Twenty years of Washington Principles: yet another conference

by Marc Masurovsky

On November 26-28, 2018, almost exactly twenty years after the start of the Washington Conference on Holocaust-Era Assets, the German Lost Art Foundation will host an international “specialist” conference entitled: “20 Years of Wash­ing­ton Prin­ci­ples: Chal­lenges for the Fu­ture”. The aims of the conference are as follows:

“Be­gin­ning with a look back at the Wash­ing­ton Con­fer­ence of 1998, the con­fer­ence aims to dis­cuss the de­vel­op­ments that have tak­en place in the in­di­vid­u­al coun­tries since then, in or­der to ad­dress a num­ber of ques­tions for the fu­ture: What spec­trum is there for fair and just so­lu­tions? How can open gaps in prove­nance be dealt with? What does prove­nance re­search need in or­der to be able to work ef­fec­tive­ly? How can its meth­ods be used ad­e­quate­ly in ed­u­ca­tion and train­ing, in ex­hi­bi­tions and in mu­se­um com­mu­ni­ca­tion? And above all: What con­tri­bu­tion to a cul­ture of re­mem­brance can prove­nance re­search achieve?"

Twenty years ago, eleven Washington Principles were defined and issued as non-binding recommendations for national governments, cultural institutions and the proverbial art market to follow and abide by as a “soft” means of raising awareness about the racially- and politically-motivated displacements of Jewish-held property, cultural and other, between 1933 and 1945, which provoked illegal transfers of title and ownership from Jewish to non-Jewish possessors. Since then, there have been countless lawsuits and judicial proceedings filed by Holocaust claimants and their families in different legal settings on both sides of the Atlantic Ocean to try and recover what they argued was rightfully theirs. At the same time, museums and auction houses were placed under closer scrutiny, not by regulatory overseers, but by lawmakers, Jewish officials, lawyers, historians, researchers, journalists and NGO’s, in how they presented the contents of their collections, especially those items that were transacted between 1933 and 1945. In the case of the two largest auction houses, Christie’s and Sotheby’s, their sales and consignment practices fell under the magnifying glass to screen the provenance of items offered for sale and ensure that they did not indicate possible mishandling during the Nazi years, which could lead to a possible claim to block the sale of the item in order to facilitate a restitution to an aggrieved owner.

How can open gaps in prove­nance be dealt with?

Way too much ink has been spilled since the late 1990s on the subject of “provenance research.” Art historians and museum professionals had never encountered such pressure to explicitly describe and, many times, justify their recourse to “provenance research” in their daily practice as a means by which to ensure that the institution which they served was freed of any possible accusation of holding items which had been illegally displaced during the Nazi years and never returned to their rightful owners. One of the key issues motivating such research was “how to fill gaps” in the known ownership history of objects under their care or being offered for sale through auction houses or in other market venues. Filling a provenance gap has become a regular feature of provenance research, discussed at a plethora of conferences, symposia, and colloquia, organized both inside and outside academic circles in North America, Europe and even Asia. Researchers of all stripes and convictions have built part time or full time careers (as long as they work for defense lawyers and governments!) delving into the sinews of ownership trails to try and find crucial details that might fill up the spatio-temporal abyss known as “the gap.”

Here we are, in 2018, contemplating yet another international conference to reminisce over the Washington Principles. At that conclave, participants will be asked to contemplate “how to deal with open gaps in provenances.” What exactly has happened since 1998, if it is not putting into place complex strategies on how to address those “gaps.” It is hard to imagine how this question is pertinent unless the organizers of the conference have not been keeping tabs with the evolution of the provenance research field, however quixotic it has been.

What spec­trum is there for fair and just so­lu­tions?

Washington Principle #8 states: 

“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.” As stated in previous articles published on the plundered-art blog, the idea of “a just and fair solution” was not the brainchild of a Holocaust claimant seeking the physical return—restitution—of his/her lost property from the possessing institution, be it public or private.

The real question should be: have current possessors been fair and just to Holocaust claimants? Please explain your response, whether positive or negative.

What does prove­nance re­search need in or­der to be able to work ef­fec­tive­ly?

The framers of the November Berlin conference on Washington Principles should make up their minds about the focus of their gathering. Is it about the future of the Washington Principles or is it about provenance research? Is it about assessing the merits and limitations of the Principles or is it about provenance research? Are they suggesting that provenance research lies at the root of restitution proceedings and “fair and just solutions”? If so, they should state this idea openly. In other words, they seem mighty confused about what they are trying to achieve in November 2018, as if twenty years have come and gone without them witnessing too much. One can grow impatient with such “innocent” questions raised almost in rhetorical fashion to stimulate a discussion which might not actually happen. If one wishes to delve deep into the vagaries and limitations imposed on provenance research by institutions subsidizing and acquiring such research, the discussion might soon become contentious. But contention is not a desired outcome, much as it unfolded at the Franco-German Bonn Conference of November 2017 on the wartime art market in France, where the fault lines on the financing of research in Germany by the Lost Art Foundation were exposed in a rather blunt manner. Do we want such a recurrence to take place in Berlin? I doubt it. If that is the case, the line of questioning should be altered and focused on the crucial issues facing provenance research—lack of funding, lack of focus, too much political meddling in the direction of the research.

How can [the] meth­ods [of provenance research] be used ad­e­quate­ly in ed­u­ca­tion and train­ing, in ex­hi­bi­tions and in mu­se­um com­mu­ni­ca­tion?

