Art Litigation: Artworks Stolen By U.S. Soldier Returned to German Museum

Image Wikimedia Commons via Art News - Heinrich Buerkel's Regenschauer in Garmisch

Art News and the AP report on the grand-niece of an American Serviceman who inherited 11 artworks and realized that they were stolen from a German museum and then decided to restitute them.

But unfortunately, the Art News piece claims: 

"it has emerged in recent years that Allied soldiers also stole work."

That is an absolute falsehood.   As Milton Esterow reported in November 16, 1964 front page article for the New York Times "Europe Is Still Hunting Its Plundered Art" discussed here, the U.S. State Department had recovered almost 4,000 stolen artworks in the U.S. from 1945 to 1962, many that were looted by U.S. servicemen.  The U.S. State Department, principally Ardelia Hall and the Roberts Commission warned U.S. museums and art dealers in the 1940's and 1950's not to acquire stolen art and gave a general amnesty to people returning stolen works.

Stolen art was a big deal in 1945 and 1946, getting lots of ink in the New Yorker (Janet Flanner's groundbreaking work), Atlantic Monthly, National Geographic and many other major publications.

It is unfortunate that for the last 60 years, the American museum community and art press feign perpetual surprise each time stolen works surface.   This collective amnesia is a national disgrace.  Tens of thousands of works stolen from murdered Jews or foreign museums are missing or were donated to an American museum in exchange for tax breaks and hidden in the basement. U.S. museums have shirked their ethical duties as set forth in the Washington Principles to research their collections and publish provenances of the works in their collections.  Let's not act shocked and surprised every time an American is caught with his hand in the cookie jar.

Purchase Copyright Litigation Handbook from West here  

Art Litigation: US Executive Policy, Nazi Looted Art and Flechtheim's Nose

Rudolph Belling's Portrait of Alfred Flechtheim at Harvard

Professor Jennifer Kreder attacks the subject of US Executive policy on Nazi-looted art on the Prawfsblawg here.  The Executive Branch started an exception to the Act of State Doctrine known as the "Bernstein Exception".   In the Bernstein case, the State Department indicated to the Southern District of New York that it was free to unwind any act of the Nazis because the US did not consider the Nazis a legitimate government and the Second Circuit affirmed the District Court's power to review and invalidate Nazi acts.

Very few people know about the Bernstein case and its continuing application to Nazi-looted art cases.  U.S. museums have taken the position that Hitler's acts of stripping German museums of Jewish and "degenerate" artworks should be considered legitimate governmental acts in a bid to hold onto artworks stolen from German museums.

This is problematic on many levels.  Today, the American Association of Museum Directors is desperately trying to keep these stolen artworks by falsifying and concealing the provenance of artworks in its collections and by trying to have Hitler's acts rubber-stamped by the federal courts.

The stolen loot should be returned and American museums should start acknowledging their debts to Germany's Jewish community and the German avant-garde of the 1920's and 30's.

A look at MoMA's website today shows that the MoMA still can't find a picture of Alfred Flechtheim's nose (above) which according to Boston Modern author Judith Bookbinder was the very first modern German sculpture collected by Harvard and what became the Busch-Reisinger Museum.  My posts on Alfred Flechtheim and his tragic story, which has never been recounted by any of the members of the American Association of Museums or American Association of Museum Directors, and MoMA's inability to find Flechtheim's nose here.

MoMA's Portrait of Alfred Flechtheim was gifted to it by Nazi agent Curt Valentin, more on Valentin here.

Maybe MoMA could ask Judith Bookbinder to find Alfred Flechtheim's nose?

Purchase Copyright Litigation Handbook from West here  

Art Litigation: Will Austria Return Egon Schiele's Portrait of Wally?

Today's New York Times obit of Rudolph Leopold makes passing reference to the fact that he was to stand criminal trial in the United States on July 26 on the issue of whether he knew that "Portrait of Wally" (above) - was stolen.  After the Justice Department seized the work, my understanding is that it's been sitting in a warehouse in Long Island City, unseen by the public for over a decade.   So Austria will now have to decide whether it wishes to continue to fight the US government or to throw in the towel and give Portrait of Wally back to the family of the art dealer from whom it was stolen.

I understand that an Austrian paper reported yesterday that Austria would have a majority of the Board positions on the Leopold Museum, which makes it much tougher for Austria to continue to pretend that the Leopold Museum is a "private" institution, the fiction it has used to avoid returning stolen property up until now.

