28 February 2015

Are German museums in favor of restitution?

by Marc Masurovsky

By the looks of it, the answer is a qualified NO.

Let’s take a quick run-through at the track record of German institutions through the glare of the media since 2006. If some cases have fallen off the wagon, just blame the author. No one else.

Generally speaking, collections owned by noted art dealers and collectors like Alfred Flechtheim have continued to plague and embarrass German museums because many items illegally removed from those Jewish owners have entered these public collections.

In 2006, German museums complained that restitution procedures were too easy and that anyway most claims centered on auction house sales. What does that have to do with anything?
According to the LA Times, German museums asked the German government for help in funding provenance research because they had no money for such purposes and their staff seemingly could not be tasked to perform such duties.

Oh yes! museum directors asked that the discussion about restitution be more “businesslike.” Somehow, they felt inconvenienced by the emotional tone underlying claims for restitution. It’s hard to imagine why since claimants are heirs to victims of a genocide perpetrated by German state institutions against their families during the National Socialist period.

In 2007, the grumbling by German museums persisted over restitution rules.

In 2008, Culture Minister Bernd Neumann convened a meeting in Berlin with representatives of German museums, art experts, and individuals concerned with questions of restitution. Once again, museums requested more money for provenance research. However, some museum researchers spoke up and complained that they worked in isolation, were overwhelmed by the dizzying amount of work to do for institutions that were understaffed and underfunded.
In January 2009, an international Conference took place at the Jewish Museum of Berlin which focused the spotlight on the state of affairs both in Germany and elsewhere regarding restitution matters.

We are skipping through history here. In November 2013, the Gurlitt case exploded onto the international scene, taking by surprise everyone remotely interested in issues pertaining to looted art, to restitution, to Gemany's handling of its past.

Some commentators have gone as far as saying that the “handling of this Nazi legacy (entartete kunst) is a moral disaster.”

During that time, a restitution claim filed by the Montreal-based Max Stern Restitution Project, landed on the desk of the leadership of the City Museum of Dusseldorf over a painting by Wilhelm von Schadow which belonged to the late Max Stern. Contrary to most German museums, the leadership of the city Museum proved to be sympathetic to the request for restitution and endeavored to work closely with the Max Stern Project in order to resolve the claim favorably. An odd moment when one considers the general hostility that permeates the German museum world regarding restitution claims.

It could be that the Montreal-based restitution project which is housed at Concordia University, relies heavily on international law enforcement agencies to facilitate its requests for restitution. An interesting model to keep in mind.

While German museums were giving short shrift to Holocaust-era claimants, the German government appeared to encourage the repatriation of looted antiquities to Greece and Iraq. The same could not be said for African countries like Nigeria, Chad and Gabon. Neo-colonialist double-standard or geopolitics gone awry?
If you think we are being too harsh on the German government and its cultural institutions, they should not feel singled-out since a similar negative assessment appeared in the New York Times accusing American museums of rolling back the clock on restitution: stalling, balking, and disengaging from the restitution discussion. Fair or unfair?

2014 let in a bright light of hope when the museum of art of Wuppertal decided of its own accord with the support of the local city council to do the right thing and restitute a gorgeous painting by Caspar Netscher entitled “Lady with the Parrot—Dame mit Papagei”, an exceptional moment in the annals of restitution in Germany, a moment that should have heaped kudos on the director of the Wuppertal Museum, Gerhard Finckh, for his willingness to keep an open mind even if it meant losing one of the museum’s prized possessions. A gesture that was largely ignored by German and foreign journalists, commentators, restitution officials, and the like. So, we take this opportunity to applaud Mr. Finkh’s decision to restitute the Caspar Netscher painting to the heirs of a Belgian Jewish family, as a shining example of what can be done if one wills it to be done.

Note that the world did not come to an end and that the art market is still in operation.

However, the restitution enthusiasm was short-lived, the window closed and the room went dark. In August 2014, the Bayerische Staatsgemäldesammlungen rejected a restitution claim for a painting by Jacob Octhervelt.

In the midst of the Gurlitt mess, 2015 has not gotten off on a positive footing. Indeed, the so-called Guelph treasure has been the subject of a restitution claim whereby the German institution holding the so-called treasure which is worth quite a bit of money has refused to return it on grounds that there is no proof of a spoliation, let alone duress. The family has turned around and filed a lawsuit.

In the minds of restitution lawyers both in Germany and the United States, the Guelph treasure case puts the lie to German pledges to do what is needed to facilitate restitution to claimants.

