Utopian thoughts on a lazy, snowy Friday

by Marc Masurovsky

Museums
Acquisitions of objects are limited to those objects with no taint whatsoever on title. Under-provenanced objects with significant gaps and riddled with uncertainties as to past ownerships and locations must not enter a museum.

The museum’s research budget allows for a team of full-time researchers whose sole purpose is to keep the museum “honest.” 

Louvre, Paris

If problems emerge in the ownership history of objects in the permanent collection, all measures must be taken to clear title by submitting the object to a detailed, forensic analysis. If additional research reveals illicit activity that might have resulted in an illegal transfer of ownership, the museum will right the past wrong, seek out the heirs of the rightful owners and work out a proper solution to fix the historical wrong as long as it reflects the wishes of the aggrieved parties (those who suffered the loss of the objects).

As a matter of course, the museum will make available to the general public all information about the history of each object in its permanent collection without judgment or preconceived notions. That information will be freely and readily accessible.

When a museum possesses a large inventory of objects obtained from indigenous communities, former colonies, and conflict zones, it will:

Humboldt Forum, Berlin

         

1/ identify the rightful owners of these objects, whomever they may be;

2/ take the necessary steps to contact their representatives and consult them as to how to treat these objects;

3/ if repatriation is in order, the museum will abide by this decision and return the objects;

4/ if other solutions are envisioned, they too shall be respected and implemented as long as they reflect the wishes of the aggrieved parties (those who suffered the loss of the objects).

Auction houses

Recognizing the fact that there are thousands of auction houses worldwide, it is almost impossible to regulate their activities without imposing severe constraints on the global art market. Still, auction houses are the main purveyors of looted and otherwise stolen cultural property.

To stanch the in- and out-flows of stolen cultural goods, governments will establish oversight bodies whose sole purpose is to ensure that auction houses comply with rules and standards that will rid the market of unprovenanced, under-provenanced goods whose origin cannot be explained either by the consignor or the seller. If this is unreasonable, at the very least, auction houses will post “buyer beware” notices for un-and under-provenanced objects that they offer for sale. The goal is to inform consumers much like government agencies issuing product alerts. If art objects are commodities, they should be regulated in the same way that pharmaceutical, cosmetics, food and other products are.

Christie's

Hôtel Drouot

Collectors, dealers, and brokers

Private handlers of cultural goods are an important cog in the global machinery of recycling and dissipation of looted and otherwise stolen cultural objects around the world.

Without them, looters, plunderers and thieves find it challenging to “fence” their loot and to make quick money off of it, thus increasing their risk and disincentivizing the act of plunder and theft.

These handlers must be prohibited from offering any object which is un-or under-provenanced or whose past history shows clear signs of dislocation and illicit transfers of title. If they do, criminal penalties must be imposed on them and their accomplices.

Can privateers be deterred from acquiring objects with dubious provenance information that casts a cloud on title? They will, no matter what any government says or does. Realistically, their activity cannot be completely deterred but their quest to sell these objects on the open market must be interdicted.

Does this open the door to the creation of a parallel art market which operates under the radar? That market already exists and probably always will. Wars, conflicts, crises, laissez-faire governments and regimes enable its existence an allow it to thrive under their very noses and, to some extent, with their complicit assent. The fact that national and international elites sustain its existence complicates the task of any regulator to restrict its expanse and depth. Any attempt to clamp down on the parallel market is politically dangerous for those in positions of power and influence.

Good faith defense

Civil law and common law countries will rethink how good faith serves as an almost-impenetrable defense against relinquishing looted objects to claimants. One possibility is to create exceptions to the good faith defense which remove that protection from those who acquire and sell stolen or plundered goods, even if they were unaware of the true origin of the objects which they acquired. This measure will allow restitution claims to proceed without claimants worrying that the current possessor will resort to good faith as a reason not to restitute their property.  Ignorance is not a defense. Those who dabble in the art market must exercise proper due diligence before acquiring, selling, displaying, donating, loaning cultural goods. Failure to do so must have legal consequences.

Ethical collecting

Can people build an ethical collection of art objects, viz., a collection of objects whose history is not tainted by ambiguous claims to ownership as a result of civil unrest, war, and genocide?

They can and they do. The thrill of seeking out beautiful objects whose acquisition becomes controversial because of the circumstanced surrounding the object (coercion, illegal extraction, outright theft, etc.) is the ultimate drug that fuels thrill-based acquisitions. If you’re skeptical, read about Thomas Hoving, Douglas Latchford, and many others in the museum and art worlds who took pride in their reckless manners and methods to secure “beautiful and unique” objects.



Photos:

Christie's-courtesy of Artisera.com

Hôtel Drouot--courtesy of Drouot.

"The Martyrdom of Saint Sebastian" by Andrea del Castagno

by Marc Masurovsky

Stranger things have happened regarding works of art with no written pasts that end up in a world-class museum like New York City’s Metropolitan Museum of Art. In this case, our story revolves around “The martyrdom of Saint Sebastian,” a 15th century Italian Old Master painting initially attributed to Andrea del Castagno but later pronounced to be by Francesco Botticini (di Giovanni). 

