitution

Van Gogh, View of Asylum and Church at St. Remy

Stephen Urice, Associate Prof. of Law at the University of Miami has posted Elizabeth Taylor's Van Gogh: An Alternative Route to Restitution of Holocaust Art?

The Third Reich confiscated, looted, or otherwise wrongly took vast numbers of works of art from public and private collections in Germany and in occupied countries. Holocaust victims were particular targets of this cultural property theft. For complex reasons, in most instances nearly fifty years elapsed between the end of World War II and the assertion of claims in U.S. courts for restitution of this stolen, “Holocaust art.” That time lapse creates an insurmountable burden for some plaintiffs’ efforts to recover their property: the current possessor’s assertion of a statute-of-limitations defense. This article describes an alternative route to restitution in those situations. Under federal law, stolen property is forfeitable if the government demonstrates an indictable offense under the National Stolen Property Act (NSPA). This kind of in rem civil forfeiture action is independent of, and does not require the government to undertake, a criminal prosecution under the NSPA. To prevail in a civil forfeiture action predicated on an NSPA violation, the government must prove, by a preponderance of the evidence, the elements of an NSPA violation. In 1986, Congress amended the NSPA in ways that create an opportunity for the government to accomplish restitution in situations where a civil plaintiff would be time-barred under state law. First, Congress replaced the NSPA’s former requirement that the stolen goods be in interstate commerce with the requirement that the stolen goods have crossed a U.S. or state border. That change eliminated a defense predicated on goods having left interstate commerce by, for example, coming to rest. Second, Congress added “possession” of stolen goods as an enumerated offense. The effect of these amendments is to eliminate a defense based on the passage of time: The statute of limitations for possession of stolen goods commences to run only when the possessor divests herself of possession. Under federal forfeiture statutes the government has authority to return forfeited property to its original owners. Thus, federal law may permit the government to achieve for Holocaust victims what they, as civil plaintiffs, cannot accomplish themselves. The United States has adopted clearly articulated policies favoring restitution of Holocaust art. This paper argues that the United States could support those policies by pursuing this novel application of the NSPA. However, it also questions whether such cases are appropriate, given the rationales supporting statutes of limitations.

More on the Security Breakdown in Cairo

The stolen work, "Poppy Flowers"

 A week ago today the 1887 work Poppy Flowers, by Vincent van Gogh was stolen from a Cairo museum.  Hadeel Al-Shalchi has a very good piece reporting on the security (or lack of it) at the  Mahmoud Khalil museum in a piece for the AP which you can read on MSNBC. 

I'm quoted at the end of the piece, noting that the best way to protect works of art is not necessarily with an elaborate electronic security system.  Those alarms and sensors certainly play an important role, but for a nation like Egypt, an active, engaged security guard who isn't dozing off as these guards perhaps were, would seemingly have been a successful deterrent for the thieves.  They apparently walked in and cut the work from the frame during hours the museum was open.  And I want to make clear that when I was quoted in the piece saying "It's not an exciting job, but you need to take it seriously", I mean that security staff at museums are professionals, and should be given that status.  In Cairo, these guards were certainly not expected or required to maintain an adequate standard, and the theft and damage of this artwork is the unfortunate result.  But hopefully Egypt will learn from this crime, and enact some sound security procedures to ensure more works of art are not stolen in the future. 

When Ms. Al-Shalchi called me to discuss the theft, she told me she had learned that many of the guards may have been praying—this is still Ramadan—while the theft was taking place, that they may have been dozing off, and that the museum was not heavily visited on the day of the theft.  But perhaps most troubling of all were the breakdowns in technology at the museum.  As the piece states, there were no working alarms, only seven of the 43 cameras were in operating condition, and video from the cameras is recorded only when a guard "senses" an incident may be taking place.  As Ton Cremers, founder of the Museum Security Network says, this is not a good state of affairs for the protection of such valuable artworks: "The value of the van Gogh is $40 (million) to $50 million . . .  A complete security system of that museum would be $50,000, and to keep it running would cost $3,000 a year. ... Need I say more?"

Also of interest will be the arguments against repatriation of other classes of objects—such as the bust of Nefertiti—on the grounds that Egypt is not going to be able to adequately care for the object when it is returned.  yet Art theft occurs in every nation, and bad security is bad security whether the museum is in Egypt, Europe, or North America.  Thieves will exploit obvious gaps in security.  As Mark Durney, current moderator of the Museum Security Network, asked this week "Why are some national collections not as well protected as others? Who, in addition to the thief, is responsible for the theft?"  I think that is the right set of questions to ask, yet they need to be asked whenever a museum is unprepared for a theft, whether that museum is in Egypt, or France—where the security system at the Modern Museum may have not been in working order earlier this summer when five works were stolen. 