As a result of the constantly evolving Cornelius Gurlitt scandal, in death as in life, German promises of passing laws eliminating statutes of limitations have not come to fruition.

In response to the savagery displayed in Syria and Irak against people and property, especially cultural property, Germany woke up to the fact that its territory is used as a major turnstile for the reselling of looted antiquities originating in that conflict. Monika Gruetters proposed that provenances be required for all cultural items entering or leaving Germany which apparently come from the Mideast. A great idea that is not favored by the German art market. Let’s see.

Will there be more funding for provenance research in Germany? A new center requested by Monika Gruetters has reorganized and expanded the provenance bureaucracy in Germany, the largest of its kind in the world, but it does not appear to be the ideal way of addressing the problem that plagues cultural institutions in Germany. As a model, the world is taking note, but wonders whether this is what we should NOT be doing when addressing the question of research and due diligence in museum collections.
Nevertheless, it is easy to criticize the German government when the rest of the world is not doing a bloody thing to move forward on questions of research, due diligence, improved conditions for filing and resolving claims and so forth and so on.

We are therefore duty bound to acknowledge that, in its particularly clumsy way, Germany has been trying to improve the climate regarding research into histories of ownership of objects that might have been looted and which are present in German state collections. An improvement that does not allay the underlying problem: how willing are German museums to restitute objects once conclusive or convincing proof has established the illicit nature of the object in a German public collection?

The answer to our initial question is still NO. Unless proven otherwise, the vast majority of German museums are still not inclined to restitute.
As they say in the United States, proof is in the pudding.

Technical defenses fuel a toxic legal climate that denies justice for claimants

by Marc Masurovsky

The words themselves are shocking. Speaking as a non-lawyer, technical defenses—statute of limitations and “laches”—constitute the bane of any claimant seeking to recover works or objects of art from a private or public collection especially in the United States. In Europe, the most reviled defense, aside from the two aforementioned, is the so-called “good faith” argument, which is nearly impossible to defeat and override in those countries that apply civil law, as opposed to common law.

“Laches” are invoked to question whether a claimant has made diligent, sustained efforts on a regular basis to locate his/her lost property. The interpretation of what constitutes diligence, sustained efforts can be highly subjective.

Is the victim of plunder required to constantly seek his/her lost property, regardless of his/her economic circumstances at war’s end? What constitutes diligence? A weekly search? Writing to ministries of culture, art historians, museum curators and directors, speaking regularly with art historians and specialists? In other words, being a part-time sleuth? How can one expect the survivors of genocide to behave like art historians and self-appointed sleuths, most of whom had lost EVERYTHING, property and relatives, in some cases parents and siblings, close and distant relatives? Most claimants do not stumble on their lost property until decades have passed since they lost the item(s).

In the case of the Ciric/Elkan family in Paris, the claimants stumbled—literally—on their lost property—priceless 18th century French furniture—as they visited a Paris museum, the Carnavalet, and discovered—to their dismay—their property on display on the upper floor of the museum housed in Le Marais. One family member remembered sitting on one item while the other recalled sleeping on the other. To this day, they have been unable to recover their family’s furniture. Their struggle is about the enter its second decade.

Another family saw their family’s Degas pastel of a landscape reproduced in a catalogue. That event confirmed the existence of their family’s property. Still another claimant happened to run into a couple while vacationing in the Berkshire Mountains who informed her that they had bought a painting by Henri Matisse and donated it to a museum in Seattle, Washington. It goes to show that sometimes the strangest coincidences can trigger a restitution procedure.

Still, postwar governments have not made things easy for surviving victims of Nazi racial and political persecution as well as for their heirs. No special laws were introduced and voted on in national legislatures across Europe and the United States to enable these victims of persecution and plunder to benefit from special measures that could ease the burden that they have to carry in order to “make their case” before judges, lawyers and government officials. Twice victims. We are now in 2015 and the following actions need to be taken ad minima in order for justice to mean what it is supposed to mean:

1/ Eliminating statutes of limitations as legal hurdles to claimants’ attempts to seek restitution of their looted property.

2/ Eliminating laches and other technical defenses that end up “blaming the victim” for a perceived lack of interest in their lost property.

3/ Establishing national mechanisms with which claimants can file a restitution claim on a “fast-track”, a process that should be aided by governments, and have their claim heard on the merits without fear of dismissal for “technical reasons.”