The New York Times article printed an article entitled “Florence seeking US held painting: Authorities want masterpiece owned by Metropolitan-Rome unlikely to act” about this painting’s weird odyssey on Sunday 27 June 1954. 

Story I: New York Times/Associated Press

After Benito Mussolini was deposed as the “Duce” of Fascist Italy, Marshal Badoglio brought Italy on the side of the Allies and declared war on Nazi Germany on October 13, 1943. Germany invaded Italy and Florence remained under German occupation from then until the early days of August 1944. The persecution of the Jews, initiated by Italian Fascists as of fall of 1938, intensified under German occupation. 243 Jews living in Florence were deported to the East. Fewer than 10 percent came back. Most Jews’ property was plundered and rarely returned after the war to survivors or the relatives of the victims.

During WWII, a painting by Andrea del Castagno was stored in an attic of a building in Florence as part of a larger stash of “hidden” art works. Were they actually hidden or just stored there? And to whom did they belong? Could it be that their owners were Jews persecuted by Fascists and Nazi occupiers?

Enter Luigi Albrighi, described as a “Florentine lawyer.” Soon after its discovery, this gentleman gained possession of the del Castagno and was able to secure an export license for sale abroad. It is unclear whether Mr. Albrighi was one of the “art dealers who discovered and removed” the painting from the attic where it was found. Albrighi told the Fascist authorities that the painting was “valueless” in order to get export papers for it, which is perhaps what got him into a heap of trouble later on.

The painting was later shipped to New York where it passed through the hands of Knoedler gallery which then sold it to the Metropolitan Museum of Art in 1949 for a tidy sum considering that the painting was “valueless” at time of its exportation. This acquisition by a world-class museum triggered an investigation by Florentine authorities and the Italian Ministry of Culture, the former not understanding how a high-value work of art could have been exported “clandestinely” and “illegally.” After five years, the Italian government apparently refused a request for repatriation of the painting submitted by the Florentine authorities. Mr. Albrighi had even been arrested and, pleading ignorance as to the value of the painting, he was released. Case closed?

Story 2: the Metropolitan Museum of Art

Who was Luigi Albrighi?

According to numerous sources, Luigi Albrighi was a Milanese lawyer turned art dealer after World War I. He gained notoriety following the sale in 1930 to a British lord of a “Madonna with veil” attributed to Botticelli which ended up at the London-based Courtauld Institute. The painting in question, which earned Albrighi a lot of money, turned out to be an elaborate fake.
Albrighi, operating as “Galleria Luigi Albrighi” in Florence, was quite savvy about gaining access to high-quality Old Master works which he sold to noted collectors like Count Bonacossi Contini and to museums like the Museum of Fine Arts in Boston. Apparently, he did business throughout the Fascist years. One of his close connections was Bernard Berenson.

The back of the painting bears an export stamp indicating that the permit to export the painting was granted by Fascist officials on July 22, 1944, barely three weeks before US troops liberated Florence from the German yoke at great material cost to the city. When did the painting actually reach the US? Art exports to the United States would resume in earnest after mid-1946 when wartime restrictions were lifted on imports of art to the United States. Had the painting been shipped right after the license was granted, it would have been subject to the Allied naval blockade and possible seizure by British naval blockade authorities.

Let’s take a closer look at the Metropolitan Museum of Art’s understanding of the del Castagno’s history.

The provenance reads as follows:

?conti De Larderel, Florence, by descent (until 1944);
?conte Giovanni Rasini, Milan;
[Jean Marchig and (?)Albrighi];
Cotton Trading (until 1947; sold for $75,000 to Pinakos and Knoedler);
[Pinakos, Inc. (Rudolf J. Heinemann), and Knoedler, New York, 1947–48, as by Andrea del Castagno; sold to MMA]

If read according to accepted conventions in provenance research, the published provenance establishes a continuous line of ownership involving distinguished families (de Larderel and Rasini) from Milan and Florence whose names are associated as owners of the “Martyrdom of Saint Sebastian” by Andrea del Castagno. Three question marks in front of each name presented as previous owners of the painting, suggest the possibility that they might not have come into possession of the painting. At some point after 1944, Albrighi acquired the painting together with Jean Marchig. They in turn sold it to what we presume is a corporate entity, “Cotton Trading” which held the painting until 1947. That entity then sold the painting to Pinakos, an import-export company established by Rudolph Heinemann exclusively for the purpose of buying and selling Old Master paintings and bringing them to market in New York through Knoedler’s. Pinakos then sold the painting to Knoedlers in 1947 and, two years later, the Met acquired it in 1949.