That’s a rather funny question because most museums—public and private—in Europe and North America oppose almost religiously any discussion of National Socialism, the Holocaust, the Second World War, Nazi expansionism, collaboration with the Nazis, as integral parts of the narrative to explain how these movements, trends, and events would have shaped the fate of objects in their collections. So instead of asking “innocently” how these methods can be used “in ed­u­ca­tion and train­ing, in ex­hi­bi­tions and in mu­se­um com­mu­ni­ca­tion”, perhaps the framers of the Berlin conference should provide a sober assessment to the participants as a starting point:

There is no education, there is very little provenance training, if any, there is no talk of the larger historical context in the presentation of ownership histories in exhibitions and in “museum communication”. Ask why that is, instead of pretending that there is training and education.

What con­tri­bu­tion to a cul­ture of re­mem­brance can prove­nance re­search achieve?

This question is astounding in and of itself. It might subsume that restitutions and “fair and just solutions” combined will become obsolete and a thing of the past. Instead of focusing on justice, why not use the history of objects to engage in “remembrance” of lost lives, lost art, the Holocaust and all of its ugliness. Isn’t it better that way? Remembrance is the ticket out for many people to clear their conscience and feel that they are being morally and ethically correct in how they treat objects with dubious histories. Perhaps, we should just set aside the ugliness of the past and focus instead on the loss of human life, as perceived or hinted at through the history of objects with Holocaust-laden stories and interruptions.

It’s hard to fathom how, after twenty years, adult men and women who are supposed to be experts and who are respected for their wisdom and insights, who occupy positions of leadership in institutions that steer and foster research and education on the most complex, most heinous crime—genocide and its corollary, plunder—perpetrated by men and women against other men, women, and children, only because of what they were—Jews--, can propose a framework of discussion which suggests that not much has happened in the twenty years that elapsed since the Washington Conference on Holocaust Assets.

I am tongue-tied.

In the mean time, the best advice that I can give is to hold a parallel conference that discusses the following themes:

-Throw out the Washington Principles, rewrite them and adapt them to the realities of the 21st century;

-Forget about “fair and just solutions”: they constitute a corporate welfare program for claimants, or how to buy out the claim without losing title to looted works in one’s collection.

-Fund provenance research at much higher levels than they are currently,

-Establish provenance research training programs on both sides of the Atlantic in order to train new generations of researchers, art historians into the finer aspects of contextual research that actually weaves the larger history into the history of displaced objects and inculcates critical thinking into their methodologies.

-Learn how to tell stories that are meaningful and truthful, not spun and woven tales designed to make museums feel better about themselves.

Provenance research can be challenging

by Marc Masurovsky

In the two decades since the now-infamous Washington Conference on Holocaust-era Assets of December 1998 which produced the "Washington Principles." many American museums were placed quite naturally on the defensive since they became the focal point of attention of lawmakers, Jewish organizations, an emerging motley group of art restitution experts, including attorneys, researchers, claimants and assorted historians and NGOs.

In the years following the issuance of the above-mentioned Principles, declarations of faith made by American museum associations--the then-American Association of Museums (AAM) and the Association of Art Museum Directors (AAMD) to the effect that they had the "Nazi-era" provenance problem under control were rarely taken seriously, if at all. The specialized public associated either directly or indirectly with questions of art restitution and Holocaust-related thefts of Jewish-owned property, believed--rightly or wrongly--that a vast majority of museum professionals, including their curators, directors and trustees, held the view that whatever entered their collections was there to stay.  Moreover the threshold of evidence needed to consider returning an object was so high that no one on earth could rightfully claim to meet that standard. Hence, all was good in their minds; restitution would remain a dead letter. So they thought.

Since the late 1990s, Holocaust victims and their heirs have challenged American cultural institutions by asking their representatives for the restitution of their families'  objects which they believed had been spoliated, plundered, misappropriated during the commission of an act of genocide. In response to those claims, museum professionals and their legal representatives have tried to show publicly their "good faith" in meeting these historic claims on a solid footing of historical and forensic inquiry leading to some kind of reasonable outcome even if it meant, in the extreme cases, that they would have to part ways with the claimed objects in their collections.

In that spirit, a number of American museums have gone out of their way to convince the public that the research is challenging. The act of documenting the historical path of these claimed objects for the purpose of unearthing misdeeds which would call into question the museum's ownership of these objects poses challenges.  Here are three examples:

Art Institute of Chicago

Provenance research can prove challenging as records may have been lost or destroyed in the upheaval of war. In addition, the passage of time and world events often make important information difficult to locate. Gaps in the provenance of a particular work may be attributable to different causes, from an owner's desire for anonymity to the unavailability of records of purchase and sale. Thus, incomplete provenance information does not necessarily mean that a work has been tainted by the events of the Nazi era. In addition, in some cases, a work may have been seized by the Nazis but later restituted to its original owners and subsequently donated or sold by them.

Stanford University

This research can be very complex and challenging due to a number of factors, including changes in the attribution and title; physical alteration of a work; the absence, loss, or destruction of transfer documents and other records; ambiguities in family histories; an owner’s desire for anonymity; societal and political upheaval; natural disasters; and poor record-keeping over time. Consequently, gaps in provenance are common and do not necessarily mean the object has a problematic past.

Walters Art Museum, Baltimore, MD

Provenance research is conducted by museum staff, fellows, and interns, and information generated by this work is continually added to individual object records. Although the museum seeks to verify and expand the provenance information associated with individual works of art in its collection, establishing a complete history of ownership can often prove challenging. The museum therefore encourages the sharing of information that might help to clarify the provenance of objects in its collection.

Live and learn...