Readers of Austrian tea leaves predict that the death of Hans Dichand, Austria's most powerful man and long-term Nazi sympathizer and anti-Semite, is more significant in determining Austria's approach to the problem.   Leopold was under Dichand's political protection in Austria - he was an extremely powerful media mogul who made and broke politicians daily.  Now that Dichand is dead, there is a much greater likelihood that many of the stolen artworks in the Leopold Museum will be restituted.   Apparently, Dichand had a vast art collection that is not free of controversy.

My previous posts on Rudoph Leopold, the Leopold Museum, and Austria's dithering here.  Perhaps the New York Times will show a renewed interest in the topic of Nazi art looting.   If U.S. papers like the New York Times cover these issues, it has a major impact in Austria.    When U.S. papers ignore the topic, Germany and Austria seem to lose any momentum towards restitution.

Rudolf Leopold, Art Collector, Dies at 85 - Obituary (Obit) - NYTimes.com

Purchase Copyright Litigation Handbook from West here

Watch Boston College Law School Video! Nazi Art Looting - Stolen Art in US Museums and How It Got There

Girl With Black Hair -  Stolen From Fritz Grunbaum, Now At Oberlin College 

Here is a link to my lecture at the Boston College School of Law on April 22, 2010.  The URL is http://echo360.bc.edu:8080/ess/echo/presentation/20714145-29f6-4eb8-b72e-aadd6e794ad1.

Assoc. Dean Filippa Anzalone and her terrific Art Law students gave me a great welcome and asked lots of tough questions.  Dean Anzalone wrote me a lovely letter and kindly gave me permission to reprint:

Dear Ray:

Thank you again for your wonderful presentation for the Art Law Seminar on April 22nd. The students and other attendees were literally on the edge of their seats as they listened to your lawyerly and thorough discussion. Your excellent lecture, coupled with your slides made the presentation on Bakalar v. Vavra and Egon Schiele’s Dead City: Stolen art from Europe (1933-1945) in American museums and how it got there one of the most memorable classes of the semester. In fact, we discussed your presentation at the following week’s class and it was difficult to turn the discussion back to the topic scheduled for that week!

The thoroughness with which you presented the diabolically methodical process that the Third Reich used to despoil Jews of their property kept the class riveted during your lecture. The horror of the Nazi art looting came to life for the audience as you presented the evidentiary issues and the legal problems associated with restitution litigation for holocaust victims and families.

Since your presentation, many of the attendees have contacted me and commented on how astonished they were after your lecture. It is chilling to realize how methodical and relentless the Third Reich was in their pillaging operations. The cold, non-violent theft of Jewish property, including land, art and household objects, and even life insurance policies , by the Nazis is harrowing to say the least. Many of the attendees have told me that they appreciated understanding the issues of the Nazi thefts from your very carefully articulated legal perspective.

Your program was a real success; superseded only by your generosity of time and energy. We thank you for the printed copies of your slides, and your great kindness in talking with students and answering questions. We want you to know how very much your work was appreciated by me, my class, and the Boston College Law community. Thank you so much, Ray. May your good work continue and prosper.

Peace,

Filippa Marullo Anzalone
Professor of Law
Associate Dean for Library & Technology Services

Invitation: February 11 Lecture at Cincinnati Museum Center on Recovery of Nazi Looted Art

Cincinnati Museum Center at Union Terminal

invites you to an evening with

Raymond J. Dowd, Esquire
Partner, Dunnington, Bartholow & Miller LLP
Thursday, February 11, 2010
6 p.m.

Heavy appetizers and cash bar

7:30 p.m.

Insights Lecture Series

Murder, Mystery, and The Dead City

Mr. Dowd will speak about the battles to recover art stolen from Jewish Holocaust victims, the undisclosed role of the Swiss in laundering looted art for the Nazis, and the implications for U.S. museums holding artworks of European origin.

$25 per person for reception includes parking.

Lecture open to the public. Parking $4.

Reception reservations requested to Sarah McManus

by Monday, February 8, 2010

(513) 287-7074 or smcmanus@cincymuseum.org
In partnership with

Co-sponsored by Northern Kentucky University Chase College of Law and

the Cincinnati-Northern Kentucky Chapter of the Federal Bar Association.

Murder Mystery and Egon Schiele's Dead City: Nazi Looted Artworks in US Museums

In May of this year I gave a lecture at the Jewish Museum titled "Murder, Mystery and Egon Schiele's Dead City: Swiss Laundering of Stolen Austrian Artwork". You can access a video of the lecture here at a blog called Art Stolen from Fritz Grunbaum.

I took the photo at left in the Holocaust Tower at the Jewish Museum.

If you care about the issue of artworks looted by the Nazis being concealed by the Austrians and the Swiss - and never returned to the heirs of their murdered Jewish owners, then you will find the video of interest.