4/ Passing laws that make it illegal for cultural institutions that obtain lavish subsidies from their governments to own or display looted cultural property

5/ Creating national and supranational entities which coordinate and finance provenance research to assist claimants and institutions alike in collecting the needed information on their missing objects and their postwar fate. One proposal favored by some in Europe is to establish a non-governmental entity at the European level responsible for overseeing, funding, and coordinating research efforts on claims under consideration.

Provenance research: let’s get real

by Marc Masurovsky

The din grows ever stronger in conferences, symposia, seminars, blogs, social media, museums, government agencies, whereby provenance research is a necessity, a duty. And yet, no concrete steps appear to have been taken in the private and public sectors to fold provenance research into their daily habits and to fund this highly-skilled service adequately.

Each institution that collects, acquires, and exhibits artistic, cultural and ritual objects should allow for at least one if not two full-time researchers to conduct their research in a professional and ethical manner in order to improve the quality of management of the collections, to raise the ethical bar of the institution and to better serve their public, general and specialized.

This lamentable state of affairs exists worldwide with few notable exceptions. It is simply outrageous to continue to encourage young and old, talented and enthusiastic, who want to work as provenance researchers, dangling the carrot of possibilities in front of their faces only to remind them that: sorry, no jobs, no opportunities, no funds.

In some sense, the Museum of Fine Arts in Boston, MA, has set the gold standard—relatively speaking, that is—by creating a full-time “curator of provenance”, a position masterfully filled by Victoria Reed. That’s one museum in the United States. Not the largest, not the smallest, and yet it was able to figure out how to raise the bar of accountability, research and diligence for its collection and the objects that it displays, curates and acquires. Was that so difficult? It must have been a rocky road leading to that moment. The point is that the MFA has turned the corner.

Should it remain the lonely exception to an otherwise dismal state of affairs exemplified by institutions that carry hundreds of thousands of items in their august bosoms and do nothing to ameliorate the landscape of research?

Believe me when I say that it is not a funding question. For every exhibit and acquisition that require major outlays of funds, a small portion of those funds could be allocated to provenance research. And yet they are not.

Perhaps, the only way to achieve this goal is to regulate the practice of research, mandate “professional” training in accredited institutions and programs, and deny accreditation to any institution that does not comply with minimum provenance research requirements. Why not? Does this proposal sound radical and off-the-wall? Perhaps, but it is the solution of last recourse.  Unfortunately, no state or national/Federal legislature will have the guts to regulate provenance research. The big ‘R’ is one scary beast.

If you do not want to be regulated, I suggest that you commit yourselves to a long-term strategy of funding full-time positions for provenance research and to encourage universities and colleges to teach the subject.  All it takes is one class in two parts for a full academic year.  Cultural institutions are in desperate need of assistance and contribution from provenance experts who can help to tell the story of the objects in the collections and, more importantly, to weed out the chaff from the collections, the toxic residue that imperils their good name because of historical thefts and plunder tied to acts of genocide and mass slaughter.

25 February 2015

The most expensive works of art in the world and their histories (or lack thereof)-Part Three

by Marc Masurovsky

7. The Portrait of Adele Bloch Bauer II, 1912, by Gustav Klimt sold for 87 million dollars at Christie’s on November 8, 2006.
Adele Bloch Bauer II, 1912, Gustav Klimt

8. The Portrait of Adele Bloch Bauer I (The Lady in Gold) by Gustav Klimt, 1907, sold for 135 million dollars at the same sale.
Adele Bloch Bauer I, 1907, Gustav Klimt

These two portraits of Adele Bloch Bauer were painted by Gustav Klimt on the eve of the First World War. Klimt was a favorite of Viennese Jewish aristocrats. The portraits are lush and exuberant, yet Adele is unreachable and cold. Adele died at a young age in 1925. The Anschluss of March 10, 1938 resulted in the Nazi annexation of Austria into the Greater German Reich and in the wholesale dispossession of Jewish-owned wealth and property followed by the persecution and deportation of tens of thousands of Viennese Jews to concentration camps “nach dem Osten.” The Bloch Bauer family, one of the most financially endowed of Vienna, lost all of its property. Avid collectors of Klimt and other members of the Austrian Secession, the Nazis confiscated all of the family’s works of art which ended up in government depots in Vienna. Decades later, the Nazis gone, the paintings remained in Austria hanging at the Belvedere while the remnants of the family had resettled in exile including Adele’s niece, Marie Altmann. She consulted with Randol Schoenberg, an attorney in Los Angeles and grandson of the composer, Arnold Schoenberg. Randy (as he is known) took her case and spent the greater part of eight years trying to wrest the Bloch Bauer Klimts from the clutches of the Austrian government. He eventually took the Austrian government to the Supreme Court (Altmann v. the Repubic of Austria) and was able to establish “jurisdiction”, a legal maneuver that enabled Marie Altmann to sue the Austrian government in American Federal courts. That verdict tipped the scales against Austria. One possible outcome of the case would have been for Austria to buy back the paintings. But at fair market value, the Austrian government would have spent upwards of 300 million dollars for the paintings including the two portraits of Adele Bloch Bauer. It was unwilling to do so. Marie Altmann won the right to recover her family’s cultural inheritance. Upon restitution, Adele Bloch Bauer I and II went on the auction block.

