Art Law: Boston Museum of Fine Arts: Sues Heirs of Jews To Keep Stolen Property, Hides Evidence



Two Nudes (Lovers)

1913

Kokoschka, Oskar, Austrian, 1886–1980

163.2 x 97.5 cm (64 1/4 x 38 3/8 in.)

Boston Museum of Fine Arts

Apparently there is some confusion about the Boston Museum of Fine Arts Victoria Reed's role in laundering Nazi-looted art by getting a federal court to shield the MFA from discovery into its provenance research. 
 
Let's make it clear:  just because a federal judge says heirs have no legal rights to obtain the return of property because the claims are time-barred, doesn't mean property wasn't stolen.   To unpack that double-negative, if a judge says heirs can't find out and prove that a painting was stolen because their claims are time-barred, the museum is granted a windfall: a potentially-stolen artwork that no one can reclaim.
 
By pulling this scam, the MFA violates the Washington Conference Principles on Nazi Confiscated Art
 
So the MFA bringing a "declaration of title" action is completely stupid, immoral and unethical because it just means that the MFA has potentially stolen art in its collection that heirs cannot retrieve.   Not to mention, an enormous expenditure of resources on legal fees.
 
The end result is that the children of Boston can gawk at a work stolen from a Jew and never know the truth.  And the MFA wants to keep it that way.  Nice Brahmin values.
 
From the First Circuit's opinion:
 
Because she did not make a demand on the MFA until March 12, 2007, more than three years after her causes of action accrued, summary judgment was properly granted on the MFA's limitations defense.


So the Museum of Fine Arts avoided discovery and inquiry into whether the object was stolen by invoking a statute of limitations defense.   But the statute of limitations merely affects the REMEDY.  It does not give the MFA title, since under the common law, no one can ever take good title from a thief.
So the First Circuit's decision simply means that the MFA can thumb its nose at Holocaust victims and try to rewrite the history of Vienna in February 1939 to pretend that the Kokoschka was not stolen from Reichel.

This is a use of the law in the service of an evil purpose, it is unethical, immoral and it violates the charitable charter of the MFA, an entity that is subsidized by taxpayer largesse.

To clarify: here's an excerpt from the First Circuit opinion, decide for yourself whether the MFA has laundered this piece of stolen art, keeping in mind that Adolph Eichmann had the property of Vienna's Jews in his grasp in February 1939.
 
Note that the First Circuit, by inserting the entirely irrelevant fact that Otto Kallir, the alleged "purchaser" from Reichel was Jewish, tries to make the transaction innocuous.  However, many historians have documented the fact that the Nazis used a network of Jewish art dealers to launder the proceeds of stolen art:
 
 

Egon Schiele:  Portrait of Dr. Oskar Reichel



Conditions for Dr. Reichel and other Austrian Jews rapidly deteriorated following the Anschluss -- the annexation of Austria by the Third Reich in March 1938. Pursuant to Nazi regulations, Dr. Reichel was forced to file a declaration in June 1938 listing all of the valuable property he owned. One expert witness described the declaration as a "prelude to the formal Nazi confiscation and seizure of all Jewish-owned property in Austria and Germany." Proceeds from the sale of declared property had to be deposited into a Nazi-controlled account and could be withdrawn only in limited amounts. In his 1938 property declaration, Dr. Reichel stated that he owned the Painting and four other Kokoschka works. He declared the combined value of the Painting and another work to be 250 Reichsmark.

Egon Schiele- Portrait of Dr. Oskar Reichel - Head

Around the same time, Kallir, who was also Jewish, transferred ownership of his gallery to his non-Jewish secretary and moved to Paris. While Kallir was in Paris, Dr. Reichel agreed to transfer his remaining five Kokoschka works, including the Painting, to Kallir. The details of this transaction are sketchy. It is not clear whether Dr. Reichel received any consideration for the works at the time. Two contemporaneous notes indicate that Kallir agreed to purchase the five paintings for a total of 800 Swiss francs. However, Dr. Reichel's son Raimund later said that his father arranged for Kallir to send the proceeds of the transaction to another son, Hans, who had already immigrated to the United States. According to Raimund, Kallir sent Hans $250 for the five paintings in 1940 or 1941, and Hans forwarded half that sum to Raimund. The five Kokoschkas, including the Painting, were transferred from Dr. Reichel to a shipping company in Vienna, then exported to Paris.
Dr. Reichel and his wife Malvine suffered at the hands of the Nazis. They were forced to close the business Dr. Reichel had founded and to give up their family home and another property. Their eldest son was deported to Lodz, Poland, where he was killed. Malvine was sent to the Theresienstadt concentration camp in 1943, and Dr. Reichel died of natural causes that same year. The two younger sons had emigrated by that time -- Hans to the United States and Raimund to Argentina. Malvine survived the war and eventually joined Hans in the United States.