According to 2006 Congressional testimony of AAMD President James Cuno, U.S. museums contain tens of thousands of artworks that were potentially looted by the Nazis that U.S. museums have failed to research. Since many families were wiped out entirely, there are no heirs to claim stolen Jewish assets in U.S. museums.

According to a recent statement by Amb. Stuart Eizenstat, 1% of Holocaust survivors die each month. 36% of them live at or below the poverty line.

U.S. museums promised to make all of their records relating to Holocaust-era assets public in 1999 and to put this information online to aid the Diaspora in tracing their heritage. This was at the Washington Conference on Holocaust-Era Assets.

Unfortunately, U.S. museums have failed to follow up on their promises. Each item in a museum, like, for example, the Museum of Modern Art, has a "confidential object file" The "confidential object file" is concealed from historians as a matter of routine. New York City taxpayers subsidize this concealment by giving tax breaks and grants to institutions like the MoMA.

If you visit the MoMA's website, you can click "Explore" and "Collection" and find "Provenance Research Project". In there, you will find 719 objects fitting the criteria of having entered the U.S. after 1932 but created before 1946. Numerous of these objects were stolen by the Nazis and never returned to their true owners.

Although there was a movement during the Clinton Administration to push U.S. museums to reveal information relating to European artworks entering the U.S. after 1933 but created before 1945, but this initiative was dropped like a hot potato once the Bush/Cheney administration came to power.

Unfortunately, Edgar Bronfman, who was a real leader in this area was replaced by art collector Ronald Lauder who has resisted disclosure of his art dealings.

Visiting the Jewish Museum in Berlin was an incredible experience. The building was designed by architect Daniel Libeskind in a manner designed to disturb and disrupt your expectations.

I have reprinted below the Washington Principles on Nazi-Confiscated Art from the U.S. State Department website.

Other countries have made great strides in remedying this problem. Let's hope that the Obama Administration will make it a priority.

Washington Conference Principles On Nazi-Confiscated Art Released in connection with the Washington Conference on Holocaust-Era Assets, Washington, DC, December 3, 1998

In developing a consensus on non-binding principles to assist in resolving issues relating to Nazi-confiscated art, the Conference recognizes that among participating nations there are differing legal systems and that countries act within the context of their own laws.

I. Art that had been confiscated by the Nazis and not subsequently restituted should be identified.

II. Relevant records and archives should be open and accessible to researchers, in accordance with the guidelines of the International Council on Archives.

III. Resources and personnel should be made available to facilitate the identification of all art that had been confiscated by the Nazis and not subsequently restituted.

IV. In establishing that a work of art had been confiscated by the Nazis and not subsequently restituted, consideration should be given to unavoidable gaps or ambiguities in the provenance in light of the passage of time and the circumstances of the Holocaust era.

V. Every effort should be made to publicize art that is found to have been confiscated by the Nazis and not subsequently restituted in order to locate its pre-War owners or their heirs.

VI. Efforts should be made to establish a central registry of such information.

VII. Pre-War owners and their heirs should be encouraged to come forward and make known their claims to art that was confiscated by the Nazis and not subsequently restituted.

VIII. If the pre-War owners of art that is found to have been confiscated by the Nazis and not subsequently restituted, or their heirs, can be identified, steps should be taken expeditiously to achieve a just and fair solution, recognizing this may vary according to the facts and circumstances surrounding a specific case.

IX. If the pre-War owners of art that is found to have been confiscated by the Nazis, or their heirs, can not be identified, steps should be taken expeditiously to achieve a just and fair solution.

X. Commissions or other bodies established to identify art that was confiscated by the Nazis and to assist in addressing ownership issues should have a balanced membership.

XI. Nations are encouraged to develop national processes to implement these principles, particularly as they relate to alternative dispute resolution mechanisms for resolving ownership issues.

Pete Gleason Calls for New York City Holocaust Art Disclosure Act

New York City Council District 1 candidate Pete Gleason calls for a Holocaust Art Disclosure Act for New York City museums. Such an Act would compel New York museums to disclose provenance documents of artworks potentially looted by the Nazis currently in their collections.

This local action follows Amb. Stuart Eizenstat's call for a U.S. Commission to assist descendants of Holocaust victims in determining title to artworks stolen by the Nazis and is a follow-up to this June's Prague Conference on Holocaust-Era Assets.

Pete Gleason's press release is here and his campaign website is www.pete2009.com. The Democratic Primary is September 15.

Last week, the Liz Benjamin of the Daily News reported here a scandal involving a charity on New York's Lower East Side involving the incumbent City Councilman using the charity's employees to collect signatures.