Art Litigation: Stolen Art and Austria's "Jewish Exception" To the 1955 Austrian State Treaty

Rudolph Leopold's death on the eve of a criminal trial in the U.S. should have brought Austria to its senses.  Instead, yesterday it installed Leopold's family members as part of a continuing charade to conceal Austria's ownership of stolen Jewish property in the Leopold Museum.  More on Rudolph Leopold here.

Dead City III was stolen from Fritz Grunbaum, a Jewish cabaret performer murdered in Dachau in 1941. In violation of Art. 26 of the Austrian State Treaty of 1955, Austria has thus far failed to return the work, although Dr. Christoph Bazil, the head of an Austrian Commission that was founded because of the Dead City III scandal keeps promising me that he is investigating the matter.
This so-called "Commission for Provenance Research" recently came to NY, program here and claimed that they were reviewing every single item in Austrian museums. Apparently they have not reached "S" for Schiele in the alphabet, something that might safely occur in the next century.
This is of course a preposterous sham.

Dr. Bazil, who works for Minister Claudia Schmied, takes the opinion (that he has refused to put in writing) that Art 26 of the Austrian State Treaty does not require Austria to return property stolen from Jews. But it is written in English and is quite clear and unconditional, so there is no reason that the Austrian police should not simply enter the Leopold Museum and secure and restitute the property. In the United States we have police and prosecutors to handle stolen property. The situation is shocking to me because in Austria it appears that police and prosecutors refuse to act when property has been stolen from Jews, and this "Jewish exception" is nowhere in writing.

In contravention of Art 26 of the Austrian State Treaty, Austria has permitted its civil remedies for Jews to recover property to lapse. Additionally, Austria failed to restore property as required by the Austrian State Treaty, instead dragging its feet for 45 years.
I have included below the text of the Austrian State Treaty, you can easily see for yourself that Austria is in gross violation for failing to return the stolen artworks at the Leopold, the Albertina, and in private collections throughout Austria.
The Austrian State Treaty of 1955 was a contract between the English, the Russians, the French and the US, on the one hand, and Austria on the other. Nowhere in our jurisprudence can one find support for Dr. Bazil's "oral" interpretation of this Treaty, and Dr. Bazil's failure to cite any Austrian jurisprudence in support of his view casts doubts on his assertions.

The Austrian State Treaty of 1955 is the equivalent of the U.S. Constitution.   What is the remedy for a breach?  Should we re-occupy Austria?

Emphasis below is mine.

Article 26
PROPERTY, RIGHTS AND INTERESTS OF MINORITY GROUPS
IN AUSTRIA
1. In so far as such action has not already been taken, Austria undertakes that, in all cases where property, legal rights or interests in Austria have since13th March, 1938, been subject of forced transfer or measures of sequestration, confiscation or control on account of the racial origin or religion of the owner, the said property shall be returned and the said legal rights and interests shall be restored together with their accessories. Where return or restoration is impossible, compensation shall be granted for losses incurred by reason of such measures to the same extent as is, or may be, given to Austrian nationals generally in respect of war damage.

2. Austria agrees to take under its control all property, legal rights and interests in Austria of persons, organizations or communities which, individually or as members of groups, were the object of racial, religious or other Nazi measures of persecution where, in the case of persons, such property, rights and interests remain heirless or unclaimed for six months after the coming into force of the present Treaty, or where in the case of organizations and communities such organizations or communities have ceased to exist. Austria shall transfer such property, rights and interests to appropriate agencies or organizations to be designated by the Four Heads of Mission in Vienna by agreement with the Austrian Government to be used for the relief and rehabilitation of victims of persecution by the Axis Powers, it being understood that these provisions do not require Austria to make payments in foreign exchange or other transfers to foreign countries which would constitute a burden on the Austrian economy. Such transfer shall be effected within eighteen months from the coming into force of the present Treaty and shall include property, rights and interests re quired to be restored under paragraph 1 of this Article.

Purchase Copyright Litigation Handbook from West here  

Alfred Flechtheim's Portrait By Rudolph Belling: Image Not Available at MoMA

The MoMA has not made an image of this bronze sculpture of Alfred Flechtheim available on the internet.  The sculpture was a 1950 gift of the Nazi agent Curt Valentin.   Aside from noting that the sculpture was a gift of Curt Valentin, no other provenance is given.

American museums agreed to publish images and provenances in 1998 to help Holocaust victims trace artworks.  Why has MoMA shirked this duty and no one complains?  Mayor Bloomberg and City Council Speaker Christine Quinn are on the Board of the MoMA - why have they not insisted on transparency on European works entering the U.S. after 1933 that were created before 1945?   Is there really no political will in this country to follow the Washington Principles?

