Master of the game

by Marc Masurovsky

Mikhail Piotrovsky is a heavily-decorated, scholarly, and savvy art historian who has been raised in Soviet then Russian museology. He is a true son of Mother Russia.

In a Washington Post article dated April 23, 2003, Piotrovsky was described by Linda Hales as Russia’s cultural ambassador. In an interview given that year, he described the Hermitage as a mirror of Russia. At that point, he was Russian President Vladimir Putin’s deputy on the President’s Council on Culture, “Russia’s official voice in matters of culture.”

To demonstrate Piotrovsky’s willingness to wield the stick in order to get his way, he has threatened to cancel loan commitments to “Western” museums if his conditions were not met. For instance, a series of exhibits in London in 2005 was jeopardized by his insistence to obtain assurances of immunity from seizure. It’s simple. To gain access to the Hermitage’s treasures, museum leaders from around the world must play by Piotrovsky’s rule book.

The Hermitage Museum, which he has headed now for twenty years following in his father’s footsteps, is the pearl of the Russian museum world and an object of global envy and admiration. The Hermitage fuels Russian pride and is used to project Russia’s cultural hegemony. The 1995 display of “trophy art” at the Hermitage was the clearest expression of this sentiment.

The Hermitage is the cultural expression and, as such, the agent of Russian foreign cultural policy. It holds and stewards some of the most important collections in the world of Old Master paintings (from the West), Impressionist works (from the West) and antiquities from all parts of the ancient world (including those that were seized during the liberation by Soviet Army units of the eastern parts of Germany and other countries). It fuels the insatiable appetite of world-class “globalist” or “universalist” museums in Western Europe and North America. Russian leaders make wide use of the museum as a backdrop for high-level encounters with foreign heads of state and their delegations. When was the last time that an American president used the Metropolitan Museum of art or the National Gallery of Art as a similar backdrop to State visits?

To remain competitive and constantly be noticed, American museums through their lobby group, the AAMD, maintain good relations with Dr. Mikhail Piotrovsky, and his superiors in the Kremlin, so as to continue to have access to Russia’s cultural riches and to be able to share bragging rights with Russian museums when staging exceptional exhibits.

One of Dr. Piotrovsky’s early allies was Thomas Krens, then director of the Solomon Guggenheim Museum in New York, to whom he had asked for advice in creating joint projects that would be of direct benefit to the Hermitage (hence the Russian government) and to American museums.

Piotrovsky's thinking, his vision for the Hermitage is interdependent with that of American cultural institutions. But he does not always share their policies regarding repatriation of looted antiquities to source nations. In an interview that he gave to a Russian news outlet in 2013, Piotrovsky preferred that looted antiquities should only be returned with a court order, seemingly balking at the bilateral talks which led American museums to repatriate looted artifacts to source nations. “American museums should stop giving back various antiquities to the Italians and Greeks without court rulings.”

Piotrovsky is a fierce advocate of the globalist, universalist museum vision, which pretends to transcend all politics. Conversely, he is equally a fierce opponent of “deaccession”, which also includes, restitution of looted cultural assets. In his words, “Deaccession is wrong. A museum is a monument, an organism of history.”

In a 2009 statement issued by the Woodrow Wilson Center, Piotrovsky was described as being totally committed “to cultural diplomacy with the United States.” The Hermitage Museum Foundation is one of the instrumentalities through which these ties are expressed. Does this commitment go as far as seeking to exert influence on the legislative process of the US Congress and encouraging the passage of bills that favor Russia’s position as a global cultural lending power?

In 2011, when a US Federal District Court issued a judgment against Russia, Piotrovsky cancelled all scheduled and future loans to American museums. In his words, he advised American museum directors to “go to the State Department. The problem has to be solved. The year 2013 was declared the year of Russia and the U.S. Now the established cultural relations are under threat.” The reassurances offered by American museum directors to the Russians that the immunity from seizure procedures at the State Department were sufficient to protect Russian loans did not satisfy Piotrovsky.

In short, Piotrovsky, as Russia’s cultural ambassador, works very closely with his American counterparts to ensure that their vision of how museums should steward their collections, even the looted ones, are one and the same, in order to ensure proper cultural relationships in step with Russia’s views of the inalienability of cultural objects in museum collections, a view, by the way, that is routinely echoed and upheld by most European museum directors and their governmental overseers.

S.3155 gets the American museum world one step closer to conform to this arcane view of museum governance and its passage harmonizes AAMD’s vision with that of its European partners.

The new cultural imperialism?

Russian activity on the plundered art blog

by Marc Masurovsky

What could be so interesting about the “plundered art” blog that it has attracted a blizzard of pageviews unlike anything seen since the blog first started in 2010? The mission of this cultural blog has always been and will always be: to document and discuss acts of cultural plunder, the restitution of looted art, and the ethics of museum administrators worldwide.

This digital onslaught of “visits” to the plundered art blog has come from Russia. It coincides with the December 5, 2016,  publication of HARP’s study detailing the inability and/or unwillingness of the US Department of State to conduct provenance research when considering requests by foreign lenders for certificates of immunity from judicial seizure that provoked the Russian onslaught. Since then, the story has received more than 4000 pageviews. In our world, that number falls outside the range of “normal” readership on the plundered art blog. We’re happy if we get 2-300 pageviews in a month for a single article.