9. Boy with pipe, 1905, by Pablo Picasso sold for 104 million dollars on May 5, 2004 at Sotheby’s.
Boy with a Pipe, 1905, Pablo Picasso
According to the Sotheby’s catalogue, this painting once belonged to the Mendelssohn-Bartholdy family which sold it to the Swiss art dealer, Walter Feilchenfeldt, who headed the Cassirer gallery. Despite of and because of their wealth and status in Germany’s elite, the Mendelssohn-Bartholdy family suffered racial persecutions much like the rest of the Jewish community of Germany. Many of their cultural and artistic possessions were sold under duress in the 1930s.

John Hay Whitney purchased “Boy with a pipe” in 1950. After Whitney’s death, the painting passed to his widow, Betsey. She died in 1998 and a family foundation established by Betsey took control of the Whitney family’s art. The foundation sold the Picasso and other works in 2004.

10. Nude, Green leaves and Bust (1932) by Pablo Picasso sold for 106 million dollars on April 30, 2010 at Christie’s. 

Nude, Green Leaves and Bust, 1932, Pablo Picasso
 This complex still life by Picasso was once owned by the fabled French Jewish art dealer, Paul Rosenberg. Fearing for his safety following the German invasion of Poland, Paul Rosenberg fled to New York leaving most of his property behind in Paris and several storage sites in central and southwestern France, including his world-renown stock of Impressionist and Cubist works. He stored some of them in a storage shed in Tours under the name of one of his employees, which apparently shielded those works from Nazi seizure. Paul and his brother, Edmond, recovered all of the art stored in Tours after France was liberated.

11. The Scream, 1895 by Edvard Munch sold for 119 million dollars at Sotheby’s on May 2, 2012. The seller was Petter Olsen, whose father, Thomas, had been a neighbor of Edvard Munch.
The Scream, 1895, by Edvard Munch

The reporting on the painting echoed other similar journalistic fawning over the staggering cost of a work of art. Usually, those paeans to the Everest of the art world tend to overshadow the actual history of the objects fetching such ridiculous sums. As it turns out, Munch’s acknowledged masterpiece of angst and despair, The Scream, had passed through many hands. According to the Los Angeles Times, the painting had a clear provenance, starting with Arthur von Franquet who sold it to Hugo Simon who sold it through an art dealer to Thomas Olsen in 1937 and thence by descent to Pette Olsen.

A posting on the ARCAblog which came on the heels of the fabled sale of the Munch painting summarized the history of the Scream as provided by the Sotheby’s auction house. There we learn that Hugo Simon purchased the painting in 1926 and consigned it to the Kunsthaus in Zurich, nearly 10 years later in December 1936. One month later, the painting presumably found its way to Stockholm where Thomas Olsen, the father of the seller, acquired the painting at M. Molvidson, Konst & Antikvitetshandel.

Meanwhile, one of the Hugo Simon heirs contacted the Holocaust Art Restitution Project (HARP) and expressed his concern that the painting had been sold by his great-grandfather under duress. Thus it was a forced sale, and Sotheby’s refused to acknowledge that fact. This additional element cast a pall on the entire sale. However, it was clear that nothing would stop this juggernaut of the auction market from doing anything to prevent the sale, especially because it represented such a hefty pay day for the auction house.

Five months after the sale, the Museum of Modern Art of New York announced that “The Scream” will be on temporary display as of mid-October 2012, thanks to one of MoMA’s trustees, Leon Black, who happened to be the lucky purchaser of the famed painting.