TD 51072

by Marc Masurovsky

Treasury Directive TD 51072 was passed on June 8, 1944, two days after D-Day, under sections 3(a) and 5(b) of the Trade with the Enemy Act. Its aim was to restrict the importation into the US of any art object with a value exceeding 5000 dollars or is of artistic, historic and scholarly interest irrespective of monetary value.” The method of restriction was sequestration of objects falling under the aegis of the Directive. The Roberts Commission was charged with reviewing the documentation accompanying these sequestered objects and either approving or refusing their release under a license issued by Treasury.

The directive applied to any art object that had changed hands since March 12, 1938, two days after the absorption of Austria into the German Reich, known as the Anschluss. In other words, any art object subjected to “internal plunder” from 1933 to 1938, was exempted de facto from the Directive.

Further exemptions to the TD weakened its impact upon enactment.  For instance, objects imported from the United Kingdom and its dominions were exempted from TD 51072. Also, objects coming in from so-called neutral or non-belligerent countries were exempted from inspection at the US Border. However, importers were still required to file two separate forms, a TFE-1 (license to import) and FFC-168 (questionnaire) [FFC-Foreign Funds Control was the main investigative arm of the Treasury and the predecessor to the Office of Foreign Assets Control at the US Department of Treasury]. These forms were designed to shed light on the origin of the objects and the circumstances of their acquisition prior to their entry into the US.

The loophole created by the “artistic, historic or scholarly” value of the object meant that cultural objects viewed as “ordinary” might be allowed in without further ado. What the US authorities together with the museum professionals of the Roberts Commission did not realize is that the vast majority of art objects looted by the Axis fell under that category of “ordinariness.”

The impact of TD 51072 on cultural imports into the US was limited owing to these many exemptions. Also, the Roberts Commission worked hard to dilute its impact and eventually lobbied the Treasury to have the directive revoked on grounds that there was no evidence of loot entering the US. A note here: the Roberts commission would not have known how to identify a looted cultural or artistic object if if it was staring at them, as there were no exhaustive listings of what had been looted by the Axis at the time the Directive was enacted. The Roberts Commission succeeded in getting the TD 51072 revoked and, feeling that its work was done, voted itself out of existence in July 1946, confident that business as usual should resume post haste.

Why all the fuss about provenance research?

by Marc Masurovsky

Up until the mid-to late 1990s, provenance research remained within the province of trained art historians working in cultural institutions where art objects are cared for and displayed for the benefit of the public. The research aims to enhance the understanding of the object—its author, its physical attributes, the period in which it was produced, the reasons for its existence, and how it evolved over time and space.

This kind of research is an academic/intellectual exercise that helps ascertain the authenticity of an object and its place in the history of art, writ large.

It is not a requirement incumbent upon its practitioner. Provenance research is one of many duties that “come with the job.” If it does not get done, no one gets fired. More often than not, the information that is collected about the object does not enter the “public record” insofar as it is communicated to the general public. If it is communicated, that is left up to the discretion of the institution where the research is conducted.

Then, the 1990s came and went, and, all of a sudden, “provenance research” became something else entirely.

If I had been working in a museum in the wake of the scandal surrounding the misuse of Swiss bank accounts owned by persons of Jewish descent who may or may not have perished during the Holocaust, I would have been rather oblivious to any debate about loot in general. Once the debate about the mishandling of “Jewish bank accounts” (I hate that expression!) transferred into the (mis)handling of art objects nestled in the permanent collections of countless museums both in North America and Europe, provenance research entered the spotlight front and center.

If I had been working in a museum at the time that the “Portrait of Wally” by Egon Schiele had been seized at the Museum of Modern Art of New York in early January 1998, I probably would have wondered: what is that all about? And I would have naturally sided with the then owners of the painting, the Leopold Foundation of Vienna, and the exhibitors, the Museum of Modern Art, wondering what Robert Morgenthau, then district attorney of Manhattan, had had for coffee on the day that he decided to order the New York Police Department to seize the painting.

I would have done so because my training would have precluded me from even wondering if I should even worry about whether or not the institution that I served had actual title to the objects under my care and examination. Why should I have worried about title since I simply assumed that my institution was the rightful owner?

The right thing to do is to acknowledge that the beast that has become “provenance research” has been transformed from an innocuous art-historical practice into a tendentious, litigation-laced, means to an end: does the research into the origins of an object lead to the maintenance of that object in the collection that I help steward or does it lead to the de-accessioning of the object because of some historical wrong that broke the chain of ownership of the object, thus changing its status to “restitutable”?

Since the seizure of “Portrait of Wally” in early January 1998, provenance research lost its innocence. Battle lines have been drawn between defendants upholding their rights to keep art objects under fire for being “looted”, on one side, and plaintiffs demanding the return of those art objects arguing that they were the rightful owners whose families had been despoiled for racial, ethnic, religious and other reasons at some point between 1933 and 1945 during the twelve year reign of the Nazi Party and as a result of the expansionist war decreed by Adolf Hitler and his minions against Europe’s “undesirables”-Jews, Slavs, Jehovah’s Witnesses, homosexuals, emotionally and physically challenged individuals, and anyone else who was caught in the crosshairs of a continental-wide fit of man-made madness, verging on an apocalyptic nightmare worthy of any painting signed by Hieronymous Bosch.