At the time of publication of the aforementioned article, the US Senate was considering a bill called S. 3155. This bill makes it possible for foreign lenders to obtain immunity from seizure for the objects that they consider lending to US museums. The American museum directors’ lobby, enshrined in the Association of American Museum Directors (AAMD) has been struggling for four years to pass such a law through the Senate. Twice defeated, the AAMD chose the “submarine” strategy. No publicity, no public discussion, just silent lobbying. It also obtained the good services of Mr. Sneak Attack himself, Senator Chuck Schumer, a “Democrat” from New York State, to shepherd the bill through the Senate.

Why would the Russian government be so concerned with an American administrative rule that ensures that works of art from abroad are not seized while on display in an American museum? The procedure in and of itself should be a sufficient guarantee that art works from Russian institutions will be adequately protected while on display in the United States. Apparently, that does not suffice. In a nation like Russia and perhaps other countries where the State oversees, to a lesser or greater extent, the cultural arena, explicit statements by national legislatures count more than an administrative rule. This might explain the motivation of the AAMD to go for the jugular and ask the US Senate to pass a law that enshrines the principle of immunity from judicial seizure as a clear expression of an American cultural policy that officially does not exist. The immunity from seizure procedure has been in place for decades, overseen and enforced by the US Department of State. So why pursue legislation that repeats pretty much what the State Department already does on a weekly basis?

There is no need to show up with reams of documents and thousands of emails to prove Russia’s interest in S. 3155. It is basic common sense to argue that it is in the interest of the Russian government that the AAMD should succeed in pushing S. 3155 through the US Senate.

And it did succeed, before the sun rose on December 10, 2016.

The AAMD’s success in the Senate should beam a strong enough signal to Vladimir Putin that American museum directors are doing their all to assuage him and to convince him to reverse his decision on the cultural loan freeze imposed by Russia since 2011.

S. 3155 will sterilize the American cultural environment at the exhibit level whereby all objects on display loaned by foreign institutions will not be subject to a claim for restitution by any aggrieved party. A perfect rendition of the absolutist idea that “Culture transcends History” as Dr. Mikhail Piotrovsky, head of the Hermitage Museum, would have you note, an idea in line with the philosophy of “globalism” touted by the world’s leading museum directors and their governments according to which the museums they lead are the sepulchers of culture and art. We should worship them and thank them for “safeguarding” samples of the world’s best art and most significant cultural artifacts. The globalist museum world believes in the free exchange of artistic and cultural objects without any impediments or restrictions placed by governments and their institutions. Globalists refuse to allow history and all of its abject manifestations--civil wars, military and political upheavals, economic dislocation, ethnocide, genocide, and other mass expressions of human cruelty—to interfere with their ability to acquire and display objects, irrespective of their origin, which means, irrespective of their provenance, of their history. Provenance research, for these institutions, is an option to be exercised when needed.

Governments, including the American government, have been complicit in allowing their museums to acquire and exhibit willy-nilly. Their ethically lax behavior emboldens theft and plunder. Once illicitly-obtained objects enter a museum’s collection, they are only rarely removed as restitutable items to their rightful owners. The United States government, by its very inactions, refuses to compel American cultural institutions which harbor looted cultural objects to restitute them to their rightful owners. Although looting is publicly condemned as a reprehensible criminal activity, its fruits are protected once they enter cultural institutions. This paradox is alive and well and has been so for decades. S. 3155 is but a mere expression thereof.

Public outrage against looting may be universal but when a museum accepts the fruits of such criminal acts, there is generally no effort to force it to disgorge those looted objects and return them to their rightful owners. S. 3155 confirms that absolutist, Statist approach to culture.

Now that the US Senate has passed S. 3155 and President Barack Obama has signed it into law, the American museum community has proven that the US does not really need a ministry of culture, because the AAMD, with the blessings of the US Congress, acts as the de jure cultural arbiter of the nation’s cultural institutions in line with the Federally-controlled Smithsonian Institutions; the US Senate and the US government are there to do its bidding. Put another way, the museum directors’ lobby usually gets what it wants, much like the National Rifle Association.

The U.S. Department of State Is Structurally Unable To Perform Appropriate Provenance Research On Immunity From Seizure Applications Submitted By Foreign Museums

by Marc Masurovsky and Pierre Ciric[1]

The Holocaust Art Restitution project (“HARP”) initiated research into the State Department’s ability to perform appropriate provenance research on immunity from judicial seizure requests submitted by foreign institutions. From the documents provided by the State Department through a Freedom of Information Act request, HARP analyzed: how the State Department verifies provenance research conducted by the borrowers and lenders for the object(s) under consideration; how the State Department verifies claims of due diligence made by both lenders and borrowers for objects under consideration for immunity from judicial seizure; and how the State Department awards determinations of “cultural significance” and “national interest”. HARP concludes that the immunization from judicial seizure application process relies almost exclusively on attestations made by the lenders, the borrowers, the country desk officers, and the unit of the State Department which certifies cultural significance. There is no empirical process the State Department follows to verify provenance research conducted by the borrowers and lenders. The State Department essentially relies on the good faith of both the borrowers and the lenders to attest to their holding good title to the cultural objects under consideration and that there is no basis for a third-party challenge on the grounds that the objects being offered for display were looted or misappropriated. 

[The material contained herein is subject to the copyright laws of the United States and cannot be reproduced without the prior written permission of the Ciric Law Firm, PLLC and of the Holocaust Art Restitution Project. Copyright © 2016]

INTRODUCTION

In 2014, the Holocaust Art Restitution Project (“HARP”) initiated research on the U.S. Department of State’s (“State Department”) ability to perform appropriate provenance research on immunity from seizure requests submitted by foreign museums the Immunity from Judicial Seizure statute, 22 U.S. § 2459 (IFSA). To accomplish this research, HARP submitted a Freedom of Information Act (FOIA) request to the State Department. Following the State Department’s response, HARP analyzed the State Department’s provenance research process and its procedures for determining the soundness of the borrowing institutions’ applications to immunize objects coming from foreign lenders’ collections.