Meanwhile, Kallir had settled in New York, where he opened the Galerie St. Etienne. He brought the Painting with him and sold it to the Nierendorf Gallery for $1,500 in 1945. The Nierendorf Gallery then sold the Painting to the E.A. Silberman Galleries, which in turn sold the Painting to Sarah Reed Blodgett in 1947 or 1948. Blodgett kept the painting for many years, lending it out for exhibitions from time to time. She eventually bequeathed the Painting to the MFA, which acquired possession in 1973.*fn4 The Painting has been on almost continuous display at the MFA since then, though it has been loaned out many times for exhibitions in the United States and around the world.
Raimund moved back to Vienna in 1982. He executed a will in 1989, in which he designated Seger-Thomschitz as his sole heir. It is not clear how Raimund and Seger-Thomschitz knew each other. She is described in one document as his "select-niece," but they are not blood relatives. When Raimund died in 1997, Seger-Thomschitz became the sole surviving heir of Dr. Reichel.*fn5
Seger-Thomschitz says that she "first learned that the Nazis confiscated artworks from Oskar Reichel in the Fall of 2003 when the Museums of Vienna contacted her concerning their intent to return to her as the sole heir of Oskar Reichel four artworks in their collection by the artist Anton Romako . . . ." The restitution of the Romako works was pursuant to a municipal resolution that Vienna had passed in 1999, which in turn implemented a 1998 national art restitution law. One municipal document notes that "it seemed quite proper" to return the works to Seger-Thomschitz because Dr. Reichel "had to sell [them] due to his persecution as a Jew." Notably, Dr. Reichel appears to have sold the Romako works around the same time that he sold the Painting, and under similar circumstances. He sold three of the four Romakos to the Neue Gallery in 1939 "for only small equivalent amounts," and he sold the fourth to the Neue Gallery in 1942. The gallery, by then under the direction of Otto Kallir's former secretary, subsequently sold the Romakos to the city.
Following her correspondence with the Museums of Vienna, Seger-Thomschitz retained a Viennese attorney, Erich Unterer -- who had also been Raimund Reichel's attorney -- "for purposes of handling the restitution of any artworks that Oskar Reichel may have lost due to Nazi persecution." Seger-Thomschitz and Unterer initially thought that all of the artwork Dr. Reichel lost during the Nazi era had been returned. In 2006, however, an American attorney "began a colloquy" with Seger-Thomschitz and alerted her to the possibility that other works formerly owned by Dr. Reichel might be located outside Austria. Seger-Thomschitz retained the attorney, whose firm then sent a letter to the MFA on March 12, 2007, demanding the return of the Painting.


When confronted with Seger-Thomschitz's claim to the Painting, the MFA undertook "an exhaustive effort to research and document the provenance of the Painting in order to ascertain whether the claim . . . appeared valid or not." An MFA curator and an independent provenance researcher spent eighteen months researching the Painting's history, during which time they visited approximately ten museums and governmental archives around the world and corresponded with numerous other museums and archives. Based on that research, the MFA concluded that the original transfer of the Painting from Dr. Reichel to Kallir was valid and that it would retain the Painting in its collection. It commenced an action against Seger-Thomschitz in the United States District Court for the District of Massachusetts on January 22, 2008, seeking a declaratory judgment to "confirm its rightful ownership of the painting." Seger-Thomschitz answered the complaint in May of that same year and asserted counterclaims for conversion, replevin, and other state law causes of action.

As reported by ArtInfo here:

The MFA declined to allow Victoria Reed, the museum's curatorial research fellow for provenance who conducted the nine-month study of the history of the Kokoschka painting, to comment. It also would not release detailed materials from her report, saying, "The results of the museum's research are clearly outlined in its legal filing, which is publicly available and was shared with the Boston Globe."
###

What museum conducts eighteen months of research into a provenance that allegedly clears its title and then HIDES THE EVIDENCE?  

More on MFA's misdeeds here.
Not content to remain under her rock, Reed seems now to crave media attention for her occult activities.  A creepy puff piece where Reed brags of her furtive investigations and unpublished research here.   The writer refers to the MFA's payment (in lieu of returning the stolen work) as "rare preemptive compensation".

That's double-talk.  When the Austrians did it to Jews post-WWII to keep valuable pieces in Austrian museums, we have rightly deemed it extortion.

When the MFA does it, it is called "rare preemptive compensation".
More on Oskar Reichel here.

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Art Litigation: Boston Museum of Fine Arts Extorts Westfeld Heirs in Nazi Art Scandal

Rather than freely returning artworks stolen from victims of Nazi persecution, U.S. museums offer heirs less than fair market value, usually under secretive circumstances.    This type of systematic extortion has been condemned in many other countries, such as Austria, which engaged in similar practices folllowing World War II.

Below, Walter Westfeld's heir describes how the Museum of Fine Arts Boston insisted on a confidential settlement, rather than returning a stolen artwork in its possession.   Check the MFA's website here, there is no information on this transaction.

I tried to find some information on the provenance on Eglon van der Neer Portrait of a Man and a Woman In an Interior (1666).   My access to that portion of the MFA's website was blocked.

A puff piece on the MFA's purported provenance research here.  The MFA claims that it prepares reports by a woman named Victoria Reed, but none of these reports appear to be made public.  Ms. Reed is a "curator of provenance"  - which appears to be a synonym for a launderer of stolen artworks.

At issue is the role of U.S. museums in buying stolen art on an industrial level before, during and after World War II, profiting from the misery of murdered European Jews.   The role of U.S. museums in acquiring stolen art has largely been ignored by academics, with U.S. museums cloaking their actions in secrecy.   Although U.S. museums claim to engage in provenance research, little or none of this research is published, few original documents are made available, and no research is available on how much of a burden this traffic in stolen art has placed on U.S. taxpayers.



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Massive German Art Forgery Scandal - The Alfred Flechtheim Collection

Among those in the know, Alfred Flechtheim is considered perhaps the greatest contemporary art dealer in Germany's Weimar Republic.   He was Jewish, chased by the Nazis from his galleries in Berlin and Dusseldorf.   A Nazi named Alexander Voemel took over his galleries in 1933.  His gallery is still operating today.   An ad for Galerie Voemel brags of its legacy:

Die Galerie Vömel, mehr als ein halbes Jahrhundert in Düsseldorf ansässig, wurde von Alex Vömel - Geschäftsführer der legendären Galerie Flechtheim - gegründet und wird heute von seinem Sohn Edwin Vömel weiter geführt.

Vor einigen Jahren ist die Galerie in das alte Stadtpalais gegenüber vom Stadtmuseum in die Karlstadt umgesiedelt.
Die Galerie Vömel führt Arbeiten der klassischen Moderne, weiterhin ist sie spezialisiert auf Skulpturen und Arbeiten auf Papier des 20. Jahrhunderts.
Gezeigt werden regelmäßig Ausstellungen, welche mit Katalogen dokumentiert werden.