Story 3: the truth, whatever that is, is somewhere in the middle

The New York Times/Associated Press version of events as related to the American public on June 27, 1954, hints at an odd event which placed a painting without much value and hidden in an attic, discovered by art dealers, and transferred to a lawyer who turned out to be an art dealer of some (dis)repute, active throughout the Fascist era (not mentioned by the New York Times). The lawyer/dealer gets an export permit from local Fascists and, at some point, the painting leaves Italy and reaches the New York art market. The Italian government and regional authorities in Florence get all bothered about this export (not atypical for the Italian government when an Italian Old Master leaves its territory). The Metropolitan Museum of Art eliminates the attic story by establishing continuous ownership for the painting until it reaches Albrighi, unless…

Who is this Jean Marchig? His actual name is Giovanni Marchig, he worked as a restorer and, apparently, was in business with Albrighi. As an aside, Signor Morandotti, a Rome-based art dealer, had introduced Giovanni Marchig [Jean Marchig] in the early 1940s to Walther Andreas Hofer, Goering’s official art agent in German occupied territories. [Source: The ERR, Consolidated Interrogation Report #2, p. 105 RG 260 M1946 Reel 121.] Moreover, Marchig had sold other works through Hofer and intended for Goering and Hitler. After Florence was liberated, Marchig and Albrighi obtained permission in October 1944, from the American army to locate and inventory the collection of Bernard Berenson stranded in an abandoned villa near Florence. The inventory was drawn up on 23 October 1944. [MFAA Field reports 23 October 1944, Toscana region, RG 239 M1944 Reel 66].

More bizarre is the “sale” of the painting, Fascist export license in hand, to a “Cotton Trading Company.” No location provided for this British or Anglo-colonial sounding corporate entity. The closest company meeting this description was a “cotton trading” company established in 1938 by an Austrian Jew named Friedrich Unger and based in the Netherlands with outlets in France. No proof that it is the same one. A cotton trading business acquiring Italian Old Masters in the immediate post-war years? That is the kind of transaction that would have been made more than one Allied official bristle. Some people might venture to say that this cotton trading was just a window dressing operation, a “cloak”, to conceal transactions on the postwar European market.

The fact remains that this entity, according to the Met’s published provenance, sells the del Castagno to agents of the New York-based gallery, “Pinakos”, represented by Rudolf J. Heinemann, a still-enigmatic figure of the New York Old Masters world in whose honor a room full of Tiepolo paintings graces the walls of the Metropolitan Museum. Heinemann’s unusual access to high-quality Old Masters in wartorn Europe which he gingerly brings across the Atlantic throughout the late 1940s and 1950s for the benefit of Knoedlers and wealthy American collectors, has never been quite elucidated. Be that as it may, Pinakos acquired the del Castagno in 1947 and transferred it to Knoedler’s which sold it to the Metropolitan Museum in May 1949, no questions asked since the export papers were in order and the once “valueless” painting had suddenly earned its place in the sun as a “masterpiece.”

The Met dismissed the Italian request for repatriation of the del Castagno as “old news.” In later years, its experts challenged the del Castagno attribution and substituted in its place Francesco Botticini (di Giovanni) as the presumed author of the painting.

What was the whole kerfuffle about? And why was the painting stashed in an attic somewhere in Florence? Whose attic? By today’s standards, if we have any left, an Italian Old Master abandoned in the attic of a Florentine building evokes all sorts of images, mostly bad ones, like abandoned property belonging to Fascist/Nazi victims or, worse, loot set aside by the plunderers to be picked up at a “safe” time. The “loot” was in fact “discovered” by local art dealers. One way or another, there is too much to this story to simply be ignored and dismissed as “old news.”

Moreover the disconnect is nothing short of surreal between officials in Florence and their superiors in Rome over the legal status of the del Castagno and the circumstances of its exit from Italy. Since the export permit was issued by a Fascist official, did that weigh into the determination made by the Florentine authorities that the export had been conducted “clandestinely” and “illegally”? If so, what was their problem with Albrighi and Marchig? Were they symbolic of the deposed regime? If not, were they known as “dodgy” individuals on the local art market which explains the arrest and release of Albrighi?

And why does the Metropolitan Museum not see the discordance between the official narrative and its rendition of the provenance of the painting? All this to say that more work is needed to elucidate what really happened to this “valueless” work of art.

Diplomatic highs and lows in Paris

by Marc Masurovsky

Ambassador Stuart Eizenstat, special envoy on Holocaust affairs for the US Department of State, was one of the most prominent speakers at the 20th anniversary colloquium of the CIVS in Paris on November 15, 2019.

The main point person since the Clinton era on matters pertaining to Holocaust-era claims, Mr. Eizenstat delivered an unusual speech regarding looted art, restitution, France’s treatment of looted art in State collections, and his own legacy.

From year to year, the Eizenstat narrative on looted art and restitution has morphed and been rewritten, not for stylistic reasons but perhaps because Mr. Eizenstat has had a decades-long love/hate relationship with the whole idea of restituting art objects to plundered victims of the Nazis. And he simply does not know how to address it. After all, you cannot package art the way you bundle insurance policies, gold bars and coins, bank accounts and so forth, something that he excels at, which has yielded billions of dollars worth of settlements for Jewish victims and their families. For that reason alone, Mr. Eizenstat's legacy as a reliable and devoted advocate and champion of Holocaust victims' rights is uncontested and admirable.

Here are some of his many statements which were oftentimes punctuated by occasional spurts of ire:

-“France is going from being a laggard to being a leader” on questions of art restitution. That elicited some giggles including from Mr. Eizenstat who appeared pleased by his joke which was not really a joke.