STATUTORY AND ADMINISTRATIVE FRAMEWORK

The IFSA protects from seizure or other judicial process certain objects of cultural significance imported into the U.S. for temporary display or exhibition. The State Department is designated to administer the statute.

Under the statute, (1) the object must be a of cultural significance, (2) there must be an agreement between the lender and “one or more cultural or education institutions within the United States”, and (3) the loan must be for temporary exhibition in the U.S. at a cultural exhibition “administered, operated, or sponsored, without profit, by any such cultural or educational institution.”

The State Department provides an application procedure and checklist.  Based on this checklist, the following items are to be included with an application:

1. A list of expected places and dates of exhibition;

2. A specific statement of whether or not “the exhibition is to be administered, operated or sponsored without profit to the borrowing or participating institutions”;

3. A schedule of the objects to be imported for which the applicant is requesting determinations under § 2459;

4. A scholarly statement establishing the cultural significance of the imported objects;

5. A statement concerning the provenance of works to be borrowed, as follows: “The applicant certifies that it has undertaken professional inquiry—including independent, multi-source research—into the provenance of the objects proposed for determination of cultural significance and national interest. The applicant certifies further that it does not know or have reason to know of any circumstances with respect to any of the objects that would indicate the potential for competing claims of ownership [except as described below. For the objects for which circumstances exist that would indicate the potential for competing claims of ownership, the following is a description of such circumstances and the likelihood any such claim would succeed].”

6. Facts supporting an assertion that all U.S. participants are cultural or educational institutions, such as an organization’s current IRC § 501(c)(3) determination letter;

7. A copy of each “agreement entered into between the foreign owner or custodian thereof and the United States or one or more cultural or educational institutions within the United States providing for the temporary exhibition…” of the object(s), a copy of any agreements with participating museums or other U.S. cultural or educational institutions, and a copy of any agreements between a foreign owner and a foreign custodian;

8. Copies of all related commercial agreements between any or all of the U.S. institutions and the foreign owner/custodian or other parties; and

9. The contact person for the application, and his or her telephone number and e-mail address.

FOIA REQUEST

On March 5, 2013, HARP submitted a FOIA request to the State Department, seeking information on the provenance research process associated with documents “regarding any grants of Immunity from Seizure Under the Judicial Process of Cultural Objects Imported for Temporary Exhibition of Display under 22 USC § 2459.” The FOIA request further sought “records of the Bureau of Educational and Cultural affairs for any documentation, policy memoranda, and fact finding determinations for any final determinations by J. Adam Ereli, Principal Deputy Assistant Secretary, Bureau of Educational and Cultural Affairs, Department of State under the following authority by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. § 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681, et seq.; 22 U.S.C. § 6501 note, et seq.), Delegation of Authority No. 234 of October 1, 1999, and Delegation of Authority No. 236-3 of August 28, 2000 (and, as appropriate, Delegation of Authority No. 257 of April 15, 2003).”

The purpose of the FOIA request was to elucidate and clarify to what extent the State Department resorted to due diligence “best practices” in determining whether cultural objects about to be displayed in U.S. museums and libraries earned the “culturally significant” label in “the national interest.”

Key to this process is the State Department’s ability to conduct independent provenance research on objects being considered for immunity from judicial seizure, should a third-party claim arise demanding the restitution and/or repatriation of a presumed looted cultural object included in the submission for immunity from judicial seizure.

At the heart of the FOIA request lies HARP’s concern that the State Department is structurally ill-equipped to make such determinations and essentially relies on the word of both the borrower and the lender to attest to their holding good title to the cultural objects under consideration and that there is no basis for a third-party challenge on the grounds that the objects being offered for display were looted or misappropriated without the consent of the rightful owners and without any subsequent restitution of the looted or misappropriated objects.

After negotiations, which lasted almost a year, HARP obtained a schedule of immunity from seizure grants from the State Department, for a three-year period. As a result of the huge cost and time associated with producing documentation for each grant of immunity from seizure over a three-year period, the State Department and HARP reached an agreement in 2014 to obtain the submission of 12 immunity from seizure applications. On June 11, 2014, the State Department produced several hundred pages of documentation regarding the 12 immunity from judicial seizure procedures for cultural objects on loan to U.S. institutions from abroad. A list of the document received as part of the FOIA request is contained in Exhibit A.

DATA AND METHODOLOGY
HARP’s concern with the grants of immunity from seizure rests on the State Department’s ability to determine if, in fact, the art objects proposed for immunity from judicial seizure have ownership histories which do not suggest that the objects’ title might be challenged by an aggrieved party because the object had not been properly restituted to its rightful owner.

The State Department supplied to HARP documents for art objects loaned by foreign institutions to be displayed in various museums and other institutions in the U.S. Each grant of immunity from judicial seizure is provided to a borrowing institution requesting that the objects be immunized so as to enable their display in the U.S. without fear of seizure resulting from a third-party claim.

HARP wished to ascertain if the State Department had a procedure in place to verify independently from both the borrower and the lender the ownership history of each object being proposed for immunization. The lender provides information on the object to the borrowing institution. That information, in turn, is incorporated into the application for immunity from judicial seizure submitted by the borrowing institution. The latter certifies that it has conducted professional inquiry—independent, multi-source searches—into the ownership history of the objects under consideration for immunization.