There had been a glimmer of hope at the time of the so-called Washington Conference on Holocaust-Era Assets of November 30-December 3, 1998. Art was not supposed to be on the calendar of the conference. The seizure of the Schiele paintings (actually, two paintings had been seized at MoMA in early January 1998) changed the configuration of the planning for the Washington Conference. American policymakers were not pleased about the seizure because they argued that it had besmirched the bilateral relations of the United States with Austria. In so stating, the US government had sided against the claimants and had upheld Austria’s argument at the time that the entire flap over “Wally” was a private matter to be resolved between the claimants—heirs of Ruth Bondi-Jarai—and the Leopold Foundation, then owner of the seized paintings. Still, and this is for another installment, Morgenthau’s muscled intervention at MoMA triggered an existential debate inside Austrian political and cultural circles which forced Austria to reexamine its entire relationship with its past as it affected the illegal seizures of Jewish cultural property. The end result: the only restitution law in the world which mandates “provenance research” in all Federal public cultural institutions of the Republic of Austria.

Begrudgingly, the US government and its many allies at the planning table for the Washington Conference inserted art as one of the many different types of looted assets whose fate needed to be deliberated on by the attending nations and Non-Governmental Organizations (NGO). The Washington Conference produced the so-called non-binding “Washington Principles”—11 recommendations that have become de facto “policy” for lack of a better word in many nations that want to remove that cultural monkey off their backs.

For some, the Washington Conference was a success. For others, it was a dismal failure. For those who deemed it a success, the Conference provided a unique forum to get a sense of where the world stood as far as justice to Holocaust survivors was concerned. The principles notwithstanding, everyone went home thinking they had done God’s work for three days. Those who saw in the Conference a dismal failure balked at the so-called Principles as yet another diplomatic way out of taking full responsibility for not having done anything concrete to render justice to the victims of plunder while throwing a sop at museums, auction houses, and other privateers of the art market by reassuring them that, although provenance research was highly recommended to fill “unavoidable gaps” in the history of ownership of art objects under their care and stewardship, “fair and just solutions” ought to be sought in order to ensure a measure of justice for all. In the end, for the naysayers, the Washington Conference led to a massive failure of international public policy, thus creating a vacuum of power and decision-making over the fate of countless art objects whose newfound status in legal limbo—plundered or not? Restitutable or not?—had to be resolved not with legislation but through, oftentimes, vicious legal battles pitting museums’ hired guns against plaintiffs’ hired guns.

The search for justice over a massive crime of plunder tied to genocide has turned into an international legal slugfest. Instead of chasing airplane crash victims, it has become more profitable to seek out victims of plunder.

Some frequently asked questions

by Marc Masurovsky

a/ What is the total number of art objects claimed?

One should place the ultimate answer to this question in its proper context. By May 1945, somewhere between 15 and 20 million art objects of all sorts, from masterpieces to portraits of your favorite saints and relatives, had been misplaced due to civil unrest, persecution, war, genocide, and theft.

Of those misplaced cultural objects, a small number fit the moniker of “culturally-significant” or “national treasure” or both, depending on who is defining those two very odd expressions. For the sake of the argument, let’s just say 1 to 5 per cent of the misplaced objects fit those categories, or 100,000 (lowest number) to 1 million (highest number). The rest fell into the general bucket of culturally not so significant or insignificant, again, depending on who is expounding on this odd categorization.

Postwar Allied restitution policy ended up focusing on the 1 to 5 percent of objects lost or missing due to State-sponsored mischief between 1933 and 1945. For the rest, compensation schemes were foisted onto shell-shocked survivors and their kin due to an institutional absence of interest amongst postwar governments to aid those victims in locating and recovering their missing cultural property for reasons mentioned above. Many of the culturally significant objects and those earning the label of “national treasure” came from State collections plundered by the Axis or from private collections owned by rather wealthy individuals with close ties to State museums in countries dominated by the Axis. Those items received favored treatment in the eyes of the Allies and their representatives, referred to as “Monuments Men”.

The Allied powers’ prime directive was the rehabilitation of Europe (read that part of Europe not occupied or influenced by the Soviet Army and its government) especially as the incipient Cold War became a full-fledged game of geopolitical antipathy between former wartime allies.

As a consequence of the aforementioned factors and those tied to the inevitable human condition—people over property—most survivors did not file claims in the immediate postwar period and only did so after deadlines had passed and the only chance of recovering anything was close to 0.

By 1956, the US State Department had estimated that approximately several hundred thousand cultural objects of all kinds and shapes and value were still being claimed through its good offices by individuals from more than 30 nations.

From the mid-1990s to today, since there is no concerted international effort to tally the total number of claimed objects that are registered as such with national governments, we can only guess that, perhaps, the figure is close to or in excess of the number declared by the State Department in 1956, since most of the claims were never satisfied.

Nations that are signatory to international compacts known as the Washington conference of 1998 and the Terezin Declaration of June 2009 should conduct a census of all outstanding cultural claims registered as of now in their care and publish those results for public consumption.

b/ what is the total number of art objects restituted?

Historically, we only have repatriation figures from various postwar governments and official statistics regarding actual physical restitutions up to the early 1950s. Since then, there is very little public information that can be found about how many art objects were returned until the late 1990s.

Those nations that have established restitution committees (the United Kingdom, the Netherlands, France, Germany, and Austria) have compiled figures regarding the number of objects that have been claimed through their auspices. But no statistics are tallied pertaining to the number of objects returned through direct negotiations with museums, auction houses, institutions, corporations, and private individuals.

c/ what is the total value of art objects sold after restitution?

The only indication of value comes from press reports about items being auctioned after restitution. It can safely be assumed that the objects with an Austrian provenance—mostly oil paintings by Gustav Klimt and Egon Schiele—have fetched the highest prices at auction following their restitution, mostly due to the infatuation by the upper tiers of the global art market for such works, regardless of their inherent and implicit esthetic value. Those works alone have fetched in toto more than half a billion dollars. It might be safe to conservatively estimate the total value of restituted objects at slightly more than a billion dollars since the late 1990s. But that figure needs to be carefully verified through an elaborate survey of the field of art restitution.

d/ what is the total value of so-called “art restitution litigation?