-The CIVS conference symbolized “our last opportunity”. Let’s recall that the Prague Conference on Holocaust-era Assets in June 2009 was also “our last opportunity.”

He reminded us of his infinite capacity to repeat “fake news” about cultural losses during WWII. Unverified, the numbers put forth by Eizenstat are the same ones he has repeated since 1998.
According to him, 600000 paintings were looted during WWII, of which 100000 are still missing. In 1997, Philip Saunders of Trace database had made this unfounded assertion.  (Mr. Eizenstat went on record with those numbers in 2006). The Polish government alone claims that half a million cultural objects were removed from its territory during WWII. Which irresponsible historian or advocacy group came up with these fictitious numbers? Not even the Monuments Men could be bothered to audit the cultural losses of each nation victim of Nazi aggression. The more accurate estimates situate cultural losses in the millions.

Speaking of the Monuments Men, Mr. Eizenstat delivered a paean in their honor, citing their bravery and courage (smoking pipes and sporting tweeds) in Munich and Wiesbaden, while recovering 5 million works of art! No kidding! He forgot to mention that this figure mostly accounts for books, decorative objects and State-owned art. Not much room left for Jews, is there? Moreover, 5 million might be just a tad exaggerated. But who’s counting? You get the idea. Lots of looted stuff was repatriated to countries of origin.

Mr. Eizenstat was on a roll. He posited that it was impossible to identify owners at the end of the war. If so, how did so many objects get returned? The heirless asset problem must be staggering.

Let us now enter fantasy land. In December 1997, Mr. Eizenstat came up with the brilliant idea for a conference on looted art or so he says. That’s really strange because he was firmly opposed to the inclusion of looted art in any international convening dealing with assets during the Holocaust. It was the seizure of the two Schiele paintings at the Museum of Modern Art in January 1998 that provoked the inclusion of looted art in what became the Washington Conference on Holocaust-era Assets.

Speaking of the 1998 conference, Mr. Eizenstat, since November 2018, has changed his tone regarding the 11 Washington Principles that he penned which were supposed to frame an international strategy to identify looted art in public collections (not private) and suggest ways for victims to settle their grievances with current possessors.

Well, as it turns out, these non-binding Principles were mostly based on a set of guidelines developed by American museums earlier in 1998 when faced with mounting criticism over their indifference to the presence of stolen objects in their collections. A funny way of helping claimants by seeking inspiration from the very institutions that are firmly opposed to any form of restitution.

Mr. Eizenstat went on to honor the Association of Art Museum Directors (AAMD) for setting up a task force to address the question of looted art in their collections. To that end, the AAMD issued a set of guidelines in June 1998 which served as the benchmark for the Washington Principles, of which Mr. Eizenstat is the uncontested author.

Mr. Eizenstat proffered adoring words for Philippe de Montebello. The flamboyant former director of the Metropolitan Museum of Art was a fierce opponent of restitution but a very savvy museum official who understood the value of pre-emptive strikes on issues of looted art and artifacts. To wit, he promoted the drawing up of guidelines for American museums to follow when confronted with objects in their collections that might be of dubious provenance and negotiated creative settlements with the Italian government over the presence of looted antiquities in the Met’s collections.

Mr. Eizenstat was particularly combative in upholding his legacy and defending his record against critics who have blasted him for “doing nothing” and uttering mere “words.”

Seizing the opportunity in a fiery tone, he shared a long list of recommendations and critiques in Uzi-like fashion. It was hard to keep up. Some of the more notable ones follow:

1/ he denounced the impossibility of de-accessioning restitutable objects from French museums as “a French problem.”

2/ He went on to skewer Dutch museums for having reneged on their commitment to the Washington Principles by equating the cohesiveness of their collections with the interests of Holocaust claimants—the notorious “balance of interest” doctrine approved by Dutch museums in 2016? Verify.

3/ he denounced the German Limbach commission and its 15 cases in 15 years.

4/ Once again, he congratulated the Metropolitan Museum and the Boston Museum of Fine Arts for showing the way on how to handle looted objects in their collections.

5/ Quoting the AAMD and the AAM, he observed that the NEPIP portal was worthless and “outmoded”, in other words, unusable.

6/ He criticized US museums for being so aggressive towards claimants by resorting to technical legal defenses in order to dismiss their claims.

7/ He applauded the HEAR Act as the antidote to summary judgments petitioned by museum lawyers against claimants, whether meritorious or not.

8/ He thinks highly of the JUST Act which requires countries to publish annual reports on the state of restitution in their midst.

9/ he took partial credit for launching “provenance research as a new profession.” As if it was not performed prior to 1998.

10/ He congratulated France for acting as a coordinator between the five standing restitution committees.

Then, Mr. Eizenstat pulled out his foggy crystal ball and peered inside it, noting:

1/ Forced sales and flight sales (fluchtgut) are to be included as part of the Washington Principles (the former are mentioned explicitly in the Terezin Declaration and the latter are suggested implicitly therein);

2/ provenance research is expensive and requires resources.

3/ Public museums should publish on the Internet a detailed provenance for all of their objects.

4/ research should be conducted in all museums—private and public.

5/ De-accession laws need to be changed in order to accommodate restitution of looted objects.