FINDINGS

1. Volume of Applications

Initially, HARP obtained a schedule of immunity from seizure grants from the State Department, for a three-year period. We counted almost 280 grants over the three-year period, so on average, the State Department had issued two such grants or certificates per week. First, it is astounding to observe that the State Department had issued this many grants of immunity or certificates per week. Each certificate covers anywhere from one object to hundreds of objects, depending on the complexity of the loan serving an exhibition on U.S. territory.

Provenance research is a complex procedure, as attested to by museum professionals, and takes significant time. In such a short period of time, it is virtually impossible to perform an independent assessment of whether the history of ownership of the objects being considered for immunity from judicial seizure is free from any disruption of title that might have been produced by an act of looting or misappropriation in the 19th and 20th centuries. More importantly, it would be next to impossible to assess, in that time period, whether these objects had been properly returned to their rightful owners before entering the lenders’ collections.

2. Documentation

Throughout the State Department’s response, each application for immunity from judicial seizure included at least the following types of documents:

1/ a copy of the notice of application in the Federal Register;

2/ a text of the public notice of application;

3/ a request from the borrower to the State Department to make a determination of “cultural significance” and that the exhibit is in the “national interest”. The request is in the form of a letter to the Assistant Legal Adviser for Public Diplomacy and Public Affairs. Each applicant has provided the same letter with some notable exceptions. It suggests that the “timely publication of these determinations [cultural significance and national interest] will facilitate the immunization of the objects under consideration from judicial seizure. The terms spelled out in 22 USC § 2459 must be fully satisfied in order to obtain the immunity from judicial seizure. In the case of Princeton University Art Museum, the application was submitted as “a courtesy” to the lender.

The application for immunity from judicial seizure is sent to ECA/PE/C/CU, which provides its clearance for “cultural significance.”

The national interest determination appears to be made at the Country Desk for the lending nation. In the University of Chicago Library application the Country Desk for Switzerland “offered its national interest clearance.” In the case involving the Maya object exhibit at Princeton University Art Museum, the Desk Officer for Australia was asked to make the national interest determination.

4/ a list of objects to be exhibited by the borrower. In some instances, both the borrower and the lender submitted a list of objects covered by the application for immunity from judicial seizure.

5/ correspondence by mail and/or email between the borrower and the State Department regarding the application for immunity from judicial seizure

6/ additional background about the proposed exhibit submitted by the borrower.

Following HARP’s FOIA request, it is impossible to assert whether or not the State Department submitted every document to HARP regarding each application for immunity from judicial seizure. The following are additional documents not present in every application which were submitted by the borrower to the State Department in support of the application for immunity from judicial seizure.

In two instances, the borrowers, the Frick Collection and the Museum Of Fine Arts, St. Petersburg, FL, submitted a “scholarly statement in support of the application for determination of cultural significance of the objects covered by the application for immunity from judicial seizure.

In one instance, the borrower, Metropolitan Museum of Art, submitted an “immunity file checklist” as part of the borrower’s application for immunity from judicial seizure. The checklist included eight different types of documents that constituted a complete application for immunity from judicial seizure:

1/ list of imported objects

2/ copies of agreements (borrowers/owners or custodians)

3/ copies of related commercial agreements

4/ places and dates of exhibition

5/ “without profit” statement

6/ statement as to provenance

7/ scholarly statement as to cultural significance

8/ U.S. participants are cultural/educational institutions (i.e., IRC 501(c)(3) letter)

In one instance, the borrower, the Milwaukee Art Museum, submitted a table of contents/checklist as part of the borrower’s application for immunity from judicial seizure.

In one instance, the borrower, Princeton University Art Museum, submitted a one-page statement attesting to the “cultural significance” for a single object covered by the application for immunity from seizure. The statement was signed by Dr. Bryan Just, curator and lecturer in the Art of Ancient America at the Princeton University Art Museum.

In one instance, the borrower, the University of Chicago Library, submitted a one-page “provenance statement” in support of its application for immunity from judicial seizure.

In reviewing this documentation, HARP assumed that there was a standard process for foreign lenders to apply for immunity from judicial seizure. We noted deviations from that standard which U.S. institutions supplied when we obtained the application check list of documents. We observed that, even in the application process, applicants used different strategies and the quality of the documents varied regarding the provenance information about the objects under consideration.

We also observed how the State Department handled the cultural significance and national interest determinations, even when the arguments proffered by some of the borrowers were specious regarding cultural significance and national interest.

Since the objects come from foreign lenders, one should presume that the borrower has requested from the lender documentation detailing the ownership history of the objects being proposed for immunization. There is no indication that such requests were made in the application we looked at. The provenance information provided by the lenders ranges from minimal to detailed. There is no possible way for the State Department to accept the borrower’s warranty of provenance without doing so on blind faith.

Missing documents are hinted at in correspondence between the borrower and the State Department. For instance, with respect to the application submitted by the Fine Arts Museum of San Francisco for an exhibition entitled “Impressionism on the water”, the Museum’s exhibition coordinator, Hilary Magowan, notified the State Department on April 26, 2013, that she was attaching to her email the loan agreements from nine foreign lenders to the exhibition. HARP received only the correspondence but not the loan agreements.

3. Provenance determination

As to provenance statements, the borrowers all provided boiler plate language attesting that they had conducted “professional inquiry—including independent, multi-source research—into the provenance of the objects,” certifying that “we do not know or have reason to know of any circumstances with respect to the objects that would include the potential for competing claims of ownership.” In all cases, no descriptive statement of how provenance research was conducted or how many independent sources were consulted to support their assertion.