1. Hadeel Al-Shalchi, Security problems abound in Egypt's museums, Associated Press, http://www.msnbc.msn.com/id/38884911/ns/technology_and_science-science/ (last visited Aug 28, 2010).

(cross-posted at http://art-crime.blogspot.com/)

Theft of a Van Gogh in Cairo

"The Poppy Flowers" by Vincent Van Gogh

"[Y]ou've got two prime examples of people being indifferent to the need to protect their paintings".

So says Charles Hill in an interview with BBC Radio 4 on the theft of this work from the Khalil Museum in Cairo on Saturday, which bears similarities to the theft in Paris earlier this summer.  The thieves cut the work from the frame.  Though some early reports indicated that the work had been recovered, that now appears to be inaccurate.  Two Italians have been detained at the airport, they were among the ten people who apparently visited the museum on Saturday.  It seems only 7 out of 43 security cameras were functioning. 

The same work was stolen in 1978, and was apparently recovered in Kuwait soon after. 

1. Galleries warned after art thefts, BBC, August 23, 2010, http://www.bbc.co.uk/news/entertainment-arts-11058596 (last visited Aug 23, 2010).
2. Stolen Van Gogh painting still missing, the Guardian (2010), http://www.guardian.co.uk/artanddesign/2010/aug/22/stolen-van-gogh-still-missing (last visited Aug 23, 2010).
3. Alaa Shahine, Van Gogh $55 Million `Poppy Flowers' Theft in Cairo Blamed on Lax Security, Bloomberg, , http://www.bloomberg.com/news/2010-08-22/van-gogh-55-million-poppy-flowers-theft-in-cairo-blamed-on-lax-security.html (last visited Aug 23, 2010).

Update on Yale's Cultural Heritage Lawsuits

 The Yale Daily News updates two disputes involving Yale University.  The first is a dispute involving the Night Cafe by Vincent Van Gogh:

 Pierre Konowaloff, the descendant of a Russian aristocrat who once owned the painting, claims it is rightfully his because the Soviet government expropriated it from his family in 1918.
The Soviet government seized “The Night Café” from Konowaloff’s great-grandfather Ivan Morozov as part of the government’s mass nationalization of private property in the early 20th century. Konowaloff claims this constitutes a theft, delegitimizing any subsequent sale or purchase. Therefore, Konowaloff claims, Stephen Clark 1903, who bequeathed the painting to Yale in 1960, never actually owned it.
Clark was a trustee of the Museum of Modern Art and the Metropolitan Museum of Art. In the early 1930s, he acquired the painting from the Knoedler Gallery in New York City, which had purchased it from the Matthiesen Gallery in Berlin, Germany; it was the Matthiesen Gallery that originally bought the painting from the Soviets.
Yale first responded to Konowaloff’s claims of ownership in May 2009, filing a lawsuit to assert the University’s ownership. Konowaloff responded with a counterclaim in March 2009, requesting the return of the painting and over $75,000 in damages.
Yale’s Oct. 5 motion argues that “it is well-established that a foreign nation’s taking of its own national’s property within its own borders does not violate international law,” and that the Soviet government’s original acquisition — and also Yale’s subsequent acquisition — of the painting was legal.
The motion also argues that Konowaloff’s claim came too late, since the statute of limitations for a dispute of ownership of this nature would have expired in the 1960s, three years after Yale publicized its acquisition of the painting.

The second is a dispute involving objects removed by Hiram Bingham from Machu Picchu:

 

In the case of the Inca artifacts, Yale is arguing it first gained control of the items when they arrived in New Haven in the 1920s, describing them in several Yale publications as part of the museum’s permanent collection.
“Decade after decade, Peru was content to let Yale hold itself out to the world as the owner of the objects,” the Oct. 16 motion reads. “[Peru] disregarded the reasonable time limits imposed by law for bringing its claims.”

1. Nora Caplan-Bricker, Yale moves to drop museum suits, Yale Daily News, October 27, 2009.

Bührle Collection Possibly Recovered

Europe is just waking up this morning to news that the four Bührle Collection works stolen earlier this month may have been recovered in a mental institution parking lot, not far from where they were stolen. I'll try to update more this afternoon, when more details are available.