6/ The Washington Principles apply to private collections

7/ Every country should designate a point of reference for claimants

8/ there should be no time limits on claims.

9/ he denounced the European Union as being “behind the curve.”

10/ with regards to so-called heirless assets, Eizenstat reiterated the need for “just and fair solutions” which amount to selling off these unclaimed assets after giving research one more try. Meanwhile, the institutions holding such objects should educate their public about how they ended up in their collections. As an aside, Eizenstat lauded the Austrian solution to the heirless assets question, embodied in the National Fund run by Hannah Lessing. In short, if Austrian federal museums identify objects in their midst for which there are no identifiable owners, they are transferred to the National Fund which follows up with its own research and posts the objects on its website. After a period of time has elapsed, the Fund sets aside those objects for sale, the proceeds of which are disbursed amongst needy families of survivors. Ms. Lessing begged to differ during the question and answer period.

That was enough for one day.

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.

"The Actor," by Pablo Picaso

by Marc Masurovsky

The Actor, by Pablo Picasso.

Saturday morning, 1 October 2016, brought news of a restitution claim filed by the Leffmann family heirs against the Metropolitan Museum of Art for a painting by Pablo Picasso, “The Actor”, which is estimated to be worth 100 million dollars. According to Graham Bowley, writing for the New York Times, the Leffmann family left Cologne in 1937 and sought refuge in Italy, paying for their exit in part with the sale of the Picasso painting. The Leffmanns ended up in their new land of refuge, Brazil, not unlike other Jewish families plundered by the Nazis, like Hugo Simon.

The Leffmanns sold the painting to the Perls Gallery and Paul Rosenberg, both in Paris. At the time of the Leffmann sale, Hugo Perls  lived in Paris where he had emigrated in 1931, fearful of the inevitable rise to power of the Nazi movement in Germany. The Kaete Perls Gallery moved from Berlin to Paris. Hugo and his wife, Kaete, separated.  According to the Metropolitan Museum of Art, the Kaethe Perls Gallery acted as an agent in the sale of the Leffmann Picasso in 1937. It indicates Hugo Perls, her estranged husband, and Paul Rosenberg, a renown Paris art dealer and collector, as jointly investing in the painting. 

Hugo and Kaete Perls, by Edvard Munch

Thelma Chrysler Foy

According to the New York Daily News, Cesar Monge de Hauke paid 12,000 dollars for “The Actor” but the journalist, Victoria Bekiempis, does not explain to whom de Hauke paid the sum and for whom he allegedly acquired the Picasso painting. One might assume that he had acted as a go-between for Knoedlers. At the time of the transaction, de Hauke was associated with Germain Seligmann, who operated a successful art gallery in New York. In the summer of 1940, de Hauke decided to strike gold on the wartime Paris art market by packing up his belongings in New York and moving to German-occupied Paris. However, this fact has no relevance on the bearings of the Leffmann claim.  The Metropolitan Museum's provenance of "The Actor" does not mention de Hauke.

In another odd journalistic claim regarding the history of the Leffmann family's escape to freedom, Reuters reported that the sale of the painting was to flee Benito Mussolini's Fascist Italy in June 1938! No kidding.. Should that be true, it would be odd since the racial anti-Jewish laws were not enacted until November 1938. Odd how history can get rewritten so quickly and in such a fangled manner!

Thelma Chrysler Foy, a daughter of Walter Chrysler, acquired “The Actor” through Knoedlers in 1941 and donated the Picasso work to the Metropolitan Museum of Art in 1952.

Of interest to us is the involvement of Perls and Rosenberg in the joint acquisition of the Leffmann painting in Paris. Whatever assets Hugo Perls had left behind in Germany, the Nazi government confiscated them. Paul Rosenberg, on the other hand, suffered the same fate two years later, fleeing the German blitzkrieg against Western Europe and seeking refuge in New York where many European Jewish collectors and dealers had also resumed their lives. His entire art collection was seized and many of its contents redistributed with glee among art dealers, brokers and collectors in the Paris art market.

One has to wonder in retrospect and with twenty-twenty hindsight—maybe unfairly—how much Rosenberg and Perls knew of the duress sales in Nazi Germany, how they viewed the acquisition of assets owned by persecuted Jews—ethical or unethical?—or did they simply look at the acquisition of “The Actor” by Pablo Picasso as just another business opportunity?

The post-WWII era inaugurated historic claims for restitution by men and women of Jewish descent, many of whom owned art collections, major or minor, who had been persecuted and plundered during the commission of an act of genocide. The claims were unprecedented in modern history but so was the crime which provoked them. It turns out that a number of post-war Jewish claimants acquired, wittingly or unwittingly, on the German art market, in Switzerland, or in the post-1945 era works and objects of art confiscated from other Jews or sold under duress to finance their escapes by paying excessive levies demanded by the Nazi government as toll fees to allow Jews to leave the Reich.

As is the case today, provenance seemed to have not counted for much in the decision to acquire plundered or confiscated objects. Ironies of history or simply standard operating procedure in the art market, regardless of who and what you are?