This question is unfair and unjust but it does capture the collective imagination that impugns all sorts of evil motives to lawyers who seek opportunities wherever they can. We can only surmise how costly litigation efforts can be once we fuse the fees earned from seeking restitution and preventing restitution. Usually, fairly well-heeled law firms are recruited as outside counsel by museums in order to safeguard the integrity of their collections and rebuff attempts by claimants to assert their claims to title. On the plaintiffs’ side, there is an odd mix of solo practitioners and small and large firms involved in art restitution. All told, there are not more than 100 or so attorneys—yes, you read it!—who work on art restitution cases as an integral part of their legal practice if we combined North America, Europe and Israel. Since most plaintiffs cases are adopted on a contingency fee basis, usually 30 per cent, you should take the estimated value of restituted objects and divide that figure by three in order to get an idea on the estimated value of the litigation for plaintiffs’ lawyers. Likewise, for those lawyers defending their clients against outside claims, the fees can easily rise into the millions of dollars for each claimed object. Most of the claimed objects that are subject to intense years-long litigation hold values in excess of 1 million dollars.

Where does all of this leave the bewildered field of provenance research? You guessed it. The two main incentives underlying provenance research are to 1/ safeguard art objects which are part of a museum’s collection or that of an individual collector or 2/ obtain the restitution of such an art object.

What does this mean in terms of the objective and empirical integrity of the research being conducted on the history of an object? How do these legal undertakings affect the very nature of provenance research as distinct from its initial intent as an art-historical practice?

What is the future of provenance research and can it be salvaged as an objective, scientific field of inquiry?

Contextual analysis

by Marc Masurovsky

When looking at an object which is the subject of a claim, one has to know why it is “claimable.”

In other words, the chain of ownership was allegedly broken at some point in its history and the presumed rightful owner never recovered his/her property.

A provenance might not reflect this particular incident whereby one owner loses control of his/her property/the object/through illicit means.

After all, the history of the Third Reich is not contained in a provenance for an object that circulated during the 1930s in Nazi Germany, but anyone reading the provenance should be keenly aware of the historical events that occurred as backdrop to the change of ownership of an object and ask: did those events exert an influence on how this object changed hands?

That is one aspect of contextual analysis.

In this regard, we mean that an object’s history must be viewed in the larger context of events occurring at the time that it changes hands so that we can determine whether that change of ownership was licit or not.

There are also the familiar patterns of complex relations between the presumed owner and colleagues, friends, and business acquaintances alike, which might have weighed in some manner on the ownership trail of the object. In other words, when looking at an object’s history, one must also look at the environment in which the object “evolves.” That is another aspect of contextual analysis.

When discussing forced sales or duress, whereby an individual has no other choice but to sell his property because of the degree to which this person is being exploited, abused, persecuted by representatives of institutions governed by principles that conflict with the owner’s ethos, identity, function and status in the society where he/she operates. The question here is to determine whether or not a forced sale took place. This is all about context. Here again, one has to understand the historical and societal pressures exerted upon the presumed owner of the object to determine whether he/she was in fact compelled to divest him/herself from property that otherwise would have remained unsold had conditions been different. Context and analysis of that context to flesh out the gaps or the spaces in a provenance between different listings of purported owners.

Back to contextual analysis:

Based on the above, can it ever be objective? After all, your forced sale might be my freedom to sell opportunity regardless of who is in power in Germany. What process would close the gap between those two divergent views? How much research would be needed to make a compelling argument for one or the other, but not both? In the Grosz v. MoMA case, inadequate research led to flawed outcomes. The same might be said for the Martha Nathan case against museums inToledo, Ohio and Detroit, Michigan,  and maybe even for the Claudia Seger case against the Museum of Fine Arts in Boston, Massachusetts, and the New Orleans Museum of Art.

How much contextual analysis is warranted in provenance research? As much as is required to make a reasonable determination of theft or of consent in the way that an object changes hands.

Provenance research: what to do?

by Marc Masurovsky

The fault lines around contrasting views and understandings of provenance research might appear to be subtle to the uninitiated but, in reality, the fissures are brought about as a result of the legal implications of provenance research.

In the view of this writer, a provenance is the history of ownership or possession of an object from the time of its creation to the present days. The older the object, the more likely it will be difficult to account for every movement and place where the object was situated once it left the studio of its maker. But as you all well know, even so-called modern works can have elusive provenances such as “private collection, Zurich”.

The contrast in approach, in my view, stems from the fact that one school, mostly articulated by museum professionals, which we will refer to as “traditional” is not necessarily interested in injecting economic, political and social history into the documentation of the fate of an object, especially as it pertains to the 1933-1945 period. For some strange reason, that entire period remains a taboo subject, difficult to express even in the literature that museums and galleries develop around the objects that they display. This same school also argues that one will never know exactly what happened to an object, maintaining that there is no concrete evidence that something “bad” happened to the owner of the object and, even it did, it might not have affected the legal title to that object. After all, the object might have been sold “legally” and we just don’t know about it. Hence we can never ascertain that the object was in fact misappropriated for racial or political reasons, and therefore should not be restituted to its purportedly rightful owner. This view remains the favorite weapon of individuals who work for those who are best described as the “current possessors” of the object being claimed, namely cultural institutions—public and private.