Shunned by his former friends, those who stole his art conveniently wrote him out of art history.   In a book called Boston Modern, art historian Judith Bookbinder credits Alfred Flechtheim with donating a Rudolph Belling sculpture of himself as being the foundation of Harvard's collection of modern German sculpture that turned into the Busch-Reisinger collection.

Flechtheim represented artists such as Paul Cezanne, Vincent Van Gogh, Pablo Picasso, George Braque, Andre Derain,  Paul Klee, George Grosz, Wassily Kandinsky, August Macke and many others.

Flechtheim was featured on Nazi anti-semitic posters as the symbol of International Bolshevist Jewry - More on Flechtheim's nose here.

When in 1933 Nazis started attacking modern art in anti-Semitic museum exhibitions, Flechtheim and his sales to German museums were attacked.  When the 1937 Entartete Kunst exhibition took place, the Nazis had a life-sized portrait of Flechtheim.

New York's Museum of Modern Art has many works from Alfred Flechtheim's 1933 inventory, but refuses to share the provenance documentation of these artworks with researchers.

A Swiss government report on MoMA's role in the Nazi looted art trade here.

Shockingly, MoMA's current exhibition catalog German Expressionism:  The Graphic Impulse, writtten by Starr Figura and Peter Jelavich, completely omits any mention of Flechtheim.

In a bitter irony, German prosecutors just arrested a group of forgers that created fake works that they claimed were from Flechtheim's inventory.  Article from German newspaper at the link below:

 http://www.monstersandcritics.com/news/europe/news/article_1641522.php/Forgers-charged-in-massive-alleged-Nazi-art-scam

Alfred Flechtheim's German-language Wikipedia page is here.  

Whether from ignorance, stupidity or venality, American museums and art historians seem to be determined to write Alfred Flechtheim out of art history.   It may be that the arrest and trial of this forgery ring in Germany will succeed in uncovering that which those Americans trafficking in and concealing Nazi-looted art would like to bury.

Not even one English-speaking Wikipedian will memorialize poor Flechtheim.

Browse my earlier posts on Alfred Flechtheim here.

A quote from Steven Litt's article  from Cleveland's Plain Dealer in 2003 below, full article here:

"Flechtheim was for the Nazi government, you can say, in art, public enemy No. 1," said Ottfried Dascher of Dortmund, a retired professor of history from the University of Bochum.

Today, Flechtheim is a hot topic in Germany, a nation trying to come to terms with its past. The art museum in Dusseldorf celebrated his life in an exhibition in 1987. His hometown of Munster renamed a street for him. And just last month, art dealers and historians, including Dascher, dedicated a plaque on the Berlin building where Flechtheim once lived.
"There is no week in which I don't get letters and e-mails from all over the world on this subject," Dascher said in a telephone interview.
One reason for the interest is that Flechtheim was part of a group of pioneering art dealers of German-Jewish heritage who were the first to champion the work of Picasso and other modern artists. Flechtheim was also part of the cultural renaissance of Weimar Germany, which brought forth the films of Fritz Lang, the music of Kurt Weill and the drama of Bertolt Brecht.


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Art Litigation: Jewish Property Declarations: The Law of April 26, 1938

Today is the anniversary of the April 26, 1938 decree by Goering requiring Jews to declare their property.  It is important that any student of the Holocaust read the text of the decree, reproduced in italics below.  There is very little written about this law, which was a critical turning point in the Nazis' adoption of the Final Solution.  First robbery, then murder of the despoiled victims.

Today, the consequences of this law are still being litigated in the United States.  US museums are successfully clinging to artworks stolen pursuant to the April 26, 1938 decree and the subsequent measures.  The Jewish Property Declarations were sealed by Austria from 1945 until 1993.   Now US museums are suing Jewish descendants of Holocaust victims to "quiet title" to the artworks in their collections, in violation of international law and the United States' commitment to return Nazi spoils  to their victims.