The emphasis placed on Perls and Rosenberg in the post-duress sale ownership history of the Leffmann Picasso is to underscore the fact that the art market and those involved in it often set history aside in order to acquire what they covet as part of their overall business activities. This was especially true in the inter-war period, the wartime years, and the decades following the end of WWII and the Holocaust.

This behavior is similar to what we experience nowadays with Native American artifacts looted from religious and sacred sites throughout North America and the acquisition of antiquities known to emerge from conflict zones in the Mideast and elsewhere.

No one is immune to such behavior, not even those who were persecuted.

The New York law firm of Herrick Feinstein is representing the Leffmann family in its bid to recover the Picasso painting from the Metropolitan Museum of Art.

Three Impressionist paintings, three (or rather two) destinies

On March 1, 1941, the Paris art dealership of Durand-Ruel ships to its German client, Mr. Wolfgang Krüger, three high-priced paintings by noted French Impressionists:

1/ “Les Meules, le matin” by Claude Pissarro, painted in 1899

Les meules, le matin, Claude Pissarro
Source: Metropolitan Museum of Art

2/ “Promenade sous bois”, by Auguste Renoir, painted in 1910

Promenade, sous-bois, Auguste Renoir
Source: Culture France

3/ “Noyers, plaine de Veneux-Madon,” by Alfred Sisley.

Noyers, plaine de Veneux-Madon, Alfred Sisley
Source: Culture France

While in Paris during the German occupation of France, Mr. Krüger, a Berlin-based businessman and avid art collector, enjoyed his stays at the Hotel Saint-James & Albany. He paid 385,000 Francs for the three Impressionist works.

Fate would have it that the Pissarro painting ends up at the Metropolitan Museum of Art, courtesy of a bequest in the name of an American scion and philanthropist, Douglas Dillon. The odd thing about the provenance of the Pissarro is the name of the person who ostensibly owned it prior to Durand-Ruel, to whom that person had sold it in early 1941. Funny time to sell Impressionist works of art. But, let’s not think the worst of this work. The Met should be innocent until proven otherwise. The name of that previous owner is Braunthed, who lived in Neuilly sur Seine, a very wealthy suburb of Paris, home, in the 1930s, to some of the wealthiest members of the Jewish community and especially to German Jewish refugees who had settled there after Hitler had come to power in Germany.
Until someone can clear up who “Braunthed” is, the mystery remains as to the circumstances under which “Braunthed” sold the Pissarro painting to Durand-Ruel eight months after the Nazis began to plunder Jewish collections in the Paris region. Moreover, no one has asked Durand-Ruel why it made it a habit of selling wonderful works of art to German industrialists, bankers, and aristocrats, during World War II. Perhaps, their client relationship dated back to the roaring twenties. Still, that's no excuse, is it?

The two other works suffered a less glamorous fate, despite the fact that they were purchased from Durand-Ruel by the same individual, Wolfgang Krüger, at the same time. Allied troops "captured" or "liberated" the one by Renoir and the other by Sisley, after the fall of the Third Reich.  Before being repatriated to France as of "unknown origin," they allegedly went through the Munich Central Collecting Point (MCCP).  At least, the Renoir painting--Promenade, sous-bois-- did, according to the French Ministry of Culture.  If so, there is no trace of it in the MCCP database produced by the Deutsches Historisches Museum (DHM) under the supervision of Angelika Enderlein.  The so-called Munich number--7519--does not correspond to a painting by Renoir, but rather to a work by Panini.  Back to square one. 

 "Promenade, sous-bois" ended up at the Renoir House (Maison Renoir) in Cagnes-sur-Mer as MNR 207 where it keeps company to another ill-fated MNR painting by Renoir, “la Femme au puits”, also known as MNR 579, while the Sisley adorns the walls of a municipal museum in the birthplace of the "damned poet" Arthur Rimbaud, Charleville-Mézières.  Why on earth did that small town receive the painting by Sisley? Political favor? Enriching local collections with stolen property? Who knows? In any event, the Sisley painting that once belonged to Mr. Krüger is now branded as MNR 209.

And so it goes.

Three paintings purchased from the same art dealership in Paris during Year Two (or Year 1.5, depending on how you count) of the Nazi occupation of France, ending up in two different nations, one ostensibly unfettered by the shackles of war while the two others remain in that purgatory called MNR. Why did the Pissarro not end up in the French Museum system as a MNR painting? According to the Metropolitan Museum's website, the first post-1945 owner of the Pissarro was Robert F. Woolworth, who then consigned the painting to the now-defunct Knoedler Gallery in New York.  Where did Mr. Woolworth obtain the Pissarro? From Mr. Wolfgang Krüger? or from yet someone else?

What made the Renoir and Sisley works fit that category despite the fact that they shared a common wartime fate? If anything, the Pissarro is far more suspect than the Renoir and the Sisley.

Mystery…

The “three graces” of art restitution

"The Graces of the Gardens of the Hesperides", Rubens, taken by the ERR
Source: Holocaust-Era Assets Portal, NARA, RG 111-SC-374665

Although they were not paragons of beauty by any Classical standard, Ardelia Hall, Evelyn Tucker, and Rose Valland, constitute a trinity of hard-nosed women who flew the standard of art restitution in the post-1945 era as high and as steadily as they possibly could with the bare means put at their disposal to do justice in their own special way.