The other school to which this writer belongs argues that context plays a very important role in determining the fate of an object. One might call it the “organic” school, for lack of a better word. It argues that the object, the place where it is and the person in whose possession it is, represent the three cardinal points around which the history of the object is articulated against the matrix of history which evolves over time and space. Put simply, an object that changes hands in Munich, Germany, and which belonged to a person of the Jewish faith may be moving around for reasons compelled by the change of regime in Germany on January 30, 1933, thus signaling a potentially violent and illegal transfer of ownership after Hitler’s rise to power.

A research training program takes on vastly different features if it follows the “organic” school or the “traditional” school that warrants that the actual fate of an object will never be exactly known, raising the possibility that there could be a document out there that could prove that nothing untoward occurred and the object changed hands legally even in the context of racial and political persecution and genocide.

You would be surprised, but this “traditional” school of thought has led to negative outcomes for claimants more often than not.

When we think about establishing provenance research training programs in colleges and universities, we realize that some schools might adopt one or the other approach. A balanced program would offer both approaches to future practitioners, advising them of the pitfalls and benefits inherent to either approach.

Some participants at the Columbia Conference were very adamant about promoting their own views of how provenance research should be conducted, whether “traditional” or “organic” which is a good thing because it gave those in attendance an opportunity to weigh both in their own minds.

Any museum-guided provenance research training program will likely promote the “traditional” view that provenance research is first and foremost about documenting the itinerary of an object from creation to the present day, with history being relegated to a back seat.

Any provenance research training program guided by the notion that it is essential for the provenance to document who the actual owner of the object is promotes the “organic” view and will assign greater weight to history and the environment in which the object evolved, beyond the narrow confines of conventional art history.

These contrasting views have become an integral part of the landscape of provenance research, influenced and skewed by decades of litigation and legal wrangling between current possessors—in most cases, museums and galleries—and claimants.

The geography of “traditional” vs. “organic”
Where do we find “traditional” views as opposed to “organic” views of provenance research?

In my view, the “traditional” approach is upheld in the hallowed halls of cultural institutions of a certain size located in large metropolitan centers. It can also be found among those who teach in museum studies programs and art history programs. One can even argue that the “traditional” view suffuses the curriculum of these academic programs that train future curators, art historians and other cultural professionals.

The “organic” view, strangely enough, finds its strongest advocates among archaeologists and cultural heritage specialists who take seriously the matrix from which objects are extracted. They are joined by those who research the fate and history of objects lost by claimants and their families. Some government officials, mostly in Europe, have eased their way into an “organic” view of provenance research, especially in the United Kingdom, France, the Netherlands, Germany and Austria.

The future of provenance research

There is no game plan right now. The most important next step is to institute formalized academic offerings in colleges and universities that introduce students to both methodologies—“traditional” and “organic”—as well as in specialized workshops organized by non-profit organizations.

The now-extinct Prague-based European Shoah Legacy Institute (ESLI) offered a Provenance Research Training Program (PRTP) from 2012 to 2015 through a series of five workshops staged in five different cities—Magdeburg, Germany; Zagreb, Croatia; Vilnius, Lithuania; Athens, Greece; and Rome, Italy. Both approaches were offered to participants although most workshops tended to lean towards an “organic” view of provenance.

By contrast, the Washington-based American Alliance of Museums (AAM) and the Association of Art Museum Directors (AAMD) have offered half-day and day-long seminars characterized as workshops in which they introduced curators, librarians, archivists and art historians to the mechanics of working with objects and documenting their history. These programs fit into the “traditional” mold and will likely continue. Likewise, the Smithsonian Museums appear to be thinking about developing some kind of “traditional” provenance research training program of their own.

Proposals abound about how to produce a more structured approach to training. Some efforts are taking shape in France. Provenance research is now being introduced to universities in select cities—Angers and Paris. The Free University of Berlin continues to offer a curriculum on “degenerate art” which tends to steer away from controversy and thus finds comfort in a more “traditional” approach to provenance research. This is perhaps due to the fact that funding comes from the government. On the other hand, in Munich, the Zentral Institut für Kunstgeschichte (Central Institute for Art History) promotes through its research projects a more “organic” vision of provenance research that gives extra weight to the mechanics of the Third Reich, the relationships of power and interest between various groups in the art world, into the understanding of an object’s pathway through the 1933-1945 period. These relationships and “interests” , it is argued, shape the fate of the object.

There is talk about asking the European Union to establish a Europe-wide entity with EU funds that would coordinate research into the history of objects under review for possible taint of looting or misappropriation. The idea makes eminent sense since national governments have skirted the issue rather successfully for the past 70 years. It might just require such a supranational effort to compel provenance research and training of practitioners. For such an effort to even get off the ground, entities and individuals with an “interest” in these matters of restitution, looted art, provenance research, will have to work together, coalesce their strengths and assets in order to lobby successfully for the creation of a funded unit at the EU level.

And still others argue that the only way to provide training is through some sort of international association of provenance researchers. According to this position, this association (which does not yet exist) will be responsible for coordinating at the national and international level all activities pertaining to provenance research and training. For this to happen, national chapters have to be established and more importantly, a clear definition of provenance research has to be adopted. If we follow this duality of “traditional” vs. “organic”, will the association try and reconcile these two approaches or will it favor one over the other? Who will make that determination? Without a clear understanding of what provenance research is, how can such an association see the light of day?

Maybe several associations are required if the two approaches cannot be reconciled. That might not be the worst thing to do. The only organization of provenance researchers that exist today is in Germany, the Arbeitsstelle für Provenienzforschung (AfP) and includes mostly German researchers who are for the most part working for municipal, regional or federal museums and cultural institutions. Expand this idea and we are talking about fundamental different outcomes and approaches shaped by the employer. In most of Europe, the employer is the government. In the United States, the main employer is a private non-profit or profit-making cultural institution, with the exception of municipal, State and Federal museums. Hence, an international association would become a cacophony of conflicting interests, because some researchers would be government civil servants, others would be working for the private art market, while others would be working for claimants and advocacy groups.