DOCUMENT 1406-PS
1938 REICHSGESETZBLATT, PART I, PAGE 414
~ Decree for the Reporting of Jewish Owned Property of 26 April
1938
On the basis of the Decree for the Execution of the Four Year Plan of 18 October 1936 (RGBl I, 887) the following is hereby decreed:
Article 1
1. Every Jew (Article 5 of the First Regulation under the Reich Citizenship Law of 14 November 1935 (RGBI I, 1338)) shall report and evaluate in accordance with the following instructions his entire domestic and foreign property and estate on the day when this decree goes into force. Jews of foreign citizenship shall report and evaluate only their domestic property
2. The duty to report holds likewise for the non-Jewish marital partner of a Jew.
3. Every reporting person's property must be given separately.
Article 2
1. Property in the sense of this law includes the total property of the person required to report, irrespective of whether it is exempt from any form of taxation or not.
2. It does not include movable objects used by the individual or house furnishings as far as the latter are not luxury objects.
Article 3
1. Every part of the property shall be valued according to the usual valuation it has on the effective date of this regulation.
2. No report is necessary when the total worth of the property to be reported does not exceed 5000 marks.
Article 4
The report is to be presented on an official form by 20 June 1938, to the administrative official responsible at the place of residence of the reporting individual. When such a report is not possible by this date the responsible official can extend the period. In such case, however, an estimate is to be presented by 30 June 1938, together with a statement of the grounds of delay.
Article 5
1. The reporting individual must report, after this decree goes into force, to the responsible office, every change of said individual's total property as far as it exceeds a proper standard of living or normal business transactions.
2. The reporting requirement applies also to those .Jews who were not required to report on the effective date of this regulation but who have acquired property exceeding 5000 Reichsmarks in value, after this date. Article 1 (1) clause 2, shall apply respectively.
Article 6
1. The administrative offices responsible under this reguhttlon are in Prussia-Highest Administrative Officer [Reierungspraesident] (in Berlin the Police President) ; Bavalria Administrative Officer [Regierungspraesident] ; Saxony---Tivoli District Head [Kreishauptmann]; Wurtemberg-The Minister of the Interior; Baden-The Minister of the Interior; ThueringenReich Governor [Reichsstatthalter]; Hessen-Reich Governor; Hamburg-Reich Governor; Mecklenburg-Ministry of the State, Interior Department; Oldenburg-Minister of Interi01•; Braunschweig- Ministry of Interior; Bremen-Senator for Administration of Interior; Anhalt-Ministry of State Interior Department; Lippe-Reich Governor (Land Government); SchaumburgLippe-Land Government; Saarland-The Reich Commissioner for the Saar.
2. Austria-The Reich Governor has jurisdiction. He may transfer his authority to another board.
Article 7
The Deputy for the Four Year Plan is empowered to take such necessary measures as may be necessary to guarantee the use of the reported property in accord with the necessities of German economy.
Article 8
1. Whoever wilfully or negligently fails to comply with this reporting requirement, either by omitting it, or making it incorrectly, or not within the time specified, or whoever acts contrary to any instruction issued pursuant to Article 7 by the Deputy of the Four Year Plan shall be punishable by imprisonment and by a fine or by both of these penalties, in particularly flagrant cases of wilful violation the offender may be condemned to hard labor up to ten years. The offender is punishable notwithstanding that the action was in a foreign country.
2. Any attempt to commit such actions is punishable.
3. In addition to the imposition of the penalties under (1), the property may be confiscated, insofar as it was involved in the criminal action. In addition to hard labor confiscation may be made. Where no specific individual can be prosecuted or convicted, confiscation may be decreed independently, where the prerequisites for confiscation warrant it.
Berlin, 26 April 1938
The Deputy for the Four Year Plan
Goering
General Field Marshal
The Reich Minister of the Interior
Frick

Adolph Eichmann set up the Zentralstelle in Vienna in August 1938.  He described it as a "conveyor belt".  You put a Jew and his property on one end and the Jew emerged with a passport and no property on the other end.  Eichmann is considered the "father" of spoliation for profit and the creation of the "Vienna model" of despoiling Jews before exporting them or murdering them.   The problem arose that no country wanted to accept Jews that had been completely spoliated.  Murder thus became the next logical step.

Nazi Era Laws - Nazi Conspiracy and Aggression - Translated


More information on Bakalar v Vavra, a recent Second Circuit case interpreting the April 26, 1938 Jewish Property declaration decree here.

More on Austria's violations of the Austrian State Treaty here.

A report on how the Museum of Modern Art in New York is the largest repository in the nation of Nazi looted art coming in through Switzerland here.


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Art Litigation: Richard Evans on Looting Art in Wartime

Art in the Time of War | The National Interest

Historian Richard Evans' thoughtful piece on art looting in wartime. It is not surprising that one of the leading scholar of Germany in World War II would turn his attention to art.

Art Litigation: US Museums Breaching Ethics Codes By Refusing To Research and Return Nazi Looted Art

MoMA's Provenance Research Project:  A Sham?

Great essay in University of Pennsylvania's PENNumbra Guarding the Historical Record from the Nazi-Era Art Litigation Tumbling Toward The Supreme Court here.    Highly critical of the Museum of Modern Art.

A truly astonishing interview with law professor Jennifer Kreder on Illinois Public Radio here.

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Art Litigation: Nazi Looted Art in US Museums - Professor Jennifer Kreder Speaks Out

Great interview with law professor Jennifer Kreder on Illinois Public Radio on artworks looted by the Nazis that are now in US museums that were smuggled into the US through Switzerland.  Get the shocking story here.

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Declassified Swiss Government Report Shows Traffic of Nazi Looted Art To Museum of Modern Art (Updated)

Link to image in St. Louis Commerce, full article here

A declassified Swiss government report written by former Pulitzer Foundation director Laurie Stein shows that Nazi looted art passed through Switzerland to arrive at the Museum of Modern Art in New York.

As set forth in Laurie Stein's report, Curt Valentin, August Klipstein, and Karl Buchholz were key players in this traffic with Alfred Barr.   MoMA has "the highest concentration of degenerate art from Germany"..... Alfred Barr "did not shy away from buying confiscated art through American-based commercial dealers such as [Curt] Valentin."  (pp 11-12).

Hitler's Swiss Dealer - August Klipstein of Gutekunst & Klipstein, now Galerie Kornfeld

Laurie Stein just chaired a panel in Vienna on Alfred Flechtheim, one of the Weimar Republic's leading art dealers whose gallery was Aryanized by SA officer Alexander Voemel shortly after Hitler took power in 1933.   More on Alfred Flechtheim here, Picasso's Jewish Dealer here, Flechtheim's Nose here, Amicus brief in Grosz v MoMA here, Flechtheim's Portrait By Belling here, Museum directors should be prosecuted for concealing stolen art here .

American museums continue to resist inquiries into the stolen works in their collections.

For more, read below.
Stein Pyritz - Swiss Government Report



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Art Litigation: Alfred Flechtheim Panel in Austria To Discuss His Stolen Collection

Choyo Cactus aka "Jumping Choyo" on Dove Mountain

Below is a link to a presentation I gave in Tucson AZ on recent case developments in the federal courts on Nazi art looting.

Nazi Art Looting - Case Developments [Compatibility Mode]


Nazi art looting will be a major topic at an upcoming conference in Vienna Austria on March 23-25.  Details of the conference are here.

Austria has invited Laurie Stein to chair a presentation on Alfred Flechtheim.   