The University of Chicago Library made no reference to having undertaken professional inquiry into the provenance of the objects, but emphasized that there was no evidence of any competing claim or past litigation that would challenge ownership to these objects being considered for immunity from judicial seizure.

The Museum of Fine Arts in Saint Petersburg, Florida, applied for immunity from judicial seizure for an exhibition of ancient Egyptian artifacts coming from the Fondation Gandur in Geneva, Switzerland. In submitting its application, it attested that it had undertaken professional inquiry “into the provenance of the objects.” The borrower provided only a descriptive list of the objects—101 in all—without indicating how, where, when and from whom Mr. Gandur had acquired these objects. It is difficult to imagine the Museum of Fine Arts conducting such intricate research on 101 objects in less than a year’s time.

The Frick Collection submitted a list of 58 objects from the Courtauld Gallery in London, England for its exhibit “Mantegna to Matisse: Master Drawings from the Courtauld Gallery. Each object contained a detailed provenance with an occasional reference to a certificate from the Art Loss Register for items that might have proven to be problematic.

The Fine Arts Museum of San Francisco submitted a list of over 100 objects that it planned to exhibit under the title “Royal Treasures from the Louvre: Louis XIV to Marie-Antoinette”. It asserted that it had conducted professional inquiry into the provenance of the objects under consideration for immunity from judicial seizure. There again, it is impossible to ascertain how the research could have been conducted without requesting from the Louvre the curatorial files for each of the objects. No mention was made on how the independent, multi-source research was undertaken. Neither does the State Department ask for justification of this assertion. The Louvre inventory only provided the name and date of the donation or sale to the Louvre for the objects concerned, point of departure for any provenance research effort.

In fact, the Fine Arts Museum of San Francisco received a letter from a claimant seeking provenance information on artworks which may match artworks subject to a claim before the CIVS in France, after the immunity from seizure grant was issued and the exhibit started. The claimant provided a copy of the letter to HARP. In its response, the Fines Arts Museum of San Francisco was unable to provide any provenance information to the claimant beyond the inventory information provided by the Louvre, which included no actionable information susceptible to confirm or dismiss a potential claim.

4. Research standards

Provenance research is an inter-disciplinary process that extends far beyond the reaches of conventional art history. At the very minimum, its purpose is to determine the history of an art object from the time of its creation to the present holder, be it a person, organization, corporation, museum, or government entity.

In the past twenty years, this type of research has become synonymous with ferreting out evidence of theft and other criminal acts which separated the rightful owner from the object’s possession without his/her consent. The responsibility of cultural institutions and art market players is to ensure that they do not engage in activities which enables the trade, accessioning, or display of stolen cultural assets.

When the State Department envisions the grant of immunity from judicial seizure, it warrants that provenance research did not indicate that the objects under consideration showed any sign of contested title due to theft or other forms of misappropriation.

To do so, an institution must check all available public and proprietary sources of information which might contain information that would shed light on past ownership of the concerned objects. Art historical sources need to be consulted to verify or corroborate the information provided by the lenders as to the ownership history of the objects. Sometimes, one would have to consult specialized monographs about the creators of the objects if the catalogues of the artist’s works do not include any or little information about the objects. Part of the provenance research effort requires one to understand the circumstances under which the object changed hands during turbulent historical moments that might have led to a forced displacement of the objects from a rightful owner to an illicit owner, due to an absence of consent for the transaction to take place. This can only be accomplished by checking historical sources of the period during which the objects changed hands.

If the objects are ancient artifacts, extracted during excavations in “source nations,” it is critical to verify that the excavations were authorized and the objects were exported legally to their new owners. Various documents can be used to confirm the extraction and the exportation of the objects. Customs documents, archaeological notes and dig registries, are some of the documents that might be available to do so.

The lenders’ documents on the objects need to be verified as well since they might contain crucial information about the ownership histories which are not published in the official literature surrounding these objects. This is fairly common in the museum world.

There is no evidence to show that neither the lenders nor the borrowers, in most instances, engaged in provenance research as outlined above. There is also no evidence that the State Department made any effort to verify independently that the information attested to by lenders and borrowers was true and accurate.

The borrower never explains how their research is conducted, which sources are consulted, and how it reaches the determination that all objects under consideration are clear of competing claims. The State Department seemingly relies on the certification provided by the borrowing institution without seeking some form of document explaining how those determinations were made.

5. The State Department has granted immunity in the face of existing claims

In 2003, 14 works of art by Kazimir Malewicz were exported to the United States by the Stedelijk Museum of Amsterdam to be party of a temporary exhibition at the Solomon R. Guggenheim Museum in New York and the Menil Collection in Houston. Malewicz v. City of Amsterdam, 362 F. Supp.2d 298, 303 (D.D.C. 2005). Following a request by Amsterdam that the works of art be granted immunity from legal process with in the United, the Malewicz heirs filed an objection. Id. However, the State Department “determined that the objects were of cultural significance that that their temporary exhibition was in the national interest.” Id. (citing 68 Fed. Reg. 17852-01, April 11, 2003.). The State Department granted immunity from seizure to the 14 works of art by Malewicz and therefore “immune from seizure and other forms of judicial process that might have had the purpose or effect of depriving the Guggenheim or the Menial Collection (or any carrier) of custody or control of the artworks while in the country.” Id. Before the end of the loan in Houston, the heirs of Malewicz filed suit against the City of Amsterdam to recover the value of the works of art or, in the alternative, the return of the works of art. Id. Clearly, the State Department knew of the claims by the Malewicz heirs and did nothing to assist them. Instead, the State Department granted immunity from seizure under the IFSA with full knowledge of a pending claim against some of the artworks.