Define your terms

Before anything concrete can happen to transform provenance research into an internationally-recognized profession with its requirements, methods and approaches, its licensure procedures, we all must be clear about exactly what provenance research really is, and how it is practiced. Failing that, there is nothing to talk about. Instead of an association and its bureaucratic pitfalls, let’s instead establish a strong global network of individuals and entities interested in the history of ownership of artistic, cultural and ritual objects, a network that would be inclusive and not exclusive, one with a maximalist understanding of the idea of research. That approach might help shape the contours of a generic definition of provenance research on which everyone could agree without feeling as if they betrayed their principles and ideals.

Provenance is a landscape

by Marc Masurovsky

Provenance is a landscape where every gap is like a gorge that one crosses on a bamboo bridge. Every stretch of time left unexplained is like a desert or a forest that one crosses seemingly without end.

It is the perfect post-modern expression of a history made of fragments of time, place and humanity, and we have to make sense of it.

If provenance is a legal document, it is woefully lacking.

If it is a security questionnaire, It becomes an open invitation to a tight interrogation.

Hayden White would feel right at home with a provenance because it exemplifies that tired motto: history is fiction.

Provenance is supposed to explain the history of an object. The basic components are time, place and people. Sometimes you have more people than places but no time markers.

Sometimes, a provenance will be like a ground hog poking its head up for a brief moment.

Hi, my name is John Smith and I owned a painting by Hans Holbein in 1969 and I won't tell where I bought it, so there. Sure enough, it disappears in its hole and you're left with a ground hog's view of history.

Innocence and truth

by Marc Masurovsky

We are socialized from an early age to tell the truth, the whole truth and nothing but the truth. We are told, at least in the United States, that we are innocent until proven guilty, even if we were caught with the blood-soaked knife in our right hand and the unlit stick of dynamite in the left hand, several hundred thousand dollars of crispy cash in one hundred dollar denominations heaped in a pile in the corner. Innocent until proven guilty. Tell the truth, nothing but the truth, so help you God.

If we are told to tell the truth, we learn that the lie, which is the opposite of the truth, is a bad thing. If we lie, that is, if we do not tell the truth as it is, it makes us into bad people, into liars, and we deserve whatever gets thrown at us by our parents, our friends, and/or total strangers in a position of authority. We will go to hell, no questions asked. We should not do business with people who lie. They should be marginalized, ostracized, condemned for what they are—liars.

If people lie, does that mean that they are dishonest? Can you be an honest businessman and lie at the same time? Does it depend on who you lie to and what you lie about? Are you a liar if you tell only one lie? Or can you tell one lie a month and still not be viewed as a liar? Or one a year? Or one a week? Can you be dishonest once or twice a year and still be considered to be honest?

Can you be in business and tell the truth no matter what? Can you stay in business and tell the truth? What does it really mean to tell the truth? There are so many people who say: “well, I told a small lie today. Nothing much. No one got hurt.” Or someone confesses: “That was a white lie, actually.” A white lie? And what’s a black lie? Or a red lie? One can only infer that the “white lie” is on par with the small lie, it is of no consequence. No one gets hurt. We’re cool, right?

Is an inflated story a lie if it does not reflect accurately the facts as they unfolded? If you overrate the value of an object, are you lying about the object’s true value? Since value, for the most part, is subjective, is inflation or deflation a lie because it is inaccurate? Is the inaccuracy a deliberate part of a negotiating strategy to either buy or sell or exchange an asset? If so, does that make you, the inflator or deflator, a liar, a dishonest person? Should I continue to do business with you?

If you attribute a painting, a drawing, a print, a sculpture, a piece of furniture, to an artist who is not the actual artist and you do so knowingly? In other words, you “mis-represented” the authorship of the object. Is a deliberate, thought-out, calculated “mis-representation” as bad as a lie? After all, you chose not to tell the truth about the object. Does that make you a dishonest person or a clever negotiator or salesperson? Is the art of the deal anchored in calculated misrepresentations, small lies, white lies?

What about the professional relationships between dealers, collectors, galleries, museums and their clients, the artists they represent, the brokers with whom they must deal, the curators and experts who are “in between” somewhere in the transaction, the endless parade of support staff, donors, investors, specialists, historians, and other experts? Are they all telling the truth? Or are they all engaging in a massive cornucopia of white lies, small lies, unaccountable “honest mistakes” quickly patched with a self-flagellating [well-calculated] self-mortifying tweet that same afternoon or the next morning—early!—and accompanying selfie, hinting that forgiveness is in order until the next mishap occurs? If everyone involved in the art trade commits such mishaps, is that person shunned, excluded, treated as a pariah, unreliable, lacking all credibility? If so, no one might be left standing in the art market. It might actually implode from an acute attack of truth telling.

Business as usual

by Marc Masurovsky

The twenty-year old discussion about Nazi looted art and restitution tends to skirt a fundamental point: how was it able to happen? And most importantly, how were its fruits internationalized and monetized on a global scale?

In the interwar years, many paths led to New York, the emerging global center of attraction for artists, bankers, industrialists and intellectuals, including those who were anxious to start a new life away from the Nazi madding crowd.