Major Theft in Zurich (UPDATE)

Police in Zurich have announced a major theft from an art museum in Zurich. Works by Paul Cezanne, Edgar Degas, Claude Monet, and Vincent van Gogh were taken from the Emil Buehrle art foundation. Details are still sketchy, I'll update more this afternoon when we learn more. This theft follows of course from the theft last week of two works by Picasso from another museum in Switzerland.

Why would someone steal such widely-known works? As I see it, there are four potential answers to this question.

The first, is that a wealthy collector admires the piece, and hired a thief to take it for him. I'll call this the Dr. No situation. This seems the least likely possibility, but the one that strikes a chord with the imagination. Writers in this subject frequently cite the Dr. No as being responsible for thefts, and I admit it makes for good Bond villains, but there has been little convincing evidence that this is why people are stealing rare objects.

Second, the thief may not have known that the object was so rare as to make its subsequent sale difficult.

Third, the thief may simply be trying to kidnap the object. They could then insure its safe return for a generous reward.

Finally, perhaps there is a market somewhere for these works. Perhaps it may not be all that difficult to sell these kind of works. This strikes me as the most troubling possibility, but also the least likely, as these works will likely be widely-publicized and photographs will be circulated as more details emerge.

UPDATE:

Swiss police have held a press conference and released more details on yesterday's massive theft in Zurich. Three men entered the Buhrle foundation 30 minutes before closing yesterday, and while one man forced museum workers to the floor, the two other men collected four paintings:

Cezanne's Boy in the Red Waistcoat



Monet's Poppy Field at Vetheuil


Degas' Ludovic Lepic and his Daughters



and Van Gogh's Blooming Chestnut Branches



The estimated monetary value of these stolen works is about $164 million USD, which would put it near the top of works stolen in recent decades; I'll leave to art historians the task of evaluating the cultural value of these works which may be far larger.

Orkin v. Taylor

The 9th Circuit Court of Appeals has upheld a lower-court ruling denying an attempt by the descendants of a Jewish art collector. They sought to to recover this work, Vue de l’Asile et de la Chapelle de Saint-Rémy by Vincent Van Gogh. Elizabeth Taylor bought the work at an auction in 1963 for $260,000. It may fetch up to $15 million at an auction today. The opinion is here. The San Francisco Chronicle has a summary here.

Van Gogh painted the work in 1889 after entering an asylum in Provence. This was only 1 year before he committed suicide. Margarete Mauthner purchased the work in 1907, but left the painting behind when she fled Berlin and went to South Africa in 1939. Mauthner's four descendants claimed she sold the work under duress in 1939.

Both parties "vigorously dispute[d] the circumstances under which Mauthner parted with the painting". This suit really highlights the phrase often uttered with respect to art litigation: a tale of two innocents. Neither party seems to be in the wrong here.

The claimants argued that Mauthner sold the painting under duress, not that the Nazis confiscated it. They brought suit against Taylor, however that claim was thrown out under a 12(b)(6) motion. The district court essentially found that the claimants did not bring a legally recognizable claim. This appeal centered on whether the Holocaust Victims Redress Act created a private right of action, and whether the action was timely.

The Holocaust Victims Redress Act did not create a right of action according to the 9th Circuit. The "Act was a limited bill, passed with an understanding of constitutional limitations on congressional power."

With respect to the timeliness of the action, the court held the action was time-barred as well. California has adopted the "discovery rule". An action for the recovery of art accrues when the rightful owner discovers the location of the work. However, the California Supreme Court has held that the discovery rule incorporates a requirement which accrues the action when the claimant "reasonably could have discovered" the claim. At the very least, the claim could have been discovered in 1990, when Taylor attempted to auction the painting at Sotheby's. She was also listed as the owner of the painting in a 1970 catalogue. Thus the Federal cause of action was inapplicable, and the State claim was time-barred.

Most commentators have agreed this was the right decision. Working against the claimants was the fact that painting was not actually seized by the Nazis, even though the court was interpreting the District Court's ruling in a light most favorable to the plaintiffs. It would have been a difficult case to win on the merits, and would have taken Nazi restitution litigation a step too far in my view. I wonder how exactly the claimants learned of the work and their possible claim. The court didn't really analyze in much detail what the claimants should have done, but did note the various points that Taylor publicized her ownership.