CONCLUSION

HARP’s FOIA request demonstrates that the State Department has no in-house procedure by which to corroborate the borrower’s claims of provenance research. Neither does it have the possibility of verifying the provenance information supplied by the lenders. By inference, HARP subsumes that State Department accepts the borrower’s certifications that the lender’s ownership of the objects being proposed for immunization is verified and there will be no competing claims filed by third parties to challenge the lender’s title to the immunized objects.

The due diligence checks on art objects borrowed from foreign lenders to be exhibited in U.S. institutions are left to the borrowers to conduct. Based on the documentation supplied to HARP by the State Department through the FOIA disclosure, each borrower used boiler-plate language—which is customary—to attest to independent, multi-source inquiries in conducting provenance research on objects to be covered by a grant of immunity from judicial seizure.

In most instances, some detailed provenance information was supplied by lenders (not borrowers) as part of the application for immunity from judicial seizure. However, in most instances, the borrowers relied on the certifications of good title from the lenders to certify that there was no information that it knew of that would raise doubts on the ownership of the objects being covered by the immunization from judicial seizure. HARP is highly skeptical of the claim by the borrowing institutions that they conducted professional inquiries, including independent, multi-source research to ascertain the provenance of the objects offered for exhibit by the foreign lending institutions.

Moreover, the determinations of cultural significance and national interest appear to be pro forma, and are not based on any empirical evidence. It is unclear how country desk officers at the State Department are qualified to determine whether art objects being loaned to U.S. institutions represent a “national interest.” HARP is unaware of the criteria used by country desk officers to make such determinations. In several instances, these determinations of cultural significance and national interest appeared to be connected to the uniqueness of the exhibits. First-time loans from foreign lenders to U.S. institutions was the most compelling argument. Therefore, the State Department accommodates borrowers and lenders and has no procedure in place to assess independently the quality of the applications and the veracity of the borrowers' statements. It is unable to challenge the provenance information supplied by either or both parties.

Based on the information provided by the State Department through the FOIA disclosure, HARP concludes that the immunization from judicial seizure process relies almost exclusively on attestations made by the lenders, the borrowers, the country desk officers, and the unit of the State Department which certifies cultural significance. There is no empirical process in the granting of immunity from judicial seizure for art objects that allows HARP to conclude that the State Department is in a position to challenge the certifications made by the borrowers.

If the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (S. 3155) becomes law, the systemic inability of the State Department to ensure that the applicant certification is properly supported or documented would create a significant risk for stolen artworks to come into the country through temporary exhibits.

EXHIBIT A

Documents Obtained through the FOIA Request from the State Department
Exhibit: Fine Arts Museum of San Francisco [Royal Treasures from the Louvre: Louis XIV to Marie-Antoinette]

1/ federal register
2/ public notice
3/ additional background

4/ immunity from judicial seizure application
5/ inventory supplied by the lender-Louvre Museum
6/ request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
7/ correspondence between borrower and State

Exhibit: Frick Collection [Mantegna to Matisse: Drawings from the Courtauld Gallery]

1/ Federal register
2/ public notice
3/ additional background
4/ request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
4a/ scholarly statement in support of application for a determination of cultural significance
5/ list of foreign loans and provenance

Exhibit: Museum of Fine Arts, St. Petersburg, FL [Ancient Egypt: Art and Magic: Treasures from the Foundation Gandur pour l’Art, Geneva, Switzerland]
1/ Federal register
2/ public notice
3/ revised request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
4/ borrower press release
5/ checklist of objects
6/ initial request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
7/ appendix checklist possibly supplied by borrower in spreadsheet fashion with photographs
8/ scholarly statement supplied by borrower in support of application for a determination of cultural significance
9/ correspondence between borrower and State

Exhibit: Metropolitan Museum of Art [Matisse: In search of true painting]
1/ correspondence between borrower and State
2 /press release by borrower
3/ federal register
4/ request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
5/ checklist of items with provenance supplied by borrower
6/ public notice
7/ additional background
8/ list of domestic-owned objects in the exhibit—no provenance given except the name of lending institutions

Exhibit: Metropolitan Museum of Art [Woman in Blue, Against blue water, by Edvard Munch]
1/ federal register
2/ public notice
3/ additional background
4/ immunity file checklist
5/application by borrower for immunity from judicial seizure with full provenance

Exhibit: University of Chicago Library [Swiss treasures: from biblical papyrus and parchment to Erasmus, Zwingli, Calvin and Barth]

1/ additional background
2/ provenance statement—more like a certification—submitted by the borrower
3/ request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
4/ public notice
5/ checklist from multiple lenders containing statements of curatorial significance and history of ownership for each object
6/ federal register

Exhibit: Princeton University Art Museum [Dancing into Dreams: Maya Vases from the Ik’Kingdom]

1/ federal register
2/ public notice
3/ additional background
4/ cultural significance certification statement
5/correspondence between borrower and State
6/ exhibition checklist submitted by borrower
7/ request for immunity from seizure as “a courtesy” to the lender.

Exhibit: Fine Arts Museum of San Francisco/Peabody Essex Museum [Impressionists on the water]

1/ federal register
2/ public notice
3/ additional background
4/ checklist/schedule of exhibit items submitted by the borrower
5/ request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
6/ correspondence between borrower and State
7/ inventory/checklist contains deleted names of private collectors who loaned their works to the exhibit.