Indeed, each one of them behaved in a unique way, faced with specific sets of challenges that on occasion may have seemed insurmountable to them. And yet, they persevered. Although Ardelia Hall and Evelyn Tucker left their respective duties with very mixed feelings, Rose Valland, in relative terms, fared far better and benefited from additional institutional support for her mission to recover items belonging to France and to individuals living in France at the time of the German occupation and the Vichy years. In true French style, Rose Valland was awarded some of the highest honors commensurate with engaging in feats of Resistance during the German occupation.

On the other hand, Ardelia Hall and Evelyn Tucker, the former at the US Department of State, the latter in the US zone of occupation in Austria, were given short shrift throughout their tenure in the US government and were forced to turn into one-woman armies with skeletal staff support in an all-male world. I emphasize this gender issue because it stands out as self-evident. The worlds of international diplomacy and Allied military occupation and civil administration were populated by men, while women, for the most part, served in auxiliary functions. Even the various Allied art recovery commissions established by France (Vaucher), Great Britain (Macmillan), and the United States (Roberts) were all-male casts of museum directors, art historians, curators, and civil servants.

While Ardelia Hall and Rose Valland were creatures of the prewar museum world, Evelyn Tucker was not. Ardelia Hall was a specialist in ancient China and began her museum career in Boston at the Museum of Fine Arts before moving on to the Metropolitan Museum in New York, from which she was tapped to serve in a small office of cultural affairs at the US Department of State in 1944. Rose Valland worked in a curatorial capacity in prewar Paris, and was referred to by a senior curator in France, as a “little mouse”[la petite souris du Louvre] at the Louvre, before she was thrust into the weird world of the Einsatzstab Reichsleiter Rosenberg (ERR) at the Jeu de Paume.  Her tenacity earned her many postwar stars as an unwitting observer of institutional plunder for four long years. Following the Liberation of France, she served at Baden-Baden in the French zone of occupation of Germany where she coordinated restitution operations on behalf of the French government.

In some strange way, based on a comparative reading of the correspondence between Ardelia Hall, Evelyn Tucker and Rose Valland, Ardelia appeared to be the one on whom they both relied for strength, inspiration, and support, especially Evelyn whose continual run-ins with the US military administration in Vienna and Salzburg and confrontations with the leadership of the Munich Central Collecting Point (MCCP) made her tasks all the more arduous. This might explain why Evelyn Tucker became increasingly an advocate of Austrian interests, sometimes setting her at odds even with official US restitution policy.

More will appear in these pages about Ardelia, Evelyn, and Rose. Suffice it to say, for now, that without their extraordinary displays of bravura and stubbornness, we would not be blessed today with hundreds of thousands of pages of invaluable information regarding thefts, investigations, and recoveries of countless cultural items purloined by the Nazis in Europe. In a corny way, I feel compelled to doff my invisible hat and say to them: thank you for sticking by your guns and handing over to us and future generations a priceless legacy of historical information documenting one of the most complex events of the last century.

Les trois muses. Fragment de décoration de la maison de Titus Dentatius Panthera à Pompéi, (54-68 ap.J.C.)
Source: Radio France Internationale (RFI) via Musée national d'archéologie de Naples

Safeguarding art in Nazi Germany for the greater good: an outline

For as long as museums have existed, one of their cardinal raisons d’être has been to preserve the finest specimens of “CULTURE” for the greater good, for us, the general public. Although the old yarn remains true, which is to say that most museums with items within their collections more than a century old are comprised of objects of plunder, we forgive their sins for they embody the best of what the civilized world has to offer us, which is beauty embodied in objects of outstanding aesthetic and historical significance in their own right. Or so we hope or think. Not every museum is born equal, and as the world becomes increasingly digitized, the function of these august temples of culture shifts dramatically in emphasis. Should they continue to display objects or should virtual renditions suffice? After all, we sate our thirst for knowledge through Internet searches where we view, admire, study these objects. What we know as modern and as art become increasingly more complex and difficult to tease out as “art” or as “representation” or both. And should we be so picky? And who picks? But then, we are getting ahead of ourselves here.

Back to our museums as temples and guardians.

War and conflict are ideal scenarios during which everything is under threat of destruction and theft. Therefore, if the mission consists in salvaging as much as possible from a culture or a society under direct threat of enslavement, subjugation or, worse, annihilation, museums will, more often than not, become repositories of salvaged objects to be preserved for us and for the aggrieved.

We are now in the 1930s in Germany. As modern art comes under ruthless attack from the New Nazi Order, effective winter of 1933, tens of thousands of works of art are under threat of an unpredictable fate, especially at the hands of roaming bands of Brown Shirts or Sturm Abteilung (SA), eager to cleanse German towns and cities of all that is unhealthy, Jewish, Bolshevist, communistic, antithetical to the New Think.