At this point, the local New York press took seriously charges made by Raphael Cardoso, Hugo Simon’s great-grand-son, that Hugo Simon had been forced to sell the Scream as well as most of his art collection as a direct result of his persecution as a Jew in Nazi Germany. He fled to Paris then to Brazil. The Nazis confiscated all of his assets in Germany, then, after the invasion of France, did the same with his few possessions in Paris, including his apartment and the art and furniture that it contained.
The Jewish Forward cited the October 14, 2012, article by Isabel Vincent and essentially reprinted Raphael Cardoso’s concerns. It is the only article that called into question the provenance of “The Scream,” by Edvard Munch.  Shortly afterwards, the online art world blog, Artinfo, titled an article: Is the Scream Nazi loot?  The Jewish Journal echoed the Simon heirs’ demand that, at the very least, MoMA accompany the Scream with an explanatory piece that echoed the context in which the painting changed hands once Hugo Simon tried to sell it in the mid-1930s. 

Finally, another blog, City Review, disclosed the fact that Pette Olsen, then owner of “The Scream”, had offered 250,000 dollars to the family that it could donate to whatever cause it desired. What the article did not mention is that Sotheby’s brokered this offer. The family turned it down on grounds that “it was insulting.”

In sum, a story that should have riled the art world became a “Jewish” story as only the Jewish and Israeli press took heed of the claim made by the Simon heirs that the iconographic painting of anxiety and despair portrayed so emphatically by Munch, could have been the subject of a forced sale.
If anything, the Munch painting’s travails echo once again the difficulty inherent in defining what a forced sale is, what duress really means, when faced with a claim for restitution seventy years later.

11. The dream, 24 January 1932 by Pablo Picasso sold for 155 million dollars on March 26, 2013, in a private sale between the casino billionaire, Steve Wynn, and the stockbroker billionaire, Steve Cohen, who was then under investigation by the Securities and Exchange Commission.
The Dream, 1932, Pablo Picasso

Victor and Sally Gancz had acquired the painting in New York for 7,000 dollars in 1941 and kept it in their possession until November 11, 1997 There is no information about who might have sold it to them and when the painting actually crossed the Atlantic Ocean. Apparently, Gancz sold The Dream to an Austrian-born financier, Wolfgang Flöttl, whose name also appeared on the provenance of van Gogh’s Portrait of Dr. Gachet.

Flöttl sold The Dream to Steve Wynn in 2001. In an unfortunate incident that made the news globally, Wynn tripped and tore the painting with his elbow. Following its successful restoration for which he spared no expense (as good as new if not better!), he offered it to Steve Cohen who had already expressed in it and would have acquired it earlier had it not been for the rip.

12. Les joueurs de cartes, early 1890s, by Paul Cézanne, sold for 259 million dollars in 2011 to a member of the Qatar royal family. The seller was a Greek billionaire, George Embiricos, who amassed an impressive art collection. 

Les joueurs de cartes, early 1890s, Paul Cezanne

The history of the painting is unknown, save for the fact that Embiricos “owned it for many years”,
Two leading lights of the global art world, Bill Acquavella and Larry Gagosian had presumably offered 220 million dollars for the painting. No deal.
Here we have one of the finest examples of Cézanne’s oeuvre, the second most expensive painting in the world, whose origins are unknown. All that we do know is that Paul Cézanne painted it in the early 1890s.  It left France at a certain point, ending up in Greece at a certain point where it stayed “for many years” before leaving for the Persian Gulf States. So much for “transparency.”

13. "Nafea Faa Ipoipo-When Will You Marry?", 1892, by Paul Gauguin sold in a private sale to the Qatar Royal Family for approximately 300 million dollars in February 2015.

When will you marry? 1892, Paul Gauguin

The seller is the Rudolph Staechelin Family Trust in Basel, Switzerland, which is run by Ruedi Staechelin, Rudolph’s grandson. The painting was on loan to the Kunstmuseum Basel. The loan period ends in June 2015. Rudolph Staechelin amassed his collection during the interwar years and befriended most of the artists whose works he had purchased. His grandson, Ruedi Staechelin, a former auction house executive, has taken a strong position against the UNIDROIT convention which he views as “an enormous danger to public and private collecting”. UNIDROIT was put into place in the mid-1990s to remind the international community of the legal, financial, and ethical risks involved in trading and displaying stolen art. Staechelin proudly announced that Swiss museums, collectors and even the Swiss Art Trade Association, supported his stance against the international convention on trafficking of looted art. Now you know why Switzerland does not return, does not restitute, and does not repatriate looted cultural assets unless under threat of subpoenas, seizures and arrests. 

What a way to do business!

See the article by Julia Voss on the Gauguin sale that appeared earlier in February 2015 in the Frankfurter Allgemeine Zeitung.