Exhibit: Milwaukee Art Museum [Impressionism: Masterworks on paper]
1/ federal register correspondence
2/ public notice
3/ request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
4/ table of contents/checklist for applicant
5/ additional background
6/ schedule of works and their source/not provenance

Exhibit: Fine arts Museum of San Francisco [Girl with pearl earring: Dutch paintings from the Mauritshuis]

1/ correspondence
2/ request for cultural significance and national interest determinations
3/ certification of provenance included in its application for immunity
4/ federal register
5/ public notice
6/ additional background













[1] Marc Masurovsky is a historian, researcher, and advocate, specializing in the financial and economic underpinnings of the Holocaust and World War II. Marc holds a B.A. in Communications and Critical Cultural Studies from Antioch College and an M.A. in Modern European History from American University in Washington, DC. He worked at the Office of Special Investigations of the US Department of Justice researching Byelorussian war criminals. Marc advised the Senate Banking Committee in the mid-1990s on the involvement of Swiss banks in the Holocaust, and then lent his expertise to plaintiffs’ counsels suing Swiss banks on behalf of Holocaust survivors. Since 1997, Marc has focused his attention on the fate of objects of art looted by the Nazis and their Fascist allies, and was a founder of the Holocaust Art Restitution Project. He played a major role in the January 1998 seizure of Egon Schiele’s “Portrait of Wally” and “Night City III” at the Museum of Modern Art of New York and was a director of research for the Clinton-era Presidential Advisory Commission on Holocaust Assets in the United States (PCHA). Since 2004, Marc has overseen the creation, development and expansion of a public online database of art objects looted in German-occupied France that transited through the Jeu de Paume in Paris from 1940 to 1944.

Pierre Ciric is a founding partner of the Ciric Law Firm, PLLC, a boutique law firm specialized in commercial litigation services for businesses, nonprofit organizations and individuals, and in cultural heritage law. Pierre received his J.D. from New York Law School. Pierre represents French, American and European business and individual clients in the United States. Most notably, Pierre recently successfully settled a Nazi-looted art case representing the heirs of a French Jewish family seeking to obtain restitution of a Camille Pissarro painting from an American university. He also obtained restitution of an important “Judaica” religious object on behalf of an Eastern European Jewish community from an American collector. Pierre is a lawyer admitted to the New York Bar. He is the Vice President of the French American Bar Association, a member of the Professional Ethics Committee of the New York County Lawyers Association, and a Vice President of the New York Law School Alumni Association.

"Mann mit blauer Mütze," by Eugeniusz Zak—Part Two

by Agnieszka Yass-Alsston

[Editor’s note: This is an article released in two parts on the work of Eugeniusz Zak. The author, Agnieszka Yass-Alston, is an art historian and provenance researcher who specializes in the fate of artistic assets of Jewish art collectors in Krakow and the fate of the "oeuvre" of Jewish artists of  the "École de Paris."]

During the Annual Salon in Warsaw (1919 – 1920), together with Young Acrobat Zak showed one more picture titled Przy kieliszku (By a glass) (Fig. 6), which became a prototype for richer executions of paintings like In der Weinsture (Fig. 7) also known as Dans le cabaret (W winiarni, Pijak, Buevur) (Fig. 8 and 10). Figure 11 [see list of works below] is the first execution of the representation after the picture Przy kieliszku, when Zak paints with a darker palette of hues of lower value, mostly subdued, and heavy. In these first versions there is a noticeable lack of light’s vibrancy, as shown in the later versions like Figure 9, Dans le cabaret, where there is more contrast brought by light that illuminates the higher value of hues. It is perfectly seen in the foreground: the brightened fragment of the table and in the dress, face, and hat of the sitting male figure. The radiance of the light on the man is juxtaposed against the purple background of the wall creating a defined contrast if compared with the earlier version, where the red wall is smeared with grimy gray smudges.

Fig. 6

Fig. 7

The other example of the same approach to the execution of colors and light is Le Danseur (Tancerz, Pajac). In the earlier version of The Dancer, currently in the Warsaw National Museum (Fig. 14), purer colors are used, but they do not create the dramatic light vibration as in the later version formerly in Robert de Rothschild’s collection plundered by agents of the Einsatzstab Reichsleiter Rosenberg (ERR) in German-occupied France. There is also present this very characteristic shift from fragmentary smudging in the background to the use of lower value hues that Zak continued within this later singular figurative compositions throughout 1923 and later on, which he developed further into richer paint texture.

Fig. 8

Fig. 9

Fig. 10

Fig. 11

With respect to the provenance issue within Zak’s artistic development, but also wrongly reading historical sources and references, Barbara Brus-Malinowska made a crucial mistake regarding the provenance of Tancerz. In her catalogue Eugeniusz Zak (1884-1926) (Warsaw 2004), she wrote that Tancerz (Pajac, Pierrot), 1921 (p. 126, cat nr 136), presently in NMW inv. No. MPW 820 (Fig. 14), was exhibited in Galerie Bing, Paris 1926 kat poz. 30 and in Garliński’s Salon, Warsaw1926, kat poz 20. Additionally, she mentioned in the picture’s bibliography the book by Maximilien Gauthier Les artistes juifs Eugѐne Zak (1884 – 1926), Paris [193-], illustration 5 (page not numbered), where Baron Robert de Rothschild is mentioned as the owner of the painting (according to Gauthier’s book he owned Dans le Cabaret too).