Alfred Flechtheim was a German Jewish art dealer whose art gallery was Aryanized.   Many works stolen from him are currently in museums around the world, such as the Museum of Modern Art in New York City.

Stein's report denying the Aryanization here

MoMA Expert Report Stein

The Museum of Modern Art refused to make its provenance documentaton relating to works from Alfred Flechtheim in its collection available to researchers working for the family of artist George Grosz.

More on Nazi Art Looting here.

More on Alfred Flechtheim here.

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Image from the Phoenix Courthouse - Federal Bar Association Presentation on Nazi Art Looting

Raymond J. Dowd, New York - U.S.M.J. Michelle Burns (District of Arizona - Phoenix) - Rob Kohn, Los Angeles 
Image under a quote from Socrates from the presentation at the Richard Meier-designed Sandra Day O'Connor U.S. Courthouse in Phoenix, Arizona.  Occasion was a presentation co-sponsored by the Phoenix Chapter of the Federal Bar Association and the Federal Bar Association's Federal Litigation Section on Recent Developments in Nazi Art Looting, view the Powerpoint here.


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Art Litigation: Nazi Art Looting #art - Recent Developments in Federal Courts

Fides Trust/Fides Treuhand Founded in 1910 - Faithfully Concealing Nazi Art Looting Transactions For the Swiss http://www.fides.ch/


Nazi Art Looting - Case Developments [Compatibility Mode]

Above is a link to a Powerpoint Presentation I gave last week to the ABA Retirement Funds at the Ritz Carleton at Dove Mountain, outside Tucson, Arizona. It is similar to a presentation I gave last month to the Federal Bar Association's Phoenix Chapter.

As the Powerpoint above shows, a wave of decisions involving Nazi art looting hit the federal circuit courts of appeal in 2010 and it looks like the traffic will continue unabated.

Very few American legal scholars have addressed the questions relevant to stolen chattels in the hands of U.S. museums and private collectors and the consequences of the museum community's failure to squarely address its misconduct in receiving stolen art following World War II and by concealing its provenance to this day.   No one has surveyed the damage to the American taxpayer as wealthy Americans shielded their income from taxation by donating stolen works to U.S. museums.

The Internal Revenue Service should investigate this racket.

As can be seen from the Powerpoint, the American Association of Museums and the American Association of Museum Directors have betrayed the Washington Conference Principles on Nazi-Confiscated Art by suing descendants of Holocaust victims and by concealing their research into the provenance of artworks in their collections.   Rather than encouraging and publishing scholarship, museums hire large and expensive law firms, then cloak all research under "attorney client privilege".    This is simply the concealment of stolen property, a state and federal crime, with museums hiring law firms to cloak their criminal actions.

More on Nazi art looting here.

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Art Litigation: Holocaust for Dummies - The Murder and Spoliation of Fritz Grunbaum at Dachau

Holocaust for Dummies: Murder and Spoliation of Fritz Grunbaum at Dachau

Austria's Leopold Museum has refused to return artworks stolen from Fritz Grunbaum, a famous Jewish cabaret performer.   Grunbaum was arrested in Vienna by the Gestapo on March 22, 1938.   He died penniless in Dachau never having left Nazi custody on January 14, 1941.   His wife Lily was murdered at Minsk - Maly Trostinec after Fritz's death.

Austria is not alone in denying the Holocaust and the return of stolen artworks.   Oberlin College has Egon Schiele's Girl With Black Hair, which was stolen from Fritz Grunbaum. 

Oberlin's Allen Memorial Art Museum has refused to share its research with the heirs of Fritz Grunbaum or to permit on campus discussions of the work's provenance.  This is a shameful violation of Oberlin's academic mission.   If Oberlin has any Jewish alumni who care about undergraduate studies, I recommend teaching a course there on Fritz Grunbaum studies and demanding that anyone working at the Allen Museum or in the art history department be fired for incompetence.    US museums agreed to research their collections and publish the results under the Washington Principles.  Oberlin's failure to do so is a disgrace.

To assist everyone in understanding how the Holocaust worked and how Fritz Grunbaum's artworks were stolen from him, we have prepared the summary attached in the link above, you can also click here.   

More on Fritz Grunbaum at Art Stolen from Fritz Grunbaum.

More on Fritz Grunbaum here.

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Art Litigation: Nazi Art Looting and Judicial Amnesia at DePaul Law March 9, 2011

The Center for Intellectual Property Law & Information Technology, the Center for Art, Museum & Cultural Heritage Law, the Art and Cultural Heritage Legal Society and the Center for Jewish Law & Judaic Studies
present Arts Law Colloquium Series - Jennifer Kreder
Judicial Amnesia and the Historical Record in Nazi-looted art litigation

Wednesday, March 9, 2011
11:45am – 12:45pm
DePaul University
Lewis Center - Room 805
25 E Jackson Blvd
Chicago, IL 60604

This presentation will demonstrate the wave of dismissals of claims to Nazi-looted art on technical grounds such that, with few praiseworthy exceptions, the courts of the United States no longer act as beacons of justice for the Holocaust restitution movement. In fact, they are being used by some museums to circumvent federal executive policy and distort the historical record. Tales of our most respected institutions acquiring what they knew or should have known was trafficked and laundered art likely seem outrageous and counter to common sense to those unaccustomed to hearing about the widespread infection of the market with art that had been stolen or extorted from Jews between 1933 and 1945. The truth, however, is that the modern claims are legally viable when viewed within the true historical context of the Holocaust and U.S. executive policy during the War, through the Cold War period and now.
DePaul University College of Law is an accredited Illinois MCLE provider. This program had been approved for 1 hour of CLE credit.
Please RSVP to Cecelia Story at cstory@depaul.edu.