Museum curators and directors, from as far away as the West Coast of the United States, are watching these troubling events very carefully. American, British, French, Dutch, Swiss cultural institutions have forged close ties with their counterparts in what has now become the Third Reich. Many of their German colleagues are now out of a job, fired because of their support of condemned artistic forms, like Expressionism, Impressionism, Cubism, “Jewish” art. Untold numbers of artists can no longer exhibit their wares, and gradually their creative activity is being regulated before being completely prohibited.

Non-German museums and galleries send scouts and agents scurrying across Germany on a salvage mission. They have expense accounts with which to acquire all that they feel is ‘salvageable’ and worthy of incorporation into their paymasters’ collections. Auctions of collections belonging to the Reich’s political opponents and to recently dispossessed Jews are taking place with increasing frequency even in auction houses run by Jews like Paul Graupe’s famed boutique in Berlin. Opportunities abound as paintings, drawings, prints, sculptures, furniture, disappear from apartments, houses, and galleries and enter the market like a gushing torrent. Hungry artists and dispossessed collectors are only too happy to sell their cultural possessions to be able to survive until making the fateful decision to emigrate. They sell to the agents and scouts of non-German museums and galleries. Enterprising brokers like Richard Zinser travel back and forth between Germany and the United States carrying works on paper, both classical and modern, in portfolios that they show to museum officials up and down the East Coast. Their provenance? Needy refugees only too happy to sell.

As Nazi cultural policies force out of museums onto the open market an increasing number of undesirable works, non-German museums and galleries are only too happy to collect them, through various Reich institutions like the Goebbels Ministry of Propaganda and Cultural Enlightenment. Salvage operation or crime of opportunity?

Whether they are the Saint Louis Museum of Art, the Carnegie Institute’s Museum of Art in Pittsburgh, or the newly-minted Museum of Modern Art in New York, all are on the lookout for ‘salvaging’ works of art from the Nazi maelstrom. How noble!

The salvaged works are either shipped directly to the United States or they transit through Switzerland, France, Belgium, Holland, and the United Kingdom.

Let’s pause here. What does “salvage” actually mean? In plain English, it is akin to a rescue. Hence, the non-German collecting world is eagerly sending emissaries throughout the Reich who meet with German officials, artists and dealers, to rescue works for their collections. Who could even criticize such laudable behavior? Nevertheless, shouldn’t we wonder where salvage ends and opportunism begins? What intentions must we lend to these heralds of Western culture embarked on an altruistic mission to ‘salvage’ what is museum-worthy from the clutches of the Nazis?

There are two kinds of ‘salvage’ operations: those which cast a very wide and undiscriminating net to rescue as many works as possible, regardless of their quality, and there are those “salvage” operations that place quality above quantity and focus solely on what our non-German museum and gallery scouts and agents deem to be of the best quality worth saving. The rest can be consigned to its fate.

In the latter case, salvage takes on the contours of a commercial cultural operation specifically geared to enhance the collections of the institutions that are underwriting these rescue efforts from a land torn by a cultural revolution of sorts, stoked by a racially-inspired political movement.

When we fast forward to the first decade of the twenty-first century, the non-German art world’s “salvage” and “rescue” operations of art disgorged by the Nazis becomes scrutinized anew as heirs of victims of those whose collections ended up on the open market as a direct result of the New Order’s “Kulturkampf” are now suing for recovery of what they view to be their property, forced out of their hands by unscrupulous Nazi officials.

Those works which are not coming under fire are those which were forcibly removed as objectionable or “degenerate” from dozens of State-owned museums and galleries under the same wave of cleansing of the Reich’s cultural assets to suit the new ideology. And there are thousands of these "salvaged"  works that were disgorged from German cultural institutions, which are now spread out across the globe, mostly in Western Europe and North America.

Strangely enough, the non-German art world has accepted the official Nazi mantra which, after 1945, became the official German view, that the ideologically-driven removals of undesirable art objects from German State collections were legitimate de-accessioning acts and, as such, should not be viewed as illegal. Since that time, those “de-accessioned” works have entered the most prestigious collections in the world, including, but not limited to:

• The Museum of Modern Art of New York
• The Solomon Guggenheim Museum of Art
• The Metropolitan Museum of Art
• The Brooklyn Museum of Art
• The Cincinnati Art Museum
• The Carnegie Institute’s Museum of Art in Pittsburgh, PA
• The Philadelphia Museum of Art
• The Boston Museum of Fine Arts
• The St-Louis Art Museum
• The San Francisco Museum of Art
• The Tate Gallery
• The Thyssen-Bornemisza Collection in Madrid, Spain

Museums and galleries in the United Kingdom, Canada, France, Belgium, Holland, Denmark, Sweden, Austria, Switzerland, the Czech Republic, Italy, and so forth, and so on.

It would be nothing short of an earthquake if, all of a sudden, those thousands of “salvaged” works of art were to become subject to restitution and sent back to Germany to resume their place in the collections whence they came. However, the day that the German government decides to overturn one of the few Nazi laws that it has upheld with the unwavering support of postwar Allied powers will surely be a day of reckoning for the international art world and an obvious ethical and moral victory for the victims of Nazi persecution and, especially, for those artists who were hounded, ostracized, and, in many cases, eliminated, and their Jewish art dealers and collectors who either fled into exile or perished in the Reich.

Wishful thinking...