Fig. 12

The exhibition of Zak’s artworks in Garliński’s Salon opened on March 10th, 1926 and was organized by the Rytm artists whom independently formed the exhibition in the Galerie Bing, Paris (March 20 – April 10, 1926). This fact excludes Tancerz from participation in the French exhibit. Garliński’s catalogue indicates that at that time Tancerz belonged to Marian Szpilfogel, who was killed during the Holocaust and his survivor daughter offered the painting to the National Museum in Warsaw. The exhibition of Zak’s artworks at Galerie Bing included paintings owned by Jadwiga Zak, the artist’s widow, where Le Danseur was presented. Before May 1931, Le Danseur was sold to Robert de Rothschild and was plundered by the infamous Einsatzstab Reichsleiter Rosenberg. (Figs. 15 and 16).

In conclusion, with respect to the sensational appearance on the market of Mann mit blauer Mütze, the provenance of the painting provided by Ketterer Kunst notes that the artwork comes from a private collection located in southern Germany. Unfortunately, there are no further details. It is regrettable that within two generations the history of this painting has been lost. The picture has not been linked so far to any pre-war collection, and has not been registered as stolen property during WWII. It could have been exhibited in Köln, Germany in 1925 at the S. Salz Kunsthandlung, where on October 25, 1925, Zak’s solo exhibit was held there. S. Salz was also an owner of a few Zak’s paintings including Le Buveur and Kobieta z kwiatem (present whereabouts unknown). Based upon a stylistic analysis, the picture was painted before 1923, most likely in 1922. Hopefully, a new owner will take on the moral responsibility and through inquisitive research figure out the detailed provenance of Mann mit blauer Mütze. Optimistically, the other paintings Jeune homme au bonnet blanc and Jeune homme au bonnet brun will resurface one day.

Fig. 13

Fig. 14

Fig. 15

Fig. 16

List of illustrations:

Figure 6 : Eugeniusz Zak, Przy Kieliszku (oil on canvas 1918/1919), illustration from La Renaissance, nr 11, 1926;

Figure 7 : Eugeniusz Zak, In der Weinsture (oil on canvas, 1922), illustration from Deutsche Kunst und Dekoration, vol. 53, 1923/1924;

Figure 8: Eugeniusz Zak, Dans le cabaret, (oil on canvas, 1922), illustration from Maximilien Gauthier, Les artistes juifs  Eugѐn Zak (1884 – 1926), Paris [193-];

Figure 9 : Eugeniusz Zak, Dans le cabaret, (oil on canvas 99 x 78.5 cm., 1922), former collection of Robert de Rothschild, plundered by the ERR in Paris; 1994 Christie’s NY, 1996 Marek Mielniczuk) lastly in the collection of the late Tom Podl, Seattle, USA;

Figure 10: Eugeniusz Zak, Pijak (Buveur), illustration from Stefania Zachorska, Eugeniusz Zak (1884 – 1926), Warszawa, 1927;

Figure 11 : Eugeniusz Zak, Dans la cabaret (oil on canvas 99.5 x 79 cm., 1920) presently private collection, before in Wojciech Fibak’s collection;

Figure 12: Eugeniusz Zak, Der Pfeifenraucher, (oil on canvas, 1922), illustration from Deutsche Kunst und Dekoration, vol. 53, 1923/24;

Figure 13: Eugeniusz Zak, Tancerz (Danseur), illustration from Stafania Zahorska, Eugeniusz Zak (1884 – 1926), Warszawa, 1927;

Figure 14: Eugeniusz Zak, Tancerz (Pajac), Pierrot, (oil on canvas 113 x 86 cm., 1921) inv. nr MPW 820 National Museum Warsaw, former collection of Marian and Julia Szpilfogel, the gift of Szpilfogel’s daughter, Halina Cetnarowicz after the WW2 to the Museum;

Figure 15: Eugeniusz Zak, Le Danseur, (oil on canvas, c. 1922), illustration from Maximilien Gauthier, Les artistes juifs  Eugѐn Zak (1884 – 1926), Paris [193-];

Figure 16: Eugeniusz Zak, Le Danseur (oil on canvas, 116 x 86 cm., c 1922), former collection of Robert de Rothschild, plundered by the ERR in Paris; lastly in a private collection, Switzerland.

Selective bibliography:

Barabara Brus-Malinowska, Eugeniusz Zak (1884 – 1926), Muzeum Narodowe Warszawa, 2004;

Eugeniusz Zak. Wystawa Pośmiertna, 1926; Salon Cz. Garlińskiego, Warszawa;

Exposition Rétrospective Eugѐne Zak (1884 – 1926), 1926; Galerie Marcel Bernheim, Paris;

Maximilien Gauthier, Les artistes juifs  Eugѐn Zak (1884 – 1926), Paris [193-];

Zygmunt St. Klingsland, W dziesiątą rocznicę śmierci Zaka, Wiadomości Literackie, nr 42, 1936, p. 8;

H. R., Zu den Arbeiten von Eugen Zak, Deutsche Kunst und Dekoration, vol 53, 1923/1924, pp.: 130 – 134;

H. R., Ewige Romantik, Deutsche Kunst und Dekoration, vol 56, 1925, pp.: 2 – 12;

Heinrich Ritter, Eugen Zak, Deutsche Kunst und Dekoration, vol 50, 1922, pp.: 226 – 228;

Mieczysław Sterling, Eugeniusz Zak (1884 – 1926), Sztuki Piękne, vol. 12, 1925/1926, pp.: 494 - 501;

Mieczysław Wallis, Eugenisz Zak, [in:] Sztuka Polska Dwudziestolecia. Wybór pism z lat 1921 – 1957, Warszawa 1959, pp.: 109 – 117;

Stefania Zahorska, Eugenisz Zak (1884 – 1926), Warszawa, 1927;

Stefania Zahorska, Ostatni Interwiew, Sztuki Piękne, vol. 12, 1925/1926, pp.: 502 – 504.