Professor Kreder is a graduate of the Georgetown University Law Center. She has published extensively about and given many presentations in many domestic and foreign venues about legal issues affecting the international art market. With Norman Palmer, she is co-authoring the second edition of Museums and the Holocaust published by the Institute of Art and Law.
Read more (...)


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Art Litigation: Feb 17 - Nazi Looted Art in the Federal Courts - Phoenix Federal Bar Association

Nazi Looted Art in the Federal Courts - Phoenix Federal Bar Association

February 17 lunch program in Phoenix Arizona. Sponsored by the Phoenix Chapter of the Federal Bar Association.

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Art Litigation: Nazi-Era Art Restitution - Westfied Scandal Unleashed By Museum of Fine Arts Boston

Eyeglasses from Jews murdered at Auschwitz courtesy Wikimedia Commons

As I posted yesterday, the Sixth Circuit decided to cloak Nazi actions in sovereign immunity in Westfield v. Federal Republic of Germany, my post of the decision here.   Walter Westfield was a successful Geman art dealer who was expropriated by the Nazis and murdered at Auschwitz.

In my post expressed my surprise that the Sixth Circuit did not recognize that U.S. courts were relieved of any restraints on their jurisdiction to unwind evil Nazi acts since the Second Circuit stripped the Nazis of sovereign immunity as of 1954 in the Bernstein v. N.V. Nederlansche-Americaansche case.

Additionally, the Sixth Circuit's decision in Westfield v Federal Republic of Germany seems to violate the Nuremberg Principles:

(lifted from Wikipedia)

Principle I "Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment."

Principle II  "The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law."
Principle III "The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible government official does not relieve him from responsibility under international law."
Principle IV "The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him".
This principle could be paraphrased as follows: "It is not an acceptable excuse to say 'I was just following my superior's orders'".
Previous to the time of the Nuremberg Trials, this excuse was known in common parlance as "Superior Orders". After the prominent, high profile event of the Nuremberg Trials, that excuse is now referred to by many as "Nuremberg Defense". In recent times, a third term, "Lawful orders" has become common parlance for some people. All three terms are in use today, and they all have slightly different nuances of meaning, depending on the context in which they are used.
Nuremberg Principle IV is legally supported by the jurisprudence found in certain articles in the Universal Declaration of Human Rights which deal indirectly with conscientious objection. It is also supported by the principles found in paragraph 171 of the Handbook on Procedures and Criteria for Determining Refugee Status which was issued by the Office of the United Nations High Commissioner for Refugees (UNHCR). Those principles deal with the conditions under which conscientious objectors can apply for refugee status in another country if they face persecution in their own country for refusing to participate in an illegal war.
See also: Nuremberg Defense, Superior Orders, and Lawful orders
Principle V "Any person charged with a crime under international law has the right to a fair trial on the facts and law."
Principle VI "The crimes hereinafter set out are punishable as crimes under international law:
(a) Crimes against peace:
(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).
(b) War crimes:Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation of slave labor or for any other purpose of the civilian population of or in occupied territory; murder or ill-treatment of prisoners of war or persons on the Seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.
(c) Crimes against humanity: Murder, extermination, enslavement, deportation and other inhumane acts done against any civilian population, or persecutions on political, racial, or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime."
Principle VII "Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law."

Article explaining that the Westfields escaped Nazi Germany as refugees in 1940 while Walter Westfield, the famous art dealer was murdered at Auschwitz  here

More details from Bloomberg on the Westfield case here

Washington Post on the Westfield case here 

Fred Westfield's lawsuit was supposed to have been touched off by an inquiry from the Museum of Fine Arts Boston.   I can't find any information about the Westfield work on the MFA's website.

According to its website (excerpt below), the MFA Boston can't figure out where approximately 50% of its artworks come from that fit into the class of works that could have been looted by the Nazis.   MFA has compiled a "priority list" and claims it is researching its collection, but it appears to keep the research secret and inaccessable.

To avoid scrutiny into the provenance of one painting, MFA sued heirs of Holocaust victims recently over Kokoschka's Two Nudes - Lovers.  More information on that case here   The First Circuit's decision in Museum of Fine Arts, Boston v. Seger Thomschitz here.   Unfortunately, the MFA won the case on statute of limitations grounds, ensuring that an artwork which appears to have been taken from the Viennese Jew Oskar Reichel under the Nazis and given to a dealer with Nazi connections in February 1939 will remain in the MFA's hands.   To my knowledge, the MFA has not published its provenance research on the Kokoschka, but simply puts propagandistic conclusory language on its website, such as:

 "In February 1939, Reichel transferred ownership of five Kokoschka paintings—including Two Nudes (Lovers) —to Kallir, who exhibited them in his Paris gallery that spring."

More such unverifiable propaganda here    This passive language is what we lawyers call "conclusory".  When people use such language, we usually demand FACTS from which we may draw accurate conclusions.    How did this "ownership transfer" occur?   I would like to know more.

The First Circuit's decision tells us enough to conclude that the Kokoschka was stolen from Reichel:

Pursuant to Nazi regulations, Dr. Reichel was forced to file a declaration in June 1938 listing all of the valuable property he owned. One expert witness described the declaration as a "prelude to the formal Nazi confiscation and seizure of all Jewish-owned property in Austria and Germany." Proceeds from the sale of declared property had to be deposited into a Nazi-controlled account and could be withdrawn only in limited amounts. In his 1938 property declaration, Dr. Reichel stated that he owned the Painting and four other Kokoschka works. He declared the combined value of the Painting and another work to be 250 Reichsmark.

[....] While Kallir was in Paris, Dr. Reichel agreed to transfer his remaining five Kokoschka works, including the Painting, to Kallir. The details of this transaction are sketchy. It is not clear whether Dr. Reichel received any consideration for the works at the time.