If one looks at art as a business, then one can understand that the rise to power of Hitler on January 30, 1933, did not put an abrupt end to business relations between Germans and their counterparts outside the nascent Third Reich. In fact, it was business as usual. Many scholars have already covered this ground, but have been shy to point out that the Nazi plan against its perceived enemies, especially the Jewish community of the Reich and ultimately of continental Europe, was grounded in economic motivations as much as it was rooted in age-old anti-Semitic stereotypes and myths of alleged Jewish evil and malfeasance towards civil society and its institutions, even going as far as accusing Jews of holding the Zeitgeist of the nation hostage to their supposed base needs.

That said, the art world continued to function as before January 1933, except for the inevitable casualties of business under the Nazis, who enforced interdictions against artists and intellectuals and their supporters in the cultural and financial spheres. The attack against so-called degenerate art, objectionable forms of expression, forced the disgorgement of thousands of works and objects onto the private art market, followed by the purging of such banned pieces from German state museums and their sale inside and outside the Reich. The international community responded with its checkbook and began acquiring at bargain basement prices, works which had not been so easily available during the Weimar period.

The Nazis understood the financial power of art as a pendant to their attack on Kultur which eventually extended across Europe.

Let’s take a look at the economic infrastructure through which art flows—companies, banks, middlemen—because art is also an investment. Dealers and collectors alike are intrinsically connected to the financial and commercial interests of a nation, as well as its civil servants who rationalize and organize policy to enable economic growth, trade and financial investments both inside the Reich and abroad. Germany is a net exporting country as a consequence of the Versailles Treaty, forced to rely on foreign subsidiaries to generate markets so as to ensure its survival. The interwar era of global cartels brought financiers and industrialists of all major countries together at the table, as well as institutions such as the Bank for International Settlements (BIS), whose members were instrumental in reshaping the financial map of the world, and helping to seal the fate of countries like Czechoslovakia. Should it come as no surprise that art travels with these businessmen, becomes a source of investment, serves as collateral, money is borrowed to acquire art as much as assets are leveraged to ensure transactions which have nothing to do with art.

In sum, the domestic plunder of German citizens and their art collections finds natural outlets in and through networks of affiliation long ago established and strengthened across the international corporate community. The appeal of specific styles by conservative elites—from antiquities to medieval and old masters all the way to the 18thand early 19thcenturies—act as a pump for art dealers with ready access to those works being funneled into the market by desperate people seeking quick cash to subsist and/or to fund emergency trips into exile and to safe havens.

The evidence is compelling that, from the first forced sales of summer 1933 in Berlin, buyers were in attendance from neighboring countries and far-flung ones—Great Britain and even the United States. The incidental business tourists who happened to find themselves in Nazi Germany with some disposable cash frequented auction houses where Jewish-owned property was being sold. These items in turn were repatriated back to their native countries to be included into their places of business and residence.

Hence, from the mid-1930s, looted cultural property is flowing outward following long-established networks of trade and kinship ties between foreign clients and their German dealers and middlemen.

The same scenario is repeated even more brutally following the March 1938 Anschluss of Austria with American investment banks like Goldman Sachs advising its clients to buy up devalued property ensnared in Aryanization procedures. Let’s not be naïve, as there are hundreds of Allied companies operating subsidiaries in the Greater German Reich with which they are not yet at war. Normal business relations continue unimpeded, these subsidiaries allow their boards to be aryanized by transferring out their Jewish cadres in order to appease the New Order.

These accommodations with authoritarian governments began long before Hitler came to power. Indeed, since 1922, Benito Mussolini ruled Italy with an iron fist, which appealed to many foreign businessmen who preferred to have some sense of order that would maintain social peace in their Italian subsidiaries. Moreover, European and American dealers traveled to and from Italy every year throughout the 1920s and 1930s to conduct business, exchange or acquire works of art, organize and borrow exhibits for display in their homelands. Hence, Fascism and later on Nazism did not create moral and ethical qualms for Europeans and American citizens as they pursued business opportunities with authoritarian, racist, racialist governments.

So, when we discuss how on earth did objects looted during the early years of the Third Reich ever manage to enter Western European and American collections, one should not look too far and too deep for an answer to that question. The same reasoning applied to the sale and exchange of other commodities. For instance, the Leipzig Trade fair attracted American buyers up until the late 1930s, even though trade associations in the United States expressed some concerns over the probity of maintaining commercial relations with companies in the Reich that discriminated against their Jewish employees and which had absorbed Jewish businesses through aryanizations, selling the aryanized property to foreign buyers.

Also, the international gold trade had been mired in some controversy after the Anschluss and the invasion of Czechoslovakia with the blessings of France and Great Britain, the gold reserves of both countries having been absorbed by the Reich, and their contents used on international markets to acquire badly needed foreign currencies. The US Treasury became aware of these movements of gold but were unable to prevent those bars from entering the US gold reserves on account of a fundamentalist approach to the international gold market. Nothing should be done to disrupt the inflow and outflow of gold because the dollar’s value was pegged to a fixed value of gold. Hence, any political disruption of the international gold matket rooted in discrimination against gold provided by the Reich as collateral to purchase foreign currencies was prohibited, unless the US wanted to destabilize the dollar’s value and therefore endanger the economic recovery of the US in the years following the Great Depression.

The international art trade mirrored closely the way in which international business relations were conducted between the future Allied and Axis countries. Provenance of goods and services was never held to account as a prerequisite for conducting business. Hence, the desire to question the origin of the goods and services was rarely raised and even when it was, could not be invoked as a reason not to conduct business with a German or Italian entity or individual. One would have to wait for a state of war to exist between the US, Great Britain and the Axis powers to restrict trade relations, including the international movement of art objects.

But, as we all know, where there’s a will, there’s a way.