There is not even an English-language Wikipedia page on Alfred Flechtheim, Germany's most important pre-war dealer in modern art.

Why has Flechtheim's image and history been obliterated?  Why have America's art historians and historians failed to honor Flechtheim's role in 20th Century art?   The artists of his time celebrated him, yet US art historians have not even granted him a footnote in history.

My earlier posts on Alfred Flechtheim here.

Above you see an essay in Italian by Konstantin Akinsha that you can find here called "Alfred Flechtheim's Nose:  Anti-Semitism and images of Nazi propaganda"

Above, from the Akinsha article, you see Alfred Flechtheim pictured with a cigar at the 1937 "Degenerate Art" Exhibition in Nuremberg, surrounded by the modern "degenerate art" that the Nazis hated.

The Nazis knew that Alfred Flechtheim was at the center of everything Jewish, modern and artistic that they hated.

So why has the MoMA and its confreres in the American Association of Museums obliterated Flechtheim's image from MoMA's website and his biography from the history of modern art?  Why do American art historians not discuss and celebrate his life and contributions and discuss the fabulous inventory that he had when his gallery was Aryanized by the Nazi Alexander Voemel in 1933?

Is there not one honest art historian working in an American museum today?  The damage Hitler caused in obliterating Jewish culture and contributions must be fought not by lawyers, but by art lovers and historians of good conscience who come forward and say enough is enough.  Pretending that Alfred Flechtheim did not exist is unacceptable.

Below, a beautiful work by Paul Klee that MoMA acquired in 1945.

Pastorale (Rhythms) (1927)


Paul Klee (German, born Switzerland. 1879-1940)
1927. Tempera on canvas mounted on wood, 27 1/4 x 20 5/8" (69.3 x 52.4 cm). Abby Aldrich Rockefeller Fund and exchange
Collection work meeting criteria specified in Introduction.

157.1945


Rudolf Probst (Galerie Neue Kunst Fides; Das Kunsthaus), Dresden/Mannheim. Until 1928


Galerie Alfred Flechtheim, Berlin and Düsseldorf, then in London. 1928 – at least 1930 [likely until Flechthem’s death, in March 1937]

(J. B. Neumann (Jsrael Ber Neumann), New York. 1930. Agent for Flechtheim)

(Alex Vömel, Dusseldorf. Former Flechtheim Gallery, became Alex Vömel Gallery from March 1933. [Likely on consignement from Flechtheim, 1933 – 1934])

James Mayor Gallery, London. [Brought to London by Flechtheim when he started to work for the Mayor Gallery, c. 1934.] 1934 – 1935

For sale during Paul Klee exhibition at Kunsthalle Basel, 1935

(Paul Klee, Bern. Returned to him from above exhibition, unsold, 1935)

[Likely returned by Klee to Flechtheim in London]

Daniel-Henry Kahnweiler, Paris. [Likely acquired/on consignment from Flechtheim] by 1937 - by 1939

Mrs. Stanley B. Resor, New York. By 1941

Nierendorf Gallery (Karl Nierendorf), New York (New York gallery opened in 1937). Acquired from Stanley B. Resor, by 1945

The Museum of Modern Art, New York. Acquired from Nierendorf through Abby Aldrich Rockefeller Fund and exchange, 1945

Attacks on Owners of Stolen Art

In the Guardian here, Jonathan Jones picks up on a call for a statute of limitations by Sir Norman Rosenthal from the last issue of the Art Newspaper reprinted here, in a post called "Should All Looted Art Be Returned".

The Art Newspaper queries whether Italy really needs another krater like the one pictured.

I suppose the question to be answered if someone steals my second car is whether or not I really needed a second one. If I could do with one, Rosenthal's bonehead argument is that the thief should keep my second one.

The comments to the debate have a healthy edge of antisemitism: the subtext is that people who want to recover their stolen property are greedy Jews, just trying to cash in. And how many museum directors and trustees are private collectors with similar stashes of stolen loot?

I reprint my comment below in italics:

Museums make claimants spent hundreds of thousands, if not millions in fees to researchers, lawyers, and by their refusal to return stolen property force claimants to enter into contingent fee arrangements with lawyers and researchers who, in turn, must force successful claimants to sell off their family heirlooms to cover their own costs.

Jones blames this vicious cycle on the victims. The public has no interest in showing their children warehouses of stolen property.

Change the laws to award attorneys fees and expenses to successful claimants and you will see Jewish families be able to afford to keep the property that is rightfully theirs. You will also see museums start to be a little more truthful about where they obtained their loot.
What Jonathan Jones and Norman Rosenthal advocate is looting the victims once again and proudly displaying the result. Shame.