How did Oskar Reichel "transfer ownership" when his assets are completely blocked by the Nazis, he did't get paid, and the Nazis have a gun to his head and have already put his assets in their 1939 war budget?

We all know that Adolph Eichmann arrived in Vienna in the summer of 1938 and set up his infamous "conveyor belt" at the Zentralstelle - a Jew arrived and left with a passport completely despoiled of property.  The April 26, 1938 law forbid Jews with more than 5,000 RM in property from making transfers of declared property without Nazi permission.  In November 1938, the Reich's beancounters at the Finance Ministry already had ALL declared Jewish property in their budget.  Even the New York Times is starting to finally report on the Reich Finance Ministry's activities, see this December 2010 article claiming that 30% of the Wehrmacht was financed by confiscated Jewish assets.   In December 1938 following Kristallnacht, Aryan trustees were appointed to act as guardians of the property for Jews and put in charge of liquidating Jewish property for the Reich.

Oskar Reichel could not have "transferred ownership" to a Kokoschka in February 1939 as a matter of law.

So the MFA's website consists of pure fiction and Holocaust denial, as far as I can tell.   But just ask Malcolm Rogers. 

Malcolm Rogers - Waving the Baton for 50% Ignorance of Provenance European Paintings and Sculptures at MFA Boston

Rather than referring to the European artworks potentially looted by Nazis as "potentially stolen from murdered Jews" the MFA Boston refers to these works as "Art with a Past".

What art doesn't have a past?

Unfortunately, in the United States, the field of art history is largely a sham - and the lack of academic attention to provenance is endemic. If a Picasso, a Pisarro or an El Greco was looted from a Jew, U.S. art historians generally don't know and don't care -- and resent any inquiry from families of the murder victims.  How could three generations of art historians permit U.S. museums to collect so much art without knowing where it comes from? These are vast quantities of artworks, not a few accidents. At all relevant times, receiving and concealing stolen property has been a crime. But unfortunately, no U.S.prosecutor has had the gumption, the evidence and the fortitude to confront this stolen art laundering establishment. The criminals in the museum community concealing the stolen art are now claiming a "fiduciary duty" to keep the stolen art in their collections.

The College Art Association was warned by the U.S. State Department not to purchase artworks coming from Europe without checking the provenance in the early 1950's.  The Roberts Commission warned America in 1946 of the same problem.

Although the MFA claims it has engaged in "intensive research" since 2004, to my knowledge, it has published none of this research including its provenance researcher's report on the Kokoscha "Two Nudes - Lovers".

The fact that the MFA can get away with this without any public furor means that there is not one art historian in Boston doing his or her job.


From the MFA website:

Nazi Era Provenance Research

The Museum of Fine Arts’ collection contains approximately 1,600 European paintings and 21,000 works of sculpture and decorative art. Since early 1998, a systematic review of the provenance of the collection has been ongoing, with the goal of identifying objects that may have been seized or improperly sold during the Nazi era. Eliminated from consideration are those works of art acquired by the museum before 1933 and those created after 1945.

About half the European paintings have histories of ownership that preclude their transfer in Europe during the period in question—many, for instance, belonged to families in Boston in the late nineteenth century and came directly to the MFA from those families. But many other paintings have histories of ownership that contain very little detail or have gaps during the years 1933-1945. These objects are the subject of further research by the museum.
Intensive research on the sculpture and decorative arts collection was begun in 2004. The online records are currently undergoing further research. As additional information comes to light, it will be added to the online collections database.
There are many reasons for gaps in provenance, ranging from a past owner’s desire for anonymity to an absence of records of transactions. Resolving provenance gaps for the period in question may be further complicated by the fact that records have been lost or destroyed. Although it is probable that most of the objects with gaps do not have problematic pasts, efforts are underway to obtain more information about them.
List of Works
The objects featured on the list of works have been identified by the MFA as priorities for further research. They changed hands in Europe between 1933 and 1945, and are associated with individuals who may have lost property as the result of Nazi persecution. Each object has undergone careful examination by our curators and still has unresolved questions regarding its history.
The inclusion of a work of art on this list does not in any way demonstrate that it was looted or improperly acquired. The list will be updated as further information becomes available.

I tried to access the "List of Works" link, but was unable to connect with anything.   How many people are working in this "systematic" effort?  What is their budget?  How much is the MFA spending suing the heirs of Holocaust victims instead of researching its collection, returning stolen artworks and apologizing to their victims?

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Nazi Art Looting: Sixth Circuit Cloaks Nazi-Era Atrocities in Sovereign Immunity

Flag of Tennessee

The United States won World War II. As part of the postwar cleanup, the US did everything in its power to undo the damage the Nazis had wrought. Nowhere was this damage more atrocious than in what the Nazis inflicted on the Jewish minority. The Jews were a non-violent, law abiding minority. Nazis expropriated and murdered them wholesale.

Some escaped. Some watched helplessly from abroad as their relatives were murdered. Such was the fate of the Westfield family. Residents of Tennessee, their relative was murdered, his assets auctioned off, the money went to finance the Nazi war machine.

In 1954, the Second Circuit, at the behest of the U.S. State Department, stripped the Nazis of sovereign immunity.

On February 2, 2011, the Nazis got sovereign immunity back in Westfield v. Federal Republic of Germany (6th Cir.).

I have posted the Westfield case below and the full text of the Second Circuit's Bernstein case.   This appears to be a circuit split over whether the Nazis were a criminal conspiracy or whether they were a legitimate government, a question that was resolved against the Nazis at Nuremberg in 1946 in the negative.

The Sixth Circuit did not cite Bernstein, nor did it cite Republic of Austria v. Altmann.  http://en.wikipedia.org/wiki/Republic_of_Austria_v._Altmann

The Sixth Circuit held that murdering Westfield and auctioning off his art collection (part of which is at the Boston Museum of Fine Arts), did not have a "direct effect" in the United States, even though the Nazis knew that his heirs resided in Tennessee.   Art museums in the U.S. today are actively concealing their role in laundering artworks stolen by the Nazis and battling all efforts at disclosure of Nazi-era and post War collecting practices.  U.S. museums now claim that they have a "fiduciary duty" to conceal documents and research relating to the provenance of stolen artworks in their collections and to force dispossessed Holocaust survivors and their heirs to litigate to track the artworks.

The U.S. State Department should intervene in the case and ask the Sixth Circuit to reconsider in light of Bernstein.   Tennessee shouldn't be the only state in the U.S. that lost World War II.

Westfield v Fed Rep of Germany 6th Circuit Feb 2 2011

210 F.2d 375

BERNSTEIN, v. N. V. NEDERLANDSCHE- AMERIKAANSCHE STOOMVAART- MAATSCHAPPIJ

(Chemical Bank& Trust Co., Third-Party Defendant). No. 21193.
United States Court of Appeals, Second Circuit.
Submitted Jan. 11, 1954.
Decided Feb. 5, 1954.
Bennet, House & Couts, New York City, for plaintiff-petitioner; Victor House, Albert I. Edelman and Werner Ilsen, New York City, of counsel.
Burlingham, Hupper & Kennedy, New York City, for defendant Holland-America Line; Harold M. Kennedy, and Harvey C. Allen, Jr., New York City, of counsel.

Sherman & Sterling & Wright, New York City, for Third-Party Defendant, Chemical Bank & Trust Company; John A. Wilson, M. VanVoorhies and Edmond K. Leach, New York City, of counsel.

Petition to amend the mandate of this court handed down in a prior appeal in this case, 173 F.2d 71. Petition granted.

Before AUGUSTUS N. HAND, CLARK and FRANK, Circuit Judges.

Petition to amend the mandate of this court handed down in a prior appeal in this case, 173 F.2d 71. Petition granted.

PER CURIAM.

In the prior appeal in this case, 173 F.2d 71, 75-76, because of the lack of a definitive expression of Executive Policy, we felt constrained to follow the decision of this court in Bernstein v. Van Heyghen Freres Societe Anonyme, 2 Cir., 163 F.2d 246, certiorari denied 332 U.S. 772, 68 S.Ct. 88, 92 L.Ed. 357, by ordering the plaintiff to refrain from alleging matters which would cause the court to pass on the validity of acts of officials of the German government. Following our decision, however, the State Department issued Press Release No. 296 on April 27, 1949, entitled: 'Jurisdiction of United States Courts Re Suits for Identifiable Property Involved in Nazi Forced Transfers.' The substance of this Release follows:
2

'As a matter of general interest, the Department publishes herewith a copy of a letter of April 13, 1949 from Jack B. Tate, Acting Legal Advisor, Department of State, to the Attorneys for the plaintiff in Civil Action No. 31-555 in the United States District Court for the Southern District of New York.
3
'The letter repeats this Government's opposition to forcible acts of dispossession of a discriminatory and confiscatory nature practiced by the Germans on the countries or peoples subject to their controls; states that it is this Government's policy to undo the forced transfers and restitute identifiable property to the victims of Nazi persecution wrongfully deprived of such property; and sets forth that the policy of the Executive, with respect to claims asserted in the United States for restitution of such property, is to relieve American courts from any restraint upon the exercise of their jurisdiction to pass upon the validity of the acts of Nazi officials.'
4
The letter from Mr. Tate is then quoted, pertinent parts of which follow:
5
'1. This Government has consistently opposed the forcible acts of dispossession of a discriminatory and confiscatory nature practiced by the Germans on the countries or people subject to their controls. * * *
6
'3. The policy of the Executive, with respect to claims asserted in the United States for the restitution of identifiable property (or compensation in lieu thereof) lost through force, coercion, or duress as a result of Nazi persecution in German, is to relieve American courts from any restraint upon the exercise of their jurisdiction to pass upon the validity of the acts of Nazi officials.'
7
In view of this supervening expression of Executive Policy, we amend our mandate in this case by striking out all restraints based on the inability of the court to pass on acts of officials in Germany during the period in question. See 173 F.2d at pages 75-76. This will permit the district court to accept the Release in evidence and conduct the trial of this case without regard to the restraint we previously placed upon it.
.
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Art Litigation: Nazi-Era Art Restitution - Legal Update Jan 24 New York State Bar Association

Nazi-Era Art Restitution Legal Update NYSBA EASL Jan 24 2011



On Monday January 24, 2011 I will be part of a panel organized by the New York State Bar Association' Entertainment Arts and Sports Law Section, flyer above, direct link and program description below.

http://www.nysba.org/AM/Template.cfm?Section=Event_List&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=45158

1:35-3:30 p.m. NAZI-ERA ART RESTITUTION: RECENT CASE DEVELOPMENTS


This program will address recent cases brought by heirs of Holocaust victims concerning the ownership of
artworks claimed to have been looted or sold under duress during the Nazi era. When the art resurfaced –
often decades later – in the hands of museums, collectors, galleries and auction houses, ownership disputes
have raised complex procedural, substantive, and policy issues. This panel includes lawyers representing
both sides of several high-profile cases, including the eleven-year battle which resulted in a $19 million
settlement with the Leopold Museum in Vienna in the Egon Schiele - Portrait of Wally case and the
seven-year battle with the Republic of Austria, which resulted in the restitution to the family of Holocaust
victims of a number of important works by Gustav Klimt, valued, in the aggregate, in excess of $300
million. The esteemed panelists will also discuss cases involving the Museum of Fine Arts in Boston, the
Norton Simon Museum in Pasadena, and descendants of families who are laying claim to works by Picasso,
Pissarro, Schiele, Kokoschka, Klimt, and Lucas Cranach the Elder

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